Haron v. Board of Ed. of City of New York, 75 Civ 1120.

• Decision Date: 31 March 1976
• Docket Number: No. 75 Civ 1120.,75 Civ 1120.
• Citation: 411 F. Supp. 68
• Parties: Florence HARON, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF NEW YORK and Irving Anker, as Chancellor of the New York City School District, Defendants.
• Court: U.S. District Court — Eastern District of New York

411 F. Supp. 68

Florence HARON, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF NEW YORK and Irving Anker, as Chancellor of the New York City School District, Defendants.

No. 75 Civ 1120.

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

March 31, 1976.

James R. Sandner, New York City, for plaintiff.

W. Bernard Richland, Corp. Counsel by Rosemary Carroll, Asst. Corp. Counsel, New York City, for defendants.

OPINION AND ORDER

PLATT, District Judge.

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that plaintiff's complaint "fails to state a cause of action".

Technically, such a motion would lie under Rule 12(b)(6) and would seek an order of dismissal for "failure to state a claim upon which relief can be granted", but in view of the fact that defendants have filed an answer and an affidavit and a statement under Rule 9(g) of the General Rules of this Court in support of the motion, the motion will be treated as one for summary judgment under Rule 56.

Since the plaintiff did not file a counterstatement of material facts pursuant to Rule 9(g), defendants' statement of such facts must be accepted as true. Such facts which are set forth as "not in dispute" are as follows.

As to the portion of defendants' motion which is stated to be based on the ground that the termination of plaintiff's probationary service did not violate property or liberty rights secured by the Fourteenth Amendment:

"1. The plaintiff was appointed to probationary employment on February 8, 1973 as a high school teacher.

"2. Plaintiff's probationary period was scheduled to terminate on February 8, 1976.

"3. During the course of said employment plaintiff was rated unsatisfactory by Principal of Morris High School, Chester V. Wiggan who recommended discontinuance of her probationary service and denial of tenure.

"4. The recommendation of Principal Schain was concurred by Assistant Superintendent Bertha Gordon.

"5. The areas considered in reviewing plaintiff's employment as set forth in the report of probationary service of teacher for completion of probation include:

A. PERSONAL AND PROFESSIONAL QUALITIES

Professional attitude

Sympathetic understanding of children

Evidence of professional growth

B. PUPIL GUIDANCE AND INSTRUCTION

Effect on character and personality growth of pupils

Control of Class

Maintenance of a wholesome classroom atmosphere

Planning and preparation of work

Skill in adapting instruction to individual needs and capacities

Effective use of appropriate methods and techniques

Skill in making the class program attractive and interesting to pupils

Extent of pupil participation in the class and school program

Evidence of pupil growth in knowledge, skills, appreciations, and attitude

C. CLASSROOM OR SHOP MANAGEMENT

Care of equipment by teacher and children

Attention to records and reports

Attention to routine matters

D. PARTICIPATION IN SCHOOL AND COMMUNITY ACTIVITIES

Maintenance of good relations with other teachers and with supervisors

Effort to establish and maintain good relationships with parents

Willingness to accept special assignments in connection with the school program

"6. Plaintiff was found unsatisfactory by the Principal and the Assistant Superintendent and in need of improvement in 10 other categories. (See Exhibit A — ANSWER)

"7. No charges imputing immorality or mental illness, to plaintiff or impugning her character were brought against plaintiff or raised in the examination review proceeding."

As to the portion of defendants' motion that is based upon the proposition that the termination of plaintiff's probationary appointment did not constitute a revocation of her license to teach:

"8. Plaintiff possesses a license for teacher of as a Second Language in the day high schools.

"9. Defendants have not revoked plaintiff's license nor instituted any proceeding seeking revocation of plaintiff's license."

As to the portion of defendants' motion which is based upon the proposition that the defendant Board is not a person within the meaning of 42 U.S.C. § 1983 and that a claim for damages may not be maintained against the defendant Anker acting in his official capacity:

"10. The Board is a body corporate.

"11. Irving Anker acted in his official capacity as Chancellor of the New York City School District and Superintendent of High Schools in reviewing the recommendation for discontinuance of probationary service."

In her complaint, plaintiff alleges that during the course of her probationary service "she was rated unsatisfactory by her principal in such areas as voice speech and use of English, sympathetic understanding of her children, evidence of professional growth, control of class, skill in adapting instruction to individual needs and capacities, effective use of appropriate methods and techniques, skill in making the class program attractive and interesting to pupils, evidence of pupil growth in knowledge, skills, appreciations and attitude, care of equipment by teacher and children, and attention to routine matters."

Plaintiff further alleges in her complaint that she "was denied the right to cross-examine witnesses and the right to counsel" at a meeting held on May 15, 1974, on the recommendation of her discontinuance, that she was not tried by an impartial body, that she was not given the opportunity to present witnesses or to cross-examine those witnesses who testified against her, and that she was not notified in advance with particularity of the nature of the charges to be made against her. The result of all such actions taken by the defendants, says the plaintiff, is that she has been unable to obtain a teaching position in the public schools of the City of New York and she has suffered great financial and psychological harm.

Plaintiff therefore seeks a permanent injunction prohibiting defendants from terminating plaintiff's services without a hearing consonant with the Fourteenth Amendment of the Constitution and ordering the defendants to reinstate her as a teacher nunc pro tunc.

There is no allegation in the complaint that the alleged bases for an unsatisfactory rating were or are a part of plaintiff's personnel file or more importantly that they were or are being made available to inquiring public and private employers.

Defendants' contentions are essentially that they have not deprived plaintiff of any of her Fourteenth Amendment rights, and that this Court can so find as a matter of law based on the undisputed facts. Plaintiff responds by asserting that the termination of her employment deprived her of a property right and of liberty within the meaning of the Fourteenth Amendment.

Plaintiff's first contention is that "probationary teachers have a property interest protected by the Due Process clauses of the FIFTH and FOURTEENTH Amendments to the Constitution."

The Courts have consistently held, however, that since probationary teachers do not have tenure they do not have any such "property interest", Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975).

In an effort to distinguish her situation from that of other probationary teachers, plaintiff points out that the contract of the United Federation of Teachers and the By-Laws of the Board of Education require that probationary teachers be accorded a pre-termination hearing, and suggests that this created for her an "expectancy" of re-employment. This "expectancy", her argument runs, is a property right of which she cannot be deprived without a hearing.

The Court finds the argument without merit. A probationary teacher does not gain a "legitimate claim of entitlement" (see Board of Regents v. Roth, supra, at p. 577, 92 S.Ct. at p. 2709, 33 L.Ed.2d at p. 560) to a tenured position simply because the termination procedure becomes more complex and formal than it was previously. A probationary teacher who is by contract entitled to a hearing before termination is still a probationary teacher subject to termination, not a tenured teacher entitled to continuing employment.

In her complaint, plaintiff further argues that under §§ 241, 250 and 251 of the By-Laws of the Board of Education of the City of New York, plaintiff's license was "terminated effective October 18, 1974, concurrent with the termination of her probationary service * * that plaintiff's opportunity to obtain a new license to teach in the New York City public schools has been rendered nill sic * * * and that plaintiff has been effectively precluded from obtaining such employment by the actions of defendants herein."

In her brief, plaintiff does not press this argument, presumably because it was decided adversely to her (and in this Court's opinion, correctly) in Finucane v. Board of Education (73 C 1906) and Rice v. Anker (75 C 18) (E.D.N.Y. Aug. 21, 1975) (Mishler, C. J.).

Plaintiff relies heavily on a series of State cases to support the claim that she has been denied a property right, but we find the cases cited unpersuasive. Aster v. Board of Education of the City of New York, 72 Misc.2d 953, 339 N.Y.S.2d 903 (Sup.Ct. Kings Co. 1972), for example, does hold that after Board of Regents v. Roth, supra, a probationary teacher must be accorded a due process hearing before termination, but the court relied on the mistaken assumption that a teacher lost his or her teaching license upon termination. That was the contention of the unsuccessful plaintiffs in Finucane and Rice. And the decisions in Brown v. Board of Education of the City of New York, 42 A.D.2d 702, 345 N.Y.S.2d 595 (2d Dept. 1973), leave to appeal denied, 34 N.Y.2d 519, 345 N.Y. S.2d 595 (1974), and Greenwald v. Community School Board No. 27, Queens, 42 A.D.2d 965, 347 N.Y.S.2d 969 (2d Dept. 1973) are based on determinations that State law...