Lombardo, Application of

• Decision Date: 14 May 1963
• Parties: , 9 Fair Empl.Prac.Cas. (BNA) 1218 Application of Josef V. LOMBARDO and Joseph P. Mullally, Petitioners-Respondents, for an order under Article 78 of the Civil Practice Act to review determination of The Board of Higher Education in the City of New York, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 119

240 N.Y.S.2d 119

18 A.D.2d 444, 9 Fair Empl.Prac.Cas. (BNA) 1218

Application of Josef V. LOMBARDO and Joseph P. Mullally Petitioners-Respondents, for an order under Article 78 of the Civil Practice Act to review determination of The Board of Higher Education in the City of New York, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

May 14, 1963.

Mathias F. Correa, New York City, of counsel (Leo A. Larkin, Corporation Counsel, attorney), for appellant.

Edward D. Burns, New York City, of counsel (Saxe, Bacon & O'Shea, New York City, attorneys), for petitioners-respondents.

Whitman Knapp, New York City, of counsel (Robert M. Benjamin, Frank E. Karelsen and Fred N. Fishman, New York City, with him on the brief), for Public Education Assn., amicus curiae.

Before BOTEIN, P. J., and BREITEL, RABIN, McNALLY and STEUER, JJ.

BREITEL, Justice.

The Board of Higher Education, in a proceeding brought against it under Article 78 of the Civil Practice Act, appeals, with leave, from an order directing a jury trial of issues of fact. Petitioners are associate professors in one of the city colleges who contend that they failed of appointment as full professors because of religious discrimination. They seek annulment of the actions of the college and the Board in refusing them such promotion and also request further unspecified relief.

The pivotal issues are few and determinative. Resolution of these issues requires reversal of the order and dismissal of the petition.

Involved is a procedure for promotion specified in the by-laws of the Board which, under the statute, has the ultimate power of appointment (Education Law, § 6202, subd. 3). Promotion in the advanced ranks of the instructional staff is determined by the exercise of administrative discretion, using faculty committees for recommendations and based upon the records and evaluation of candidates, with internal procedures for review of action on candidacies, including ultimate review by the Board. Although various hearings were granted petitioners, none is mandated by law. As a consequence, the only aspect of the matter subject to judicial review is whether the action of the Board was arbitrary or capricious (Civ.Prac.Act, § 1296; Matter of Fink v. Cole, 1 N.Y.2d 48, 150 N.Y.S.2d 175, 133 N.E.2d 691; Matter of Going v. Kennedy, 5 A.D.2d 173, 175-176, 170 N.Y.S.2d 234, 236-237, affd. 5 N.Y.2d 900, 183 N.Y.S.2d 81, 156 N.E.2d 711; 1 N.Y.Jur.Administrative Law § 178; Goldstein, Judicial Review of Administrative Action, 2 Syracuse L.Rev. 199, 205-207).

Petitioners' case, although extended in the record and in the briefing, is exceedingly simple in structure. Petitioners contend that their qualifications for promotion were superior to those who were actually selected, although they ultimately concede that those selected were qualified, as distinguished from the contention that their qualifications were inferior to those of petitioners. From this premise, buttressed by sporadic instances of anti-Catholic bigotry attributed to a few individuals on the college staff, and the findings of another agency (the State Commission for Human Rights, then known as the State Commission Against Discrimination) that there had been discriminatory 'resistance' and 'instances of discrimination' against teachers of Roman Catholic persuasion, petitioners conclude that their failure to receive promotion was caused by religious discrimination. At the same time, petitioners recognize that promotions in the advanced academic ranks are not determined solely by lapse of time and record qualifications consisting of advanced degrees and written works. They admit that the more elusive qualifications of teaching ability, administrative capacity and creative inspiration are relevant.

The Board's by-laws provide the standard for promotion:

'Professor Qualifications: For promotion or appointment to the rank of professor, the candidate must possess the qualifications for an associate professor, and in addition a record of exceptional intellectual, educational or artistic achievement. There shall be evidence of his continued growth.' (§ 15.14)

It should be readily evident that such qualifications are not mechanically measurable nor susceptible to visual comparison with conclusive result.

Consequently, petitioners' foundation argument, without more, fails to entitle them to any relief on the existing record. Only if, in addition to the foregoing, petitioners have alleged sufficient to show unlawful discrimination of some kind, or any other kind of unlawfulness, are they entitled to relief. To establish their contention of discrimination petitioners rely on a few incidental transactions, some of many years ago, in which particular individuals on the college staff expressed bigoted attitudes from which one might infer bigoted action flowed. So long as these were peculiarly isolated and could not be attributed to persons in key positions with respect to the instant promotions, there is insufficient to sustain the burden of establishing unlawful discrimination generally or in the instant appointments.

The record is replete with evidence of consideration by the college committees and the Board of all of the proper factors to be evaluated, and, consequently, it is difficult to sustain the accusation that either committees in the college or the Board acted arbitrarily. Whether sporadic instances of resistance or discrimination exist, assuming this could be proven, is not relevant to the right of petitioners to relief in the very individual and personal matter of advanced academic promotion. Had there been a showing of systematic exclusion or restriction, or a generalized pattern of unlawful discrimination, or any evidence of persistent religious or other unlawful discrimination directed to petitioners, it might be another matter. ¹ (There were some isolated incidents of discrimination described by petitioner Mullally, but they occurred years ago, and he achieved advances and promotions despite these incidents.) The situation becomes even more confusing on the Board's demonstration, not disputed by petitioners, that persons of petitioners' own religious persuasion were indeed promoted, were represented on the college committees, were on the Board subcommittee which investigated their charges, and, of course, were represented on the Board itself. In short, there is nothing to support the bare conclusions of petitioners and, thus, they do not succeed in even raising an issue of fact requiring trial.

Moreover, in fairness to the Board it should be pointed out the reports and analyses before it sustain the rejection of petitioners for promotion and the choice of the successful competitors, although, to be sure, they do not compel such rejection and choice. To top off the matter, after petitioners' complaints to it, a careful an thorough investigation was made by a representative subcommittee, including prominent members of unquestioned integrity and capacity, whose freedom from bias could not be rationally, and is not, questioned. The subcommittee rejected the charges, with qualifications that are not material.

Insofar as petitioners attempt to rely on the findings of the State Commission for Human Rights there is a compounded difficulty. In the...