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July 31, 1975


The opinion of the court was delivered by: KNAPP



 This action arises in the aftermath of the long and bitter struggle for control of Community School District No. 1 on the lower east side of Manhattan.

 The plaintiff, Raul Gonzalez, a Puerto Rican, is principal of Junior High School 60M, one of the schools in the embattled area. He brings this action for declaratory relief, injunctive relief, and damages against certain governmental defendants, including the Community Superintendent of School District No. 1, certain members of the Community School Board for that district, the Chancellor and the individual members of the Central Board of Education of the City of New York, and against certain non-official defendants, primarily the United Federation of Teachers and certain of its officers and employees ("the UFT defendants"). The first cause of action in plaintiff's complaint alleges violations of his civil rights under the First and Fourteenth Amendments to the Constitution and under 42 U.S.C. §§ 1981 and 1983. In the second cause of action, plaintiff further claims that all the named defendants, with the exception of the Chancellor and the individual members of the Board of Education, conspired in violation of 42 U.S.C. § 1985 (3) to deprive plaintiff of the equal protection of the laws and from exercising his rights as a citizen. Finally, plaintiff claims that all the defendants, having knowledge of the conspiracy, and having the power to prevent or aid in preventing it, failed or neglected to do so, thereby violating 42 U.S.C. § 1986. Jurisdiction is predicated on 28 U.S.C. § 1343 and § 2201.

 All the defendants have moved pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure to dismiss the complaint, primarily on the grounds (1) that plaintiff has not exhausted his available administrative and/or contractual remedies, and (2) that as to most of the defendants, the plaintiff has failed to plead facts of the requisite specificity necessary to establish a claim upon which relief can be granted under 42 U.S.C. §§ 1981, 1983, 1985 (3), and 1986. We reject both of these contentions. *fn1"

 I. Background

 The facts of this case are intimately interrelated with the history of the dispute that has embroiled Community School District No. 1 over the past few years. As the plaintiff notes in his complaint, the struggle for control over the governance of the school district has been particularly heated and vitriolic. Elections for school board membership in the district have been conducted in an atmosphere of intense acrimony and racial hostility. *fn2"

 The prime protagonists in the dispute have been Luis Fuentes and the United Federation of Teachers. Fuentes, a Puerto Rican, committed to a program of bilingual education, was appointed superintendent of the school district in October, 1972. The majority of the school board at that time consisted primarily of minority group members identified with a community organization known as the Coalition for Education. At the next school board election, held in May, 1973, candidates from the Coalition were opposed by a group called the Committee for Effective Education, a UFT-supported organization which sponsored eight white candidates and one black. This bitterly fought election resulted in the choice of six CEE candidates and three Coalition members. On October 16, 1973, the CEE members prevailed on a vote to suspend Fuentes as superintendent.

 Prior to the vote, however, the Coalition had instituted suit in this court claiming that various acts by employees of the Board of Elections had resulted in a discriminatory impact on the rights of minority voters. On October 19, 1973, the Coalition obtained an injunction against Fuentes' suspension. Eventually, the group succeeded in having the entire May, 1973 election set aside as held in a racially discriminatory manner. See, Coalition for Education in District One v. Board of Elections of the City of New York (S.D.N.Y. 1974), 370 F. Supp. 42, affd. (2d Cir. 1974), 495 F.2d 1090. A new election was held on May 14, 1974. This time five CEE candidates and four Coalition members were chosen. On August 8, 1974, by a vote of 5-0 (with the four Coalition members abstaining), Fuentes was again suspended.

 It is out of the foregoing events that plaintiff claims the conspiracy to deprive him of his civil rights, and the actual deprivations of those rights, developed. The core of his allegations can be found in paragraphs 29 to 31 of his complaint. There, plaintiff states that prior to the pivotal May, 1973 school board election, he was approached by certain representatives of the UFT, and, in essence, asked to cooperate with the UFT in their campaign against Fuentes and the Coalition. When plaintiff refused, and instead reaffirmed his intention to support Fuentes, plaintiff claims defendant Levine threatened that if a UFT dominated school board were to be elected, they would make it difficult for plaintiff to continue to function as a principal in the district. Thus, plaintiff alleges (Complaint, para. 29):


"Defendant Levine made it clear that many obstacles would arise to prevent plaintiff from functioning effectively in his position."

 The plaintiff now contends that this threat, motivated by both racial animus and a desire to punish him for the exercise of his First Amendment rights, has indeed been carried out. He maintains that he has been "subjected to a deliberate and continuing program of harassment, interference and non-cooperation in the performance of his duties as Principal of J.H.S. 60M" (Complaint, para. 30). In paragraph 31 of the complaint, the plaintiff sets forth fourteen fairly detailed illustrations of this policy of harassment and non-cooperation. Among the allegations are:


"(a) The Community School Board has failed to act upon the disciplinary recommendations of plaintiff in a manner consistent with the treatment of disciplinary recommendations of non-Puerto Rican principals favored by the U.F.T. . . .


"(b) The School Board has withdrawn financial support for an existing and effective afterhours Youth Services Agency Center at J.H.S. 60M, forcing the closing of this Center, although the Board has continued to support similar Centers located in neighboring schools within the District whose principals are favored by the U.F.T. . . .


"(c) Defendant Chancellor Anker and defendant members of the Board of Education, through and by the Office of Buildings, Board of Education, have withheld a desperately needed painting of the entire school. . . ."

 As is apparent from the above examples, the illustrations vary in the degree of interference and discrimination alleged. While any one of the allegations may appear to present a trivial or an isolated occurrence, taken as a whole, plaintiff has clearly alleged a substantial interference with his civil rights. *fn3" Whether or not any of such allegations can be supported by evidence is, of course, a question not now before us.

 II. Discussion

 A. Exhaustion

 The defendants urge that this complaint be dismissed because of plaintiff's failure to exhaust administrative and/or contractual remedies. They maintain that such remedies are adequate to deal with all the allegations in plaintiff's complaint, including the conspiracy and harassment charges.

 The contractual remedies available to plaintiff are contained in an agreement between the Board of Education and the Council of Supervisors and Administrators of the City of New York, Local 1, School Administrators and Supervisory Organizing Committee, AFL-CIO (CSA contract). The pertinent portions of the CSA contract are Article X and XI, the applicable sections of which are set forth in the margin. *fn4" Article X need not long detain us, since it deals only with violations of the CSA contract. While this section may therefore afford relief for some of the individual acts complained of -- such as the unauthorized disclosures of plaintiff's personal file -- it does not even purport to deal with the type of systematic harassment that is the gravamen of the instant action.

 Article XI, on the other hand, at least purports to deal with "harassing conduct" or "acts of intimidation." It sets up an expedited procedure for the resolution of what are called "special complaints." These are defined as Complaints:


"by a supervisor that a person or persons or groups are engaging in a course of harassing conduct, or in acts of intimidation, which are being directed against him in the course of his employment, and that . . . the District Superintendent of the district in which he is employed . . . has not afforded the supervisor adequate relief against such course of conduct or acts of intimidation."

 Such complaints are filed directly with the Chancellor, who before holding a hearing personally, appoints a "Joint" Investigating Committee to look into the matter. If neither the Committee nor the Chancellor can resolve the dispute, the complaint can be submitted for hearing and fact-finding before an arbitrator or "fact-finder." The fact-finder, however, must "limit his findings strictly to the question whether the employee's complaint has been substantiated by the evidence;" and he is specifically denied any of the "powers conferred upon trial examiners pursuant to Section 2590-j 7(f) of the Education Law." *fn5" The fact-finder can recommend an appropriate remedy, but the decision whether to apply such remedy is left to the Board of Education.

 In addition to the above contractual remedies, there is a state administrative remedy available to the plaintiff. Section 310 of the Education Law, McKinney's Consol. Law of N.Y., c. 16, 1969, *fn6" permits an appeal to the Commissioner of Education from decisions of the City Board of Education. Thus, this remedy would come into play if plaintiff invoked his contractual grievance and special complaint procedures and thereafter remained unsatisfied with the Board's final determination.

 Before turning to the merits of the defendants' argument, it would do well briefly to review the law in this Circuit with respect to the exhaustion requirement. Just recently, the Court of Appeals reaffirmed, "albeit with some hesitation," its rule that adequate state administrative remedies be exhausted prior to bringing an action under the Civil Rights statutes. Fuentes v. Roher (2d Cir. 1975), 519 F.2d 379. Supreme Court cases seeming to cast doubt on this requirement *fn7" have been interpreted in Eisen v. Eastman (2d Cir. 1969), 421 F.2d 560, cert. denied, 400 U.S. 841, 27 L. Ed. 2d 75, 91 S. Ct. 82 and in Blanton v. State University of New York (2d Cir. 1973), 489 F.2d 377, "'as simply condemning a wooden application of the exhaustion doctrine in cases under the Civil Rights Act.'" 489 F.2d at 383, quoting 421 F.2d at 569. See, also Fuentes v. Roher, supra, at 386.

 There are, however, important qualifications to the exhaustion rule. One such exception, mentioned in Fuentes v. Roher, supra, comes into play where the question of the adequacy of the administrative remedy is for all practical purposes coextensive with the merits of plaintiff's constitutional claims. In addition, the Second Circuit does not require exhaustion of state administrative remedies where their pursuit is either futile or inadequate. Plano v. Baker (2d Cir. 1974) 504 F.2d 595. In Plano, for example, the court explicitly held that exhaustion would not be required where the remedy afforded was solely under Section 310 of the Education Law -- the same administrative procedure invoked here. The court stated that the administrative procedure under that section was inadequate to resolve factual disputes, noting that the regulations governing appeals to the Commissioner make oral argument discretionary and expressly prohibit the taking of testimony. 504 F.2d at 598.

 It is thus apparent that -- since the instant dispute like the one in Plano is largely factual in nature -- if Section 310 were the only remedy available to plaintiff, exhaustion of this administrative remedy would not be required. The defendants, however, argue that if the available contractual remedies are considered in conjunction with Section 310, the defects in the administrative remedy's fact-finding procedure will be cured. They urge that this entire panoply of contractual and administrative remedies, treated as a whole, are adequate to resolve the issues raised in plaintiff's complaint.

 We disagree. First, in view of the hesitancy with which this Circuit clings to the exhaustion of administrative remedies doctrine, we find no basis for extending the principle to the type of contractual remedies here involved. Indeed, we feel that the relevant authorities preclude such extension.

 Alexander v. Gardner-Denver Company (1974) 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011, although not dealing with the precise issue, is clearly relevant. In that case the question was raised whether an employee's invocation of a grievance procedure provided in a collective bargaining agreement waived the employee's cause of action under Title VII of the Civil Rights Act of 1964. After a full discussion of the unsuitability of grievance and arbitral proceedings for the resolution of statutory or constitutional issues, *fn8" Mr. Justice Powell, writing for a unanimous Court, held that the employee's Title VII rights had not been waived. Moreover, the language of the opinion appears to indicate that had plaintiff not invoked his remedies under the collective bargaining agreement, he would not have been turned away for failure to exhaust contractual remedies. See, Waters v. Wisconsin Steel Works of Int. Harvester Co. (7th Cir. 1974), 502 F.2d 1309, 1316, U.S. App. Pending; Thornton v. East Texas Motor Freight (6th Cir. 1974), 497 F.2d 416, 426; Hardison v. Trans World Airlines (W.D. Mo. 1974), 375 F. Supp. 877, 880. See, also, Rios v. Reynolds Metals Company (5th Cir. 1972), 467 F.2d 54, 57.

 It seems to us that Alexander also precludes any requirement that purely contractual remedies be exhausted in civil rights actions brought under sections other than Title VII, such as 42 U.S.C. § 1981, § 1983, § 1985 or § 1986. Congress in enacting these civil rights provisions has "long evinced a general intent to accord parallel or overlapping remedies against discrimination." (Alexander at 47).

 Defendants rely on the Second Circuit's decision in Fuentes v. Roher, supra, for the proposition that a plaintiff must exhaust contractual remedies. This reliance, however, is misplaced. While, as a technical matter, the remedies Fuentes was required to exhaust had been established by contract, the contract in question specifically embodied the very due process provisions provided by the State Education Law. Thus, the Court of Appeals observed (slip. op. at 3813):


"Fuentes was thus given by contract the procedural protections afforded tenured teachers and supervisors. These include rights to notice, retained counsel, the opportunity to call and to cross-examine witnesses . . ."

 The contract involved in the instant action, on the other hand, makes no reference whatever to the general due process provisions of the Education Law, and, as we have seen, specifically prohibits invocation of Section 2590j-7(f), the section which allows a trial examiner to administer oaths and subpoena witnesses and documents.

 The woefully inadequate procedures available to plaintiff in this case demonstrate the wisdom of a rule not requiring the exhaustion of contractual remedies which are totally independent of any state administrative procedure.

 As we noted above, the Article X grievance procedure is irrelevant, dealing, as it does, exclusively with the interpretation and application of the CSA contract. The procedures under Article XI in no way guarantee either accurate fact-finding or the satisfactory resolution of constitutional claims. The preliminary stages of this procedure contain significant infirmities. For example, when a complaint is first filed with the Chancellor -- who, it should be reemphasized, is a defendant in this action -- he appoints a joint investigating committee which consists of a representative designated by the Chancellor and a representative, not designated by the complainant, but rather by the CSA, the exclusive collective bargaining representative for supervisory employees. It is clear, however, that the interests of this organization may be inimical to that of plaintiff's. Indeed, plaintiff contends that the CSA in the last School Board election in District No. 1 vigorously supported the slate of candidates put forward by the UFT and that the CSA in general has been anti-Puerto Rican. *fn9"

 At the hearing before the Chancellor, the next stage in the remedy procedure under Article XI, this "joint" committee reports its findings and although the complainant does have an opportunity to be heard, he is expressly prohibited from having the assistance of an attorney.

 Finally, if the joint committee and/or the Chancellor are unable to resolve the dispute, the matter then may be submitted to arbitration. We have already commented on the various restrictions that the contract imposes on the fact-finding process pursuant to this provision. We here note that these procedural defects are especially significant when one considers the scope and breadth of the constitutional issues, particularly in the First and Fourteenth Amendment areas, that must be resolved in this case. It is clear that such issues properly lie within the expertise of the courts, and not within the special competence of an arbitrator who is more concerned with the law of the shop than the law of the land. See Alexander v. Gardner-Denver Company, supra, 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147. Moreover, whatever guidance, if any, such an arbitrator could give the court on these constitutional issues, would be clearly limited by the inadequate fact-finding procedures available. See Plano v. Baker, supra, 504 F.2d 599.

 B. Sufficiency of the Pleadings

 Certain of the defendants, primarily the UFT defendants, Chancellor Anker, and the individual members of the Board of Education, urge that the complaint be dismissed as to them because of plaintiff's failure to allege specific facts.

 After carefully reviewing the complaint, it seems clear that this motion must be denied. Although it may well be that plaintiff will be unable to prove all -- or even any -- of his allegations, "a case brought under the Civil Rights Act should not be dismissed at the pleadings stage unless it appears 'to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.'" Holmes v. New York City Housing Authority (2d Cir. 1968), 398 F.2d 262, 265. See, also, Conley v. Gibson (1957), 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99. In this case, the plaintiff has set forth facts showing intentional and purposeful deprivation of his civil rights, and has alleged with at least some degree of particularity overt acts by the defendants which he claims were reasonably related to the promotion of the claimed conspiracy. Such a showing is sufficient to withstand a motion to dismiss pursuant to Rule 12(b)(6). See Griffin v. Breckenridge (1971) 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790; cf. Powell v. Workmen's Compensation Board of the State of New York (2d Cir. 1964) 327 F.2d 131.

 The UFT defendants further maintain that even if plaintiff has stated a sufficient cause of action under 42 U.S.C. § 1983, they, as non-official defendants, would not fall within the ambit of the statute. It is, however, well established that private parties, who act in conjunction with state officials, can be liable under 42 U.S.C. § 1983, although they themselves are not officials of the state. Adickes v. Kress & Co. (1970) 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598; Shirley v. State National Bank of Connecticut (2d Cir. 1974) 493 F.2d 739, cert. denied 419 U.S. 1009, 95 S. Ct. 329, 42 L. Ed. 2d 284. Plaintiff's complaint clearly alleges that the UFT defendants engaged in concerted, interrelated activity with the various governmental defendants. Thus, plaintiff's action against the UFT defendants under 42 U.S.C. § 1983 is properly before the court.


 In summary, the defendants' motions to dismiss the complaint are in all respects denied. In view, however, of the importance of this litigation and its close relationship to previous litigation recently before the Court of Appeals, it seems that such court should have an opportunity, if it wishes, to consider whether we have correctly interpreted its mandate in Fuentes v. Roher, supra. Accordingly, this court certifies pursuant to 28 U.S.C. § 1292(b) that the question whether plaintiff should be required to exhaust remedies is a controlling question of law as to which there may be substantial ground for difference of opinion the immediate resolution of which may materially advance the ultimate resolution of this litigation.


 Dated: New York, New York July 31, 1975.


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