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DANIELSON v. BOARD OF HIGHER EDUC.

April 12, 1972

Ross Danielson et al., Plaintiffs,
v.
Board of Higher Education et al., Defendants


Motley, District Judge


The opinion of the court was delivered by: MOTLEY

MOTLEY, DISTRICT JUDGE:

This is an action by Ross Danielson, a lecturer in sociology at City College, a branch of the City University of New York. Mr. Danielson's challenge is to the constitutionality of defendants' maternity leave provision on its face and as applied. The essence of Danielson's claim is that women faculty members are permitted to take a leave of absence in connection with pregnancy, up to three semesters, for the purpose, among others, of caring for a new born infant, without adversely affecting their tenure rights, but the same child care leave privilege is denied to men.

 This action is also brought by Mr. Danielson's wife, Susan Danielson, who is a lecturer in English at Lehman College, another branch of the City University of New York. Her challenge is to the constitutionality of defendants' refusal to treat her 12-day leave, during which she gave birth to a child, as sick leave.

 Defendants are the Board of Higher Education which governs the City University of New York, the chairman of that Board, the chancellor of the University, the president of City College, and the dean of faculties of Lehman College.

 Jurisdiction is predicated upon 28 U.S.C. ยงยง 1331 and 1343. Declaratory and injunctive relief are sought. Ross Danielson seeks a declaration that the maternity leave provision is unconstitutional on its face and as applied to male faculty members. He also seeks an injunction enjoining defendants from discharging him or otherwise penalizing him for having taken child-care leave. Mrs. Danielson seeks a declaratory judgment that defendants' actions in withholding her pay for the period December 8 through 23, 1970 deprived her of her property in violation of the Fourteenth Amendment. She also seeks an award of her back pay in the amount of $180, plus interest.

 The action is presently before the court on the motion of plaintiffs for summary judgment in their favor and the motion of defendants to dismiss or, alternatively, for summary judgment in their favor. Defendants have moved to dismiss the complaint on two grounds: (1) the court lacks jurisdiction of the subject matter and, (2) the complaint fails to state a claim upon which relief may be granted. For the reasons set forth below, the motion to dismiss is denied. The motions for summary judgment are also denied on the ground that there are several disputed issues of fact.

 Mr. Danielson commenced teaching in the City College in the fall semester of 1969. His wife, Susan Danielson, who was teaching at Lehman College at the same time became pregnant in the early spring of 1970. Upon discovering her pregnancy, Susan and her husband discussed the matter at great length. They weighed the options available to them with respect to the care of their child and the pursuit of their respective careers. They decided that Susan would continue her teaching duties throughout her pregnancy and after childbirth. Then, for at least the first six months after the child was born, Mr. Danielson would stay home and assume the primary responsibility for the care of their infant. Susan Danielson consulted her physician who assured her that such conduct on her part would in no way be injurious to her health.

 Mr. Danielson then made every effort to obtain "parental leave of absence" from City College. He claims such "parental leave" is available for women faculty members pursuant to Article XIII, Section 13.4, of the By-Laws of the Board of Higher Education and should be equally available to men.

 This section provides in pertinent part as follows:

 
Maternity Leave. a. As soon as a member of the instructional staff shall become aware of her pregnancy, she shall forthwith notify the president and may apply for a leave of absence. Such leave shall begin on February 1 or September 1, unless the conditions of the pregnancy require that the leave begin sooner. The duration of the leave shall be at least one full semester. In exceptional cases, if approved by the college physician, the president may terminate a maternity leave during a college term, provided there is an appropriate opening in which the applicant's service may be utilized. An extension of maternity leave shall be permitted on request for a period not in excess of one year from the end of the original leave. No further extentions [sic] shall be permitted.
 
b. Maternity leaves shall be granted without pay during the period of the leave, including the vacation period concomitant to the leave. If the leave is for one semester only, the loss of paid vacation shall be for one month only. If the leave is for two semesters, both months of vacation shall be without pay. If the duration of a maternity leave is one year or more, it shall not be credited towards salary increments.

 It is agreed that women are not compelled by this section to take maternity leave. This case is therefore unlike the companion case of Monell v. Department of Social Services, 357 F. Supp. 1051, decided this same date, involving the constitutionality of New York City agency regulations which allegedly compel women to take a maternity leave at the end of the seventh month of pregnancy.

 Mr. Danielson applied for a leave of absence for the spring semester of 1971, by letter dated October 5, 1970, to the acting chairman of his department. In that letter he stated as follows:

 
"The purpose of my leave of absence would be two-fold: (1) to care for a new baby and, (2) engage ...

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