| Matter of Watt (East Greenbush Cent. School Dist.) |
| 2011 NY Slip Op 04795 [85 AD3d 1357] |
| June 9, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between Bernard Watt, Appellant,and East Greenbush Central School District, Respondent. |
—[*1] Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse (Henry F. Sobota ofcounsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Nichols, J.), entered July 16, 2010in Columbia County, which denied petitioner's application pursuant to CPLR 7511 to vacate anarbitration award.
Petitioner was a tenured physical education teacher employed by respondent. As a result oftwo incidents, respondent filed charges against petitioner pursuant to Education Law §3020-a. A Hearing Officer found petitioner guilty of two charges and recommended terminationof his employment. After respondent implemented that recommendation, petitioner commencedthis proceeding seeking to vacate the arbitration award. Supreme Court denied that applicationand confirmed the award (see CPLR 7511 [e]). Petitioner appeals.
Courts must review a Hearing Officer's determination pursuant to CPLR 7511 (seeEducation Law § 3020-a [5]), which permits vacatur of an award on grounds ofmisconduct, abuse of power or procedural defects (see CPLR 7511 [b] [1]). "[W]here, ashere, the parties are forced to engage in compulsory arbitration," as opposed to voluntaryarbitration, courts must ensure that the award comports with due process and is supported byadequate evidence (Matter of Bernstein [Norwich City School Dist. Bd. of Educ.], 282AD2d 70, 73 [2001], lv dismissed 96 NY2d 937 [2001]; see Matter of Carroll[Pirkle], 296 AD2d 755, 756 [2002], lv dismissed 98 NY2d 764 [2002]). Whenconducting our review, we must accept the Hearing Officer's credibility determinations (see Lackow v Department of Educ. [or"Board"] of City of N.Y., 51 AD3d 563, 568 [2008]).
Supreme Court correctly upheld the Hearing Officer's finding that petitioner was guilty ofinappropriate sexual conduct. A female student testified that during a basketball drill inpetitioner's class, he bumped into her. Petitioner then said to her three times, "I'm going to getyou" while moving his hands toward her in a grabbing gesture, twice touching her breasts. TheHearing Officer found this witness credible, noting that her testimony was consistent with herprior written statements. Several other student witnesses attested to all or part of this incident; theHearing Officer found them all credible, outweighing petitioner's denial of the incident.Petitioner argues that the Hearing Officer found his touching of the female student's breastsunintentional, rendering irrational the determination of sexual misconduct. The Hearing Officerdid not explicitly find petitioner's touching of the breasts either intentional or unintentional.Instead, the Hearing Officer found that even if petitioner did not intend to touch her breasts, hisconduct in making grabbing gestures toward her chest, along with his comments at the time, wereintentional, inappropriate and sexual in nature, and that this conduct led to and was exacerbatedby his contact with her breasts. Finding petitioner guilty of a charge of conduct unbecoming ateacher based upon this conclusion is rational, and is consistent with the state's public policy toprotect minors from harmful sexualized conduct by teachers (see Matter of Binghamton City School Dist. [Peacock], 33 AD3d1074, 1076 [2006], appeal dismissed 8 NY3d 840 [2007]).
Supreme Court also correctly upheld the Hearing Officer's finding that petitioner was guiltyof making inappropriate remarks regarding a student's ethnicity. A male student testified thatduring an in-class soccer drill, after petitioner had a discussion with the student concerning hisethnicity and heritage, petitioner yelled, "hey, Hispanic kid, run like you're running to theborder." The Hearing Officer discounted the "border" portion of the comment, noting uncertaintyas to whether petitioner was inappropriately referring to an international border or referring to theborder of the soccer field. Crediting the testimony of the male student and two other studentswho testified similarly, the Hearing Officer found that calling the student "Hispanic kid" wassufficient to establish petitioner's guilt of conduct unbecoming a teacher.
We reject petitioner's assertion that this statement (if made, because he denies making it) wasconstitutionally protected speech, for which he cannot be punished. The free speech rights ofschool employees are not violated when a school district imposes discipline on such employeesfor directing ethnic slurs or disparaging comments towards students in class (see Garcetti vCeballos, 547 US 410, 418-420 [2006]; Pickering v Board of Ed. of Township HighSchool Dist. 205, Will Cty., 391 US 563, 572-573 [1968]; see also Matter of Shane EE., 48 AD3d946, 946-947 [2008]; compare Matter of New York State Law Enforcement OfficersUnion, Council 82, AFSCME, AFL-CIO [State of New York], 255 AD2d 54, 57-58 [1999],affd 94 NY2d 321 [1999]). The ethnic comment here was deemed offensive orembarrassing by several students, and was the proper subject of discipline against petitioner.
Petitioner's disciplinary record includes several prior situations where he was warned ordisciplined for making inappropriate comments to students. Considering that record, along withthe public policy of protecting students from offensive and harmful conduct by adults, especiallyschool employees (see Matter of Binghamton City School Dist. [Peacock], 33 AD3d at1076), [*2]termination of petitioner's employment was notshocking or disproportionate to the offenses (see Lackow v Department of Educ. [or "Board"]of City of N.Y., 51 AD3d at 569).
Rose, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.