Oluremi
Balogun, Petitioner(s),
against
The City of New York, NEW YORK CITY
DEPARTMENT OF EDUCATION and CARMEN FARINA as CHANCELLOR of the
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent(s).
|
650940/14
Petitioner: Brian D. Glass, Esq., Glass Krakower LLP, 100 Church Street,
8th Floor, New York NY 10007 (212) 537-6859
Respondents: Zachary W.
Carter, Corporation Counsel of the City of New York, Asst Corp Counsel Michael F.
Fleming, 100 Church Street, New York, NY 10007 (212) 356-2471
Lynn R. Kotler, J.
Recitation, as required by CPLR § 2219 [a] of the papers considered in the
review of this (these) motion(s):
Paper NumberedPet's n/pet, ver pet,
exhs 1
Resp's n/x-mot, MF affirm, exhs 2
BDG affirm in opp 3
MF reply affirm, exh 4
Upon the foregoing papers, the decision and order of the Court is as
follows:
Petitioner is a tenured teacher who worked with
respondent Board of Education of the City School District of the City of New York a/k/a
and h/s/a New York City Department of Education ("BOE") for thirteen years. Petitioner
commences this proceeding pursuant to New York Education Law § 3020-a(5) and
CPLR § 7511 seeking an order vacating the decision of Hearing Officer Patricia A.
Cullen, Esq. ("HO Cullen") dated February 28, 2014 (the "2/8/14 Determination") after a
disciplinary hearing which imposed the penalty of termination.
Respondents BOE, The City of New York and Carmen
Farina, as Chancellor of the New York City Department of Education now cross-move to
dismiss the petition. Petitioner opposes the cross-motion. For the reasons that follow, the
cross-motion is granted and the petition is denied.
Facts and arguments[*2]
Prior to working with the BOE, petitioner had twenty
years of experience as a teacher and Assistant Principal in Nigeria. Petitioner maintains
that she never faced any formal discipline until the underlying disciplinary charges were
leveled against her. Petitioner was a math teacher last assigned to the Frederick Douglass
Academy III ("FDA") in the Bronx, New York.
A hearing on the subject disciplinary charges
commenced June 2013 and concluded early October 2013 as part of a Section 3020-a
formal disciplinary hearing before HO Cullen. Petitioner was represented by Brie
Klytenarr, Esq., a union-assigned attorney from New York State United Teachers. At the
hearing, evidence was presented regarding four specifications against petitioner charging
her with neglect of duty, failure to follow procedures and carry out normal duties, and
incompetent and inefficient service during the 2010-2011, 2011-2012 and 2012-2013
school years.
Petitioner was specifically charged as follows:
Specification 1: During the 2010-2011,
2011-2012 and 2012-2013 school years [petitioner] failed to properly,
adequately, and/or effectively plan and/or execute lessons, as observed on the
following dates:
a. October 14, 2010
b. November 12, 2010
c.
December 15, 2010
d. February 15, 2011
e. March 15, 2011
f. September
27, 2011
g. October 28, 2011
h. January 5, 2012
i. January 12, 2012
j.
January 20, 2012[*3]
k. February 10, 2012
l.
February 29, 2012
m. March 9, 2012
n. April 4, 2012
o. May 4, 2012
p.
June 12, 2012
q. September 12, 2012
r. December 19, 2012
s. January 10,
2013
t. March 5, 2013
u. March 22, 2013
Specification 2: [Petitioner] failed to
timely, properly and/or adequately prepare and submit lesson plans to her supervisors, as
directed ruing the 2011-2012 school year.
Specification 3: [Petitioner] was unprepared
to teach her class and/or did not have a lesson plan for instruction, as observed on
November 22, 2011.
Specification 4: Respondent failed to
implement professional development recommendations from observation conferences,
plans of assistance, and professional development sessions, during the 2010-2011,
2011-2012 and 2012-2013 school years with regards to:
[*4]a. Classroom management
b. Proper pacing of lesson
c. Lesson
planning and preparation
d. Differentiation of instruction
e. Delivery of
instruction, and
f. Assessment of student progress.
The BOE argued that these charges rendered petitioner unfit
to perform properly her obligations and constituted just cause for termination. The BOE
called witnesses including Principal Rahesha Amon, Assistant Principals Francis Cassidy
and Jumel Carlos and Amanda Janullis, a teacher and math department chair.
At the hearing, the BOE argued that petitioner was
incompetent and should be terminated. The BOE pointed to unsatisfactory annual ratings,
petitioner's numerous deficiencies as a teacher contained in observation reports as well as
the ample opportunities petitioner was afforded to improve and rehabilitate her
performance. Petitioner, in turn, maintained that she was a good teacher, that the
unsatisfactory ratings were "essentially fabricated" and that the school administration's
criticism were superficial and nitpicking. Petitioner maintained that all charges should be
dismissed, but if any were sustained, the appropriate penalty would be a fine, reprimand
or remedial coursework.
In a thirty-five page decision, HO Cullen sustained many of
the charges and found that termination is the appropriate sanction. As highlighted by
respondents, HO Cullen found:
The observation reports and testimony in the record provide
evidence that Respondent was provided with extensive written and oral feedback and
recommendations from Principal Amon, AP Cassidy, and AP Carlos through the
observation process and through other one-on-one meetings. She received further
support from her department head, Ms. Janulis, who met with her regularly throughout
all three years at issue, and weekly during the latter two school years. Ms. Balogun also
had the benefit of regular grade and all faculty meetings. During all three years she
attended regular sessions with Turnaround for Children working on classroom
management strategies and dealing with difficult students. Administrators modeled
lessons for her, and she attended inter-visitations with other teachers to observe and learn
from their classroom management strategies. She had ten weeks of intensive one-on-one
support through the PIP Plus program. Ms. Amon sent her to outside professional
development programs, two on classroom management and another on collaborative
team teaching. Collectively, the recommendations and professional development
provided to Respondent covered the topics of classroom management, [*5]lesson pacing, differentiation of instruction, delivery of
instruction, and assessment of student progress....
[FDA administration] invested enormous amounts of
time meeting with Ms. Balogun, observing her, recommending professional development
sessions and articles for her to read, and drafting detailed recommendations and
suggestions in observation reports and action plans. Their written observation reports
included commendations and encouragement when warranted, as well as numerous
detailed recommendations for improvement, most of which were ignored....
The [BOE] has proven that [petitioner] failed to properly,
adequately or effectively execute twenty lessons on various dates over the course of the
2010-2011, 2011-2012 and 2012-2013 school years, as described in detail above. In all
of that time, the record includes only one satisfactory observation. The [BOE] has also
proven that [petitioner] failed to consistently implement recommendations for
improvement provided through the observation process, through one-on-one meetings
with school administrators, her PIP Plus peer observer and others, and through
school-wide professional development in five separate categories. Although not all of the
charges against [petitioner] are sustained, those that the [BOE] has proven are substantial
and go to the heart of [petitioner's] competence as a teacher. The sustained conduct
amounts to incompetence and inefficient service, neglect of duty, conduct unbecoming
[petitioner's] position, substantial cause rendering [petitioner] unfit to perform her
teaching duties, and just cause for disciplinary action.
Petitioner now argues that given her thirteen years of service
with the BOE, the subjective nature of the charges and her lack of prior disciplinary
history with the BOE makes it clear that the 2/28/14 Determination is "draconian,
excessive and shocking to the conscience and should be promptly vacated for a penalty
less than termination." Petitioner specifically contends that HO Cullen's finding that
petitioner could not be rehabilitated is shocking to the conscience because "[n]o
reasonable individual could improve in such a hostile environment" as FDA. Petitioner
claims that HO Cullen's Determination was tainted by the FDA administration's bias.
Petitioner also maintains that HO Cullen held it against petitioner that petitioner did not
incriminate herself and failed to properly weigh petitioner's positive performance. "Taken
together, it is clear that [*6][HO Cullen] made her
conclusion of termination for petitioner well before the hearing had ended, and her
decision of termination shocks the conscience.
"Respondents argue that the petition should be dismissed
because petitioner has failed to establish any basis for vacatur and the penalty of
termination does not shock the conscience. Respondents further argue that The City of
New York is not a proper party to this proceeding.
Discussion
At the
outset, insofar as respondent BOE is not a department of respondent The City of New
York, BOE is therefore a separate and distinct legal entity (see Education Law §
2590-g [2]), respondents' motion to dismiss the petition as to respondent The City of
New York must be granted (see i.e. Perez v. City of New York, 41 AD3d 378 [1st Dept
2007]).
The Court now turns to the balance of the motion, which
attacks the sufficiency of the petition. Education Law § 3020-a (5) provides that a
petition to vacate or modify the determination of a hearing officer issued after a
disciplinary proceeding must be filed in Supreme Court pursuant to CPLR § 7511.
Under CPLR § 7511 (b) (1), judicial review of the hearing officer's determination is
limited to finding whether the rights of the challenger were prejudiced by:
(i) corruption, fraud or misconduct in procuring the award; or
(ii)
partiality of an arbitrator appointed as a neutral, except where the award was by
confession; or
(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 submitted
was not made; or
(iv) failure to follow the procedure of this article, unless the party applying to vacate
the award continued with the arbitration with notice of the defect and without
objection.
Because the arbitration at issue was compulsory, the court's
review must also determine whether the 2/18/15 Determination was rendered "in accord
with due process and [was] supported by adequate evidence," and whether it satisfies the
arbitrary and capricious standard of CPLR Article 78. (Rubino v. City of New York,
34 Misc 3d 1220(A) (NY Sup, NY Co 2012) aff'd [*7]106 AD3d 439 [1st Dept 2013] citing Lackow v. Dept. of Educ. [or
"Board"] of the City of NY, 51 AD3d 563, 567 [1st Dept 2008]; see also Matter of Asch v. New York City
Bd./Dept. of Educ., 104 AD3d 415 [1st Dept 2013]).
"Moreover, '[a]rbitration awards may not be vacated even if
the court concludes that the arbitrator's interpretation of the agreement misconstrues or
disregards its plain meaning or misapplies substantive rules of law, unless it is violative
of a strong public policy, is totally irrational, or exceeds a specifically enumerated
limitation on his power' " (Asch, supra at 419, quoting Matter of
Wicks Constr. [Green], 295 AD2d 527, 528 [2d Dept 2002]).
Here, petitioner has failed to establish entitlement to the relief
she seeks. Her arguments essentially boil down to: [1] HO Cullen must have been biased
in light of the 2/28/14 Determination; [2] the 2/28/14 Determination was against the
weight of the evidence; and [3] and the discipline imposed was excessive and "shocking
to the conscience". The Court rejects each. Petitioner has failed to offer any evidence
which would show that HO Cullen was biased. Petitioner's allegations of bias lack any
factual support and amount to mere speculation. Absent specific allegations which would
establish that HO Cullen was biased, vacatur on this ground does not lie. Indeed, HO
Cullen heard testimony over a five month period and otherwise followed proper
procedures. The 2/28/14 Determination contains a detailed findings of fact and
conclusions with regard to each charge. Here, there are no facts alleged which would
establish entitlement to relief under CPLR § 7511 (b) (1) (i) or (ii).
Nor has petitioner established that the 2/28/14 Determination
was against the weight of the evidence. HO Cullen found petitioner guilty of all but one
sub-specification of Specification 1, all of Specification 3 and all but one
sub-specification of Specification 4. Specification 1.s, 2 and 4.c. were dismissed. The
testimony and evidence adduced at the hearing support HO Cullen's findings. To the
extent that petitioner attacks HO Cullen's credibility determinations, "[a] hearing officer's
determinations of credibility are largely unreviewable because the hearing officer
observed the witnesses and was able to perceive the inflections, the pauses, the glances
and gestures—all the nuances of speech and manner that combine to form an
impression of either candor or deception' " (Lackow v Department of Educ. [or
"Board"] of City of NY, 51 AD3d at 568, quoting Matter of Berenhaus v
Ward, 70 NY2d 436, 443 [1987]).
Finally, HO Cullen's finding that petitioner should be
terminated was neither arbitrary and capricious nor was termination excessive. While
petitioner lacked a prior disciplinary history, this fact alone does not preclude
termination. HO Cullen found termination to be appropriate here because there was no
evidence that petitioner could be rehabilitated. Petitioner often stated during the course
of the hearing that she would not do anything differently, contrary to petitioner's
counsel's arguments to the contrary, and despite the many training opportunities offered
her, petitioner's performance did not significantly improve over the course of a three year
period. FDA administration often observed that "no instruction" took place during
petitioner's classes. Observations of petitioner's classes were described as "chaos".
Instead of improving her method of instruction and classroom management, petitioner
faulted her class assignments and complained about constructive criticism from FDA
administration. For example, in response to Principal Amon's requirement that petitioner
provide a week's worth of lessons to Ms. Amon each Friday, petitioner said to Ms.
Amon: "it is embarrassing that you insist that I need monitoring with my lesson plans. I
perceive this as an accelerated attempt to keep continue (sic) the persecution against
me."[*8]
During the 2010-2011 school year, petitioner wrote
"Ms. Amon is a bitch" in a lesson plan she prepared to be used by a substitute teacher.
HO Cullen discredited petitioner's explanation that someone tampered with her files.
Otherwise, students walked out of her classroom at will, put on make-up or read books
instead of paying attention and engaging in formal instruction and were otherwise
disorderly. Based on these findings, petitioner has failed to allege sufficient facts which
could show that termination was a "disproportionate penalty."
Petitioner's claims that she was subject to "a clearly hostile
environment" are unsubstantiated. Specifically, petitioner claimed that criticism she
received from FDA administration was "depressing", that FDA administrators mocked
her accent, told her she should resign and "refused to acknowledge her or say hello to
her." Petitioner also points to objective measures of her performance, such as "the
percentage of her students that passed the New York State Mathematics Examination"
and claims that "her students outperformed several of her colleagues who were not
targeted for discipline." However, these claims, even if proven, do not warrant a different
result because given the totality of the circumstances, termination would still not shock
the conscience. Indeed, HO Cullen considered petitioner's class assignments and her
prior years of satisfactory service (see i.e. Mater of Asch v. New York City Bd./Dept. Of Educ., 104
AD3d 415
[1st Dept 2013]). This was not a case of an isolated incident; BOE submitted written
documentation of petitioner's deficient performance, including twenty-one unsatisfactory
observation reports issued over the course of three different school years.
Based on the foregoing, respondents have established that
they are entitled to dismissal and the petition is denied.
Conclusion
In accordance herewith, it is
hereby
ORDERED that respondent's cross-motion to dismiss is
granted; and it is further
ORDERED that the petition is denied.
Any
requested relief not expressly addressed by the Court has nonetheless been considered
and is hereby denied and this constitutes the decision and order of the Court.
Dated:March 21, 2015
New York, New York
So
Ordered:____________________
Hon. Lynn R. Kotler, J.S.C.