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KENNEDY v. ENGEL

September 27, 1972

Donald KENNEDY, Plaintiff,
v.
A. B. ENGEL, Superintendent et al., Defendants


Zavatt, Senior District Judge.


The opinion of the court was delivered by: ZAVATT

ZAVATT, Senior District Judge.

The plaintiff seeks to enjoin the defendants from terminating his employment as an Assistant Professor in the Department of Physical Education and Athletics of the United States Merchant Marine Academy (Academy) located at Kings Point, Long Island, New York and also seeks a declaratory judgment to the effect that the defendants, in terminating his employment, denied him "procedural due process and the equal protection of the laws."

 The plaintiff's motion, pursuant to Fed. R. Civ. P. 65, for a preliminary injunction is denied.

 On January 29, 1967, the plaintiff, Donald Kennedy, became an Assistant Professor in the Physical Education Department of the Academy under a two-year contract. Upon the expiration of that contract his employment was extended for a further three-year term to expire on January 28, 1972.

 On February 18, 1971, after the plaintiff had completed the fourth academic year as a member of the faculty, he requested consideration for tenure. The rules governing tenure at the Academy are set forth in Administrator's Order No. 181 (June 24, 1969) of the Manual of Orders, Maritime Administration, U.S. Department of Commerce (hereinafter MARAD Order No. 181), ยง 6.07(3) of which provides:

 
"Eligibility for tenure appointment. Each faculty member serving under a limited term appointment who meets the qualification requirements may be considered for a tenure appointment after completion of the third academic year. Such faculty member must be considered for a tenure appointment after completion of five years under term appointments. A faculty member who is not recommended for a tenure appointment within the time limits specified above normally shall be separated from the service not later than the end of the fifth academic year."

 On March 29, 1971, the Tenure Committee voted not to recommend the granting of a tenure appointment and, on July 27, 1971, the plaintiff was informed, in writing, by the Superintendent of the Academy (Superintendent) that he was to be separated from the Academy not later than the end of his fifth academic year of service:

 
"In accordance with Administrator's Order 181, Section 6.07.3, it is mandatory that you are separated not later than the end of the fifth academic year of your service.
 
This is to inform you that no further term appointment will be made. Your employment at the United States Merchant Marine Academy will terminate January 28, 1972."

 After receiving this notice from the Superintendent, plaintiff wrote the following memorandum:

 
"I would like to request a six month extension to the term of my employment. January 28th is in the middle of the academic year and thus a very difficult time to find employment in the field of education.
 
Thank you for your past considerations and I sincerely hope that I may continue my work here at the Academy."

 The Superintendent granted plaintiff's request upon the condition stated in his memorandum of August 10, 1971, consented to by the plaintiff:

 
"This will acknowledge receipt of your request for a six months extension of your current appointment which terminates on January 28, 1972.
 
In view of the lack of employment opportunities for a faculty member in the middle of the academic year, I have decided to grant your request. Your appointment will be extended until July 23, 1972.
 
By endorsement of attached copy of this memorandum you will stipulate that the action above will not, in any ...

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