Matter of Tarasow v NYC Dept. of Educ.

[*1] Matter of Tarasow v NYC Dept. of Educ. 2008 NY Slip Op 52066(U) [21 Misc 3d 1113(A)] Decided on October 6, 2008 Supreme Court, New York County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2008
Supreme Court, New York County

In the Matter of the Application of Helena Tarasow, Petitioner,

against

NYC Department of Education, Respondent.



103502/2008



For the Petitioner:

Wolf & Wolf LLP

By Edward H. Wolf, Esq.

910 Grand Concourse

Bronx NY 10451

For the Respondent:

Michael A. Cardozo, Esq.

Corporation Counsel

By: Larry R. Martinez, Esq.

New York NY 10007

Paul G. Feinman, J.

Helene Tarasow and the New York City Department of Education ("DOE") each commenced a special proceeding to challenge an arbitration award. The two proceedings, which were assigned Index Numbers 103502/2008, and 400463/2008 respectively, were consolidated into one proceeding pursuant to the April 11, 2008 stipulation of the parties, continuing under the index number and caption shown above. Also, by stipulation dated March 25, 2008, the DOE discontinued its proceeding as against the United Federation of Teachers. In what was formerly the first proceeding, petitioner Helena Tarasow seeks to vacate an arbitrator's decision pursuant to CPLR 7511. In what was formerly the second proceeding, the DOE seeks to vacate the arbitrator's award pursuant to CPLR 7803 and CPLR 7511 (b). Upon consideration of all the papers and after oral argument, the petition by Tarasow and the cross-petition by the DOE to vacate the arbitrator's awards are denied and the award is confirmed.

Factual and Procedural Background

Petitioner Tarasow is a tenured employee of the DOE and has worked for many years as a guidance counselor, most recently at P.S./I.S. 87 in Queens. On January 20, 2006, Tarasow was ordered removed from the school and, according to the two specifications proffered against her by the DOE that were ultimately heard at arbitration, she was charged with failing to notify [*2]school authorities that a 12-year-old student counseled by her had intentionally made scratches or cut marks on her wrists,[FN1] and failing to notify the student's parents and, as well, failing to keep proper files and records for each assigned student, or to properly monitor and document students' progress and results of guidance interventions (Tarasow Pet. Ex. A, Arbitration Decision of 2/13/08 [hereinafter "Decision"] 3-4). A hearing on the charges commenced in October 2007, pursuant to Education Law § 3020-a.

Tarasow testified that she is certified and licensed by New York State in elementary education, guidance counseling, and special education, and holds a certification from the Institute for Rational Emotive Therapy in family and child psychotherapy (DOE Ver Pet. Ex. 2, Tarasow EBT 608). She has a B.A. in Elementary Education, and an M.S. in Personnel and Guidance Counseling, and did post-graduate work at Queens College and at the Rational Emotive Therapy Institute (DOE Ver. Pet. Ex. 2, Tarasow EBT 606-607). She has been given further training by the DOE, in particular as concerns abuse and suicide prevention, as well as in other areas important to guidance counseling work (DOE Ver. Pet. Ex. 2, Tarasow EBT 613-614). As a guidance counselor, in the 2005-2006 school year, about 65 to 75 percent of her time was spent on preparing students for high school, referred to as "articulation" (DOE Ver Pet. Ex. 2, Tarasow EBT 612-613).[FN2]

Tarasow testified that on January 17, 2006, she was called to the school nurse's office where she met the student in question (DOE Ver Pet. Ex. 2, Tarasow EBT 621-624). She and the student spoke in Tarasow's office over the course of about an hour and 15 minutes, and the child told her how, when she listened to her single mother "crying hysterically and screaming," the girl picked up a razor or instrument and started to make marks on her arm, "barely aware" that she was hurting herself (DOE Ver Pet. Ex. 2, Tarasow EBT 621-624; 626; 629:7). The student was sorry, and most anxious that her mother not find out about her actions, but stated that it made her feel calmer and took her mind a bit away from what was going on ( DOE Ver Pet. Ex. 2, Tarasow EBT 628, 629).

According to Tarasow, the student initially was quiet and wary, but as they spoke, she relaxed and began to initiate conversation, respond to questions fully, express a full range of emotions, and seemed eager for help (DOE Ver Pet. Ex. 2, Tarasow EBT 626-627, 628). Tarasow testified that someone at risk for suicide presents with a flattened range of emotions, appears not to care, is not particularly appreciative of questioning or support, and rarely initiates [*3]conversation (DOE Ver Pet. Ex. 2, Tarasow EBT 625). Here, Tarasow believed the student was not suicidal, but evidencing self-injuring behavior (DOE Ver Pet. Ex. 2, Tarasow EBT 629-630). She had learned about this syndrome in her courses in psychotherapy and counseling and had seen it in other students prior to her work with the DOE (DOE Ver Pet. Ex. 2, Tarasow EBT 632). Accordingly, she worked first to establish a bond of trust so that the student could feel free to express herself, and to set an environment where the student could be empowered (DOE Ver Pet. Ex. 2, Tarasow EBT 630-631). They "brainstormed" together about ways the student could reduce stress other than hurting herself (DOE Ver Pet. Ex. 2, Tarasow EBT 633-634).[FN3]

Tarasow told the student that her mother needed to be informed but believed it important to validate the girl's desire to speak with her mother herself rather than have school authorities tell her mother of what was transpiring. She allowed the student to have the first opportunity to talk to her mother, and told her that "the next time we meet I'm going to find out what you did and then I"m going to call your mother, bring her in and we are going to all meet and discuss this" (DOE Ver Pet. Ex. 2, Tarasow EBT 635-636; 637:6-12). They then did some role-playing on how the student would speak to her mother (DOE Ver Pet. Ex. 2, Tarasow EBT 637). The student left after smiling and hugging Tarasow; Tarasow then tried unsuccessfully to follow up with the school nurse (DOE Ver Pet. Ex. 2, Tarasow EBT 641, 643, 645).

Tarasow knew she was obligated to report warning signs of possible suicide to the principal and to Children's Services (DOE Ver Pet. Ex. 2, Tarasow EBT 697, 699). She agreed that she had been trained by the DOE that self-inflicting injuries are part of suicidal ideation, but that the "important thing is to know what the intention was" (DOE Ver Pet. Ex. 2, Tarasow EBT 700:17-20). Here, Tarasow noted that the child said her intent was to feel calmer (DOE Ver Pet. Ex. 2, Tarasow EBT 629). Tarasow chose not to contact the principal immediately in the belief that were the school officials to treat the problem as a possible suicide attempt it would be detrimental to the child and the child's relationship with the mother (DOE Ver Pet. Ex. 2, Tarasow EBT 668-671). She made a treatment plan which included speaking with the principal "by the next session." (DOE Ver Pet. Ex. 2, Tarasow EBT 673, 674).

It was Tarasow's plan to meet with the student the next day, although the student did not know this (DOE Ver Pet. Ex. 2, Tarasow EBT 705). In hindsight, Tarasow would have stayed late and completed all the steps of the treatment, including calling and educating the mother, and speaking with the principal about self-injury behaviors ( DOE Ver Pet. Ex. 2, Tarasow EBT 688-689). In fact, Tarasow was unexpectedly absent from work the next two days. She attempted to telephone the nurse on the first day of her absence and again in the evening, but never reached her to tell her what her thoughts and plan were (DOE Ver Pet. Ex. 2, Tarasow EBT 644, 645). During the two days she was out, she spoke with others at the school regarding her absence, but not about the student's case (DOE Ver Pet. Ex. 2, Tarasow EBT 644). She did not think anyone else at the school would have properly handled the matter (DOE Ver Pet. Ex. 2, Tarasow EBT 718), although there were two on staff who could have handled it had either been the first to have [*4]had contact with the student; since there was no emergency in Tarasow's mind, she thought it in everyone's best interest to keep the case herself (DOE Ver Pet. Ex. 2, Tarasow EBT 720).

The morning of January 18, 2006, two students reported to the school staff that the student was found crying and she had again cut herself (DOE Ver. Pet. Ex. 2, Savitz EBT 248). The student then told the school social worker that the night before when she had gotten very upset by the way her mother was screaming, the only thing she knew to do was cut herself (DOE Ver. Pet. Ex. 2, Savitz EBT 249). The principal ultimately called the mother, who came to the school, and an emotion-filled meeting ensued ( DOE Ver. Pet. Ex. 2, Savitz EBT 251). The principal conceded that the student did not express suicidal ideation (Michaeli EBT 127:16-18). However, the mother was instructed to take the child for a psychiatric evaluation, which did not find her suicidal and allowed her to return to school (DOE, Ver. Pet. Ex. 2, Savitz EBT 252-253).Tarasow returned to work on January 20th. She was called to the main office and handed a letter saying that due to serious allegations she was being temporarily reassigned, and was given 10 minutes to get her things and leave the building (DOE Ver Pet. Ex. 2, Tarasow EBT 647, 648, 649). She left in her office most of her files, her old materials, her resource, text, and teaching materials, and her games, posters, and personal items (DOE Ver Pet. Ex. 2, Tarasow EBT 653, 654). When she was allowed eventually to return, she found her belongings in 14 large garbage bags which she took home by car (DOE Ver Pet. Ex. 2, Tarasow EBT 659-660).

As set forth in the hearing decision by the arbitrator dated February 13, 2008, the DOE argued that when Tarasow observed self-inflicted marks on the student's wrist on January 17, 2006, pursuant to the Chancellor's Regulations and the school's rule, she should have notified school authorities and the student's mother that the child was endangered (Decision 5). The DOE argued that because Tarasow let the student go home unattended, and did not report the incident over the course of the next three days, she utilized "exceedingly poor judgment" and was "grossly negligent" (Decision 5, 6). As concerns the specification alleging failure to document and maintain files, the DOE pointed to the testimonies of the replacement guidance counselor, who found no documents in the files other than ones concerning eighth-grade students moving up to high school,[FN4] and of the school principal according to whom Tarasow told that she did not need to write files on students, did not need a folder for each student, and had her own way of filing (Decision 7). The decision notes that the DOE seeks dismissal of Tarasow based on her actions and the agency's belief that she does not understand their seriousness, and is not to be trusted because she "still insists she was right in not reporting [the student's] condition and acknowledges only that she should report similar incidents in the future" (Decision 7, 8).

Tarasow, who was represented by counsel at the arbitration, argued in her defense that based on her training and her discussion with the student, she concluded that the student had not attempted suicide and that the scabbed-over markings were actually indicative of "repetitive self mutilation syndrome." (Decision 8). She argued that there is no rule or regulation requiring [*5]immediate reporting either to the school authorities or a child's parents of the syndrome afflicting the student, and that as the January 19, 2006 psychiatric evaluation performed on the student found she was not suicidal, it shows that she was correct and had used proper professional judgment in not immediately reporting the student's condition (Decision 8-9). Tarasow acknowledged that if a similar situation arose in the future, she would immediately report it to the school Principal and the parent (Decision 9-10). As for the issue of her files and documentation, she proffered photographs showing that her files and other documents were dumped into four or five large garbage bags, and suggested that in the month between her suspension and the hiring of the new guidance counselor, files once existing may have been lost (Decision 9). She also pointed out that prior to the 2005-2006 school year, she had always received satisfactory ratings (Decision 9).

The arbitrator concluded that the DOE proved the first specification, noting among other things, that a self-inflicted series of "cuts," "would certainly raise grave suspicion as to the mental state of the person," and that Tarasow should have reported her suspicion rather than allowing the child to go home alone (Decision 11). The arbitrator concluded that although she has had "some training in psychotherapeutic counseling," she wrongly usurped the role of a psychiatrist or psychologist instead of reporting the self-inflicted cuttings, and that it was irrelevant that the psychiatric evaluation found the student not to be suicidal given his finding that Tarasow lacked the authority and was not empowered to make a determination about the student's mental status (Decision 12, 13).

The arbitrator further found that as concerns the files, the principal's testimony was believable but Tarasow also proved that her files were likely discarded (Decision 14, 15). He also found that Tarasow's "main responsibility was articulation and there is no evidence she failed to fulfill this assignment" (Decision 15). Accordingly, although he found petitioner culpable of the second specification, he declined to assess a penalty as to it (Decision 14).

The decision concludes that there "is no doubt [Tarasow] is a caring, dedicated Guidance Counselor," that her actions "were not borne of neglect," that she "truly believed she was doing the right thing," and that terminating her employment would "deprive the students of an individual who can and does provide effective counseling to students" (Decision 15-16). However, it noted that she expressed no remorse for her actions, but only a "grudging acceptance of the requirement to do [the right thing] to stay out of trouble." (Decision 16). Accordingly, although the DOE wanted her terminated and she wanted a non-monetary penalty, the arbitrator assessed her with a two-month suspension without pay, so as to "produce a real change in her behavior." (Decision 16).

Both Tarasow and the DOE timely commenced special proceedings seeking to vacate the arbitration decision. Tarasow argues that the arbitrator exceeded his power as an arbitrator because his decision was made without support in the record. She argues that at best, the Chancellor's Regulations and the school's own rules are vague and unclear and subject to interpretation as to the policy concerning a student who is adjudged by a guidance counselor not to be suicidal but rather suffering from an anxiety disorder. She contends that the arbitrator improperly concluded that the student expressed suicidal intention, given that the evidence did not establish that fact. She further argues that the arbitrator made improper determinations about the nature of her job without evidence of the actual job description, and assumed limits to her [*6]discretion that were not established in the record. She also argues that the arbitrator exceeded his authority by factoring her lack of remorse into his determination to assess a penalty, pointing to Education Law § 3020-a (4), which does not mention remorse in describing what an arbitrator should consider when imposing a penalty. She seeks vacatur and reversal of the determination to assess her any penalty.

The DOE seeks vacatur, arguing that the award irrationally allows Tarasow to return to her position as a guidance counselor after a mere two months' suspension, even though the arbitrator noted her lack of remorse as well as her continued belief that she was correct in her actions. It argues that this is not only arbitrary and capricious, but a violation of public policy because it puts the students at the school in danger of her poor judgment. It also argues that the decision not to impose any penalty after finding that Tarasow did not keep files on all her students and had her own system of filing, was also arbitrary and capricious. It argues that Tarasow's actions, which inconvenienced the school administrators, reveal that she feels free to disregard DOE policy.

Chancellor's Regulation A-755

Chancellor's Regulation A-755 describes itself as "focus[ing] on the role of the school in dealing with potential or actual suicidal behavior" (DOE Ver. Pet. Ex. 3 [hereinafter Regulation A-755]). Its "abstract" states that "it is the responsibility of every staff member to report knowledge of any potential suicide to the principal or designated liaison whether or not the student has requested that the information be kept confidential," and that "[o]nly trained mental health staff such as guidance counselors, psychologists, social workers, and psychiatrists are to provide appropriate counseling services" (Regulation A-755, p. 1, emphasis omitted). The regulation's introduction states in part that all school personnel are to be aware of behavioral manifestations that may suggest suicidal tendencies and that since the delineation of high and moderate risk behaviors is not absolute, "[a]ll suicide related behaviors must be taken seriously" (Regulation A- 755, p. 1). The regulation sets up reporting procedures, specifically that "[a]ll suicide and attempted suicides, including expressions of suicidal intentions occurring in and out of school, must be reported to the appropriate superintendent within 24 hours" (Regulation A-755, p. 3).

Accompanying Regulation A-755 is a "Suicide Reference Guide," intended to alert the reader "to the typical indicators of risk for suicide or self-injury among children and adolescence [sic]." It cautions that the list is "not exhaustive" and that "a child may have one or more indicators and may not be at risk for suicide." (Regulation A-755, Attachment 2, p. 1). The "continued presence of an indicator" is a warning signal to school personnel, and "[a]ll indications" are to be "taken seriously" (Regulation A-755, Attachment 2, p. 1). Under "behavioral indicators" is the category of "[s]elf-destructive behavior, e.g., self-inflicted . . .cuts" (Regulation A-755, Attachment 2, p. 1). Under "personal circumstances" is the category of "Family problems," which include "family stress." (Regulation A-755, Attachment 2, p. 1).

The guide sets forth procedures to follow when there is a high risk, that is, when a student "verbalizes or writes a detailed suicide plan of action in conjunction with a pattern of behavioral and emotional indicators," and when there is a moderate risk, that is, when a student "expresses general thoughts or feeling about suicide and exhibits various indicators." (Regulation A-755, Attachment 2, p. 2). For the latter, the procedure includes "[i]mmediately" notifying the [*7]principal or designee, who "calls and notifies parent of the serious and potentially dangerous situation." (Regulation A-755, Attachment 2, p. 2).

The Law Refresher of P.S./I.S. 87

The three-and-a-half-page document, which Tarasow signed for on September 14, 2005, sets forth various school rules, including number 33, that "[c]hildren expressing suicidal ideation should be reported to supervisor, guidance counselor, etc. They should not be left unsupervised until parent or guardian pickup." (DOE Ver. Pet. Ex. 4, unnumbered p. 3).

Legal Analysis

CPLR Article 75 governs arbitration. CPLR 7511(b) sets forth the limited grounds on which a petitioner can seek to vacate an award, namely misconduct, partiality, exceeding powers, or procedural error. Judicial review of arbitration awards is extremely limited (Wien & Malkin LLP v Helmsley-Spear, Inc.,6 NY3d 471, 479 [2006], citing United Paperworkers Intl. Union AFL-CIO v Misco, Inc., 484 U.S. 29 [1987]). Where the arbitration hearing is conducted pursuant to Education Law § 3020-a, "[t]he court's review shall be limited to the grounds set forth in [CPLR 7511]." However, where the parties are required to engage in compulsory arbitration, as occurred in the instant matter, judicial review under CPLR article 75 requires that the award "must have evidentiary support and cannot be arbitrary and capricious" (Motor Vehicle Acc. Indmn. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). "The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" (Lackow v Department of Educ. (or "Board") of the City of NY, 51 AD3d 563, 567 [1st Dept. 2008]). The test of whether a decision is arbitrary or capricious is " determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" (Matter of Pell v Board of Educ., 34 NY2d 222, 232 [1974]), quoting 1 NY Jur., Admin. Law, § 184, p. 609 [ruling in context of CPLR Article 78 proceeding]).

A careful examination of the hearing record and the documents submitted by both parties does not support vacating the award either for the arguments put forward by Tarasow or by the DOE. As an initial matter, "[i]t is basic that the decision by the Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts, who are disadvantaged in such matters because their review is confined to a lifeless record." (Berenhaus v Ward, 70 NY2d 436, 443 [1987]). A reviewing court must defer to the administrative fact finder's assessment of the evidence and the credibility of the witnesses (Lindemann v American Horse Shows Assn., 222 AD2d 248, 250 [1st Dept. 1995] citing Berenhaus at 443). Here, the arbitrator found Tarasow to be a caring and dedicated guidance counselor who provides effective counseling to students, and this determination will not be disturbed. Neither party submitted the job description for a guidance counselor, but there was sufficient evidence in the record for the arbitrator to find that Tarasow had "some training in psychotherapeutic counseling," and that the DOE considers a school guidance counselor to have training in mental health issues, but also that the DOE provides a chain of command for mandatory reporting of problematic behaviors, including self-injury, so that those in charge of the school will be apprised and can contact the parents of students of concern. Even conceding that Regulation A-755 is not clear concerning what procedure should be followed where a child exhibits an indicator of suicidal intent but is [*8]assessed by a mental health staffer as not actually at risk for suicide, nonetheless the arbitrator rationally found that Tarasow was required to follow the guidelines of her DOE training that required reporting self injuries. It is rational to find that Tarasow violated sound practice as well as her training received by DOE instructors, when she did not advise others in the school of the child's situation over the course of nearly three days. Her argument that what is relevant is the intent of the child when making the injury may or may not be correct from a psychological perspective, however the DOE does not allow guidance counselors the leeway to make such a determination. According to her own testimony, a guidance counselor is required to report the incident. The issue of whether she was required to "immediately" report is academic, because she did not report the incident and her work with the student, and others intervened when the student repeated her behavior.

Furthermore, petitioner's argument that the arbitrator should not have considered the issue of remorse when assessing a penalty, is unpersuasive. The statute, Education Law § 3020-a (4) is not written as narrowly as she attempts to argue; it does in fact not limit the arbitrator from considering anything other than the extent to which the agency attempted to assist the employee prior to the charges. The arbitrator was free to fashion a remedy as he believed proper (see, Silverman v Benmor Coats, Inc., 61 NY2d 299, 308 [1984]).

Similarly, the DOE's petition seeking vacatur of the award on the ground that it was irrationally lenient, must be denied based in part on the credibility finding of the arbitrator that Tarasow is a dedicated guidance counselor and a benefit to her students, and on the evidence in the record that she has always had satisfactory ratings in her job. His implicit finding that she was guilty of bad judgment on this one occasion is rationally based. The arbitrator rationally credited Tarasow's statement that in the future, she would immediately report any similar incident, as sufficient proof that no matter what her personal thoughts might be in a situation, she would follow the DOE rules. The arbitrator in failing to assess a penalty on the second specification was free to credit a version of events whereby some of Tarasow's belongings and files went missing after she was removed from the school and someone was sent to place her belongings in bags. In short, it is not for this court to substitute its own judgment for that of the experienced arbitrator simply because it might have imposed a different penalty. The arbitrator's actions were not irrational as a matter of law, not an abuse of discretion, and do not shock the conscience of the court. The award of an arbitrator need not conform to the traditional relief that a court might grant (Board of Educ. of Centr. Sch. Dist. No. 1 v Niagara-Wheatfield Teachers Assn. 46 NY2d 553, 557 [1979]). Finally, the DOE's argument that the arbitrator's decision violates public policy is unpersuasive. It is

ORDERED and ADJUDGED that the petition by Tarasow and the cross-petition by the Department of Education, each seeking to vacate the award of the arbitrator, is denied; and it is further

ORDERED and ADJUDGED that the award of the arbitrator Howard C. Edelman, Esq. dated February 13, 2008, finding petitioner culpable of two specifications and imposing a two month suspension without pay is confirmed.

The foregoing shall constitute the decision, order and judgment of this court.E N T E R :

Dated: October 6, 2008____________________________________ [*9]

New York, New YorkJ.S.C. Footnotes

Footnote 1:The marks on the student's wrist were later described by the school nurse as "old" scratches that had scabbed over; she testified that the student admitted that she had scratched herself with a razor (DOE Ver. Pet. Ex. 2, Fioravanti EBT 21:18-19; 22:10-11, 21; 49:19-20). Tarasow testified that the nurse told her that the tool was a "manicuring instrument" (DOE Ver Pet. Ex. 2, Tarasow EBT 623:22-24; 624:2-6).

Footnote 2:According to the school's principal, Tarasow was "in charge of the high school articulation, and seeing groups on an as-needed basis" (DOE Ver. Pet. Ex. 2, Michaeli EBT 55, 56). A part time guidance counselor was hired in the beginning of the 2005 school year to handle mandated counseling and free Tarasow to handle articulations (DOE Ver. Pet. Ex. 2 Michaeli EBT 100). Both counselors counseled other students (DOE Ver Pet. Ex. 2, Michaeli EBT 18-24).

Footnote 3:Tarasow testified that her work with the student was psychotherapy, as "[a]nything that . . . a mental health person does to assuage a problem is, in my opinion, psychotherapy" (DOE Ver Pet. Ex. 2, Tarasow EBT 707). In her mind, counseling is one and the same as psychotherapy (DOE Ver Pet. Ex. 2, Tarasow EBT 708).

Footnote 4:The new guidance counselor testified that when she began working in February 2006, there were papers and books on the floor which she put into about five or six bags for the principal (Ilardo EBT 162: 20-21; 169:23-24; 170:2-5). She found no files or documents on the students (164:10-11), including files for students who had been seen in crisis, or notes about meetings (DOE Ver. Pet. Ex. 2, Ilardo EBT 164: 10-11; 165:2-4, 5-9).