The opinion of the court was delivered by: LEVET
This is an action by a school teacher and his wife against the New York City Board of Education and various individual agents of the Board of Education alleging discrimination on the basis of sex in its policy of granting child care leave. Plaintiff Gary Ackerman, the husband of plaintiff Rita Ackerman, applied for child care leave under former Section 107 of the Board of Education By-Laws. This was the by-law under which female teachers routinely requested and were granted maternity and child care leave. Plaintiff's request was denied. He did not report to work at the beginning of the 1970-1971 school year and has not worked as a teacher in the New York City school system since.
Subsequent to the initiation of this action, the Board of Education amended its by-laws to eliminate the alleged discrimination. Thereafter, plaintiff's teaching license was terminated for reasons unrelated to this suit. In a memorandum decision (hereinafter "memo. dec. of February 14, 1974") denying a motion for class action status, District Judge Bonsal ruled that the said termination of plaintiff's teaching license precluded the injunctive remedy sought by plaintiff and that the amendment to the by-laws had mooted the question of declaratory relief, except for the claim for monetary damages and attorneys' fees, citing Diffenderfer v. Central Baptist Church, 404 U.S. 412, 30 L. Ed. 2d 567, 92 S. Ct. 574 (1972).
Remaining for determination are the claim for attorneys' fees and plaintiff Gary Ackerman's claim to monetary relief in the amount which he alleges he would have earned had he been granted child care leave and consequently been allowed to teach as a substitute on a per diem basis.
After hearing the evidence presented by the parties, examining the exhibits, the pleadings, the briefs and the proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. This court has jurisdiction over the subject matter of this action. (28 USC §§ 1331, 1343, 2201 et seq., 42 USC § 1981 et seq., United States Constitution.)
2. Plaintiff Gary Ackerman was employed by defendant Board of Education as a regular substitute teacher from September 1965 until June 1968 under a substitute license granted him on September 1, 1965. (Pl. Ex. 2; Pl. Ex. 16; Tr. 99.)
3. Plaintiff Gary Ackerman was employed by defendant Board of Education from September 1968 until September 1970 under a regular teacher's license issued as a result of his having taken and passed an examination given under the authority of Chap. 810, laws of 1967. (Pl. Ex. 1; Pl. Ex. 2; Def. Ex. C.)
4. For the period September 1, 1968 to June 30, 1973 plaintiff Gary Ackerman was assigned to Shimer Junior High School, Junior High School 142Q, located in District #28, County of Queens, New York City, N.Y. (Tr. 7, 11.)
5. Plaintiff Gary Ackerman's regular teaching license mandated the completion of certain educational requirements by July 1, 1972. (Tr. 106; Def. Ex. C.)
6. No extensions of time to complete these requirements are granted to women on maternity leave. (Tr. 107.)
7. The failure of plaintiff Gary Ackerman to fulfill said statutory requirements (Finding 5) resulted in the termination, for cause, of his license on June 30, 1973. (Tr. 104, 106, 65-67; Def. Ex. C.)
8. On November 4, 1969, while plaintiff Gary Ackerman was teaching at Shimer Junior High School, a daughter was born to him and his wife, plaintiff Rita Ackerman. (Pl. Ex. 3; memo. dec. of February 14, 1974.)
9. On September 9, 1970 plaintiff Gary Ackerman applied for a leave of absence without pay for the purpose of child care, pursuant to Section 107 of the By-Laws of the Board of Education of New York City entitled, "By-Laws Governing Leave of Absence for Maternity and Child Care." This application was presented to Desiree E. Greenridge, acting principal of Shimer Junior High School, to which plaintiff Gary Ackerman was assigned. Acting principal Greenridge marked the application, "Not Recommended." Thereafter, during the period September 11, 1970 to April 29, 1971, plaintiff Gary Ackerman presented his application for child care leave to the Supervising Superintendent of District 28, then to the Deputy Superintendent of Personnel of the Board of Education and finally to the Chancellor of the Board of Education. Each of these employees of the Board of Education refused to approve Gary Ackerman's application for child care leave under Section 107 of defendants' by-laws. (Pl. Exs. 3, 4, 8, 9, 11, 12, 13; memo. dec. of February 14, 1974.)
10. On September 9, 1970, the date of plaintiff Gary Ackerman's application for child care leave, said Section 107 of the Board of Education's by-laws provided in relevant part:
"1. As soon as any regular or non-regular employee in the teaching staff shall become aware of her pregnancy, she shall apply for a leave of absence for the purpose of maternity and child care. * * *" (Pl. Ex. 5.)
This leave above referred to was without pay although female teachers absent on such leave were allowed to teach as per diem substitutes. (Tr. 92; memo. dec. of February 14, 1974.)
11. On November 28, 1974, Section 107 of the Board of Education's by-laws was amended, effective September 1, 1973, to provide child care leave "to a natural or adoptive parent upon application," inferentially including males. (Pl. Ex. 6; memo. dec. of February 14, 1974.) That leave is also without pay and teachers absent on such leave are allowed to teach only as per diem substitutes. (Tr. 92, 93.)
12. The effect of this amendment to Section 107 of the Board of Education's by-laws was to relieve that section of any legal infirmity which plaintiffs sought to ascribe thereto, and this fact, when taken in conjunction with Finding of Fact 22, below, effectively moots the question of the correctness of defendants' denial of child care leave to plaintiff Gary Ackerman.
13. Of his own volition, plaintiff Gary Ackerman failed to report for work at his teaching position at Shimer Junior High School on or about the end of September 1970 and has not worked as a teacher in the New York City school system since ...