Matter of Michelsen v City Univ. of N.Y.

[*1] Matter of Michelsen v City Univ. of N.Y. 2018 NY Slip Op 51371(U) Decided on October 1, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2018
Supreme Court, New York County

In the Matter of the Application of Charles Thomas Michelsen, Petitioner,

against

The City University of New York, The Hunter College School of Education, Respondents.



100112/2018



CHARLES MICHELSEN, pro se

Clement J. Colucci

New York State Department of Law

28 Liberty St.

New York, NY 10005
Carmen Victoria St. George, J.

In this Article 78 proceeding, petitioner seeks an order annulling the determination of respondent the City University of New York ("CUNY") dismissing him from CUNY, Hunter College School of Education [SOE]. Petitioner seeks, inter alia, an order directing respondent to reinstate him as a student in Good Academic Standing and awarding him money damages. In opposition to the petition, respondent submits among other things, a verified answer and an affidavit from Dean of the SOE at Hunter College, Michael Middleton. Respondent opposes the petition and contends that CUNY did not violate any applicable rule in making the determination to dismiss petitioner, its decision was neither arbitrary, capricious, nor an abuse of discretion and, insofar as petitioner seeks compensatory damages, the alleged compensatory damages are not incidental to the relief sought.

Background

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Petitioner was a student enrolled in the master's degree program in Adolescent English Education in the SOE at Hunter College, having been admitted in the fall of 2009. In 2015, petitioner was dismissed from the program because he was dismissed from a fieldwork placement, at the request of the assigned school's authorities, after repeating unprofessional behavior that had nearly led to his dismissal from a previous fieldwork placement. Thereafter, petitioner brought his first Article 78 proceeding, Michelsen v CUNY, 101450/2015 (Sup. Ct. NY County) (Ramos, J.) ("Michelsen I") wherein he sought an annulment of his academic dismissal claiming that his dismissal was a disciplinary rather than an academic decision, and that therefore, he was entitled to CUNY's procedures governing disciplinary hearings before he could be dismissed. Petitioner also sought $250,000 in compensatory and punitive damages Respondent opposed the motion and argued that petitioner's conduct constituted an academic issue, but because there were no specific rules governing the type of academic misconduct in which petitioner had engaged, petitioner was not entitled to the disciplinary procedures but only to the due process, which respondent claimed he received. Respondent also noted that while there were specific rules governing how a student could be placed on and removed from academic probation, petitioner's grades were acceptable, and therefore those rules could not apply to petitioner's conduct. Nevertheless, respondent opined that professionalism and failure to successfully complete the required fieldwork assignment is an academic failure. For a full recitation of the facts, please see the court's decision, entered on December 12, 2016.

Justice Charles Ramos, who presided over Michelson I, granted the petition to the extent of annulling petitioner's academic dismissal from the Program. Justice Ramos disagreed with both sides, holding that the conduct at issue was academic, but that the pre-existing rules relating to grades should have been applied. The Court ordered that petitioner be readmitted but placed on academic probation and denied the rest of the relief sought, including money damages. It is undisputed that both sides were not pleased with aspects of the decision.[FN1]

Pursuant to Justice Ramos' order, petitioner was readmitted on probation for the Spring 2017 semester. Three weeks before the start of the spring 2017 semester, petitioner received a letter dated January 4, 2017 from Dean Matthew Caballero stating "[s]ince the judge has placed you on academic probation, you will receive our detailed policy for students in this probationary status" (petitioner's exhibit F3). Importantly, the letter also stated:

"In the meantime, I wanted to remind you that it is not permitted for students to:(a) Unilaterally contact any person or school for arrangement of field placement, this must be done through the protocols of the Office of Clinical Experience ("OCE")(b)Make independent arrangements for field placement outside of the standard process of the OCE(c)Inappropriately engage with colleagues, staff, or faculty in an unprofessional manner that creates concern for the safety of their learning and/or work environment" (petitioner's exhibit F3).

By letter dated January 17, 2017, Dean Caballero reminded petitioner of the [*2]circumstances of his dismissal stating:

"Your actions in class and outside, in interactions with staff and faculty, were consistently deemed unprofessional and bordering on creating an unsafe educational environment. These actions do not conform to the professionalism of the School of Education, nor the expectations of the teaching profession. So far your return to Hunter on a probationary basis has included emails to faculty and staff that have continued to display a lack of understanding and/or appreciation of the value of, and ramifications for breaching, our professionalism policy. This does not demonstrate the behavior expected and required of teacher candidates. I urge you to moderate your use of email and carefully consider your interactions to ensure continued alignment with the School's professionalism policy." (petitioner's exhibit F4)

The letter also stated that petitioner would be receiving further information on the academic probation status. According to the petitioner, the school never sent him any detailed policy regarding his probationary status despite his repeated requests for it.[FN2]

During the Spring 2017 semester, apparently in response to Justice Ramos' decision in Michelsen I, the Schools administration decided to revise its rules so that misconduct in fieldwork assignments unrelated to bad grades was explicitly addressed. In his current affidavit, Dean Middleton attests that the only academic issue for which specific rules existed at the time was bad grades. Under the existing rules, students with low grades could be placed on academic probation and if their grades improved then they would come off probation. If not, they would be dismissed. According to Middleton, the existing probation process did not fit petitioner's situation. He further explained that because the Court ordered that petitioner be placed on academic probation for issues unrelated to his grades, petitioner could earn his way off probation by continuing to achieve good grades. Due to the deficiency in the School's existing rules, Middleton states, "a team including Associate Dean Matthew Caballero, Sandra Mary Nunez, Hunter's Associate Attorney and Deputy Labor Designee, and others worked with staff from CUNY's central administration to devise new rules for misconduct in fieldwork course that did not involve bad grades" (Middleton Aff).

The new Fieldwork Policy [FN3] provides that students in fieldwork placements "must exhibit [*3]professional behavior throughout the fieldwork placement" and that "failure to behave in a professional manner may result in the denial of a field placement." The new Fieldwork Policy also sets forth a number of different scenarios, the policies with which to address each one, and the possible consequences. As is relevant here, the section entitled "Removal of Student and from Participant Organization" states:

"Where a student has been removed from a placement by the participant organization and the alleged conduct does not involve behavior in which the SOE student jeopardized the safety and/or wellbeing of a minor, the OCE will refer the matter to the Department Chair and Associate Dean for appropriate action. In such a case, the Department Chair and Associate Dean will:1. Review the SOE student's alleged unprofessional or egregious conduct and determine whether re-placement within a second fieldwork placement organization would be appropriate given the conduct in question;2. If re-placement is appropriate, student will be placed on academic probation for one (1) semester; and3. Instruct the SOE to make no more than one (1) attempt to find that student another placement (this would amount to two placements including the initial unsuccessful fieldwork assignment). A SOE student must be available to placement organization staff in their assessment of the student's qualifications for the re-placement.4. If the Associate Dean and Chair determine that replacement is not appropriate they will recommend this action be reviewed by the SOE's Clinical Standards Committee, which shall be comprised of the SOE's Dean and one or more SOE Department Chairs. The student will be placed on academic probation until the CSC issues a written decision. This decision shall serve as the final determination by the College's SOE" (Verified Answer, Exhibit 4).

Under the new Fieldwork Policy, if the CSC determines that the student should not be re-placed and the denied placement is required for completion of a degree, license, or certificate, the CSC may terminate the student from the program (Verified Answer, Exhibit 4).

According to Middleton, the new Fieldwork Policy was emailed to all students on February 27, 2017 (Middleton Aff ¶ 14). He further attests that the new Fieldwork Policy was distributed on August 23, 2017, during a Fieldwork Orientation held at the School, which all students who planned to participate in fieldwork assignments in the Fall 2017 semester, including petitioner, attended.

On August 1, 2017, Dean Middleton sent petitioner a letter reminding him of his probationary status and expressing concern about petitioner's actions during the 2017 Spring Term. Specifically, Dean Middleton referenced numerous emails from petitioner to the Office of Clinical Experience over the course of June and July. Dean Middleton described the content and tone of petitioner's emails as "haranguing a staff member and challenging the Director in a threatening manner" (Verified Answer, Exhibit 3). Dean Middleton noted that said emails demonstrate petitioner's "choice to communicate in an unacceptable, unprofessional manner that interferes with the School's educational process." Notably, Dean Middleton warned petitioner [*4]that "the next interaction with members of the School of Education or our educational and school partners that violates the expectation of your probation will lead to your probation being removed and your dismissal from Hunter College"[FN4] (Id.).

In the Fall of 2017, petitioner needed to pass only two more program-related courses in order to graduate and be eligible to be licensed to teach ELA 6-12th grades in New York State. One of those courses was SEDC751 — "Student Teaching." On August 18, 2017, the Director of OCE emailed petitioner notifying him of his student teaching placement at Bronx Latin High School. The OCE made the assignment as it does in all cases because self-placement is against policy. However, the OCE did take into consideration petitioner's request to be placed at school in the Bronx. Petitioner replied stating "[t]he location seems good. However, I suggest you have Plan B & Plan C ready just in case [principal] Fiorentino decides she would prefer someone more Latin than me" (Verified Answer, Exhibit 5). In his papers, the petitioner describes the school as "a small, overcrowded, scandal-plagued high school located in a high-crime section of the Bronx" (petition at 21). According to the petitioner, he was the first and only Hunter College Student placed at Bronx Latin. Petitioner also took issue with his assigned "cooperating teacher" Francesca Ho Sang, identifying her as "a Black woman in her late 30s who describes herself as a Social Justice Warrior" (petition at 22). Petitioner claims that Ms. Ho had never before acted as a cooperating teacher for any other Hunter College student attempting to satisfy the Student Teaching course. Petitioner also appears to place some significance on the fact that Ms. Ho Sang was a student from Hunter's Ph.D. in education program. He further surmises that he was assigned to Bronx Latin for one reason: "that is where Ms. Ho Sang, whose academic and professional future are heavily dependent upon the School's continued good will, is employed" (petition at 22).

After only a few days Bronx Latin, petitioner decided that he did not wish to student teach there. Petitioner cites Ms. Ho Sang as the reason for his departure. In an email to his fieldwork supervisor, petitioner claimed Ms. Ho Sang "acted indifferently toward him to the point of rudeness" (Id. at 25). Petitioner points to the first day of school as an example and states that other than providing him with a weekly schedule and introducing him briefly to her classes, Ms. Ho Sang made no special effort to train the petitioner that day. Instead, petitioner states, Ms. Ho Sang preferred that he observed from the back of the class. This coupled with the alleged lack of interest she displayed toward petitioner during orientation led petitioner to conclude that Ms. Ho Sang had little or no interest in seeing him succeed at Student Teaching. Petitioner also criticized what he described as the exceedingly poor conditions at Bronx Latin, "e.g., how he has been forced to eat his lunch in a hallway because there were no dining facilities" (Id. at 24). He further complained that Bronx Latin had no parking lot, no faculty dining room, no faculty lounge, no desk for him to use, and no library. "Indeed, the pathetic school literally did not have a place for him to hang his jacket" (Id. at 24-25). Petitioner states that after his first day of classes at Bronx Latin he decided that he needed to take his Student Teaching placement into his own hands.

After leaving Bronx Latin on the afternoon of September 6, 2017, petitioner drove to [*5]New Rochelle High School [NRHS] and solicited help in getting a placement there. Despite having been dismissed in 2015 in part for making his own placement arrangements outside of the OCE and despite Dean Caballero's explicit instruction warning him against doing the same, petitioner unilaterally sought out a placement at NRHS. Petitioner had previously completed his "English Methods II" course fieldwork there earlier that spring.[FN5] After securing a placement at NRHS, petitioner contacted Professor Marshall George and informed him of the difficulties he had faced at BLHS and that he had already secured a replacement. According to petitioner, Professor George denied petitioner's request without an explanation.

Petitioner reported to BLHS the following day and resumed his student teaching with Ms. Ho Sang. The last three periods of the day were listed as "PREP/LUNCH" periods on petitioner's schedule. Petitioner claims that he asked Ms. Ho Sang if she would be able to train him during that time and she said that her schedule did not permit for training him that day because she had other classes to prepare for. Petitioner alleges, and respondent disputes, that after spending 7th period observing a different class, he informed another BLHS teacher he was leaving for the day and asked the student to tell Ms. Ho Sang when he saw her. Later that evening petitioner received an email from Ms. Ho Sang which stated that petitioner was "mandated to remain on school grounds for the duration of the school day." An exchange of emails followed between petitioner, Professor George, the director of OCE, and Ms. Ho Sang. The following day petitioner was informed that Bronx Latin no longer wished to have him as a student teacher.

Pursuant to the new Fieldwork Policy, petitioner's dismissal from his placement at Bronx Latin was referred to the relevant Department Chair and Associate Dean Caballero to determine whether petitioner should be placed at another school or whether other action, up to and including dismissal, was appropriate. They ultimately recommended dismissal and outlined their reasons why in the September 12, 2017 memorandum to the School's Clinical Standards Committee. Based on these findings, the CSC informed petitioner in writing on September 13, 2017 that he was being dismissed from the School effective immediately. The letter further informed petitioner of his right to appeal to Hunter's Provost.

By letter dated September 20, 2017, petitioner appealed his dismissal in a one-page letter to Acting Provost Lon Kaufman. Petitioner's appeal stated in relevant part:

"For that reason my 'appeal' will consist of nothing more than this stern warning:Neither you nor the School has been delegated sweeping authority to contemptuously ignore all relevant, published CUNY rules and disciplinary procedures and simply disappear CUNY students who fail to sing from Far-Left Hymnals with sufficient gusto. Either reinstate met immediately as a student in good standing in my nearly finished MA program or risk the expensive wrath of a NYS judge who just might be willing to do justice this time."

The appeal was denied on September 25, 2017 and this timely Article 78 proceeding ensued.

Contentions

Petitioner argues that he was arbitrarily and capriciously dismissed from the Program. Petitioner asserts that the School has failed to follow its own rules and procedures described in the CUNY Bylaws. Specifically, petitioner insists that respondent was obligated to file and pursue formal charges of misconduct in accordance with the rules governing disciplinary determinations articulated in Article XV, Section Four of the CUNY Bylaws. Petitioner notes that the CUNY Bylaws demand that charges of misconduct brought against students be specific, in writing, and that students be afforded the right to challenge the evidence claimed against them before a neutral committee of made up of students and faculty. Instead, petitioner claims that Dean Middleton chose not to file formal charges of misconduct against the petitioner for the obvious reason that he had done nothing wrong. Instead, petitioner surmises that "the first-year dean reasoned that this rogue division's years-old, mean-spirited goal — the elimination of the petitioner and the destruction of his academic and professional career—could be quickly and easily accomplished by contemptuously ignoring and bypassing all relevant published Hunter College/CUNY student disciplinary procedures. In light of this, petitioner claims that he was denied due process again, just as he was in 2015.

In addition, petitioner argues that respondent's decision to dismiss him from the Program constitutes an abuse of discretion. Petitioner challenges School's authority to create rules and procedures for handling academic misconduct. Petitioner argues that The Hunter College School of Education is not a school or a legal entity in its own right but is merely an administrative division of a college (Hunter College), which itself is only an administrative division of a much larger, NYS government-chartered and controlled public university system. He emphasizes that the new Fieldwork Policies & Procedures did not effectively repeal and replace Article XV. Likewise, he claims that Judge Ramos' December 2016 ruling in Michelsen 1 did not render Article XV null and void. Petitioner further avers that his placement at Bronx Latin had been prearranged to end in failure. Finally, petitioner seeks damages at the rate of $75,00 a year starting February 2018 and continuing until he completes his education and can be licensed to teach.

In opposition, respondents argue that petitioner was dismissed on academic grounds and received process sufficient to support an academic determination. Respondent claims that the School was entitled to deal with petitioner's actions under its rules for academic misconduct specifically designed to address the type of conduct in question and substantially followed those rules. Additionally, respondent stresses that academic determinations are entitled to deferential review.

Respondent also argues that the instant petition must be dismissed because the doctrine of collateral estoppel prevents him from relitigating an issue previously decided in Michelsen I. Respondent points out that the question of whether the determination at issue was disciplinary was fully litigated in Michelsen I. Respondent emphasizes that petitioner engaged in substantially the same conduct as had earned him dismissal in 2014. Specifically, respondent claims that petitioner was dismissed because he had demonstrated a repeated inability or unwillingness to do what was required in his fieldwork placements — behave like a professional teacher. Respondent argues that the Court's determination in Michelsen I was correct because the scope of issues that arise under academic conduct is not confined to disputes about assignments or course grades, it also includes professionalism. Respondent further argues that getting dismissed from the fieldwork placement in a required course for failure to meet the requirements of the course is an academic issue, not a disciplinary issue. As such, respondent concludes that [*6]that CUNY applied the correct administrative process, namely the procedures outlined in the new Fieldwork Policy which specifically addressed academic failures relating to fieldwork. Moreover, the School had new procedures in place, which unlike the original procedures clearly governed his conduct, and that it followed its guidelines, thus satisfying its duty.

In addition, respondent contends that petitioner's disagreement with the School's decision to dismiss him is not grounds to vacate the determination. Respondent argues that petitioner does not even reference the new Fieldwork Policy, relying instead on a theory that Hunter cannot have rules of its own, separate from those applicable to CUNY as a whole. Importantly, respondent points out that 1) petitioner fails to cite any legal support for this theory and 2) ignores that the new Fieldwork policy received approval of CUNY's central administration.

Finally, respondent asserts that petitioner's claims for money damages must be denied, citing CPLR § 7806. This provision provides that the "restitution or damages granted to the petitioner must be incidental to the primary relief sought by petitioner ." Here, respondent states, the relief is not incidental to his dismissal from the program.

Discussion

Generally, judicial review in an Article 78 proceeding is limited to whether the administrative determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR § 7803 [3]; see Peckham v Calogero, 12 NY3d 424, 431 [2009]; Pell v Board of Educ., 34 NY2d 222, 231 [1974]. "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Peckham, 12 NY3d at 431; see Pell, 34 NY2d at 231). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Peckham, 12 NY3d at 431; see Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 18 NY3d 446, 454 [2012]).

An educational institution's academic determinations regarding students' grades or their "academic capabilities" or performance are beyond the scope of judicial review "absent bad faith, arbitrariness, irrationality or a constitutional or statutory violation (Matter of Susan M. v New York Law School, 76 NY2d 241, 247 [1990]; Matter of De Jong v Kings County Hosp. Ctr., 27 AD3d 398 [1st Dept 2006]). "This standard has rarely been satisfied in the context of challenges to academic determinations because the courts have repeatedly refused to become involved in the pedagogical evaluation of academic performance" (Matter of Susan M., 76 NY2d at 246).

In contrast, judicial review of an academic institutions' disciplinary determinations, such is limited to whether it "substantially adhered to its own published rules and guidelines" and whether the determinations are based on a "rational interpretation of the relevant evidence" such that they are neither arbitrary nor capricious (Matter of Katz v Bd. of Regents of the Univ. of the State of New York, 85 AD3d 1277, 1279 [3d Dept 2011]; Matter of Dequito v New School for Gen. Studies, 68 AD3d 559 [1st Dept 2009]; see Matter of Quercia v New York Univ., 41 AD3d 295 [1st Dept 2007]; see also Tedesci v Wagner Coll., 49 NY2d 652 [1980]).

Initially, the Court addresses the threshold issue of collateral estoppel. Collateral estoppel is a "narrower species of res judicata [which] precludes a party from litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Wilson v Dantas, 29 NY3d 1051, 1062 [2017]). Michelsen I also involved petitioner's dismissal [*7]from the School based on the unprofessional conduct he exhibited during his fieldwork placement. Moreover, the dispute involved the same parties, as the challenge related to petitioner's participation in the same academic program at Hunter College. In that case, the Court examined whether the actions for which he has been dismissed had to be assessed under disciplinary or academic procedures. As stated above, Judge Ramos concluded that the conduct at issue was academic. Therefore, pursuant to the pre-existing rules relating to grades, petitioner should have been placed on academic probation. Collateral estoppel thus precludes relitigation of this issue.

Here, petitioner has not met his burden of showing a deprivation of his rights or bad faith or other arbitrary action constituting an abuse of discretion (see Matter of York v McGuire, 99AD2d 1023, 1024 [1st Dept 1984]). One of the critical components of petitioner's degree was his fieldwork, including his ability to work with and take instruction from his supervisors at the academic institution where he had been placed. Instead, petitioner — with full knowledge of the proper protocol, and after he was put on academic probation because of similar problems with his earlier fieldwork and warned of this precise problem in writing — violated the rule which required him to undertake his teacher training post in the school to which he had been assigned. Moreover, as stated, he disregarded the directions of his teaching mentor, Ms. Ho Sang, when he left work early and in general expressed disrespect for her. Therefore, as respondent's determination was rational and had basis in the record, it "is beyond further review" (De Jesus v Teachers College, — AD3d —, — [1st Dept Sept 25, 2018] [2018 NY Slip Op 06186, at *1]). As his failure with respect to his fieldwork is a sufficient rational basis, the Court need not reach the question of whether his harassment of respondent's employees via email is tantamount to unprofessionalism and an academic violation. However, the Court notes that here, it is bound by the earlier rulings on this issue. The Court has considered the parties' remaining arguments and they do not change its conclusion.

Finally, pursuant to CPLR § 7806, in awarding a judgment in an Article 78 proceeding, "[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be as such he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body officer in its or his official capacity." Here, as respondent states, petitioner does not assert that he suffered any incidental damages. Accordingly, even if he had prevailed in this proceeding, his claim for damages would be denied.

For all the reasons above, therefore, it is

ORDERED and adjudged that the petition is dismissed.

Dated: October 1, 2018

ENTER:

_______________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1:Petitioner filed a notice of appeal on January 12, 2017, but there is no indication as to whether the appeal was ever perfected.

Footnote 2: On July 26, 2017, petitioner received an email from the Hunter College Office of the Registrar notifying him he had "been placed on academic probation." Petitioner sent several condescending emails to the Registrar's Office asking how this could be possible given his 3.66 GPA. According to petitioner these emails were ignored. In his affidavit, Middleton states that petitioner received a computer-generated letter of the type sent to all students on academic probation. Due to the fact that petitioner had been placed on academic probation pursuant to the Court's order, he was listed in the School's database as on academic probation and received the letter normally sent automatically to student's, unlike petitioner, who were on academic probation for poor grades. Middleton admits that petitioner's confusion was understandable, because his grades had nothing to do with his probation and further states that the matter was ultimately straightened out.

Footnote 3:Respondent's submit the new Fieldwork Policy (Verified Answer, Exhibit 4) which states in relevant part that "[t]he following fieldwork requirements and procedures ("the Procedures") are established by the Hunter College ("the College") School of Education . . . In addition to the following standards outlined in the College's Code of Conduct applicable to all students, a SOE student whose education includes any fieldwork component must" meet the requirements and follow the procedures referenced in said new Policy.

Footnote 4:Dean Middleton's letter also directed petitioner to communicate directly with the Associate Dean. He further added that "[n]either staff nor faculty in the College, nor the large groups of unrelated addresses usually included in your electronic messages, will respond to your emails. This will slow response time down significantly, but through your actions, you have left the School no other option" (Id.)

Footnote 5:Although the School does not generally permit fieldwork in schools outside of New York City, it accommodated petitioner's desire to do his fieldwork at New Rochelle High School because he was employed there as a full-time substitute teacher (SEE FN from MEMO ON PAGE 8)