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ORSHAN v. ANKER

May 7, 1980

DR. H. ALLEN ORSHAN, Plaintiff, against IRVING ANKER; JAMES BOFFMAN; FRANK J. MACCHIAROLA; BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Plaintiff, an employee since before 1969 of defendant Board of Education ("Board"), commenced this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 challenging defendants' refusal to acknowledge his claim of tenure as a day high school principal. He seeks damages, back pay, declaratory judgment that he is a tenured principal, and an order directing defendants to expunge from his records an adverse report and recommendation and to amend his records to reflect his tenured status. The action is before the court on defendants' motion for summary judgment. Rule 56, F.R.Civ.P.

 Summary judgment may be rendered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R.Civ.P. As the Court of Appeals for this circuit has stated, when a motion for summary judgment is properly supported by affidavits or the other materials referred to in Rule 56(c),

 
"an adverse party may not rest upon mere conclusory allegations or denials. The party opposing the motion must set forth "concrete particulars,' Dressler v. The MV Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964), and cannot make a secret of his evidence, holding it close to his chest until the trial. See Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir. 1972). It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion. Id. at 293. See Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970)." Securities Exchange Commission v. Research Automation Corp., 585 F.2d 31, 33 (2 Cir. 1978).

 In determining whether to grant a motion for summary judgment, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967), quoted in Securities Exchange Commission v. Research Automation Corp., supra, 585 F.2d at 33. It must accept as true factual statements in the opposing party's affidavits, draw all permissible inferences in that party's favor, Hill v. A-T-O, Inc., 535 F.2d 1349 (2d Cir. 1976), and resolve any doubts in favor of the latter, American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., supra. "The very mission of the summary judgment procedure (however) is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Adv. Com. Note to Proposed Amendments to Rule 56(e), 31 F.R.D. 648 (1962). See generally Applegate v. Top Associates, Inc., supra; Donnelly v. Guion, supra, 467 F.2d at 292.

 With these principles in mind, it is the court's view that summary judgment is warranted on plaintiff's claims regarding his "liberty" interest and his claims under 42 U.S.C. §§ 1985, 1986. Since plaintiff has not overcome defendants' convincing presentation that no genuine issue as to any material fact exists with regard to these claims, partial summary judgment is appropriate here to preclude meritless litigation of frivolous claims. *fn1" Quinn v. Syracuse Model Neighborhood Corporation, 613 F.2d 438, 445 (2d Cir. 1980), citing Gatling v. Atlantic Richfield Co., 577 F.2d 185 (2d Cir. 1978), cert. denied, 439 U.S. 861, 99 S. Ct. 181, 58 L. Ed. 2d 169 (1979).

 Mindful, however, that summary dismissal of claims alleging deprivations of constitutionally protected interests "is appropriate only when prior case law leaves no doubt that the defendant must prevail as a matter of law," Quinn v. Syracuse Model Neighborhood Corp., supra, at 442, the court is of opinion that summary judgment on plaintiff's claims regarding his alleged "property" interest may not be granted at this time. Accepting as true the factual allegations in his affidavits and drawing all permissible inferences in his favor, we cannot say as a matter of law that defendants may not be estopped from denying plaintiff's claim of tenure.

 The following facts appear from the papers submitted. Sometime prior to 1969 plaintiff had acquired tenure as assistant principal in charge of a school music department. Following a qualifying examination held in June 1969, he received a license for the position of principal and was assigned to that position at Julia Richman High School effective September 3, 1969. Pursuant to N.Y. Educ. Law § 2573(1), plaintiff was required to complete a three-year probationary period before he would be eligible for tenure as a principal.

 In a letter and report dated January 26, 1971, defendant Boffman, an assistant superintendent, informed plaintiff that he had rated his services during the probationary period ending January 1971 as unsatisfactory. Boffman's report concluded, "I do not recommend continuance of service as Principal" and his letter instructed plaintiff to report to Boffman's office "until further notice." Plaintiff served at Board of Education headquarters until, by letter dated December 20, 1971, he was notified by the Board's Executive Director of Personnel that he was reassigned to Seward Park High School to serve as chairman of the Department of Music. He was instructed to "report to the Principal (of Seward Park) who has been informed of this reassignment."

 Following plaintiff's request in February 1971 to appeal the unsatisfactory rating, review proceedings were held pursuant to section 105a of the Board's by-laws. The review committee in June 1972 recommended that the Chancellor reverse the unsatisfactory rating. In March 1975, plaintiff instituted an action under Article 78 of the N.Y. Civil Practice Law and Rules alleging unreasonable delay and seeking to compel the Chancellor to act upon the review committee's recommendation. Pursuant to an order of the New York Supreme Court favorable to plaintiff, Chancellor Anker issued his decision in December 1975, ruling that the 105a hearing "was procedurally defective and that Dr. Orshan is entitled if he so requests to have a de novo review proceeding under Section 105a." Plaintiff then instituted another proceeding under Article 78, this time seeking to compel the Chancellor to expunge the unsatisfactory rating and to acknowledge plaintiff's claim of tenure. Following a series of court proceedings, the Supreme Court on July 17, 1978, remanded the matter for a de novo 105a hearing.

 It appears that at no time after January 1971 did plaintiff serve at Julia Richman High School and that from December 1971 at least through the 1977-78 academic year plaintiff performed, as discussed below, a variety of functions at Seward Park High School. During this period, he was paid at the salary level of a principal, and served on a principal's license. In the fall of 1978, by orders made effective August 30, 1978, he was returned to the salary line of an assistant principal. Plaintiff has not requested the de novo 105a review now available to him, but instead, on February 5, 1979, instituted this action alleging civil rights deprivations.

 At the outset, it is clear that defendants are entitled to summary judgment on plaintiff's claims under 42 U.S.C. §§ 1985, 1986 alleging a conspiracy to deprive him of equal protection of law and neglect in failing to prevent such a conspiracy. In Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971), the Court concluded that

 
"(t)he language requiring intent to deprive equal protection, or equal privileges and immunities, means that there must be some racial or perhaps otherwise class-based, invidiously discriminating animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." 403 U.S. at 102, 91 S. Ct. at 1798.

 The language of § 1985 has been interpreted to require discrimination between classes based on racial bias, national origin or religion, Perrotta v. Irizarry, 430 F. Supp. 1274, 1278 (S.D.N.Y.), aff'd, 573 F.2d 1294 (2d Cir. 1977), citing Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975); Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1578, 39 L. Ed. 2d 881 (1974); Western Telecasters, Inc. v. California Federation of Labor, 415 F. Supp. 30 (S.D.Cal.1976), and the class must ...


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