Gonzalez v. Shanker
| Decision Date | 31 July 1975 |
| Docket Number | No. 75 Civ. 1705.,75 Civ. 1705. |
| Citation | 399 F. Supp. 858 |
| Parties | Raul GONZALEZ, Plaintiff, v. Albert SHANKER et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Layton & Sherman, New York City, for plaintiff; Donald S. Hillman, Fredrick E. Sherman, New York City, of counsel.
James R. Sandner, Gen. Counsel, New York City, for defendants U.F.T.; Jeffrey S. Karp, New York City, of counsel.
W. Bernard Richland, Corp. Counsel, New York City, for City defendants; Joseph F. Bruno, Asst. Corp. Counsel, New York City, of counsel.
This action arises in the aftermath of the long and bitter struggle for control of Community School District No. 1 on the lower east side of Manhattan.
The plaintiff, Raul Gonzalez, a Puerto Rican, is principal of Junior High School 60M, one of the schools in the embattled area. He brings this action for declaratory relief, injunctive relief, and damages against certain governmental defendants, including the Community Superintendent of School District No. 1, certain members of the Community School Board for that district, the Chancellor and the individual members of the Central Board of Education of the City of New York, and against certain nonofficial defendants, primarily the United Federation of Teachers and certain of its officers and employees ("the UFT defendants"). The first cause of action in plaintiff's complaint alleges violations of his civil rights under the First and Fourteenth Amendments to the Constitution and under 42 U.S.C. §§ 1981 and 1983. In the second cause of action, plaintiff further claims that all the named defendants, with the exception of the Chancellor and the individual members of the Board of Education, conspired in violation of 42 U.S.C. § 1985(3) to deprive plaintiff of the equal protection of the laws and from exercising his rights as a citizen. Finally, plaintiff claims that all the defendants, having knowledge of the conspiracy, and having the power to prevent or aid in preventing it, failed or neglected to do so, thereby violating 42 U.S.C. § 1986. Jurisdiction is predicated on 28 U.S.C. § 1343 and § 2201.
All the defendants have moved pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint, primarily on the grounds (1) that plaintiff has not exhausted his available administrative and/or contractual remedies, and (2) that as to most of the defendants, the plaintiff has failed to plead facts of the requisite specificity necessary to establish a claim upon which relief can be granted under 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986. We reject both of these contentions.1
The facts of this case are intimately interrelated with the history of the dispute that has embroiled Community School District No. 1 over the past few years. As the plaintiff notes in his complaint, the struggle for control over the governance of the school district has been particularly heated and vitriolic. Elections for school board membership in the district have been conducted in an atmosphere of intense acrimony and racial hostility.2
The prime protagonists in the dispute have been Luis Fuentes and the United Federation of Teachers. Fuentes, a Puerto Rican, committed to a program of bilingual education, was appointed superintendent of the school district in October, 1972. The majority of the school board at that time consisted primarily of minority group members identified with a community organization known as the Coalition for Education. At the next school board election, held in May, 1973, candidates from the Coalition were opposed by a group called the Committee for Effective Education, a UFT-supported organization which sponsored eight white candidates and one black. This bitterly fought election resulted in the choice of six CEE candidates and three Coalition members. On October 16, 1973, the CEE members prevailed on a vote to suspend Fuentes as superintendent.
Prior to the vote, however, the Coalition had instituted suit in this court claiming that various acts by employees of the Board of Elections had resulted in a discriminatory impact on the rights of minority voters. On October 19, 1973, the Coalition obtained an injunction against Fuentes' suspension. Eventually, the group succeeded in having the entire May, 1973 election set aside as held in a racially discriminatory manner. See, Coalition for Education in District One v. Board of Elections of the City of New York (S.D.N.Y.1974), 370 F.Supp. 42, affd. (2d Cir. 1974), 495 F.2d 1090. A new election was held on May 14, 1974. This time five CEE candidates and four Coalition members were chosen. On August 8, 1974, by a vote of 5-0 (with the four Coalition members abstaining), Fuentes was again suspended.
It is out of the foregoing events that plaintiff claims the conspiracy to deprive him of his civil rights, and the actual deprivations of those rights, developed. The core of his allegations can be found in paragraphs 29 to 31 of his complaint. There, plaintiff states that prior to the pivotal May, 1973 school board election, he was approached by certain representatives of the UFT, and, in essence, asked to cooperate with the UFT in their campaign against Fuentes and the Coalition. When plaintiff refused, and instead reaffirmed his intention to support Fuentes, plaintiff claims defendant Levine threatened that if a UFT dominated school board were to be elected, they would make it difficult for plaintiff to continue to function as a principal in the district. Thus, plaintiff alleges ):
"Defendant Levine made it clear that many obstacles would arise to prevent plaintiff from functioning effectively in his position."
The plaintiff now contends that this threat, motivated by both racial animus and a desire to punish him for the exercise of his First Amendment rights, has indeed been carried out. He maintains that he has been "subjected to a deliberate and continuing program of harassment, interference and non-cooperation in the performance of his duties as Principal of J.H.S. 60M" ). In paragraph 31 of the complaint, the plaintiff sets forth fourteen fairly detailed illustrations of this policy of harassment and non-cooperation. Among the allegations are:
As is apparent from the above examples, the illustrations vary in the degree of interference and discrimination alleged. While any one of the allegations may appear to present a trivial or an isolated occurrence, taken as a whole, plaintiff has clearly alleged a substantial interference with his civil rights.3 Whether or not any of such allegations can be supported by evidence is, or course, a question not now before us.
The defendants urge that this complaint be dismissed because of plaintiff's failure to exhaust administrative and/or contractual remedies. They maintain that such remedies are adequate to deal with all the allegations in plaintiff's complaint, including the conspiracy and harassment charges.
The contractual remedies available to plaintiff are contained in an agreement between the Board of Education and the Council of Supervisors and Administrators of the City of New York, Local 1, School Administrators and Supervisory Organizing Committee, AFL-CIO (CSA contract). The pertinent portions of the CSA contract are Article X and XI, the applicable sections of which are set forth in the margin.4 Article X need
not long detain us, since it deals only with violations of the CSA contract. While this section may therefore afford relief for some of the individual acts complained of — such as the unauthorized disclosures of plaintiff's personal file — type of systematic harassment that is it does not even purport to deal with the the gravamen of the instant action.
Article XI, on the other hand, at least purports to deal with "harassing conduct" or "acts of intimidation." It sets up an expedited procedure for the resolution of what are called "special complaints." These are defined as Complaints:
"by a supervisor that a person or persons or groups are engaging in a course of harassing conduct, or in acts of intimidation, which are being directed against him in the course of his employment, and that . . . the District Superintendent of the district in which he is employed . . . has not afforded the supervisor adequate relief against such course of conduct or acts of intimidation."
Such complaints are filed directly with the Chancellor, who before holding a hearing personally, appoints a "Joint" Investigating Committee to look into the matter. If neither the Committee nor the Chancellor can resolve the dispute, the complaint can be submitted for hearing and fact-finding before an arbitrator or "fact-finder". The fact-finder, however, must "limit his findings strictly to the question whether the employee's complaint has been substantiated by the evidence;" and he is specifically denied any of the "powers conferred upon trial examiners pursuant to Section 2590-j 7(f) of the Education Law."5 The fact-finder can recommend an appropriate remedy, but the decision whether to apply such remedy is...
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Cullen v. NEW YORK STATE CIVIL SERV. COMN.
...Bank of Connecticut, 493 F.2d 739, 741 (2d Cir.), cert. denied, 419 U.S. 1009, 95 S.Ct. 329, 42 L.Ed.2d 284 (1974); Gonzalez v. Shanker, 399 F.Supp. 858, 868 (S.D.N.Y.1975); Undergraduate Student Ass'n. v. Peltason, 359 F.Supp. 320, 322 (N.D.Ill.1973). This principle has been applied withou......
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Orshan v. Anker
...(1974) (State has ultimate power over curricular and administrative decisions absent an unconstitutional motivation). Gonzalez v. Shanker, 399 F.Supp. 858 (S.D.N.Y.1976), aff'd on other grounds, 533 F.2d 832 (2d Cir.1976), the sole legal authority cited by plaintiff, is not to the contrary.......
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Substitutes United for Better Schools v. Rohter
...required before a § 1983 action can be brought. In contrast, prior resort to contractual remedies was not required in Gonzalez v. Shanker, 399 F.Supp. 858 (S.D.N.Y.1975), aff'd, 533 F.2d 832 (2d Cir. 1976). The Seventh Circuit has adopted an exhaustion requirement, but only in certain narro......