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MOORE v. KIBBEE

September 17, 1974

STEVEN MOORE, Plaintiff,
v.
ROBERT KIBBEE, Chancellor of the Board of Higher Education of the City of New York, Individually and in his official capacity; DR. WILLIAM BIRENBAUM, President of the Staten Island Community College, individually and in his official capacity; DR. JAMES WOOTEN, Director of the Community Scholar Program at the Staten Island Community College, individually and in his official capacity, Defendants


Platt, J.


The opinion of the court was delivered by: PLATT

PLATT, J.

Plaintiff seeks a preliminary injunction against the defendants mandating them to re-hire him for a three year term as a counsellor in the Community Scholar Program and as assistant to the Higher Education Officer in the Higher Education Office at Staten Island Community College.

 In his complaint plaintiff alleges that jurisdiction is conferred by 42 United States Code § 1983, 28 United States Code § 1343 subdivisions 3 and 4; the Education Law of the State of New York, Article 126, § 6304, subdivision 1 (a)(iv) and Title VII of the Civil Rights Act of 1964, and as amended, effective March 24, 1972. Plaintiff also alleges that the actions of the defendants have deprived him of his constitutional rights to equal protection and to due process guaranteed under the Fourteenth Amendment of the United States Constitution.

 FACTS

 In October of 1971 plaintiff was hired to the above specified positions by the defendant Dr. James Wooten who was and still is Director of the Community Scholar Program at the Staten Island Community College.

 Plaintiff admits that his contract with the defendants was oral and was based on the fiscal year expiring June 30, 1972. Plaintiff was re-hired prior to June 30, 1972 for the ensuing fiscal year and again in June of 1973 for the fiscal year ending June 30, 1974.

 Plaintiff's duties and responsibilities were concededly extensive and varied. During the first fiscal year for example, he counselled only 150 students whereas during the fiscal year ended June 30, 1974 he counselled approximately 650 students.

 Plaintiff's job performance apparently was satisfactory from October 1971 until the fall of 1973. Thereafter there seems to be considerable dispute with respect to the facts, plaintiff claiming that his performance continued to be satisfactory whereas the defendant Wooten wrote two reports dated December 12, 1973 and February 26, 1974, wherein he rated the plaintiff's performance as "unsatisfactory".

 In early March 1974, plaintiff was advised by the defendant Wooten that he would not recommend plaintiff's reappointment. Various discussions then took place between the plaintiff, the defendant Wooten, and other members of the faculty and staff of the college which, according to the plaintiff, culminated in a memorandum written by the defendant Wooten to Dean Cardegna dated April 4, 1974 in which the defendant Wooten stated "I wish to rescind my recommendation of non-reappointment (see memo dated March 5, 1974) and I now urge his reappointment".

 Notwithstanding this change in position by his immediate superior, plaintiff on April 24, 1974 received a letter from Arthur Kaufman, Vice President of the college, advising plaintiff his reappointment had not been approved and that his employment would terminate on June 30, 1974.

 Plaintiff appealed this decision to the Higher Education Screening Committee, which committee was then composed of eight white and two black members. After a hearing and on May 29, 1974 the Chairman of the Committee advised the plaintiff that the Committee had voted not to sustain his appeal.

 Plaintiff then received non-reappointment letters from the aforesaid Arthur Kaufman and from the defendant Dr. William Birenbaum, President of the College; the latter letter being dated June 28, 1974.

 At no time has the plaintiff been given a reason for the college's refusal to reappoint him.

 In the meanwhile, and on May 21, 1974, plaintiff presented his grievance to the Affirmative Action Advisory Board which on June 5, 1974 advised that it had "found sufficient evidence to support an affirmative action grievance in this case in that the College Affirmative Action Plan had not been adhered to with respect to the supervisor's responsibility for implementation of the Plan, there had been a failure to provide proper job descriptions, and a ...


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