Matter of Escudero v New York City Bd./Dept. of Educ.

[*1] Matter of Escudero v New York City Bd./Dept. of Educ. 2017 NY Slip Op 52000(U) Decided on December 12, 2017 Supreme Court, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2017
Supreme Court, New York County

In the Matter of the Application of Javier Escudero, Petitioner,

against

New York City Board/Department of Education, Respondent



600010/2015



Petitioner
Javier Escudero, Pro Se

For Respondent
Gabriel Gladstone, Assistant Corporation Counsel
100 Church Street, New York, NY 10007
Lucy Billings, J.

Petitioner, a tenured teacher employed by respondent New York City Department of Education (NYCDOE), seeks to vacate a disciplinary arbitration award fining him $7,500.00 pursuant to New York Education Law § 3020-a. C.P.L.R. § 7511(b)(1).

I. BACKGROUND

Petitioner currently is employed as a tenured mathematics teacher at respondent's Pelham Preparatory Academy (Pelham Prep), where he has worked since the 2011-12 school year. During the 2012-13 and 2013-14 school years, Pelham Prep Principal Carlos Santiago and Assistant Principal Kerry Campbell documented petitioner's unsatisfactory behavior toward students and faculty on seven separate occasions. These incidents led respondent, through Principal Santiago, to prefer 13 charges against petitioner after the 2013-14 school year, alleging that petitioner engaged in verbal abuse of students, corporal punishment of students, and conduct unbecoming of a teacher during the previous two school years. Pursuant to Education Law § 3020-a Hearing Officer John L. Woods Jr. conducted a full evidentiary hearing on the charges.

II. ADMINISTRATIVE PROCEEDINGS

Petitioner originally was represented by an attorney during the disciplinary proceeding, but then represented himself after discharging his attorney. Respondent introduced exhibits into evidence and called Principal Santiago, Assistant Principal Campbell, and three students to testify. Petitioner also introduced exhibits into evidence, cross-examined respondent's witnesses, testified on his own behalf, and called two teachers to testify.

On July 7, 2015, Hearing Officer Woods issued an opinion and award finding petitioner [*2]guilty of specifications 3(e), 3(f), 5, 8, 9, 10(c), 10(e), and 13, relying on the testimony of respondent's eyewitnesses to sustain the charges. The Hearing Officer dismissed the remainder of the charges because respondent failed to carry its burden to support them. The Hearing Officer Woods denied respondent's request to terminate petitioner's employment due to petitioner's years of service and previously unblemished record, but fined petitioner $7,500.00 and required him to complete a behavioral management training course. Petitioner now seeks to vacate the arbitration award because the Hearing Officer exceeded his authority in assessing the penalty, denied petitioner due process, and was biased; because the evidence did not support the decision; and because the penalty assessed shocks the conscience.

III. STANDARDS FOR VACATING THE HEARING OFFICER'S DECISION

A compulsory arbitration award must be consistent with due process, supported by adequate evidence, and rational according to the standards under C.P.L.R. Article 78. City School Dist. of City of NY v. McGraham, 17 NY3d 917, 919-20 (2011); Brito v. Walcott, 115 AD3d 544, 545 (1st Dep't 2014); Asch v. New York City Bd./Dept. of Educ., 104 AD3d 415, 418-19 (1st Dep't 2013). Therefore the court may vacate an arbitration award only upon a showing that the Hearing Officer's determination violated due process or another important public policy, was unsupported by adequate evidence or irrational, or exceeded the limits of his power. City School Dist. of City of NY v. McGraham, 17 NY3d at 919-20; Esteban v. Department of Educ. of City School Dist. of City of New York, 131 AD3d 880, 880 (1st Dep't 2015); Brito v. Walcott, 115 AD3d at 545; Asch v. New York City Bd./Dept. of Educ., 104 AD3d at 418.

IV. DUE PROCESS

Petitioner's hearing pursuant to Education Law § 3020-a was consistent with due process as long as petitioner was accorded notice of the charges against him and an opportunity to be fully and fairly heard. Davis v. New York City Bd./Dept. of Educ,, 137 AD3d 716, 717 (1st Dep't 2016); Brito v. Walcott, 115 AD3d at 545; Ajeleye v. New York City Dept. of Educ., 112 AD3d 425, 425 (1st Dep't 2013); Harris v. Department of Educ. of City of New York, 67 AD3d 492, 493 (1st Dep't 2009). Petitioner claims that the Hearing Officer's consideration of hearsay evidence violated petitioner's right to due process, but Education Law § 3020-a(3)(c)(i)(C) expressly provides that the Hearing Officer was not bound by the rules of evidence, and therefore he was free to consider hearsay evidence. Paul v. New York City Dept. of Educ., 146 AD3d 705, 706 (1st Dep't 2017); Colon v. City of New York Dept. of Educ., 94 AD3d 568, 568 (1st Dep't 2012); Austin v. Bd. of Educ. of City School Dist. of City of New York, 280 AD2d 365, 365 (1st Dep't 2001). See Gray v. Adduci, 73 NY2d 741, 742 (1988); Home Run KTV Inc. v. New York State Liq. Auth., 142 AD3d 451, 456 (1st Dep't 2016).

Petitioner claims that he also was denied due process because respondent New York City Board of Education did not vote to find probable cause to bring charges against him. Although Education Law § 3020-a(2) requires respondent Board of Education to vote on whether it finds probable cause to bring charges, Education Law § 2590-h(38) authorizes the Chancellor of the New York City Department of Education to delegate the Board of Education's duties and responsibilities set forth in Education Law § 3020-a to community superintendents. In turn, Education Law § 2590-f(1)(b)(c) authorizes them to delegate their duties and responsibilities to subordinates. Since Chancellor Carmen Farina delegated her authority to prefer charges against tenured employees to NYCDOE Community School District Superintendents, and District 11 Community Superintendent Elizabeth White then delegated this authority to the principals of all schools within her district, Principal Santiago was authorized to prefer charges against petitioner. Aff. of Myriam M. Berardino Ex. C. See Rivers v. Board of Educ. of City School Dist. of City of NY, 66 AD3d 410, 410-11 (1st Dep't 2009).

V. ADEQUACY OF THE EVIDENCE

The record supports Hearing Officer Woods's findings that petitioner was guilty of specifications 3(e), 5, 9, 10(c), 10(e), and 13, which alleged petitioner engaged in corporal punishment, verbally abused students, and made unprofessional and unacceptable comments to [*3]both students and faculty. Hearing Officer Woods based his findings on testimony from students who observed petitioner's conduct and heard his comments, written statements from other students who observed the conduct and heard the comments, taken during Principal Santiago's investigations into the incidents, and Principal Santiago's testimony, all of which support the allegations in the specifications. V. Answer Ex. A, at 7-9, 21-24. The court may not substitute its judgment for the Hearing Officer's credibility determinations and factual findings. C.P.L.R. § 7511(b)(1); Brito v. Walcott, 115 AD3d at 545; Cipollaro v. New York City Dept. of Educ., 83 AD3d 543, 544 (1st Dep't 2011); Lackow v. Department of Educ. (or "Board") of City of NY, 51 AD3d 563, 568 (1st Dep't 2008).

The record does not support the Hearing Officer's finding, however, that petitioner was guilty of specification 3(f), which alleged that petitioner informed students of their inability to pass the New York State Regents trigonometry examination. The Hearing Officer based his determination regarding 3(f) solely on testimony from student K.B. V. Answer Ex. A, at 10, 20-21. K.B. testified that petitioner advised students only that they would do better not to take the examination because they were not required to take it, not that the students were incapable of passing it. V. Answer Ex. D, at 295.

The record also does not support the Hearing Officer's finding that petitioner was guilty of specification 8. The Hearing Officer found that petitioner was not guilty of specification 7, because respondent failed to produce sufficient evidence to support the allegation that petitioner threatened Student C. Id. at 20. Nevertheless, the Hearing Officer then found petitioner guilty of specification 8, which alleged that Parent D requested removal of Student D from petitioner's class based on the threats alleged in specification 7. Id. at 21. If respondent failed to establish that petitioner made the threats alleged in specification 7, it is irrational to punish petitioner for a parent's request based on those unproved threats. Because the Hearing Officer's findings that petitioner was guilty of specifications 3(f) and 8 are unsupported by the record and thus are irrational, the court vacates these findings.

VI. BIAS

The court may also vacate an arbitration award based on clear and convincing evidence of the Hearing Officer's bias. Telemaque v. New York City Bd./Dept. Of Educ., 148 AD3d 503, 503 (1st Dep't 2017); Batyreva v. New York City Dept. of Educ., 95 AD3d 792, 792 (1st Dep't 2012); Moran v. New York City Tr. Auth., 45 AD3d 484, 484 (1st Dep't 2007); Zrake v. New York City Dept. of Educ., 41 AD3d 118, 118 (1st Dep't 2007). Petitioner claims that Hearing Officer Woods exhibited bias by using a "double standard" to determine the admissibility of documents and the credibility of testimony. V. Am. Pet. ¶ 32. Petitioner fails to provide any examples, however, of the Hearing Officer's application of a more lenient standard to admit respondent's documents or to credit its witnesses or a stricter standard to exclude petitioner's documents or to discredit his witnesses, let alone clear and convincing evidence of bias. Telemaque v. New York City Bd./Dept. Of Educ., 148 AD3d at 503; Batyreva v. New York City Dept. of Educ., 95 AD3d at 792; Moran v. New York City Tr. Auth., 45 AD3d at 484; Zrake v. New York City Dept. of Educ., 41 AD3d at 118. In fact petitioner does not point to any document that he offered being excluded or any witness that he called being discredited.

Petitioner criticizes the Hearing Officer's reliance on the testimony by students who observed and heard the conduct of which petitioner was charged, rather than testimony by the alleged victims of the conduct. Yet the testimony by other students who witnessed the events was equally first-hand, on personal knowledge, and well may have been less biased against petitioner than the alleged victims' testimony. Neither this criticism nor his disagreement with the Hearing Officer's determinations of the documents' and testimony's probative value and resulting decision amounts to clear and convincing evidence of bias warranting vacatur of the award. Douglas Elliman, LLC v. Parker Madison Partners, Inc., 45 AD3d 252, 252 (1st Dep't 2007); Barnes v. Washington Mut. Bank, FA, 40 AD3d 357, 358 (1st Dep't 2007); Solow Bldg. Co., LLC v. Morgan Guar. Trust Co. of New York, 6 AD3d 356, 357 (1st Dep't 2004); Eastman Assoc., Inc. v. Juan Ortoo Holdings, Ltd., 90 AD3d 1284, 1286 (3d Dep't 2011).

VII. THE PENALTY

The court may overturn the Hearing Officer's penalty only if the penalty is so disproportionate to the offenses as to be shocking to the conscience or a sense of fairness. Principe v. New York City Dept. of Educ., 20 NY3d 963, 964 (2012); Harris v. Mechanicville Cent. School Dist., 45 NY2d 279, 284-85 (1978); Brito v. Walcott, 115 AD3d at 546; Liu v. New York City Bd./Dept. of Educ., 107 AD3d 464, 465 (1st Dep't 2013). See Russo v. New York City Dept. of Educ., 25 NY3d 946, 948 (2015); Asch v. New York City Bd./Dept. of Educ., 104 AD3d at 421; Cipollaro v. New York City Dept. of Educ., 83 AD3d at 544; Lackow v. Dept. of Educ. (or "Board") of City of NY, 51 AD3d at 569.

Considering the vacatur of the Hearing Officer's findings that petitioner was guilty of specifications 3(f) and 8 and the context of the sustained specifications, the Hearing Officer's imposition of a $7,500.00 fine was disproportionate to petitioner's upheld offenses and therefore unfair. Principe v. New York City Dept. of Educ., 20 NY3d at 964; Liu v. New York City Bd./Dept. of Educ., 107 AD3d at 465. Since the Hearing Officer did not break down the fine or explain how he arrived at $7,500.00 for the eight specifications that he upheld, the court apportions the total fine equally over his eight sustained specifications: $937.50 for each. The court's elimination of two of the eight sustained specifications reduces the fine to $5,625.00.

Specifications 3(e), 5, 9, 10(c), and 10(e) stemmed from three incidents where petitioner made unprofessional and unacceptable comments to students or faculty. Respondent alleged no injury to anyone from any of these incidents, nor did the Hearing Officer find any violation of the Chancellor's Regulations. The Hearing Officer neither articulated nor referred to any standard, objective test, gauge, or gradation, General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 (2004); Nicholas v. Kahn, 47 NY2d 24, 31 (1979); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d 796, 805 (Sup. Ct. Bronx Co. 2008), to guide his exercise of authority and discretion in assessing the monetary penalty, Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d 402, 407-408 (1997); Nicholas v. Kahn, 47 NY2d at 28, 33-34; Moreno-Lieberman v. City of New York, 38 Misc 3d 981, 986 (Sup. Ct. NY Co. 2012); 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805, and against which to measure the rationality or excessiveness of the penalty. Nicholas v. Kahn, 47 NY2d at 33-34; Levine v. Whalen, 39 NY2d 510, 518-19 (1976); Moreno-Lieberman v. City of New York, 38 Misc 3d at 986; 164th Bronx Parking, LLC v. City of New York, 20 Misc 3d at 805-806. See Big Apple Food Vendors' Assn. v. Street Vendor Review Panel, 90 NY2d at 405-406; Goodwin v. Perales, 88 NY2d 383, 392 (1996). Therefore the court will apply a time-tested benchmark.

Although petitioner was not charged with any criminal offense, the closest parallel is harassment, a misdemeanor that carries a maximum fine of $500.00. NY Penal Law §§ 80.05(b), 240.25. A $937.50 fine for each of these specifications when petitioner would have faced at most a $500.00 fine for each if his behavior actually had warranted criminal charges renders the fines for these specifications excessive. Moreover, since specification 3(e) and 5 stem from the same comment, and 10(c) and 10(e) from another single comment, petitioner effectively would be fined $2,500.00 for only three incidents, which is also excessive. Therefore the court reduces the fines for specifications 3(e), 5, 9, 10(c), and 10(e) to $500 per incident: a total of $1,500. After adding $937.50 for specification 13, the total fine for all upheld specifications is $2,437.50. Liu v. New York City Bd./Dept. of Educ., 107 AD3d at 465; Principe v. New York City Dept. of Educ., 94 AD3d 431, 435 (1st Dep't 2012), aff'd, 20 NY3d at 964.

VIII. CONCLUSION

For the reasons explained above, the court grants the petition to the extent of vacating the Hearing Officer's findings that petitioner was guilty of specifications 3(f) and 8 and reducing the fine imposed from $7,500.00 to $2,437.50. Petitioner seeks no relief from the requirement to complete a behavioral management training course, which he already has satisfied. Since he already has paid the $7,500.00 fine, within 60 days after entry of this order, respondent shall remit $5,062.50 to petitioner. If respondent fails to remit that amount as required, petitioner may [*4]enter a judgment against respondent for that amount.

The court otherwise confirms the arbitration award, denies the remainder of the petition, and dismisses this proceeding. C.P.L.R. §§ 409(b), 7511(b)(1) and (e). This decision constitutes the court's order and judgment. C.P.L.R. § 411.

DATED: December 12, 2017
_____________________________
LUCY BILLINGS, J.S.C.