Matter of Denhoff v Mamaroneck Union Free School Dist.

[*1] Matter of Denhoff v Mamaroneck Union Free School Dist. 2010 NY Slip Op 51742(U) [29 Misc 3d 1207(A)] Decided on September 30, 2010 Supreme Court, Westchester County Colangelo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2010
Supreme Court, Westchester County

In the Matter of the Application of Elizabeth Denhoff, Petitioner,

against

Mamaroneck Union Free School District, Respondent.



8160/10



BARTLETT, MCDONOUGH, BASTONE & MONAGHAN, LLP

By: Edward J. Guardaro, Esq.

81 Main Street

White Plains, NY 10601

Attorneys for Petitioner

INGERMAN SMITH, LLP

Mamaroneck Union Free School District

550 Mamaroneck Avenue

Mamaroneck, NY 10528

Attorneys for Respondent

John P. Colangelo, J.

Petitioner Elizabeth Denhoff ("Petitioner" or "Denhoff") brings this proceeding pursuant to CPLR 7511 and § 3020 - a (5) of the Education Law to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq., ("Hearing Officer" or "Siegel") with respect to her employment as a tenured teacher with Respondent Mamaroneck Union Free School District ("Respondent" or the "District"). After extensive hearings, Siegel issued an Opinion and Award dated March 2, 2010 (the "Decision" or the "Opinion") in which he found Petitioner guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher. In her Verified Petition and accompanying Memorandum of Law, Petitioner asserts that the determination of the Hearing [*2]Officer was arbitrary and capricious and not supported by the credible evidence in the record. Denhoff seeks a judgment vacating the Opinion and Award, or, in the alternative, submission of the Decision back to the District to impose a penalty less than termination.

Respondent filed a Verified Answer (the "Answer") and Memorandum of Law opposing the relief requested, and seeking to have the Petition dismissed. In its Answer, Respondent denies the material allegations set forth in the Petition and interposes the affirmative defenses that the Petitioner's claims fail to state a cause of action and that the Hearing Officer's findings of guilt on the fourteen charges are amply supported by the evidence in the hearing record (the "Record"). In her Reply Affidavit, Petitioner reiterates her contention that the charges that were brought against her were not supported by the evidence adduced at the hearing and, in any event, Petitioner's conduct is not sanctionable under Education Law 3020-a. Denhoff also maintains that even if she did engage in certain of the actions alleged, the severe penalty of termination is disproportionate to the offense and shocking to one's sense of fairness. The District submitted a Sur-Reply asserting that ample evidence supported the charges brought, that such conduct is sanctionable under Education Law 3020-a, and that termination is an appropriate penalty in this case.

Factual Background

The instant proceeding arises out of allegations of misconduct by Petitioner during her employment as a guidance counselor with the District, teaching at the Hommocks Middle School ("Hommocks"). She was hired in July 2003 and attained tenured status in 2006. In October 2007 she was abruptly placed on administrative reassignment to her home and in December 2007, the instant charges were filed against her.

In substance, the District alleges in its Statement of Charges (the "Charges") that during the 2005-2006, 2006-2007 and 2007-2008 academic years, Denhoff systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers. As recited in the Charges - - and recounted by the witnesses who testified at the Hearing - - Denhoff's conduct allegedly created what can only be described as a toxic environment among certain other teachers in the Hommocks' guidance department to the extent that their morale, work, and therefore the educational process were adversely affected.The named victims of Denhoff's behavior were guidance counselors Staci Tramontozzi ("Tramontozzi"), Evan Stern ("Stern") and Peter Moore ("Moore"). Moore was hired during the 2005-2006 school year and resigned effective June 2007. Tramontozzi and Stern joined the guidance staff for the 2007-2008 school year. All three teachers testified at the Hearing. Jolita Gudaitis, a psychologist at Hommocks throughout Petitioner's employment, also testified at the hearing on behalf of the District, as did another member of the guidance department at Hommocks, Adonis Calderon ("Calderon") and several school administrators. Calderon was a social worker assigned to the guidance department during Denhoff's tenure and was also, to a lesser extent, an object of Denhoff's inappropriate conduct. Denhoff testified on her own behalf.

Hearings on the Charges were conducted on eighteen dates between June 6, 2008 and July 22, 2009 (the "Hearing"). On March 2, 2010, the Opinion was rendered by Hearing Officer Siegel which sustained 14 of the 20 Charges and recommended termination of Denhoff's employment.

The Opinion and Award [*3]

Hearing Officer Siegel found that during the 2005-2006, 2006-2007 and 2007-2008 academic years, Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work. Denhoff's offending behavior can be described as falling into one of four general categories:

(1) Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers - - Moore, Stern and Tramontozzi. Such criticism was generally directed to other teachers and was usually spoken outside the presence of Denhoff's objects of disdain. (Charges I, V (d) and VI (d)).

(2) Verbal and non-verbal criticism of these same teachers - - for example, by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence. (Charges II, III, and XI).

(3) Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration. (Charges IX, XII, XIII, XIV and XV).

(4) "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties. (Charges IV, V, VI a - c and e - j and VIII).

In the 2005-2006 and 2006-2007 academic years, the Hearing Officer found that Denhoff's untoward conduct was directed almost exclusively at Moore, then a fellow member of the Guidance Department. It is undisputed that during that period, both Moore and Denhoff were untenured teachers, and Denhoff had no supervisory responsibilities with respect to Moore. It is also undisputed that while Denhoff was awarded tenure in 2006, Moore was ultimately denied tenure and resigned in 2007. During the 2007-2008 academic year, Denhoff's conduct was directed toward two new hirees of the Guidance Department, teachers Stern and Tramontozzi, both of whom began their full time teaching employment with Respondent in September 2007. Most, if not all, of Denhoff's offending behavior with respect to Stern and Tramontozzi occurred during the relatively brief period of July through October 2007. Both parties concede that during those several months, Denhoff, while a tenured teacher, had no meaningful supervisory responsibilities with respect to Stern or Tramontozzi.

Thus, it is undisputed that with respect to all three objects of her derision, Denhoff had no formal supervisory responsibilities and therefore no authority to establish or enforce rules of conduct, work hours, or other terms and conditions of employment. Nonetheless, the Hearing Officer concluded that Denhoff, in league with another former member of the Guidance Department, Haruko Hirose ("Hirose"), created, in essence, a hostile work environment within the Guidance Department, and that, as such, Denhoff's conduct violated the Education Law and warranted termination of her employment. The District also brought charges against Hirose, who resigned her position before any hearing was commenced.

In reviewing the record and the Hearing Officer's Decision, the issues confronting the Court in this Article 78 proceeding boil down to the following: Was the Hearing Officer's finding that Denhoff in fact engaged in the conduct as charged supported by the evidence and not arbitrary or capricious? If so, did such conduct violate the Education Law as applied to a teacher in Denhoff's position? And assuming that such violations did occur, is the imposition of the [*4]ultimate sanction of termination appropriate and permissible under the circumstances or does that penalty shock a reasonable person's conscience and sense of fairness to the extent that such a penalty should not be imposed.To address these central issues, the standard of review of a Hearing Officer's Decision in the instant context must first be examined.

Legal Principles Applicable to a Hearing Officer's Decision

Education Law §3020 governs the discipline of tenured teachers. Section 3020 (1) provides in pertinent part, that "[n]o person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article." Under the situation that obtains in the instant proceeding, any charges brought against a tenured teacher are first subject to compulsory arbitration before a single hearing officer. Education Law 3020-a(2)(b)(i).A tenured teacher aggrieved by the decision of such hearing officer may "not later than 10 days after receipt of the hearing officer's decision. . . . make application to the New York State Supreme Court to vacate or modify said decision pursuant to CPLR 7511" (Education Law § 3020-a(5), which Denhoff did here.

In general, the standard of judicial review pursuant to CPLR 7511 is as follows: a hearing officer's determination will be upheld if it is supported by substantial evidence and is not arbitrary or capricious; it may only be vacated upon a showing of "misconduct, bias, an excess of power or procedural defects." Lackow v. Department of Educ. City of New York, 51 AD3d 563, 567 (1st Dept 2008), quoting Austin v. Board of Educ., 280 AD2d 365 (1st Dept. 2001). However, where, as in the instant case, the parties are subject to compulsory as opposed to voluntary arbitration, judicial review under CPLR Article 75 is more expansive. In compulsory arbitration cases, in order to affirm a hearing officer's ruling, the Court must be satisfied that the hearing officer's decision was "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. Dept. of Educ. of City of New York, 51 AD3d 563, 567 (1st Dept. 2008); see also, Bernstein v. Norwich City School Dist. Bd. of Educ, 282 AD2d 70 (3d Dept 2001). The parties herein essentially agree that such an exacting standard applies in this case.

Nevertheless, the law is clear that the hearing officer's factual determinations are to be accorded significant deference, particularly when matters of witness credibility are involved. Indeed, in deciding whether a hearing officer's findings are supported by ample evidence in the record, a court is guided by the basic principle 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." Nreu v. New York City Department of Education, 25 Misc 3d 1209(A), 2009 WL 3188506 (NY Sup. 2009), quoting Berenhaus v. Ward, 70 NY2d 436, 443 (1987); Matter of the Board of Educ. of Poughkeepsie, 34 Educ. Dept. Rep. 216, 218 (1994) ("Where the credibility of witnesses is the primary basis of the hearing panel's decision, the Commissioner will not substitute his judgment for that of the panel unless there is clear and convincing evidence that the panel's determination of credibility is inconsistent with the facts."). The rationale behind this principle is clear: the hearing officer alone had the opportunity to observe the witnesses and was "able to perceive the inflections, the pauses, the glances and gestures - all of the nuances of speech and manner that combine to form an impression of either candor or deception." Lackow v. Dept. of Educ. of City [*5]of New York, 51 AD3d 563 (1st Dept. 2008), quoting Matter of Berenhaus v. Ward 70 NY2d 436 (1987).

In the instant case, the evidence adduced at the hearing was predominately testimonial.The hearing was conducted over a period of several days and Hearing Officer Siegel, in making his determination, evaluated and credited the testimony of the District's witnesses, all of whom worked with Petitioner at Hommocks Middle School during the period of alleged misconduct. Hearing Officer Siegel found that Tramontozzi, Stern, Moore, Jolita Gudaitis (a psychologist who also worked in the Guidance Department) and Calderon all testified similarly about the unprovoked anger and unprofessionalisim displayed by the Petitioner during numerous interactions with them and less senior counselors. Hearing Officer Siegel specifically noted the consistency and striking similarity of the descriptions of the pattern of Denhoff's inappropriate behavior, demeaning language, excessive criticism and mean spiritedness toward her fellow guidance counselors. These witnesses were found to have enjoyed successful and productive careers prior to employment with the District and were not shown to have any motive to fabricate testimony about Petitioner.

In assessing the credibility of the District's witnesses, Hearing Officer Siegel found the testimony of psychologist Jolita Gudaitis to be particularly credible, and found noteworthy the specificity with which she spoke about several of the Charges. She impressed Officer Siegel as an intelligent, sophisticated and experienced psychologist who was clearly disturbed by Petitioner's behavior. (Opinion and Award p. 29). The Hearing Officer similarly credited the testimony of the objects of Denhoff's untoward behavior - - Moore, Tramontozzi and Stern - - as well as that of Calderon and other District witnesses.

In applying the above-mentioned principles and assessing the entire record of the proceeding, it is clear to the Court that Hearing Officer Siegel's findings of fact with respect to virtually all of the 14 Charges as to which he found Denhoff guilty are supported by adequate evidence and were not irrational, arbitrary or capricious. See Lackow v. Dept. of Educ. of City of New York, 51 AD3d 563 (1st Dept. 2008). The only exceptions pertains to Charges XI and V(b). With respect to these Charges, the evidence adduced at the hearing did not, as a technical matter, fully support the specific language of the entire Charge.

As to Charge XI, the Respondent simply did not prove all of the facts as alleged and therefore the Hearing Officer's decision was to a certain, limited extent, not supported by a preponderance of the evidence. The Hearing Officer sustained Charge XI that Denhoff "on or about October 3, 2007 . . . trapped a less senior Guidance counselor [Tramontozzi] in an

office . . . for approximately one (1) hour." (Charge XI, emphasis supplied). While the evidence adduced at the hearing places Denhoff and Tramontozzi together in an office, the record is clear that if Tramontozzi was indeed trapped, her predicament was caused and prolonged not by Denhoff but by another participant in the meeting. However, Officer Siegel's decision that Denhoff - - along with Hirose - - berated and verbally abused Tramontozzi while she was in such "office" is supported by the evidence in the Record. Accordingly, Charge XI is dismissed as to the finding that Petitioner herself "trapped" Tramontozzi, but the Hearing Officer's finding to what transpired in the room - - namely Denhoff's verbal assault on Tramontozzi - - is affirmed. Similarly, with respect to Charge V (b) to the effect that Respondent obstructed another guidance counselor "from volunteering and/or engaging in Chaperoning Activities", the Hearing Officer [*6]failed to cite any part of the Record that concerned "Chaperoning Activities." To the extent that this Charge refers to "Chaperoning Activities", it was not sustained by the evidence adduced and it is dismissed.

With respect to these two Charges, while Denhoff's conduct may have been less than exemplary, such conduct was not specified in the Charges brought against her and therefore Respondent's proof fails as a matter of law to the extent described above. See, e.g., Matter of Soucy v. Board of Education, 41 AD2d 984 ( 3d Dept. 1973); Matter of Coderre, 15 Educ. Dept. Rep. 346 (1976). Otherwise, the Court has reviewed the Record of the Hearing and finds that sufficient credible evidence supports the findings of fact and determinations made by Hearing Officer Siegel. The Court also finds that Denhoff, who was represented by counsel throughout the hearing process, was clearly accorded due process.

Whether Denhoff's Conduct as Found Violates the Education Law.

The Court's determination that the Hearing Officer's findings of fact were, in the main, supported by the credible evidence is not the end of the inquiry. The penultimate question remains: did Denhoff's conduct, as found by the Hearing Officer, amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent. The Hearing Officer found that her conduct did amount to such violations with respect to 14 of the 20 Charges interposed against her. However, he failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide. That task has been relegated to the arguments of the parties, and now to the judgment of the Court.

In view of the fact that, as Respondent concedes, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown, Respondent in its papers focuses on the general prohibition against "conduct unbecoming a teacher"; Respondent contends that Denhoff's conduct, as found by the Hearing officer, clearly falls into that category. Petitioner essentially agrees that "conduct unbecoming" should be the standard against which Denhoff's actions are measured and principally relies upon the statement of the Commissioner in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) to the effect that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. As the Commission in Uniondale stated,

"Although the panel found that respondent expressed himself to his superiorsin an antagonistic and discourteous manner, it held that such conduct doesnot constitute conduct unbecoming a teacher as long as [his] actions do notaffect [his] ability to teach and are not disruptive."'

Petitioner then focuses of each separate act of Denhoff and argues that since such verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that Denhoff had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal. Several cases cited by [*7]Petitioner seem, at first glance, to support this view. See, e.g., Matter of Coderre, 15 Educ. Dept. Rep. 346 (1976) (Charge dismissed when teacher "used" a racial epithet rather than calling a student by one); Matter of the Bd. of Educ. of the City of Poughkeepsie, 34 Ed. Dept. Rep. 216 (1994); Appeal of Board of Coop. Ed. Services of Tompkins-Seneca-Troga Counties, 33 Ed. Dept. Rep. 92 (1993) (Charge sustained against a tenured special education teacher for routinely referring to her students as "stupid" and "retarded", but teacher only penalized with a fine); Board of Educ. of the Johnsburg Central School District, 33 Ed. Dept. Rep. 264 (1994) (Termination not warranted for teacher who told a fourth grade student that "F-ck means sex".); Appeal Board of Coop. Educ. Services for Ontario, Seneca, Yates, Cayuga and Wayne Counties, 34 Ed. Rep. 37, 42 (1994) (Although teacher was found guilty of ordering a student to "move you stupid s-it" and yelling "f-ck" and "sh-t" at a fellow teacher and aid in a classroom full of students, the Commissioner found that "[w]hile it cannot be disputed that such comments should not have been made, the findings do not impinge respondent's ability to carry out his professional duties and, therefore, do not justify his dismissal. However, a penalty must be imposed . . . .")

However, Petitioner's atomistic approach, focusing on each instance of Denhoff's misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of Petitioner's conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities. Indeed, while it is true that the decisions cited by Petitioner address individual incidents of physical or verbal abuse by teachers, and raise the question of whether the particular random acts have an impact on the "ability to teach", these cases prove inadequate in evaluating the situation that obtains here - - where a long series of a teacher's actions, taken together, are claimed to be disruptive of the educational process. As several decisions show, the Court is certainly entitled to take the totality of a teacher's behavior into account in deciding whether to sustain a finding that he or she engaged in unbecoming conduct in violation of the Education Law. See, e.g., Jerry v. Bd. of Edu. of City School Dist. of City of Syracuse, 50 AD2d 149 (4th Dept. 1975) (Persistent course of conduct of using physical force and profane language merited dismissal); Appeal of Grihin, 38 Educ. Dept. Rep. 399 (1998) (Misconduct and insubordination over a period of several school years held sufficient to sustain panel's findings of guilt and recommendation of termination); Appeal of Bd. Of Educ. Of Sachem Central School Dist., 31 Ed. Dept. Rptr. 277, Dec. No. 12.641(1992) (Verbal abuse of school administrators that took place outside school grounds held to be conduct unbecoming of a teacher, warranting sanctions); Scheiber v. NYC Board of Educ., 190 AD2d 804 (2d Dept. 1993); Board of Educ. of East Hampton School Dist. v. Yusko, 269 AD2d 445 (2d Dept. 2000) (Court affirmed finding that teacher had engaged in inappropriate physical contact and verbal conduct with students over a period of three school years); Appeal of Board of Coop. Educ. Services of Tompkins - Seneca - Troha Counties, 33 Ed. Dept. Rep. (1993).

In the instant case, the totality of the circumstances amply support the Hearing Officer's conclusion that Petitioner, in league with her fellow senior guidance counselor Hirose, created a toxic and disruptive environment within the Hommocks' Guidance Department. Contrary to Petitioner's assertions, Denhoff's actions, as found by the Hearing Officer, clearly had a deleterious effect on the educational process at Hommocks. Through no single incident, but [*8]rather through a long train of churlish, bullying actions, Denhoff, together with Hirose wreaked havoc on their department. They made it difficult, if not impossible, for the other members of their Department to carry out their duties. As recounted by the Hearing Officer, the record is replete with examples of such inappropriate behavior - - much of which was devoted to "convincing" teachers to spend less time with and provide less help for students than students needed and that such teachers desired.

As Hearing Officer Siegel summarized:

"The evidence establishes that Denhoff's behavior was completely unacceptable for a guidance counselor. She treated her less senior colleagues in as shabby and abusive way as one could possibly imagine. She bossed them around, controlled them, and undermined them with the administration. She forced them to be loyal to her and listen to her over their administrators. She directed them to never proceed in accordance with administrative directives until receiving her approval. She repeatedly threatened them with the loss of their jobs if they failed to play by her set of rules.

Denhoff repeatedly criticized and threatened less senior guidance counselors. She called colleagues losers, morons and had other unflattering names for them. She berated them constantly, telling them their work was awful. She told them their work product was useless and rarely, if ever, offered anything that could objectively by considered constructive criticism.

Denhoff belittled her colleagues, both in front of other colleagues and privately behind closed doors. She refused to let her colleagues volunteer for activities. She made it clear to less senior colleagues that they would suffer her wrath if they stayed past 4:00 p.m. and verbally abused them when they did stay past 4:00 p.m." (Opinion and Award pp. 63-64).

In his Opinion, Hearing Officer Siegel sets forth numerous specific examples of such behavior as gleaned from the Record. (See Opinion pp. 8-11, 28-68).

Particularly in the context of guidance counseling of teenagers - - a sensitive and oftentimes psychological area of teaching - - it is mind boggling that such conduct occurred and persisted without any meaningful interim reaction or intervention of the school's administration until October, 2007, several years after such behavior began. Although the school administration claims to have cautioned Denhoff on more than one occasion, the facts as found by the Hearing Officer indicate that its response to her behavior was tepid at best until charges were formally brought. (See Opinion, pp. 61-63).

Appropriate Penalty to Impose.

Be that as it may, by reason of the foregoing, the record adequately supports the Hearing Officer's conclusion that Denhoff's conduct violated the Education Law and merits punishment. The ultimate issue remains extant - - should the severe sanction of dismissal, as proposed to be meted out by the Hearing Officer, be sustained or is some lesser punishment appropriate under the circumstances present here?

Under Education Law § 3020-a the Courts have held that the standard of review of a hearing officer's decision with respect to punishment is whether the sanction as directed is so disproportionate to the conduct found that it would "shock the conscious" or would offend a [*9]reasonable person's "sense of fairness" if imposed. Pell v. Board of Education, 34 NY2d 222 (1974); Lackow v. Dept. of Educ., 51 AD3d 563 (1st Dept. 2008).

Petitioner contends that dismissal is not warranted and cites several mitigating factors, including the undisputed facts that Denhoff's conduct was not insubordinate since it was not directed toward a supervisor, nor was it directed against a student or parent; no physical violence was charged; several of the incidents took place over a relatively brief time period - - from July to October 2007; and, most important to Respondent, Denhoff was never reprimanded for her behavior or specifically ordered to cease and desist until her suspension in October, 2007.In support of her argument, Petitioner cites cases in which a teacher was found to have engaged in unbecoming conduct, several of which involved physical or verbal abuse directed toward a supervisor, student or parent, yet the teacher received a punishment short of dismissal. See, cases cited (supra , p. 11-12).

In the instant case, however, in light of the improper and damaging conduct of Denhoff over a period of years, the Hearing Officer's imposition of the ultimate sanction of dismissal does not so shock the conscience or offend a reasonable person's sense of fairness so as to mandate a different determination. To be sure, in some cases - - as cited by Petitioner - - the Court or Commissioner upheld a penalty for unbecoming conduct that falls short of dismissal. However, such cases typically involve random acts by teachers over a relatively short time frame. (See cases cited, supra , pp. 11-12). Here, however, several academic years and numerous instances of misconduct are implicated. Indeed, the record is replete with instances in which Petitioner berated and made belittling statements to less senior guidance counselors, invidiously impugned their work, "ordered" them not to perform certain duties and threatened to negatively impact their careers. (See Opinion, pp. 7-11, 28- 67 for examples). It goes without saying that such behavior significantly affected their ability to teach and the educational process. In similar situations, courts and the Commissioner have not hesitated to affirm a penalty of termination. See, e.g., Caravello v. Board of Ed., 48 AD2d 967 (3rd Dept. 1975) (Termination of guidance counselor with seventeen years of tenure for conduct unbecoming and insubordination neither "disappropriate to offense nor shocking to one's sense of fairness."); Scheiber v. New York City Board of Education, 190 AD2d 804 (2d Dept. 1993) (Dismissal of tenured mathematics teacher on 14 specifications of misconduct "not shocking to one's sense of fairness."); Appeal of Grihin 38 Educ. Dept. Rep. 399 (1998) (Various instances of misconduct and insubordination over a period of several school years held sufficient to sustain hearing panel findings and sanction of termination). Matter of Board of Education of the Commack Union Free School District, 24 Educ. Dept. Rep. 62, 65 (1984) (Numerous acts of tenured social studies teacher in refusing to properly test students that were "repetitive and occurred over a substantial period of time" held to dismissal). Forte v. Mills, 250 AD2d 882 (3d Dept. 1998).

Indeed, to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness" - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff. Cf. Matter of the Bd. Of Educ. of Poughkeepsie, 34 Educ. Dept. Rep. 216 (1994); Nreu v. NYC Dept. Of Educ., 25 Misc 2d 1209A, 901 NYS2d 908 (Sup. Ct., NY Co. 2009).

Finally, the mere fact that Denhoff may not have been explicitly told to cease and desist [*10]from any specific behavior is of no moment as far as either culpability or punishment is concerned. In light of the facts as found by the Hearing Officer, no teacher - - or, for that matter, no reasonable person concerned about education - - could plausibly believe that the conduct in which Denhoff was found to have engaged was not unbecoming of a teacher and subversive of the educational process. Accordingly, repeated admonishments or warnings were unnecessary, if not superfluous, as Hearing Officer Siegel found (Opinion p. 67-68). The Court thus rejects the argument that the Hearing Officer's award should be vacated because Denhoff was not warned about the possibility of dismissal. See Lackow v. Department of Educ. of City of New York, 51 AD3d 563, 568 (1st Dept. 2008). ("Even without a warning about the possibility of dismissal, certain conduct, such as petitioner's is clearly unacceptable."); cf. Nreu v. N.Y.C. Dept. Of Educ.. 25 Misc 3d 1209A, 901 NYS2d 908 (Sup. Ct. NY Co. 2009) ("[P]etitioners notice argument is bizarre. It is incredible that any adult would not know that the conduct [repeatdely calling and leaving inappropriate messages to a student] is and was improper."); Bd. Of Educ. of City School District of NYC, 22 Educ. Dept. Rep. 247, 249 (1982) ("There is no necessity that a teacher be given notice that poor attendance may lead to dismissal. It is self evident"). In addition, the mere fact that Denhoff was found guilty of fewer than all of the charges alleged is of no merit in challenging the determination rendered. (Matter of Bernstein [Norwalk City School Dist. Bd. of Educ.],282 AD2d 70 (3d Dept. 2001)).

Conclusion

Thus, after review of the Record in this proceeding and the Opinion of Hearing Officer Siegel, the Court finds that Hearing Officer Siegel's findings, except with respect to portions of Charges XI and V (b) as described above, are rational, supported by adequate evidence and are not arbitrary and capricious. The Court further finds that the penalty of termination of Petitioner's employment as recommended by Officer Siegel is not offensive to a reasonable person's conscience or sense of fairness and is appropriate under the circumstances.

Accordingly, except with respect to the portions of Charge XI and Charge V(b) as noted above, which are dismissed, the Decision of Hearing Officer Siegel is sustained, including his recommendation that Respondent has just cause to terminate Respondent's employment.

The Petition is therefore dismissed, except as noted above with respect to the parts of Charges XI and V which are dismissed.

The foregoing constitutes the Decision and Order of this Court.

DATED: White Plains, New York

September 30, 2010

Hon. John P. Colangelo

Acting Supreme Court Justice