CPLR 75 CAROLI v. NEW YORK CITY DEPARTMENT OF EDUCATION

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Supreme Court, Kings County, New York.

In the Mtr of an Application Pursuant to CPLR Article 75, Minerva CAROLI, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.

523308/16

Decided: June 25, 2020

Attorneys for Petitioner, Jonathan B. Behrins, Esq, 1491 Richmond Rd., Staten Island, NY 10304 Attorneys for Respondent, Georgia M. Pestana, Esq., BEHRINS LAW FIRM PLLC, Corporation Counsel of the City of N.Y., 100 Church Street, room 20146, N.Y., N.Y. 10007-2601

Petitioner Minerva Caroli (“petitioner” or “Caroli”) brings this proceeding pursuant to CPLR Article 78 to challenge the determination of a hearing officer  1 which terminated her services as a tenured guidance counselor from respondent New York City Department of Education (“respondent or DOE”). Since this court's authority to review the hearing officer's factual findings which upheld the charges brought by respondent is very narrow, this court must uphold most of the findings. However, the court nevertheless finds the penalty of termination to be shocking to one's conscience” and too punitive and disproportionate to the offense, and therefore remands the case back to the arbitrator to assess a lesser penalty.

In 2016  2 the DOE brought disciplinary charges against Caroli under Education Law § 3020-a consisting of four specifications which it claims constituted just cause for discipline, insubordination, early departure, conduct unbecoming respondent's position, substantial cause rendering respondent unfit to perform her duties, violation of DOE Bylaws, neglect of duty and just cause for termination. A due process hearing pursuant to Section 3020-a was held over a number of days.

It is clear that Caroli has been employed by DOE for 28 years and at some point obtained tenure as a guidance counselor and served in that tenure area for approximately 15 years. For some unknown reason in 2015 the DOE assigned Caroli to the Absent Teacher Reserve (“ATR”) where she had many assignments as a guidance counselor, including her placement, on May 11, 2016. in the STAR Early College School at Erasmus High School (“STAR”). Caroli admitted that over the 15 years she was a counselor she received two “U” ratings, but there is no record of her ever having been disciplined or brought up on Education Law § 3020-a charges.

Eric Blake, the principal of STAR (Principal or “Blake”) testified that the duties of guidance counselors at STAR “are advisories, not instructional, not like they are teaching lesson plans. They provide workshops about bullying, cyber bullying and whatever the kids need.” They also review transcripts to make sure the kids are on track for graduation as well as “providing emotional support for students in an advisory capacity.” Blake testified that STAR is a campus school and that everyone, including teachers and guidance counselors, take lunch during fifth period. He indicated that on a regular basis teachers and counselors are assigned to his school for a short duration from the ATR. Blake testified that when Caroli first arrived at the school on May 11, 2016, she went to the main office and started yelling and demanding to see the principal. Caroli complained to him that she is a guidance counselor but had been given a teacher's schedule. Blake told her that he gave her a guidance counselor's schedule wherein she would be in a room with 26 seniors to assist with college applications. Caroli also disputed her schedule and working hours - although she knew each school had a different hours, she arrived at 7:45 a.m. and left at 2:40 p.m.

Specification 1: Between May 11-17, 2016 respondent left early on five occasions without permission from the administration.

Specification 4: On May 12, 2016, Respondent left the school building without permission from the school administration.3

Assistant Principal Evan Goldwin(“Goldwin”) testified that respondent was contractually obligated to be in the school for seven hours and 15 minutes every day, commencing at 8:00 am through 3:15 pm. Blake testified that Respondent had been leaving the school consistently at 2:40 since she arrived, except for May 17th.

Respondent testified that although she knew each school had different hours, she arrived at 7:45 every morning and left at 2:40 p.m. because “that is when she got there” and because the administration never informed her that her hours were 8:00 am until 3:15 pm until the disciplinary conference on May 16th. She also testified that by working from 7:45 am until 2:40 pm, she was in compliance with the UFT contract which required teaching staff to work for 6.5 hours exclusive of lunch. While admitting that she was given a “teacher's schedule” which indicated a starting time of 8:05, it was against the UFT contract for her to follow a teacher's schedule. However, Respondent's witness Nicole Jourdain, the UFT rep, testified that although it says teachers schedule, it's essentially a “bell schedule” that everyone follows. The arbitrator concluded that Caroli had been given the schedule on May 11th and hence was on notice of the daily schedule, and that it was not within her prerogative to set her own hours resulting in a shorter day than directed As such he found her guilty of leaving 35 minutes early for four days but not guilty of leaving early on May 17th when she stayed for her the full day

As to specification 4, Blake testified that on May 12, A.P. Goldwyn informed him that Caroli was not present in the building around 1:42 and that when he paged her over the PA system at 2:20, she did not respond. Blake testified that the lunch period for all teachers and guidance counselors was fifth period between 11:15 and noon and that Caroli should have known the schedule since it was given to her on the first day of her arrival. Goldwyn also testified that she never asked a supervisor's permission and could not be located. Caroli testified that she took lunch at that time because she had done so at other schools and no one had informed her that fifth period was the designated lunch period and that she returned before the end of eighth period wherein she spoke to Ms. Jourdain, the UFT chapter leader, in the teacher's lounge․ Goldwyn testified that Caroli had no assigned duties during fifth period, and that the staff could have informed her had she asked, and this time was outside the fifth period time frame allocated for lunch Respondent's witness Ms. Jourdain confirmed that respondent was at lunch during seventh period and that the staff does not have to sign in and out of the building for lunch but only if they leave the building during other times. Goldwin also admitted that teachers need not sign out during their designated lunch periods.

The arbitrator also found respondent guilty of specification 4. He did not credit Jourdain's' corroboration of Caroli's testimony that she returned from lunch because Jourdain heard Caroli being paged on the PA system and logically would have informed Caroli to report to the administration if she in fact her seen her late in the school day. Because respondent had no classes or responsibilities during period 5, and did not ask some one about the gap in schedule, arbitrator found that it was inexcusable that she “took it upon herself to schedule her own lunch time, different from her assigned schedule, and left the building without authorization at the time observed. Finally, since the standard lunch time was period 5, Caroli did have to sign in and out because she was taking lunch outside of the authorized time.

Specification 2: On May 16, respondent walked out of a disciplinary meeting before it was concluded.

On May 16, A.P. Goldwyn called a meeting with Ms. Caroli to discuss the events of May 11th and 12th and determine what disciplinary action, if any should be taken. Goldwyn testified that Respondent was dismissive, insubordinate and unprofessional during the meeting, and that she left before the meeting was over. He produced a letter on May 17 summarizing the meeting but Caroli did not sign for it.

However, the arbitrator's summary of the testimony about this meeting is confusing as he attributes this meeting as occurring on May 12th rather than the 16th. He first states that Blake held that the May 16th meeting to address Caroli's unprofessional and objectionable behavior and that Caroli constantly cut him off and was belligerent and uncooperative and left early. Blake then held another meeting with Caroli on May 17th to discuss what had happened at the May 16th meeting wherein respondent was more cooperative but that she refused to sign the letter he gave her. Because he was not getting any cooperation from Caroli he asked to have her reassigned to which she allegedly replied “Thank god I am leaving this crazy place.” Yet, the arbitrator then states that Caroli testified about a disciplinary meeting that was held on May 12th  4 wherein Caroli refuted Blake's accusation that she did not return from. After she told Blake that had returned to school after taking a late lunch on May 12th, Blake called her a liar and that she thereupon excused herself and left. She explained that it was a 15-minute meeting and those 15 minutes were already up and that she had enough of calling her a liar.

In his Opinion, the arbitrator specifically ruled: “Respondent admitted she left the disciplinary meeting called by the administration on May 12, 2016. It is clear that she may have been upset with the meeting content,” but that did not justify her being insubordinate and leaving the meeting.

On May 17, A.P. Goldwyn memorialized the May 16th meeting in a letter. Goldwyn stated that the total lost time due to Caroli leaving early was 140 minutes.  5 He informed her that due to her “ongoing pattern of early departures from work and abrupt departures from mandatory meetings” he had put her on a time card for the next three weeks. He chastised her for making “a subjective determination that your day would end at 2:40 p.m.” in response to Caroli's explanation that no one at STAR ever told her the official start or end time. Goldwyn refused to accept the UFT reps alternative suggestion that Caroli sign in and out rather than punch in.

Goldwyn then wrote that ever since her arrival, Caroli had been “nothing but brazenly insubordinate, argumentative and unprofessional” and that her actions had been “disruptive” to the school leading him to believe that she would not “subscribe to our schools policies or procedures. Therefore, in addition to directing her to punch in, Goldwyn also decided to dock her pay for the five days that she had been “fractionally absent” He also advised her that this incident might lead to further disciplinary action, including an “U” rating and termination.

Specification 3: On May 11, 2016, Respondent refused to follow the directive of the administration regarding her classroom assignment and raised her voice towards administration in the main office in the presence of students and staff.

Principal Blake testified that on May 11th he heard respondent yelling outside of his office and telling two secretaries that she needed to see him. Caroli told him that she was given a teacher's rather than a guidance counselor's assignment/program and that “she knows her rights.” Blake responded that she had a counselor's program and that she was assigned to “an advisor's room” where 26 students were doing their college applications and that she was to go there and guide them through the process. Respondent instead kept on yelling and pointing her finger in front of parents and students who had entered into the room. At around 8:10 he called AP Goldwyn to escort her to the classroom. Respondent told him that she knew her rights, had been a counselor for two decades, had worked in many schools and had never been asked to be in a classroom with students.

Caroli testified on May 11th she was given a teacher's schedule, in violation of the contract, and that she complained about it to the Parent Coordinator. She denied raising her voice or ranting and yelling for 15 minutes and that the principal raised his voice to her and walked away while she was speaking. Respondent did go her “Advisory” assignment and performed those duties through May 17th Her witness, Julie Williams, who is also a guidance counselor, testified that in 2014 she was also given a teacher's assignment at STAR and that when she complained, Dr Blake told her that she had to do the assignment. She stated that respondent was very dedicated to her job and was a “calm” and “quiet person.” Caroli also presented as a witness Felix Backer, who was a guidance counselor for 29 years and worked at Erasmus, in which STAR is located, at the same time that Caroli worked there. He too was assigned to the classroom to do Advisory, but opined he did not want to perform Advisory because it was not part of his job and prior to Erasmus had never taught advisory classes.

The arbitrator credited Blake's justification for assigning Caroli to the Advisory class - that she would be providing guidance services, including lessons on cyber bullying, and emotional support, as opposed to instruction. and did not even mention the other guidance counselors' testimony when ruling on specification 3. He found that despite these assurances, respondent remained argumentative and continued raising her raising her voice towards the administration in the main office in the presence of students and staff. While acknowledging that respondent was upset about receiving a schedule that she viewed as a teacher's schedule, the arbitrator found respondent insubordinate in refusing to follow the supervisor's directive regarding her classroom assignment.

Arbitrator's Ruling on Penalty

The DOE sought the termination of respondent's employment based upon her actions which constituted insubordination and conduct unbecoming her profession. Respondent contended that the charges brought against her were retaliation for “what is a huge misunderstanding within a few days of May 11th.” Respondent claimed that she has always been a dedicated guidance counselor who was in the “very inappropriate position” of constantly being rotated in the ATR from school to school. Prior to her experience at STAR, Caroli had never been the subject of disciplinary proceedings. Caroli had the right to protest being given a teacher's schedule and the school administration refused to listen to her. Respondent urges that she receive no penalty and that she be returned to the ATR.

After reciting the broad standards afforded to arbitrators in making credibility determinations, the arbitrator first found that there was no evidence that either the principal or AP were out to target respondent negatively. The arbitrator faulted respondent for not seeking clarification of her schedule for starting or ending times or for lunch, since she was an experienced teacher who had already worked at numerous schools through the ATR which had different schedules and assignments, Despite her experience with varying schedules, she took it upon herself to set her own start and end times, resulting in her leaving work early at least four times despite her assigned schedule. Nor did respondent inquire when lunch period was despite her having no assignment during fifth period. She also left the building without authorization and if she did return, she never reported to the office.

The arbitrator concluded that respondent was “consistently belligerent and uncooperative․she followed her own rules and argued with administrators and staff armed with her ever present contract.” Rather than following the wise advise of her UFT to fulfill her role as a guidance counselor and grieve later, she continued to be belligerent and not follow directives. Even when the administration held disciplinary meetings (for respondent to correct her behavior) Caroli left the meeting without authorization and “continued to be argumentative, insubordinate and uncooperative.” Based upon these findings, the arbitrator determined that the rehabilitation was impossible because of respondent's “indifference and consistent failure in recognizing and appreciating that her conduct serves as an impediment to student safety and to a secure learning environment.” and that termination was appropriate.

Standard of Review

Education Law § 3020-a (5) provides that judicial review of a hearing officer's decision must be conducted pursuant to CPLR 7511. Mtr. of Bd. of Educ. of Dundee Cent. School Dist. (Coleman), 96 A.D.3d 1536, 1536, 947 N.Y.S.2d 707 (2012); Lackow v. Dept. of Educ. of City of New York, 51 A.D.3d 563, 567, 859 N.Y.S.2d 52 (1st Dept. 2008). Judicial review of an arbitrator's findings is extremely limited and an award may only be vacated on a showing of “misconduct, bias, excess of power or procedural defects.” Austin v. Board of Educ. of City School Dist. of City of N.Y., 280 A.D.2d 365, 720 N.Y.S.2d 344 (1st Dept. 2001). A court may vacate an award pursuant to CPLR 7511(b)(1)(iii), only if it violates “a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.” Mtr. of Falzone (N.Y. Cen Mut. Fire Co.)., 15 N.Y.3d 530, 534, 914 N.Y.S.2d 67, 939 N.E.2d 1197 (2010); Mtr. of Bd. of Educ. of Arlington Cent. School Dist. v. Arlington Teachers Assn., 78 N.Y.2d 33, 37, 571 N.Y.S.2d 425, 574 N.E.2d 1031 (1991); Mtr. Of Town of Babylon v. Carson, 111A.D. 3d 951, 953, 976 N.Y.S.2d 501 (2d Dept. 2013).

Where, however, the parties have submitted to compulsory, as opposed to voluntary arbitration, the award must satisfy an additional layer of judicial scrutiny. City School Dist. of the City of N.Y. v. McGraham, 17 N.Y.3d 917, 919, 934 N.Y.S.2d 768, 958 N.E.2d 897 (2011); Lackow v. Dept. of Educ., supra, 51 A.D.3d at 567, 859 N.Y.S.2d 52 (1st Dept. 2008). See, Mtr. of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sr. Co., 89 N.Y.2d 214, 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349 (1996). The award “must have evidentiary support and cannot be arbitrary and capricious. ” McGraham, supra,17 N.Y.3d at 919, 934 N.Y.S.2d 768, 958 N.E.2d 897 quoting Mtr. of Motor Veh. Acc. Indem, supra, 89 N.Y.2d at 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349. Since Education Law § 3020-a mandates arbitration for disciplinary charges, the arbitration is compulsory, and the teacher's due process rights must be scrupulously protected Lackow, supra, 51 A.D.3d at 567-68, 859 N.Y.S.2d 52. The decision must be supported by adequate evidence; i.e. there must be a “rational basis [in the whole record] for the findings of fact”. Carroll v. Pirkle, 296 A.D.2d 755-56, 745 N.Y.S.2d 271 (3d Dept. 2002); Mtr. Of Berkley v. N.Y.C Dept. of Educ., 2016 N.Y. Slip. Op. 31210(U), 2016 WL 3485375 at 6, 2016 N.Y. Misc. LEXIS 2391 at 12 (Sup. Ct., N.Y. Co. 2016).

However, despite this greater judicial scrutiny, the arbitrator's findings of fact and determinations of credibility are afforded very broad deference, even where there is conflicting evidence and room for choice exists.” Mtr. of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 A.D.3d 1012, 1013, 879 N.Y.S.2d 568 (2d Dept. 2009); Mtr. of Mazzella v. Bedford Cent. Sch. Dist., 49 Misc. 3d 675, 683 (Sup. Ct., West. Cty. 2015). A hearing officer's determinations of credibility are “largely unreviewable” because the hearing officer observed the witnesses and was “able to perceive ․ all the nuances of speech and manner that combine to form an impression of either candor or deception.” Lackow v. Dept. of Educ., 51 A.D.3d at 568, 859 N.Y.S.2d 52 citing to Mtr. of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 (1987). Even if a court concludes that it might have reached a different result it must sustain the arbitrator's determination if it is supported by a rational basis. Mtr. Of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 (2009); Mtr. of Ford, supra, 2019 WL 124189 at 6, 2019 N.Y. Misc. LEXIS at 14. A court “cannot examine the merits of an arbitration award and substitute its judgment for that of arbitrator” simply because the court believes that its interpretation is better. Mtr. of Ford v. Bd. of Educ., 2019 WL 124189 at 6, 2019 N.Y. Misc. LEXIS at 14-15 citing to Mtr. of N.Y. State Correctional Officers & P.B.A. v. N.Y., 94 N.Y.2d 321, 326, 704 N.Y.S.2d 910, 726 N.E.2d 462 (1999).

Based upon these very narrow parameters, this court must uphold most of the arbitrator's findings of guilt on the specifications, including his crediting Blake's justification for assigning Caroli to the Advisory class - that she would be providing guidance services - and that despite the principal's assurances, respondent remained argumentative (Specification 3). However, the arbitrator's ruling implies that Caroli persisted to be insubordinate and not follow directives about her assignment throughout her stay at STAR when the evidence reveals that her “insubordination” on March 11th lasted about 15 minutes. There is absolutely no evidence that respondent did not ultimately go to her classroom assignment on May 11, after being escorted there by her principal, or that she did not continue to satisfactorily perform her assigned duties for the five days that she taught at STARS. As will be set forth below, this distinction is crucial to the court's determination that termination was too extreme a penalty.

The arbitrator confused the date of the disciplinary meeting that Caroli walked out on. While Specification 2 reads that On May 16, respondent walked out of a disciplinary meeting before it was concluded, the opinion consistently refers to the disciplinary meeting as having occurred on May 12th, which is not backed up by any evidence. Rather this is the date that Caroli supposedly left school early and did not return (specification 4) so how could there even have been a meeting on that date? The record is also clear that Caroli stayed for the entire meeting on May 17th. While this court will not attribute malice or bias against the arbitrator for this mistake, it does note that the arbitrator was careless in making this finding and that the record is clear that Caroli only walked out of one disciplinary meeting․

Penalty

The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020—a is whether the punishment of termination was so excessive or disproportionate to the offenses as to be “shocking” to the court's sense of fairness. See Harris v. Mechanicville Cent. Sch. Dist., 45 N.Y.2d 279, 283, 408 N.Y.S.2d 384, 380 N.E.2d 213 (1978); Mtr. Of Pell v. Bd. of Educ., of Union Free School Dist No. 1, 34 N.Y.2d 222, 223, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974); Mtr. Of Brito v. Walcott, 115 A.D.3d 544, 982 N.Y.S.2d 105 (1st Dept. 2011). A result is shocking to one's conscience if the sanction imposed is “disproportionate to the misconduct of the individual or to the harm or risk of harm to the agency. Mtr. Of Pell, supra, 34 N.Y.2d at 234, 356 N.Y.S.2d 833, 313 N.E.2d 321; Mtr. Of Brito, supra. The court must consider the proportionality of the petitioner's penalty in light of “all the circumstances” and not in isolation from the context in which they occurred. Mtr. Of Principe v. N.Y.C. Dept. Of Educ.,94 A.D.3d 431, 434, 941 N.Y.S.2d 574 (1st Dept. 2012) (Hearing Officer failed to consider all of the circumstances and relevant evidence, and viewed the incidents in isolation and divorced from the context in which they occurred, thus likely influencing his determination that petitioner should be terminated. Lesser sanctions are available);

In determining a penalty an arbitrator is to be guided by a teachers past record, whether his misconduct escalated from prior similar instances of misconduct, was repetitive and or part of a pattern and practice. Mtr. Of Gongora v. N.Y.C. Dept. Of Educ., 34 Misc. 3d 161,180, 930 N.Y.S.2d 757 (Sup. Ct., N.Y. Co. 2010). Where a teacher's conduct involves no finding of “moral turpitude, moral delinquency or predatory motive”, termination is not warranted․ Harris v. Mechanicville C.S.D., supra, 45 N.Y.2d at 285, 408 N.Y.S.2d 384, 380 N.E.2d 213 (teacher resumed teaching Catcher in the Rye to his class despite having agreed not to teach book and then walked out of a conference with principal). See also, Mtr. Of Diefenthaler v. Klein. 27 A.D.3d 347, 811 N.Y.S.2d 653 (1st Dept. 2006); Mtr. Of Muraik v. Landi, 19 A.D.3d 697, 798 N.Y.S.2d 497 (2d Dept. 2005); Perotti v. Bd. Of Educ., 218 A.D.2d 803, 631 N.Y.S.2d 65 (2d Dept. 1995)(termination reversed where petitioner's misconduct of authorizing payment of retroactive salary to himself without board approval and failing to disclose existence of shortfall in school budget did not rise to level of intentional wrongdoing, and did not involve moral turpitude or fraud).Mtr. of Riley v. City of New York, 2010 N.Y. Slip Op. 32540 [U], 2010 WL 3728196 (Sup. Ct., N.Y. Co. 2010) affd 84 A.D.3d 442, 921 N.Y.S.2d 849(1st Dept. 2011).

Courts have repeatedly found the penalty of termination to be disproportionate to the offense and shocking to one's sense of fairness where the petitioner was found guilty of a single or isolated incidents of misbehavior and otherwise had a clean record of employment and no prior discipline. See, Mtr. Of Fernandez v. N.Y.C. Tr. Auth., 120 A.D.3d 407, 990 N.Y.S.2d 519 (2d Dept. 2014) (15 years of positive performance evaluations and no record of discipline); Solis v. Dept. of Educ.․ of the City of N.Y., 30 A.D.3d 532, 817 N.Y.S.2d 901 (2d Dept. 2006)(12 years of unblemished employment ); Mtr. Of Destefano v. Board of Coop. Educ. Servs. of Nassau County, 26 A.D.3d 433,434, 809 N.Y.S.2d 203 (2d Dept. 2006) (termination disproportionate to the offense even though teacher found guilty of misconduct relating to her physical altercation with a coworker, where teacher had an “otherwise unblemished 14-year record of employment,). See also, Mtr. of Brito, supra, 115 A.D.3d at 547, 982 N.Y.S.2d 105 (petitioner's behavior in having a romantic liaison with another teacher demonstrated a lapse in judgment but there was no evidence that incident was anything but a “one time mistake mandating reversal of termination): Mtr. Of Principe, supra, 94 A.D.3d at 433-35, 941 N.Y.S.2d 574 (termination disproportionate to finding of corporal punishment as no evidence that petitioner's actions were premeditated and petitioner had spotless five year record.); Mtr. of Perotti, supra.

The courts also consider whether a teacher's actions were part of a pattern or that his conduct involved “persistent unwillingness to accept” his superior's directives. Harris v. Mechanicville C.S.D., supra, 45 N.Y.2d at 285, 408 N.Y.S.2d 384, 380 N.E.2d 213 The concern in rendering a penalty is whether the teacher exhibits a pattern of behavior, “despite previous warnings and disciplinary proceedings.” Mtr. of Board of Educ. of the Dundee Cent. School Dist. v. Coleman, 29 Misc. 3d 1204(A), 2010 WL 3815181 (Sup. Ct., Yates Co. 2010) at 10. See generally, Lackow, supra 51 A.D.3d at 569, 859 N.Y.S.2d 52)( continued pattern of offensive behavior despite previous warnings); Auxier v. Town of Laurens, 23 A.D.3d 912, 914, 804 N.Y.S.2d 134 (3rd Dept. 2005) (“repeatedly disregarded the instructions of his supervisor”); Jones v. NYC Bd. Of Educ., 189 A.D.2d 818, 592 N.Y.S.2d 441 (2d Dept. 1993) (petitioner failed to improve his performance despite many warnings and opportunities to do so and no evidence that he could improve his skills if permitted to return to work). Likewise, the courts look to whether there any other previous progressive disciplinary steps. Mtr. Of Ansley v. Jamesville - DeWitt C.S.D., 174 A.D. 3d 1289 1291, 103 N.Y.S.3d 735 (4th Dept. 2019); Fernandez v. New York City Transit Auth., 120 A.D.3d 407, 990 N.Y.S.2d 519 (1st Dept. 2014).

Findings of misconduct related to time and attendance will not warrant the penalty of termination of petitioners with otherwise unblemished records unless the misconduct involved a scheme to defraud the government of money, and or the teacher engaged in this practice for a long time. See, Mtr. of Patterson v. City of N.Y., 96 A.D.3d 565, 566, 946 N.Y.S.2d 472 (1st dept. 2012) ( using a false address in Albany to avoid paying NYC income tax for three years); Mtr. Of Rogers v. Sherburne- Earlville Cent. Sch. Dist., 17 A.D.3d 823, 792 N.Y.S.2d 738 (3d Dept. 2005) (falsifying official school records and a pattern of excessive leave time usage).

However, where there was no intent to defraud the government and there was no proof that the operations or finances of the board of education were adversely affected, the courts will overturn the finding of termination. Mtr. Of Sullivan v. County of Rockland, 150 A.D.3d 743, 55 N.Y.S.3d 252 (2d Dept. 2017) (single incident of falsification of business records by making false entry in government computer system not so egregious or of such moral turpitude to warrant termination given unblemished record); Mtr. of Guzman v. City of N.Y., et al., 105 A.D.3d 460, 963 N.Y.S.2d 86 (1st Dept. 2013) (termination too harsh a penalty based upon finding that teacher had engaged in a fraudulent scheme to enroll granddaughter in public school using a false address since no evidence that granddaughter was not a city resident and hence entitled to a tuition free education, and hence no proof that teacher had engaged in scheme to defraud city of money); Mtr. Of Suker v. NYC Dept. of Educ., 2013 N.Y. Slip Op. 31694(U), 2013 WL 3948422, 2013 N.Y. Misc. LEXIS 3298 (Sup. Ct. N.Y. Co. 2013) (same). See also, Muraik v. Landi, 19 A.D.3d 697, 698, 798 N.Y.S.2d 497 (2d Dept. 2005) (termination excessive where petitioner had engaged in several instances of misconduct in knowingly submitting false time records for his subordinates, given petitioners 20 years of good service where he was only disciplined only once, some 13 years before this proceeding; his misconduct did not involve moral turpitude or malice; and there was no proof that his conduct adversely affected the operation of business or finances of government). See also, Khouma v. City of N.Y., 2011 N.Y. Slip. Op. 34200(U), 2011 WL 12873350, 2011 N.Y. Misc. LEXIS 7285 (Sup. Ct., N.Y. Co 2011) (penalty of fine of $15,000 shocking to sense of fairness and disproportionate to proven charge of misconduct and insubordination for taking unauthorized time off right before and after winter break (2days) given non existence of disciplinary record over 20 years and lack of financial or pedagogical impact of his time off).

The Court finds that the penalty of termination for Caroli's “misconduct” in leaving school early for four days and leaving school without permission on one day to take lunch at a time other than period 5 (specifications 1 and 4) to be shocking to one's conscience and disproportionate to the offense. There is absolutely no evidence that Caroli either falsified records, engaged in a fraudulent scheme, or affected the financial well being of the DOE by leaving early or taking lunch at an unusual time. In fact, Caroli was quite transparent in clocking out early at 2:40 p.m. rather than at the required 3:15 p.m. time for four days. While the arbitrator found Caroli guilty of leaving school early for 35 minutes on four separate days, the DOE did not submit any evidence to refute Caroli's testimony that she arrived at school at 7:45 each day rather than the usual 8:00 am so that in reality she worked 20 minutes less each ay for a total of 80 minutes. Nor is there any evidence that prior to working at STARS, Caroli ever determined her “own schedule” or cheated the DOE of time during her 28 year history with the DOE. Additionally, when the principal directed her on May 16th to comply with the school hours on May 16th, she immediately complied, resulting in the arbitrator's dismissal of Specification I (5). Similarly, Caroli only took her “lunch break” outside of the fifth period mandate on the first day she worked on STAR and did not repeat this supposed egression. Witnesses uniformly testified that teachers need not sign out of the building for lunch.

Furthermore, in imposing the penalty of termination the arbitrator neglected to even mention that the DOE had already disciplined Caroli for her time and attendance gaffs by docking her pay for five days that she had been “fractionally absent” (see disciplinary letter of Goldwyn dated May 17th). In fact, Goldwyn docked Caroli for fragments of five days in which she left early although the arbitrator found that she was only guilty of leaving early for four days. Furthermore, Caroli presented unrefuted evidence that she only owed the school 20 minutes per day rather than the 35 minutes for which she was docked.

Education Law § 3020-a provides the exclusive method of disciplining a tenured teacher in New York and requires a due process hearing prior to the imposition of “a reprimand, a fine, suspension for a fixed time without pay or dismissal” ( § 3020-a [4]). Mtr. of Garcia v. Department of Educ. of City of N.Y., 18 Misc. 3d 503, 508-09, 852 N.Y.S.2d 639 (Sup. Ct., N.Y. Co. 2007). The use of the disjunctive “or” in the statute indicates an alternative manner of proceeding — a choice of penalties․ Mtr. Of Adrian v. Bd. of Educ., East Ramapo C.S.D., 60 A.D.2d 840, 400 N.Y.S.2d 570 (2d Dept. 1978) (see McSweeney v. Bazinet, 269 App. Div. 213, 55 N.Y.S.2d 558, affd 295 N.Y. 797, 66 N.E.2d 580). The exclusivity of only one penalty is reinforced by notice in the statute of an ascending rank of severity, beginning with a reprimand and ending with a dismissal. Mtr. Of Adrian, supra. (The DOE cannot impose as a punishment both a suspension and fine ). “More than one of the enumerated penalties cannot be prescribed.” Bd. Of Educ. v. Ambach, 84 A.D.2d 55, 58, 446 N.Y.S.2d 444 (3rd dept. 1981); See, Mtr. of Bd. of Educ. of Dundee Cent. School Dist. (Coleman), 96 A.D.3d 1536, 947 N.Y.S.2d 707; Mtr. Of McSweeney v. Bd. Of Educ., 138 A.D.2d 847, 525 N.Y.S.2d 956 (3d Dept. 1988) (improper for the hearing panel to impose two penalties on school teacher found guilty of professional misconduct as § 3020-a(4) only permits it to choose one penalty; since teacher's suspension had already been effected, letter of reprimand would be lifted). See, Mtr. of Garcia, supra, 18 Misc. 3d at 508-09, 852 N.Y.S.2d 639 (the arbitrator must only order one penalty and cannot devise a penalty (demotion) other than the four set forth in Education Law § 3020-a (4)).

Since Caroli was already disciplined for her time and attendance misconduct by being docked pay, which is tantamount to a fine, Education law 3020a(4) prohibits her from receiving any other punishment for this charge unless her docked pay is restored.

The only remaining question is whether Caroli's clear insubordination and misconduct in yelling at and challenging the administration about her assignments and leaving a disciplinary meeting before it was over warrants termination. Contrary to the arbitrator's depiction of Caroli's presence at STAR as “Five (rather than 10) Days that Shook the World,” her brief stint there was but a minute episode in her otherwise satisfactory carrer at DOE for 28 years. Furthermore, it appears everything spiraled out of control after Caroli loudly challenged her assignment for 15 minutes on May 11th and then left school for lunch after Fifth period was over on March 12th․ The court must consider the immediate context of her misconduct. Mtr. of Figuereo v. Lipsman, 25 A.D.3d 699, 811 N.Y.S.2d 730 (2d Dept. 2006); Mtr. Of Gongora v. NYC Dept. Of Educ., supra, 34 Misc. 3d at 181, 930 N.Y.S.2d 757. Petitioner's loud altercations with the Principal and Assistant Principal over her assignment came from her deeply held view that a guidance counselor should not be assigned to “an advisor's room” which she viewed as involving classroom instruction. While the arbitrator actually acknowledged that Caroli was upset about receiving this schedule, he found that she should have followed her UFT's rep advice to follow the principal's direction and grieve later. Since Caroli was “consistently belligerent and uncooperative.” in raising her voice towards the administration in the main office, and refusing to follow the supervisor's directive regarding her classroom assignment, the arbitrator concluded that termination was in order.

However, the missing link in the arbitrator's determination was that Caroli's belligerance on May 12th subsided after about 15 - 20 minutes and that after being escorted to her assignment, she she satisfactorily worked in that position for the five that she was assigned to STARS. There simply was no further insubordination in refusing to perform her assignment so as to warrant termination. The same holds true for Caroli's decision to walk out of the disciplinary meeting on May 16th. For a 28 year veteran of the school system, Caroli could reasonably view the administration's quick step to discipline her after she had been at STAR for a mere five days and after she had acquiesced, without further complaint, to perform all duties to assign her , as unfair and “Much Ado About Nothing.” Furthermore, her challenge to her assignment and yelling spate did not involve any interactions with children in the classroom and will not compromise her future ability to perform guidance counselor duties (See Chaplin v. New York City Dept. of Educ., 48 A.D.3d at 227, 850 N.Y.S.2d 425. Gongora, supra, 34 Misc. 3d at 181, 930 N.Y.S.2d 757).

In sum, the court finds that the penalty of termination is “shocking to one's conscience.” Accordingly, this court grants the petition to the extent of annulling so much of the determination as imposed a penalty of termination of employment, and remits the matter to the arbitrator for the imposition of a less severe penalty.

This constitutes the decision and order of the court.

DATED: June 25, 2020

FOOTNOTES

1.   The hearing officer will sometimes be referred to as the arbitrator since, as will be set forth below, the governing statute- CPLR 7511- refers to arbitration awards.

2.   The arbitrators decision does not indicate when the DOE preferred the charges

4.   There never was a disciplinary meeting on May 12th and the arbitrator's constant switching of the date of this meeting between May 12th and May 16th makes his decision very hard to follow.

5.   The arbitrator found that Caroli in fact worked until 3:15 on May 17th and that therefore, she was not guilty of leaving early on May 17th.

Katherine A. Levine, J.

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