Matter of Camacho v City of New York

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Matter of Camacho v City of New York 2012 NY Slip Op 31003(U) March 30, 2012 Sup Ct, New York County Docket Number: 105656/11 Judge: Paul Wooten 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. [* 1] ANNED ON411712012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HQN. PAUL W,QOTEN PRESENT: - Justice ~ , 7 PART __. - - - - - ~ In the Matter of the Application of 0 INDEX NO. 105656111 BERNADETTE CAMACHO, Petitloner, \ FQr a, Judgment under Article 75 of th9 Clvll Practice Law and Rules, - agalnst p MOTION SEQ. NO. 001 CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR cif VEW YORK CITY DEPARTMENT OF EDUCATION, RdBpondents. ing Affldavltlr - Rkhlblts a c k r with tt&KJY6D&. reinStated to thd ant to CPLR -- $9 321 action and that the C The' City of Neb Yo&, N\/C [* 2] BACKGROUND Prior to her termination, petitioner was a tenured social studies teacher since June 2004 and-. .~ was assigned to Hillcrest High School in Queens, New York (Hillside). Petitioner had been a teacher for approximately ten years with one prior disciplinary proceeding on her record for the verbal abuse of her students, in violation of Chancellor's Regulation A.421 , which was settled on May 12, 201 0 by stipulation As a result of the settlement, among other things, petitioner was reassigned from the I Gateway School of Environmental Research and Technology in the Bronx to Hillside. After petitioner was at Hillside for I few months, respondents Commenced a disciplinary proceeding against her, pursuant to Education Law § 3020-a alleging, inter alia, that petitioner was d r verbally abusive to her students in her bilingual social studies class in violation of Chancellgr's 7 Regulatioh A-421 The charges against the ptitioner were that -"$pecificzl December 17, 2010, the Respmdent: screamed dqring 1 &ISS 1': On or about and called sfudentsla) stupid. b) carqjdt , (fuck).' Specification 2: On or about D&Wtbbr 20, 2010, t Respsndent tdld GhdtWts in hot' CIdS ey had their minds in their ass" ( I w 1 es that when charges are filed linqry hearing be conducted by ociatiorl. Hearing Officer Zonder rch 25, 29, 30 and A i r i l t pporting deGisions were submitted by, th i, Chahcellor's Regulation 4-4 the prphibitbd verbal abuse as inter alia, "laig distress or language that tends to belittlg a- that tends to Cause f&ar dr p at studen I ' hearing, both parties were represented by cobhsel and a tr 3 3020-4(3) 6 [* 3] Moreover, both parties produced witnesses, cross-examined witnesses, and according to Hearing Officer Zonderrnan, "were afforded full opportunity to produqe-. . . . evidence, and make argument [sic] in support of their respective positions" (id. at 2). Eight students, ages 14 through 16, from, interalia, the Dominican Republic and Honduras, testified at the hearing and all but one used a Spanish Language interpreter. Students testified that petitioner screamed at them in Spanish and called them "stupid," used the word "cono"' and told them that they had their mind in their asses (id. at 5-1 All of the students testified that the petitioner's abusive laqguage toward them made them feel very bad (id.)* Hearing Officer Zonderman issued a 22-page Opinion and Award dated April 23,201 1, in which he concluded that petitioner was guilty of the specifications charged against her, that there is gatisns to the s6rVicq'' B "substantial cause rendering [petitioner] unfit to pe ( penalty of termination OF petitioner's employment, whictt*he as,sertedTwas" r n g p d a ~ ~ d " nificantly, Hearing Officer Zonderman notes that,i considered the previous 3020-a discipline of petitioner, irlitiateb due'to 'pefitiOneYs bmotiorlal Outbursts deemed abusive to forpgr stddents in yiolatidn of Chg-&llpls RecJula n,A-421)+The ,prigr disoiplinary proceeding was settled between the i w e r on May 12, 2'010. pursuant to the s to P different school, and the stipulation also req erapist or psyqhiafrist Qf gt leaqt fpu petitiover agreed<intho Stipulation of 3020-a charge for a violation Qf Chancellor's Regulgtion A-421 and if she was fqund guilty of such a 2 The regppndent'q intqrpyter irlforrned Hearing Ondermgfi in an ,"pff-tbe-r$ discussion," which Hearing ddicer Zonderrrlan then reite the retbrd, that tl'le word " c several rnkanings, depending on one'? country of orig n, in "fuck," "gp to hell," "damn," "fanny" or "jerk" (see Verifled Petition, exhibit A, p 6, foothotes , 6, and 7). d 3 One student, BE-B, testified in Engllsh that aft "carajo " (see i d , p 9). b., I . I 7- - _. I - . [* 4] violation by a hearing officer, the penalty imposed would be the termination of her employment (id.). Pursuant to Hearing Officer Zonderman's decision, petitioner was terminated from her employment . . . . with the New York City Department of Education. In her Verified Petition, petitioner challenges Hearing Officer Zonderman's decision claiming it was defective because: ( I ) the hearing officer's disposition imposed excessive and unwarranted punishment for the allegations; (2) it was irrational, arbitrary and capricious; and (3) the disposition shocks the conscience of the Court (see Verified Petition, p. 8, 7 28). Respondents cross-move to dismiss the petition, pursuant to CPLR 59 321 l(a)(7), 404(a), and 751 1, DISCUSSION Pursuant to Education Law 5 3020-a(5), a petition to vacate the determination of a hearing officer requires that the Court apply the standard set forth in' CPLR 751 1. The standard for granting a petition pursuant to CPLR 751 1, is that there must be a "showing of miskondWct, bigs, excess of power, or procedural defects" (Austin v Board of Educ. of City S&oo/ Bist. of City of N. Y., 260 AQ2d 365, 365 [Ist Pept 20011; see also Matter of Hegarty v Board ofEduc. ofthe City,ofNaw Yo&, 5,AP3d 771 [28 Dept 20041). An arbitrator's award can be set aside if it violates strQqg public policy, is fatally irrational, is, 76 deeds a specifically enumerated limit AD3d 136, 139 [Ist Dept 20101; Matter Qf Wegarty, 5 AQjd qt 773).'The pet';tiomr ha$ the burden ef I ' d proof to show that the arbitrator's decisiQn k invalid (sek La$$& I of FdLI 1 of City of N. Y , , 51 AD3d 563, 568 [I st Dept 20081). , >. Upon a review of 8 1 the papers submitted, the Court finds that petitioner has not met her 1 burden of proof of establishing that Hearing Officer Zonderman's decision violdted public policy, was totally irrational, or exceeded a specifically enumerated lirnitntidn & thq att$r4tdr'q power. Thq Court I finds that Hearing Officer Zonderman's decision to terminate the p among other things, the testimony of the eight students, the tirnony of petitioner, the te$timony of . r Page4of _ * * 5 r * ^ , +'-. I . .. -. . . .. .- - [* 5] Principal Stephen Duch, the documentary evidence submitted, and in light of the previous disciplinary proceeding against petitioner, in which she was placed on notjce that she would b5-terminated from-her _ _ employment if found guilty of violating Chancellor's Regulation A-421. Moreover, petitioner has failed to present facts tending to show that the arbitrator was biased, acted in excess of his power, or that he violated petitioner's due process rights, The Court finds that petitioner's arguments in support of her petition are without merit and have no support in the record. Accordingly, it is ORDERED that petitioner's application pursuant to CPLR 7311 and Education Law 5 3020-a is denied; and it is further, 1 ORDERED that respondent's cross-motion to dismiss pur ?-A and 751 1 , is denied 36 m w t ; and it is further, ORDERED that the resp petitioner and upon the Clerk o f t dated: E-3WL i I. Chegk one: ................................................................ 2. Check if approprlate:............................ MOTi 3. Check if appropriate:................................................ r $nt to CPLR 5s 321 l(a)(7),404(a), - ~. .

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