Matter of Dunn v New York City Dept. of Educ.
Annotate this CaseDecided on July 27, 2011
Supreme Court, New York County
In the Matter of Helen Dunn, Petitioner,
against
New York City Department of Education, Respondent.
115639/10
Kate M. McGauley, Esq.
Katz Lawyers, PC
Attorney for Petitioner
Kuuku Minnah-Donkoh, Esq.
Assistant Corporation Counsel of the Corporation Counsel of the City of New York
Attorney for Respondent
Anil C. Singh, J.
Petitioner moves by order to show cause for an order pursuant to CPLR Article 75 and Education Law 3020-a vacating and/or modifying a hearing officer's arbitration award that: a) found respondent teacher guilty of leaving her classroom unattended and unsupervised and making an obscene hand gesture to a student; and b) imposed a penalty in the form of a Letter of Reprimand and a fine of $6,000.00. Respondent cross-moves to dismiss the petition pursuant to Education Law section 3020-a(5), as well as CPLR 404(a) and 3211(a)(7), for failure to state a cause of action. Petitioner opposes the cross-motion.
Petitioner Helen Dunn is a teacher employed by respondent New York City Department of Education ("DOE"). She has been with the DOE since 1978 and has tenure.
The DOE operates school programs in several hospitals to enable sick children in grades K through 12 to keep up with their school studies while they are hospitalized. Mary Maher is the Principal of the hospital schools.
Petitioner was teaching at Morgan Stanley Children's Hospital of New York-Presbyterian Hospital ("hospital school") in 2008. Among the students enrolled in the hospital school was a male student "J.P.," who was 17-years-old. When J.P. was first admitted to the hospital, he was one of petitioner's students. However, he was no longer one of her students by the date of the [*2]incident in issue.
On October 30, 2008, there was an incident/confrontation in a hallway between petitioner and J.P. The event was caught on videotape by one of the hospital's surveillance cameras. The videotape shows what happened, but there is no audio.
Shortly after the incident, the hospital administration barred petitioner from teaching in the school.
Principal Maher then initiated an investigation, which included interviews with J.P. and his mother and separately with petitioner.
After requesting and receiving permission from hospital administration, Principal Maher met with J.P. and his mother in his hospital room to question him on December 3, 2008. J.P. told the principal that petitioner "gave him the finger" and addressed him using profanity.
Principal Maher also evaluated the surveillance video to see what happened in the hallway outside petitioner's classroom.
A grievance conference was held on December 12, 2008. Following the conference, Principal Maher delivered a letter to petitioner. The principal wrote:
On December 12, 2008, I met with you at the District Office. Also present at the meeting was your UFT Representative, Philip Sylvester and the Superintendent's Representative, Susan Holtzman. The purpose of this meeting was to review an allegation of professional misconduct and dereliction of duty made against you. We were informed by the Morgan Stanley Children's Hospital Administration that the hospital will no longer permit you to work with patients at their hospital.
During the meeting, I informed you that it was reported to me by Hospital Administration on November 12, 2008, that on the morning of October 30, 2008, you walked out of your classroom, leaving three of your students alone and unsupervised in the room.
I then shared that I had viewed a videotape from the hospital surveillance system provided to me by Hospital security. On the tape, I saw you come out of your classroom into the hallway where you found one of your former students, J.P., to your left. The videotape shows J.P. appearing to speak with you, and you appearing to make an obscene hand gesture towards him in response. You then turned as if you were going to go back into the classroom, while J.P. was dancing in the hallway. Suddenly you turned back toward him and moved towards him with force. You chased after him as he ran off, through the double doors at the end of the corridor. The tape shows you were gone for more than one minute; you came back into view on the tape and then turned and went down a different hallway. Finally, the tape shows you returned to your class, which had been unsupervised during the entire time that you were out in both hallways.
I then provided you with a copy of the summary of my interview with J.P. and his mother on December 3, 2008. I explained that I had needed to secure hospital permission to interview J.P. and I received such permission on December 2, 2008. During my interview J.P. said, referring to you: "She was always bothering me. She said "Fuck you". Gave me the middle finger. Said "I am going to kick your ass." [*3]
I then afforded you the opportunity to respond. You stated that three students were in the classroom when a hospital personnel identification alarm went off. You admitted that you left the room to see what caused the alarm to go off. Contrary to what I saw on the video tape, you claimed that you went to the right in the hallway, to the personnel ID panel, so you could check why the alarm was going off. You denied making any obscene gesture at J.P., instead claiming that you were "holding my finger in the air because it might have been bleeding". You claim that you have problems with your fingers cracking and bleeding. You stated that you went through the double doors "to talk to the unit clerk". You said that J.P. was cursing and that you went to the unit clerk to tell her what he was doing. You admitted that you left your students alone in your classroom, but claimed that they were "okay" and in an emergency could run to their hospital rooms. You stated that you went down the second hallway, taking you even farther away from your classroom, for a Band-Aid because you "wouldn't go back into class with blood on my finger". You stated that your classroom is a designated holding room for students and staff in the event of emergency building evacuation. I pointed out that, as such, there was no reason for you to leave the room to begin with. You responded that it was faster for you to physically go out than to use the hospital telephone provided for the purpose inside your classroom.
Mr. Sylvester volunteered that you have been a satisfactory teacher for many years.
I have investigated the allegation against you, and have reviewed the evidence including the witness statements, the videotape, and your responses at our December 12, 2008 meeting. I conclude that by your own admission, you left your students unattended for an extended period of time. Your statement that your students could take care of themselves demonstrates your extremely poor judgment in this incident. This incident occurred in a hospital setting where our students are hospitalized for various serious chronic and acute medical reasons; these students are extremely medically fragile. J.P. was not your student; and therefore not your immediate responsibility. Furthermore, each classroom, including your own, is equipped with a telephone for contacting the hospital unit clerk or security should you need assistance with a disruptive student. I find that your actions endangered the students under your care, I further conclude that you engaged in conduct unbecoming a professional when you used an obscene hand gesture toward J.P. ("gave him the finger") and chased after him in the hospital hallway.
I find that your abandonment of your students was egregious and constitutes dereliction of duty. Your misconduct in this incident may lead to further disciplinary action including an unsatisfactory rating and charges under the Education Law which may lead to your termination. You are to remain administratively reassigned pending further disciplinary action.
(Supplemental Verified Petition, exhibit B).
Pursuant to Education Law section 3020-a, petitioner was suspended, and the DOE preferred the following charges against petitioner:
SPECIFICATION 1: [*4]
On or About October 30, 2008, Respondent [FN1]:
a) Made an obscene hand gesture (raised her middle finger) towards Student A
b) Chased Student A down the hallway.
SPECIFICATION 2:
On or about October 30, 2008, Respondent left her classroom:
a) Unattended
b) Unsupervised
The foregoing constitutes
Just cause of disciplinary action under Education Law section 3020-a;
Conduct unbecoming Respondent's position, or conduct prejudicial to the good order, efficiency and discipline of the service;
Substantial cause rendering Respondent unfit to perform properly her obligations to the service;
Neglect of Duty;
Misconduct; and
Just cause for termination.
(Opinion and Award dated November 13, 2010, of Hearing Officer Busto, p. 3).
A pre-hearing conference on the charges and specifications was held on October 8, 2009 before Arbitrator Alan Berg. Subsequently, the case was reassigned to Hearing Officer Busto.
Hearings were held on September 30, 2010, and October 6, 7, and 14, 2010. The hearing officer heard testimony from petitioner, J.P., Principal Maher and Tom Taylor, the investigations manager for Children's Hopsital. Hearing Officer Busto accepted all nine of the DOE's exhibits and three of petitioner's seven exhibits into evidence. Closing arguments were heard on October 14, 2010.
Subsequently, the hearing officer issued a decision dismissing Specification 1(b), finding that the DOE had not established that petitioner chased after the student. However, Hearing Officer Busto found petitioner guilty of the charges in Specifications 1(a), 2(a) and 2(b), finding that petitioner had intentionally raised her middle finger at J.P. and had left her classroom [*5]unattended and unsupervised.
Regarding the penalty, the hearing officer wrote:
Ms. Dunn has been employed by the Department for many years and this was her first instance of discipline. The transgressions, while serious, amounted to less than 2 minutes in one day over a 30 year career. She has consistently received satisfactory evaluations. As a result, I have concluded that the penalty of termination is too severe.
Relevant to the penalty imposed is the fact that Ms. Dunn's misconduct took place in a hospital environment and it is undisputed that Student J.P. was not only very sick at the time but also had emotional issues and other limitations that required compassion rather than confrontation. The record is replete with multiple errors of judgment on her part starting with her decision to engage with a patient who was no longer her responsibility and culminating in her leaving her classroom. Moreover, Ms. Dunn refused to admit any errors of judgment or exhibit even a hint of remorse. Ms. Dunn's misconduct reflected poorly on her as a professional but also on the Department and the important services it provides to sick children who are hospitalized for extended periods of time. The penalty should serve as a clear warning to Ms. Dunn that she could face more severe consequences if she fails to conduct herself professionally in the future.
Accordingly, the appropriate penalty under all the facts and circumstances is a Letter of Reprimand and a fine of $6000 representing $3000 for Specification 1(a) and $3000 for Specification (2)(a) and (b) to be deducted in equal amounts from her bi-weekly paycheck.
(Supplemental Verified Petition, exhibit G, pp. 21-22).
Discussion
Petitioner's first contention is that her due process rights were violated. According to petitioner, due process procedures are set forth in Education Law section 3020-a(2) and 8 NYCRR 82-1.3(b). As such, petitioner contends that Principal Maher was mandated to prefer the charges she alleged against petitioner to the governing school board, and the principal was not entitled, by law, to find probable cause on such charges herself. Petitioner asserts that Principal Maher's failure to prefer the charges to the school board — "the only agency vested with the authority to pursue such charges by a majority vote on the finding of probable cause" — is a violation of petitioner's rights.
In response, the DOE asserts that although Education Law 3020-a(2)(a) does provide that the employing board shall determine, by a vote of a majority of all its members, whether probable cause exists to bring a disciplinary proceeding against a tenured teacher, that procedure is not applicable to the City School District of New York — and, therefore, the DOE — based upon Education Law section 2590.
"Section 2590-h (19) of the Education Law provides that the Chancellor may [d]elegate any of his or her powers and duties to such subordinate officers or employees as he or she deems appropriate and to modify or rescind any power and duty so delegated'" (Rivers v. Board of Education of City School District of City of New York, 66 AD3d 410, 410 [1st Dept., 2009]). Likewise, Education Law section 2590-h(38-a) states that the Chancellor has the power "to [*6]exercise all of the duties and responsibilities of the employing board as set forth in section three thousand twenty-a of this chapter with respect to any member of the teaching or supervisory staff of schools which are not covered under subdivision thirty-eight of this section."
In unambiguous terms, the above statutory provisions allow the Chancellor to delegate his or her powers with respect to section 3020-a. In the instant case, such power was delegated to Principal Maher. Accordingly, we find no violation of petitioner's due process rights in this respect.
Petitioner's next contention is that the penalty imposed is arbitrary and capricious.
The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law section 3020-a is whether the penalty or punishment was so disproportionate to the offense as to shock one's sense of fairness (Solis v. Department of Education of City of New York, 30 AD3d 532, 532 [2d Dept., 2006]).
Here, petitioner was found guilty of making an obscene gesture and leaving her classroom unattended and unsupervised. The hearing officer noted that petitioner's "transgressions, while serious, amounted to less than 2 minutes in one day over a 30 year career." In addition, the hearing officer pointed out correctly that petitioner's misconduct took place in a hospital environment and that it was undisputed that J.P. was not only "very sick at the time but also had emotional issues." It was also noteworthy that petitioner "refused to admit any errors of judgment or exhibit even a hint of remorse."
In light of the hearing officer's careful and reasoned consideration of the specific circumstances of this case, the Court finds that the penalty imposed was proportionate and fair.
Petitioner's third contention is that the hearing officer's decision is "not supported by the totality of the evidence. Her fourth contention is that the hearing officer's decision to discredit petitioner's testimony and sustain Specification 2(a) and (b) on the basis of a general class schedule and roster list is irrational because it is unreasonable to assume that there are set schedules for each "transient" child in the hospital on a given day. Fifth, petitioner argues that the hearing officer erred in refusing to admit several of petitioner's documents into evidence on grounds of temporal proximity and relevance.
"Education Law section 3020-a, generally known as the Tenure Law, affords procedural protections to tenured teachers, in that a tenured teacher cannot be discharged from employment without proper cause, notice, and a hearing" (Sanders v. Board of Education of City School District of City of New York, 17 AD3d 682, 683 [2d Dep't 2005] (internal citations omitted). "The purpose of the statute is to protect teachers from the arbitrary imposition of formal discipline or removal" (Id.).
Education Law section 3020 governs the discipline of tenured teachers. Under the situation in the instant proceeding, any charges brought against a tenured teacher are first subject to compulsory arbitration before a single hearing officer.
The legal principles governing judicial review of such arbitrations were summarized in Lackow v. Department of Educ. (or "Board") of City of NY, 51 AD3d 563 [1st Dep't 2008]. There, the court wrote:
Education Law section 3020-a(5) provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR 7511. Under such review, an award may only be vacated on a showing of misconduct, bias, excess of power or procedural defects. Nevertheless, where [*7]the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than for a determination rendered where the parties have submitted to voluntary arbitration. The determination 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. The party challenging an arbitration determination has the burden of showing its invalidity.
Lackow, 51 AD3d at 567-568 (internal citations and quotation marks omitted).
Applying this standard, we discern no basis upon which to disturb the hearing officer's determination. As the record reflects, the hearing officer heard conflicting testimony. On the one hand, the student testified that the teacher gave him "the finger" and cursed at him. On the other hand, the teacher testified that she was holding her finger up because it "might" have been bleeding, and she denies using profanity. Likewise, the DOE asserts that students were present in the classroom when petitioner left the room and stepped into the hallway. By contrast, the teacher testified that no students were in her classroom at the time and that she was doing paperwork.
In light of the stark contrast in the testimony, it was clearly up to the hearing officer to weigh the credibility of the witnesses, determine the weight of the evidence, consider the probative value of the videotape, and evaluate circumstantial evidence, including rosters and/or classroom records, to find out what really happened.
"When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists" (Saunders v. Rockland Board of Cooperative Educational Services, 62 AD3d 1012, 1013 [2d Dept., 2009]) (internal citation omitted). In other words, where there is conflicting testimony, "an administrative finding, if supported by substantial evidence, is beyond further judicial review even if there is some evidence in the record indicating a contrary conclusion" (Whitten v. Martinez, 24 AD3d 285, 286 [1st Dept., 2005]) (internal quotation marks and citation omitted); see also, Schwartman v. Tax Appeals Tribunal of City of New York, 7 AD3d 449, 450 [1st Dept., 2004]). "Where the only issue is one of credibility, the resolution of the issue rests solely with the hearing panel and its determination will be sustained even if a similar quantum of evidence is available to support other varying conclusions" (Fishman v. Board of Education of City of New York, 114 AD2d 436 [2d Dept., 1985]). A hearing officer is in a far superior position than the Court to determine the credibility of witnesses in an Education Law section 3020-a hearing (City School District of City of New York v. McGraham, 75 AD3d 445, 452 [1st Dept., 2010]).
The Court has reviewed the hearing officer's written decision carefully. It is rational, well-reasoned and thorough. The hearing officer's findings are amply supported by the record and, thus, are clearly based on substantial evidence. Furthermore, we find no evidence of misconduct, bias, excess of power or procedural defects (Austin v. Board of Education of City School District of City of New York, 280 AD2d 365 [1st Dept., 2001]).
Regarding the charge that petitioner left the classroom unattended and unsupervised, the court notes that a hearing officer is permitted to consider and rely upon circumstantial evidence within the context of Education Law section 3020-a (see, for example, Clayton v. Board of Education of Central School District No. 1 of Towns of Conklin, 49 AD2d 343, 351 [3d Dept., [*8]1975]).
Inappropriate gestures, conduct or language by tenured teachers towards students may serve as grounds for discipline against such teachers (see, for example, Watt v. East Greenbush Central School District, 2011 WL 2224816 (3d Dept., 2011) (physical education teacher made grabbing gesture toward female student's chest); Matter of Forte v. Mills, 250 AD2d 882 [3d Dept., 1998]) (physical education teacher nudged or poked fourth and fifth grade female students in the back and/or snapped their bra straps during physical education class).
Petitioner argues that the hearing officer erroneously refused to accept into evidence — on the basis of temporal proximity and relevance — several documents pertaining to J.P.'s behavior and development. The documents that petitioner sought to admit reflected notes and/or interviews with J.P. and J.P.'s school records; a psychological test/evaluation ("Vineland II report") dated November 21, 2008; and a report dated January 6, 2009, created by Sarah Paulding, who taught J.P. after petitioner.
On its face, Education Law 3020-a(3)(c)(i) states that hearing procedures are not required to comply with "the technical rules of evidence." Such language implies that hearing officers have considerable latitude in ruling upon the admissibility of documentary and testimonial evidence. Accordingly, we decline to disturb the hearing officer's decision on such grounds in the instant matter.
For the above reasons, the Court finds that petitioner has not satisfied her heavy burden of establishing that the hearing officer's determination should be vacated.
Accordingly, it is
ORDERED and ADJUDGED that the cross-motion to dismiss is granted, the petition is dismissed and the underlying arbitration award is confirmed.
The foregoing constitutes the decision and order of the court.
Date:July 27, 2011______________________________
New York, New YorkAnil C. Singh Footnotes
Footnote 1:During the hearing conducted pursuant to Education Law section 3020-a, Helen Dunn appeared as "Respondent" and the DOE appeared as "Complainant" and they are identified, respectively, as such in Hearing Officer Busto's Opinion and Award.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
