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November 15, 1977

JOHN A. LOMBARD, Plaintiff,

The opinion of the court was delivered by: PLATT



 On March 16, 1972, plaintiff commenced this action under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), (4) alleging an unconstitutional violation of his civil rights by the defendant Board and seeking reinstatement as a teacher and an award of all back pay due him and in addition money damages from a former defendant John A. Murphy, the principal of the school where the plaintiff had been teaching.

 The pertinent facts are as follows:

 On September 1, 1966, plaintiff received a conditional license as substitute teacher, day elementary school, common branches; on October 8, 1968, plaintiff was granted a license as a substitute teacher in the high schools of the State of New York; and on August 11, 1967, plaintiff received a regular license, day elementary school, teacher of common branches.

 On September 6, 1967, plaintiff was appointed under his regular license to a three year probationary term at Public School 151 Queens and at the end of the first of the three year probationary term (1967-68) the plaintiff was rated satisfactory on April 11, 1968 by the former defendant herein John A. Murphy, plaintiff's principal.

 In plaintiff's second probationary year at Public School 151 in Queens, his principal, the former defendant Murphy, submitted a report on March 28, 1969, to the Board rating plaintiff's performance as a teacher as unsatisfactory for the period from September 10, 1968 through June 30, 1969, and recommending that his probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. The unsatisfactory rating was concurred in by Mary Halleron, Assistant District Superintendent of the District in which Public School 151 is located.

 Following certain medical examinations in May and June, 1969, the Medical Division of the defendant Board entered a finding on July 18, 1969, that plaintiff was "unfit for duty" and should be placed on leave of "absence at least until January 31, 1970 for purpose of health restoration". By letter dated September 3, 1969, the defendant advised the plaintiff that he was not to report to school effective September 5, 1969 and was placed on leave of absence for medical reasons through January 30, 1970.

 On September 8, 1969, plaintiff commenced an Article 78 proceeding in New York Supreme Court challenging the authority of the Superintendent of Schools to place him on involuntary leave of absence and seeking restoration to duty. This action was apparently dismissed on January 16, 1970 and reargument was denied on June 29, 1970 (Supreme Court, Kings County Index No. 2090/67). Because of this litigation no action was taken prior to January 1970 on the recommendation of former defendant Murphy to discontinue plaintiff's probationary service and no psychological testing of plaintiff was scheduled in the latter part of 1969.

 Following further medical examinations in January and March of 1970 the Medical Division in a report dated March 9, 1970, found the plaintiff not fit to return to work and placed him on another leave of absence for medical reasons until June 30, 1970, so advising the plaintiff by letter dated March 12, 1970.

 In the interim and on February 24, 1970, a so-called "105(a) termination review proceeding" *fn1" was scheduled to review former defendant Murphy's and Assistant District Superintendent Halleron's recommendation that plaintiff's probationary appointment be discontinued. This proceeding which had originally been scheduled for October 20, 1969, but had been adjourned pending the resolution of the Article 78 proceeding was ultimately rescheduled and held on April 20, 1970, before a Committee of Supervisors designated to sit on behalf of the Chancellor of the New York City School District. About a month before the hearing the plaintiff was given a copy of material submitted by the principal in support of his rating and recommendation.

 On or about the 28th of May, 1970, the Committee recommended by internal memorandum to the Chancellor that former defendant Murphy's rating and discontinuance of service be approved on five grounds:

"(1) Illogical and disoriented conversation, causing request for examination by the Medical Department which found him unfit for duty.
(2) Weakness in discipline and class control.
(3) Incompetent and ineffectual instructional service.
(4) Inattention to routine matters such as keeping records of pupils attendance, admission or discharges. Poor relations with Supervisors and Teachers.
(5) Violation of the By-Laws on Corporal Punishment."

 Apart from its publication in connection with this litigation, this memorandum was never published nor made available to any prospective employer, to the public or to any particular person not having a ...

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