Opinion
12004 Index No. 101062/16 Case No.2019–2652
10-08-2020
In re Jeny NORALEZ, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent–Respondent.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondent.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondent.
Renwick, J.P., González, Kennedy, Mendez, JJ.
Judgment, Supreme Court, New York County (Debra A. James, J.), entered November 1, 2018, confirming an arbitration award terminating petitioner's employment as a tenured teacher, unanimously affirmed, without costs.
The arbitrator's determination that petitioner's teaching performance and judgment were poor during the relevant three-year period has a rational basis in the record and is not arbitrary and capricious (see City School Dist. of the City of N.Y. v. McGraham , 17 N.Y.3d 917, 919, 934 N.Y.S.2d 768, 958 N.E.2d 897 [2011] ; Matter of Johnson v. Board of Educ. of the City Sch. Dist. of the City of N.Y. , 171 A.D.3d 548, 98 N.Y.S.3d 573 [1st Dept. 2019] ). The record includes 10 substantiated written observational reports and testimony from multiple school administrators demonstrating inadequate teaching, efforts at remediation, and lack of improvement over the three-year period. There is evidence that petitioner behaved unprofessionally toward a student whom she accused of stealing her pen; petitioner admitted that she had redirected the student's insults addressed to her toward his mother. Petitioner further admitted that she showed portions of an R-rated movie to fifth-grade students, while having trouble fast-forwarding through inappropriate portions; the evidence shows that students felt uncomfortable when exposed to scenes that included violence, nudity, and sex. Petitioner contends that there was no direct evidence substantiating certain of the charges against her. However, an arbitrator's determination may be based on hearsay ( Matter of Colon v. City of N.Y. Dept. of Educ. , 94 A.D.3d 568, 568, 941 N.Y.S.2d 628 [1st Dept. 2012] ; see Education Law § 3020–a[3][c][i][C] ). Moreover, courts may not reweigh the evidence or substitute their own credibility determinations for those of the arbitrator ( Matter of Asch v. New York City Bd./Dept. of Educ. , 104 A.D.3d 415, 421, 960 N.Y.S.2d 106 [1st Dept. 2013] ).
Under the circumstances, the penalty of termination does not shock our sense of fairness (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County , 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; Matter of Johnson , 171 A.D.3d at 548–549, 98 N.Y.S.3d 573 ).