Opinion
Index No.: 100029/11 Seq. No.: 001
07-11-2012
JANE LEWINTER, Petitioner For an Order pursuant to Article 75 of the Civil Practice Laws and Rules v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent
DECISION, ORDER AND
JUDGMENT
PRESENT:
Hon. Judith J. Gische
J.S.C.
Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):
+--------------------------------------------------+ ¦Papers ¦Numbered ¦ +---------------------------------------+----------¦ ¦Notice of Pet and Pet w/exhs (sep back)¦2 ¦ +---------------------------------------+----------¦ ¦Answer, exhs ¦3 ¦ +---------------------------------------+----------¦ ¦Reply w/EHW affirm ¦4 ¦ +---------------------------------------+----------¦ ¦Various stips of adj ¦5 ¦ +--------------------------------------------------+
Upon the foregoing papers, the decision and order of the court is as follows:
GISCHE J.:
Petitioner Jane Lewinter seeks a judgment from this court vacating the penalty assessed by Hearing Officer Stephen M. Bluth ("HO Bluth") in his Opinion and Arbitration award dated December 15, 2010 ("award"). Alternatively, she seeks a judgment remanding the matter to the respondent with instructions that a lesser punishment be imposed, consistent with the facts and mitigating factors she contends were determined and acknowledged by the hearing officer.
Respondent the New York City Department of Education ("DOE") has answered and seeks dismissal of the petition without the need for a hearing (CPLR 7511).
Facts and arguments presented
Lewinter is a tenured teacher employed by DOE. DOE filed sixteen (16) disciplinary charges against her pursuant to New York Education Law section 3020-a ("Educ § 3020-a"). Following a testimonial hearing before HO Bluth, he found Lewinter culpable of eight (8) of the specifications, but not culpable of the remaining eight (8) specifications. Although DOE sought to have Lewinter terminated from employment, HO Bluth determined that the appropriate remedy is a six-month suspension from employment without pay, and that during the period of her suspension, Lewinter take classes/workshops, up to six (6) sessions, in classroom management or any other area selected by, and paid for, DOE. Lewinter contends HO Bluth exceeded his authority in imposing this punishment (1st cause of action) and that the punishment imposed shocks the conscience, which is ah abuse of his discretion (2nd cause of action).
Educ § 3020-a was amended effective March 30, 2012. The amendments have no bearing on the dispute at bar as they apply prospectively.
Many of the facts are unrefuted, undisputed or were proved at the hearing before HO Bluth. Thus, it is unrefuted that Lewinter was assigned to the Eastern Bronx Academy for the Future ("Eastern Bronx Academy"), located in the Bronx, New York where she taught high school science courses during the 2006 - 2007 and 2008 - 2009 school years. After completing her first year at Eastern Bronx Academy, Lewinter received a satisfactory rating at her annual professional performance review ("APR"), the highest possible marking that can be bestowed upon any teacher. The "additional remarks" section of the ARR refers to an attached letter prepared by Principal Sarah Scrogin. That letter, dated June 26; 2007, provides a more personalized and critical evaluation of Lewinter's performance, identifying areas of exemplary service, but also goals for the upcoming school years. In relevant part, Principal Scrogin's letter states the following :
The purpose of this letter is to both commend you on areas in which you are satisfactory or exemplary in terms of your work and to recommend areas for growth. I believe that being an educator is a constant evolution and that all of us have areas in which we must continue to strive to improve. I have outlined these [areas] below as goals for the 2007- 2008 school year, and I look forward to working with you to accomplish them...
Goals for Growth in the 2007-2008 School Year
One [area] I would like to see improvement is in your ability to help students for Regents Examinations. In looking over the Regents results from this June, I see that science was a challenge across the grades, and I counted only a handful of your Earth Science students passing the Regents. I think one way to get better at students passing is to do more frequent interim assignments and analysis of what students' need to improve upon. Also, using technology and differentiating instruction so that all students are engaged and working in your classes is essential to their success. (Too often I feel that students are talking, listening to music, eating or not working when I come into the room). Another way to hold students' accountable for their own learning is [by] doing things like giving them a grade for participation each day, assigning class work and homework regularly and keeping track of who does it, and entering the data in Grade book regularly...This is a major goal for next year. I urge you to work with other teachers on your team to make this a grade-wide practice...
Lewinter's APR for the 2007 - 2008 school year was markedly different. She received an unsatisfactory marking in all but two categories. During that school year, Lewinter underwent surgery for an intestinal blockage and she was absent from February 10, 2008 through March 24, 2008. Her 2008 - 2009 APR was even worse, with Lewinter receiving a "U" rating in every category. The APR identified seventy three (73) different "write-ups" or letters to her file documenting complaints, lapses or deficiencies in her teaching. During that school year, Lewinter underwent a second surgery and she was absent from work for the period October 31, 2008 to December 8, 2008. On June 22, 2009, at the end of the 2008-2009 school year, DOE brought the specifications against her, seeking her termination from employment. Broadly, the specifications were for "neglect of duty, lack of class discipline and control, failure to follow procedures and carry out normal duties, and incompetent service."
In his award, HO Bluth divided the specifications into two categories: those having to do with Lewinter's pedagogical skills and those pertaining to claims of misconduct. Some of the claims pertained to the 2007 - 2008 school year while others were for the 2008 - 2009 school year. Some were for both years. None were for her first year teaching at the school.
Lewinter was represented by counsel during the fourteen (14) day testimonial hearing at which she not only testified, but also put a number of documents into evidence and cross examined witnesses. Among the witnesses to testify were: Principal Scrogin, Assistant Principal Brendan Lyons, and Beatrice Werden, a "Peer Plus Evaluator" who was assigned to assist Lewinter improve her performance. Each side made oral closing arguments and HO Bluth required that the parties provide him with copies of the transcript.
The same attorney currently representing her in this summary proceeding.
During the hearing, the DOE presented evidence of Lewinter's claimed pedagogical shortcomings and examples of her misconduct. In his discussion and findings, HO Bluth discussed the evidence he considered in concluding that "[Lewinter's classroom] performance was deficient in a number of respects" (Award p. 72). Such evidence included the testimony by Principal Scrogin and Assistant Principal Lyons and the "many observations" of Lewinter in the classroom. He noted that students were observed to be out of their assigned seats, engaged in various activities having nothing to do with the lesson and, in one instance, sleeping in class. In another instance, some students had left the class and were sitting outside, completely disengaged from the lesson and refusing to return to the classroom. After identifying, reviewing, and discussing the evidence he had considered and testimony he credited, HO Bluth determined that:
I find the testimony provided by Principal Scrogin and Assistant principal Lyons was consistent with these formal and information observations and Letters to the File. Together, they lead to an inescapable conclusion that [Lewinter] had severe classroom management deficiencies...
HO Bluth also determined that:
[Lewinter] failed to competently utilize the workshop model of instruction, the method of instruction mandated by the administration of [Eastern Bronx Academy]...
Among HO Bluth's Other determinations are that Lewinter failed to:
○meet minimum standards of preparation and planning.
○assess her students' understanding of her lessons.
○adapt her instruction to the individual needs of her students although there were only five students in her class.
With respect to the misconduct claims, HO Bluth determined that Lewinter:
○Improperly graded two students: one student received an 83, even though he had not attended class; another student was given an "F," although the "Grade Book Wizard" showed he had a passing grade when his three grades were averaged.
○In a third instance, Lewinter gave a student an "incomplete" although the student had been excused by the principal.
○Lewinter did not keep her Grade Book up to date, and at one point only had 21 recorded graded assignments when she should have had at least 80 grades by that time.
HO Bluth considered, but rejected, Lewinter's three (3) main defenses to the specifications against her 1) that school administrators became disenchanted with her after her second sick leave, leading them to start a paper trail so they could terminate her, 2) she returned to school in a weakened state and 3) she was teaching out of license. While acknowledging that school administrators could have provided her with more resources, particularly since she was having trouble managing and engaging her students, HO Bluth found that DOE had met its burden of showing that "[Lewinter's] performance over a period of one and one-third years was substandard..." The "year" referring to the 2008-2009 school year and the "one-third" referring to the period of April 1, 2008 - June 30, 2008. HO Bluth determined that "there is no question [Lewinter's] classroom management ranged between poor and abysmal" (Award p. 108).
In rejecting Lewinter's claim of medical problems and weakness, HO Bluth stated that:
I find that many of [Lewinter's] shortcomings cannot be attributed to her medical problems. For example, failing to stop students from listening to iPods during class,
permitting them to talk during her lesson and failing to record the appropriate number of grades cannot be simply explained away by her health problems. Rather, they demonstrate a weakness in her teaching performance, I believe.
Award p. 108
As for her "teaching; out of license" defense, HO Bluth noted that:
the vast majority of criticism regarding [Lewinter's] performance was not related to content. Rather, they reflected her problems with basic classroom procedures and methodology...in the future, she must take responsibility for her job performance rather than simply blaming her problems on other factors
Award p. 108-109
In support of her petition, Lewinter specifically states that "the factual findings of the Hearing Officer with respect to each of the Specifications is not, in the main, challenged by Petitioner..." Lewinter, however, states that she had medical issues which she was not allowed to document and had she been allowed to do so, this would have eliminated the remaining specifications which HO Bluth sustained. She claims HO Bluth exceeded his authority and that the punishment of losing six months pay is shocking, as it is tantamount to $40,000 in lost wages rendering it impossible for her to help her grown daughter with her tuition costs. Lewinter argues that the hearing officer should have imposed a less severe punishment, and this matter should be remanded to HO Bluth for reconsideration.
Discussion
Education Law § 3Q20-a [5] provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR § 7511. Under such review, the court may only vacate an arbitral award when the rights of a party in an arbitration were prejudiced by corruption, fraud, or misconduct in procuring the award or the partiality of an arbitrator (CPLR § 7511 [b]; Lackow v. Department of Education of City of NY. 51 AD3d 563, 567 [1st Dept 2008]). CPLR § 7511 [b] further provides that an award shall be vacated if the rights of that party were prejudiced by "misconduct, bias, excess of power or procedural defects" (Lackow v. Department of Education, 51 AD3d at 567 [1st Dept. 2008]). Pursuant to Education Law § 3020-a (5), CPLR 7511 provides the basis of review of an arbitrator's findings (Id.)
Where, as here, the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than when the parties have submitted to voluntary arbitration (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Lackow v. Department of Education of City of New York, supra at 567). Therefore, the hearing officer's determination must be in accord with due process and supported by adequate evidence; it must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78 (Lackow v. Department of Education of City of New York, supra at 568 citing Motor Vehicle Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186 [1990]).
The burden of showing an award is invalid is on the person who is challenging it (Lackow v. Department of Education of City of New York, supra at 568 citing Caso v Coffey, 41 NY2d 153, 159 [1976]). An arbitration award may not be vacated even if the court concludes that the arbitrator's interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on his power." (Hegarty v. Board of Education of the City of New York,. 5 A.D.3d 771, 772-773 [1st dept. 2004)]. Consequently, pursuant to CPLR § 7511 (e), if this petition to vacate the award is dismissed because there is no statutory basis upon which to vacate the award, the court "shall confirm the award."
All of the defenses and arguments presented to the court in connection with this petition were raised before the hearing officer. Lewinter had an opportunity to present her case, cross examine witnesses and make objections. Lewinter testified about the observations made of her, when they were made and her belief that school administrators were building a record against her. These claims were rejected by HO Bluth for the reasons he articulated in his award. Lewinter has identified no evidence that she presented at the Rearing which was not, but should have been, considered by HO Bluth, Thus, Lewinter has failed to show that HO Bluth's determination was not in accordance with due process or unsupported by adequate evidence (Lackow v. Department of Education of City of New York, supra). Lewinter even agrees with the recitation of the facts, as the hearing officer presented them.
No claim is made by Lewinter that her rights were prejudiced by corruption, fraud, or misconduct in pro-curing the award or any partiality on the part of HO Bluth (CPLR § 7511 [b]; Lackow v. Department of Education of City of NY, 51 AD3d 563, 567 [1st Dept 2008]). Lewinter Contends, however, that HO Bluth exceeded his authority because he imposed a punishment that she claims is disproportionate to the misconduct that brought it about (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, supra; Matter of Weinstein v Department of Educ. of City of N.Y., 19 AD3d 165 [1st Dept 2005]). An administratively imposed sanction may not be set aside unless it "shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law" (Matter of Featherstone v. Franco. 95 NY2d 550, 554 [2000]; Patterson v. City of New York, — AD3d —, 946 N.Y.S.2d 472, 2012 N.Y. Slip Op. 04931 [1st Dept 2012]). For the reasons that follow, the court finds that petitioner has not met her burden.
In connection with the specifications against Lewinter, DOE sought to have her terminated from employment. Although HO Bluth concluded that termination was unjustified because school officials should have been more supportive, he made critical evaluations of Lewinter's skills which amply support his decision to have her removed from a class room setting so she could retool and re-equip herself with stronger skills to better serve her challenging students. Noting Lewinter's "substandard" performance and her "poor" to "abysmal" classroom management skills, HO Bluth instructed that DOE was to pay for any workshops/courses (up to six (6) sessions), that would address Lewinter's deficiencies. This Solomonic punishment appropriately holds DOE responsible for not providing better resources and support to an obviously floundering teacher, but also holds Lewinter personally accountable for her own shortcomings which she continues to blame on others (see Patterson v. City of New York. — AD3d —, 946 N.Y.S.2d 472, 2012 N.Y. Slip Op. 04931 [1st Dept 2012]). The fact that Lewinter had an unblemished record the first year at the Eastern Bronx Academy is unhelpful to petitioner, particularly since HO Bluth noted her substandard performance during "one and one-third" of the three years she taught at the school (Patterson v. City of New York, supra).
Not only has Lewinter failed to show that the determination by the hearing officer was arbitrary and capricious, or prejudiced by corruption, fraud, or misconduct, she has also failed to prove that the award shocks the conscious, thereby constituting an abuse of discretion as a matter of law. Other arguments by Lewinter, about the financial impact the punishment has on her, do not command a different result. Therefore, respondent is entitled to a judgment in its favor dismissing the petition and confirming the award in its entirety.
Conclusion
In accordance with the foregoing,
It is hereby,
ORDERED, ADJUDGED AND DECREED that the petition of Jane Lewinter vacating the Opinion and Award of Hearing Officer Stephen M. Bluth dated December 15, 2010, suspending Jane Lewinter for six (6) months without pay, or in the alternative, an order remanding the matter to the respondent for with instructions that a lesser punishment be imposed, is hereby DISMISSED; and it is further
ORDERED that the December 15, 2010 award in favor of the respondents is hereby CONFIRMED in al| respects; and it is further
ORDERED that any relief requested not specifically addressed is hereby denied; and it is further
ORDERED that this Constitutes the decision, order and Judgment of the court. Dated: New York, [slew York
July 11, 2012
ENTER:
______________________
Hon. Judith J. Gische, JSC