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NEWMAN v. BOARD OF EDUC. OF THE CITY SCH. DIST. OF

December 15, 1977

FRANCINE NEWMAN, Plaintiff,
v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF NEW YORK, Defendant



The opinion of the court was delivered by: PLATT

DECISION AND ORDER

 PLATT, D.J.

 The plaintiff is a tenured, licensed teacher in the New York City School System who on July 31, 1970 was found medically unfit for teaching duty by the defendant and placed on an involuntary unpaid leave of absence from and after September 11, 1970.

 On April 5, 1973, plaintiff brought this action "for a declaratory judgment and appropriate equitable relief" under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 and the Fourteenth Amendment and 28 U.S.C. § 1331.

 The plaintiff claims the defendant has violated her rights to procedural due process by not providing her with an adversary proceeding before finding her unfit to teach and seeks annulment of that finding, reinstatement, restoration of her accumulated sick leave and back pay.

 On February 15, 1974, Judge Travia of this Court granted summary judgment for the defendant on the ground that an earlier State Court determination was res judicata.

 The Court of Appeals reversed and remanded, Newman v. Board of Education of the City School District of New York, 508 F.2d 277 (2d Cir.), cert. denied, 420 U.S. 1004, 43 L. Ed. 2d 762, 95 S. Ct. 1447 (1975), ordering "further proceedings in light of this opinion" and relying on its prior opinion in Lombard v. Board of Education, 502 F.2d 631 (2d Cir.), cert. denied, 420 U.S. 976, 43 L. Ed. 2d 656, 95 S. Ct. 1400 (1975). The remand was for consideration of plaintiff's due process claim.

 On remand the defendant renewed its motion for summary judgment on the ground that the Board of Education was not a "person" under 42 U.S.C. § 1983 and that a suit under 28 U.S.C. § 1331 was not permitted here. The plaintiff cross moved for summary judgment. In an opinion dated February 19, 1976, the late Judge Judd denied the defendant's motion on the ground that since both issues were before the Court of Appeals in a number of cases and pending decisions in that Court, the plaintiff's complaint should not be dismissed. Judge Judd reserved decision on the plaintiff's cross motion pending further submission of papers.

 On March 8, 1976, the Court of Appeals issued its opinion in Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), cert. granted 429 U.S. 1071, 97 S. Ct. 807, 50 L. Ed. 2d 789 (1977).

 Thereafter the defendant renewed its motion for summary judgment and both parties have submitted further papers on the plaintiff's cross-motion for summary judgment.

 The facts which are not in dispute are as follows:

 
The plaintiff commenced her services in the New York City public school system in September 1945 as a substitute teacher of health education.
 
The plaintiff received her license as a teacher of health education in the day high schools in September of 1952. She also holds a substitute license to teach health education in day high schools and a license to teach in adult community centers and summer playgrounds under the sponsorship of the New York City Board of Education. In June, 1955 the defendant granted the plaintiff tenure in her position as a regular teacher of health education in senior high schools.
 
For each of the years during which the plaintiff taught, from 1945 through 1969, she received a "satisfactory" rating. For the academic year 1969-70, the plaintiff's services were rated "unsatisfactory."
 
The plaintiff received well over 28 commendations with regard to her teaching abilities during her teaching career.
 
At the time the plaintiff's services were suspended in 1970 by the defendant, her annual salary was $15,150.
 
From the time of the plaintiff's being suspended, her annual salary, based upon annual increments, would have been as follows:

  Sept. 1, 1970 to Oct. 1, 1970 ($15,150 / 12) $ 1,262.50 Oct. 1, 1970 to Oct. 1, 1971 16,000.00 Oct. 1, 1971 to Oct. 1, 1972 16,950.00 Oct. 1, 1972 to Sept. 1, 1973 16,591.63 Sept. 1, 1973 to Sept. 1, 1974 19,250.00 Sept. 1, 1974 to Sept. 1, 1975 20,350.00 Sept. 1, 1975 to Jan. 1, 1976 6,783.33 Total Salary Sept. 1, 1970 through Dec. 31, 1975 $97,187.45

 
At the time of the plaintiff's suspension, she had accumulated 200 days of "sick leave," which accumulated on the basis of 10 days per year.
 
At the time the plaintiff's employment was suspended, she was employed at and assigned to Far Rockaway High School at Beach Twenty-fifth Street and Ocean Crest Boulevard in Far Rockaway, New York as a teacher of physical education.
 
By letter dated January 26, 1970, Mr. Gordon sent a letter to Dr. Nathan Brown, then Superintendent of Schools, requesting that the plaintiff be examined by the Medical Division of the Board of Education in order to determine her mental capacity to perform her duties.
 
Mr. Gordon annexed to and submitted with his letter of January 26, 1970 a memorandum setting forth his reasons for the requested examination. *fn1"
 
Mr. Gordon's request for the plaintiff's examination by the Medical Division of the Board of Education was made pursuant to Section 2568 of the New York Education Law.
 
One of the purposes of the medical examination was to ascertain if a psychiatric examination was required.
 
Plaintiff could have been examined by doctors or psychiatrists of her own choice and submitted reports by them to the Board of Education under Section 2568 of the New York Education Law.
 
By notice dated February 3, 1970, the plaintiff was directed to appear on February 11, 1970 for examination. The notice was sent over the signature of Sidney Liebowitz, M.D., the Medical Director of the Medical Division of the Board of Education.
 
The plaintiff was first examined at the Medical Division by Dr. Barbara Wright on February 13, 1970 at approximately 2:20 p.m. Dr. Wright is a medical doctor and not a psychiatrist.
 
Dr. Wright's physical examination of the plaintiff resulted in a finding of normal as to all organs and functions examined.
 
Prior to Dr. Wright's examination of the plaintiff, she read Mr. Gordon's letter and report dated January 26, 1970.

 Dr. Wright discussed the contents of the principal's letter and report with the plaintiff and stated that the plaintiff's response was:

 
"No. 1, she claims she was justified in making 75 youngsters a U rating because they were late for many reasons. She denies she said 'Give me a U,' to the principal. So she denied that she had said that. Second, regarding the panty hose incident, she states the whole incident took two minutes and she tossed off the split in her panties, saying something like 'Look what happens when you gain an extra pound.' Three, she put enclosed notices on bulletin board in Teachers' Room, saying that all could view the progress of her case because she wished to to publicize her story to others. That's what she said to me, as I understood it. In explaining the role playing incident that she gave as a class assignment, she states she did it as a 'safety check,' i.e., she gave them accidents to play out, an accident that could happen in gym class, such as having split garments or splitting ones panty hose or feeling nauseous when they acted this out. Then she would discuss with the class how to handle these problems. In other words, she used this as a teaching mechanism. I am ad-libbing now. This lesson came under 'Safety checks.' She denies then -- another point she denies is that she denied talking to her colleagues, which was one of the complaints that was in the principal's letter, and then, shall I go on, those were the charges."

 Dr. Wright did not make any notation nor does she have any independent recollection of how long the examination took.

 At the conclusion of the examination, Dr. Wright referred the plaintiff to a second doctor for examination. Dr. Wright's reason for this referral was:

 
"The reason I did so is because it is customary in cases when there have been reports sent in by the principal's office to have the teacher seen by a second doctor when we feel that she should be referred for a panel psychiatric examination."

 Dr. Wright noted on her report:

 
"Throughout the interview the teacher was pleasant, she smiled almost constantly. She seemed almost a bit overproductive to me and perhaps, at times, stayed away from exactly answering a question exactly. She was not hostile. She denies psychiatric history of any type. Because I find it very difficult to evaluate this teacher ...

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