Wai Mui v New York City Board/Department of Educ.
Annotate this CaseDecided on December 8, 2011
Supreme Court, New York County
Wai Mui, Petitioner, For a judgment pursuant to Article 75 of the C.P.L.R.
against
The New York City Board/Department of Education, Respondent.
105674/11
Attorney for Resp.
Asad Rizvi, Esq.
Assistant Corporation Counsel
100 Church Street, Room 2-170
New York, NY 10007-2601
212-788-6838
Petitioner
Ms. Wai Mui
15 St. James Place, No.11E
New York, NY 10038
Alice Schlesinger, J.
Before the Court is an Article 75 petition brought by a tenured bilingual special education teacher who is now representing herself. The petition was brought after a mandated arbitration resulted in a finding that virtually all of the specifications charged had been proven and that the penalty imposed should be one of termination.
Pursuant to Education Law §3020-a, when a tenured teacher faces serious charges and the respondent Department of Education (DOE) wishes to terminate her employment, it is mandated that an arbitration be held. The arbitration conducted in this case by Hearing Officer Stuart E. Bauchner was heard over 14 days, specifically, on October 12, 14, 19, 21, 22 and 28, November 9 and 23, December 7, 8, 14, 15, 16 and 21, 2010.The Hearing Officer announced his decision on April 16, 2011. The transcript consisted of 1989 pages and Hearing Officer Bauchner's decision was 55 pages. Also, it is to be noted that the petitioner was at all times represented by counsel, who cross-examined multiple witnesses produced by the Department and who called a witness on [*2]Ms. Mui's behalf. In addition, petitioner herself gave testimony.
There were six specifications charged by the DOE. Briefly, they were as follows:[FN1] 1) Neglected her duties and failed to carry out her responsibilities; 2) Repeatedly failed to address and meet academic and social needs of her students; 3) Displayed poor personal and professional qualities; 4) Repeatedly failed to effectively manage her classroom, neglected her duties and demonstrated no regard for pupil health, safety and general welfare; 5) Failed to properly and/or adequately plan and execute lessons as documented in observation reports (10 were cited); and 6) Repeatedly failed to implement repeated advice, counsel, instruction and professional development from various sources.
The petitioner complains bitterly that every part of the procedure was flawed. She says that the hearing was unfair and that the six witnesses against her, who consisted of the Principal Laura Giannino, Assistant Principal Mindy Bank, Network Leader Barbara Joseph, Autism Instructional Supervisor Stephanie McCaskill, Autism Coach Kari Sachs and Dr. Rochelle Hendlin, all of whom had had various contact with her, were all engaged in some grand conspiracy to get rid of her. She also claims that Hearing Officer Bauchner was prejudiced against her and was not neutral. She adds that the penalty of termination was shockingly severe and unfair.
The DOE not only opposes the petition but cross-moves to dismiss it. I am persuaded by both the factual and legal arguments that the respondent is correct. At the same time, I am frustrated and completely unpersuaded by the vague, unsubstantiated allegations made by the petitioner in more than 100 pages of her papers, which consist of the original petition, opposition to the cross-motion, and a sur-reply objected to by DOE. Therefore, I am constrained, despite the severity of the punishment, to uphold it and to dismiss the petition.
Ms. Mui, a tenured teacher since 2004, was assigned to work with six special needs students at P.S. 231, a public school in District 75. Some of the students were autistic. After receiving unsatisfactory ratings for the years ending 2008 and 2009, Ms. Mui was given the opportunity to participate in a program known as PIP+. This stands for Peer Intervention Program Plus and it is a program put into place via negotiations between the teacher's union and the DOE to help teachers improve their work. The petitioner accepted this opportunity and was assigned a consultant teacher by the name of Dr. Rochelle Hendlin.
Dr. Hendlin worked closely with Ms. Mui during the next year 2009-2010, but she was unable to conclude at the end of the year that Ms. Mui had improved her teaching skills at all. Therefore, Ms. Mui was given a third unsatisfactory rating. Following this, the Principal of the school, in consultation with the Assistant Principal Mindy Bank, who had worked closely with Ms. Mui, brought multiple charges involving petitioner's inability and unwillingness to provide satisfactory instruction to these six children.
Hearing Officer Bauchner's decision relied on all of the witnesses' testimony concerning interactions with Ms. Mui and her interactions with the children in her class. He [*3]found all of their testimony credible. This, of course, he had every right to do. Then, based on a discussion of the events leading to each charged specification, he found that respondent had proved them all (with the exception of one minor one) by a preponderance of the evidence. With regard to the punishment, he felt that any penalty other than termination would not be suitable. He made this finding because he also found that Ms. Mui had been given an extraordinary amount of help, which failed to change the situation and improve her work. Therefore, nothing would be served by giving her an additional opportunity to improve her skills. In fact, the Hearing Officer pointed out that many of her six students actually regressed rather than progressed from her teaching. On balance, then, Ms. Mui was seen more as a detriment than an asset to their welfare.
I indicated above that I found Ms. Mui's papers extraordinarily frustrating. This was so because of redundant allegations of unfairness and bias with virtually no details or examples ever given. The only specific violation alleged by Ms. Mui was that the DOE violated §3020-a in failing to present these charges to a School Board in the first instance to determine whether there was probable cause for continuing them. But the respondent via its counsel deals successfully with this claim in the cross-motion, pointing out that there is now no School Board and that the Chancellor has delegated the power to initiate and resolve disciplinary charges to all principals in District 75, the district where the petitioner taught.
But there is not one example of unfair procedure during the 14 days of evidence given. There is not one example given of any kind of incompetent or inadequate representation of the petitioner. There is not one example of any significant procedural or substantive failure at the hearing given.
Because of these failures, counsel for the DOE argues that the petitioner has failed to state any valid cause of action, pursuant to CPLR §3211(a)(7). He discusses in detail how Ms. Mui's rights under §3020-a were in all respects honored. As stated above, she was represented by counsel, she submitted evidence and called witnesses and testified on her own behalf, and her counsel was given an opportunity to make a closing statement. Counsel urges that Ms. Mui's dissatisfaction and disagreement with the results here is not the equivalent of a denial of due process.
Counsel also notes that the petitioner voluntarily participated in the PIP+ program and that not only did Dr. Hendlin work closely with her to improve her skills but that other supervisors as well, experts in the field of autistic children, also worked closely with her. Counsel points out that all these witnesses testified that Ms. Mui simply did not and could not properly teach these children. Numerous examples were given to show that at multiple observations, she had very little control of her class and was not able to properly put in action the pedagogic instructions she had been given. She even failed to prepare two-thirds of the Individual Education Plans that she was mandated to prepare under Federal Law. Therefore, respondent argues that there was more than enough evidence to support the findings by the Hearing Officer.
With regard to the penalty, counsel argues there is nothing shocking about it. He urges, as has been stated above, that the petitioner had been offered multiple aids, conferences, programs, and supervision, yet nothing improved. Rather, as stated above, these special needs children regressed. Therefore, nothing would be served by keeping her on and allowing her to continue to perform unsatisfactorily to the detriment of the children. Finally, counsel persuasively argues that absolutely nothing has been shown by the petitioner to indicate bias by the Hearing Officer, a lack of due [*4]process, a lack of evidence or a lack or proper jurisdiction.
Ms. Mui is correct when she says that pursuant to case law, Mount St. Mary's Hospital v. Catherwood, 26 NY2d 493 (1970), there is a heightened review by the Court of mandatory arbitrations. But despite such heightened review, again absolutely nothing has been shown here to indicate that the petitioner's rights were in any way violated or compromised. Hearing Officer Bauchner was in a position to make findings of credibility, findings he made. Also, in light of the evidence and the needs of the children, he was within his rights, as an objective observer, to recommend termination.
Accordingly, it is hereby
ORDERED the cross-motion to dismiss is granted; and it is further
ADJUDGED that the petition is denied and the proceeding is dismissed.
Dated: December 8, 2011
__________________________
J.S.C.
Footnotes
Footnote 1:I say "briefly" because I have only listed each of the specification's headings, and not the individual actions or events making up each specification. However, when Mr. Bauchner gave his decision, he did address each one of the subsections.
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