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HOROWITZ v. ANKER

September 7, 1977

GILBERT R. HOROWITZ, Plaintiff,
v.
IRVING ANKER, THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, FRANK C. ARRICALE II, and ANTHONY J. POLEMENI, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 In this action under the Civil Rights Act, 42 U.S.C. § 1983, *fn1" plaintiff, a school psychologist employed by the Board of Education of the City School District of New York (the "Board of Education" or the "Board"), claims he was transferred from one bureau to another in the Board of Education in retaliation for having spoken out against what he believed were questionable actions of superiors. His suit was aimed chiefly at defendants Irving Anker, now Chancellor of the Board of Education, and Dr. Anthony Polemeni, Director of the Office of Educational Evaluation ("OEE"), *fn2" whom he charged with violating his constitutional right of free speech by ordering him to report for a psychiatric examination and by transferring him from his long-time post in OEE to the Board's Bureau of Child Guidance ("BCG").

 Plaintiff sought compensatory and punitive damages and an injunction transferring him back to his former position. The liability and damage issues were tried to a jury, *fn3" which returned a verdict in favor of plaintiff against both defendants for compensatory damages in the amount of $25,000 and punitive damages against Anker in the amount of $20,000 and against Polemeni in the amount of $5,000. *fn4"

 Defendants now move for judgment notwithstanding the verdict, Rule 50(b), F.R.Civ.P., or in the alternative for a new trial, Rule 59, F.R.Civ.P., contending that the evidence against Anker and Polemeni was legally insufficient to sustain the verdict and that it was based on highly prejudicial evidence of claimed wrongdoing with which they had no connection. For the reasons which follow, defendants' motion for judgment n.o.v. is granted. *fn5"

 Plaintiff's case concentrated on allegations of improprieties within the Board of Education concerning the practices and procedures of his bureau, OEE, in awarding contracts to outside companies for research evaluation programs and the annual citywide reading test. Indeed, plaintiff claims to have proven at trial the existence of "illegal, wasteful, improper and unprofessional practices and procedures at OEE" dating back to 1971. *fn6" Defendants maintained that plaintiff's transfer was necessary because he was a disruptive and ineffective member of the staff, "consistently at odds with his superiors" and in the end, an unsatisfactory employee who had attempted to usurp his superior's authority. *fn7"

 A careful review of the entire record and the court's own familiarity with the sequence of events impel the conclusion that everyone, including counsel, the court and the jury, lost sight of the real issues in the case amidst the barrage of charges of wrongdoing within the Board of Education. But the Board of Education was not on trial. The fundamental issues concern solely the right of a governmental employee to speak out publicly on matters of public concern in the exercise of his first amendment rights, the right of the Board of Education as an employer to maintain order and discipline, and the authority of the employee's immediate superior to manage his department.

 Plaintiff's claim is based on asserted instances of retaliatory conduct by the individual defendants because he spoke out on specific issues over a period of time between 1971 and 1973. A review of the evidence in the light most favorable to plaintiff is therefore necessary to ascertain exactly what statements were made by plaintiff and what acts were performed by each of the defendants and their causal relationship, if any, to his transfer from OEE.

 The Relevant Facts Before the Jury

 On June 1, 1967 plaintiff began employment with the central Board of Education at its Brooklyn headquarters when he was appointed to the position of school psychologist in the Bureau of Educational Research for a probationary term of three years. *fn8" The appointment was made at the request of Dr. Samuel McClelland, then Acting Director of the Bureau, which in late 1973 became OEE and will hereinafter also be referred to as "OEE". Plaintiff was the only school psychologist in OEE, which then employed a professional staff of approximately 20 individuals, mainly in licenses of research and research assistant.

 The primary functions of OEE, which reports directly to the Chancellor, were (1) the central evaluation of educational programs involving over $100,000,000 in federal and State aid; (2) city-wide testing and test development; (3) administering the annual achievement tests; (4) independent audits; and (5) approving all research on the City schools. *fn9" Plaintiff was engaged primarily in research and statistical work, writing critiques of proposed programs, designing and evaluating programs and developing psychometric techniques and tools. On June 1, 1970, having rendered satisfactory service during his probationary term, plaintiff's appointment as school psychologist was made permanent and he obtained tenure in that license. *fn10"

 The performance of pedagogical employees of the Board of Education is rated at the end of each school year by their supervisors. From the commencement of his employment until and including June 1973, plaintiff's performance was rated satisfactory. In June 1974 plaintiff was rated unsatisfactory by Polemeni. The rating was upheld on appeal. What happened during that school year, September 1973 to June 1974, is the nub of this lawsuit.

 As part of this general review, as previously noted, n. 8 supra, it appears that former employers of plaintiff had criticized his performance and his ability to get along with his fellow employees and superiors. Also well documented and not seriously contradicted, apart from his assertion that he was treated differently than other Board employees, are plaintiff's chronic difficulties with lateness, absences and conforming to regular hours of employment due to medical and other reasons.

 Before we turn to the 1973-1974 incidents which really gave rise to this action, it is necessary to mention briefly prior events which formed the bulk of plaintiff's proof at trial. The evidence was obviously offered to show that Anker and others were aware of plaintiff's successful challenge to questionable practices of the Board's bureaucracy and thus had a motive to retaliate against him whenever an opportunity arose.

 The first of these occurrences took place in the spring of 1971, after McClelland sent plaintiff several letters demanding explanations for plaintiff's absences or lateness. In one response to McClelland plaintiff intimated knowledge of improper behavior within OEE in respect of bidding procedures. *fn11" McClelland sought Anker's approval to arrange for the transfer of plaintiff to the Bureau of Child Guidance ("BCG"), representing that plaintiff wanted to work with children and no longer found his work at OEE congenial or appropriate. Plaintiff, in a letter to Anker, resisted, stating he wished to remain in OEE, that any transfer would be involuntary, and requested a meeting. There is no evidence as to what action Anker took, if any, with respect to the letters or that he even personally received them. In any event plaintiff received no response, no meeting with Anker was held and no transfer took place.

 The upshot of the matter was on the basis of information supplied by plaintiff, then Chancellor Harvey Scribner requested the City Department of Investigation to look into the situation and plaintiff's transfer to BCG was rescinded. Commissioner Robert K. Ruskin later wrote Chancellor Scribner suggesting new procedures be adopted for letting evaluation contracts. Plaintiff acknowledged at trial that the recommended ...


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