Danielson v. Board of Higher Education, 71 Civ. 2985.

• Decision Date: 12 April 1972
• Docket Number: No. 71 Civ. 2985.,71 Civ. 2985.
• Citation: 358 F. Supp. 22
• Parties: Ross DANIELSON et al., Plaintiffs, v. BOARD OF HIGHER EDUCATION et al., Defendants.
• Court: U.S. District Court — Southern District of New York

358 F. Supp. 22

Ross DANIELSON et al., Plaintiffs, v. BOARD OF HIGHER EDUCATION et al., Defendants.

No. 71 Civ. 2985.

United States District Court, S. D. New York.

April 12, 1972.

Nancy Stearns, Center for Constitutional Rights, Veronika Kraft, New York City, for plaintiffs.

J. Lee Rankin, Corp. Counsel, City of New York, by Yvette Harmon, Asst. Corp. Counsel, New York City, for defendants.

MOTLEY, District Judge.

Opinion on Motion to Dismiss and for Summary Judgment

This is an action by Ross Danielson, a lecturer in sociology at City College, a branch of the City University of New York. Mr. Danielson's challenge is to the constitutionality of defendants' maternity leave provision on its face and as applied. The essence of Danielson's claim is that women faculty members are permitted to take a leave of absence in connection with pregnancy, up to three semesters, for the purpose, among others, of caring for a new born infant, without adversely affecting their tenure rights, but the same child care leave privilege is denied to men.

This action is also brought by Mr. Danielson's wife, Susan Danielson, who is a lecturer in English at Lehman College, another branch of the City University of New York. Her challenge is to the constitutionality of defendants' refusal to treat her 12-day leave, during which she gave birth to a child, as sick leave.

Defendants are the Board of Higher Education which governs the City University of New York, the chairman of that Board, the chancellor of the University, the president of City College, and the dean of faculties of Lehman College.

Jurisdiction is predicated upon 28 U. S.C. §§ 1331 and 1343. Declaratory and injunctive relief are sought. Ross Danielson seeks a declaration that the maternity leave provision is unconstitutional on its face and as applied to male faculty members. He also seeks an injunction enjoining defendants from discharging him or otherwise penalizing him for having taken child-care leave. Mrs. Danielson seeks a declaratory judgment that defendants' actions in withholding her pay for the period December 8 through 23, 1970 deprived her of her property in violation of the Fourteenth Amendment. She also seeks an award of her back pay in the amount of $180, plus interest.

The action is presently before the court on the motion of plaintiffs for summary judgment in their favor and the motion of defendants to dismiss or, alternatively, for summary judgment in their favor. Defendants have moved to dismiss the complaint on two grounds: 1) the court lacks jurisdiction of the subject matter and, 2) the complaint fails to state a claim upon which relief may be granted. For the reasons set forth below, the motion to dismiss is denied. The motions for summary judgment are also denied on the ground that there are several disputed issues of fact.

Mr. Danielson commenced teaching in the City College in the fall semester of 1969. His wife, Susan Danielson, who was teaching at Lehman College at the same time became pregnant in the early spring of 1970. Upon discovering her pregnancy, Susan and her husband discussed the matter at great length. They weighed the options available to them with respect to the care of their child and the pursuit of their respective careers. They decided that Susan would continue her teaching duties throughout her pregnancy and after childbirth. Then, for at least the first six months after the child was born, Mr. Danielson would stay home and assume the primary responsibility for the care of their infant. Susan Danielson consulted her physician who assured her that such conduct on her part would in no way be injurious to her health.

Mr. Danielson then made every effort to obtain "parental leave of absence" from City College. He claims such "parental leave" is available for women faculty members pursuant to Article XIII, Section 13.4, of the By-Laws of the Board of Higher Education and should be equally available to men.

This section provides in pertinent part as follows:

Maternity Leave. a. As soon as a member of the instructional staff shall become aware of her pregnancy, she shall forthwith notify the president and may apply for a leave of absence.

Such leave shall begin on February 1 or September 1, unless the conditions of the pregnancy require that the leave begin sooner. The duration of the leave shall be at least one full semester. In exceptional cases, if approved by the college physician, the president may terminate a maternity leave during a college term, provided there is an appropriate opening in which the applicant's service may be utilized. An extension of maternity leave shall be permitted on request for a period not in excess of one year from the end of the original leave. No further extentions (sic) shall be permitted.

b. Maternity leaves shall be granted without pay during the period of the leave, including the vacation period concomitant to the leave. If the leave is for one semester only, the loss of paid vacation shall be for one month only. If the leave is for two semesters, both months of vacation shall be without pay. If the duration of a maternity leave is one year or more, it shall not be credited towards salary increments. (emphasis added.)

It is agreed that women are not compelled by this section to take maternity leave. This case is therefore unlike the companion case of Monell v. Department of Social Services, D.C., 357 F.Supp. 1051, decided this same date, involving the constitutionality of New York City agency regulations which allegedly compel women to take a maternity leave at the end of the seventh month of pregnancy.

Mr. Danielson applied for a leave of absence for the spring semester of 1971, by letter dated October 5, 1970, to the acting chairman of his department. In that letter he stated as follows:

"The purpose of my leave of absence would be two-fold: 1) to care for a new baby and, 2) engage in serious work on a PHD."

(Complaint, Appendix B.)

The acting chairman rejected the requested leave of absence by letter dated October 28, 1970. He stated: "... there is no provision for a `leave of absence' (for any reason) for persons who do not have tenure." The acting chairman also advised Mr. Danielson that his letter of October 5 amounted to a resignation as of January 31, 1971. (Complaint, Appendix C.) On November 10, 1970, Mr. Danielson applied for "maternity leave of absence" to the president of City College. He submitted the appropriate form under Section 13.4 with a letter stating his reasons for the requested maternity leave.

In that letter Mr. Danielson stated: "Men should have the same rights as women to care for young infants, especially where the mother chooses to work full time (as is true in my case.) If a husband is not entitled to a leave of absence, then the mother is virtually forced to take a leave of absence and hence the woman's maternity leave is rendered less a right than an obligation, contrary to the spirit, as I see it, of the maternity leave provisions and of various interpretations of equal rights legislation and constitutional guarantees. If not granted a leave of absence, a husband who wishes to care for a young infant must suffer greater hardship (such as termination of employment and loss, even with reappointment, of certain contract provisions, tenure credits, etc.) than a woman who may take a leave of absence; therefore the non-application of the maternity leave provision to men is unfair to men and tends to keep women in the home where they are burdened with the traditional child-care role in order to secure the employment of the husband. There can be no equal rights for women without equal rights for men." (Complaint, Appendix D.)

On or about December 21, 1970 Mr. Danielson learned that the president's Review Committee had rejected his application without stating any reason. Mr. Danielson appealed to the chancellor of the University and the chairman of the Board of Higher Education but received no reply to his letters.

Ross Danielson took a leave during the spring 1971 semester and alleges he assumed primary responsibility for the care of his child. His wife resumed her teaching duties. His application for maternity leave was treated as a resignation. Thus, although he was rehired for the fall 1971 term, the computation of his continuous service time has been affected.

Susan Danielson, who had a right to do so, did not request the maternity leave permitted under Section 13.4. The president's office, however, sent her a form for such leave on numerous occasions. Maternity leaves which are granted under Section 13.4 are leaves without pay. If Mrs. Danielson had chosen to take maternity leave as of September 1, 1970 and had requested the one year extension, she could have remained away from her post until February 1, 1972 without loss of accrued time towards tenure requirements. It appears that no doctor's certificate in support of her request for extension would have been required. However, there is no proof one way or the other on this question. During this time away from her position, Mrs. Danielson apparently would have been free to devote all her time to the care of her newborn infant or, it appears, she could also have worked on her Ph.D. But, again, there is no firm proof one way or the other on this crucial question.

Defendants say that "... Ross Danielson might have obtained a leave for special purposes under Section 13.6 if he so requested, for the purpose of taking care of his child." (Defendants' Brief, p. 18.) They also assert that "If any parent desires to take leave solely for childrearing purposes, they must proceed under By-Law § 13.6, leave for special purposes." (Id. p. 24.)

Section 13.6b provides: "On the recommendation of the relevant departmental committee concerned with appointments, the relevant college committee and the president, the Board may grant to members of the instructional staff leaves of absence for special purposes such as...