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HARON v. BOARD OF EDUC. OF NEW YORK

March 31, 1976

FLORENCE HARON, Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF NEW YORK and IRVING ANKER, as Chancellor of the New York City School District, Defendants



The opinion of the court was delivered by: PLATT

OPINION AND ORDER

 PLATT, D.J.

 Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that plaintiff's complaint "fails to state a cause of action".

 Technically, such a motion would lie under Rule 12(b)(6) and would seek an order of dismissal for "failure to state a claim upon which relief can be granted", but in view of the fact that defendants have filed an answer and an affidavit and a statement under Rule 9(g) of the General Rules of this Court in support of the motion, the motion will be treated as one for summary judgment under Rule 56.

 Since the plaintiff did not file a counterstatement of material facts pursuant to Rule 9(g), defendants' statement of such facts must be accepted as true. Such facts which are set forth as "not in dispute" are as follows.

 As to the portion of defendants' motion which is stated to be based on the ground that the termination of plaintiff's probationary service did not violate property or liberty rights secured by the Fourteenth Amendment:

 
"1. The plaintiff was appointed to probationary employment on February 8, 1973 as a high school teacher.
 
"2. Plaintiff's probationary period was scheduled to terminate on February 8, 1976.
 
"3. During the course of said employment plaintiff was rated unsatisfactory by Principal of Morris High School, Chester V. Wiggan who recommended discontinuance of her probationary service and denial of tenure.
 
"4. The recommendation of Principal Schain was concurred by Assistant Superintendent Bertha Gordon.
 
"5. The areas considered in reviewing plaintiff's employment as set forth in the report of probationary service of teacher for completion of probation include:
 
A. PERSONAL AND PROFESSIONAL QUALITIES
 
Professional attitude
 
Sympathetic understanding of children
 
Evidence of professional growth
 
B. PUPIL GUIDANCE AND INSTRUCTION
 
Effect on character and personality growth of pupils
 
Control of Class
 
Maintenance of a wholesome classroom ...

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