Pro se petitioner's application for an order pursuant to C.P.L.R. § 7511, vacating and annulling the Opinion and Award in New York City Department of Education v. Rigal Baptiste, SED File No. 19,759 dated April 8, 2013 (the "Opinion and Award") of Hearing Officer Lisa Brogan, Esq. (the "hearing officer"), is denied and the proceeding is dismissed without costs and disbursements to either party. Respondent's cross motion to dismiss the petition is granted and the award is confirmed.

Pro se petitioner Rigal Baptiste was a tenured teacher employed by respondent Board of Education of the City School District of the City of New York ("BOE") (commonly referred as and h/s/a the New York City Department of Education). Petitioner was formerly assigned to Franklin Delano Roosevelt High School in District 20, located in Brooklyn, New York, where he taught living environment and chemistry to day and evening students.

In April 2009, the Office of Special Investigations ("OSI") referred a student complaint against petitioner to the Office of Equal Opportunity ("OEO"). The complaint alleged a violation of Chancellor's Regulation A-830, which prohibits, among other things, sexual harassment of students by teachers. The OEO substantiated some, but not all, of the allegations put forth in the complaint. As a result, a letter was placed in petitioner's file warning him that any further misconduct or misbehavior would result in termination of his employment and possible loss of his license. Petitioner was also required to attend OEO training in July 2010 on sexual harassment and Chancellor's Regulation A-830.

In the course of the 2011-2012 school year, petitioner was the subject of complaints raised by four female students. Two separate investigations were undertaken by the Special Commissioner of Investigations ("SCI") in response to these complaints. Both investigations resulted in the investigator substantiating the complaints that petitioner made inappropriate [*2]comments and sexually harassed female students. By letters dated June 11, 2012 and August 21, 2012, SCI recommended termination of petitioner's employment.

Disciplinary charges were preferred and pursuant to Education Law Section 3020-a, hearings were conducted before the hearing officer on December 7, 3, 14, 17, 2012, and January 9, 10, and 17, 2013. Both parties were represented by counsel during the hearing. After hearing from all parties, witnesses, and reviewing documents, the hearing officer issued an extensive written Opinion and Award, setting forth 17 specifications of charges against petitioner, relevant facts, and basis for her decision. The hearing officer found petitioner guilty of the vast majority of the specifications, and determined that petitioner's conduct constituted: (1) just cause for disciplinary action pursuant to Section 3020-a of the Education Law; (2) substantial cause rendering petitioner unfit to perform his obligations properly to the service; (3) neglect of duty; (4) inappropriate comments; (5) misconduct; (6) conduct unbecoming of petitioner's position, or conduct prejudicial to the good order, efficiency, or discipline of the service; (7) violation of the Chancellor's Regulations; and (8) just cause for termination.

Petitioner asserts that the hearing officer's decision should be vacated pursuant to C.P.L.R. § 7511 on the grounds that: (1) there was inadequate evidence to sustain the charges against him; (2) the proceeding violated petitioner's due process rights; (3) the arbitrator showed bias and prejudice; (4) the arbitrator exceeded her authority; and (5) petitioner's punishment shocks the conscience. Petitioner avers that: (1) he never meant to be confrontational with any of his students; (2) he taught in the classroom for 18 years without any disciplinary action taken against him; and (3) he was targeted by school administrators.

Respondent opposes the petition in its entirety and cross-moves to dismiss on the ground that the petition fails to state a cause of action. In support of its cross motion, respondent submits a copy of the Opinion and Award, copies of the Education Law Section 3020-a hearing transcripts; copies of respondent's and petitioner's exhibits received into evidence, and a copy of the delegation memorandum to principals of high schools from Chancellor Walcott, dated April 19, 2011.

Petitioner opposes respondent's cross motion to dismiss on the grounds that: (1) the arbitrator ignored the mandate of progressive discipline and exceeded her authority in admitting hearsay statements; (2) petitioner was denied due process rights; (3) the hearing officer inserted her personal feelings in each specification in excess of her authority; and (4) the hearing officer's penalty was unjust and excessive.

Education Law § 3020-a(5) states that judicial review of a hearing officer's decision shall be dictated by C.P.L.R. § 7511. The grounds to vacate an award include corruption, fraud or misconduct in procuring the award, the partiality of the arbitrator, or an arbitrator exceeding his or her authority or a failure to follow the procedure of Article 75. C.P.L.R. § 7511(b).An arbitration award shall be modified in three instances: (1) the award contains a miscalculation or a mistake in the description of any person, thing or property referred to in the award; (2) the [*3]award concerns matters not submitted to arbitration, and the award can be corrected without affecting the merits of the decision; or (3) the award is imperfect as a matter of form, not affecting the merits of the controversy. C.P.L.R. 7511(c). Here, petitioner has failed to satisfy any of the grounds to vacate the award. Petitioner's argument regarding the hearing officer's bias is without merit, as allegations of bias must be proven by clear and convincing evidence. Zrake v. New York City Dept. of Educ., 41 AD3d 118, 118 (1st Dept. 2007), lv dismissed, 9 NY3d 1001 (2007). Furthermore, the hearing officer's adverse credibility determinations against petitioner do not undermine her impartiality. See Matter of Royster v. Goord, 26 AD3d 503, 505 (2nd Dept. 2006).

When reviewing an arbitration award, the court "is not to decide the appropriateness or the wisdom of an award or whether the judges of the court would have rendered the same award had they acted as the arbitrators, but, rather to ascertain whether the arbitrator who did make the award exceeded his powers or so imperfectly executed them as to require its vacatur." Matter of States Marines Lines, Inc. v. Crooks, 13 NY2d 206, 212 (1963); see Mid-State Mgt. Corp. v. New York City Conciliation & Appeals Bd., 112 AD2d 72 (1st Dept. 1985). Credibility determinations by the hearing officer are largely unreviewable and should not serve as a basis for vacating an award. See Lackow v. Dept. of Educ., 51 AD3d 563 (1st Dept. 2008); Matter of Berenhaus v. Ward, 70 NY2d 436 (1987).Here, petitioner's argument regarding admissibility of documents and credibility of testimony is without merit. This court will not substitute its judgment for that of the hearing officer.

In cases of compulsory arbitration, such as the instant matter, the determination must be in accordance with due process, have evidentiary support, and cannot be arbitrary and capricious. See Motor Veh. Mfrs. Assn. v. State, 75 NY2d 175 (1990); Caso v. Coffey, 41 NY2d 153 (1976). A determination is arbitrary and capricious when it was made without sound reason and generally made without regard to the facts. See Pell v. Bd. of Educ., 34 NY2d 222 (1974). Petitioner's argument regarding the procedure for preferring disciplinary charges under the Educational Law is rejected by this court. See Matter of Haas v. N.Y.C. Bd./Dept. of Educ., 35 Misc 3d 1207(A), (Sup Ct, New York County 2012).Furthermore, the record reflects ample evidence supporting the hearing officer's determination, which this court cannot say was arbitrary or capricious.

When reviewing the measure of a punishment or discipline imposed by an administrative agency, a court may only consider whether such action is so disproportionate as to shock the conscience. See Featherstone v. Franco, 95 NY2d 550, 554 (2000); see also Pell v. Bd. of Educ., 34 NY2d 222 (1974). In the instant case, this court does not find petitioner's termination shocking to the conscience. There is sufficient evidence in the record to prove that petitioner verbally and sexually harassed female students. Moreover, it is clear from the record that the hearing officer balanced the interests of both parties when meting out petitioner's penalty of termination from employment. Specifically, the hearing officer considered the principles of progressive discipline but determined that petitioner could not be returned to the classroom and that additional training would be ineffective. She also considered respondent's duty to provide students' a learning environment free from harassment and abuse. Given petitioner's lack of [*4]remorse and failure to take responsibility for his actions, as well as the adverse effects of petitioner's outrageous words and conduct on students, the penalty of termination does not shock this court's conscience.

Accordingly, it is hereby,

ADJUDGED, that pro se petitioner's application for an order pursuant to C.P.L.R. § 7511, vacating and annulling the Opinion and Award in New York City Department of Education v. Rigal Baptiste, SED File NO. 19,759 dated April 8, 2013 of Hearing Officer Lisa Brogan, Esq., is denied and the proceeding is dismissed without costs and disbursements to either party. Respondent's cross motion to dismiss the petition is granted and the award is confirmed.

Dated:November 22, 2013

ENTER:

________________________

J.S.C.