In Matter of Aiken v. City of New York

Full title: IN THE MATTER OF THE APPLICATION OF GENEVA AIKEN, Petitioner, v. CITY OF…

Court: Supreme Court of the State of New York, New York County

Date published: Jul 23, 2010

2010 N.Y. Slip Op. 32006 (N.Y. Sup. Ct. 2010)

Opinion

105145/10.

July 23, 2010.

JUDGMENT/ORDER

CYNTHIA S. KERN, Judge.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:_______________________________________

Papers Numbered Notice of Motion and Affidavits Annexed ................. ______ Notice of Cross Motion and Answering Affidavits ......... ______ Affirmations in Opposition to the Cross-Motion .......... ______ Replying Affidavits ..................................... ______ Exhibits ................................................ ______

In this Article 75 proceeding, petitioner Geneva Aiken ("petitioner") seeks to vacate the Opinion and Award of Hearing Officer James M. Darby, Esq. ("Hearing Officer Darby"), dated April 5, 2010 issued pursuant to Education Law § 3020-a. The New York City Department of Education (the "DOE") cross-moves to dismiss the petition and to confirm the arbitration award. This court denies the petitioner's request and grants the DOE's cross-motion for the reasons set forth below.

The relevant facts are as follows. Petitioner was formerly employed by the DOE as a tenured payroll secretary. Petitioner commenced employment in 1999 and received tenure in 2002. In the summer of 2007, petitioner applied for summer per session secretarial work and her application was accepted. On July 2, 2007, petitioner began her per session assignment at the Dr. Susan S. McKinney Secondary School of the Arts, JHS 265 in Brooklyn. Petitioner's duties included entering per session hours worked by teachers and petitioner into the electronic payroll database system, referred to as the TBNK system. The number of hours entered into the TBNK system is based on the number of hours reflected on each employee's bi-weekly time card and accompanying handwritten time report. The time report is approved by the employee's supervisor, who signs his or her name on the report.

During the summer of 2007, it was brought to the attention of Paula Holmes, the Principal at JHS 265, that the school was running low on the budgeted funds for the summer per session program. The resulting investigation revealed that petitioner had inputted unauthorized and unworked hours into TBNK for herself. Consequently, on August 15, 2007, petitioner was removed from her position at JHS 265 and assigned to the Reassignment Center. After petitioner's removal, the DOE's Special Commissioner of Investigation ("SCI") conducted an investigation of petitioner's alleged misconduct. On January 29, 2008, SCI substantiated that "petitioner falsified her per session time reports and made false entries into the DOE payroll system for the 2007 summer session." As a result, the DOE filed charges under Education Law § 3020-a against petitioner.

In April 2008, Hearing Office Darby was assigned to arbitrate the § 3020-a charges filed against petitioner. Pre-hearing conferences were held on March 20 and April 21 of 2009 and hearings was held over ten separate dates between April and August of 2009, during which time the parties were afforded a full opportunity to present testimony, exhibits and arguments in support of their respective positions. On April 5, 2010, Hearing Officer Darby rendered his Opinion and Award terminating the petitioner from her position at the DOE. Hearing Officer Darby based his penalty on his finding, after fully considering all of the evidence and arguments presented, that petitioner falsified her time records. On April 19, 2010, petitioner, proceeding pro se commenced the instant petition seeking to vacate Hearing Officer Darby's Award.

"Education Law § 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'." Lackow v. Dept. of Education of the City of New York, 51 A.D.3d 563, 567 (1^st Dept 2008); See The City School Dist. of the City of New York v. McGraham, 2010 WL 2731911 at 4 (July 13, 2010, N.Y.App. Div. 1st Dept.). However, where arbitration is mandated by law, as here, "judicial scrutiny is stricter than that 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 A.D.3d at 567-568 (internal citations omitted). In the instant action, petitioner has failed to provide any evidence demonstrating misconduct, bias, excess of power, or procedural defects. Moreover, Hearing Officer Darby's decision was rational and supported by adequate evidence.

Accordingly, this court denies petitioner's request for relief under Article 75 of the C.P.L.R. and dismisses the proceeding in its entirety. The DOE's cross-motion to dismiss the petition and confirm the arbitration award is granted. This constitutes the decision, order and judgment of the court.