Turano v. BOARD OF ED. OF ISLAND TREES, ETC.
Citation | 411 F. Supp. 205 |
Decision Date | 30 March 1976 |
Docket Number | No. 75 C 606.,75 C 606. |
Parties | John TURANO, Plaintiff, v. BOARD OF EDUCATION OF ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26 et al., Defendants. |
Court | U.S. District Court — Eastern District of New York |
Stephen A. Perelson, New York City, for plaintiff.
Geo. W. Lipp, Jr., Babylon, N. Y., for defendant.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants have moved for summary judgment dismissing the plaintiff's action herein on the ground that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law. Plaintiff in turn has cross-moved for summary judgment on the same ground.
Neither party served or filed Rule 9(g) statements as required by the General Rules of this Court and ordinarily the Court would deny both motions on this ground alone. However, the affidavits and other papers served and filed herein clearly indicate that there are material facts which are in sharp dispute and while some questions of law are resolved, at least for the present, herein, there are also questions of fact which must await the trial.
Defendants assert that their motion is based upon the following:
Certain facts are undisputed; namely, that plaintiff is a duly licensed teacher; that he was employed by the Island Trees Union Free School District No. 26; that during the course of his probationary service he was rated satisfactory, and given excellent evaluations by his principal; and that based upon such rating the Superintendent of the District, Richard Morrow, recommended that he be given tenure. Plaintiff's original probationary appointment was made on January 4, 1972, and was renewed on the anniversary dates of 1973 and 1974.
On the agenda of the meeting of the defendant Board of Education on November 26, 1974, was the question of plaintiff's tenure and at that meeting, by a vote of 4 to 1 (defendants Richter and Lively being absent and defendant Liberatore voting in favor of plaintiff), the Board voted to deny tenure to the plaintiff.
Plaintiff has filed an affidavit in which he states that the defendant Ahrens at that meeting made the following statement which appears in two newspaper articles which he annexes to his affidavit:
The newspaper articles, of course, are not proof of anything but plaintiff himself swears that the statements were made.
Mr. Ahrens, on this question, states in his affidavit that:
Mr. Ahrens is supported, at least in part, by an affidavit filed by the defendant Richard Melchers in which he states that:
"I attended the board meetings of November 26, 1974 and December 19, 1974 and did not make nor did I hear made a statement that the giving of reasons would ruin Plaintiff's reputation."
Following this meeting the defendant Liberatore called a special school board meeting for December 19, 1974, to consider rescission of the Board's action taken on November 26.
The meeting was held and a motion to rescind by Mr. Liberatore and seconded by Mr. Richter failed to pass with only Mr. Lively also voting for it.
During the meeting a number of people apparently demanded to know the reasons for the termination. The plaintiff claims that he himself "requested the reasons for the denial of tenure and my termination" and that "again, the board members present refused to give me the reasons and indicated that if the reasons were made known it would ruin my reputation" and that "the defendant (unidentified) indicated that a tape recording existed of a telephone conversation between a parent and himself which, if divulged to the public, would ruin my reputation."
With respect to this meeting, Mr. Ahrens states in his affidavit that:
As indicated above, Mr. Ahrens is supported on this point by the defendant Melchers' affidavit. He is also supported on this by the defendant Frank Martin who swears that:
"I did not state that if the reasons were given Plaintiff it would ruin his reputation nor did anyone else to my knowledge."
The School Superintendent, Richard Morrow, in his affidavit states that:
Mr. Morrow adds at the end of his affidavit that:
"In the event that another school district or other prospective employer of Mr. Turano asks me for a recommendation I would feel constrained to give the man a good and positive one since I am in possession of no information to the contrary."
In addition to the foregoing, it is important to note that the contract between the Island Trees Teachers Association and the defendant Board of Education in Article XVIII-C-1-b provides as follows:
"Non-tenure teachers will be notified of termination of employment not later than May 15th, except that for the tenure year, the teacher will be notified not later than March 15th, prior to completion of probationary period."
Concededly plaintiff was never given notice of termination as provided for in said agreement.
Defendants' contentions a, b, c and e can be disposed of very quickly.
For the reasons set forth in this Court's opinion in Lombard v. Board of Education, 407 F.Supp. 1166 (1976) and Buck v. The Board of Education, et al., (71 Civ. 954, Judd, J., July 16, 1975), this Court has jurisdiction of the corporate and individual defendants for the purposes of the equitable relief requested, and the sovereign immunity guaranteed by the Eleventh Amendment does not extend to the defendant Board to bar this action.
With respect to the sovereign immunity defense, Judge Judd in the Buck case held:
As in Lombard, plaintiff seeks only equitable relief in the form of reinstatement nunc pro tunc as of the date of his termination and does not seek damages from any of the defendants. In the light of Fine v. City of New York, et al., 529 F.2d 70 (2d Cir. 1975), it is questionable whether in any event plaintiff could now amend his complaint and maintain a claim for damages.
Accordingly, we need not...
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