Matter of Pocino v New York City Bd./Dept. of Educ. (2011 NY Slip Op 51513(U))

Matter of Pocino v New York City Bd./Dept. of Educ.

2011 NY Slip Op 51513(U) [32 Misc 3d 1231(A)]

Decided on July 14, 2011

Supreme Court, New York County

Jaffe, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

By notice of petition dated November 23, 2010, petitioner moves pursuant to CPLR 7511 for an order vacating the hearing officer's award in the disciplinary proceeding brought by respondent against petitioner. By notice of cross-motion dated February 10, 2010, respondent moves pursuant to CPLR 404(a), 3211(a)(7), and 7511, and Education Law § 3020-a(5) for an order dismissing the petition and affirming the award. Petitioner opposes.

Petitioner, a tenured teacher who has been employed by the New York City Department of Education (DOE) for more than 20 years, taught fourth grade at Public School 176 in Brooklyn, New York during the 2007-2008 academic year. (Pet.). DOE, pursuant to Education Law § 3020-a, charged petitioner with corporal punishment, verbal abuse, conduct unbecoming a professional, insubordination, and neglect of duty, specifications as follows:

c. refused to follow the directive of Principal Elizabeth Culkin to return to her classroom.

d. pointed her finger in the face of Principal Culkin and yelled at Principal Culkin.

a. grabbed Student LD on or about her arm causing her to almost slip off her chair.

b. used headphones in administering Acuity assessments, thereby invalidating the test protocols.

g. inappropriately seated certain students on the floor while others were seated at their desks.

c. called students in her class criminals.

(Affirmation of Shakera Khandakar, Esq., dated Feb. 10, 2011 [Khandakar Aff.], Exh. I).

A pre-hearing conference was held on February 10, 2010, and hearings were conducted on March 10, 11, 15, 16 and April 13, 20, and 22, 2010. (Pet.). DOE presented the testimony of Principal Elizabeth Culkin, Testing Coordinator Erin Spelman, Assistant Principal Randi Posner-Marino, and petitioner's former students, one of whom testified that the "principal said . . . [that they were] trying to get her out of the school." (Id., Exhs. B-H)

Petitioner did not testify. (Id.). United Federation of Teachers district leader Ellen Driesen testified for petitioner. (Id.).

The hearing officer issued her 21-page findings on November 1, 2010, determining that the evidence was insufficient to sustain specifications 1, 4, 5, and 6 while sustaining specifications 2, 3, 7, 8, 9, 10, and 11. (Id., Exh. A).

She determined, inter alia, that petitioner received material and training regarding testing procedures and that she failed to comply with them in submitting an improperly completed answer sheet, as she would have noticed the errors had she walked around the room and sorted the sheets before submitting them as the procedures required her to do. (Id). She also found Culkin's testimony credible and concluded that there was no evidence in the record showing that petitioner's actions on March 5, 2008 resulted from the New York State Mathematics test but that petitioner missed the faculty meeting, left her class with a paraprofessional, and refused to obey Culkin's order "for reasons only known to [her]." (Id.).

Posner-Marino testified that she saw petitioner wearing headphones while dismissing her class for the day, which Culkin corroborated to the extent of testifying that both Posner-Marino and another school employee told her that petitioner wore headphones at school. (Id.). Absent evidence to the contrary, the hearing officer sustained specification 7. (Id.). Finding no evidence in the record to suggest that petitioner wore the headphones for any reason other than to block outside noises or to appear as though she could not hear, the hearing officer concluded that petitioner's actions constituted "gross neglect of a teacher's duties for which a substantial penalty [*4]will apply." (Id.).

The hearing officer sustained specification 8 based on a student's testimony that petitioner told the class she wore headphones "because she did not like to hear [them] a lot," determining that even if petitioner had administered the test with headphones, that does not explain her statement to the class. (Id.).

The hearing officer also determined that she had no basis on which to disagree with Culkin's evaluation of the lesson as set forth in specification 9, as it was balanced by criticism and praise. (Id.).

She found specifications 10 and 11 amply supported by the record, as multiple witnesses credibly testified that petitioner grabbed the student's wrist and yelled at him and that she said students in her class were criminals and juvenile delinquents and would "get karma some day." (Id.).

Although the hearing officer sustained more than half of the specifications, she declined to terminate petitioner and instead suspended her for two months without pay given her long-term employment with DOE and unblemished record. (Id.).

Petitioner claims that the hearing officer's decision was arbitrary and capricious and that she exceeded her authority by suspending her for two months without pay, as the record does not support such a penalty, and ignored the former student's testimony that "the principal said . . . [they were] trying to get her out of the school." (Pet.). She also argues that her due process rights were violated, as the Board of Education (Board) did not vote on the charges against her, and DOE failed to prove the charges by a preponderance of the evidence. (Id.). Petitioner additionally alleges that the hearing officer was biased in rendering her decision, as well, as she knew petitioner was being deprived of her due process rights and terminated her anyway, and that her suspension is shocking to one's sense of fairness because of her long history of satisfactory employment with DOE. (Id.).

In opposition, and in support of its cross-motion to dismiss, respondent argues that petitioner has failed to establish that the hearing officer exceeded her authority or rendered an arbitrary and capricious decision, as the record shows that she weighed witness credibility and carefully supported her findings. (Memorandum of Law in Support of Respondent's Cross-Motion to Dismiss the Petition, dated Feb. 10, 2011). Respondent also contends that petitioner provides only conclusory allegations of bias and has not shown that she was denied due process, as her allegation regarding the Board's failure to vote on the charges is without merit. (Id.). And respondent asserts that the suspension is proportionate to petitioner's offense and thus does not shock one's sense of fairness. (Id.).

In reply, and in opposition to the cross-motion, petitioner maintains that the hearing officer's decision was arbitrary and capricious, alleging that there exists a conspiracy within DOE to remove tenured teachers and that the hearing officer improperly credited her former students' testimony. (Affidavit of Barbara Pocino in Opposition to Respondent's Cross-Motion to Dismiss, dated Mar. 18, 2011).

When a hearing is held pursuant to CPLR 3020-a, a party who was subject to the hearing [*5]may apply to vacate the hearing officer's decision pursuant to CPLR 7511, and the court's review is limited to grounds set forth therein. An award may be vacated on the application of a party who participated in the arbitration

Where arbitration is mandatory, the arbitrator's decision is subject to closer judicial scrutiny. The arbitration award "must be in accord with due process and supported by adequate evidence, and must [ ] be rational and satisfy the arbitrary and capricious standards of CPLR 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.).

The scope of judicial review of an arbitration proceeding is extremely limited (Matter of Campbell v New York City Tr. Auth., 32 AD3d 350, 351 [1st Dept 2006]), giving deference to the arbitrator's decision (Matter of New York City Tr. Auth. v Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). In reviewing an award, the court is bound by the arbitrator's factual findings and interpretations (Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, 372 [1st Dept 2004]), and may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one" (Matter of New York State Correctional Officers & Police Benev. Assn., Inc. v State of New York, 94 NY2d 321, 326 [1999]). And, if the motion to vacate is denied, the court must confirm it. (CPLR 7511[e]).

An allegation of arbitrator bias must be established by clear and convincing evidence, amounting to more than the mere inference of partiality. Consequently, conclusory allegations of bias are insufficient. (5 NY Jur 2d, Arbitration and Award § 220 [2010]). Here, petitioner's allegations that the hearing officer decided against her interests is insufficient, as it does not demonstrate bias in and of itself. (See County of Niagara v Bania, 6 AD3d 1223, 1225 [4th Dept 2004] [allegations of bias were wholly speculative and fact that adverse determination was made did not indicate that arbitrator was partial]).

An arbitrator exceeds the scope of her power pursuant to CPLR 7511(b)(1)(ii) when the "award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." (Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d at 336). [*6]

Although petitioner claims that the hearing officer exceeded her authority by rendering a decision unsupported by the record, she provides no factual basis for providing otherwise. Additionally, she challenges the hearing officer's credibility determinations, which does not constitute a ground for vacatur of an arbitration award. (See Saunders v Rockland Bd. of Co-Op Educ. Servs., 62 AD3d 1012, 1013 [2d Dept 2009] ["When reviewing compulsory arbitrations in education proceedings . . . the court should accept the arbitrator's credibility determinations, even where there is conflicting evidence and room for choice exists."]). As the hearing officer based her decision on the evidence and carefully weighed the relative credibility of the witnesses in determining that petitioner was guilty of specifications 2, 3, 7, 8, 9, 10, and 11, absent any for finding that the hearing officer exceeded a specifically enumerated limitation on her power, there is no basis for vacatur of the award pursuant to CPLR 7511(b)(1)(iii).

C. Was the proceeding conducted in accordance with due process rights?

Petitioner claims that her due process rights were violated because the Board did not vote on the charges against her. Education Law § 2590-f(1)(B) permits community superintendents "to delegate any of her or his powers and duties to such subordinate officers or employees of his or her community district . . . ." Here, the Board properly permitted DOE to prefer charges against petitioner, and petitioner was not thereby deprived of her due process rights.

A review of the evidence presented at the hearing shows that the hearing officer considered petitioner's explanations for her behavior and determined that the corroborated testimony rendered her explanations incredible. She otherwise declined to sustain those specifications unsupported by the record. Having based her decision on the evidence, and absent any demonstration to the contrary, the award was supported by adequate evidence. (See Wien & Malken v Helmsley-Spear, Inc., 6 NY3d 471 [2006] ["An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.'"]).

As outlined in her award, the hearing officer's determination was based upon the evidence and testimony presented at the hearing and her credibility determinations thereof. There is thus no basis for finding that her decision was arbitrary and capricious. (McGraham, 75 AD3d at 452 [finding award neither arbitrary nor capricious where arbitrator took into account entirety of record and made credibility determinations regarding petitioner teacher]).

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. 1of the Towns of Scarsdale, et al v Mayor of Syracuse, et al., 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 [*7]standards of society to be applied to the offense involved.

(Id. at 234).

Here, although she found petitioner guilty of most of the specifications, the hearing officer rejected termination, the penalty sought by DOE. Rather, noting that petitioner has given more than 20 years of satisfactory service to DOE and that these were her first charged offenses, she suspended petitioner for two months without pay, a punishment not shown to be disproportionate to the offenses. (Cf Matter of Addoo v New York City Dept. of Educ., 2009 NY Slip Op 32534[U] [Sup Ct, New York County 2009] [where petitioner found guilty of certain teaching deficiencies, semester-long suspension and requirement that she attend teaching courses does not shock one's sense of fairness]; Matter of Gabriel v New York City Dept. of Educ., 2009 NY Slip Op 32249[U] [Sup Ct, New York County 2009] [where petitioner, who had unblemished record, found guilty of using excessive force, brief suspension and anger management courses proportional to offense]; Nreu v New York City Dept. of Educ., 2009 NY Slip Op 52007[U] [Sup Ct, New York County 2009] [where petitioner, who had unblemished record, found guilty of repeated inappropriate communications with student, one year suspension without pay does not shock one's sense of fairness]).

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 536 Leonard Avenue, Woodbridge, New Jersey 07095, costs and disbursements in the amount of $ ____, as taxed by the Clerk, and that respondent has execution therefor.