Newman v. Board of Ed. of City School Dist. of New York

• Decision Date: 21 February 1979
• Docket Number: D,No. 70,70
• Parties: Francine NEWMAN, Appellant, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF NEW YORK, Appellee. ocket 78-7152.
• Court: U.S. Court of Appeals — Second Circuit

Page 299

594 F.2d 299

Francine NEWMAN, Appellant, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF NEW

YORK, Appellee.

No. 70, Docket 78-7152.

United States Court of Appeals, Second Circuit.

Argued Nov. 6, 1978.

Decided Feb. 21, 1979.

Joan E. Goldberg, New York City, for appellant.

L. Kevin Sheridan, New York City (Allen Schwartz, Corp. Counsel, New York City, of counsel), for appellee.

Before FRIENDLY, MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

Francine Newman, a licensed tenured teacher in the New York City school system, who was on July 31, 1970, found mentally unfit for teaching duty by the Board of Education of the City School District of New York ("Board") and beginning in September 1970 placed on an involuntary leave of absence without pay except for accumulated sick leave, appeals from a summary judgment order of the Eastern District of New York, Thomas C. Platt, Judge, dismissing her complaint against the Board seeking a declaratory judgment to the effect that the Board violated her procedural due process rights in violation of both Title 42 U.S.C. § 1983 and the Fourteenth Amendment when it failed to provide her with an adversarial hearing before finding her unfit to teach. Her complaint also sought annulment of the Board's finding, reinstatement, restoration of her accumulated sick leave, and back-pay. An earlier order of the Eastern District of New York dismissing her complaint was reversed by us and remanded for further proceedings. See Newman v. Board of Education, 508 F.2d 277 (2d Cir.), Cert. denied, 420 U.S. 1004, 95 S.Ct. 1447, 43 L.Ed.2d 762 (1975). Upon this appeal we reverse the district court's order and remand for further proceedings.

From 1945 until 1970 appellant was employed in the New York City public school system, first as a substitute teacher of health education and later, beginning in June 1955, as a licensed tenured teacher of such education in senior high schools. During all of these years through 1969 she had "satisfactory" ratings and was the recipient of more than 28 commendations for her teaching ability. For the academic year 1969-70, however, her services were rated as "unsatisfactory" for the reasons noted below.

By letter dated January 26, 1970, David Gordon, the principal of the Far Rockaway High School where appellant was employed, asked the Superintendent of Schools to have appellant examined by the Medical Division of the Board of Education pursuant to § 2568 of the N.Y. Educ. Law ¹ to determine her mental capacity to perform her duties. Mr. Gordon set forth in detail conduct on appellant's part indicating possible mental instability. Thereafter, beginning on February 13, 1970, and on various occasions thereafter until November 29, 1971, appellant was at the direction of the Medical Division given a series of medical examinations, including examinations by medical doctors, psychiatrists and psychologists. As a result of reports from some of these doctors (Drs. Wright, Wallfield, Isenberg and Prensky) the Medical Division, in a report dated July 7, 1970, found appellant "Not fit at present for teaching duty" and placed her on "Leave of absence for purpose of health improvement until June 30, 1971."

Prior to taking this action the Board did not give appellant any opportunity either to examine the medical reports and other data forming the basis of its action or to rebut the reports. No hearing was held at which the medical experts might be cross-examined.

Following her being placed on involuntary medical leave appellant was required to exhaust her 200 days of "sick leave" which she had accumulated on the basis of 10 days per year. When her involuntary leave of absence terminated on June 30, 1971, she was not allowed to resume work. Instead the Board in September, 1971, directed that she submit to further medical examinations. Two medical doctors (Drs. Lazarus and Cinque) examined her on October 18, 1971, at the Board's request and found her fit to return to duty. However, pursuant to the Board's direction she was then examined on November 18 and 29, 1971, by a psychiatrist (Dr. Schnee), who concurred in the earlier diagnosis by Dr. Isenberg, also a psychiatrist, and concluded that her "mental status is Passive aggressive Personality, aggressive type, severe and is not fit to perform the duties of a teacher." As a result she was found to be unfit for return to duty and her involuntary leave, by notice dated December 22, 1971, was extended to June 30, 1972.

In an effort to rebut the Board's evaluation of her competency to teach, appellant consulted two private psychiatrists (Drs. Valicenti and Shea) and a psychologist (Dr. Fisher) for an independent appraisal of her condition. In contrast to the doctors designated by the Board, each of whom had examined appellant once (except for Dr. Schnee who interviewed her twice), one of the psychiatrists consulted by appellant (Dr. Valicenti) interviewed her once a week over a seven-week period in September-October 1970, and the other (Dr. Shea) examined her three times in November, 1971, and once in February, 1972. Each of the two psychiatrists reported that he found no neurotic or psychotic trends or any problems that would interfere with her performance of her duties as a teacher. Their reports were confirmed by the findings of the psychologist after testing. These reports were submitted to the Board and read by the Assistant Director of the Medical Division of the Board, who "did not give them much weight."

During the period from August, 1970, to November 8, 1971, appellant made seven requests to the Board for release to her or to her physician of the various reports that were furnished to the Board by the doctors who had examined her at its direction and which formed the basis for the Board's action. Prior to her institution of the present lawsuit in April, 1973, the Board did not furnish her with the requested copies, although on July 31, 1970, she received a copy of the Medical Division's summary dated July 7, 1970, consisting of three short paragraphs, concluding that appellant was "hypomanic," that her "record showed an excitable, neurotic woman," that her control was "poor, she is explosive and impulsive," and that her "psychoneurosis and passive aggressive personality characterized also by poor judgment and no insight, are deemed to impair her ability to perform her duties"; and her psychiatrist, Dr. Valicenti, received a letter dated December 1, 1970, from the Board's Medical Director to the effect that "she had a psychoneurosis; a passive aggressive personality disorder characterized by poor judgment, lack of insight, explosive and impulsive behavior which impaired her ability to perform her duties."

In the meantime, on September 4, 1970, appellant, proceeding under the then-existing contract between the Board and the United Federation of Teachers, a union of which she was a member, requested a review of the Medical Division's July 7, 1970 recommendation by an Ad hoc committee of physicians. This request was denied on October 27, 1970, by the Deputy Superintendent of Schools on the ground that appellant had not exhausted her 200 days of accumulated "sick leave." An arbitration, consented to by the parties, resulted in her appeal from this ruling being denied on September 28, 1971, for the reason that under the terms of the labor contract and the Board's by-laws the Board had the right to compel Thereupon appellant, on March 2, 1972, commenced a proceeding under Article 78 of the N.Y.C.P.L.R. in the Kings County Supreme Court seeking (1) to set aside the Board's determination that she be placed on involuntary leave of absence, (2) restoration of her sick leave, and (3) copies of all medical reports furnished to the Board by doctors who had examined her at its instance. In a decision dated May 17, 1972, Justice Heller denied appellant's petition insofar as it sought relief for the period from September 11, 1970, through June 30, 1971, on the ground that this portion of the claim was barred by the four-month statute of limitations provided in C.P.L.R. § 217. The balance, which dealt with the 1971-72 school year, was remanded to the Board on the ground that under the circumstances, including the conflict between the Board's doctors and those consulted by appellant, the record was "incomplete" and inadequate "to establish that there was a reasonable basis for placing the petitioner in the status of an inactive employee without pay from November 7, 1971." The court further took the view that neither the collective bargaining agreement nor any statute or law gave appellant the right to examine the various medical reports submitted by physicians to the Board. ² It remanded the matter to the Board for a possible re-examination of appellant, consideration of all medical reports (including that resulting from the re-examination) and a new recommendation by the Medical Director to the Board. In all other respects the application was denied. Appellant was denied leave to appeal this decision to the Appellate Division, Second Department.

appellant to exhaust her cumulative sick leave reserve, which had not yet expired, prior to formation of an Ad hoc committee.

Upon remand the Board requested appellant to submit to further medical examinations, which she refused to do, having already been subject to seven Board-directed medical examinations and having been refused copies of the doctors' reports of those examinations.

On April 5, 1973, appellant commenced the present action in the Eastern District of New York. On February 15, 1974, former Judge Travia granted defendant's motion for summary judgment dismissing the complaint on the ground that the state court's determination was Res judicata, which we reversed on the basis of 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 (1975), remanding the case for further...