Matter of Bell v New York City Dept. of Educ.

[*1] Matter of Bell v New York City Dept. of Educ. 2010 NY Slip Op 52380(U) Decided on December 29, 2010 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2010
Supreme Court, New York County

In the Matter of the Application of Ming Bell, Petitioner, For an Order Pursuant to Article 75 of the Civil Practice Law and Rules

against

New York City Department of Education, Respondent



103267/2010



For Petitioner:

Edward H. Wolf, Esq.

Wolf & Wolf, LLP

910 Grand Concourse, 1F

Bronx, NY 10451

(718) 410-0653

For Respondent:

Michael A. Cardozo

Corporation Counsel of the City of New York

By: Shakera Khandakar, Esq.

Blanche Greenfield, Of Counsel

100 Church St, Room 2-183

New York, NY 10007

(212) 442-0144

Michael D. Stallman, J.

Petitioner Ming Bell moves for an order, pursuant to CPLR 7511, vacating or remanding an arbitration award made after a disciplinary hearing held pursuant to Education Law § 3020-a, in which petitioner was terminated from her employment with respondent The New York City Department of Education (the DOE). The DOE cross-moves to dismiss the petition, pursuant to CPLR 3211 (a) (7), 404 (a), and 7511. The DOE also seeks an order confirming the award, pursuant to CPLR 7511 (e).

BACKGROUND AND FACTUAL ALLEGATIONS

Until her termination from employment in March 2010, petitioner worked as an English [*2]as a Second Language (ESL) kindergarten teacher in Queens, New York. Petitioner was a tenured employee, and had been working for respondent since 1987.

In 2008, pursuant to Education Law § 3020-a, the DOE served petitioner with "specifications," or charges, alleging that, between the 2005-2006 and 2006-2007 school years, petitioner was "incompetent, insubordinate and neglected her duties ... ." DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 3. The DOE charged petitioner with 10 specifications. Eight of the 10 alleged that petitioner's lesson plans were unsatisfactory. The two remaining charges stemmed from excessive absences. By way of example, two of the charges alleging an unsatisfactory lesson plan state the following: Specification 1: On or about December 15, 2005 Respondent's lesson was unsatisfactory as detailed in an observation report prepared by Assistant Principal Maria Farazdel (A.P. Farazdel) in that:a) Respondent failed to correct a student who read incorrectly,b) Respondent did not know which students were in her group.c) Two students were off task.d) Throughout the reading lesson there was no evidence of rhyming.e) There was no evidence of planning.f) The development of the lesson was not effective.g) The lesson was not properly paced.h) The mini lesson went on too long.i) The students' time on the carpet was too long.j) The architecture of the mini-lesson was not implemented.k) Respondent failed to confer with students.l) There was no evidence of note taking.m) There was no evidence of student assessment.n) There was no evidence of differentiated instruction. o) Respondent did not work collaboratively with teacher, Ms. Bennett.p) Respondent was arranging the classroom during instructional time.q) Respondent did not have a written lesson plan.r) Respondent failed to follow prior directives of the administration.

*** Specification 8: On or about April 25, 2007, Respondent's lesson was unsatisfactory as detailed in an observation report prepared by A.P. Jacqueline Bruno in that:a) Respondent failed to properly implement the architecture of the mini lesson.b) Respondent did not use scaffolding strategies.c) Respondent did not encourage students to use complete sentences.d) The Respondent did not properly implement the strategy lesson.e) Respondent did not focus on one teaching point.f) Respondent did not properly implement the conference portion of the lesson.g) Respondent did not take any conference notes.h) Respondent did not use positive reinforcement.i) Respondent did not use proper grammar.[*3]j) Respondent failed to follow prior directives of the administration.

Id. at 3, 8.

The ten charges were listed to constitute: 1) Just cause for disciplinary action under Education Law § 3020-a;2) Conduct unbecoming Respondent's position, or conduct prejudicial to the good order, efficiency or discipline of the services;3) Insubordination;4) Incompetence;5) Excessive Absenteeism;6) Substantial cause rendering Respondent unfit to perform properly her obligations to the service;7) Neglect of duty; and8) Just cause for termination.

Id. at 9.

A hearing pursuant to Education Law § 3020-a began on June 16, 2008 to determine the charges. Arbitration is compulsory in Education Law § 3020-a disputes according to petitioner's collective bargaining agreement, and the DOE's rules. Hearing Officer Randi Lowitt, Esq. was appointed to preside over the proceedings. A hearing took place over 19 days where both parties were entitled to examine and cross-examine witnesses and submit evidence. Petitioner presented testimony from her expert witness, Dr. Bruce Levenberg. Petitioner, along with Levenberg, asserted that the DOE did not provide petitioner with adequate remediation.

Hearing Officer Lowitt sustained most of the charges set forth in the eight specifications with respect to unsatisfactory lessons. The charges for excessive absences were not sustained. For each specification, Hearing Officer Lowitt went through the facts as presented to her by both parties.

For instance, as set forth above, in specification one, petitioner is charged with delivering an unsatisfactory lesson plan on December 12, 2005. Assistant Principal Farazdel observed petitioner on that day and gave petitioner an unsatisfactory rating. During the hearing, Farazdel testified that, among other things, petitioner did not know which students were in her group, and that the lesson was not properly developed. According to the DOE, the school had expected petitioner to be using a type of teaching method from Teachers College for the lower grades, which she did not appear to be using. Farazdel also testified that, although she had offered petitioner assistance with writing a lesson plan, petitioner declined the offer. The DOE explained that, after the unsatisfactory rating, it provided appropriate remediation to petitioner by providing her with supervisory-[*4]teacher meetings and assistance from a staff developer.

In response to the DOE's testimony, petitioner asserted that she was not aware that this was a formal observation, but had thought it was an informal one. Petitioner contended that Farazdel did not understand what petitioner was trying to accomplish during the lesson and that Farazdel's conclusions were mistaken. Petitioner, along with Levenberg, also vigorously claimed that any alleged remediation was deficient. Among other things, petitioner alleged that she was not provided an observation report for at least two and half months, that the report contained too many suggestions for improvement, and that Farazdel failed to execute her own recommendations. Levenberg also testified that the observation was conducted too late in the year to establish a baseline to compare future observations. Respondent's Exhibit 18, Levenberg TR, at 4379-4380.

Hearing Officer Lowitt found that Farazdel's testimony was clear and that the petitioner's lesson plan was properly rated as unsatisfactory. She upheld the charges in specification 1 a-o. The record indicates that subspecifications p and r were previously dismissed, and that Hearing Officer Lowitt also dismissed subspecification q, finding that she was "not certain that there was no lesson plan." DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 29.

As previously stated, in specification eight, petitioner was charged with delivering an unsatisfactory lesson plan on April 25, 2007. This lesson plan was observed by Assistant Principal Jacqueline Bruno. At petitioner's hearing, Bruno provided a post-observation report. Bruno also testified that, despite the fact that petitioner was allowed to choose her own topic and date, the lesson was still unsatisfactory. She continued that petitioner did not follow any of the previous suggestions for professional development. Bruno further testified that she had not read any of the prior observations of petitioner since Bruno "likes to do her observation with an open mind." Id. at 47. Among other things, Bruno claimed that petitioner did not use proper grammar while teaching the children.

Petitioner did not agree with any of Bruno's contentions. She asserted that Bruno was told by the principal to give petitioner an unsatisfactory rating. Petitioner believed that the lesson went well since the children learned what she taught, and that she had put an enormous amount of work into that particular lesson. Levenberg also contended that "an inordinate amount of time" was given between this observation and petitioner's prior one on January 19, 2007. Respondent's Exhibit 18, Levenberg TR, at 4437.

After listening to the testimony and reviewing the evidence, Hearing Officer Lowitt found that the petitioner's testimony was "an addition to the excuses and explanations she had given [*5]regarding the other specifications." DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 49. Hearing Officer Lowitt found Bruno to be a credible witness. Hearing Officer Lowitt sustained the charges in specification 8 a-j.

The other six unsatisfactory lessons were similarly fleshed out by Hearing Officer Lowitt in her award and opinion and will not be addressed at this time, as the two specifications addressed here are sufficiently indicative of all of the specifications. Petitioner refuted the other charges and maintained that the DOE failed to provide her with remediation. Among other things, petitioner claimed that she was given her evaluations too late in the year; that she was given too many suggestions in her remediation reports for her to absorb between observations; that plans for meetings were frequently broken; that some of the observations from one report appeared to be "cut and pasted" from another one; and that petitioner was teaching students who did not belong in her class i.e., "new admits" who did not speak any English and should have been transitioned before entering petitioner's classroom. Id. at 22, 17; Respondent's Exhibit 13, Bell TR, at 3005. Petitioner claimed that, while other schools in the district provided separate classrooms for children who spoke no English, her school did not. As such, petitioner felt that she was at a disadvantage and was limited by the school to use certain teaching techniques. Levenberg testified that ESL services should be provided only when the student has already acquired some grasp of the English language.

Hearing Officer Lowitt credited petitioner's contention that she received a long list of recommendations by stating, "simply laundry listing the alleged remediation and the claimed needed improvement in certain areas, does not cause it to miraculously occur." DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 58. However, Hearing Officer Lowitt also noted that follow-up occurs as a partnership with the teacher and the administration. According to Hearing Officer Lowitt, in this situation, the administration provided the guidance and support, but that petitioner just believed that she was in an "untenable situation" and that she did not proactively follow up. Id. at 59.

Hearing Officer Lowitt stated that she gave Levenberg's testimony "minimal weight" after hearing all the evidence. Id. at 61. She also followed up that "teachers must be able to teach a diverse group of students," and that "[t]his is the nature of the job of an ELL (English Language Learner) teacher, not a defense or inability to render competent service." Id. at 59.

Hearing Officer Lowitt's Determination of Incompetency:

Hearing Officer Lowitt found that the petitioner provided "incompetent service." Id. at 62. Hearing Officer Lowitt noted [*6]that five different people found petitioner's lesson plans to be unsatisfactory over eight observations. These observations were over a two year period. During this period, Hearing Officer Lowitt concluded that petitioner did not take steps to adhere to any of the comments or suggestions made. Hearing Officer Lowitt stated that petitioner "should have been willing and able to do whatever necessary to acquire the requisite skills, having been given the additional support necessary, to render competent service to her students," and that "[c]redentials do not make the teacher." Id. Hearing Officer Lowitt seriously doubted that, if petitioner were to return to work, her teaching would improve.

Hearing Officer Lowitt's Determination of the DOE's Remediation

Hearing Officer Lowitt acknowledged that, although there may have been delays getting information relayed to petitioner, petitioner was always aware of the deficiencies in her teaching, was aware of remedial efforts being made on her behalf, and did not pursue the remediation opportunities that the DOE provided to her. Id. at 57. Hearing Officer Lowitt also set forth detailed remedial efforts by the DOE which included the following: going to Teachers College, having professional development by Teachers College, receiving personal assistance from the school's personnel, and receiving printed materials as to what is expected of her. Id. at 58. Hearing Officer Lowitt categorized the remediation as being "reasonably designed to provide support and training that Ms. Bell would need to succeed." Id. Hearing Officer Lowitt continued that the DOE showed "the breadth of information given, the sheer quantity of professional developments that were alluded to, the work Ms. Bell did with various coaches and the types of opportunities given to Ms. Bell." Id. at 59. Hearing Officer Lowitt also noted the myriad of videos available for teachers to watch and review, along with other materials made available to petitioner, of which petitioner did not avail herself.

While also acknowledging the meetings that were canceled between petitioner and the school personnel, Hearing Officer Lowitt determined that petitioner was not "proactive in her own efforts" and did not "take any responsibility for the issues that befell' her." Id. Hearing Officer Lowitt also concluded that petitioner did not show "even a scintilla of remorse for the situation, and continued to deflect attention from herself and back onto the others in the administration she found to be deficient in their duties." Id. at 59-60.

On February 22, 2010, Hearing Officer Lowitt determined that petitioner should be terminated from her teaching position as a result of the charges. She concluded that the DOE met its requirement of proving that petitioner had rendered unsatisfactory lesson plans during the 2005-2006 and 2006-2007 school years. Hearing Officer Lowitt ended her report by stating [*7]the following, "[i]n conclusion, I am not persuaded that, if given the chance, Respondent would render competent service. I am persuaded that, for all the reasons discussed in this decision, Ms. Bell has forfeited her right to continue to teach in the New York City Schools. Id. at 63.

Shortly after receiving the arbitrator's award, petitioner filed this proceeding, seeking to vacate the award. In her memorandum of law, petitioner contends that Hearing Officer Lowitt exceeded her authority when she terminated petitioner because there was not sufficient evidence to demonstrate that appropriate remediation was provided to petitioner. Petitioner also argues that the punishment of termination "shocks the conscience." Petitioner also alleges that she was not given an Individualized Improvement Plan tailored to her particular needs, as mandated by Section 100.2 (o) (4) of the Commissioner's Regulations.

Pursuant to a cross motion, the DOE seeks to have the arbitration award confirmed, and also seeks to have the petition dismissed for failure to state a cause of action.

DISCUSSION

Pursuant to Education Law § 3020-a (5), CPLR 7511 provides the basis of review of an arbitrator's findings. Lackow v Department of Education (or "Board") of City of NY, 51 AD3d 563, 567 (1st Dept 2008). CPLR 7511 limits the grounds for vacating an award to "misconduct, bias, excess of power or procedural defects [internal quotation marks and citation omitted]." Id. In an effort to "foster the use of arbitration as an alternative method of settling disputes," the court's role in reviewing an arbitrator's award is severely limited. Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-C10 (Albany Hous. Auth.), 266 AD2d 676, 677 (3d Dept 1999), citing Matter of Goldfinger v Lisker, 68 NY2d 225,230 (1986). Courts are reluctant to disturb an arbitrator's award, and it may not be vacated unless it is irrational, violative of public policy or exceeds the power given to the arbitrator. Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-C10 (Albany Hous. Auth.), 266 AD2d at 677.

However, where, as here, the parties are subjected to compulsory arbitration, the Appellate Division, First Department, has held that judicial scrutiny is greater then when parties voluntarily arbitrate. Id. The arbitration award 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." Id. The burden of showing an invalid award is on the person challenging the award. Id.

The Award Was Supported by Adequate Evidence

In this case, Hearing Officer Lowitt determined that, based on upholding the charges for incompetency, petitioner forfeited [*8]her right to be a teacher in the New York City schools. The bulk of petitioner's arguments centers around her allegations that Hearing Officer Lowitt exceeded her authority by terminating petitioner. Petitioner argues that HO Lewitt exceeded her authority because there was insufficient evidence to support the award, citing Mount Saint Mary's Hospital of Niagara Falls v Catherwood (26 NY2d 493 [1970]).[FN1] Specifically, petitioner claims that there is insufficient to demonstrate that the DOE provided her with sufficient remediation pursuant to post-hearing procedures listed in Education Law § 3020-a (4).

Education Law § 3020-a (4) (a), post-hearing procedures, states the following, in pertinent part, with respect to remediation and a Hearing Officer's authority to terminate an employee: At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal.

As a initial matter, the Court notes that Education Law § 3020-a (4) (a) clearly provides that, "In those cases where a penalty is imposed, such penalty may be a . . .dismissal." Thus, the fact that Hearing Officer Lowitt concluded that petitioner should be dismissed does not, in itself, establish that Hearing Officer Lowitt exceeded her authority.

In her award, Hearing Officer Lowitt noted that the "DOE is obligated to show that it offered training and support and took [*9]necessary steps to assist Ms. Bell in being able to perform her duties in a competent manner." DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 56. After acknowledging the DOE's duties to petitioner, Hearing Officer Lowitt concluded that, after carefully considering the record, she believed that the "DOE did offer training and assistance."

As recited in the facts, Hearing Officer Lowitt set forth, in tremendous detail, many of the techniques that the DOE used to try and remedy the deficiencies of petitioner's teaching. The record also contains individualized letters written to petitioner with commendations and recommendations for her lesson plans. As such, evidence in the record indicates that Hearing Officer Lowitt's award was "supported by evidence or other basis in reason," and the Court will not disturb the award for lack of evidence. Mount Saint Mary's Hospital of Niagara Falls v Catherwood, 26 NY2d at 508.

Moreover, even though petitioner may claim, among other things, that the DOE missed appointments, provided her with late observations and did not follow up between observations, and that she should not have had to teach the various levels of students in her class, Hearing Officer Lowitt did not believe that these claims negated the DOE's remediation. "It was up to the hearing officer to determine what, if any, weight should be given to the evidence, and a court should not substitute its judgment for that of a hearing officer." Matter of Board of Educ. of Byram Hills Cent. School Dist. v Carlson, 72 AD3d 815, 815 (2d Dept 2010).

Moreover, even though petitioner and her expert asserted that "each and every observation was deficient, [and] that each and every person who worked with Ms. Bell had not rendered competent service to her ... "(DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 60), it is well settled that it is within the purview of the Hearing Officer to determine the credibility of the witnesses. As the Court stated in Lackow v Department of Education (or "Board") of City of NY (51 AD3d at 568), "[a] hearing officer's determinations of credibility, however, 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 [internal quotation marks and citation omitted]."

Petitioner also alleges in her amended petition that she was not given an Individualized Improvement Plan tailored to her particular needs, as mandated by Section 100.2 (o) (4) of the Commissioner's Regulations. This Improvement Plan must be developed in consultation with the teacher. Petitioner alleges that Hearing Officer Lowitt incorrectly labeled professional development as an improvement plan.

In her award, Hearing Officer Lowitt describes how the [*10]petitioner received personalized assistance from the school, including observation reports and materials describing exactly what was expected of petitioner. Hearing Officer Lowitt categorized the remediation as being "reasonably designed to provide support and training that Ms. Bell would need to succeed." DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 58. As indicated in the record, this individualized assistance included more than just professional development. In light of such evidence, petitioner's arguments that she did not receive an Individualized Improvement Plan tailored to her particular needs are without merit.

Accordingly, Hearing Officer Lowitt did not exceed her authority when she terminated petitioner and the Court will not disturb the award on this basis.

The Findings Were Rational and Were Not Arbitrary and Capricious

An action is considered arbitrary and capricious when it is "taken without sound basis in reason or regard to the facts." Matter of Peckham v Calogero, 12 NY3d 424, 431 (2009). An arbitration award is considered irrational if there is "no proof whatever to justify the award." Matter of Peckerman v D & D Associates, 165 AD2d 289, 296 (1st Dept 1991).

Applying both standards to the present case, it was not irrational for Hearing Officer Lowitt to terminate petitioner based on deficiencies in her teaching despite sufficient remediation by the DOE. After Hearing Officer Lowitt reviewed the record and listened to testimony, she determined that petitioner's lesson plans were unsatisfactory over the course of two years. Hearing Officer Lowitt noted that five different people, who conducted eight different observations, arrived at the same conclusions. She continued that petitioner made the same mistakes "over and over again" on her observed lesson plans. DOE's Exhibit 1, Hearing Officer's Opinion and Award, at 55. As previously discussed, Hearing Officer Lowitt also determined that the DOE met its statutory requirement to provide remediation. Accordingly, the arbitrator's award cannot be considered arbitrary and capricious.

Termination Not Shocking

Petitioner argues that, in light of performing satisfactorily for nineteen years, and the DOE's insufficient remediation, the penalty of termination is excessive and shocks the conscience. Petitioner also argues that the DOE did not demonstrate that she was incompetent.

An administrative sanction, such as petitioner's penalty, "must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law." Matter of Featherstone v Franco, 95 NY2d 550, 554 (2000). [*11]

The Court has determined that the arbitrator's award was not arbitrary and capricious. Hearing Officer Lowitt was aware of petitioner's lengthy prior service before issuing her decision that petitioner should be terminated. Hearing Officer Lowitt also concluded that the DOE provided sufficient remediation pursuant to its statutory requirements. Finally, Hearing Officer Lowitt also determined that petitioner did not teach competently and, if she were to return to teaching, would not be able to provide competent service. As noted by the DOE, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction [internal quotation marks and citations omitted]." Matter of Rogers v Sherburne-Earlville Central School District, 17 AD3d 823, 824-825 (3d Dept 2005). Given the record and the numerous unsuccessful attempts at remedying petitioner's teaching deficiencies, this Court does not conclude that the penalty of termination shocks one's sense of fairness.

Contrary to petitioner's contentions, the Court does not believe that Hearing Officer Lowitt inappropriately factored in petitioner's alleged lack of remorse in determining the appropriate penalty. Among other things, Hearing Officer Lowitt believed that petitioner was not proactive in her attempts to seek remediation and that petitioner deflected all of the allegations onto other people, without accepting any responsibility for her actions. Hearing Officer Lowitt was empowered to consider petitioner's attitude along with the facts of the case, in determining the appropriate penalty. Here, the hearing officer permissibly concluded that petitioner's teaching was not likely to change, due, in part to her lack of insight as to her own acts.

CONCLUSION

This Court does not find that any basis exists to vacate the arbitration award. After hearing all the evidence, Hearing Officer Lowitt set forth the relevant facts and upheld eight of the charges as set forth in Education Law § 3020-a (4). Pursuant to the parties' agreements, she was given the power to arbitrate and fashion an award.

On the record, substantial evidence exists to support the arbitrator's award and it was not arbitrary or capricious.

Considering the charges, this Court does not find that the penalty of termination "shocks the conscience."

Accordingly, petitioner's request to vacate the award is denied in its entirety, and the DOE's cross motion to dismiss the petition and to confirm the arbitration award is granted.

The Court has considered petitioner's other contentions with respect to the individual specifications, and finds them without merit.

Accordingly, it is hereby [*12]

ORDERED that the cross motion of the respondent The New York City Department of Education is granted in its entirety; and it is further

ADJUDGED that the petition is denied, the proceeding is dismissed, and the award rendered in favor of respondent and against petitioner is confirmed.

Dated: December 29, 2010

New York, New York

ENTER:

/s/

J.S.C. Footnotes

Footnote 1: As petitioner indicates, Mount Saint Mary's Hospital of Niagara Falls holds that, in the case of compulsory arbitration, a review of whether the arbitrator exceeded his power

by necessary logical extension and without distortion of its literal terms includes review in the case of compulsory arbitration (but only in such case) of whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record.

26 NY2d at 508.