Lombard v. Board of Ed. of City of New York

• Decision Date: 23 January 1976
• Docket Number: No. 72 Civ. 344.,72 Civ. 344.
• Citation: 407 F. Supp. 1166
• Parties: John F. LOMBARD, Plaintiff, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and John A. Murphy, Defendants.
• Court: U.S. District Court — Eastern District of New York

407 F. Supp. 1166

John F. LOMBARD, Plaintiff, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and John A. Murphy, Defendants.

No. 72 Civ. 344.

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

January 23, 1976.

Gene Ann Condon, New York City, for plaintiff.

W. Bernard Richland, Corp. Counsel, by Nancy E. Siegel, Asst. Corp. Counsel, New York City, for defendants.

OPINION and ORDER

PLATT, District Judge.

Defendants have made an additional motion for an order pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure dismissing this action against the defendant Board of Education for lack of jurisdiction and for an order granting the defendants leave to amend their answer pursuant to Rule 15(a) of said Rules. The background and facts in this action are set forth in the opinion of the Circuit Court of Appeals (Gurfein, J.) reported at 502 F.2d 631 and will not be reiterated herein. The decisions of this Court on two prior motions made following the remand are reported at 400 F.Supp. 1361.

Suffice it to say that Lombard was a probationary teacher in his second year at Public School 151 in Queens, New York, when the principal, the defendant Murphy, submitted a report to the Board recommending that his probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. In this report the defendant Murphy made statements enumerating various acts which Lombard charges were false, made in bad faith and in retaliation and revenge for certain things done by Lombard.

In May of 1969 Lombard was examined by two staff physicians of the Board and in June of 1969 by a psychologist and was thereafter given an involuntary leave of absence until January of 1970. In the latter month and again in March of 1970 he was further examined and his leave of absence extended until June of 1970.

On April 20, 1970, a hearing was held before a committee of the Superintendent of Schools concerning Lombard's probationary status at which various witnesses gave unsworn oral testimony on his behalf and the committee had before it the reports by the principal and the recommendations of the physicians and psychologists. Following such hearing, the committee recommended that the probationary appointment be discontinued on the following five grounds:

(1) Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty.

(2) Weakness in discipline and class control.

(3) Incompetent and ineffective instructional performance.

(4) Inattention to routine matters such as keeping records of pupil attendance, admission or discharges. Poor relations with Supervisors and Teachers.

(5) Violation of the By-Laws on Corporal Punishment. (A District Superintendent disapproved the defendant Murphy's charge in this respect on the ground of insufficient reliable evidence.)

Following Superintendent of Schools Irving Anker's approval of this report, School Board No. 23 adopted the same on June 11, 1970, to become effective September 10, 1970.

The basis for the first part of defendant Board of Education's motion to dismiss the action as to it is that the Board is not a "person" within the meaning of 42 U.S.C. 1983 and hence it cannot be held liable for either the damages or the equitable relief sought herein.

The complaint in the action, which was filed on March 16, 1972, alleges that "this Court has jurisdiction of this action under title 28, section 1343(3), (4) of the United States Code, in that this is an action under title 42, section 1983 of the United States Code, in which the complaint demands equitable relief against the defendant Board of Education to redress its deprivation of plaintiff's rights secured by the Constitution of the United States, and the complaint demands money damages from the defendant, John A. Murphy, for his actions which deprived the plaintiff of rights secured by the Constitution of the United States."

In the third paragraph of the Wherefore clause the plaintiff asked for money damages in the sum of $200,000. against the defendant Murphy. In the last paragraph of the complaint (Para. 12) the plaintiff alleges that "by terminating plaintiff's probationary appointment as a teacher in bad faith, and in retaliation and revenge for his having joined a labor union of teachers and used its assistance in filing grievances against the principal of the school, and by stating falsely that the plaintiff had committed acts and made statements showing prejudice against black pupils, and that the plaintiff had committed acts of bizarre behavior, and by blacklisting and disqualifying the plaintiff from employment in the public schools of the City of New York by the said Board's Special Circular No. 66, 1971, the defendants unconstitutionally deprived the plaintiff of his rights under the First and Fourteenth Amendments to the Constitution of the United States freely to speak criticisms of the principal of his school, freely to associate with other teachers in a labor union of teachers, and to due process of law, and the equal protection of the laws."

In remanding the case for a trial after denying defendants' motion for a summary judgment, the Court of Appeals held that if the Board of Education grounded, in part, the plaintiff's termination as a probationary teacher on a charge of mental illness without first giving the plaintiff an appropriate adversary hearing, then the plaintiff might "claim a deprivation of liberty `under the due process clause of the Fourteenth Amendment'" and concluded "that he should be given a trial in the District Court to determine whether defendants have violated his Federal constitutional rights."

The issues raised by the first part of defendants' present motion have recently been discussed by my learned colleague, The Hon. Orrin G. Judd, of this Court in Buck v. Board of Education (71 Civ. 954, July 16, 1975, not yet reported). The text of the pertinent portion of his opinion in such case is set forth in full herein because (i) it has not, as yet, been published, and (ii) it is clearly applicable to the issues raised herein:

"Jurisdiction over municipal agencies in civil rights actions has been limited recently as a result of the Supreme Court's holding in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). On its second motion to vacate this court's prior order, the Board of Education asserts that the City of Kenosha case governs and requires dismissal against it, and that James v. Board of Education, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972) is no longer controlling. Defendant argues also that the James case was decided on the basis of violation of First Amendment rights, while in this case relief was granted only on the basis of a due process violation. However, back pay has been awarded also for violations of due process. Callaway v. Kirkland, 334 F.Supp. 1034 (N.D.Ga.1971).

"Many cases decided since City of Kenosha have dismissed actions for damages against boards of education on the ground that such bodies, like municipalities, are not `persons' under 42 U.S.C. § 1983. Ingraham v. Wright, 498 F.2d 248 (5th Cir. 1974); Seaman v. Spring Lake Park Independent School District, 387 F.Supp. 1168 (D.Minn.1974); Howell v. Winn Parish School Board, 377 F.Supp. 816 (W.D. La.1974); Patton v. Conrad Area School District, 388 F.Supp. 410 (D.Del.1975); Weathers v. West Yuma County School District, 387 F.Supp. 552 (D.Colo.1974).

"On the other hand, in Keckeisen v. Independent School District, 509 F.2d 1062 (8th Cir. 1975) the court distinguished a school board from a municipality, and held that the former was suable under § 1983. In Singleton v. Vance County Board of Education, 501 F.2d 429 (4th Cir. 1974), the court divided on the right to bring a § 1983 suit against a school board. Attorneys' fees were ordered and a direction for back pay was approved in Cornist v. Richland Parish School Board, 495 F.2d 189 (5th Cir. 1974), after Kenosha. Back pay has been ordered for another New York City employee who was dismissed without due process. Vega v. Civil Service Commission, 385 F.Supp. 1376 (S.D.N.Y. 1974). Moreover, the Supreme Court, after Kenosha, reinstated an order granting back pay in Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), rev'g same case, 474 F.2d 395 (4th Cir. 1973), rev'g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (E.D.Va.1971).

"The Court of Appeals in this circuit has not dealt with the question, although in Forman v. Community Services, Inc., 500 F.2d 1246 (2d Cir. 1974), in dealing with a claim against the New York State Housing Finance Agency under Section 1983, it stated that

While municipal corporations, that is municipalities, are not deemed `persons' under the Civil Rights Act . . . `agencies' have always been so deemed.

No problem under the City of Kenosha case was mentioned by either of two completely different panels in two other decisions which remanded § 1983 actions for determination on the merits. 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; Newman v. Board of Education, 508 F.2d 277, (2d Cir. January 6, 1975), cert. denied, 420 U.S. 1004, 95 S.Ct. 1447, 43 L.Ed.2d 762.

"Jurisdiction Under 28 U.S.C. § 1331

"The question of jurisdiction over the New York City Board of Education under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 need not be decided if federal question jurisdiction exists under 28 U.S.C. § 1331(a). The necessary $10,000 jurisdictional amount is present in this case. Where there is an invasion of constitutional rights the courts have the inherent power to grant adequate relief, as was held in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

"Jurisdiction

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