Opinion
2016EF334
03-03-2017
In the Matter of the Application by Laura VIEIRA–SUAREZ, Petitioner, For a Judgment pursuant to Article 75 of the C.P.L.R., v. SYRACUSE CITY SCHOOL DISTRICT, Respondent.
For Petitioner: O'Hara, O'Connell & Ciotoli (Stephen Ciotoli, Esq., of Counsel) For Respondent: Ferrara Fiorenza, PC (Miles G. Lawlor, Esq., of Counsel)
For Petitioner: O'Hara, O'Connell & Ciotoli (Stephen Ciotoli, Esq., of Counsel)
For Respondent: Ferrara Fiorenza, PC (Miles G. Lawlor, Esq., of Counsel)
Anthony J. Paris, J.
By Petition dated January 25, 2016, Petitioner seeks an Order pursuant to Education Law § 3020–a(5)(a) and CPLR § 7511 vacating the Decision of the hearing officer which found Petitioner guilty of five disciplinary charges and terminated Petitioner's employment with the Syracuse City School District. The Petition seeks to vacate the Decision on the grounds that it is arbitrary and capricious, is not supported by substantial evidence, and constitutes an abuse of the hearing officer's discretion.
Respondent, the Syracuse City School District, (hereinafter the "District"), has appeared by an Answer containing Objections in Point of Law and asks for dismissal of the Verified Petition.
Petitioner Laura Viera–Suraez was the Principal of LeMoyne Elementary School in Syracuse until she was terminated on January 21, 2016 pursuant to the Decision of the hearing officer which was issued following a proceeding held pursuant to Education Law § 3020–a.
PROCEDURAL COMPLAINTS:
Respondent submits legal arguments regarding several procedural complaints relative to the Petition, including that the Petition was facially deficient, that the Petition lacked a proper verification and that the Petition was untimely filed under Education Law § 3020–a(5)(a). While there is concern with some of the conduct, including the filing of a bare bones Petition lacking any allegations and the subsequent filing of a Memorandum of Law containing all allegations and legal grounds, the Court finds that the Petition is not barred due to an untimely filing. There being no prejudice to the Respondent, it is the preference of the Court that this case be decided on the merits. See Posada v. NYS DOH , 75 AD3d 880 (3d Dept. 2010) ; See also 22 NYCRR 202.1(b). Therefore, the Court declines to dismiss the Petition on any of the procedural grounds raised by the Respondent, and will proceed to determine the Petition's allegations on their respective merits.
STANDARD OF REVIEW:
Education Law § 3020–a(5) provides that review of a hearing officer's decision and award is limited to the grounds set forth in CPLR § 7511. Matter of Bd of Ed of Dundee Cent. Sch. Dist. (Coleman), 96 AD3d 1536 (4th Dept. 2012) ; Lackow v. Department of Ed. of City of NY, 51 AD3d 563 (1st Dept. 2008). CPLR § 7511 permits vacatur on three narrow grounds, including where an award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power. Santer v. Bd of Ed of East Meadow Union Free Sch. Dist., 23 NY3d 251 (2014), citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL–CIO v. Bd of Ed of City Sch. Dist of City of NY, 1 NY3d 72 (2003) ; CPLR 7511(b)(1).
Where, as here, the parties are subject to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. Hamilton v. Alley , 137 AD3d 1564 (4th Dept. 2016) ; Matter of Dundee, supra. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. City School Dist of the City of NY v. McGraham , 17 NY3d 917 (2011) ; Matter of Dundee, supra .
A § 3020–a decision is supported by adequate evidence when there is a rational basis in the record for the findings of fact supporting the hearing officer's decision. Carroll v. Pirkle , 296 AD2d 755 (3d Dept. 2002) ; see also Principe v. N.Y.C. Dept. Of Educ., 94 AD3d 431 (1st Dept. 2012), aff'd 20 NY3d 963 (2012).
The party challenging an arbitration award has the heavy burden of showing its invalidity. Lehman Bros., Inc. v. Cox , 10 NY3d 743 (2008) ; Lackow, supra at 568.
With regard to fact and credibility findings, the Court should accept the arbitrator's credibility determinations, even where there exists conflicting evidence and room for choice. Cipollaro v. N.Y.C. Dept. of Educ., 83 AD3d 543 (1st Dept. 2011) ; Saunders v. Rockland Bd of Co–op Ed. Servs., 62 AD3d 1012 (1st Dept. 2009). Courts cannot substitute their judgment for that of a hearing officer who had the unique opportunity to hear and assess witnesses because the hearing officer has observed the witnesses and is able to "perceive the inflections, the pauses, the glances and gestures—all of the nuances of speech and manner that combine to form an impression of either candor or deception." Lackow, supra ; see also City Sch. Dist. v. McGraham, supra .
CPLR § 7511 proceedings are an inappropriate vehicle to second-guess the hearing officer's credibility determinations. Matter of Watt v. E. Greenbush Cent. Sch. Dist., 85 AD3d 1357 (3d Dept. 2011)
DECISION WAS SUPPORTED BY SUBSTANTIVE EVIDENCE AND WAS NOT ARBITRARY OR CAPRICIOUS :
In the instant matter the hearing officer's findings as to Petitioner's guilt on disciplinary Charges 1–5 are primarily based on credibility determinations. The hearing officer considered each charge, the testimony offered by the parties' witnesses, and considered the supporting documentary evidence. The hearing officer noted in the Decision that he considered factors such as demeanor, documentary evidence, bias and motive, and credited the testimony of the District's witnesses and discounted the Petitioner's testimony, finding her disavowels of wrongdoing to be unworthy of belief.
Petitioner essentially argues that the hearing officer's determination was arbitrary and capricious because the hearing officer did not resolve issues of credibility in her favor.
The Court finds that the hearing officer's decisions on Charges 1–5 were rationally supported by the record, and were not arbitrary, capricious, unreasonable or irrational.
Charge No. 1 alleged that Petitioner committed conduct unbecoming a Principal, misconduct, misconduct constituting physical abuse, neglect of duty, and immoral conduct, by placing a disabled male student in the elevator machine room (EMR) for a "time out" on October 29, 2013. The EMR was not a district authorized "time out" room and did not conform to the requirements of 8 NYCRR 200.22(d). Furthermore, the placement was not authorized by the student's IEP ("individual education plan") or the student's BIP ("behavior intervention plan"), and constituted physical abuse.
The hearing officer found Petitioner guilty of conduct unbecoming a principal, misconduct and neglect of duty, ruling that the preponderance of the credible evidence established that on October 29, 2013 Petitioner placed a disabled male student in a windowless, closet-like room in the school marked as the elevator machine room and that the student's placement in that room was not authorized by the student's IEP or "behavior intervention plan".
The Court finds that the hearing officer's guilty finding on Charge No. 1 is supported by substantial evidence, specifically the testimony of Nurse Dooley, which is not negated by Petitioner's adamant denial of Dooley's claims. Dooley's testimony is supported and corroborated by a contemporaneous record of the student's confinement in the EMR which she made using the district's e-school system at 9:30 a.m. on October 29, 2013. A printout of the entry was marked into evidence at the hearing. There is no evidence in the record to support Petitioner's contentions that the entry was altered or subsequently made.
The hearing officer also relied on the testimony of witness Administrative Intern Cheryl McDonald, who testified that Petitioner had spoken to her about using the EMR for this particular student in late October/early November 2013 and witness Anthony Bishop, District Teaching Assistant. Mr. Bishop testified that he observed Petitioner confine the child in the EMR in early December 2013. The hearing officer determined that these witnesses were credible and that Petitioner, who maintained a blanket claim denying that she ever placed the student in the EMR, was not credible. The Court will not overturn that determination here. The record does not support any inference that the testimony of the district witnesses upon which the hearing officer relied were incredible as a matter of law. A hearing officer's determinations of credibility are unreviewable. See Lackow, supra. The hearing officer's credibility determinations and the rulings on which they are based, must be and hereby are accepted by the Court.
Based on the testimony of Dooley, McDonald and Bishop, the hearing officer clearly had a sufficient evidentiary basis to support a guilty finding in Charge 1. He also had a reasonable basis on which to discount Petitioner's claim that she had never placed the student in the EMR. The hearing officer also properly rejected Petitioner's claim that she could not have been present at the EMR during the relevant time period because she was dealing with a different incident in the administrative offices. As noted, the evidence provided by Petitioner did not place her in the administrative offices until after 9:30 a.m., and thus did not exclude Petitioner's involvement with the confinement on October 29, 2013.
Charge No. 2 alleged against Petitioner conduct unbecoming a Principal, misconduct, misconduct constituting physical abuse, neglect of duty, immoral conduct, and other just causes for disciplinary action. The Specifications allege that in 2013–2014 Petitioner directed employee Cheryl McDonald to place a disabled male student in the EMR room, for purposes of a "time out", despite the fact that the EMR was not an authorized time out room and did not meet the requirements of 8 NYCRR 200.22(c), and that the placement of the student in the EMR room for "time out" purposes was not authorized by the student's IEP or BIP. The Charge further specifies that Petitioner's direction to place the student in the EMR room constituted physical abuse, and that Petitioner falsely represented to McDonald that the use of the EMR for a time out was authorized by the student's grandmother during the 2013–2014 school year.
At the Hearing McDonald testified that she was directed by Petitioner in the Fall of 2013 to use the EMR for the student's time outs and was directed in January 2014 to place the disabled male student in the EMR for a "time out" as a means of dealing with a temper tantrum. She further testified that Petitioner told her that the student's grandmother had agreed to the use of timeouts. The student's teacher, Kristin Moulton, testified that Petitioner had told her that the student's grandmother had approved the use of the EMR. When McDonald told Petitioner she had placed the student in the EMR room, Petitioner said "good" and told her to use it in the future when there were tantrums. McDonald testified she placed the student in the EMR on about four other occasions during that school year, informed Petitioner after each time, and was directed by Petitioner to continue to use the EMR room in the future.
At the Hearing Petitioner denied ever telling McDonald to place the student in the EMR and denied knowing that McDonald had ever placed a child in the EMR.
The hearing officer found that the District had proved the substance of Charge 2 by a preponderance of the credible record evidence; crediting McDonald's testimony and discounting Petitioner's blanket denials. The hearing officer also relied on McDonald's testimony in finding that Petitioner had falsely represented that the use of the EMR had been authorized by the student's grandmother.
The hearing officer's credibility determinations are entitled to great deference and should not be disturbed by the Court. Lackow, supra.
The Court rejects Petitioner's criticisms of the length of the hearing officer's Decision. His guilty finding was based on a credibility determination wherein he accepted as true the McDonald testimony and rejected Petitioner's blanket denials. This did not require a lengthy Decision.
The Court also rejects Petitioner's contentions relative to the McDonald statement given to the Syracuse Police Department on June 27, 2014. There is no evidence of any improper conduct by the police or McDonald in the rendering of that statement. Further, Petitioner's contention that McDonald's testimony was controverted by the testimony of Teaching Assistant Warren is without merit. There is simply no evidence, other than the Petitioner's own claims, that the other witnesses all testified untruthfully in order to cover up their own conduct.
Credibility determinations are the prerogative of the hearing officer, who has the opportunity to hear and observe the witnesses as they testify, and Petitioner has provided no basis for this Court to overturn the credibility determinations made by the hearing officer in this case. In the Matter of Watt v. East Greenbush Cent. Sch. Dist., 85 AD3d 1357 (3d Dept. 2011) ; Douglas v. NYC Dept. Of Ed., 52 Misc 3d 816 (Sup.Ct. NY Co. 6/6/2016).
Based on the foregoing, the Court finds that the hearing officer's guilty ruling on Charge No. 2 was supported by sufficient evidence, and was not arbitrary or capricious.
Charge No. 3: The substance of Charge No. 3 was that Petitioner told McDonald to make false statements to District personnel investigating the placement of a disabled male student in the EMR. The Specification states that in June 2014 Petitioner asked McDonald to make false statements to the effect of disclosing only one of the several incidents Petitioner knew McDonald was aware of where the student was placed in time out in the EMR; and, to "stick" to the story McDonald had previously related to investigators and not disclose further incidents.
The hearing officer found that the District had proven Charge No. 3 by a preponderance of the credible evidence in the record. McDonald testified that Petitioner told her to stick just to the story of the January incident, and to tell investigators that the student had gotten into the EMR on his own (and not that McDonald had placed the student in the room). McDonald testified that Petitioner repeated this directive to her on June 18, 2014 and told her to stick with the same story.
This is supported by a statement given by McDonald to District investigators on 6/12/2014 where she told the investigator that neither she nor Petitioner had ever placed the student in a locked closet, and there were no closets or rooms that students were locked in. McDonald did not mention the EMR to the investigator or tell her that she had placed the student in the EMR on multiple occasions during that school year at Petitioner's direction. McDonald testified at the hearing that after this meeting Petitioner told her to stick with the story (that the only time the student went into the EMR was when he got in there himself).
The hearing officer expressly found that McDonald testified credibly that she was told to make false statements to the District. The hearing officer rejected Petitioner's complaints relative to a statement given by McDonald to the Syracuse Police Department on June 12, 2014 as there was no evidentiary basis for Petitioner's claims that the affidavit was improperly obtained and/or drafted, or that it was drafted by McDonald's husband or attorney. The hearing officer did not find Petitioner's rebuttal and alternative account to be credible.
Petitioner contends there is no evidentiary foundation for this Charge, and that the Charge is not supported by substantial evidence. Petitioner acknowledges that the conflicting testimony of Petitioner and McDonald "creates a clear credibility dispute". It was the hearing officer's duty to resolve the credibility dispute and he did so in McDonald's favor. That credibility determination cannot be overturned by this Court. Lackow, supra. Moreover, in addition to the McDonald testimony, the hearing officer relied on the testimony of Teacher's Aide Warren that Petitioner also directed her to lie about the student's placement in the EMR.
Accordingly, there is no basis for disturbing a credibility determination that was based on the hearing officer's personal observation and interpretation of what McDonald and Petitioner testified to at the hearing.
Based on the foregoing, the Court finds that the hearing officer's guilty finding as to Charge No. 3 was supported by substantial evidence, and was not arbitrary or capricious.
Charge No. 4: The substance of Charge 4 was that Petitioner asked School Nurse Dooley to make false statements to the District investigators on June 17, 2014.
The hearing officer found Dooley's testimony credible and also relied on McDonald's testimony as McDonald was present for the conversation where Petitioner asked Dooley to mislead investigators. The hearing officer cited his prior findings about Petitioner's lack of credibility based on her repeated denials to investigators and at the hearing about the confinement. The hearing officer ruled there was proof by a preponderance of the credible record evidence that Petitioner was Guilty of Charge 4.
While Petitioner contends that the hearing officer's determination on Charge 4 is not supported by substantial evidence, the testimony of Nurse Dooley alone is sufficient to support the charge, with no need for corroboration. The Court rejects Petitioner's challenges to Dooley's testimony and Dooley's sworn statement to the Syracuse Police Department. There is no evidence that Dooley's sworn statement was rendered unreliable simply because Dooley's brother in law (who is a police officer) accompanied her to the interview. There is no basis in the record for Petitioner's accusations, or for her claim that McDonald's statement was prepared by her own attorney and not by the police. In any event, the circumstances surrounding the drafting of McDonald's sworn statement do not undermine Dooley's credible hearing testimony.
Based on the foregoing, the Court finds that the hearing officer's guilty finding as to Charge No. 4 was supported by substantial evidence, and was not arbitrary or capricious.
Charge No. 5: This charge contends that during interviews by district investigators on June 12, 16–17, 2014, Petitioner failed to truthfully answer questions related to the student's confinement in the EMR. The Specifications claim that Petitioner failed to truthfully answer district questions that a disabled male student had been placed in the EMR, and that more specifically, Petitioner stated to district personnel that she had never placed a student in the EMR and had never directed a district employee to place a student in the EMR.
The hearing officer relied on and found credible the testimony of Investigator Lisa Wade (who headed the district's investigation), Administrative Intern McDonald and Teaching Assistant Warren. Therefore, the hearing officer's determination was based upon a credibility determination of the type that courts should not disturb in an Art. 75 proceeding. Lackow, supra.
At the hearing, the Petitioner denied that she had lied to district personnel. The hearing officer ruled otherwise, finding that by a preponderance of the credible record evidence Petitioner had failed to truthfully answer questions. This ruling is consistent with the hearing officer's findings with regard to Charges 1 and 2, where he found that Petitioner had lied about personally placing the student in the EMR and about directing McDonald to do so.
Based on the foregoing, the Court finds that the hearing officer's guilty finding as to Charge No. 5 was supported by substantial evidence, and was not arbitrary or capricious.
OTHER CHALLENGES TO HEARING OFFICER DECISION :
The Court further rejects Petitioner's contentions that Investigator Wade was not qualified to perform the investigation, failed to prepare a proper report, failed to properly document evidence received, failed to obtain corroborating evidence, as well as a myriad of other contentions raised by Petitioner. None of Petitioner's contentions in this regard provide a basis for vacating the hearing officer's Decision under CPLR § 7511. In any event, such complaints are irrelevant to this Court's review of the hearing officer' decision. This Court must determine whether the evidence presented at the hearing supports the hearing officer's guilty findings and decision to terminate Petitioner's employment, not address the sufficiency of the underlying investigation.
EMERGENCY INTERVENTION CLAIMS:
The Court also rejects Petitioner's contentions that while the EMR was not an authorized "time out" room, it was appropriate for emergency intervention under 8 NYCRR § 202.22(d). This contention was never raised at the time of the hearing. Because the issue was not raised, there was no evidence as to what specific conduct the student was engaged in that led to his confinement. Therefore, there is no way to determine whether the student's confinement in the EMR for "emergency intervention" purposes was warranted. Petitioner cannot now claim that the student's confinement was warranted as an emergency intervention as there is no evidence in the record to support that contention. Petitioner is precluded from raising this contention in this Article 75 proceeding.
APPROPRIATENESS OF PENALTY OF TERMINATION:
The proportionality of a petitioner's penalty should be examined in light of all of the circumstances and should be affirmed unless it is shocking to one's sense of fairness. Principe v. N.Y.C. Dept of Educ., 94 AD3d 431 (1st Dept. 2012) ; Pell v. Board of Ed. Of Union Free School Dist. No. 1, 34 NY2d 222 (2010).
"A result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude 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." Brito v. Walcott , 115 AD3d 544 (1st Dept. 2014), citing Pell, supra.
In some cases, termination is justified by the severity of an offense, e.g. corporal punishment or fraud, [See Matter of Patterson v. City of NY, 96 AD3d 565 (1st Dept. 2012) ; Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012 (2d Dept. 2009) ], or in light of the litany of specifications proven [See Hamilton v. Alley, supra] .
Using these standards, the Court finds that the hearing officer's determination to terminate Petitioner is supported by the record, and that there are no extraordinary circumstances meriting departure from that determination. The investigation, subsequent hearing testimony and evidence established that Petitioner not only placed the child in a room not sanctioned for emergency intervention, but then lied about it and encouraged others to lie about it. As such, despite Petitioner's numerous accomplishments and experience and background with mentally challenged children, she is no longer suited to function in an educational environment. Petitioner's proven misconduct clearly justified her termination.
The Court further notes the recent Decision by the Appellate Division, Fourth Department, in People v. Vieira–Suarez, ––– AD3d –––– (4th Dept. 2/3/2017), which reinstated a charge of Perjury as the first count in an Indictment pending against Petitioner. The Indictment arises from Petitioner's conduct in confining a disabled child in a locked room and allegedly providing false testimony to the grand jury investigating that conduct.
CONCLUSION
By reason of the foregoing, and based on the record spread before the Court, this Petition seeking to vacate and annul the Decision of the hearing officer which found Petitioner guilty on five counts of misconduct and terminated her employment, is hereby DENIED and DISMISSED .
This constitutes the Decision and Order of the Court.