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

Decision Date15 November 1977
Docket NumberNo. 72 C 344.,72 C 344.
PartiesJohn A. LOMBARD, Plaintiff, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK and John A. Murphy, Defendants.
CourtU.S. District Court — Eastern District of New York

Joan Goldberg, New York City, for plaintiff.

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

DECISION AND ORDER

PLATT, District Judge.

On March 16, 1972, plaintiff commenced this action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), (4) alleging an unconstitutional violation of his civil rights by the defendant Board and seeking reinstatement as a teacher and an award of all back pay due him and in addition money damages from a former defendant John A. Murphy, the principal of the school where the plaintiff had been teaching.

The pertinent facts are as follows:

On September 1, 1966, plaintiff received a conditional license as substitute teacher, day elementary school, common branches; on October 8, 1968, plaintiff was granted a license as a substitute teacher in the high schools of the State of New York; and on August 11, 1967, plaintiff received a regular license, day elementary school, teacher of common branches.

On September 6, 1967, plaintiff was appointed under his regular license to a three year probationary term at Public School 151 Queens and at the end of the first of the three year probationary term (1967-68) the plaintiff was rated satisfactory on April 11, 1968 by the former defendant herein John A. Murphy, plaintiff's principal.

In plaintiff's second probationary year at Public School 151 in Queens, his principal, the former defendant Murphy, submitted a report on March 28, 1969, to the Board rating plaintiff's performance as a teacher as unsatisfactory for the period from September 10, 1968 through June 30, 1969, and recommending that his probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. The unsatisfactory rating was concurred in by Mary Halleron, Assistant District Superintendent of the District in which Public School 151 is located.

Following certain medical examinations in May and June, 1969, the Medical Division of the defendant Board entered a finding on July 18, 1969, that plaintiff was "unfit for duty" and should be placed on leave of "absence at least until January 31, 1970 for purpose of health restoration". By letter dated September 3, 1969, the defendant advised the plaintiff that he was not to report to school effective September 5, 1969 and was placed on leave of absence for medical reasons through January 30, 1970.

On September 8, 1969, plaintiff commenced an Article 78 proceeding in New York Supreme Court challenging the authority of the Superintendent of Schools to place him on involuntary leave of absence and seeking restoration to duty. This action was apparently dismissed on January 16, 1970 and reargument was denied on June 29, 1970 (Supreme Court, Kings County Index No. 2090/67). Because of this litigation no action was taken prior to January 1970 on the recommendation of former defendant Murphy to discontinue plaintiff's probationary service and no psychological testing of plaintiff was scheduled in the latter part of 1969.

Following further medical examinations in January and March of 1970 the Medical Division in a report dated March 9, 1970, found the plaintiff not fit to return to work and placed him on another leave of absence for medical reasons until June 30, 1970, so advising the plaintiff by letter dated March 12, 1970.

In the interim and on February 24, 1970, a so-called "105(a) termination review proceeding"1 was scheduled to review former defendant Murphy's and Assistant District Superintendent Halleron's recommendation that plaintiff's probationary appointment be discontinued. This proceeding which had originally been scheduled for October 20, 1969, but had been adjourned pending the resolution of the Article 78 proceeding was ultimately rescheduled and held on April 20, 1970, before a Committee of Supervisors designated to sit on behalf of the Chancellor of the New York City School District. About a month before the hearing the plaintiff was given a copy of material submitted by the principal in support of his rating and recommendation.

On or about the 28th of May, 1970, the Committee recommended by internal memorandum to the Chancellor that former defendant Murphy's rating and discontinuance of service be approved on 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 ineffectual instructional service.
(4) Inattention to routine matters such as keeping records of pupils attendance, admission or discharges. Poor relations with Supervisors and Teachers.
(5) Violation of the By-Laws on Corporal Punishment."

Apart from its publication in connection with this litigation, this memorandum was never published nor made available to any prospective employer, to the public or to any particular person not having a need to know within the School District hierarchy.

The Committee's recommendation was reviewed and approved by Acting Chancellor Irving Anker who notified the plaintiff on May 28, 1970, that he concurred in the unsatisfactory rating and the recommendation for discontinuance of probationary service on the grounds of "incompetence, inefficiency and weakness in discipline."

No publication of this notice was made to officials of the Board other than those with a need to know and none was made to the public or prospective employers.

On June 11, 1970, Community School Board No. 23 voted at a public meeting to discontinue plaintiff's probationary service effective September 10, 1970, and adopted the following explanation of its action:

"Mr. John Lombard, a probationary teacher of common branches at Public School 151, Queens, was appointed September 7, 1967. On March 28, 1969, Mr. John A. Murphy, Principal of Public School 151, Queens, submitted a report evaluating Mr. John Lombard as unsatisfactory and recommending discontinuance of probationary service. His recommendation was supported by Miss Mary Halleron, District Superintendent. On Monday, April 20, 1970, Mr. Lombard, accompanied by Mr. Louis Gootnick as adviser, was summoned to appear before the Superintendent's Committee in order to give him the opportunity to reply to the Principal's unsatisfactory evaluation. After careful consideration, the Committee sustained the Principal's Estimate of General Fitness as unsatisfactory and his recommendation that Mr. Lombard's probationary service be discontinued."

Either on this date of June 11th but in any event no later than October 21, 1971, plaintiff's licenses were revoked or deemed revoked.

On June 7, 1971, plaintiff commenced an Article 78 proceeding challenging the termination of his probationary service and on June 27, 1972, plaintiff's petition was dismissed, the New York Supreme Court holding that "the hearing accorded petitioner was proper and that the determination to terminate the services was not arbitrary and capricious". This decision was affirmed by the Appellate Division, 40 A.D.2d 1081, 337 N.Y.S.2d 1003 (2d Dept. 1972), and on February 15, 1973, Court of Appeals denied leave to appeal, 31 N.Y.2d 648 (1973).

In 1970-71 the plaintiff sought and obtained employment with the defendant under his substitute license in distributive education for 101 days in that school year and in 1971-72 plaintiff secured employment under his substitute license in distributive education.

During the period from August 25, 1972 through February 9, 1973, plaintiff was hired as a teacher by the Narcotic Addict Control Commissioner of the State of New York and was terminated on the latter date for reasons not based on any findings of termination made by the Board in this case.

On May 26, 1971, the plaintiff's file number was placed on a circular distributed to principals and superintendents indicating that plaintiff could not be employed in any public school because of the discontinuance of his probationary service. This list, however, did not contain plaintiff's name nor any indication of the reason for placement of plaintiff's file number thereon. File numbers of employees are placed on this list for various reasons including failure to achieve course or experience requirements for licensure.

After commencing this action on March 16, 1972, plaintiff moved for a preliminary injunction for reinstatement as a teacher and his motion was denied in 1973 by Judge Travia, without opinion, and his complaint was dismissed for failure to state a claim upon which relief could be granted.

On appeal to the Second Circuit that Court reversed and remanded ordering "a trial in a District Court to determine whether appellees have violated Lombard's federal constitutional rights" and "for further consideration of Lombard's motion for a preliminary injunction . ." Lombard v. Board of Education of the City of New York, 502 F.2d 631, 638 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975).

On remand to this Court the plaintiff renewed his motion for a preliminary injunction and the undersigned denied that motion on the grounds that "there is no demonstration of irreparable injury or showing that the balance of hardships tips sharply in his favor". Lombard v. Board of Education of the City of New York, 400 F.Supp. 1361, 1362 (E.D.N.Y.1975). In a supplemental memorandum and order dated September 9, 1975 (reported at 400 F.Supp. 1362), this Court also denied the defendants' contention that any question of the plaintiff's mental disorder ought to be submitted to the Committee of the Superintendent of Schools and not be tried by this Court. The ground for that denial was primarily that the Court of Appeals had ordered a trial of the...

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    ...against municipalities," 613 F.2d at 449 n. 7; see Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975); Lombard v. Board of Education, 440 F.Supp. 577 (E.D.N.Y.1977); Adekalu v. New York City, 431 F.Supp. 812 (S.D.N.Y.1977). In any event, for reasons stated below we need not decide in ......
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