The opinion of the court was delivered by: PRATT
GEORGE C. PRATT, District Judge.
Plaintiffs Teachers United for Fair Treatment (TUFT), an organization of approximately 125 members, and nine individually named teachers brought this action to enjoin enforcement of certain sections of the Education Law of the State of New York and certain procedures promulgated thereunder by the defendants, on the grounds that they are unconstitutional either on their face or as applied, and to obtain damages for injuries suffered by the plaintiffs for violation of their individual rights as a result of these statutes and procedures. For the reasons discussed below, defendants' motion for summary judgment argued October 29, 1976 is granted.
Since TUFT lacks standing to maintain this lawsuit, summary judgment should be entered against this plaintiff. As the Supreme Court has recently noted:
In Warth v. Seldin, 422 U.S. 490, [95 S. Ct. 2197, 45 L. Ed. 2d 343] (1975) * * * we reviewed the constitutional limitations and prudential considerations that guide a court in determining a party's standing * * *. The essence of the standing question, in its constitutional dimension, "is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Id., at 498-99, 95 S. Ct. at 2205, quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). The plaintiff must show that he himself is injured by the challenged action of the defendant. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 561, 50 L. Ed. 2d 450 (1977).
In the instant case, plaintiff TUFT has failed to establish that, as an organization, it has suffered a judicially cognizable injury sufficient to confer standing.
Assuming arguendo that each of the nine individual plaintiffs, members of TUFT, have judicially cognizable claims, they are clearly capable of asserting their own diverse claims and have in fact done so. There is no indication that other members of TUFT are incapable of asserting any of their own claims. Moreover, these individuals could not have their separate claims adjudicated without participating as plaintiffs in a lawsuit. Compare NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963), with Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) and Independent Investor Protection League v. Saunders, 64 F.R.D. 564 (E.D.Pa.1974). In sum, when the nature of the claims and of the relief sought make the individual participation of each injured party indispensible to the proper resolution of the case, and when the association advances no separately cognizable claim on its own behalf, an association may not properly represent each of the separate and distinct interests. Warth v. Seldin, supra, 422 U.S. at 511, 516-17, 95 S. Ct. 2197.
Plaintiff Kenneth Bobrowsky, a tenured teacher at Bronx High School of Science, seeks redress for the receipt of an "unsatisfactory" rating from his principal in 1973. Alleging a deprivation of his liberty and property interests and relying upon Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), Bobrowsky claims that the administrative review conducted under section 105a of the By-Laws of the Board of Education of the City of New York (By-Laws) which sustained the "unsatisfactory" rating failed to comport with certain due process requirements, including representation by counsel and an evidentiary hearing.
While recognizing that liberty and property constitute protected interests, Board of Regents v. Roth, supra, also recognized that "the range of interests protected by due process is not infinite." Id., 408 U.S. at 570, 92 S. Ct. at 2705. And, in commenting upon Roth and its companion case Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), the Second Circuit has observed that:
[These] cases teach that when either a deprivation of a property interest such as in a permanent job, or a deprivation of liberty, such as a stigma that operates to foreclose other employment opportunities, result from the decision to discharge, due process requires that notice of the charges and a hearing must be granted to the dischargee. Velger v. Cawley, 525 F.2d 334, 336 (2d Cir. 1975), rev'd on other grounds sub nom. Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977) (emphasis added).
Accord, Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). Simply put, absent termination of that employment, an "interest" in employment does not rise to the level of a property or liberty right constitutionally protected by procedural due process.
Plaintiff here had no claim of entitlement to a "satisfactory" rating; nor was he discharged for receipt of an "unsatisfactory" rating. Moreover, New York's CPLR § 7801 afforded plaintiff recourse from an arbitrary and administrative determination sustaining the rating. Since "[the] federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies," Bishop v. Wood, supra, 96 S. Ct. at 2080, and the actions taken by the defendants in sustaining the "unsatisfactory" rating do not involve any protected constitutional rights, summary judgment should be entered against plaintiff Kenneth Bobrowsky.
In October 1972 charges were preferred against plaintiff Blossom Fogel and her removal was sought for conduct unbecoming her position and conduct prejudicial to the good order, efficiency, and discipline of the service. Soon thereafter the charges were amplified by numerous specifications. After a hearing conducted pursuant to By-Law § 105, the trial examiner dismissed certain charges, found her guilty of others, and recommended dismissal. On June 28, 1973 the Board of Education (board) concurred in these findings, but modified the recommendation to permit plaintiff the option of resigning to secure any accrued pension rights -- an option which she refused.
On November 12, 1973, plaintiff Fogel commenced a proceeding in the state courts seeking to overturn her dismissal on evidentiary and constitutional grounds. Specifically, plaintiff briefed and argued that the hearing procedure denied her due process of law in that she was given improper notice of the charges, was refused a copy of the trial examiner's report, and denied an opportunity to comment thereupon. By decision rendered June 30, 1975, the Appellate Division, Second Department, remanded the matter to the board stating:
Under the circumstances of this case, petitioner, having requested to see the Trial Examiner's report prior to a decision by [the] respondent, should have been given the opportunity to controvert the findings which are the subject of review. (Matter of Sorrentino v. State Liq. Auth., 10 N.Y.2d [143, 10 N.Y.2d 143, 218 N.Y.S.2d 635, 176 N.E.2d 563]). We have considered the other contentions raised by petitioner and find them to be without merit. In re Fogel v. Board of Educ., 48 A.D.2d 925, 369 N.Y.S.2d 517 (1975).
The board subsequently made the report available to the plaintiff who then submitted a written response and, with counsel, addressed the board on January 21, 1976. Nonetheless, on that same day, the board adopted a resolution reaffirming the original decision to dismiss the plaintiff. On March 4, 1976, plaintiff initiated an appeal before the New York State Commissioner of Education, who, on February 25, 1977, sustained the board's resolution and dismissed the appeal.
In the instant case, plaintiff Fogel once again challenges the constitutionality of the board's hearing procedures in that they failed to give adequate notice of the charges and failed to authorize the teacher to receive and respond to the findings of the trial examiner. Not only is the latter claim moot, but the former is barred by the res judicata effect of the Appellate Division decision. See Thistlewaite v. City of New York, 497 F.2d 339 (C.A.2 1974), cert. denied, 419 U.S. 1093, 95 S. Ct. 686, 42 L. Ed. 2d 686 (1975); Taylor v. New York City Transit Authority, 433 F.2d 665 (C.A.2 1970). Neither Lombard v. Board of Educ., 502 F.2d 631 (C.A.2 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975) nor Newman v. Board of Educ., 508 F.2d 277 (C.A.2), cert. denied, 420 U.S. 1004, 95 S. Ct. 1447, 43 L. Ed. 2d 762 (1975), can be profitably cited to the contrary where, as here, the constitutional claims were clearly and specifically raised, elaborated upon, and decided in the state court proceedings. To hold otherwise would be to give this plaintiff "two bites at the cherry." Lombard v. Board of Educ., supra, 502 F.2d at 636. See also VIII, infra.
Accordingly, summary judgment should be entered against plaintiff Blossom Fogel.
Plaintiff Harriet Greenbaum, a tenured teacher of library at Erasmus High School, was suspended with pay on the basis of charges preferred against her. Plaintiff concedes that a hearing on these charges, as amplified by the specifications, is now in progress and that the board has not to date made a final determination in the matter. Since the due process protections afforded a disciplined teacher by the board's hearing procedures are not unconstitutional on their face, see VIII, infra, and a court will not, in the absence of unusual circumstances, not present here, interfere with a pending administrative matter in which there has been no final determination, Safir v. ...