Opinion
No. CV 09 4039902S
April 1, 2011
MEMORANDUM OF DECISION RE ADMINISTRATIVE APPEAL
PROCEDURAL HISTORY
The plaintiff in this administrative appeal, Philip Bonang, was a tenured teacher at the Sound School in New Haven. On February 8, 2008, the plaintiff was placed on paid administrative leave, pending an investigation of claims of the plaintiff's sexual harassment and inappropriate conversations with students. (Bd.'s Procedural Statement ¶ 1.) On June 6, 2008, the superintendent of schools, Dr. Reginald Mayo, wrote to the plaintiff to inform him that the Board was considering terminating the plaintiff's employment contract and advising him of his rights under General Statutes § 10-151. (Joint Ex. 1.) The plaintiff requested a hearing on June 25, 2008. (Joint Ex. 4.) The impartial tripartate panel held hearings on July 21, 2008, September 22, 2008; October 31, 2008; November 21, 2008; December 18, 2008; and January 30, 2009. The panel made fifty-eight factual findings, including the following unchallenged findings:
With respect to Student 1: Student 1 testified that the plaintiff told her that she had a nice body because she worked out and played sports, and that hearing that comment made her the most uncomfortable she has ever been in her life. (Bd.'s Finding 1; Hr'g Tr. vol. 1, 28-31.) She testified that the plaintiff asked another female student "how low will that skirt go." (Bd.'s Finding 9; Hr'g Tr. vol. 1, 36-39.)
With respect to Student 2: Student 2 testified that the plaintiff told her and Student 6 that they had "athletic" and "nice" bodies. (Bd.'s Finding 11; Hr'g Tr. vol. 1, 65.) She testified that the plaintiff massaged her shoulders without permission while she worked on a class assignment at a computer. (Bd.'s Finding 14; Hr'g Tr. vol. 1, 66-70.) Student 2 testified that the plaintiff asked her for a cookie while she had a package of cookies down the front of her shirt. (Bd.'s Finding 16; Hr'g Tr. vol. 1, 74-76.)
With respect to Student 6: Student 6 testified that the plaintiff stated that she and Student 2 were "two of the best looking girls in class with some of the best bodies." (Bd.'s Finding 20; Hr'g Tr. vol. 2, 10.) She testified about an incident where the plaintiff looked directly at her and told her that he was "turned on" as she bent over to work with a drill press. (Bd.'s Findings 24, 25; Hr'g Tr. vol. 2, 13-14.) She also testified that the plaintiff discussed his personal life and divorce while alone with her. (Bd.'s Finding 19; Hr'g Tr. vol. 1, 74-76.)
With respect to Student 12, Student 12 testified that he is dyslexic. He testified that the plaintiff held a book in front of a class and told him that he was "not going anywhere" until he read the name of the book to the class. He eventually left the room. He reported this incident to his father. (Bd.'s Finding 32; Hr'g Tr. vol. 2, 82-84.)
With respect to paraprofessional Melissa Kwalek, Student 12 testified that when Kwalek first met the plaintiff, the plaintiff looked her up and down. (Bd.'s Finding 30; Hr'g Tr. vol. 2, 75.) Student 12 testified that the plaintiff stated to him, "you could get with that," and "I bet you have fantasies about her." (Bd.'s Finding 30; Hr'g Tr. vol. 2, 76.) When student 12 protested, the plaintiff said, "no, you could do that," and that Kwalek was "hot." (Bd.'s Finding 30; Hr'g Tr. vol. 3, 79.)
Students 16 and 17 testified that the plaintiff said to them "there's a lot of fucking AIDS out there . . . [y]ou might as well wear two condoms." (Bd.'s Finding 33; Hr'g Tr. vol. 4, 7-8.) Student 16 testified that the plaintiff told him that a boat's chine "is like the part of your girlfriend that you want to get at. It is all soft and smooth. Think of the waterline as her skirt." (Bd.'s Finding 38; Hr'g Tr. vol. 4, 49.) The plaintiff used the word "fuck" in class. (Bd.'s Findings 18, and 31; Hr'g Tr. vol. 1, 82-82, vol. 2, 20, 95, vol. 3, 63-63; 78, vol. 4, 60-61, 66.) Student 10 testified that the plaintiff told her she had nice legs. (Bd.'s Finding 40; Hr'g Tr. vol. 4, 33.) The plaintiff told a student with an eating disorder that she could not eat in class because she would get fat. (Bd.'s finding 42.)
The panel filed its findings and recommendations on June 25, 2009. On August 6, 2009, the New Haven Board of Education voted unanimously to adopt the factual findings of the panel. On that date, the Board voted to terminate the plaintiff's employment on the grounds that he had engaged in moral misconduct and that there was other due and sufficient cause to terminate his employment.
The plaintiff appealed the Board's decision to this court on August 27, 2009. The plaintiff filed his trial brief on May 7, 2010. The Board filed its brief on May 19, 2010. The court conducted a trial on the matter on February 7, 2011.
ANALYSIS
The procedure for termination of a tenured teacher in Connecticut is outlined in General Statutes § 10-151(d). "When considering termination of a tenured teacher's employment contract, a school board acts, like an administrative agency, in a quasi-judicial capacity . . . A school board has discretion to accept or reject a recommendation from an impartial hearing panel, though it is bound by the panel's findings of fact unless unsupported by the evidence . . . The board is bound by the panel's findings of fact, but not by its legal conclusions or by its recommendations." (Citations omitted; internal quotation marks omitted.) Rogers v. Board of Education, 252 Conn. 753, 760, 749 A.2d 1173 (2000).
General Statutes, § 10-151(d) provides: "The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence, provided, if a teacher is notified on or after July 1, 2000, that termination is under consideration due to incompetence, the determination of incompetence is based on evaluation of the teacher using teacher evaluation guidelines established pursuant to section 10-151b; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees' representative organization, or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. Nothing in this section or in any other section of the general statutes or of any special act shall preclude a board of education from making an agreement with an exclusive bargaining representative which contains a recall provision. Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher's contract is under consideration and, upon written request filed by such teacher with the superintendent, within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the reasons therefor. Within twenty days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing. A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated. Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension, not to exceed fifteen days (A) before the board of education or a subcommittee of the board, (B) if indicated in such request or if designated by the board before an impartial hearing panel, or (C) if the parties mutually agree, before a single impartial hearing officer chosen by the teacher and the superintendent. If the parties are unable to agree upon the choice of a hearing officer within five days after their decision to use a hearing officer, the hearing shall be held before the board or panel, as the case may be. The impartial hearing panel shall consist of three members appointed as follows: The superintendent shall appoint one panel member, the teacher shall appoint one panel member, and those two panel members shall choose a third, who shall serve as chairperson. If the two panel members are unable to agree upon the choice of a third panel member within five days after the decision to use a hearing panel, the third panel member shall be selected with the assistance of the American Arbitration Association using its expedited selection process and in accordance with its rules for selection of a neutral arbitrator in grievance arbitration. If the third panel member is not selected with the assistance of such association within five days, the hearing shall be held before the board of education or a subcommittee of the board. Within seventy-five days after receipt of the request for a hearing, the impartial hearing panel, subcommittee of the board or hearing officer, unless the parties mutually agree to an extension not to exceed fifteen days, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel, subcommittee or hearing officer. Each party shall pay the fee of the panel member selected by it and shall share equally the fee of the third panel member or hearing officer and all other costs incidental to the hearing. If the hearing is before the board of education, the board shall render its decision within fifteen days after the close of such hearing and shall send a copy of its decision to the teacher. The hearing shall be public if the teacher so requests or the board, subcommittee, hearing officer or panel so designates. The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private. A copy of a transcript of the proceedings of the hearing shall be furnished by the board of education, upon written request by the teacher within fifteen days after the board's decision, provided the teacher shall assume the cost of any such copy. Nothing herein contained shall deprive a board of education or superintendent of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section."
After a school board has terminated a tenured teacher, that teacher's recourse to the Superior Court is outlined in General Statutes § 10-151(e). "Judicial review of the school board's administrative decision follows established principles of administrative law. The court's ultimate duty is only to decide whether, in light of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts." (Internal quotation marks omitted.) Rogers v. Board of Education, supra, 252 Conn. 761.
General Statutes § 10-151(e) provides: "Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, within thirty days of such decision, to the Superior Court. Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court. Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable. The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing and the minutes of board of education meetings relating to such termination, including the vote of the board on the termination, together with such other documents, or certified copies thereof, as shall constitute the record of the case. The court, upon such appeal, shall review the proceedings of such hearing. The court, upon such appeal and hearing thereon, may affirm or reverse the decision appealed from in accordance with subsection (j) of section 4-183. Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from."
The plaintiff challenges several of the board's findings of fact. He argues that they are not supported by substantial evidence in the record. He further argues that without the challenged factual findings, there is not sufficient evidence in the record to support the Board's ultimate conclusion that there was due and sufficient cause to terminate his employment and that he engaged in moral misconduct. Finally, the plaintiff argues that he was denied his right to due process because his termination was based on vaguely alleged conduct and that he had no opportunity to correct that conduct.
The Board replies that almost all of the factual findings challenged by the plaintiff are supported by record testimony. It agrees that one of the challenged factual findings is not fully supported by the evidence but argues the mistake is minor. It argues that the board's factual findings are sufficient for the board to have reached a reasonable conclusion that the plaintiff could be terminated for other due and sufficient cause. They further argue that the plaintiff was not denied due process because he was informed under the statute that the board was considering his termination as a tenured teacher for engaging in moral misconduct, insubordination, and other due and sufficient case. He was also notified, by a revised notice, of the particular factual bases for the consideration. He was then represented by counsel at the termination hearing and had an opportunity to testify and cross examine witnesses.
A
Board's Findings of Fact
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and [provides] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and [that] the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Rogers v. Board of Education, supra, 252 Conn. 768.
Factual Finding Three
First, the plaintiff challenges the panel's factual finding number three. Factual finding number three reads: "On October 2003, Superintendent of Schools Dr. Reginald Mayo suspended Mr. Bonang for 20 days and transferred him out of the Sound School for using "hell" and "shit" and "fucking" in front of students, making reference to their sexuality, and roughly grabbing a student by her life vest. These offenses showed a pattern of using profanity in front of students, making inappropriate sexual comments to students, and an escalating level of anger."
The plaintiff argues that the finding's characterization of Bonang's behavior has a "pattern" of misbehavior is not supported by evidence in the record. The plaintiff argues that the arbitrator assigned to his first disciplinary appeal, Nancy Peace, rejected the board's contentions regarding Bonang's alleged comments regarding male students' sexuality and his alleged "escalating level of anger." The Board counters that prior to the 2003 suspension, the principal of the Sound School, Stephen Pynn, counseled the plaintiff on multiple occasions regarding his anger management problems and use of profanity in the classroom. (Def. Ex. 13, pp. 12, 13, 23.) Furthermore, Peace conditioned the plaintiff's return from his suspension on his successfully completing an anger management program. (Def. Ex. 13, pp. 11, 29.)
There is substantial evidence in the record to support the Board's finding that the plaintiff exhibited a pattern of using profanity in front of students; making inappropriate sexual comments to students; and an escalating level of anger. With respect to the plaintiffs' use of profanity, he does not contest that there is evidence in the record that, prior to his 2003 suspension, he used profanity in class.
With respect to the use of inappropriate sexual comments to students, Peace's 2004 arbitration findings provide substantial evidence for the Board's finding that the plaintiff engaged in a pattern of making inappropriate sexual comments to students. Peace's findings include a finding that "it seems more likely than not that Mr. Bonang did make an inappropriate remark of some sort." (Def. Ex. 13, p. 26.) Furthermore, Peace's findings include a reference to discipline of the plaintiff for "mak[ing] inappropriate references to the boys' sexuality." (Def. Ex. 13, p. 27.) Those findings are substantial evidence that the plaintiff made inappropriate sexual comments to students before the October 2003, disciplinary hearing.
With respect to the plaintiff's escalating level of anger, Peace's arbitration findings show that the plaintiff demonstrated escalating anger management problems. On December 11, 2000, Pynn sent the plaintiff a memorandum involving "a loud and angry exchange between Mr. Bonang and another teacher in the presence of students." (Def. Ex. 13, p. 12.) On September 18, 2001, Pynn sent a memorandum to the plaintiff that "focused . . . on Bonang's allowing his anger to control his emotions, causing him to over-react to an incident that could have been resolved in a professional manner." (Def. Ex. 13, p. 13.) On October 16, 2003, the plaintiff unleashed a "tirade" that rose "to the level of being verbally abusive." (Def. Ex. 13, p. 25.) Together, these findings provide substantial evidence for the Board's finding of an escalating level of anger on the plaintiff's part.
Factual Finding Four
Second, the plaintiff challenges the Board's fourth factual finding. That finding reads: "On August 31, 2004, Arbitrator Nancy E. Peace reduced [the plaintiff's 20 day suspension] to a 5 day suspension `for failure to control his temper,' for making inappropriate comments to two male students, (he used profanity and questioned their sexuality) and a written warning for use of profanity. She conditioned his reinstatement to his completing an anger management program. She documented that the Principal of Sound School, Stephen Pynn, had over the years many conversations with Mr. Bonang about his not maintaining professional behavior with students, his use of profanity, and his failure to control his temper; Mr. Pynn stated his belief to the arbitrator that Mr. Bonang was `creating a school culture that was not what should be modeled for students' and the arbitrator did not disagree."
The plaintiff argues that while the board said Pierce found that the plaintiff had questioned some of his male students' sexuality, in reality, Pierce found that it was "impossible to tell" whether the plaintiff had made such a comment. The plaintiff claims that his first discipline by the school was due to his use of profanity rather than his alleged sexual comments as finding four suggests. The Board counters by arguing that the arbitrator found it more likely than not that the plaintiff made an inappropriate sexual remark to the students in question. The Board further argues that the arbitrator's imposition of a five-day suspension, while reduced from the original twenty-day suspension was based in part on her finding that the plaintiff made such an inappropriate remark to two male students.
There is substantial evidence in the record to support the Board's finding that the plaintiff's 2003 suspension was based in part on the plaintiff's making a remark questioning the sexual orientation of two male students. Peace's report notes differing accounts of an encounter between the plaintiff and two male students in October 2003. (Def. Ex. 13, pp. 3-5.) The report recounts that the students alleged that the plaintiff implied they were homosexuals, but that the plaintiff disputed that version of events. Id. The report ultimately concludes: "It is also impossible to tell whether or not Mr. Bonang's comments implied that the boys were homosexuals or whether they merely imagined this. Given the level of anger and RA's admission that the encounter ended by the boys telling Mr. Bonang to `go fuck himself,' it seems more likely than not that Mr. Bonang did make an inappropriate remark of some sort . . . I have also taken into account the possibility that the boys exaggerated the tone of this exchange." Id., 26.
In addition to the ultimate conclusion of Peace, however, the Board also considered additional evidence regarding the October 2003, incident. The defendant introduced a memorandum, written October 21, 2003, from Pynn to Starlet Wilder. That memorandum recounted Pynn's meeting with the two male students and outlined their description of the encounter. (Def. Ex. 10.) Furthermore, Pynn testified at the hearing as to his recollection of the students' statements to him in 2003. (Hr'g Tr. vol. 4, 69-70.) While Peace failed to come to a conclusion regarding the true nature of the plaintiff's comments to the students in 2003, there is substantial evidence in the record from which the Board in this case could have found that the plaintiff's comment questioned the students' sexual orientation.
Factual Finding Twenty-Eight
Third, the plaintiff challenges the Board's factual finding twenty-eight. That finding reads: "Mr. Bonang in [Student 3's] class frequently used the `f word."
The plaintiff challenges the board's characterization of the frequency with which Bonang used the word "fuck" in class. The plaintiff argues that the board characterizes Student 3's testimony as having Bonang say "fuck" "frequently," but the plaintiff argues that in reality, Student 3 testified that Bonang said "fuck" "a few times."
The defendant concedes that the panel's finding that the plaintiff used the word "fuck" "frequently" was an overstatement of the record testimony. The defendant argues that such a mischaracterization is irrelevant, given that a single use of profanity in a high school classroom is too many.
There is not substantial evidence in the record to support the Board's factual finding twenty-eight. Student 3 testified that she heard the plaintiff use "curse words" in class "a couple of times" and that "the curse words that I heard were mostly the F word." (Hr'g Tr. vol. 1, 82-83.) At the most, then, Student 3 heard the plaintiff use the word "fuck" in class "a couple of times." The board's characterization of that testimony as the plaintiff's using the word "fuck" in class "frequently" is therefore not supported by substantial evidence in the record.
Factual Finding Forty-Seven
Fourth, the plaintiff challenges the Board's factual finding forty-seven. That finding reads: "In December 2007, Mr. Bonang was placed on a leave of absence and was required to submit to a fitness for duty assessment because of his yelling and becoming angry in class. Mr. Bonang returned to work in January 2008."
The plaintiff challenges factual finding forty-seven on the ground that it is based on hearsay. The plaintiff argues that Pynn testified that he received complaints from students and teachers who did not wish to be on the record that Bonang was swearing and raising his voice in class. (Hr'g Tr. vol. 4, 79.) As a result, Pynn testified, Bonang was sent to EAP. Bonang later clarified that his meeting with EAP was for a fitness-for-duty assessment. (Hr'g Tr. vol. 6, 165.) The plaintiff argues that factual finding forty-seven is intended to make Bonang appear as if he did not learn anything from his previous suspension, but that the finding is based on unreliable hearsay. The defendant argues that there is substantial nonhearsay testimony to support the board's finding.
There is substantial evidence in the record to support the Board's factual finding number forty-seven. As an initial matter, "[t]here is no prohibition against the admission of hearsay evidence in teacher termination proceedings." Rogers v. Board of Education, supra, 252 Conn. 766. However, "even if hearsay were inadmissible, the statements at issue are not hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted therein . . . A statement made out of court is not hearsay unless it is offered to establish the truth of the facts contained in the statement." (Citations omitted; internal quotation marks omitted.) Id., 766-67. Here, Pynn testified that he received complaints from teachers and students regarding the plaintiff's outbursts. (Hr'g Tr. vol. 4, 79.) The Board's factual finding does not rely on Pynn's testimony about an out of court statement in order to establish the truth of the statement. Pynn's testimony establishes, from Pynn's personal knowledge, the reason for the plaintiff's 2007 leave of absence. The plaintiffs' argument regarding Pynn's testimony is therefore erroneous. Moreover, there is substantial additional evidence in the record to support the Board's factual finding number forty-seven. Visel testified that he summoned the plaintiff to discuss the plaintiff's "shouting and yelling at students." (Hr'g Tr. vol. 3, 77-78.) Visel additionally testified that the plaintiff admitted to yelling in class. (Hr'g Tr. vol. 3, 79.)
Factual Finding Forty-Eight
Fifth, the plaintiff challenges the Board's factual finding forty-eight. That finding reads: "Mr. Pynn's assessment of Mr. Bonang was that he is a liability to sound school; many students were intimidated, fearful and negatively impacted by Mr. Bonang. The staff was concerned about Mr. Bonang's behavior, and a contingent of parents did not want Mr. Bonang in the classroom."
The plaintiff challenges the board's factual finding forty-eight because it is based on hearsay testimony by Pynn. Pynn testified that a contingent of parents did not want Bonang in the classroom, but did not identify who the parents were and those parents did not testify at the hearing. The Board argues, first, that Pynn had no motive to lie, so his hearsay testimony has indicia of reliability. Furthermore, however, the Board argues that Pynn's testimony is not necessary to factual finding forty-eight because it has no effect on the Board's finding that the plaintiff engaged in unprofessional behavior in the presence of male and female students.
There is substantial record testimony to support the Board's factual finding number forty-eight. "There is no prohibition against the admission of hearsay evidence in teacher termination proceedings." Rogers v. Board of Education, supra, 252 Conn. 766. Pynn testified that he received complaints from several parents of students in the plaintiff's classes. (Hr'g Tr. vol. 4, 74-78, 84.) Moreover, the Board's factual finding that "a contingent of parents did not want Mr. Bonang in the classroom" is subsidiary to the Board's finding that "Mr. Pynn's assessment of Mr. Bonang was that he is a liability to the sound school." The contingent of parents was one reason Pynn gave for his ultimate assessment, and the Board notes it in factual finding forty-eight as such.
Discussion of Credibility
The plaintiff next challenges the Board's characterization of his disciplinary history in its Discussion of Credibility. The Discussion of Credibility reads, in relevant part: "While pointing out that some of the testimony was not consistent in some details, the overall impact of the testimony supports the Superintendent's charge that Mr. Bonang had been warned, disciplined, suspended for 5 days, warned some more, and the unprofessional conduct continued unabated." The plaintiff argues that the discipline in the first case and the present case were for unrelated issues. In the first case, argues the plaintiff, Bonang was disciplined for failure to control his temper and for favoring male students. The plaintiff claims he corrected those problems and that his current disciplinary problems are unrelated to those previous issues.
There is substantial evidence in the record to support the Board's finding, in its discussion of credibility, that the plaintiff "had been warned, disciplined, suspended for 5 days, warned some more, and the unprofessional conduct continued unabated." The record demonstrates that the plaintiff was first warned against engaging in unprofessional behavior on December 12, 2000. (Def. Ex. 8.) On that date, Pynn sent a memorandum to the plaintiff reminding the plaintiff that "[t]wice in the past two weeks I have felt compelled to speak with you about maintaining professional behavior at The Sound School." Id. The memorandum then describes two incidents involving the plaintiff. It then implored the plaintiff to "live up to the standard that we expect of our students." Id.
Then, on September 18, 2001, the plaintiff was disciplined by a written warning from Reginald Mayo, the superintendent of New Haven public schools. That warning recounted an incident where the plaintiff "threw a wet tee-shirt which struck [a] student on the side of his head." (Def. Ex. 9.) The warning further states: "Let me be clear, this type of behavior will not be tolerated." Id
The plaintiff was then suspended, initially for twenty days without pay, from December 12, 2003, through January 22, 2004. (Def. Ex. 13, p. 12.) That suspension was later reduced to five days by an arbitrator's award. (Def. Ex. 13, p. 30.)
In December 2007, Tim Visel again warned the plaintiff regarding inappropriate behavior. (Def. Ex. 17; Hr'g Tr. vol. 3, 78.) The inappropriate behavior in this instance involved reports by students that the plaintiff was yelling at students, that he was treating them unfairly, that he missed or appeared late for meetings.
The inappropriate behavior continued after that December 2007, warning. For example, the plaintiff massaged the shoulders of a female student in early 2008. (Bd.'s Finding 14; Hr'g Tr. vol. 1, 66-7, vol 2, 50-51, vol. 3, 121-28, vol. 6, 68.) He also asked another female student for a cookie when she had a package of cookies in the front of her shirt. (Bd.'s Finding 16; Hr'g Tr. vol. 1, 71-72, 74-76, 111-12, 128-29, 132, 139, vol 3, 133-35, vol 6, 73.) There is therefore substantial evidence in the record to support the Board's finding.
Considering the evidence in the record in this case, there is substantial evidence in the record to support each of the challenged findings of fact, with the exception of factual finding twenty-eight.
The Board's Legal Conclusions
Having considered the Board's factual findings, the court must next consider whether the legal conclusions the Board drew from those facts. "Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts." Rogers v. Board of Education, supra, 252 Conn. 761.
Due and Sufficient Cause
In this case, the plaintiff does not challenge the board's finding that there was due and sufficient cause to terminate the plaintiff's employment. The plaintiff does argue, however, that the plaintiff "has not . . . had the opportunity to address with the aid of counseling the misconduct found by the panel. By failing to afford him that opportunity, the panel and the Board of Education which adopted the panel's findings have acted arbitrarily. Mr. Bonang should be restored to his teaching position, perhaps on a probationary basis, on the condition that he undergo counseling. It should go without saying that the counseling must focus on misconduct for which there is reliable evidence in the record rather than that which the panel imagined." In order to give the plaintiff what he wants, therefore, this court would have to overturn the decision of the Board that there is due and sufficient cause for the plaintiff's termination.
The Board counters that if there is substantial evidence in the record to support either ground on which the plaintiff was terminated, moral misconduct and other due and sufficient cause, the court must affirm the decision of the Board. The Board argues that "the crude, boorish and sophomoric sexual comments and conduct of Mr. Bonang directed toward his students on many occasions and his profanity constituted grounds for his termination for due and sufficient cause." The Board further argues that even without the factual findings of the board that the plaintiff challenges, the other factual findings of the board provide due and sufficient cause to terminate the plaintiff.
"The jurisdiction and discretion to determine what . . . may be [due and sufficient cause] rests in the hands of the school authorities . . . That determination must conform, of course, to the meaning of `other due and sufficient cause.' General Statutes § 10-151(d). [We have] treated that phrase as equivalent to good cause, citing with evident approval a definition of that term taken from Rinaldo v. School Committee of Revere, 294 Mass. 167, 169, 1 N.E.2d 37 (1936): Good cause includes any ground which is put forward by the [school] committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system. In Tucker [ v. Board of Education, 177 Conn. 572, 418 A.2d 933 (1979)], we declared that the decision to terminate must be reached after a careful examination of all pertinent factors relating to the particular situation, with due consideration of the effect the teacher's conduct will have on the school authorities as well as on the students. Thus, in deciding whether particular conduct constitutes due and sufficient cause for termination, the impact of that conduct upon the operation of the school is a significant consideration." (Citations omitted; internal quotation marks omitted.) Rogers v. Board of Education, CT Page 8893 supra, 252 Conn. 768-70.
Under the standard of review outlined in Rogers, the court upholds the Board's determination that due and sufficient cause existed to terminate the plaintiff. As previously mentioned, there are findings of fact relied upon by the Board in making its determination that are not controverted by the plaintiff. Taken together with the factual findings of the board that the court has upheld in this opinion, including the unchallenged findings previously stated on pages 2 and 3, there is sufficient evidence in the record to support the board's conclusion that there was other due and sufficient cause to terminate the plaintiff.
Therefore, considering the record as a whole, including the unchallenged findings and findings the court has affirmed, it would be impossible to say that the Board acted arbitrarily in terminating the plaintiff's employment. The Board determined that "his unprofessional conduct constitutes grounds for termination under `other due and sufficient cause.'" The Board's determination that unprofessional conduct on the part of a tenured teacher qualifies as due and sufficient cause under the statute is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system.
Moral Misconduct
Because the Board's conclusion that there was due and sufficient cause under § 10-151(d) to terminate the plaintiff was reasonable, the court need not examine the question of whether the evidence supported the Board's conclusion that the plaintiff's actions also constituted moral misconduct under the statute. Kline v. New Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. CV 01 4004297 (January 25, 2006, Lopez, J.).
C
Due Process
Finally, the plaintiff argues that he was denied due process because the Board did not provide him sufficient notice of the reasons for his termination. The Board counters that the plaintiff was first sent a letter informing him that the Board was considering his termination for moral misconduct, insubordination, and other due and sufficient case. The Board later sent the plaintiff another letter detailing the factual background for those allegations. Then, the plaintiff was represented at an impartial hearing panel where he had the opportunity to present testimony and cross examine witnesses.
The resolution of the due process issue turns on the court's interpretation of diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1976). Both parties cite diLeo to support their arguments. The plaintiff argues that the Board afforded the plaintiff "process that falls far short of that which diLeo requires." In response, the Board argues that the plaintiff's "due process claim fails because his conduct falls squarely within the core of the statute's proscription of conduct constituting `other due and sufficient cause.'"
In diLeo, the plaintiff challenged the constitutionality of § 10-151(b)(6) under 42 U.S.C. § 1983. The plaintiff was a tenured teacher under the statute. diLeo v. Greenfield, supra, 541 F.2d 951. His school board notified him that his employment would be terminated "because he had exhibited `improper conduct towards students on several occasions' sufficient to constitute `other due and sufficient cause' under the statute." Id. Considering the statute's prescription as applied to the plaintiff, the Second Circuit ruled: "The evidence presented to the Board of Education allowed it to conclude that [the plaintiff] had engaged in a persistent pattern of neglecting his professional duties and harassing and humiliating students. There was evidence that his conduct continued and worsened after [the plaintiff] met with school administrators to resolve complaints received from parents and students regarding his classroom performance. In these circumstances it cannot be said that [the plaintiff] did not or should not reasonably have known that such behavior constituted due and sufficient cause for dismissal. Nor can he successfully contend that he had to guess whether the challenged statute would apply to such derelictions and bizarre conduct." Id., 953.
In this case, the Board's June 6, 2008, letter to the plaintiff, informing him that the Board was considering his termination, did not state reasons for the termination. (Joint Ex. 1.) In response to the plaintiff's request for an articulations of reasons, however, the Board sent a second letter, dated June 16, 2008. (Joint Ex. 3.) That letter stated that the Board was considering the plaintiff's termination because he engaged in moral misconduct, insubordination, and other due and sufficient case. Id. The letter went on to say: "More specifically, on or about February 8, 2008, it was alleged that on various occasions, you sexually harassed students by making inappropriate comments, gestures and/or innuendos. Furthermore, by exhibiting such behavior you otherwise acted unprofessionally, violated the Board's Sexual Harassment Policy and put the well being of students at risk of a potentially injurious situation, conduct similar to that for which you have been counseled and/or disciplined in the past. In addition, you have disclosed confidential information to a student and her mother about other students' disabilities and gave the same student access to other students' educational records. Further, you have engaged in gender discrimination in assignments and grading."
Just like the plaintiff in diLeo, the plaintiff in this case "engaged in a persistent pattern of neglecting his professional duties and harassing and humiliating students. There was evidence that his conduct continued and worsened after [the plaintiff] met with school administrators to resolve complaints received from parents and students regarding his classroom performance. In these circumstances it cannot be said that [the plaintiff] did not or should not reasonably have known that such behavior constituted due and sufficient cause for dismissal. Nor can he successfully contend that he had to guess whether the challenged statute would apply to such derelictions and bizarre conduct." diLeo v. Greenfield, supra, 541 F.2d 953. Therefore, the plaintiff's due process rights were satisfied in this case.
CONCLUSION
There is substantial evidence in the record to support findings three, four, forty-seven and forty-eight. There is not substantial evidence in the record to support finding twenty-eight. The plaintiff does not challenge the other factual findings of the board. There is substantial evidence in the record to support the board's discussion of credibility. From those findings, the board's conclusion that other due and sufficient cause to terminate the plaintiff existed was reasonable. Since the plaintiff was properly discharged for other due and sufficient cause, the court need not consider whether the board's conclusion that the plaintiff engaged in moral misconduct was reasonable. Finally, the plaintiff's due process rights were satisfied because he should reasonably have known that his behavior constituted due and sufficient cause for dismissal.
Therefore, the court affirms the holding of the Board.
CT Page 8896