Opinion
106761/2010.
December 3, 2010.
DECISION AND ORDER
Papers Numbered
Notice of Motion............................. 1 Cross-Motion................................. 2 Reply........................................ 3 Other........................................ 4, 5 Petitioner brings this proceeding pursuant to CPLR 7511 and section 3020-a of the Education Law to vacate the findings and recommendations made by a hearing officer with respect to her employment as a tenured teacher with respondent New York City Department of Education ("DOE"). After six days of hearings, the hearing officer issued an Opinion and Award dated May 2, 2010, finding petitioner guilty of disciplinary charges filed against her by the DOE and finding just cause to terminate petitioner's employment. Respondent opposes the petition and cross-moves pursuant to CPLR 7511, 7511(e), 403 and 404 to dismiss the petition on the grounds that petitioner's causes of action based in contract violation are barred by the failure to exhaust contractual remedies. Petitioner opposes the cross-motion.Petitioner Renee Morrell was hired in 1993 to teach in New York City's public school system. During the 2005-2006 school year, she was working at P.S. M197 a/k/a John B. Russwurm School in Harlem.
On May 15, 2006, the school's principal, Renardo Wright, received a report that Ms. Morrell had been involved in a physical altercation with a twelve-year-old, sixth-grade, male, special education student ("E.R.") in the boys' bathroom. The principal spoke to E.R. and to Ms. Morrell. Principal Wright also spoke with two teachers, Susan Patterson and Samantha Young, who were in E.R.'s class with Ms. Morrell just before the altercation. In addition, one of the school's assistant principals spoke to E.R. and several students who had witnessed the altercation. Based on these discussions, the principal prepared a report alleging corporal punishment and forwarded it to DOE's Office of Special Investigations ("OSI").
OSI interviewed Ms. Morrell, E.R., the principal and assistant principals, the teachers, and student witnesses. Based on the interviews, OSI substantiated that Ms. Morrell had "punched and kicked" E.R. during a physical altercation. Subsequently, respondent DOE charged petitioner with violating Chancellor's Regulation A-420.
Regulation A-420 enforces Department of Education Bylaws and includes reporting requirements established under Regulations of the Commissioner concerning the use of physical force upon a student for punishment purposes. Subsection I of the Regulation provides:
Corporal punishment is prohibited. Disruptive behavior by a student must never be punished by use of physical force. Such behavior usually reflects underlying problems that require guidance intervention. School personnel should take steps to identify the problem(s) and, working closely with parents, help the student receive maximum benefit from the educational program offered at the school. Matters concerning student behavior should be addressed in accordance with Chancellor's Regulation A-443 and the Discipline Code.
Subsection II of the regulation defines the phrase "corporal punishment," lists the four exceptions to the definition and describes the consequences for violating the regulation. The subsection states:
Regulations of the Commissioner section 100.2(I)(3)(i) define corporal punishment as any act of physical force upon a pupil for the purpose of punishing the pupil. Such term shall not mean the use of reasonable physical force for any of the following purposes:
1. to protect oneself from physical injury;
2. to protect another pupil or teacher or any other person from physical injury (e.g., breaking up a physical altercation without using excessive force);
3. to protect the property of the school or of others; or
4. to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school district functions, powers or duties, if that pupil has refused to comply with a request to refrain from further disruptive acts, provided that alternative procedures and methods not involving the use of physical force cannot be reasonably employed to achieve the purposes set forth in 1 through 3 above.
Further, the Bylaws of the City Department of Education state the following:
NO CORPORAL PUNISHMENT SHALL BE INFLICTED IN ANY OF THE PUBLIC SCHOOLS, NOR PUNISHMENT OF ANY KIND TENDING TO CAUSE EXCESSIVE FEAR OR PHYSICAL OR MENTAL DISTRESS. VIOLATION OF THIS BYLAW SHALL CONSTITUTE GROUNDS FOR DISMISSAL.
Chancellor's Regulation A-420 (emphasis in original).
Upon receiving the results of the OSI investigation, the DOE commenced a mandatory arbitration proceeding against Ms. Morrell.
The charges against Ms. Morrell included: violation of Chancellor's Regulation A-420; just cause for disciplinary action pursuant to Education Law 3020-a; conduct unbecoming respondent's position or conduct prejudicial to the good order, efficiency or discipline of the service; substantial cause rendering respondent unfit to properly perform her obligations to the service; neglect of duty; and just cause for termination.
A pre-hearing conference was held on June 22, 2009. Hearings were held on July 8, July 17, July 23, September 14, September 29, and October 19, 2009. The proceedings were transcribed, and the witnesses were sworn.
The hearing officer made the following award in a written Opinion and Award dated May 2, 2010:
1. The Respondent, Renee Morrell is guilty as charged in Specification 1, insofar as on May 15, 2006, the Respondent struck Student E.R. during a physical altercation, as well as pushed him into a wall (causing him to hit his head), sat on him, and shook him up and down.
2. The Respondent's conduct violates Chancellor's Regulation A-420 and constitutes neglect of duty and conduct unbecoming her position.
3. The Department has just cause to terminate the Respondent's employment.
(Petition, exhibit A, p. 27).
In a letter dated May 12, 2010, the Teacher Tenure Hearing Unit of the New York State Department of Education forwarded a copy of the findings and recommendations of the hearing officer to Ms. Morrell. The letter notified the petitioner of her right to make an application to this court to vacate or modify the hearing officer's decision. Subsequently, Ms. Morrell's employment was terminated.
Ms. Morrell commenced the instant proceeding in Supreme Court in May 2010 seeking to vacate the decision of the hearing officer and have her employment reinstated.
Discussion
"A tenured teacher has a protected property interest in his or her position, and the right to retain it subject to being discharged for cause" (94 N.Y.Jur.2d Schools, Universities, and Colleges section 288, citing Strong v. Board of Educ. of Uniondale Union Free School Dist., 902 F.2d 208 [2d Cir. 1990] (due process rights under Fourteenth Amendment), and Gould v. Board of Educ. of Sewanhaka Cent. High School Dist., 81 N.Y.2d 446 (citing N.Y. Educ. Law section 3020-a)).
"Education Law section 3020-a, generally known as the Tenure Law, affords procedural protections to tenured teachers, in that a tenured teacher cannot be discharged from employment without proper cause, notice, and a hearing" (Sanders v. Board of Education of City School District of City of New York, 17 A.d.3d 682, 683 [2d Dep't 2005] (internal citations omitted). "The purpose of the statute is to protect teachers from the arbitrary imposition of formal discipline or removal" (Id.).
Education Law section 3020 governs the discipline of tenured teachers. Under the situation in the instant proceeding, any charges brought against a tenured teacher are first subject to compulsory arbitration before a single hearing officer (Education Law section 3010-a(2)(b)(i)).
The legal principles governing judicial review of such arbitrations were summarized in Lackow v. Department of Educ. (or "Board") of City of N.Y., 51 A.D.3d 563 [1st Dep't 2008]. There, the court wrote:
Education Law section 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. Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than 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 and quotation marks omitted).
Petitioner asserts that respondent violated state law, the collective bargaining agreement ("CBA") and her due process rights. In response, respondent contends that petitioner's claims concerning alleged violations of the contract must be dismissed for failure to exhaust the grievance and arbitration remedies provided in the CBA for such violations. Specifically, respondent asserts that all contract claims should be dismissed and the petition, which relies on such claims exclusively, should also be dismissed.
"Generally, the doctrine of exhaustion of administrative remedies requires litigants to address their complaints initially to administrative tribunals, rather than to the courts and . . . to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts" (Pantel v. Workmen's Circle/Arbetter Ring Branch 281, 289 A.D.2d 917, 918 [3d Dep't 2001] (internal quotation marks and citations omitted)). "This rule is equally applicable to contractual provisions which provide for dispute resolution procedures as a condition precedent to any action or proceeding in the courts" (Id.).
Education Law section 3020(1) states in pertinent part:
No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment. . . .
On its face, the provision states that there are two possible procedures available to determine whether grounds exist for the discipline or removal of a tenured teacher. The first possibility is to follow the procedures specified in Education Law section 3020-a. The second possibility is to follow the disciplinary procedures set forth in the collective bargaining agreement.
In the instant case, the record reflects that the petitioner and respondent followed the procedures set forth in Education Law 3020-a and corresponding regulations. Although petitioner references the terms of the collective bargaining agreement, the fact remains that the parties proceeded under section 3020-a.
The doctrine of the exhaustion of administrative remedies means that if there are further (and reasonable) administrative steps available to secure a change in the result, the party must pursue them before going to court. If it is plain that pursuit of further administrative relief would be futile, it may be dispensed with, and a proceeding may be deemed ripe (New York Practice, 4th ed., sec. 558, pp. 961-962, citing Kurk v. Medical Society, 46 Misc.2d 790 [Sup. Ct., Queens County, 1965], rev'd on other grounds 24 A.D.2d 897 [2d Dep't], aff'd 18 N.Y.2d 928). The doctrine "relieves the courts of the burden of deciding questions entrusted to an agency, and affords the agency an opportunity to prepare a record reflective of its expertise and judgment in advance of possible judicial review" (Young v. GSL Enters., 170 A.D.2d 401, 402 [1st Dep't 1991]).
After careful consideration, the court finds that respondent has failed to demonstrate a sufficient legal justification for denying the petition based upon the doctrine of exhaustion of administrative/contractual remedies. The hearing officer's 28-page decision is a thorough and complete record reflecting the DOE's "expertise and judgment," making judicial review possible. Moreover, the New York State Education Department's Teacher Tenure Hearing Unit specifically notified petitioner that her sole recourse was an application to the Supreme Court to vacate or modify the decision of the hearing officer (Letter dated May 12, 2010, attached as an exhibit to the Verified Petition).
Under such circumstances, the court finds no merit to respondent's contention that petitioner failed to exhaust her contractual remedies.
We turn next to petitioner's contentions.
Petitioner's first contention is that the arbitration award should be vacated on grounds of untimeliness. Ms. Morrell asserts that the collective bargaining agreement requires a hearing based on allegations of "serious misconduct" to be completed within two to three months, in the absence of extraordinary circumstances. She points out that her hearing proceeded over a period of eight months from June 22, 2009, through February 5, 2010. According to petitioner, the final hearing in a matter commenced under Education Law section 3020-a must be completed no later than sixty (60) days from the pre-hearing conference. Likewise, petitioner contends that respondent was required to render a decision within thirty days after the final hearing date; however, the decision in the instant matter was rendered 86 days after that date.
Education Law section 3020-a(4)(a) states:
The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing, and shall forthwith forward copies of the decision to the employee and to the clerk or secretary of the employing board.
To vacate an arbitration award on grounds of untimeliness, a petitioner must demonstrate that he or she has suffered undue prejudice as a result of the alleged delay (Scollar v. Cece, 28 A.D.3d 317 [1st Dep't 2006]).
After careful consideration, the court finds that Ms. Morrell has failed to demonstrate that she has suffered any prejudice as a result of the alleged untimeliness. Accordingly, petitioner's first contention is without merit.
Petitioner's second contention is that respondent failed to hold a "probable cause" hearing pursuant to Article 21G5 of the collective bargaining agreement.
Article 21G5 of the CBA states in pertinent part:
The parties agree that certain types of alleged misconduct are so serious that the employee should be suspended without pay pending the outcome of the disciplinary process. Serious misconduct shall be defined as actions that would constitute:
• the felony sale, possession, or use of marijuana, a controlled substance, or a precursor of a controlled substance or drug paraphernalia as defined in Article 220 or 221 of the Penal Law, or
• any crime involving physical abuse of a minor or student . . . • any felony committed either on school property or while in the performance of teaching duties, or
• any felony involving firearms as defined in Article 265 of the Penal Law.
If an employee is accused of committing serious misconduct, the employee shall be removed from payroll for a term not to exceed two (2) months after a finding by the "probable cause arbitrator" that there is probable cause to believe that the actions alleged were committed by the employee and that they constitute "serious misconduct" as defined above.
It is clear from the language of the provision that its purpose is to determine promptly whether a teacher was properly removed from the payroll, pending the outcome an Education Law section 3020-a disciplinary hearing. Here, Ms. Morrell does not contend that she was ever suspended without pay, as permitted by Article 21(G)(5). Likewise, respondent asserts that the contractual provisions relating to serious misconduct were not invoked by DOE or the hearing officer. Accordingly, the court finds that the provision does not apply to the facts of this proceeding.
Petitioner's third contention is that respondent failed to hold an expedited hearing pursuant to Article 21(G)(3) of the CBA.
Article 21(G)(3) states that
Prior to the pre-hearing conference, the Board shall determine whether the nature of the case would permit offering [the teacher] expedited arbitration rather than regular arbitration of the case. If the [teacher] accepts the offer of expedited arbitration, the hearing shall proceed in accordance with the expedited procedure set forth below and the Board may not seek a penalty to exceed six (6) months suspension or the equivalent monetary penalty.
The penalty sought by respondent in this matter was the termination of Ms. Morrell's employment. On its face, the maximum penalty that could be imposed pursuant to article 21(G)(3) was a six-month suspension or a monetary penalty. Accordingly, respondent was not required to hold an expedited hearing.
Petitioner's next contention is that the arbitrator erred insofar as he failed to direct respondent to furnish the student's record so that it could be entered into evidence.
Article 21(G)(8) of the CBA sets forth the discovery procedures for arbitration cases. It states:
To effectuate the purpose of the statute, the parties agree that Education Law 3020-a authorized the following in advance of the hearing:
. . .
The [teacher] shall receive copies of investigatory statements, notes, other exculpatory evidence, and relevant student records after in camera review.
The Board shall receive copies of investigatory statements, notes, other exculpatory evidence, and relevant student records from the [teacher] upon a showing during the hearing that it is relevant.
Additionally, if the case has stemmed from an investigation conducted by the Special Commissioner of Investigation (SCI), the Board will provide the entire SCI file to [the teacher], including exculpatory evidence, during the discovery phase of the section 3020-a hearing unless such information is privileged. Failure to do so shall form the basis of such evidence being precluded from introduction in the section 3020-a proceedings. This provision remains subject to the Family Educational Rights and Privacy Act.
Under Education Law section 3020-a, a hearing officer is required to hold a pre-hearing conference. At the conference, the hearing officer has the power to hear and decide all requests for production of materials or information, including, but not limited to, any witness statements, investigatory statements or notes, exculpatory evidence "or any other evidence, including district or student records, relevant or material to the employee's defense" (Education Law section 3020-a(3)(c)(iii)).
It is clear from the language of the statute that any request for student records was a matter left to the discretion of the hearing officer. In the instant matter, the court finds that petitioner has failed to demonstrate that the hearing officer abused his discretion regarding this issue.
In conclusion, the court has carefully reviewed the hearing officer's 28-page written decision (Petition, exhibit A). The decision states that a pre-hearing conference was held; that hearings were held on six days; that the proceedings were transcribed and witnesses sworn; and that the parties were afforded "a full opportunity to present testimony, exhibits and arguments in support of their respective positions The decision describes the testimony of the student E.R. and his cross-examination; the testimony of student/eyewitness "I.W.," and her cross-examination; the testimony and cross-examination of Principal Wright; and the testimony and cross-examination of two assistant principals, Paulette Johnson and Juanita Johnson. In addition, the decision describes the OSI interview summaries with Students "C," "D," and "E." Likewise, the decision describes the testimony and cross-examination of petitioner Morrell.
The hearing officer discussed his concerns about the credibility of the witnesses, including student E.R. Regarding the issue of credibility, "[i]t is basic that the decision by the Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts, who are disadvantaged in such matters because their review is confined to a lifeless record" (Berenhaus v. Ward, 70 N.Y.2d 436, 443). "A reviewing court must defer to the administrative fact finder's assessment of the evidence and the credibility of the witnesses" (Lindemann v. American Horse Show Assn., 222 A.D.2d 248, 250 [1st Dep't 1995] citing Berenhaus at 443).
The hearing officer reached the following conclusions:
Based on this evidence, and given the totality of the circumstances demonstrating that this was an extremely physical confrontation, I cannot believe [Ms. Morrell's] and E.R.'s assertions that they did not strike the other in some fashion during the altercation. The record evidence supports a finding that this was a physical fight between two active participants. Both sought medical attention. E.R. had scratches on his face and neck. They both filed police reports alleging they were assaulted by the other.
Accordingly, I conclude that [Ms. Morrell] and E.R. both struck the other in some fashion during the fight. I also conclude that [Ms. Morrell] pushed E.R. into the wall (causing him to hit his head), sat on him and shook him up and down.
. . .
This course of events is particularly disquieting, given that [Ms. Morrell] acknowledged that E.R. was an emotionally disturbed student, with a history of physical confrontation. Moreover, she is a teacher's mentor who is expected to act responsibly in situations like this, with a level of maturity commensurate with her age, experience and mentoring responsibilities. Based on [Ms. Morrell's] failure to comply with the undisputed protocol regarding the need to contact an administrator in the case of a disruptive student, and her allowing the situation to escalate to the point where a physical confrontation with an emotionally disturbed special education student took place, I find [that] she cannot now claim that she had "no choice" but to physically defend herself from E.R.
In any event, even if it were true that [Ms. Morrell] had no opportunity to diffuse the situation prior to coming to physical blows, I conclude that the aggression she displayed in this case was not a reasonable amount of force. In this regard, I.W.'s testimony and her OSI interview, in conjunction with the other student's OSI interviews, clearly demonstrate that [Ms. Morrell's] actions were that of an aggressor who was physically in control of the situation — pushing E.R. against the wall, sitting on top of him and shaking him up and down-not a victim defending herself.
(Petition, Exhibit A, pp. 22-23).
A careful examination of the hearing officer's decision and the documents submitted by both parties does not support vacating the award for the arguments put forward by petitioner. The court finds that the determination was made in accord with due process and supported by adequate evidence. Furthermore, the court finds that the decision was rational and satisfied the arbitrary and capricious standards of CPLR article 78. Accordingly, we find that petitioner has not met her burden of showing the invalidity of the arbitration determination.
For the above reasons, the petition to vacate respondent's determination terminating her employment is denied, and the proceeding is hereby dismissed without costs and disbursements.
The foregoing constitutes the decision and order of the court.