UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 9, 1976.
RAUL GONZALEZ, APPELLEE,
ALBERT SHANKER, ANNE MERSEREAU, LEONARD LURIE, ADOLPH ROHER, RICHARD LEE PRICE, JEROME GOODMAN, CAROLYN KOZLOWSKY, MARTIN RUBIN, KENNETH CAROSELLA, GARY SOUSA, HARRY LASSER, ROGER BRAVERMAN, LORRAINE SPIVACK, IRVING ANKER, JOSEPH MONSERRAT, STEPHEN AIELLO, JOSEPH G. BARKAN, ROBERT CHRISTEN, AMELIA ASHE, JAMES F. REGAN, ISIAH ROBINSON, THE UNITED FEDERATION OF TEACHERS, SOL LEVINE, GEORGE FESKO AND MAX GREEN, APPELLANTS
Appeal on a certified question from the United States District Court for the Southern District of New York, Whitman Knapp, Judge, in suit under 42 U.S.C. §§ 1981, 1983, 1985(3), 1986. Held, junior high school principal not required to exhaust contractual remedies, state administrative remedies, or procedures under N.Y. Education Law § 310 because such remedies are inadequate. Remanded for trial.
Mansfield, Oakes and Van Graafeiland, Circuit Judges.
Oakes, Circuit Judge:
This appeal on a certified question*fn1 presents for decision the issue whether administrative remedies of the appellee, a junior high school principal, were sufficiently adequate as to have required exhaustion prior to institution of his federal civil rights action.*fn2 Appellee's complaint alleged harassment by appellants in connection with the performance of his duties as principal of Ottilia M. Beha Junior High School, 60M, located in embattled Community School District No. 1 in Manhattan.*fn3 The United States District Court for the Southern District of New York, Whitman Knapp, Judge, held that appellee was not required to exhaust his contractual remedies or any other procedures available to him under New York Education Law § 310 or otherwise. In the light of our decision in Fuentes v. Roher, 519 F.2d 379 (2d Cir. 1975), however, Judge Knapp certified and we accepted this question. In our view the district court was perfectly correct in holding that appellee is not required to exhaust such remedies. We accordingly remand for trial of the case.*fn4
Appellee's complaint was one for a declaratory judgment, injunctive relief and damages against the Community Superintendents of School District No. 1, certain members of the Community School Board for that district, the Chancellor and individual members of the Central Board of Education of the City of New York, certain employees of the Central Board, certain school personnel including members of the United Federation of Teachers (UFT) and private defendants including the UFT. In substance the appellee's claim is that because he favored a slate of minority candidates in school board elections and refused to cooperate with the UFT, and because he is a Puerto Rican and is outspokenly committed to a program of bilingual education, reform and community participation identified with the minority group slate, he has been subjected to a deliberate, continuing and discriminatory program of harassment, interference and noncooperation in the performance of his duties as principal. His complaint sets forth 14 detailed illustrations of the alleged program of harassment, interference and noncooperation, including such things, among others, as denying him adequate staff given other schools, requiring him to submit lengthy and time-consuming reports and explanations, withholding a scheduled repainting of the school, permitting a fire hazard to exist, attacking his reputation in the community, and subjecting his school to repeated and meaningless inspections.
In Fuentes v. Roher, supra, 519 F.2d at 386, we stated that this court "albeit with some hesitation," see Plano v. Baker, 504 F.2d 595, 597 (2d Cir. 1974), has continued to require a civil rights plaintiff to exhaust state administrative remedies. We noted that one exception to the requirement is presented where the question of the adequacy of the administrative remedy is "for all practical purposes coextensive with the merits of the constitutional claim," as was the case in Fuentes v. Roher, supra, 519 F.2d at 387. Administrative remedies likewise will not be required to be exhausted where the remedies available are inadequate. Plano v. Baker, supra, 504 F.2d at 597; Ray v. Fritz, 468 F.2d 586, 587 (2d Cir. 1972) (per curiam). More recently we have said that before a district court may relinquish its civil rights jurisdiction, "it must . . . be positively assured -- it may not presume -- that there are speedy, sufficient and readily available administrative remedies remaining open to pursue . . . ." Morgan v. La Vallee, 526 F.2d 221, 224 (2d Cir. 1975). We proceed then to an examination of the remedies which Judge Knapp found to be "inadequate" to afford appellee the relief to which he might otherwise be entitled in this federal civil rights action.
The UFT appellants urge that the terms of the collective bargaining agreement between the Board of Education of the City and the Council of Supervisors and Administrators of the City of New York, Local 1, School Administrators and Supervisory Organizing Committee, AFL-CIO (hereafter the CSA contract), particularly Articles X and XI thereof, provide specific administrative and contractual remedies for the resolution of appellee's complaints and grievances. The municipal appellants rely principally upon Article XI of the CSA contract. In addition they point out that § 310 of the New York State Education Law provides an administrative appeal to the New York State Commissioner of Education from any of the alleged acts of misconduct on the part of the appellants.
Regarding the adequacy of contractual remedies, appellants claim that the provisions of Article XI of the CSA contract*fn5 entitled "Special Complaints" deal precisely with the allegations appellee makes with respect to the deliberate, continuing program of harassment, interference and noncooperation in the performance of his duties as principal. They point out that Subdivision A of Article XI defines a special complaint as a complaint by a supervisor that a person or groups "are engaged 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 his district has not afforded him adequate relief. The supervisor must first file his complaint with the Chancellor of the City Board, Article XI(B), and a two member "joint" investigating committee reviews it within 24 hours in an attempt to "bring about a prompt resolution of the problem without resort to formal procedure." Article XI(C). If unsatisfied the complainant is entitled to a hearing, within 48 hours, where he may appear, albeit without an attorney, before the committee and Chancellor or his representative, again for the purpose of Article XI informal resolution. The Chancellor's decision must be made within 24 hours. Article XI(E). Within ten days the supervisor may then submit his complaint to a "fact-finder" arbitrator who renders written findings within 72 hours of the closing of his hearing and recommends a remedy. Article XI(F). Within ten days thereafter the city board is to make a determination. Article XI(G).
In support of his claim of interference and non-cooperation, Gonzalez makes certain allegations which appellants contend likewise may be resolved under particular provisions in the CSA contract. As to appellee's claim that appellants are harassing him in order to create a false record of inferior performance and nonaccomplishment as a basis for some "future disciplinary action or termination," appellants contend that Article VII(J)*fn6 provides an effective remedy. As to his claim that improper and deleterious material "is being placed in plaintiff's personnel file," it is suggested that Article VI(J)*fn7 of the contract permits the supervisor to file a grievance under Article X,*fn8 alleging that there has been a violation, misinterpretation or inequitable application of the contract. Appellants add, finally, that if a supervisor is not satisfied with the results of the contractual procedures he may then commence a proceeding before the Commissioner of Education pursuant to § 310 of the Education Law*fn9 and the regulations governing appeals to the Commissioner, 8 New York Code of Rules and Regulations § 275 et seq.
We agree with Judge Knapp that the contractual procedures were "woefully inadequate." Article X of the CSA contract, the grievance procedure provision, note 8 supra, deals exclusively with interpretation and application of the contract. In the first instance, it does not appear that appellee's claims are founded upon any violation or inequitable application of the contract. It is true that one element of the relief sought is the expunging of "deleterious entries" in his file based on appellants' harassment; on its face, however, this request is not grounded upon any violation of Article VI(J), note 7 supra, suitable for resolution under Article X, but upon appellants' alleged pattern of noncooperative acts and its impact upon material in appellee's file. Even if some of the acts complained of could be construed as "grievances" under Article X, as Judge Knapp pointed out, that Article does not even purport to deal with the type of systematic harassment that is the gravamen of the instant action. Likewise, appellee's allegations of appellants ' harassment for the purpose of future disciplinary action do not constitute a claim of a violation of Article VII(J), note 6 supra. That Article does not prohibit, or provide a remedy for, pre-disciplinary harassment. It merely gives a supervisor certain procedural rights once disciplinary proceedings have begun, and more limited procedural rights in connection with formal interviews with superiors which may lead to disciplinary action.
An even more decisive aspect of the inadequacy of the contractual remedies is their lack of procedural safeguards, even in Article XI, note 5 supra, which purports to deal with claims of "harassment." The objective of Article XI, as well as of Article X, is plainly informal resolution. The complainant is expressly denied representation of counsel before the "joint" committee under Article XI(D), and may have only representation by CSA or another supervisor at the hearing with the Chancellor under Article X. Both Articles provide for informal discussions and advisory rather than binding arbitration. The powers of the arbitrator are severely limited under Article XI(F) in that he expressly may not exercise any of the powers conferred upon trial examiners by N.Y. Education Law § 2590-j(7)(f) (McKinney Supp. 1975).*fn10 Thus he does not have the power to administer the oath or subpoena witnesses or papers. As Judge Knapp noted, this limitation upon the arbitrator creates an inadequacy of contractual remedies not present in Fuentes v. Roher, supra, where the plaintiff was given by contract "procedural protections" including "rights to notice, retained counsel [and] the opportunity to call and to cross-examine witnesses." 519 F.2d at 383.
As we view the collective bargaining agreement, then, it lacks the procedural attributes that would assure either accurate factfinding or satisfactory resolution of constitutional claims, particularly against the background of animosity and abuse that is alleged here. The denial of counsel at various stages, together with the absence of compulsory process for the production of witnesses, papers and records or discovery procedures such as would be available under the Federal Rules of Civil Procedure, the lack of evident opportunity for cross-examination or for the application of the usual rules of evidence, all militate against a finding of administrative remedy adequacy. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 57, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974).
Moreover, the presiding authority at these assorted proceedings is not empowered to remedy appellee's complaint. Money damages for past wrongs cannot be awarded, the arbitrator's determinations are not binding, the private defendants including the UFT defendants would in no way be involved in the contractual proceedings, would have no obligation to participate in them and would in no way be bound by the outcome. Under our decisions the factfinding procedures are, then, plainly inadequate. See Plano v. Baker, supra, 504 F.2d at 598-99; Morgan v. LaVallee, supra.
As to § 310 of the Education Law, it may be noted that even the courts of New York do not consider that failure to invoke that remedy bars judicial relief.*fn11 As we noted in Plano v. Baker, supra, 504 F.2d at 598 n.5, the hearing provided before the Commissioner is no more than an informal round table discussion. No transcript of the proceedings is made, and the right of examination and cross-examination of witnesses is denied. Moreover, the administrator could not award monetary damages, the relief sought. See id., 504 F.2d at 599; Ray v. Fritz, supra, 468 F.2d at 587.
We find that the contractual and administrative procedures available to Gonzalez, whether taken separately or together as a "panoply" of remedies, are fatally inadequate to provide either accurate factfinding or satisfactory relief should appellee's claims be sustained on the merits. Such procedures need not therefore be exhausted before this civil rights action proceeds and we hereby remand the case for trial.
Judgment in accordance with opinion.