Summary
In Matter of Haas v. New York City Dept. of Educ., 106 AD3d 620, 621 (1 st Dep't. 2013), a penalty of termination was upheld "in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed."
Summary of this case from Fox v. N.Y.C. Dep't of Educ.Opinion
2013-05-28
[1] The record contains adequate evidence to support the determination that petitioner was guilty of the specifications chargingher with pulling a chair out from underneath a kindergarten student and then kicking the student while he was on the floor, and that following the incident she directed the students who witnessed the incident not to discuss what they had observed. The Hearing Officer considered all of the testimony presented and no basis exists to disturb the credibility determinations made by the Hearing Officer ( see Matter of Douglas v. New York City Bd./Dept. of Educ., 87 A.D.3d 856, 857, 929 N.Y.S.2d 127 [1st Dept. 2011] ).
As petitioner failed to object to the admission of testimony regarding her attempts to persuade her coworkers to cover up her misconduct, and also failed to raise such issue in her petition, such issue is not preserved for our review ( see Matter of Cherry v. Horn, 66 A.D.3d 556, 557, 887 N.Y.S.2d 82 [1st Dept. 2009] ). In any event, petitioner's argument that she was denied due process because the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged is unavailing, since the Hearing Officer expressly based the penalty upon the charged misconduct ( compare Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d 470, 472–473, 884 N.Y.S.2d 39 [1st Dept. 2009] ).
Moreover, the penalty of termination does not shock one's sense of fairness, in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed. The record further shows that petitioner showed a lack of remorse for her actions ( see Cipollaro v. New York City Dept. of Educ., 83 A.D.3d 543, 544, 922 N.Y.S.2d 23 [1st Dept. 2011];compare Matter of Principe v. New York City Dept. of Educ., 94 A.D.3d 431, 941 N.Y.S.2d 574 [1st Dept. 2012], affd.20 N.Y.3d 963, 958 N.Y.S.2d 325, 982 N.E.2d 88 [2012] ).