| Matter of Douglas v New York City Bd./Dept. of Educ. |
| 2011 NY Slip Op 06397 [87 AD3d 856] |
| September 1, 2011 |
| Appellate Division, First Department |
| In the Matter of Keith Douglas, Appellant, v New YorkCity Board/Department of Education, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), forrespondent.
Order and judgment (one paper), Supreme Court, New York County (Marcy S. Friedman, J.),entered August 14, 2009, which granted respondent's cross motion to dismiss the petition broughtpursuant to, inter alia, CPLR article 75 seeking to vacate a post-hearing award sustainingspecifications of sexual misconduct and imposing a penalty of termination of petitioner'semployment as a New York City schoolteacher, affirmed, without costs.
The gravamen of petitioner's argument is that the testimonies of the students were incredibleas a matter of law due to inconsistencies the Hearing Officer ignored. Contrary to petitioner'scontention, however, the Hearing Officer carefully considered all of the testimony and resolvedany inconsistencies in favor of the students, as she was entitled to do (see Lackow v Department of Educ. [or"Board"] of City of N.Y., 51 AD3d 563, 568 [2008]). Petitioner offers no basis fordisturbing those findings that relied not only upon a finding that the students were credible, butalso upon a finding that petitioner's testimony was not credible (see Matter of Mercado v Kelly, 54AD3d 654, 655 [2008]).
The dissent's view that specification III is not supported by adequate evidence is unfounded.Although another student did confirm that petitioner told student D to sit up in class because shewas slouching in her chair, that other student did not confirm petitioner's version of the eventseither. The Hearing Officer, who heard the actual testimony from the witnesses, was entitled toweigh the testimony and make independent findings (see Matter of D'Augusta v Bratton,259 AD2d 287, 288 [1999] ["(t)o the extent that petitioner presented a different account of theevents, we note that credibility determinations are the province of the Hearing Officer"]).
The penalty of termination does not shock our sense of fairness. Petitioner's unacceptablebehavior compromised his ability to function as a teacher and the school's position in thecommunity. Further, "[a]cts of moral turpitude committed in the course of public employment arean appropriate ground for termination of even long-standing employees with good workhistories" (Matter of Chaplin v NewYork City Dept. of Educ., 48 AD3d 226, 227 [2008]).
We have considered petitioner's remaining arguments, including that the arbitration [*2]hearing was not in accord with due process, and find themunavailing. Concur—Sweeny, Moskowitz, Renwick and Richter, JJ.
Andrias, J.P., dissents in a memorandum as follows: Because I believe that specification III isnot supported by adequate evidence and must be vacated, I would remand the matter to theDepartment of Education for reconsideration of the penalty of termination imposed on petitioner,which was not mandatory or warranted in this case.
Petitioner is charged with conduct unbecoming a teacher. Specification I alleges that on May14, 2007, he asked student A whether she liked anyone or had a boyfriend; told her that she wasdressing sexy lately; asked her to touch her breast and demonstrated how he wanted her to dothat; and touched his genitals in front of her. Specification II alleges that on February 14, 2007,petitioner simulated a woman's breast with a balloon, which he squeezed while stating words tothe effect that "we got some chemistry going on," and that student D had "sweet stuff."Specification III alleges that on May 17, 2007, petitioner said to student D words to the effectthat the way she sat in class was sexy and turned him on. The Hearing Officer sustainedspecification I (except to the extent it was based on the allegation that petitioner asked student Aif she liked anyone) and specification III, and dismissed specification II.
Education Law § 3020-a (5) provides that judicial review of a hearing officer'sfindings must be conducted pursuant to CPLR 7511. However, where, as here, the parties aresubjected to compulsory arbitration, judicial scrutiny is greater than when parties voluntarilyarbitrate and "[t]he determination must be in accord with due process and supported by adequateevidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLRarticle 78" (Lackow v Department ofEduc. [or "Board"] of City of N.Y., 51 AD3d 563, 567 [2008]). The Court of Appealshas defined arbitrary and capricious as "action . . . without sound basis in reasonand . . . generally taken without regard to the facts" (Matter of Pell v Board ofEduc. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 231 [1974]).
As respondent concedes, the Hearing Officer correctly dismissed specification II based on thelong delay in reporting the alleged incident, the inconsistencies in the evidence, and the fact thatnone of the other students in the lab class confirmed that the incident occurred. While student Dwas identified in the specification and bill of particulars as the person to whom petitioner'sactions were directed, she in fact had no firsthand knowledge of the incident, and testified thatthe conduct was directed at student C, who told her about it after class.
Once the Hearing Officer dismissed specification II based in part on student D's admissionthat her statements to an investigator employed by the Special Commissioner of Investigation forthe New York City School District and to the school's principal that she was the victim of theconduct underlying specification II were false, the evidence was inadequate to sustainspecification III. Student D's material false statements as to specification II rendered her [*3]testimony as to specification III incredible. While I am cognizantthat the "maxim [of] falsus in uno falsus in omnibus" is permissive, not mandatory (see People v Barrett, 14 AD3d369, 369 [2005], quoting People v Becker, 215 NY 126, 144 [1915]), as withspecification II, student D's testimony was not corroborated by any of the other students in theclass that the investigator questioned, and the one student who was called as a witness at thehearing testified that petitioner told student D to sit up in class because she was slouching in herchair.
Because specification III should have been dismissed, the matter should be remanded for theimposition of a new penalty.
Education Law § 3020-a (4) (a) provides, in relevant part: "The written decision shallinclude the hearing officer's findings of fact on each charge, his or her conclusions with regard toeach charge based on said findings and shall state what penalty or other action, if any, shall betaken by the employing board . . . In those cases where a penalty is imposed, suchpenalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal.In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or shedeems appropriate, may impose upon the employee remedial action including but not limited toleaves of absence with or without pay, continuing education and/or study, a requirement that theemployee seek counseling or medical treatment or that the employee engage in any otherremedial or combination of remedial actions."
Where a punishment has been imposed, the test is "whether such punishment is sodisproportionate to the offense, in the light of all the circumstances, as to be shocking to one'ssense of fairness" (Matter of Pell, 34 NY2d at 233 [internal quotation marks omitted]). Asanction is shocking to one's sense of fairness if it "is so grave in its impact on the individualsubjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude ofthe individual, or to the harm or risk of harm to the agency or institution" (id. at 234).
Here, petitioner is being punished as if he were involved in a course of repetitive conductwhen in fact the Hearing Officer dismissed specification II and should have dismissedspecification III, which was not corroborated by any other student present and was based solelyon the allegations of the discredited complaining witness who had lied about specification II (compare Lackow v Department of Educ.[or "Board"] of City of N.Y., 51 AD3d 563, 569 [2008], supra [based on theprior warnings and the repetitive nature of the teacher's conduct, the penalty of dismissal was notso disproportionate as to shock the conscience]; Matter of Watt v E. Greenbush Cent. School Dist., 85 AD3d 1357,1359 [3d Dept 2011] [termination was not shocking or disproportionate where the petitioner'sdisciplinary record included several prior situations where he was warned or disciplined formaking inappropriate comments to students]).
Accepting that petitioner is guilty of specification I, there was no evidence of pressure orphysical contact. Unlike Lackow and Watt, petitioner, a tenured teacher, has a17-year unblemished record and has always received satisfactory evaluations. In addition toteaching chemistry, he served as a college advisor and taught honors classes, as well as theDaVinci program, involved herein. Petitioner also assisted students with the Intel sciencecompetition, coordinated Cardozo's science fair, supervised the chemistry Regents exams andhosted Cardozo's annual DaVinci open house, seeking to recruit honor students to the school.[*4]Petitioner's principal and assistant principal noted thatpetitioner was an "asset, not only to this [chemistry] department, but also to this school." Giventhese circumstances, the penalty of termination shocks the conscience (compare City School Dist. of the City ofN.Y. v McGraham, 75 AD3d 445 [2010] [penalty of 90-day suspension without pay andreassignment to a different school was reinstated where a female teacher had engaged in ongoinginappropriate behavior with a male student], mot to dismiss appeal denied 16 NY3d 735[2011]; Nreu v New York City Dept. of Educ., 25 Misc 3d 1209[A], 2009 NY Slip Op52007[U] [2009] [one-year suspension was upheld where a male teacher engaged in ongoinginappropriate behavior with a female student]).
Lastly, while I am constrained to agree that, giving deference to the Hearing Officer'scredibility determinations vis-à-vis student A and petitioner, specification I must besustained, I note that the evidence is weak. The complaining witness had a motive to lie and toseek retribution. Petitioner had told her she was at risk of being dismissed from the chemistryhonors (DaVinci) program. There was no independent evidence that the incident occurred,although it is alleged to have taken place in an open, public area with students and facultyconstantly going in and out. One witness, Ms. Rita Falkenstein, a biology lab specialist, cameinto the chemistry lab area where petitioner was tutoring student A and sat at the same table withthem for a long period of time. Testimony from her and other individuals who were presentduring this tutoring session failed to corroborate anything that would raise any suspicions thatanything out of the ordinary had occurred. While corroboration is not required, the lack of it hereis particularly troubling. As to the sequence of events, the complaining witness told twodiametrically different versions—at one point saying the petitioner rubbed himself whilehe made his offending comments and at another point saying that he rubbed himself sometimelater when the session was about to end.