Matter of deSouza v Department of Educ. of the City School Dist. of N.Y.
Annotate this CaseDecided on June 21, 2010
Supreme Court, New York County
In the Matter of the Application of Angela deSouza, Petitioner,
against
Department of Education of the City School District of New York and Chancellor Joel Klein, Respondents.
103666/2010
Pro Se Petitioner: Angela deSouza
Counsel for Respondent: Andre L. Lindsay, Esq., of counsel to Michael A. Cardozo, Corporation Counsel of the City of New York
Alexander W. Hunter, J.
The motion by petitioner for an order pursuant to C.P.L.R. Article 78, annulling the respondent's decision to penalize petitioner because respondents failed to support the arbitrator's opinion by substantial evidence, the arbitrator prohibited the petitioner from pursuing her disparate treatment argument, the arbitrator showed bias, the arbitrator based his opinion on personal feelings and because the penalties shock the conscience, is denied and the petition is dismissed.
Petitioner asserts that she is a tenured social studies teacher employed by the Board of Education of the City School District of the City of New York. Petitioner was formerly assigned to the Martin Luther King, Jr. High School for Law, Advocacy, and Community Justice in Manhattan District 3.
Ten separate specifications were brought against petitioner by the New York City Board of
Education covering the 2005-2006 and 2006-2007 school years. The specifications alleged,
inter alia, neglect of duty, incompetence, insubordination, substantial cause rendering
petitioner unfit to perform properly her obligations to the service and just cause for termination.
Pursuant to New York State Education Law §3020-a, an arbitrator was appointed to preside
over a quasi-judicial disciplinary hearing to decide whether there was just cause for the proposed
discipline of the petitioner.
A pre-hearing conference was held on January 22, 2009 and hearings were held on
[*2]September 18, 21, October 15, 22, 28, November 4 and
December 17, 2009. The arbitrator subsequently ruled on the matter and addressed each of the
ten specifications individually. In an opinion and award dated March 3, 2010, the arbitrator
sustained Specification 1, except for sub-heading G, sustained Specifications 2, 3, 4, 5, 6, 8, 9
and 10 and dismissed Specification 7. The arbitrator also imposed a fine of one month's salary to
be deducted from petitioner's pay in equal installments spanning the following twelve months,
ordered petitioner to enroll in nine credits of courses to be completed by August 2011 to
facilitate her improvement as a classroom teacher and, in accordance with Article 21(I) of the
collective bargaining agreement, ordered petitioner to apply for enrollment in the Peer
Intervention Program.
On or about March 19, 2010, petitioner commenced the instant Article 78 proceeding to
vacate the impartial hearing officer's decision. Petitioner argues that pursuant to New York State
Education Law §3020-a, the arbitrator's opinion was not supported by substantial evidence,
the arbitrator prohibited petitioner from pursuing her disparate treatment argument, the arbitrator
showed bias, the arbitrator based his opinion on personal feelings and the penalty she received
shocks the conscience. Respondent opposes the application. Respondent asserts that the petition
fails to state facts sufficient to support vacating a disciplinary decision under New York State
Education Law §3020-a.
Pursuant to New York State Education Law §3020-a, all hearings shall be
conducted before and by a single hearing officer and the employee shall have a reasonable
opportunity to defend himself and an opportunity to testify on his own behalf. Each party shall
have the right to be represented by counsel, to subpoena witnesses, and to cross-examine
witnesses. It is well settled that after an arbitrator makes his decision, "arbitration 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. " Hagarty v. Bd. Of Educ., 5 AD3d 771 (2d Dept. 2004).
Petitioner has the burden of establishing that the arbitrator's determination was arbitrary and
capricious, or based on misconduct or bias. Matter of Edwin A. Pell v. Board of Education of
Union Free School District, 34 NY2d 222 (1974).
At the hearing, petitioner was represented by counsel. Petitioner had an opportunity to cross-examine respondent's witnesses and called her own. Petitioner called four witnesses, Andrea Orsini, Susi Andrews, Hallie Fortt and petitioner herself. Petitioner's witnesses based their testimony on peering through classroom doors, overhearing petitioner teaching and conversations with petitioner. The testimony of petitioner's three witnesses was nothing more than a "sincere albeit misguided attempt to help a colleague in need" but added little probative value "as an objective assessment" of petitioner's work. (Opinion 31-32). Respondent called four witnesses, Principal Miriam Nightengale, Assistant Principal Marc Kneller, Principal of the High School for Arts, Imagination and Inquiry, Stephen Noonan, and Assistant Principal of Humanities Kierra Foster-Ba. Respondent's witnesses all testified as to petitioner's unsatisfactory teaching and based their professional opinions on personal observations of petitioner in the classroom and their interactions with her. [*3]
Petitioner's allegation that the opinion failed to support
the specifications with substantial evidence is unfounded. Four separate witnesses testified as to
the unsatisfactory teaching of petitioner based on personal observations of petitioner in the
classrooms and personal interactions with petitioner where she exhibited a poor attitude towards
criticism of her teaching. Petitioner was shown to be non receptive and resistant to any
suggestions by colleagues to improve on her teaching skills. Petitioner essentially dismissed all
of respondent's witness testimony as mistaken and untrue by challenging their findings.
Petitioner's allegation that the arbitrator prohibited her from pursuing her disparate
treatment argument is equally unfounded. Petitioner had the opportunity to present her own
witnesses who turned out to be little or no help to petitioner's case. In his opinion, it was shown
that the arbitrator carefully weighed the testimony of both petitioner and respondent's witnesses
and found respondent's witnesses to be more credible. In addition, the arbitrator meticulously
discussed and analyzed each of the ten specifications in detail.
Petitioner's other allegations that the arbitrator showed bias and based his opinion on
personal feelings holds no weight. The arbitrator listened to both petitioner and respondent's
witnesses during direct and cross-examination. It is up to the arbitrator after hearing all of the
evidence to weigh it and make a decision because he is the one that hears the testimony and is
best able to judge its credibility. "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. New York City
Dept. of Educ. 51 AD3d 563 (1st Dept. 2008).
The four administrators testified that respondent's lessons were unsatisfactory. The
arbitrator had the opportunity to consider the detailed reports setting forth the deficiencies in
petitioner's lessons and recommendations made for improvement. The observations were done at
different times throughout the two years and were done without the administrators consulting
with each other. The arbitrator stated, " one common denominator links them all, the areas
needing improvement still more disturbing is the evidence that respondent not only failed to
engage in the professional development recommended by the administration but considered at
least a part of it garbage, a waste of time she didn't need based on her opinion that she is a strong
teacher." (Opinion pg. 32)
Finally, petitioner's allegation that the penalty shocks the conscience is baseless.
After all the testimony and observation reports the arbitrator used to base his opinion on, he
nonetheless felt that petitioner could be rehabilitated. The arbitrator decided not to terminate
petitioner but merely docked one month's salary and ordered her to enroll in classes, which
would be beneficial to any teacher.
This court finds that petitioner has not demonstrated that respondent acted in an arbitrary
and capricious manner in imposing penalties on petitioner.
Accordingly, it is hereby
[*4]
ADJUDGED that the petition is denied and
proceeding is dismissed, without costs and disbursements to the respondents Department of
Education of the City School District of New York and Chancellor Joel Klein.
Dated: June 21, 2010
ENTER:
____________________________________
J.S.C.
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