Groton Cent. Sch. Dist. v Davis (2013 NY Slip Op 51260(U))

Groton Cent. Sch. Dist. v Davis

2013 NY Slip Op 51260(U) [40 Misc 3d 1221(A)]

Decided on July 30, 2013

Supreme Court, Tompkins County

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This opinion is uncorrected and will not be published in the printed Official Reports.

Respondent is a tenured teacher who has been employed by petitioner since 1982. During that time, he primarily taught technology to seventh and eighth grade students. In the fall of 2011, several female seventh and eighth grade students went to the school Guidance Counselor to report conduct by respondent that they found offensive, specifically alleging that he had (1) engaged in inappropriate physical contact with them, by placing his hand on students' legs, putting his arm around students' shoulders, or by touching students on the back or hand; (2) made inappropriate comments, including calling students babe, honey, sweetie, or sexy, discussing Hitler and genetic engineering, and referring to condoms; and (3) stared at female students' breasts and buttocks. On November 20, 2011, the Superintendent of Schools issued a letter to respondent informing him of the allegations and placing him on paid administrative leave pending an investigation. Petitioner retained Randy Ray, Director of Personnel Relations with Cayuga-Onondaga BOCES to conduct an investigation. Ray concluded that respondent had engaged in inappropriate conduct which made his students uncomfortable and recommended that the matter be referred to Petitioner's Board of Education for disciplinary action pursuant to Education Law § 3020-a. On February 27, 2012, the Board of Education issued charges against respondent for (I) conduct unbecoming a teacher; (II) immoral character; (III) insubordination; and (IV) misconduct. A six-day hearing was held on September 13, 14, 27, and 28 and November 14 and 15, 2012. The hearing officer issued a 34 page written decision on February 6, 2013, finding respondent not guilty of Charges II and III and guilty of Charges I and IV. Based on his findings, the hearing officer ordered that respondent (1) complete a course selected by the Superintendent, or his designee, to assist him in understanding appropriate instructional techniques and how to avoid engaging in the behavior that led to the charges; and (2) be suspended without pay for two months. Petitioner timely commenced this proceeding, seeking (1) modification of the hearing officer's award and termination of respondent's employment; or (2) vacatur of the hearing officer's award and remand to the hearing officer for the purpose of imposing a more stringent penalty. Respondent answered and cross-moved for judgment confirming the award.

The court's authority to vacate the arbitration award is limited to the grounds set forth in CPLR 7511 (see Education Law § 3020-a[5]).^[FN1] In addition, where, as here, the parties are subject to compulsory arbitration, the award is subject to an additional layer of judicial scrutiny — it must have evidentiary support and cannot be arbitrary and capricious (see City School Dist. of the City of NY v McGraham, 17 NY3d 917, 919 [2011]). The party challenging an arbitration award has the burden of proving its invalidity (see Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, 419 [2013]). Petitioner contends that the award must be vacated, pursuant to CPLR 7511(b)(iii), on the basis that the hearing officer exceeded his power by imposing a penalty that violated the strong public policy in favor of protecting children from the harmful conduct of adults (see e.g. Matter of Binghamton City School Dist. [Peacock], 33 AD3d 1074 [2006], appeal [*2]dismissed 8 NY3d 840 [2007]). To prevail on that basis, petitioner bears the burden of establishing that "the penalty imposed is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness" (Matter of Asch, 104 AD3d at 421 [quotation and citation omitted]). Stated another way, the fact "[t]hat reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" (City School Dist. of the City of NY v McGraham, 17 NY3d at 920).

The hearing officer carefully considered the testimony in his lengthy decision and evaluated the credibility of the witnesses — including respondent — before concluding that respondent had, on numerous occasions, "improperly touched female students, not in a sexually improper manner, but in an unconscious manner that made [them] uncomfortable" (Record of Proceedings, Exhibit A [decision dated February 6, 2013]). He similarly concluded that respondent had inappropriately addressed students as honey or baby, or told a student that she looked beautiful or sexy, and that he had led conversations on topics inappropriate for a junior high technology class, such as Hitler and condoms. The hearing officer was not convinced that respondent improperly stared at students; rather, he concluded that respondent was staring into space, allowing students who were already uncomfortable with his behavior to believe that he was staring at them. Notably, the hearing officer concluded that, although respondent had unintentionally created an environment in which students were suspicious and uncomfortable, he did not act in an immoral or sexual manner.

The hearing officer considered several factors in crafting a penalty. He was troubled by the fact that respondent was unaware that he had created a classroom environment that made students uncomfortable and by his refusal to even acknowledge that possibility. The hearing officer also considered the fact that respondent has completed over twenty five years of service to the school district with an excellent record. In light of the nature of respondent's conduct and his length of service, the hearing officer concluded that termination would be too severe of a penalty, and instead imposed the penalty of a two-month suspension without pay, which was intended as a strong warning that such conduct cannot take place again. The hearing officer also required that respondent receive training aimed at preventing him from engaging in similar conduct in the future.

Under such circumstances, it cannot be said that "the penalty imposed is either shocking to the conscience or arbitrary and capricious as petitioner contends" (Matter of Asch, 104 AD3d at 421 [citations omitted] [six month suspension and mandatory counseling constituted an appropriate penalty for a librarian with 20 years of service who had engaged in inappropriate touching of high school students over a three-year period which the hearing officer found was not sexual misconduct]; see also Matter of Brown v New York City Bd./Dept. of Educ., 30 Misc 3d 1237[A], 2011 NY Slip Op 50380[U] [unpaid suspension of approximately five months was an appropriate penalty for a high school teacher with over twenty years of service who had touched a female student's chest and then made inappropriate comments to her, conduct which the hearing officer found was misguided and evinced poor judgment, but was not sexual in nature]; City School Dist. of the City of NY v McGraham, 17 NY3d 917 [90-day suspension and reassignment to another school constituted an appropriate penalty for a high school teacher who communicated electronically with a student outside of school hours, but who had no physical or sexual contact [*3]with the student, and who expressed remorse for her actions]). The hearing officer considered all the numerous facts to reach his decision, and while others might reasonably conclude that a different penalty is warranted, such a disagreement cannot be a basis for this court to vacate the penalty imposed (see City School Dist. of the City of NY v McGraham, 17 NY3d at 920).

`The cases cited by petitioner in support of its argument that the penalty imposed by the hearing officer is inadequate and that only termination is appropriate do not require a contrary result. In each of those cases, the teacher had engaged in overtly improper conduct of a sexual nature that the hearing officer found was not present in this case. Other extenuating factors present in those cases, but not in this case, were that the conduct was aimed at a single victim, or continued after the teacher had been warned about his inappropriate conduct (see e.g. Lackow v Department of Educ. [or "Board"] of City of NY, 51 AD3d 563 [2008] [the penalty of termination imposed by the arbitrator was appropriate for a teacher who made numerous sexually explicit comments to his classes — such as telling a female student that he did not want to hear stories about her having her legs up in the air; talking with students about how often he ejaculates; talking with students about women having multiple orgasms; and discussing masturbation, bestiality, and necrophilia — despite having been warned on at least three previous occasions that such conduct was inappropriate]; Matter of Binghamton City School Dist. [Peacock], 33 AD3d 1074 [the court found the penalty of one year unpaid suspension imposed by the arbitrator to be inadequate and remitted the matter to the arbitrator for imposition of a new penalty where a high school teacher had engaged in excessive and nearly constant contact with a student over at least a six month period, culminating in his removing her from school and taking her to his home when his family was out of town after he had been directed by school administrators to stay away from the student]; City School Dist. of City of NY v Hershkowitz, 7 Misc 3d 1012[A], 2005 NY Slip Op 50569[U] [the court found the penalty of one year unpaid suspension imposed by the arbitrator to be inadequate and remitted the matter to the arbitrator for imposition of a new penalty where a teacher engaged in extensive electronic communications with a student attempting to initiate a sexual relationship with her and instructing her how to deceive her mother to hide his misconduct]).

Based on the foregoing, the petition is dismissed and the arbitration award is confirmed (see CPLR 7511[e] [upon denial of a motion to vacate, the court is required to confirm the award]).

This decision constitutes the order and judgment of the court. The transmittal of copies of this decision, order and judgment by the court shall not constitute notice of entry.

Dated: July 30, 2013

The following documents were filed with the Clerk of the County of Tompkins:

-Notice of petition dated February 28, 2013.

-Verified answer / cross-motion to confirm arbitration award, verified May 21, 2013.