United States District Court, Western District of New York
January 14, 2002
JEFFREY RUBIN, PH.D., PLAINTIFF,
CORNING-PAINTED POST, ET AL., DEFENDANTS
The opinion of the court was delivered by: David G. Larimer, Chief Judge United States District Court.
DECISION AND ORDER
Plaintiff, Jeffrey Rubin ("Rubin"), requests a preliminary injunction
against defendants, including his employer, defendant, Corning-Painted
Post Area School
District ("the School District"). The School District filed disciplinary
charges against Rubin, a long-time employee of the School District, on
August 24, 2001.*fn1 Rubin claims that these charges were brought
against him in bad faith and in retaliation for his public speeches and
comments against a school construction plan, apparently espoused by the
School District and its administrators. Specifically, Rubin requests that
this Court enjoin defendants from continuing to prosecute the
disciplinary charges against him. In addition, Rubin seeks in his
complaint damages under 42 U.S.C. § 1983 for violations of his
constitutional rights. Defendants oppose the request for injunctive
relief and assert that the plaintiff has failed to meet the standards for
such extraordinary relief.
The parties have submitted affidavits and memoranda of law and the
Court heard oral argument on December 19, 2001.
The ultimate facts are very much in dispute, although the parties'
respective claims are not.
Plaintiff asserts that the disciplinary action taken against him was a
pretext and in retaliation for his speaking out against a controversial
plan to construct new facilities in the School District.
Apparently, plaintiff did speak out at several public gatherings in
opposition to the favored plan, Option Two. Defendants claim that his
speech had nothing to do with their disciplinary proceedings.
The disciplinary matters involve charges of insubordination and refusal
to comply with lawful and proper directives of Rubin's supervisor, Ellen
Robinson. Defendants contend that this is a routine disciplinary
proceeding involving a public school employee and this Court should
abstain from considering the claims, especially since there are ongoing
administrative proceedings relative to the disciplinary charges,
occasioned by Rubin's request for a hearing pursuant to statute, New York
Education Law, § 3020-a. Plaintiff concedes the general principles of
the so-called Younger abstention doctrine but believes the facts of this
case come within an exception to that general rule that permits federal
"A party seeking a preliminary injunction must demonstrate `(1)
irreparable harm should the injunction not be granted, and (2) either (a)
a likelihood of success on the merits, or (b) sufficiently serious
questions going to the merits and a balance of hardships tipping
decidedly toward the party seeking injunctive relief.'" N.A.A.C.P., Inc.
v. Town of East Haven, 70 F.3d 219, 223 (2nd Cir. 1995) (quoting
Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991)); PSC,
Inc. v. Reiss, 111 F. Supp.2d 252, 254 (W.D.N.Y. 2000). The "`serious
questions' prong is also frequently termed the `fair ground for
litigation' standard." N.A.A.C.P., Inc. v. Town East Haven, 70 F.3d at
In some situations, a higher standard applies. "The moving party must
make a `clear' or `substantial' showing of a likelihood of success where
(1) the injunction sought `will alter, rather than maintain, the status
quo' — i.e., is properly characterized as a `mandatory' rather than
`prohibitory' injunction; or (2) the injunction sought `will provide the
movant with substantially all the relief sought, and that relief cannot
be undone even if the defendant prevails at a trial on the merits.'"
Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (quoting Tom Doherty
Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir.
1995)), overruled on other grounds by City
of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (1997). This standard
Concerning irreparable harm, I am not convinced that plaintiff will
suffer irreparable harm which warrants injunctive relief. First of all,
it is not disputed that although plaintiff has been suspended from his
employment duties, he is receiving full pay and benefits. He is suffering
no financial loss whatsoever. Furthermore, there appears to be no
legitimate issue that plaintiff's present speech rights are now being
curtailed. Since plaintiff is not actively engaged in employment with the
School District, it would seem that all of his comments and remarks, if
any, are outside the work place. Furthermore, the speech that plaintiff
claims resulted in the allegedly retaliatory charges occurred many months
ago about a proposal and plan that has long since been approved by the
local electorate in a referendum. Plaintiff has requested damages as part
of the federal lawsuit, and in light of plaintiff's employment status and
his continued receipt of his full salary, I do not believe that plaintiff
has established the requisite irreparable harm to warrant injunctive
Defendants also contend that the Court should abstain from exercising
jurisdiction under the doctrine of Younger v. Harris, 401 U.S. 37
(1971). In this circuit, in order to invoke Younger abstention, the
following three questions must be affirmatively resolved: "1) whether
there is an ongoing state proceeding; 2) whether an important state
interest is involved; and 3) whether the federal plaintiff has an
adequate opportunity for judicial review of his constitutional claims
during or after the proceeding." Christ the King Regional High School v.
Culvert, 815 F.2d 219, 224 (2d Cir.), cert. denied, 484 U.S. 830 (1987).
See also CECOS Int'l, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir. 1990).
Younger abstention "derives from the recognition `that a pending state
proceeding, in all but unusual cases, would provide the federal plaintiff
with the necessary vehicle for vindicating his constitutional rights . .
.'" Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178, 183 (2d
Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 193 (1991) (quoting Steffel
v. Thompson, 415 U.S. 452, 460 (1974)). Moreover, the Second Circuit has
. . . that the Younger abstention doctrine requires
that federal courts abstain from considering section
1983 claims that are the subject of ongoing state
. . . civil proceedings which involve vital state
interests, when those proceedings provide an adequate
opportunity to raise the federal claims. See, e.g.,
Middlesex County Ethics Comm. v. Garden State Bar
Assoc., 457 U.S. 423, 431-32, 102 S.Ct. 2515, 2521, 73
L.Ed.2d 116 (1982). That doctrine is animated by
comity concerns which override section 1983's
expansive scope and which are not applicable in the
absence of such an ongoing state proceeding or when a
federal injunction would not impinge on vital state
DeSario v. Thomas, 139 F.3d 80, 86, n. 3 (2d Cir.), vacated on other
grounds, sub nom. Slekis v. Thomas, 525 U.S. 1098, 119 S.Ct. 864 (1999).
In the instant case, it is clear that there is an ongoing state
proceeding. Once plaintiff received the disciplinary charges, he elected
under Education Law § 3020-a to request a hearing before an
arbitrator. At oral argument, the parties advised that an arbitrator has
been selected and I have been advised that the hearing
is scheduled to convene on February 25, 2002.
In addition, it cannot be denied that there are vital state interests
involved in this matter. It has long been recognized that matters
involving schools, and the discipline of students and teachers are
principally matters of local concern, and that the state has vital
interests in maintaining the proper and orderly functioning of its local
schools. Generally, this is not a matter for federal involvement.
Next, I am not convinced that plaintiff lacks an adequate opportunity
to raise the federal claims now advanced here in federal court. It is
clear from plaintiff's papers and from oral argument that the claims
brought in federal court, that is, retaliation, pretext and acts
intending to quash or chill plaintiff's speech, are the same defenses
that will be raised in the state disciplinary proceeding that is now
pending. It is clear that plaintiff will defend the School District's
charges and attempt to point out that there was no substantial basis for
the charges because they were brought as a pretext and in retaliation for
otherwise protected speech. I find, and plaintiff does not seriously
dispute, that these constitutional claims and issues can be raised before
the arbitrator and certainly can be raised in any state court proceeding
that may occur under Article 75 should either side suffer an adverse
decision. See Manna v. Greenburgh #11 School Dist., 2 F. Supp.2d 461, 469
(S.D.N.Y. 1998) (applying Younger abstention doctrine, and noting that
teacher's "federal rights will be adequately protected in the state
proceedings"). It may well be that plaintiff prevails on these matters by
dint of the constitutional claims raised either before the arbitrator or
in a subsequent court proceeding. Although this Court certainly
recognizes the importance of resolving constitutional claims and alleged
deprivations brought under Section 1983, there are strong principles of
comity that counsel against federal court involvement at this time.
Although plaintiff suggests that this is the unusual case which
warrants an exception to the general Younger doctrine, I believe that
plaintiff has failed to make that case. It is clear from plaintiff's
papers and arguments that he believes the adverse action was in
retaliation for his speaking on a matter of controversy. On the other
hand, defendants maintain just as vigorously that the evidence
demonstrates that plaintiff's speech was inconsequential and that other
serious issues of insubordination existed prior to, during, and after the
public comments of plaintiff. To resolve this clear conflict between the
parties would require the Court to decide the very issues that are now
before the arbitrator for resolution pursuant to state statute and the
collective bargaining agreement between the parties.
Plaintiff's motion for a preliminary injunction is denied. IT IS SO