Drantch v Gatling
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Drantch v Gatling 2012 NY Slip Op 30594(U) March 7, 2012 Supreme Court, New York County Docket Number: 103072/2009 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 311212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY INDEX 11 :ATLING, 4II NO. MOTION DATE PATRICIA L., AS COMMISSIONE SEQUENCE NUMBER # 001 REARGUMENT / RECONSIDERATION MOTION CAL. NO. were read Notice of Motion/ Order to Show Cause on this motlon tolfor - Affidavits - Exhlblta ... I AnrPwerlng Affidavits - Exhlbita I Replying Affidavltrr Cross-Motion: ::-IYes / .. No Upon the foregoing papers) It I ordered that t l s h- kA,(/eR Y Dated: :heck one: 31 T / hf-q-A F I N A L DISPOSITION :heck if appropriate: ' - DO NOT POST NON-FINAL DISPOSITION REFERENCE [* 2] Petitioner , Index No.: 103072/09 Submission Date: 12/14/11 - againstPATRICIA L. GATLING, AS COMMISSIONER OF THE CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS AND THE CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS, NEW YORK CITY DEPARTMENT OF EDUCATION, CHANCELLOR, CLAUDE MONEREAU, For Petitioner: Leffler, Marcus & McCafiey, LLC 20 Madison Avenue, Suite 1901 jDECISIOIY, ORDER GMENT For Department of Education Respondents: iy Michael A. Cardozo, Corporation Counsel'of the Ct of New York 100 Church Street HON. SALIANN SCARPULLA,J.: In these two related Article 78 proceedings', petitioner Bruce M. Drantch ("Drantch") seeks, inter alia, reversal of the New York City Department of Education's decision on June 1,2007 to terminate his employment as assistant principal, and reversal 1 The Court agreed to resolve this Article 78 proceeding together with the Article 78 proceeding under Index No. 1 13275107, Drantch v. W C Dept. o Education, Dennis Wulcott as successor in interest f to Joel I. Klein, Chancellor; and Claude Monereau, Michele Lloyd-Bey, CommuniQ Superintendent District 2 7Q. 1 [* 3] of the City of New York Commission on Human Rights August 25,2008 decision to dismiss Drantch s complaint and February 3,2009 affirmance of that decision. On October 12, 1999, Drantch, a 54 year old Caucasian Jewish male, was hired by the Department of Education ( DOE ) as a per-diem substitute teacher at Jr. High School 217 R.A. Van Wyck Jr. High School. He later became a full time teacher and on August 3 1,2006, Drantch was hired by DOE and Principal Claude Monereau ( Monereau ) as a probationary assistant principal at Brian Piccolo Middle School 534 (LLMS 53 ). Monereau had recommended him for the position. Drantch claims that within a month after he was hired as assistant principal, Monereau initiated a pattern of discrimination against J I on~ the basis of his age, race, creed and gender. According to Drantch, the harassment escalated in October 2006 when he observed an African-American student initiate an altercation with a Hispanic student. Drantch claims that Monereau directed him to provide a statement that the Hispanic student initiated the altercation but Drantch refused to do so. Monereau then issued disciplinary memoranda for alleged poor work performance and directed Drantch to unfairly discipline teachers who were Caucasian or Jewish and around his age or face discipline himself. In November 2006, Drantch complained to his union representative that he was being discriminated against by Monereau. According to Monereau, within the first two months of Drantch s employment at MS 53, several teachers wrote letters to Monereau expressing concern about Drantch s behavior. 2 [* 4] In December 2006, Drantch attended a hearing with DOE SOffice of Special Investigations as a result of charges of intimidation of a teacher by bIackmail and an instance of corporal punishment. According to Drantch, the charges were all brought at Monereau s behest. In March 2007, the Office of Special Investigations found the charges were substantiated and referred the matter to Monereau for further action. Drantch was then given an unsatisfactory rating by Monereau due to (1) the Office of Special Investigation s finding that allegations of misconduct and corporal punishment were substantiated; (2) a November 22,2006 letter in which Monereau notified Drantch of his poor work performance, including failure to turn in weekly assistant principal reports, failure to conduct sufficient written formal classroom observation reports and . . failure to conduct post-observation conferences with the teachers he observed; and (3) a February 27,2007 letter concerning an incident o f Drantch blowing a whistle loudly in students ears. On May 1,2007, Monereau wrote Drantch a letter indicating that he was considering dismissal of Drantch s probationary services as assistant principal, and gave Drantch several weeks to submit a rebuttal. Drantch submitted a rebuttal on May 22, 2007. Drantch s employment as probationary assistant principal was terminated effective June 2,2007. On September 26,2007, Drantch filed a complaint with the City of New York Commission on Human Rights ( Cormnission ) charging the DOE and Monereau with [* 5] unlawful discriminatory practices in violation of Administrative Code Sections 8107(l)(a) and S-107(7). On August 25,2008, the Commission found no probable cause to believe that DOE and Monereau engaged in unlawful discriminatory practices and dismissed Drantch s complaint. The Commission found, inter alia, that Drantch s complaint was weakened by his failure to rebut the theory that ?he same person who hired [him] with knowledge of his characteristics would, within a reasonably brief period of time, take adverse action based upon those same characteristics that previously did not matter. It further found that Drantch undermined his own credibility given that he stated in his Complaint that Monereau directed him to carry out discipline against other Caucasian, Jewish teachers around his own age, yet in his rebuttal, he defended his willful decisions to discipline others as appropriate. The Commission concluded that We filing of formal charges against [Drantch] was a non-discriminatory decision, supported by an independent, neutral investigative body, OSI. Drantch then filed a request for review with the Commission and submitted a list of confidential witnesses. DOE and Drantch both submitted additional comments. The Commission affirmed the decision on February 3,2009. Drantch claims that he w s not a permitted to participate in any of the Commission s proceedings and therefore, he was denied substantive and procedural due process. 4 .. [* 6] Drantch now commences these Article 78 proceedings alleging that the actions taken by respondents were in violation of Section 8-107 of the Administrative Code of the City of New York and 42 U.S.C.S. 2000(e). He is seeking (1) production of the Commission s complete record of the investigation; (2) reversal of its August 25,2008 decision and February 3,2009 affirmance; (3) reversal of the dismissal of his complaint; (4) reversal of his unsatisfactory rating and his termination as assistant principal; and (5) reassignment at another school as assistant principal. He seeks, in the alternative, to reopen the Office of Special Investigations proceedings so that he could participate therein or to remit the proceeding back to the Commission to take further testimony from his witnesses. . . Drantch maintains, inter alia, that (1) the documents upon which the DOE justified Drantch s discontinuance were the product of a pattern and practice by Monereau to coerce people into creating false and inaccurate documents against Monereau s targets; (2) the Commission did not adequately investigate his claims; (3) his actions did not constitute corporal punishment; and (4) he was not given any opportunity to participate in the Office of Special Investigation s process. DOE answers and opposes the petition, arguing that Drantch s claims are time barred, the DOE S actions were not arbitrary and capricious, and its determination to terminate Drantch s employment as probationary assistant principal was made in good faith and rationally based upon legitimate non-discriminatory reasons. 5 [* 7] The Commission answers and opposes the petition, alleging that (1) there is no evidence to support Drantch's theory of discrimination; (2) the Commission conducted a full and fair investigation and Drantch had full opportunity to participate in the process; and (3) Drantch did not provide witness statements until after the Commission reached its determination and, in any event, the witness statements reveal that they offer little facts and are only filled with opinion and conjecture. jpiscussiog The Board of Education has the right to terminate the employment of a probationary teacher at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or .. done in bad faith. Frasier v. Board of Education, 71 N.Y.2d 763 (1988). It is petitioner's burden to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden. Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320 (1" Dept. 2006). Here, the record establishes that there was a clear rational basis for Drantch's termination. Several teachers expressed concern about Drantch's behavior. The Office of Special Investigations found that charges brought against Drantch for intimidation of a teacher by blackmail and an instance of corporal punishment were substantiated. Drantch was permitted to participate in the hearing for those charges. Monereau gave Drantch an unsatisfactory rating based on the Office of 6 [* 8] Special Investigation s finding, his pattern of poor work performance, and another reported instance of corporal punishment. Drantch was afforded the opportunity to rebut his rating. Ultimately, Monereau determined that Drantch s position as a probationary assistant principal should be terminated. Drantch s claims of bad faith, bias and discrimination are speculative and insuscient to establish that the DOE improperly terminated his employment. Mutter o Murnane v. Department o Educ. o the City o New f f f f York, 82 A.D.3d 576 (1 Dept. 201 1). The Court further finds that the Commission s determination that there w s no a probable cause to believe that Drantch was discriminated against had a rational basis and was not arbitrary +andcapricious. David v. New York City Commn. on Human Rights, 57 A.D.3d 406 (lSt Dept. 2008). As long as the investigation is sufficient and the claimant afforded a full opportunity to present his claims, it is within the Commission s discretion to decide the method or methods to be employed in investigating a claim. See McFurZand v. New York State Div. o Human Rights, 241 A.D.2d 108 ( 19 Dept. 1998). The record f establishes that the Commission conducted a sufficient investigation and Drantch had a full and fair opportunity to present his case. Matter o Block v Gatling, 84 A.D.3d 445 (1 f Dept. 201 1). Drantch appealed the Commission s initial finding, and was given a further opportunity to present evidence and to submit additional comments. Based on the evidence presented, the Court finds that the Commission s affirmance of its initial decision had a rational basis and was not arbitrary and capricious. [* 9] In accordance with the foregoing, it is hereby ORDERED and ADJUDGED that the petition of Bruce M. Drantch filed under Index No. 11327Y07 is denied and the proceeding is dismissed; and it is further ORDERED and ADJUDGED that the petition of Bruce M. Drantch filed under Index No. 103072/09 is denied and the proceeding is dismissed. This constitutes the decision, order and judgment of the Court. Dated: New York, New York March?, 20 12 ENTER:
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