Moore v. Kibbee

• Decision Date: 17 September 1974
• Docket Number: No. 74 C 1011.,74 C 1011.
• Citation: 381 F. Supp. 834
• Parties: Steven MOORE, Plaintiff, v. Robert KIBBEE, Chancellor of the Board of Higher Education of the City of New York, Individually and in his official capacity, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

381 F. Supp. 834

Steven MOORE, Plaintiff, v. Robert KIBBEE, Chancellor of the Board of Higher Education of the City of New York, Individually and in his official capacity, et al., Defendants.

No. 74 C 1011.

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

September 17, 1974.

Evelyn Williams, New York City, for plaintiff.

Adrian P. Burke, Corp. Counsel, by Donald Nussbaum, New York City, for defendants.

PLATT, District Judge.

Plaintiff seeks a preliminary injunction against the defendants mandating them to re-hire him for a three year term as a counsellor in the Community Scholar Program and as assistant to the Higher Education Officer in the Higher Education Office at Staten Island Community College.

In his complaint plaintiff alleges that jurisdiction is conferred by 42 United States Code § 1983, 28 United States Code § 1343 subdivisions 3 and 4; the Education Law of the State of New York, Article 126, § 6304, subdivision 1(a)(iv), McKinney's Consol.Laws, c. 16 and Title VII of the Civil Rights Act of 1964, and as amended, effective March 24, 1972. Plaintiff also alleges that the actions of the defendants have deprived him of his constitutional rights to equal protection and to due process guaranteed under the Fourteenth Amendment of the United States Constitution.

FACTS

In October of 1971 plaintiff was hired to the above specified positions by the defendant Dr. James Wooten who was and still is Director of the Community Scholar Program at the Staten Island Community College.

Plaintiff admits that his contract with the defendants was oral and was based on the fiscal year expiring June 30, 1972. Plaintiff was re-hired prior to June 30, 1972 for the ensuing fiscal year and again in June of 1973 for the fiscal year ending June 30, 1974.

Plaintiff's duties and responsibilities were concededly extensive and varied. During the first fiscal year for example, he counselled only 150 students whereas during the fiscal year ended June 30, 1974 he counselled approximately 650 students.

Plaintiff's job performance apparently was satisfactory from October 1971 until the fall of 1973. Thereafter there seems to be considerable dispute with respect to the facts, plaintiff claiming that his performance continued to be satisfactory whereas the defendant Wooten wrote two reports dated December 12, 1973 and February 26, 1974, wherein he rated the plaintiff's performance as "unsatisfactory".

In early March 1974, plaintiff was advised by the defendant Wooten that he would not recommend plaintiff's reappointment. Various discussions then took place between the plaintiff, the defendant Wooten, and other members of the faculty and staff of the college which, according to the plaintiff, culminated in a memorandum written by the defendant Wooten to Dean Cardegna dated April 4, 1974 in which the defendant Wooten stated "I wish to rescind my recommendation of non-reappointment (see memo dated March 5, 1974) and I now urge his reappointment".

Notwithstanding this change in position by his immediate superior, plaintiff on April 24, 1974 received a letter from Arthur Kaufman, Vice President of the college, advising plaintiff his reappointment had not been approved and that his employment would terminate on June 30, 1974.

Plaintiff appealed this decision to the Higher Education Screening Committee, which committee was then composed of eight white and two black members. After a hearing and on May 29, 1974 the Chairman of the Committee advised the plaintiff that the Committee had voted not to sustain his appeal.

Plaintiff then received non-reappointment letters from the aforesaid Arthur Kaufman and from the defendant Dr. William Birenbaum, President of the College; the latter letter being dated June 28, 1974.

At no time has the plaintiff been given a reason for the college's refusal to reappoint him.

In the meanwhile, and on May 21, 1974, plaintiff presented his grievance to the Affirmative Action Advisory Board which on June 5, 1974 advised that it had "found sufficient evidence to support an affirmative action grievance in this case in that the College Affirmative Action Plan had not been adhered to with respect to the supervisor's responsibility for implementation of the Plan, there had been a failure to provide proper job descriptions, and a failure to provide certain in-service training for upward mobility and there had been sick leave discrimination.

This finding, together with the Higher Education Screening Committee decision, was presented to and apparently considered by the defendant President Birenbaum before he denied on June 28 plaintiff's appeal for reappointment made on June 26. The text of the defendant Birenbaum's letter is significant:

"After careful reflection, I cannot sustain your appeal for reappointment which I heard on June 26th.

"The Affirmative Action Committee report in your case, advisory to the President, while questioning certain administrative relationships between you and your Director, fails in my opinion either to establish that your Director has acted improperly and/or that there is any connection between his conduct and an affirmative action cause.

"The College HEO Committee considered your case before the Affirmative Action Report was issued, and at my request, once again after that report had issued and with full access to it. In my decision I am affirming their recommendation on both occasions.

"My decision in this case in no manner prejudices your future relations with the College. Should you seek alternative employment here, you stand de novo, in the same position as any other applicant for such employment."

Both sides concede that plaintiff was not a tenured employee. Plaintiff alleges that the sole basis for his non-reappointment was because of his race (black) and that his election to the Black Caucus, a Staten Island Community College organization consisting of students, staff and faculty, was a contributing factor.

In addition to pointing out that the defendant Dr. James Wooten is black and that the Higher Education Screening Committee which voted not to sustain plaintiff's appeal was composed of two black and eight white members, defendants submitted an affidavit setting forth that there were 33 blacks reappointed to the full-time professional staff and that of these three blacks achieved tenure according to University policy and that there were also five additional blacks on staff who had achieved tenure previously.

DISCUSSION

It is well established law that a plaintiff seeking a preliminary injunction assumes "the burden of demonstrating either a combination of probable success and the possibility of irreparable injury" or that it has "raised serious questions going to the merits and that the balance of hardships tipped sharply in its favor". Stark v. New York Stock Exchange, 466 F.2d 743 (2nd Cir., 1972).

Preliminary injunctive relief requires more than a "mere showing that the party seeking relief will see its relative position deteriorate." Sanders v. Airline Pilots Association, International, 473 F.2d 244, 248 (2nd Cir., 1972). Plaintiff in this action has limited his claim of irreparable harm to the fact that he will be unemployed. But there has been no showing that he is unable to secure other employment in the field of education counseling. Such a claim lacks sufficient merit in view of the fact that an adequate remedy is available if plaintiff succeeds in his action. See Tichon v. Harder, 308 F.Supp. 839 (D.C.1970), aff'd, 438 F.2d 1396 (2nd Cir., 1971), where at 842 the District Court stated:

"Moreover, if the plaintiff should prevail at trial she will be adequately recompensed and protected by an order reinstating her with back pay."

See also Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), Kennedy v. Engel, 348 F.Supp. 1142 (E.D.N.Y.1972).

If plaintiff ultimately prevails herein there is no question but that he will not only be rehired but also that he will be fully recompensed for whatever pay he may have lost in the interim, and awarded whatever other damages he may establish and be entitled to under the law. Whatever injury he may sustain would therefore appear not to be "irreparable" as that term is generally understood in this type of action.

In addition to showing that irreparable harm would flow from the denial of an injunction, "the movant must show a substantial likelihood of success on the merits." McGuire Shaft & Tunnel Corp. v. Local Union No. 1791, U.M.W., 475 F.2d 1209 (Em.App., 1973), cert. denied, 412 U.S. 958, 93 S.Ct. 3008, 37 L.Ed.2d 1009 (1973).

In Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705, 33 L. Ed.2d 548 (1972), the United States Supreme Court stated in a case involving a similar employment grievance:

"To determine whether due process requirements apply in the first place, we must look not to the `weight' but to the `nature' of the interest at stake. See Morrissey v. Brewer, 408 U.S. 471, at 481, 92 S.Ct. 2593, at 2600, 33 L.Ed.2d 484. We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property."

One of the questions to be determined in the instant case is whether, in not being re-hired, plaintiff suffered a deprivation of "liberty" or "property" within the meaning of the Due Process Clause.

As to "liberty", the Supreme Court noted in Board of Regents v. Roth, supra, when Roth was not rehired, no charges were made against him nor were any reasons given for the termination of his employment. Thus, noted the Court, there was no "stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities" or that might damage his standing in the community and that Roth was at liberty to seek employment in any other college of the state university system. (408 U.S. at 573, 92 S.Ct. at 2707.) In the instant case, no charges were made against the plaintiff nor were any reasons given for the failure to rehire....