| Lackow v Department of Educ. (or "Board") of City of N.Y. |
| 2008 NY Slip Op 04744 [51 AD3d 563] |
| May 27, 2008 |
| Appellate Division, First Department |
| Douglas Lackow, Respondent, v Department of Education(or "Board") of the City of New York et al., Appellants. |
—[*1] Gregory L. Hawthorne, Brooklyn, for respondent.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered January 30, 2007,which, to the extent appealed, granted the petition to the extent of vacating certain determinationsof teacher misconduct and remanded for imposition of a lesser penalty than termination ofemployment, unanimously reversed, on the law, without costs, the determinations reinstated withrespect to specifications III (c), (d), (g), (j), (k) and (l), the cross motion to dismiss granted, andthe petition dismissed.
At issue in this matter, brought pursuant to CPLR 7511 and 7803 and Education Law §3020-a (5), are Supreme Court's vacatur of findings of guilt on several specifications filed againstthe petitioner, Douglas Lackow, by respondent Department of Education of the City of NewYork (DOE) and its remand to the hearing officer for reconsideration of the penalty to beimposed by the DOE.
On December 3, 2004, petitioner, then employed by DOE as a tenured biology teacher,became the subject of an investigation of the Special Commissioner's Office for Investigationbased on an incident in which a student reported to the assistant principal that she had yelled out"Lackow sucks," and petitioner responded, "No, you suck, well that's what it says in the boys'bathroom."
In response to this reported incident, a DOE Special Investigator interviewed the principal,assistant principal, seven students, a teacher and a teaching assistant. The investigation uneartheda number of complaints about petitioner's use of sexual innuendo in high school classes hetaught, and the First Deputy Commissioner prepared a report concluding that the claims weresubstantiated and that termination was proper. In or about February 2005, petitioner was removedfrom the classroom and reassigned to a DOE facility in Staten Island.
On or about April 19, 2005, DOE preferred disciplinary charges, pursuant to Education Law§ 3020-a, consisting of 16 specifications. DOE alleged that petitioner had "engaged ininsubordination, sexual harassment, used inappropriate language and engaged in conductunbecoming a teacher." A compulsory arbitration hearing was held pursuant to Education Law§ 3020-a. Five of the specifications were withdrawn before the hearing and two weredismissed by the hearing officer in a decision dated February 24, 2006. The remaining ninespecifications [*2]were sustained, and a penalty of discharge wasimposed.
Petitioner commenced this proceeding seeking vacatur of the hearing officer's findings or, inthe alternative, a penalty short of termination. DOE cross-moved to dismiss the proceeding andto confirm the arbitration determination. Supreme Court vacated six of the specifications,sustained three others, and remanded the matter to the hearing officer to reconsider the penaltybecause it found the penalty of dismissal so disproportionate to petitioner's conduct as to shockthe court's sense of fairness and constitute an abuse of discretion. We reverse, reinstate thehearing officer's findings and recommended penalty, and grant the cross motion to dismiss thepetition and confirm the determination.
Initially, as noted, three of the specifications sustained by the hearing officer were notvacated by the court. The first was specification I (a), which alleged that petitioner had made acomment about the color of a student's underwear. In specification II, petitioner was charged withsaying, in response to a female student's comment that "[petitioner sucks]," "No, you suck, wellthat's what it says in the boys' bathroom." The third charge, specification III (a), alleged that,while teaching with a model of female reproductive organs, petitioner said to a male studentwords to the effect "that [the student] would never see one, so enjoy it, referring to a woman'svagina." Although the court did not disturb those findings, it concluded that, within the context inwhich each of these comments was made, the language, while inappropriate, did not justify thepenalty of dismissal, which the court found to be disproportionate to the offenses and shocking toits sense of fairness.
The six other specifications that the hearing officer sustained, but which the court vacated,reflect a similar pattern of inappropriate comments. In specification III (c), petitioner was chargedwith saying to a student words to the effect "I don't want to hear stories of you with your legs upin the air." The court found that the comment was made in the context of a reprimand to a femalestudent who was describing to a fellow student how "[a] boy put my legs in the air like this" and,then, for dramatic effect, actually lifted her legs up over her desk and then into the air. The courtconcluded that under the circumstances the comment did not constitute language or behaviorunbecoming a teacher without explaining why the language used by petitioner was appropriate,especially when he was admonishing a teenage girl.
In specification III (d), petitioner was charged with saying, in the course of a conversationabout masturbation, words to the effect "that there are some people in this class that would neverleave their rooms." The court found that the comment did not constitute language unbecoming ateacher since it was made during a classroom discussion of safe sex, and observed that petitionertestified that he had actually said, "there are people who will misunderstand this information andthey may not leave the house." The court's acceptance of petitioner's explanation that this was aharmless joke is inconsistent with the repetitive pattern of petitioner's sexually-laced commentsto a gathering of impressionable adolescents.
Specification III (g) charged petitioner with talking to students about how many times heejaculates. In vacating the finding of guilt with regard to this specification, the court found thatthere was no evidentiary support for the hearing examiner's conclusion, despite the testimony of aparaprofessional that she heard petitioner discuss the number of times he ejaculated whilemasturbating.
In specification III (j), petitioner was charged with talking to the students about having sexwith animals. Petitioner testified that, in a class on human sexual reproduction, one of thestudents asked if sex between an animal and a human being would result in a "half animal, half[*3]human." As a result, petitioner testified, he entered into adiscussion of bestiality, "a sexual disorder in which people want to have sex with animals." Heclaimed that the exchange was limited to the scientific aspects of the process and the geneticconsequences of such intercourse. The court found that this colloquy did not constitute conductunbecoming a teacher, without elaborating on how the subject of, as the court phrased it,"cross-fertilization" can also properly encompass a discussion of bestiality. The court alsoignored testimony that petitioner was overheard saying "animals don't enjoy having sex and that'swhy they make strange noises."
Specification III (k) charged petitioner with talking to students about necrophilia. Petitionertestified that he discussed that subject only in response to students' questions. The hearing officerrejected petitioner's explanation, stating that the "suggest[ion] that discussion[ ] on [the] subject[] [of] necrophilia . . . [was an] appropriate or legitimate subject[ ] of discussion isbeyond comprehension." The court, however, found that the "only" evidence supporting thisspecification was testimony from a teacher that she overheard petitioner telling a group ofstudents about a man who was arrested for having sex with a dead body in the morgue of anupstate college town. That "only" one witness provided testimony supporting this specificationwas an insufficient basis upon which to disturb the findings of the hearing officer; the testimonyprovided a rational basis for the hearing officer's conclusion that petitioner discussed the subjectand that the discussion was inappropriate.
In the last charge, specification III (l), petitioner was charged with talking to students aboutwomen having multiple orgasms. The court vacated the finding of guilt, observing that petitionertestified that the issue was raised by a student during a discussion of the male and femalereproductive systems. When the student queried as to why men cannot have multiple orgasms,petitioner claimed that he explained the biological reasons, i.e., that a certain period of time isrequired for the production of male sperm after ejaculation. In vacating the finding the courtstated, "[DOE] has shown no rational basis for why class discussion of orgasm and ejaculationconstitutes language unbecoming a school teacher in the context of instruction on human sexualreproduction." Yet, as the assistant principal testified, the course was designed to preparestudents for the Regents biology exam, with limited material on human reproduction.
Education Law § 3020-a (5) provides that judicial review of a hearing officer'sfindings must be conducted pursuant to CPLR 7511. Under such review an award may only bevacated on a showing of "misconduct, bias, excess of power or procedural defects" (Austin vBoard of Educ. of City School Dist. of City of N.Y., 280 AD2d 365, 365 [2001]).Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny isstricter than that for a determination rendered where the parties have submitted to voluntaryarbitration (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89NY2d 214, 223 [1996]; Cigna Prop. &Cas. v Liberty Mut. Ins. Co., 12 AD3d 198, 199 [2004]). The determination must be inaccord with due process and supported by adequate evidence, and must also be rational andsatisfy the arbitrary and capricious standards of CPLR article 78 (Motor Veh. Mfrs. Assn. ofU.S. v State of New York, 75 NY2d 175, 186 [1990]). The party challenging an arbitrationdetermination has the burden of showing its invalidity (Caso v Coffey, 41 NY2d 153, 159[1976]).
Here, the record is clear that petitioner made the statements alleged in the specifications.Although the court found that some of the statements were contextually inoffensive, that is not aproper basis for vacating the findings that they had been made. Petitioner was charged withmaking the statements, and the record supports the hearing officer's conclusions that he madethem. Whether the making of the statements, individually or in the aggregate, justified [*4]petitioner's removal is a separate issue.
Not only did the court err in seeking to find justifications for the statements, in at least oneinstance it paid no heed to highly relevant testimony. The court found that petitioner did notmake the statement concerning the number of times he ejaculated by referencing one witness'stestimony, but apparently overlooked the testimony of another witness clearly stating that sheheard him discussing his ejaculations.
Moreover, the court suggested that some of the students were disciplinary problems, and thustheir credibility was suspect. A hearing officer's determinations of credibility, however, arelargely unreviewable because the hearing officer observed the witnesses and was "able toperceive the inflections, the pauses, the glances and gestures—all the nuances of speechand manner that combine to form an impression of either candor or deception" (Matter ofBerenhaus v Ward, 70 NY2d 436, 443 [1987]). The record does not support the inferencethat the witnesses upon whose testimony the hearing officer relied were incredible as a matter oflaw. Thus, it was improper for the court to credit petitioner's testimony to the exclusion of theaccounts given by the other witnesses.
Furthermore, petitioner was teaching a biology class, and was not a student counselorempowered to give advice on teenage sexuality. That certain questions would arise in a biologyclass that had some relationship to the course but were not part of the curriculum isunderstandable. However, petitioner had been warned by his assistant principal in conversationsand writing about the inappropriateness of his behavior on at least three prior occasions. Hischoice of language, in any event, is inexcusable. Petitioner's argument that he had not beenwarned of the possibility of dismissal rings hollow. Even without a warning about the possibilityof dismissal, certain conduct, such as petitioner's, is clearly unacceptable. Moreover, beingadmonished not to repeat prior behavior patterns was sufficient warning.
The standard for reviewing a penalty imposed after a hearing pursuant to Education Law§ 3020-a is whether the punishment of dismissal was so disproportionate to the offenses asto be shocking to the court's sense of fairness (Matter of Harris v Mechanicville Cent. SchoolDist., 45 NY2d 279, 285 [1978]; Matter of Pell v Board of Educ. of Union Free SchoolDist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222[1974]).
In view of petitioner's proven misconduct, and that he had three times been previouslywarned in writing about the inappropriateness of his behavior, the penalty of dismissal does notshock the conscience. Of particular concern is the repetitive nature of petitioner's misconduct.Petitioner continued in a pattern of conduct that was clearly irresponsible and inappropriatewithin the classroom setting. Discussing his own ejaculations, admonishing a student aboutputting her legs in the air, telling another student that he should take a good look at a diagram ofa woman's vagina because he will not see one otherwise, talking about the color of a student'sunderwear, and responding to a student's inappropriate comment by remarking about seeing hername on bathroom walls, constitute more than isolated, aberrant behavior. Rather, such conduct[*5]is indicative of a continued pattern of offensive behavior thatreflect an inability to understand the necessary separation between a teacher and his students.Concur—Friedman, J.P., Gonzalez, McGuire and Moskowitz, JJ.