Matter of Dikovskiy v New York City Bd. of Educ.

[*1] Matter of Dikovskiy v New York City Bd. of Educ. 2016 NY Slip Op 51252(U) Decided on August 25, 2016 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 25, 2016
Supreme Court, New York County

In the Matter of the Application of Gennadiy Dikovskiy, Petitioner, For a Judgment Pursuant to Article 78 of the CPLR,

against

New York City Board of Education d/b/a NEW YORK CITY DEPARTMENT OF EDUCATION and CARMEN FARINA, as Chancellor of the New York City Board of Education, Respondents.



652135/15



Atty for Petitioner

Shebitz Berman Cohen & Delforte PC

Attn: Julia R. Cohen, Esq.

1325 Avenue of the Americas, 27th Floor

New York New York 10019

212-832-2797

Attorney for Respondent

Gabriel Gladstone, Esq.

Corporation Counsel

100 Church Street

New York, NY 10007

212-356-2451
Alice Schlesinger, J.

Petitioner Gennadiy Dikovskiy, a former tenured New York City high school teacher, commenced this Article 78 proceeding to challenge his termination by respondent New York City Department of Education of the City of New York ("DOE"). Petitioner was terminated following a decision issued by Hearing Officer Barry Goldman ("Goldman") on June 6, 2015 (the "Decision"), which followed a multi-day hearing held between March and April of 2015, for, among other things, his "inappropriate" relationship with a certain student.

This is an unfortunate and unique case, in that petitioner was ultimately terminated for doing exactly what he was permitted and encouraged to do by his employer, and for doing exactly what made him such a fine teacher. For the reasons set forth below, the respondents' cross- motion to dismiss is denied, and the petition is granted.

Factual Background

Petitioner had been employed by DOE as a Math and Physics teacher at the Marta Valle High School ("Marta Valle") in Manhattan since 2007. Additionally, he also worked with students who expressed an interest in music, particularly piano. Beyond his formal teacher duties, he worked after hours on behalf of the school as a tutor, for which he was paid an agreed-upon hourly wage and submitted timesheets to his supervisors.

Indicative of his success, petitioner was awarded tenure in 2010. Aside from the allegations at issue in this proceeding, it is undisputed that petitioner was regarded by his colleagues and superiors as an excellent, dedicated, and extremely hard working educator, particularly in his ability to communicate and empathize with his students.

Petitioner's superiors considered his interpersonal skills with students to be exceptional, such that DOE began to utilize his talents beyond conventional classroom education. Just two years into his employment, DOE invited petitioner to become certified as a Life Space Crisis Intervention Specialist ("LSCIS"), a position designed to assist students in various kinds of crisis or trouble, including academic, behavioral, emotional, family-related issues, self-identity issues, and conflicts with other students. Petitioner completed a 30-hour course, provided by DOE and became so certified in 2009. The LSCIS training materials given by DOE to petitioner described the use of physical prompts, including "non-passionate" hugging when a student experiences emotion and/or when verbal prompting alone might not work. Such techniques included placing one arm on a student's shoulder and/or employing a full frontal hug; the decision to use either or both techniques was a judgment call, dependent on the individual circumstances at the time.

Additionally, throughout his career, petitioner has attended numerous professional development training programs sponsored by DOE which is consistent with the above and designed to assist teachers in furthering their communicative and emotional support skills. See Petition, ¶¶ 14-18 and Pet., Ex. "D."

Further, DOE, likely aware of high school students' reliance on electronic communication, trained petitioner to text and instant message. It is undisputed that DOE permitted and encouraged its teachers, including petitioner, to make themselves more available in this manner outside of formal school hours, so as to provide an avenue for more individualized, available support and mentoring. Significantly, it is [*2]uncontested that DOE did not establish any rules or boundaries regarding time and quantity with respect to such after hours communication.

Once petitioner completed his training, DOE appointed him as a Crisis Intervention Specialist at the school (in addition to his teaching position). Petitioner has explained that in this role, his goal was to make every student feel like they belonged to the school and that they had a positive connection to at least one adult. See Pet., ¶ 18.

Petitioner's upward trajectory at the school continued, and in 2011, he was appointed Dean of Students. In this capacity, petitioner was in charge of student discipline, and assisting teachers in managing their classrooms and providing advice to them on how to work better with their students. Additionally, petitioner was the first person called if any emergency response on behalf of school staff was necessary. It is not surprising to note that in each year of his service at Marta Valle, petitioner received "Satisfactory" ratings, the highest teacher ratings then available. See Pet., ¶¶ 20-22.

Petitioner, at all times, went above and beyond in his roles as a teacher and mentor. He worked tirelessly for his students, often staying late during the week, and working on the weekends. Petitioner also made himself available to interact with students at anytime, day or night, by telephone or text message, if students had questions or concerns about their schoolwork. And at no time before late May 2014 had anyone within Marta Valle or at DOE questioned petitioner's professionalism, abilities, relationships with his students, or the late night and weekend work that petitioner put in. Likewise, no one had criticized petitioner's after-school hours accessibility and interactions via phone, email and text messaging. See Pet., ¶¶ 24-34.

Significantly, DOE, Marta Valle and students' parents were well aware of petitioner's methods and approach. Throughout his career, petitioner distributed to each of his students a class contract — which Marta Valle's administrators approved year after year — at the beginning of the school year. The contract described course contents and expectations for each student, and also included petitioner's cell phone number and personal email address. It also provided that students, at any time, could reach out to petitioner by phone, text, or email for school-related advice or for any issues or troubles that they were going through. Also, each contract was required to be signed by the student's parent. The class contract for the school year at issue was signed by the student at issue's parent. See Pet., ¶ 35, and Pet., Ex. "E."

In September 2013, at the beginning of the 2013-14 school year, the School was assigned a new principal, Jannett Bailey, who was new to this position.[FN1]

In May 2014, Principal Bailey filed a complaint with the Special Commissioner of Investigation of the City School District of New York ("SCI"), the City agency responsible for investigating misconduct within the New York City School District.[FN2] Principal Bailey explained that on May 21, 2014, Michele Bejasa, a Marta Valle School Safety Agent, [*3]observed petitioner and another person in the Marta Valle auditorium at approximately 8:00 p.m. At that time, the auditorium was locked. See Pet., Ex. "G."

Following the incident, Principal Bailey and Joseph Springer, an Assistant Principal, reviewed security camera footage and identified the "other person" as one of petitioner's Physics students (the "Student", whose identity will not be revealed for privacy reasons as he was 16 years old at the time). SCI investigators also viewed the footage and "observed [petitioner and the Student] embracing."[FN3] See Pet., Ex. "G."

SCI investigators met with the Student, who referred to petitioner as his mentor, and reported that he and petitioner had met in the school auditorium after school hours on approximately five occasions to play the piano. As to the physical contact at issue, the Student described it to investigators as quick and with no inappropriate intention, and that at the time, petitioner was consoling him, as he was concerned about his schoolwork. The Student told SCI that he had a boyfriend in the school, but had no interest in a relationship with petitioner. The Student also said that petitioner allowed the Student and his boyfriend to use his office to talk. The Student also added that he did not see petitioner outside of school, did not speak with him on the phone, and did not know anything about petitioner's personal life. See Pet., Ex. "G." In other words, nothing that this teenager reported, was other than benign behavior between petitioner and himself.

The SCI investigator (Barry Lattig) then obtained and reviewed records of petitioner's cell phone covering the school year in question (September 2013 - June 2014). He was able to establish that during this ten-month period, 1,258 text messages had been sent between petitioner and the Student. The Student sent 730 of these texts, and petitioner sent the other 528. Some were sent on weekends and on holidays, and some were sent late at night or early in the morning. See Pet., Ex. "G."

However, the content of the texts has never been able to be discerned by anyone. After Lattig's review of the phone records, the Student, not surprisingly, declined to speak further with SCI staff. Petitioner did as well, upon the advice of counsel. In any event, SCI recommended in a report dated October 20, 2014, that based solely on the above, petitioner should be terminated from his employment with DOE. See Pet., Ex. "G."

Following SCI's report, DOE brought six Specifications against petitioner, seeking to terminate him under Section 3020-a of the Education Law. The first was that during the 2013-2014 school year, petitioner spent time alone with the Student after school hours on "five occasions" without permission from the Marta Valle administration or the Student's parents. The second was that during the school year, petitioner "inappropriately" exchanged 1,258 text messages with the Student. The third was that on May 21, 2014, petitioner "inappropriately" embraced the Student on school grounds. The fourth was that based on Specifications 1-3, petitioner "failed to acquire the permission of the Principal of the school and/or the parents of [the Student], prior to [*4]engaging in the extensive, personal relationship with [the Student]." The fifth was that based on the above, petitioner "failed to disclose to the Principal of the school that [he] was engaging in an extensive, personal relationship with [the Student]." The sixth was that during the school year, petitioner "knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child under the age of seventeen, in that, [petitioner] engaged in one, some, or all of the conduct described in Specifications 1-3, with [the underage Student]." Pet., Ex. "A."

As noted above, a hearing was held before Arbitrator Goldman in March and April 2015. Various witnesses, including petitioner, testified at the hearing, but the Student did not. Following the hearing, Goldman issued a written decision on June 6, 2015, recommending termination.

According to Goldman, who reviewed the security footage (as this court did), the auditorium was "dark." See Pet., Ex. "B", p. 6. As a brief aside, the court disagrees with this characterization. Although portions of the auditorium appeared to be unlit, at least half of the room appeared to be well lighted. Certainly, the auditorium was lit well enough to observe the area of the room containing the piano (where the Student was seated and playing), and it was easy for the court to observe the alleged "incident."

Petitioner explained the encounter and the brief physical contact as administering a dispassionate embrace that he had been trained to do in response to an anxiety attack, which he believed the Student was experiencing. He further explained, without contradiction, that he had permission to be in the school at that time and alone with the Student, and that there was nothing inappropriate about his communications with the Student then or at any time. See Pet., ¶ 150.

In any event, Goldman dismissed Specification 1 on the ground that the support for this specification was based entirely on hearsay and that there was no evidence for this charge as to any date other than May 21, 2014 (the date of the auditorium incident). Pet., Ex. "B."

However, Goldman sustained the remaining Specifications. As to Specification 2, Goldman found that the mere number of text messages (without regard to their content, of which he was unaware), was "inappropriate." In this vein, he stated the following:

I make no ruling on the question of precisely when the number of text messages exchanged between a teacher and a student becomes inappropriate. A definite boundary would be difficult to establish. But I have no difficulty finding that wherever that line may be, 1,258 is beyond it. I understand [petitioner's] argument, but I do not agree that if a handful of text messages is permitted than a thousand must also be permitted. A rule of reasonableness must be applied. I find the sheer number of messages together with the days and times they were sent is sufficient to establish that the exchange was inappropriate. Pet., Ex. "B", p. 4

As to Specification 3 (the embrace in the auditorium), Goldman found that "the physical contact between [petitioner and the Student] captured on the video introduced in this case shows . . . an inappropriate embrace" and that it was "not a close call." [*5]However, he never defined what was or was not appropriate, why this conduct was the latter, and even why this was not a close call. Pet., Ex. "B", p. 5.

Goldman sustained Specification 4, despite evidence before him that petitioner's time sheets submitted to Marta Valle indicated that he often worked at the school past 6:00 p.m.; that the class contract referencing the text and phone policies had been signed by the Student's mother; and that petitioner had observed the Student speaking on the phone with his mother during these after hours sessions. In doing so, Goldman did not address this uncontroverted evidence, writing instead that he "[had] already found that [petitioner's] extensive text message exchange with the Student was inappropriate and that his embracing the Student in the dark and locked auditorium after school hours was inappropriate. I now find that he did not have permission from either the school or the parent for either conduct." Pet., Ex. "B", p. 5. The documents, as noted above, showed the opposite.

Goldman then sustained Specification 5 "for the same reason" (presumably as that regarding Specification 4) but did not elaborate further. Pet., Ex. "B", p. 5.

As to Specification 6, acting injuriously toward a child, Goldman wrote the following: "[i]t is difficult and confusing to be a teenager. Adding an inappropriate relationship with a teacher cannot help but make it more difficult and more confusing, I find [petitioner] knowingly acted in a manner likely to be injurious to the welfare of [the Student]." Pet., Ex. "B", p. 6.

As to the penalty, Goldman cited the above and concluded, without anything more, that "this is the description of a teacher who cannot be rehabilitated. This record shows such a complete lack of judgment that continued employment as a teacher is simply not an option." Pet., Ex. "B", p. 6.

The above, the court believes, is a fair summary of Goldman's decision. It contained no further reasoning, nor any credibility findings, nor other important details. But there are serious flaws with it, discussed below, which make it impossible to sustain.

Discussion

Education Law § 3020—a(5) mandates that judicial review of a hearing officer's findings shall 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." Austin v Board of Educ. of City School Dist. of City of NY, 280 AD2d 365 [1st Dep't 2001]. Consistent with this limited scope of review, a court may not set aside an arbitrator's award even where the arbitrator has made errors of law or fact. See Hackett v. Milbank, Tweed, Hadley & McClogy, 86 NY2d 146, 155 [1995].But where, as here, the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. See Lackow v Dep't of Educ. of City of New York, 51 AD3d 563, 567 [1st Dep't 2008].

Therefore, although this is an Article 75 proceeding challenging an arbitrator's (Goldman's) decision, because arbitration in this instance was compulsory, the standard of review here is that the determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the [*6]arbitrary and capricious standards of Article 78. See Lackow v. Dep't of Educ. of the City of New York, 51 AD3d 563, 567 [1st Dep't 2013].

Additionally, DOE has the burden to prove the subject specifications at the hearing by a preponderance of the evidence. See Martin v. Ambach, 67 NY2d 975 [1986]. Lastly, the standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment of termination was so disproportionate to the offenses as to be "shocking" to the court's sense of fairness. See Harris v Mechanic Cent. Sch. Dist., 45 NY2d 279, 283 (1978). Further, although the court should generally defer to the credibility determinations of the arbitrator, here, there were no such findings made.

The court's decision on each Specification is discussed below, separately.

Specification 2

Goldman's findings against petitioner with respect to the text messages could not be more arbitrary or capricious. Goldman's finding was dependent entirely on his finding that the mere number of texts sent between petitioner and the Student was "inappropriate", as the content of the messages has always been unknown to DOE, SCI and Goldman (and to this court).

Goldman does not even attempt to define what "inappropriate" means here, and his decision is out of touch with the realities of text messaging. Every single text message, whether it be one word or multiple paragraphs, counts as "one" text. Consider the following hypothetical conversation:

1) "Hello" 2) "What's up?" 3) "Not much." "4) You?" 5) "Not much." 6) "Had a question about class." 7) "The thermodynamics lecture?" 8) "Or something about inertia?" 9) "Something from Thursday's class?" 10) "Neither." 11) "Haha." 12) "I meant homework." 13) "Oh, what assignment?" 14) "The one about Aristotelian principles?" 14) "I could try explaining those next time in class if you think that would help." 15) "No." 16) "I totally get all that stuff." 17) "Haha." 18) "Oh, what's the problem then?" 19) "Nothing big." 20) "I just can't remember if the homework was due tomorrow!" 21) "Or Monday?" 22) "Oh." 23) "It's actually due on Tuesday." 24) "Oh, great!" 25) "Glad I asked!" 26) "Thanks teacher!" 27) "No problem!" 28) But that doesn't mean you have to procrastinate on it!" 29) "You can always turn it in early!" 30) "Haha." 31) "I'll think about that." 32) "Have a good weekend!" 33) "You too!"

This simple conversation about when homework was due counts as 33 separate text messages. It is thus easy to see how, over an entire 10 month period, the school year, 1,258 text messages is not innately damning, as Goldman assumed it was. Without explaining his rationale in any way, and without the content of the messages before him, Goldman's finding that this number was "inappropriate" lacks any probative value as to petitioner and the Student's relationship. As to the fact that many of the messages were sent at night and/or on the weekends, without the content of the texts before him, Goldman had no basis to disregard the fact that petitioner made himself available on nights and weekends by text to help students outside of class. Further, it does not make sense that petitioner would be texting students during school/daytime hours, as students would be in class and he would be teaching during that time.

Additionally, it is significant to note that DOE and Marta Valle never communicated any rules or prohibitions regarding the number of texts that a teacher could send to students, or when such messages were excessive. As discussed in the factual background, if anything, the school and DOE encouraged teachers like petitioner to be more available and open, and to utilize modern technology to forge better bonds with their students. This is exactly what petitioner did here.

In sum, the mere number of texts improperly triggered some vague notion of "inappropriateness" in Goldman, as evidenced by the insidious implications of his finding. This arbitrary finding cannot be upheld.

Specification 3

Goldman's reasoning is similarly razor-thin with respect to the auditorium "incident." There was no evidence before him contradicting petitioner's account of the physical contact between him and the Student: that the contact was merely a platonic tool to provide comfort for the Student, who had a documented history of anxiety attacks. This conduct was not just condoned by DOE, it was encouraged.

Further, Goldman does not attempt to explain why he finds the contact so offensive and inappropriate. It just "is" to him. This court viewed the security footage of the contact at oral argument, and Goldman's conclusion that it was so patently inappropriate is not shared. The contact occurred while the Student was seated at the piano. Petitioner, who had been standing off to the side of the piano, sat next to the Student, and gave him a seconds-long hug that had no indicia of inappropriateness, especially given the nature of petitioner's training to comfort students in times of distress, an uncontested explanation provided by petitioner at the hearing. Following the contact, petitioner continued to walk around the piano (which he was doing during most of the video) while the Student appears to continue playing. Other contact consisted of what appears to be petitioner helping the Student correct his posture while playing, by adjusting his shoulders.

Petitioner testified at the hearing that he initiated the hug in response to the Student's complaints and anxieties regarding his family life and school pressures (these are well documented in the record but out of respect for the Student's privacy, will not be addressed in further detail). According to petitioner, immediately before the hug, the Student had been making mistakes on the piano, and those mistakes caused him to begin crying. Petitioner testified that the hug was something he was trained to do (in his LSCIS training), and that he let go once he felt that the Student seemed ready to continue talking about how to better cope with the future. The video contains no sound, and there is no evidence anywhere in the record to call petitioner's account into question. And in a general way, the Student corroborated this account to the investigator whose report was put in evidence during the hearing. Thus, Goldman's unreasoned conclusions as to the "inappropriateness" of this incident cannot be sustained.

The Remaining Specifications

Because this court finds that Goldman's findings of inappropriate conduct and an inappropriate relationship were arbitrary and capricious, and cannot be sustained, his findings as to the remaining Specifications, predicated on findings of inappropriateness, must be dismissed as well. The record shows that petitioner did not "knowingly act" to [*7]harm the Student; at all times, he acted to help the Student. And in any event, the record is clear that both the Student's mother and Marta Valle administration/DOE were well aware of petitioner's frequent work with the Student as well as other students outside of school hours.

Conclusion

Goldman's arbitrary and capricious decision must be vacated in its entirety. Respondents failed to meet their burden of proving the specifications at the hearing by a preponderance of the evidence. Further, although the court is denying respondent's cross-motion to dismiss, it is also granting the petition in its entirety, as there is no reason to permit respondents to answer the petitioner and/or submit further argument and evidence; the essential facts and legal standards are undisputed here.[FN4]

The actual, real evidence before the court is indicative of petitioner's selfless agápe (brotherly or platonic love) and concern for his students, not something inappropriate or deserving of condemnation. The penalty of termination, which certainly shocks this court's conscience, must be vacated. Furthermore, petitioner, upon his reinstatement, hopefully will feel free to continue teaching in the open, caring and dedicated style he succeeded in and was trained in by his employer, and for which he was rightfully commended and promoted. The record shows that petitioner has always been an excellent teacher and mentor. He should be allowed to continue.

Accordingly, it is hereby

ORDERED AND ADJUDGED that respondents' cross-motion is denied, and the petition is granted. Petitioner's counsel shall serve on respondents' counsel a copy of this order with notice of entry within 20 days of entry.

Dated: August 25, 2016_______________________

J.S.C.

Footnotes

Footnote 1:Principal Bailey no longer serves in this capacity.

Footnote 2:Although SCI cannot impose discipline directly on DOE employees, it can make recommendations to a school's administration to implement any punishment.

Footnote 3:Additionally, on May 28, 2014 at approximately 7:25 p.m., Bejasa observed the Student leaving the school. She questioned the Student, who said he was doing homework. A few minutes later, Bejasa saw petitioner leave the school as well.

Footnote 4:Where, as here, the movant sets forth all their relevant arguments in the affirmation in support of the cross motion, it is not necessary to grant leave for the filing of an Answer. See Davila v. New York City Housing Authority, 190 AD2d 511 [1st Dep't 1993].