Opinion
104807/11
11-28-2011
In the Matter of the Application of Larry Robinson, Petitioner, v. City of New York; New York City Department of Education; Catherine Black, Chancellor of New York City Department of Education, Respondents.
For petitioner: Bryan D. Glass, Esq. Glass Krakower LLP For respondents: Adam E. Collyer, ACC Michael A. Cardozo Corporation Counsel
For petitioner: Bryan D. Glass, Esq. Glass Krakower LLP
For respondents: Adam E. Collyer, ACC Michael A. Cardozo Corporation Counsel
Barbara Jaffe, J.
By notice of petition dated April 20, 2011, petitioner moves pursuant to CPLR 7511 for an order vacating the hearing officer's opinion and award in the disciplinary proceeding brought against him. By notice of cross-motion dated June 15, 2011, respondents move pursuant to CPLR 404(a) and 3211(a)(7) and Education Law § 3020-a(5) for an order dismissing the petition. Petitioner opposes.
I. BACKGROUND
In 1988, petitioner, a tenured teacher, began working for respondent. (Pet.). Sometime thereafter, he was assigned to Public School 97, and in May of 2003, respondent preferred disciplinary charges against him. (Pets.' Appx.). In June of 2003, petitioner and respondent executed a "post-charge stipulation of settlement" whereby petitioner "admit[ted] that he utilized poor judgment towards [a] student [ ] during the 2000-2001 school year[,] [ ] maintain[ed] that he playfully hit [the] student with a plastic baseball bat," and agreed to be reassigned to another school, to pay a $7,000 fine over the course of 18 months, and to attend a behavior management course in exchange for respondent's dismissal of the charges against him. (Id.). Petitioner also "agree[d] that if he is ever brought up on Education Law § 3020-a charges in the future and subsequently found guilty of those charges, the hearing officer or panel will be entitled to consider this [s]tipulation of [s]ettlement for the purposes of assessing a penalty." (Id.).
Petitioner was reassigned to Community School (CS) 133 in Manhattan as a physical education teacher and a basketball coach. (Pet., Exh. A). On May 10, 2010, Susan M. Vairo, Principal of CS 133, received a complaint from a student's parent regarding petitioner's conduct. (Id.; Pets.' Appx.). Specifically, the parent told Vairo that, approximately two weeks earlier, petitioner removed five students from a fourth grade special education gym class he was teaching and brought them to a room adjacent to the gymnasium to discipline them, pulling a student up by his collar and placing him on a box, grabbing another by her arm and hitting her on the head, hitting a third student on his head with his hand and a plastic baseball bat, and verbally threatening them. (Pets.' Appx.).
During the next two days, Vairo interviewed petitioner and the students. Although she took no written statements from them, she took notes of the interviews. On May 13, 2010, Vairo filed a report with respondent's Office of Special Investigations (OSI). (Id.; Pet., Exh. A).
In June of 2010, pending OSI's investigation, petitioner was reassigned to the Temporary Reassignment Center, and was interviewed in October 2010. (Pet., Exh. A). By memorandum dated November 19, 2010, an OSI investigator determined that the allegations against him were sustainable. (Pets.' Appx.).
On November 29, 2010, a disciplinary meeting was held between Vairo and petitioner, and on December 3, 2010, Vairo sent petitioner a letter summarizing the meeting and indicating that she agreed with OSI's conclusion. (Id.; Pet., Exh. A). On December 30, 2010, petitioner filed a grievance providing, inter alia, that he "received a letter dated December 3, 2010 which was based on an improper investigation." (Pet., Exh. A).
Thereafter, respondent preferred charges against petitioner, specifying as follows:
Specification 1: On or about February 2010-May 10, 2010, [petitioner] failed to maintain the safety and general welfare of his students when he:(Pets.' Appx.)Specification 2: On or about February 2010-May 10, 2010, [petitioner]:
a. Left students under his supervision unattended.
b. Failed to notify school administration.
a. Placed his hand on Student A's face.Specification 3: As a [r]esult of [petitioner's] actions delineated in Specification 2, Student A began to cry.
b. Pushed Student A's face back.
Specification 4: On or about February 2010-May 10, 2010, [petitioner] grabbed Student Aby the arm.
Specification 5: As a [r]esult of [petitioner's] actions delineated in Specification 4, Student A began to cry.
Specification 6: On or about February 2010-May 10, 2010, [petitioner] pushed Student B with both hands.
Specification 7: As a result of [petitioner's] actions delineated in Specification 6, Student B stumbled and fell on a sharp tray.
Specification 8: On or about February 2010-May 10, 2010, [petitioner]:
a. Picked up Student CSpecification 9: On or about February 2010-May 10, 2010, [petitioner] struck Student D in the back with a bat.
b. Sat Student C on a box
c. Struck Student C in the head.
Specification 10: On or about February 2010-May 10, 2010, [petitioner] stated to Student D words to the effect of:
a. If you tell Ms[.] Rivers about this, you won't come out of this gym walking;Specification 11: On or about February 2010-May 10, 2010, [petitioner] yelled at Students A, B, C, D and E words to the effect of:
b. Shut up;
c. Your mother gave me permission to whack you if I needed to;
d. Your mother gave me permission to beat your butt if I needed to.
a. Do you think I'm playing?
Hearings were held on January 18, 19, and 31 and February 1, 2011, at which testified Vairo, a school administrative assistant, the OSI investigator assigned to petitioner's case, petitioner, and five students. (Id.). Four of the students, A, C, F, and G, were those taken by petitioner into the room adjacent to the gymnasium, whereas the fifth, DD, had remained in the gymnaium; A and G were the only girls involved in the incident, and C and F were two of the three boys involved. (Id.).
Vairo and the OSI investigator testified as to their investigations, and the administrative assistant testified that she saw petitioner holding a bat just before dismissal one day near the end of the school year. (Id.).
Student A, whose mother had reported the incident to Vairo, testified that she and four students were sent into the adjacent room, that petitioner entered with a plastic bat, that he lifted the three boys up by their shirts and hit them with the bat, and that he pushed her forehead back, causing her head to hit the wall. (Id.).
Student C testified that he was on the basketball team petitioner coached, that he liked petitioner and thought he was a good teacher, that petitioner took him and the other boys in the room first and took the girls in after he heard them "fooling around," that he screamed at them, and that he punched him and the other boys in their chests with his fist. (Id.).
Student F was also on the basketball team. He testified that he liked petitioner, that the incident began when the girls were dancing inappropriately and petitioner told them to go into the other room, that he "yoked up" the girls and reprimanded them for their dancing, that petitioner "tap[ped]" the students with the plastic bat on various parts of their bodies, and that he took him and the other boys further into the other room and sat them on top of the boxes. (Id.).
According to Student G, petitioner first told the boys to go to the other room, instructed the girls to do so after they laughed at the boys, and then told the girls to "get out" after he picked up a plastic bat and followed the boys further into the room. (Id.). He then lifted the boys onto the boxes by their shirts and started screaming at both the boys and the girls, grabbing the front of Student G's shirt as he was doing so. (Id.). She denied seeing him lift Student A by her shirt or hit any of the students but admitted that Student A said that petitioner had hit her and that she was crying after she left the room. (Id.). There were no adults around when she and Student A left the room. (Id.).
Student DD testified that she saw petitioner take the boys into the room first, that they remained there for approximately three minutes, that he then took the girls into the room, that Student A said she was going to tell her mother that petitioner had hit her after she left the room, that she saw petitioner holding a plastic bat, and that some of the students who remained in the gym were "running around" while petitioner was in the side room. (Id.).
Petitioner testified that the 10 students attending the class during which the incident occurred were particularly rambunctious, that he took the boys into the room first in order to calm them down, as he believed they were performing for the girls, that he lifted Student E only onto the boxes, and that he could see what was happening in the gym while reprimanding the boys. (Id.). According to him, he then escorted the boys back to the gymnsaium and took the girls into the room, and he admitted that he raised his voice to Student A and that he could not see what was occurring in the gymnasium while talking to the girls. (Id.). Petitioner denied taking students into the room previously, "yoking" them, or hitting them with a bat or his hand, and he described his relationship with them, especially the boys, as "pretty unique" in light of the fact that he coached their basketball team multiple nights per week and acted as a "surrogate father" to them. (Id.). He also denied having received Vairo's December 3 letter. (Id.).
On March 7, 2011, closing arguments were heard, and on March 14, 2011, both parties submitted proposed decisions. (Pet., Exh. A).
On April 4, 2011, the hearing officer issued a 19-page opinion and award, sustaining specifications 1, 2, 3, 8, and 11, and terminating petitioner's employment. (Id.). He acknowledged that respondent had failed to specify the exact date of the incident but concluded that petitioner was not thereby prejudiced, as he "recalled the event and referred to it as being one of a kind, and was able to prepare a proper defense . . . ." (Id.). Additionally, notwithstanding the discrepancies he perceived arising from the students' testimony as to whether the boys and girls were in the room at the same time, the hearing officer found that there was some "overlap" between them, as Student F testified that he saw petitioner "yoke up" the girls, Student G testified that petitioner lifted the boys onto the boxes, and petitioner admitted to doing so to Student E, and neither student could have witnessed these events had they not been in the room simultaneously. (Id.). And, in analyzing petitioner's credibility, the hearing officer found that petitioner's awareness that "his job was at stake . . . . [ ] alone [did] not defeat his credibility" but concluded that he had "[a]t best, . . . a selective memory" in light of his failure to admit that he received Vario's December 3 letter. (Id.). He also noted that the quality of respondent's investigation was irrelevant, as the hearing was de novo. (Id.).
As petitioner admitted that he was unable to see the students in the gymnasium while he was in the other room with the girls, Student G testified that there were no adults in the gymnasium after she and Student A left the room, and Student DD testified that some kids were "running around" the gymnasium during the incident, the hearing officer sustained specification 1, noting that petitioner could have contacted the office regarding the disruptive behavior rather than leaving the students unattended and emphasizing that special education students require attention. (Id.).
The hearing officer relied on the students' past statements and testimony in sustaining specifications 2 and 3, as Student A told Vairo that petitioner had hit her in the face, the OSI investigator noted the same in her memorandum, Students G and DD testified that Student A came out of the room crying and said that petitioner had hit her, and Student F testified that petitioner "yoked up" the girls. (Id.). Although Student G did not confirm that petitioner hit Student A, the hearing officer determined that this was not fatal to Student A's credibility, as Student G conceded that petitioner grabbed the front of her shirt while he was yelling, and she may have been confused about what had happened as a result. (Id.). Additionally, he noted that Student A would have reported the incident immediately had she intended to frame petitioner. (Id.).
Although Student C testified only that petitioner hit him in the chest with his fist, the hearing officer opined that "[w]hen one has been punched in the chest, it is easy to forget being tapped on the head with a whiffle (sic) bat," and as Students F and A credibly testified that petitioner did so, and Student A testified that petitioner lifted Student C and the other boys onto the boxes, he sustained specification 8. (Id.).
The hearing officer also sustained specification 11 as to Students A, C, and E only, as Students C and G testified that petitioner was screaming at the students in the room. (Id.).
In determining petitioner's penalty, the hearing officer considered petitioner's disciplinary history, noting that his close relationship with the students does not excuse his conduct given the 2003 charges and stipulation, as "[a] $7,000 fine, a transfer of schools, and completion of a substantial [b]ehavior [m]anagement course as a pre-condition to returning to the classroom all should have remained as a bright beacon to guide [petitioner] in his dealings with students in and out of the classroom." (Id.). He found that petitioner's behavior "was not tolerable," as he had an "opportunity to comport his behavior with the rules [ ] and has failed dramatically, with no suggestion of self-criticism," and he determined that termination is the only appropriate penalty on this basis. (Id.).
By affidavit dated July 19, 2011, John Jackson, a teacher at CS 133, states that he had never received an unsatisfactory rating until Vairo falsely accused him of corporal punishment, that Vairo attempted to manipulate a student to say that he hit her, that parents and teachers have circulated a petition seeking to remove Vairo from her position, and that he has known petitioner since he was transferred to CS 133 and that he is a "well-respected and beloved faculty member . . . ." (Affirmation of Bryan D. Glass, Esq., in Further Support and in Opposition, dated July 22, 2011 [Glass Opp. Aff.], Exh. A). The petition to which he refers is unsigned and provides that parents, grandparents, and relatives of past and present CS 133 students want Vairo removed from her position because, inter alia, she "[t]old students to lie on a teacher whom she doesn't favor [and is] unethical and manipulative." (Id.).
II. CONTENTIONS
Petitioner asserts that the hearing officer's decision was arbitrary and capricious and that the penalty of termination is excessive and shocking to one's sense of fairness, as he had 23 years of satisfactory service, more than half of the specifications were dismissed, and the hearing officer wrongly focused on his alleged lack of remorse. (Pet.).
In opposition, and in support of its cross-motion to dismiss, respondent denies that the hearing officer's decision was arbitrary and capricious, as he based his decision on credibility determinations, which he was permitted to make, and petitioner's disciplinary record, his lack of remorse, and the severity of his offenses, which he was permitted to consider. (Respondents' Mem. of Law). It also denies that termination is an excessive penalty in light of these circumstances. (Id.).
In reply, and in opposition to the cross-motion, petitioner emphasizes the discrete nature of his offenses, his employment history, and the hearing officer's dismissal of the "most serious specifications" in maintaining that termination is an inappropriate penalty, and he asserts that the hearing officer impermissibly considered the 2003 settlement and his apparent lack of remorse insofar as the underlying offense is not severe enough to warrant termination. (Glass Opp. Aff.). Additionally, he argues that the hearing officer erred in sustaining charges against him even though he acknowledged that respondent's investigation was flawed and, relying on Jackson's affidavit, he alleges that Vairo manipulated students to falsely accuse him,. (Id.).
In reply, and in sur-reply, respondent maintains that the hearing officer rightfully considered the 2003 settlement, as it expressly provides that it may be considered if petitioner is found guilty of misconduct in the future, and in any event, his offenses, considered alone, warrant termination. (Affirmation of Adam E. Collyer, ACC, in Reply, dated July 29, 2011). Moreover, it asserts that petitioner waived his claim that Vairo manipulated students, as he failed to raise it during the hearing. (Id.).
III. ANALYSIS
A. Applicable law
When a hearing is held pursuant to Education Law § 3020-a, a party who was subject to the hearing may apply to vacate the hearing officer's opinion and award on the grounds that his rights were prejudiced by:
(i) corruption, fraud or misconduct in procuring the award;(CPLR 7511[b][1]).
(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter was not made; or(iv) failure to follow the procedures of this article.
In reviewing such an award, the court must also determine whether it was rendered "in accord with due process and [was] supported by adequate evidence," and whether it satisfies the arbitrary and capricious standard of Article 78. (Lackow v Dept. of Educ. of the City of New York, 51 AD3d 563, 567 [1st Dept 2008]). The party challenging the arbitration award bears the burden of proving that it is invalid (id.), and if the motion to vacate is denied, the court must confirm the award (CPLR 7511[e]).
As petitioner alleges neither that his rights were prejudiced by any of the circumstances set forth in CPLR 7511(b)(1) nor that his due process rights were violated, I need only determine whether the award is arbitrary or capricious.
B. Arbitrary and capricious
In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts." (Matter of Pell v Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Kenton Assocs. v Div. of Hous. & Community Renewal, 225 AD2d 349 [1st Dept 1996]). Moreover, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." (Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of NY Div. of Hous. & Community Renewal, 46 AD3d 425, 429 [1st Dept 2007], affd 11 NY3d 859 [2008]). And, a hearing officer's credibility determinations are "largely unreviewable because the hearing officer observed the witnesses and was able to perceive . . . all the nuances of speech and manner that combine to form an impression of either candor or deception." (Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]; Lackow, 51 AD3d at 569).
Here, for each specification sustained, the hearing officer made his decision after reviewing and analyzing the students' and petitioners' testimony, acknowledging inconsistencies therein and determining that the students were credibly recounting the incident, as many of them liked petitioner and had no motive to lie, Student A would have reported the incident immediately had she intended to frame petitioner, and petitioner had, "[a]t best . . . a selective memory." Moreover, he declined to sustain those specifications unsupported by the record, and, as he noted, his decision was unaffected by the adequacy of respondent's investigation. As the hearing officer grounded his decision in the evidence presented, and absent any basis for disturbing his credibility determinations, the decision is neither arbitrary nor capricious. (See Matter of Douglas v New York City Bd./Dept. of Educ., 2011 NY Slip Op 06397, 929 NYS2d 127 [1st Dept Sept. 1, 2011] [where hearing officer accounted for inconsistencies in students' testimony, resolving them in students' favor, and determined that petitioner's testimony was not credible, petitioner's claim that students' testimony was incredible as matter of law on ground that hearing officer ignored inconsistencies not basis for disturbing decision]).
As my review is limited to whether the hearing officer's decision was based on the evidence presented at the hearing, petitioner's claims as to Vairo's alleged manipulation of other students is not considered. In any event, petitioner has failed to demonstrate how this evidence would alter the result, as Student A's mother reported the incident to Vairo before Vairo interviewed Student A and the others involved in the incident.
C. Proportionality of penalty
The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." (Bd. of Educ. of Union Free School Dist. No. 1 of the Towns of Scarsdale v Mayor of Syracuse, 34 NY2d 222, 233 [1974]). A result is shocking to one's sense of fairness when:
the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct . . . of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.(Id. at 234).
In determining the appropriate penalty for a teacher found guilty of misconduct, a hearing officer may consider his or her lack of remorse and failure to take responsibility for his or her actions. (Cipollaro v New York City Dept. of Educ., 83 AD3d 543 [1st Dept 2011]; Matter of Rogers v Sherburne -Earlville Sch. Dist., 17 AD3d 823 [3d Dept 2005]). Moreover, the teacher's employment history may also be considered, although termination may be an appropriate penalty regardless of whether it is unblemished. (Cipollaro, 83 AD3d at 544; Matter of Rogers, 17 AD3d at 824).
Here, petitioner's employment history, although long, was not unblemished. Seven years before the instant specifications were preferred, petitioner was charged with misconduct similar to that at issue here, hitting a student with a baseball bat, and even though the charges were withdrawn upon execution of the stipulation, petitioner agreed that the stipulation could be considered by the hearing officer in future disciplinary proceedings in formulating an appropriate penalty.
Despite this warning, petitioner again engaged in misconduct and exhibited little remorse for his actions, attempting to rationalize them based on his close relationship with the students and their misbehavior. Although managing a classroom of 10 rambunctious fourth graders may be challenging, and while the conduct at issue was isolated, the penalty of termination does not shock my sense of fairness in light of the egregiousness of petitioner's behavior, his disciplinary history, and his attitude. (See Cipollaro, 83 AD3d 543 [termination not shocking to one's sense of fairness regardless of teacher's employment history, as she expressed no remorse and failed to take responsibility for her actions]. Cf. Matter of Riley v City of New York, 84 AD3d 442 [1st Dept 2011] [termination considered excessive penalty in light of teacher's unblemished employment history and student's admission that she sustained no physical or emotional injury as result of teacher's misconduct]). Having engaged in the misconduct twice in seven years, there is no reason to believe that petitioner will not engage in similar conduct if given another opportunity.
IV. CONCLUSION
Accordingly, it is hereby
ADJUDGED, that the petition for an order vacating the award is denied; it is further
ADJUDGED, that respondent's cross-motion for an order dismissing the petition is granted to the extent that the petition is denied and the proceeding is dismissed, with costs and disbursements to respondent; it is further
ADJUDGED, that respondent, having an address at 100 Church Street, New York, New York 10007, does recover from petitioner, having an address at 11 Penn Plaza, 5th Floor, New York, New York 10001, costs and disbursements in the amount of $ ____, as taxed by the Clerk, and that respondent has execution therefor.
ENTER:
_______________________________
Barbara Jaffe, JSC
DATED:November 28, 2011
New York, New York