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January 20, 1977

WILLIAM LaBARR, Plaintiff,
BOARD OF EDUCATION OF THE UNION FREE SCHOOL DISTRICT #1, TOWN OF HEMPSTEAD, NASSAU COUNTY, NEW YORK, and WILLIAM WHITE, DR. JOHN VAN BUREN; MR. ANTHONY CAPPA, MR. WALTER KERSHAW, JR., MR. ARTHUR BOVE, individually and as members of the Board of Education of Union Free School District #1, Town of Hempstead, Nassau County, New York, Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 Plaintiff, a discharged probationary high school teacher for the Union Free School District, Town of Hempstead, commenced this action under the Civil Rights Act, 42 U.S.C. § 1983, challenging on due process grounds the termination of his employment. He seeks a permanent injunction enjoining defendants from terminating his services, reinstatement nunc pro tunc and back pay. The parties have cross-moved for summary judgment. Rule 56, F.R.Civ.P.

 The material facts, as developed by the following chronology, are not in genuine dispute. Plaintiff was appointed a probationary high school teacher by the Board of Education of the Hempstead School District (the "Board") with a probationary term of three years commencing December 4, 1969. In June 1972 the Superintendent of Schools (the "Superintendent") recommended to the Board that plaintiff be discharged because of unsatisfactory performance. On July 5, 1972 the Board voted to terminate plaintiff's probationary employment, and he was discharged. He has not performed any services for the Board since that date.

 The Board's decision would have been dispositive but for the enactment in June 1972 of a new provision of the New York Education law, requiring a Board of Education to give a probationary employee 30 days notice of its intent to discontinue his services. The new law, which was declared effective in July 1972, entitled the employee to receive, upon request, a statement of the Board's reasons and to reply in writing. N. Y. Educ. L. § 3031. *fn1"

 Plaintiff then commenced, in October 1972, an Article 78 proceeding, CPLR § 7801 et seq., in the State court to review the determination of the Board, asserting that the Board had failed to follow the 30-day notice provision referred to above. The Board conceded it had not followed the statute but argued that the provision did not apply because the Superintendent's recommendation had been given to the Board prior to the effective date of the statute. On November 22, 1972 plaintiff's motion for a judgment declaring the Board's actions null and void and ordering reinstatement was orally granted. Judgment was entered to that effect on December 5, 1972 providing for reinstatement and back pay from September 1, 1972. The Board appealed this judgment.

 In the interim, the Superintendent, following the new statute, notified plaintiff on November 3, 1972 that he would again recommend plaintiff's dismissal at the Board's December 5, 1972 meeting. Plaintiff was furnished, as he requested, a list of reasons for the discharge. At the Board meeting plaintiff appeared and asserted to the Board that it could not dismiss him summarily because he had acquired tenure, the three-year period from commencement of the probationary term having expired one day earlier, December 4. The Board decided to table the motion pending the outcome of its appeal. On July 9, 1973, the Appellate Division affirmed the judgment in plaintiff's favor, ordering reinstatement and back pay, with the modification that the Board was entitled to an offset for any monies earned by plaintiff post-termination. LaBarr v. Motoyama, 42 App. Div. 2d 733, 346 N.Y.S.2d 107 (2d Dept. 1973).

 On October 29, 1973, the Board, finding that its prior November notice to plaintiff satisfied the statutory provisions, again voted to discontinue plaintiff's employment. Plaintiff thereupon brought a second Article 78 proceeding asserting that he had acquired tenure by estoppel and thus could not be summarily discharged. The Supreme Court, Special Term, dismissed the petition on November 8, 1973, holding

"that tenure was not acquired by estoppel, since petitioner has not performed any services as a teacher since the expiration of his probationary term (see Matter of Gunthorpe v. Board of Educ., 41 Misc. 2d 757, 758, 759, 246 N.Y.S.2d 462)."

 The Appellate Division subsequently affirmed without opinion. LaBarr v. Board of Education, 45 A.D.2d 934, 358 N.Y.S.2d 669 (2d Dept. 1974).

 Plaintiff then filed this action alleging that his dismissal violated due process of law.

 In order to be afforded the constitutional protection of due process of law, absent any claim of violation of first amendment rights or deprivation of any liberty interest, as here, an employee of the State or its subdivisions must have a property interest in continued employment. Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The test to determine what constitutes a property interest for due process purposes, first enunciated in Roth, is whether plaintiff may invoke

"existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure benefits and that support claims of entitlement to those benefits." 408 U.S. at 577.

 The unilateral expectation of continued employment is not sufficient to create such a property interest. Id. Looking to New York law as required, see Bishop v. Wood, supra, 96 S. Ct. at 2077-78, it is clear that if plaintiff had acquired tenure, he was entitled to due process protection of notice of charges and hearing pursuant to N.Y.Educ. L. §§ 3012, 3020-a, *fn2" but if he were a probationary employee, then he could be summarily discharged ...

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