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October 29, 1986

John Lombard, Plaintiff,
The Board of Education of The City of New York, Defendant

The opinion of the court was delivered by: KORMAN



Plaintiff alleges that the refusal of the defendant Board of Education to appoint him to a teaching position, to refer or recommend him to community school boards for consideration for appointment, or to allow the community school boards to appoint him, has "constructively revoked" his teaching license without due process of law, and in violation of his right to equal protection. Defendant moved for judgment on the pleadings or, in the alternative, for summary judgment, on the ground that plaintiff has been denied neither due process nor the equal protection of the laws. The parties have heretofore been advised that the motion will be treated as one for summary judgment, and given an opportunity to present all pertinent material, as required by Rule 12(c), F.R. Civ. P. All such material having been carefully considered, defendant's motion is now denied.

 Plaintiff was an elementary school teacher who was appointed by the Board of Education to teach common branch subjects in a New York City public school under his regular (full-time) teaching license for a probationary period of three years commencing on September 6, 1967. During the second year of plaintiff's probationary period, the principal of the school gave plaintiff an "unsatisfactory" rating and submitted a report to the Board of Education recommending discontinuance of his probationary appointment and that plaintiff be directed to submit to a medical examination to determine his fitness to teach. Plaintiff was examined by staff physicians in May and June, 1969. He was found medically unfit for teaching duties and placed on a medical leave of absence until January 31, 1970. The leave was extended through June 30, 1970.

 On April 20, 1970, a hearing was held before the Committee of the Superintendent of Schools concerning plaintiff's probationary status. Following this hearing, at which plaintiff presented evidence on his behalf but was not given the opportunity to cross-examine the reports and recommendation of the principal and the various physicians who had examined him, the Committee recommended that plaintiff's probationary appointment be discontinued. The primary ground for the recommendation was "illogical and disoriented conversation." On June 11, 1970, the community school district in which plaintiff's school was located adopted the recommendation of the Committee and voted to terminate plaintiff's probationary appointment. Plaintiff's license was then revoked or deemed revoked, and on May 26, 1971, plaintiff's file number was placed on a circular distributed to principals and superintendents indicating that plaintiff could not be employed in any public school because of the discontinuance of his probationary appointment. Lombard v. Board of Education, 440 F. Supp. 577, 580 (E.D.N.Y. 1977).

 Plaintiff brought two actions pursuant to New York CPLR, Article 78, challenging both the forced leave of absence and the determination to discontinue his probationary appointment, but these were dismissed. In 1972, plaintiff commenced an action here alleging violations of his civil rights and seeking reinstatement of his license, back pay and damages. The action was dismissed without opinion by Judge Travia on the ground that the complaint failed to state a claim for relief.

 On appeal, the Court of Appeals for the Second Circuit reversed, finding that although "Lombard did not have tenure and, therefore, presumptively had no property right either as a probationary or substitute teacher . . . he was deprived [by the recommendation of the Committee without his being given the right to confront witnesses] of his reputation as a person who was presumably free from mental disorder." Lombard v. Board of Education, 502 F.2d 631, 637 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975). The Court of Appeals held that since a charge of "illogical and disoriented conversation" imposed a stigma upon the plaintiff, he could claim a deprivation of "liberty" under the due process clause of the fourteenth amendment. Accordingly, the Court ordered a trial to determine whether appellees have violated [Lombard's] federal constitutional rights." Id. at 638.

 On remand, Lombard v. Board of Education, 440 F. Supp. 577 (E.D.N.Y. 1977), Judge Platt dismissed the action after trial. Judge Platt observed that, subsequent to the decision of the Court of Appeals, the Supreme Court had made it clear that a cause of action for deprivation of liberty would not lie in the absence of evidence that the allegedly stigmatizing information had ever been made public. Such evidence, he concluded, was lacking here. Id. at 582. Judge Platt also held that plaintiff's claim for reinstatement was moot because although the Board had initially treated plaintiff's license as cancelled, it now recognized the license as reinstated and valid pursuant to a decision of the Commissioner of Education captioned Matter of Baronat, 11 Educ. Dept. Rep. 150 (1972). Accordingly, Judge Platt concluded that it was unnecessary for him to reach the issue whether the revocation of the license deprived plaintiff of a property interest. *fn1" Plaintiff alleges that he filed a Notice of Appeal from Judge Platt's order seeking to appeal as a poor person, and that the motion was denied by Judge Platt and, thereafter, by the Court of Appeals.

 Plaintiff brings the present action alleging that, although his license has not been formally taken from him, it has been "constructively revoked" because the defendant has prevented him from obtaining employment anywhere in the New York City public school system (Complaint PP 47, 58). *fn2" Specifically, plaintiff asserts that defendant has, without a hearing, denied him "the right to work under his license and has denied him the benefits of such license" (Complaint P 48), that "the Board of Education and/or its administration refus[ed] to grant petitioner a teaching assignment" (Complaint P 56), that "plaintiff responded to an advertizement [sic] and on December 16, 1981, plaintiff was accepted in a program for training for "Special Education" classes" (Complaint P 31), that on December 18, 1981, without cause, plaintiff was told that he would not be permitted to remain in the program and he was told to leave" (Complaint P 32), that the Board refused to refer him to community school boards for consideration for employment (Complaint PP 26-44), and that he was unable to obtain employment, except sporadically as a substitute teacher, by approaching either the Central Board or the local school districts directly (Id.).

 Plaintiff further alleges that he "answered an ad for positions in District 25 College Point Queens, and was told at District 25 that all assignments were made through the Central Board and that he should go to the Central Board" (Complaint P 41), that "on May 7, 1982 he reported to District 17, Brooklyn, and was told he could start work at P.S. 18 as a regular teacher, but when he reported to P.S. 18 the principal refused to hire him as a regular teacher and only permitted him to work on a per diem basis" (Complaint P 36), and that, "[i]n December, 1984, plaintiff answered an ad for an interview at the Penta Hotel recruiting conference. One Louise Markowitz refused to interview him. She said, 'You are an exception . . . you do not belong here.' She refused to place him and she told one Geraldine Brooks to 'take him away from my table . . .' "(Complaint P 51).

 In his affidavit, plaintiff alleges that "[defendant has] "notified every community superintendant that [Lombard is] not to be offered a position" (Lombard Aff. P 10), that he has been unable to obtain a job "because the Central Board has refused to permit [his] appointment in any district. . . " (Lombard Aff. P 24, emphasis in original), that "[t]he Board of Education and Ms. Markowitz [the Administrator of the Board's Personnel Office] are not permitting me to find employment anywhere in the City of New York" (Lombard Aff. P 5, emphasis in original), that plaintiff has "actually applied for several positions and apparently was accepted until the Central Board learned of my success" (Lombard Aff. P 21), and that he has "found [his] own position only to learn subsequently that there is no job for John Lombard and I should go to the central board to find out WHY" (Lombard Aff. P 4).

 Plaintiff alleges that these acts deprived him of his rights to property and liberty without due process of law, and of his right to the equal protection of the laws in violation of the Fourteenth Amendment. The Board of Education argues that even if the factual allegations are taken as true, plaintiff would not be entitled to judgment as a matter of law.

 Plaintiff's Due Process Cause ...

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