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LOMBARD v. BOARD OF EDUC. OF NEW YORK

June 6, 1975

JOHN F. LOMBARD, Plaintiff,
v.
THE BOARD OF EDUCATION OF THE CITY OF NEW YORK and JOHN A. MURPHY, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

 PLATT, D.J.

 Following a decision of the Circuit Court of Appeals remanding this case "for further consideration of [plaintiff's] motion for a preliminary injunction in conformity with [said Court's] opinion" (502 F.2d 631, 638 (2d Cir. 1974)), plaintiff renewed its motion for a preliminary injunction reinstating him as a teacher in the New York City public schools.

 The facts are set forth in the opinion of the Circuit Court of Appeals (Gurfein, J.) and will not be reiterated herein.

 Suffice it to say that the Circuit Court of Appeals concluded in its opinion that plaintiff should be given a trial in this Court "to determine whether [the defendants] have violated his Federal constitutional rights. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15, 42 USLW 4513, 4520, 4531 (1974) (noting right to plenary post-termination hearing)."

 Preliminary injunctive relief would not appear to be appropriate in the case at bar because to obtain such plaintiff must have demonstrated either a combination of probable success on the merits and the possibility of irreparable injury or raise serious questions going to the merits and show that the balance of hardships tip sharply in his favor. McGuire Shaft and Tunnel Corporation v. Local Union No. 1791, U.M.W., 475 F.2d 1209 (1973), cert. denied, 412 U.S. 958, 93 S. Ct. 3008, 37 L. Ed. 2d 1009 (1973); Stark v. New York Stock Exchange, Inc., 466 F.2d 743 (2d Cir. 1972); Clever Idea Co., Inc. v. Consumer Product Safety Commission, 385 F. Supp. 688, 692 (E.D.N.Y. 1974); Moore v. Kibbee, 381 F. Supp. 834, 837 (E.D.N.Y. 1974); GSE Dynamics, Inc. v. John Doe, et al., 381 F. Supp. 1088, 1094 (E.D.N.Y. 1974).

 While plaintiff may have shown some probability of success on a trial on the merits in that he does not appear to have received a plenary pre- or post-termination hearing, and hence may have been denied constitutional due process, there is no demonstration of irreparable injury or showing that the balance of hardships tips sharply in his favor.

 Plaintiff claims that he has been denied other employment opportunities within the Board of Education's jurisdiction is insufficient. Moore v. Kibbee, 381 F. Supp. 834, 837 (E.D.N.Y. 1974).

 Moreover, "such a claim lacks sufficient merit in view of the fact that an adequate remedy is available if plaintiff succeeds in his action." Moore v. Kibbee, 381 F. Supp. 834, 837 (E.D.N.Y. 1974); Tichon v. Harder, 308 F. Supp. 839, 842 (D. Conn. 1970), aff'd, 438 F.2d 1396 (2d Cir. 1971). See also Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974) and Kennedy v. Engel, 348 F. Supp. 1142 (E.D.N.Y. 1972).

 With respect to the balance of hardships, the interests of the Board and the children in the school are easily equal, if not far superior, to the interests of the plaintiff who, regardless of the due process questions arising by reason of the specific finding heretofore made by the Board in this case, may well be removable on such stated or other grounds.

 The key to this situation may well not be the reinstatement of the plaintiff but rather an opportunity for the plaintiff to clear his "good name, reputation, honor or integrity" (Board of Regents v. Roth, 408 U.S. 564, 574, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)) and, if warranted, an award of appropriate damages.

 This Court therefore feels constrained to deny plaintiff's motion for a preliminary injunction on condition that the defendants' counsel cooperate fully with plaintiff's counsel to complete any pretrial discovery which may be necessary as expeditiously as possible so that plaintiff may obtain an early trial on the issue of whether his constitutional rights have been violated. As soon as all such discovery is completed (or the parties agree that none is needed), counsel should advise the Court and a trial date will be set. In any event, unless good cause be shown, discovery will be deemed completed and the case ready for trial no later than June 26, 1975.

 SO ORDERED.

 Thomas C. Platt / ...


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