Professional Staff Congress v. City University, 80 Civ. 4194.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 507 F. Supp. 637
• Docket Number: 80 Civ. 4194.
• Parties: PROFESSIONAL STAFF CONGRESS/CUNY, Luis Rodriguez-Abad, Irwin Blatt, Rosalind Barnes, Robert Slotnick and Samuel Margulies, Plaintiffs, v. The CITY UNIVERSITY OF NEW YORK and Harold M. Jacobs, Paul P. Baard, Herman Badillo, Blanche Bernstein, Ann M. Burton, James A. Cavanagh, Loretta A. Conway, Walter H. Crowley, Armand D'Angelo, Edith B. Everett, Gurston D. Goldin, Judah Gribetz, Albert V. Maniscalco, Joan B. Maynard, James P. Murphy, Emanuel R. Piore, Robert Z. Robinson, Leonard J. Shine, Margaret A. Titone, Stuart Scheftel and Patricia Carry Stewart, individually and as present and/or former Trustees of the City University of New York, Defendants.
• Decision Date: 02 February 1981

507 F. Supp. 637

PROFESSIONAL STAFF CONGRESS/CUNY, Luis Rodriguez-Abad, Irwin Blatt, Rosalind Barnes, Robert Slotnick and Samuel Margulies, Plaintiffs,
v.
The CITY UNIVERSITY OF NEW YORK and Harold M. Jacobs, Paul P. Baard, Herman Badillo, Blanche Bernstein, Ann M. Burton, James A. Cavanagh, Loretta A. Conway, Walter H. Crowley, Armand D'Angelo, Edith B. Everett, Gurston D. Goldin, Judah Gribetz, Albert V. Maniscalco, Joan B. Maynard, James P. Murphy, Emanuel R. Piore, Robert Z. Robinson, Leonard J. Shine, Margaret A. Titone, Stuart Scheftel and Patricia Carry Stewart, individually and as present and/or former Trustees of the City University of New York, Defendants.

80 Civ. 4194.

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

February 2, 1981.

Vladeck, Elias, Vladeck & Engelhard, P. C., New York City, for plaintiffs; Irwin Bluestein, New York City, of counsel.

Robert Abrams, Atty. Gen. of the State of New York, New York City, for defendants; Stephen M. Jacoby, Asst. Atty. Gen., New York City, of counsel.

507 F. Supp. 638

OPINION

EDWARD WEINFELD, District Judge.

Five former or current nontenured members of the instructional staffs at various Colleges of the City University of New York ("CUNY") and their certified bargaining agent, Professional Staff Congress/CUNY ("PSC"), commenced this action under 28 U.S.C. § 1343 to obtain injunctive relief, damages, costs and attorney's fees for alleged violations of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. §§ 1983 and 1985. CUNY is a public institution of higher education in New York City established under New York State law.¹ Plaintiffs allege that CUNY and former and current members of what was its Board of Higher Education and now is its Board of Trustees (the "Board") acted under color of state law in violation of their constitutional and contractual rights to deny them either reappointment or promotion with tenure.² Defendants move to dismiss the action pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. For the purposes of this motion, the allegations of the complaint are accepted as true.³ During the relevant years (from 1972 through 1977), the collective bargaining agreements in effect between PSC and CUNY contained a grievance procedure for complaints arising under the agreements with final determination to be made by designated arbitrators. The powers of the arbitrators were limited with respect to matters of academic judgment, such as is involved in appointments, reappointments, tenure and promotion; specifically, the agreements provided that an arbitrator was not permitted to review the merits of academic judgment or substitute his own judgment therefor. However, he was empowered to decide whether the evaluative procedures with respect to these matters as provided for in the agreements had been complied with. If he found there was non-compliance and a likelihood that a fair judgment would not be made on remand if normal academic procedures were followed, he was to remand the matter to a select faculty committee composed of three tenured CUNY professors, one each to be designated by the President of the grievant's College and by PSC, with those two choosing the third from a panel of professors designated jointly by the Chancellor of CUNY and the President of PSC.

Each of the individual plaintiffs was denied reappointment or promotion as a result of the evaluation process at his or her College.⁴ The grievance procedure was invoked and eventually each dispute was submitted to an arbitrator who, for various reasons, found inadequacies in the procedures

507 F. Supp. 639

leading to the adverse actions⁵ and, after the requisite finding of a likelihood that a fair academic judgment would not be made on remand if normal academic procedures were followed, remanded the matter to a select faculty committee. In each case at least a majority of the select faculty committee recommended some action favorable to the grievant, though not always the precise remedy the grievant had sought.⁶ In each instance, the Chancellor of CUNY,⁷ Robert J. Kibbee, notified the grievant that he had decided not to recommend the grievant's reappointment or promotion to the Board. The Chancellor stated no reason for his decisions

Thereafter plaintiffs Luis Rodriguez-Abad and Irwin Blatt joined by Irwin Polishook, President of PSC, brought an action against the Chancellor and the Board under Article 78 of the New York Civil Practice Law seeking implementation of the select faculty committees' decisions as to them. The actions were consolidated before Justice Tierney of the Supreme Court of the State of New York who ruled that, under the arbitration agreement, the Board had agreed to delegate its "academic judgment" to the select committee in those instances where upon a remand the arbitrator found that normal procedures would not result in a fair decision; that the decisions of the select faculty committees were final and binding on the union, the employees and the Board; and, accordingly, that the action of the Chancellor in overturning the select faculty committees' determinations was unfair, arbitrary and capricious.⁸

On appeal the Appellate Division modified the lower court's ruling. The court held that because the Board has the nondelegable duty to decide matters of appointment, promotion and tenure, the select faculty committees' decisions could not bind the Board. The court further found that the public policy requiring the Board to make such determinations was so firmly entrenched that the delegation of this power even to its own chief administrative officer was improper, impermissible and void as against public policy. Thus the Appellate Division ruled that while the Special Term properly had annulled the Chancellor's determinations, the matter should have been remanded for review by the Board itself.⁹

Following the Appellate Division remand, the Board considered the select faculty committees' decisions regarding Rodriguez-Abad and Blatt, as well as those of plaintiffs Rosalind Barnes, Robert Slotnick and Samuel Margulies. Initially, the Board's Academic Affairs Committee held a meeting attended by all plaintiffs. PSC's Director of Legal Affairs made presentations on behalf of four of the five individual plaintiffs and Rodriguez-Abad and Margulies spoke on their own behalf. Following this meeting, the President of PSC addressed the full Board urging implementation of the select faculty committees' decisions. At a subsequent meeting, the Board

507 F. Supp. 640

resolved not to approve the recommendations of the select faculty committees. No reasons were given for this resolution. Plaintiffs thereupon brought this action.¹⁰

The individual plaintiffs challenge the proceedings before the Board that resulted in denying their reappointments or promotions as violative of their right to due process of law. They...