Kennedy v. Engel, 72-C-1118.

• Decision Date: 27 September 1972
• Docket Number: No. 72-C-1118.,72-C-1118.
• Citation: 348 F. Supp. 1142
• Parties: Donald KENNEDY, Plaintiff, v. A. B. ENGEL, Superintendent et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

348 F. Supp. 1142

Donald KENNEDY, Plaintiff, v. A. B. ENGEL, Superintendent et al., Defendants.

No. 72-C-1118.

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

September 27, 1972.

Samuel Resnicoff, New York City, for plaintiff.

Robert A. Morse, U. S. Atty., E. D. New York, for defendants by Lloyd H. Baker, Islip, N. Y., of counsel.

ZAVATT, Senior District Judge.

The plaintiff seeks to enjoin the defendants from terminating his employment as an Assistant Professor in the Department of Physical Education and Athletics of the United States Merchant Marine Academy (Academy) located at Kings Point, Long Island, New York and also seeks a declaratory judgment to the effect that the defendants, in terminating his employment, denied him "procedural due process and the equal protection of the laws."

The plaintiff's motion, pursuant to Fed.R.Civ.P. 65, for a preliminary injunction is denied.

On January 29, 1967, the plaintiff, Donald Kennedy, became an Assistant Professor in the Physical Education Department of the Academy under a two-year contract. Upon the expiration of that contract his employment was extended for a further three-year term to expire on January 28, 1972.

On February 18, 1971, after the plaintiff had completed the fourth academic year as a member of the faculty, he requested consideration for tenure. The rules governing tenure at the Academy are set forth in Administrator's Order No. 181 (June 24, 1969) of the Manual of Orders, Maritime Administration, U. S. Department of Commerce (hereinafter MARAD Order No. 181), § 6.07(3) of which provides:

"Eligibility for tenure appointment. Each faculty member serving under a limited term appointment who meets the qualification requirements may be considered for a tenure appointment after completion of the third academic year. Such faculty member must be considered for a tenure appointment after completion of five years under term appointments. A faculty member who is not recommended for a tenure appointment within the time limits specified above normally shall be separated from the service not later than the end of the fifth academic year."

On March 29, 1971, the Tenure Committee voted not to recommend the granting of a tenure appointment and, on July 27, 1971, the plaintiff was informed, in writing, by the Superintendent of the Academy (Superintendent) that he was to be separated from the Academy not later than the end of his fifth academic year of service:

"In accordance with Administrator's Order 181, Section 6.07.3, it is mandatory that you are separated not later than the end of the fifth academic year of your service.

This is to inform you that no further term appointment will be made. Your employment at the United States Merchant Marine Academy will terminate January 28, 1972."

After receiving this notice from the Superintendent, plaintiff wrote the following memorandum:

"I would like to request a six month extension to the term of my employment. January 28th is in the middle of the academic year and thus a very difficult time to find employment in the field of education.

Thank you for your past considerations and I sincerely hope that I may continue my work here at the Academy."

The Superintendent granted plaintiff's request upon the condition stated in his memorandum of August 10, 1971, consented to by the plaintiff:

"This will acknowledge receipt of your request for a six months extension of your current appointment which terminates on January 28, 1972.

In view of the lack of employment opportunities for a faculty member in the middle of the academic year, I have decided to grant your request. Your appointment will be extended until July 23, 1972.

By endorsement of attached copy of this memorandum you will stipulate that the action above will not, in any way, qualify you for tenure."

Following a visit to the Academy by the plaintiff's wife on or about July 12, 1972, Kennedy resigned on July 20, 1972 and was granted a temporary appointment ("Excepted Appt.") from the period beginning July 23, 1972 not to exceed September 1, 1972. Before the expiration of this "Excepted Appt." and on August 24, 1972, the plaintiff instituted this action by filing a complaint seeking a declaratory judgment that the termination of his employment violated his constitutional rights to "due process and the equal protection of the laws" and seeking a preliminary and a permanent injunction restraining the defendants from terminating his employment as of the close of business on September 1, 1972.¹ Simultaneously with the filing of the complaint, plaintiff moved, by an order to show cause signed by Judge Bartels and returnable September 7, 1972, for a preliminary injunction. Judge Bartels granted a temporary restraining order pending the hearing of said motion.

A hearing on plaintiff's motion was held before me on September 7th, during which I heard the testimony of John J. O'Grady, custodian of personnel records of the Academy, and received in evidence numerous documents submitted by the Academy, including the above-quoted memoranda and the report of the Tenure Committee. The plaintiff did not appear in person. He appeared by his counsel who called no witnesses but submitted a few documents which he deemed relevant.

At the hearing, plaintiff's counsel contended that the Tenure Committee was not constituted as required by Administrator's Order No. 116 of June 24, 1969 (MARAD Order No. 116). He argued that that order requires that the Tenure Committee include among its members the head of the Physical Education Department of which the plaintiff was a faculty member. He entirely misread or misconstrued that Order. It provides that the Committee on Tenure Appointments consist of seven members selected by the Dean from a faculty panel which includes the "Heads of academic departments" and "Members holding tenure appointments elected from the faculty within the departments in the numbers specified." MARAD Order No. 116, §§ 3.02 and 3.04. Plaintiff's counsel made much of the fact that Captain James W. Liebetz, U.S.M.S., the Athletic Director, was not a member of the Tenure Committee which met to consider plaintiff's application for tenure. There is no merit to this contention that MARAD Order No. 116 requires the head of the Department, within which the plaintiff was serving, to be a member of the Tenure Committee.

The next contention of plaintiff's counsel was that the plaintiff acquired tenure status because he was in the employ of the Academy for a period of more than five years, despite the fact that his application for tenure was denied before the expiration of his five years of employment and despite the fact that the continuation of his employment beyond January 28, 1972 (the expiration of the five year period) was at his special instance and request, after having been denied tenure prior to that time, and was conditioned upon his explicit agreement that the continuation of his employment beyond January 28, 1972 "will not, in any way, qualify you for tenure." This contention is considered, infra, and held to be without merit.

The next contention of plaintiff's counsel at the hearing was that the action of the Tenure Committee in 1971, when it denied his application for tenure, deprived the plaintiff of his alleged constitutional right to "due process and the equal protection of the laws." Specifically, plaintiff's counsel contended that the Tenure Committee could not act upon his application for tenure without affording him a due process hearing and that its ex parte consideration of and action upon his application for tenure, giving no reasons for its refusal to recommend tenure, was unconstitutional. In support of this contention, he cited two recent decisions of the Supreme Court —Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

In Perry v. Sindermann, supra, a teacher who had become enmeshed in controversy with the Board of Regents of Odessa Junior College, a Texas State institution, was not rehired. He claimed that this action was in reprisal for his exercise of First Amendment rights. The Supreme Court held that it was irrelevant whether or not he had tenure, if his claim could be substantiated. (In contrast, it is to be noted in this case that Kennedy asserts no First Amendment claim.) Although this was Sindermann's primary allegation, he also alleged that the failure of the State Board of Regents to provide him with an opportunity for a hearing denied him procedural due process, regardless of his First Amendment claim. As to this allegation, the Supreme Court stated (408 U.S. at 599, 92 S.Ct. at 2698):

"The respondent's lack of formal contractual or tenure security in continued employment . . . is highly relevant to his procedural due process claim. But it may not be entirely dispositive."

It was not entirely dispositive, the Court said, because the teacher alleged that his college had a de facto tenure program, citing the college's Faculty Guide. 408 U.S. at 600, 92 S.Ct. at 2699. In addition, said the Court, the teacher claimed "legitimate reliance" upon certain state guidelines which provided that a teacher employed for seven years has "some form of job tenure." The particular guideline provided that "the probationary period for a faculty member shall not exceed seven years," with certain exceptions. 408 U.S. at 600, 92 S.Ct. 2699 n. 6, Generalizing, the Court stated that, even where there is no system of written contracts with explicit tenure provisions, there may, nevertheless, be implied or not-formalized agreements which may confer upon a teacher a property right akin to tenure, of which a teacher may not be deprived without procedural due process. 408 U.S. at 600-604, 92 S.Ct. at 2699-2700.

In Roth, supra, the only claims before the Court were grounded on procedural due process. The Court, however, found those claims without merit because...