Opinion
No. 100274/2014.
10-08-2014
In the Matter of the Petition of Jason ROBERTS, Petitioner, v. DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, Respondent.
Jane Anderson, Alyson Maugeri, Corporation, Counsel of the City of New York, New York, NY, for Respondent. Jason Roberts, New Rochelle, NY, pro se.
Jane Anderson, Alyson Maugeri, Corporation, Counsel of the City of New York, New York, NY, for Respondent.
Jason Roberts, New Rochelle, NY, pro se.
Opinion
PETER H. MOULTON, J.
Petitioner Jason Roberts brings this petition, pro se, pursuant to CPLR Article 7511(b), for judgment vacating a hearing officer's decision and award, dated February 24, 2014. Pursuant to Education Law § 3020–a, the decision and award found just cause to terminate petitioner's employment with respondent New York City Department of Education (“DOE”). Petitioner seeks to vacate the hearing officer's decision and award on various grounds, including that the charges against him were not properly brought and that the penalty imposed on him was so disproportionate to the misconduct proven as to shock one's sense of fairness.
DOE cross-moves, pursuant to CPLR §§ 404(a), 3211(a)(7) and 7511 for an order dismissing the petition on the following grounds: 1) that petitioner has failed to demonstrate any cause to vacate the hearing officer's determination; 2) that petitioner has failed to establish a denial of due process or lack of jurisdiction; 3) that petitioner cannot challenge the hearing officer's credibility determinations; 4) that petitioner's conclusory allegations of bias are legally and factually insufficient; 5) that petitioner cannot show that the hearing officer exceeded his powers; and finally 6) that the penalty imposed by the hearing officer does not shock one's sense of fairness.
BACKGROUND
Petitioner was a tenured teacher for the DOE employed at P.S. 078, Anne Hutchinson, located in District 11 in the Bronx. As a result of alleged insubordinate conduct, incompetent and ineffective service, neglect of duty, abusive behavior, corporal abuse, and conduct unbecoming of his profession during the 2010 through 2013 school years, the DOE preferred two sets of charges against petitioner pursuant to New York Education Law § 3020–a. The charges brought against petitioner contained 32 specifications, many of which included subparts, charging petitioner with numerous instances of performing unsatisfactory and inappropriate lessons, repeatedly failing to implement administrative directives, engaging in unwanted and unreciprocated physical and verbal contact with co-workers, and engaging in inappropriate conduct with students in and outside of the classroom. Specifically, petitioner was charged with and subsequently found by an arbitrator to have committed some of the following acts: clapping his hands in ridicule as P.S. 078 Principal Claudina Skerritt left his classroom following an observation (Set 1 Specification 2 [9] ); failing to attend post-observation meetings with Principal Skerritt (Set 1 Specification 2[5]-[6] ); showing up late to a meeting he was summoned to and upon arrival stating that he was late because he did not want to miss the opportunity to urinate on himself (Set 1 Specification 4[6] ); hanging up the phone on Principal Skerritt (Set 1 Specification 10[3] ); making a hand gesture with his middle finger towards another teacher (Set 1 Specification 11[1]-[2] ); telling another teacher in sum and substance that he would spare her and her family when bullets fly (Set 1 Specification 16); stating to a teacher words to the effect of “the same knife that cuts the sheep will cut the goat” (Set 1 Specification 16); taking an asthma pump from a student (Set 2 Specification 6[3] ); blowing a whistle directly into a student's ear (Set 2 Specification 1[1] ); telling students in his classroom that they could attack another student and break that student's glasses (Set 2 Specification 2[1]-[3] ); throwing a block of wood at a student (Set 2 Specification 3[4] ); passing gas near students' faces (Set 2 Specification 7[3] ); spitting on a student (Set 2 Specification 10[3] ); and shouting words such as “bitch,” “hell to fucking no,” “suck a goat's ass,” and “white devil” when addressing students, parents, and DOE staff members (Set 2 Specification [A], [B], [C], [F] ). Petitioner was also charged with threatening school officials by stating that “bullets are going to fly” (Set 2 Specification 15).
Respondent scheduled a hearing on the charges pursuant to Education Law § 3020–a. Hearing Officer Joshua M. Javits was appointed as an impartial hearing officer for the matter. A pre-hearing conference went forward on April 25, 2013. Thereafter, evidentiary hearings were held on April 29, and April 30; May 6, 7, 8, 30, and 31; June 3, 24, and 25; July 8 and 12; August 5, 6, and 7; October 24 and 25; and November 27, 2013. The 18–day hearing included testimony by 33 different witnesses who were examined and cross-examined. Closing arguments were presented by both the DOE and petitioner on January 17, 2014. Following the hearing, Hearing Officer Javits rendered a decision and award in the DOE's favor on February 24, 2014 totaling 188 pages, and describing in detail each of the 33 witnesses' testimony and pointing out arguments raised by both the DOE and petitioner with respect to that testimony. Following his analysis, Hearing Officer Javits sustained 28 out of the 32 specifications against petitioner. In reaching his determination, Hearing Officer Javits stated as follows:
The Hearing Officer finds that discharge is the only appropriate remedy in the instant case. The [petitioner]'s harassing and stalking behavior towards Teacher Eileen Mayclim was egregious and disturbing, the Hearing Officer notes. However, the chronic rudeness and contempt that the [petitioner] showed towards the school administration and to his students are beyond the pale. Unfortunately, the [petitioner] demonstrated a defiant, combative, and disrespectful attitude towards his work colleagues that was unacceptable in the workplace. His repeated verbal threats of violence lead the Hearing Officer to conclude that there is no possibility of the [petitioner] being returned to his former position with the Department.
Most troubling is the fact that the [petitioner], instead of accepting responsibility for his actions and showing remorse for his misconduct, dissembled throughout the hearing. In effect, the [petitioner] attacked the credibility of his colleagues and supervisors at the school. He then accused his students of conspiring to fabricate the charges against him. By any measure, [petitioner]'s conduct was disgraceful.
Given that the [petitioner] was a relatively short-term employee of the Department, the Hearing Officer finds that there are no factors in the instant case, which mitigate against the penalty of discharge. The Hearing Officer is fully satisfied that there is an adequate basis for discharge in this case. By his own actions, the [petitioner] prematurely ended his teaching career. It would be entirely irresponsible for the Hearing Officer to allow the [petitioner] to return to work given the egregiousness of his conduct. The Department should not be expected to retain the [petitioner] as a teacher.
Thus, based on the above and the record as a whole, the Hearing Officer finds that termination is not only warranted in this case, but it is, in fact, necessary. (See Matter of the Disciplinary Charges Proffered by the Department of Education of the City School District of the City of New York, Petitioner, against Jason Roberts, Respondent, Pursuant to Education Law § 3020–a, Case No. 21,400, # 21,820 at pp. 187–188).
On March 7, 2014, petitioner commenced the instant Article 75 proceeding seeking to vacate Hearing Officer Javits' decision and award.
DISCUSSION
Education Law § 3020–a[5] provides that review of a hearing officer's decision and award is limited to the grounds set forth in CPLR § 7511 (see Lackow v. Department of Educ. of City of NY, 51 AD3d 563, 567 [1st Dept.2008] ; Austin v. Board of Educ. of City School Dist. of City of NY, 280 A.D.2d 365, 365 [1st Dept.2001] ). “Under CPLR [§ ] 7511, an award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect” (Hackett v. Milbank, Tweed, Hadley & McCloy, 86 N.Y.2d 146, 154–55 [1995] ). As such, there is a very limited scope for judicial review of arbitration awards (see Matter of Blamowski [Munson Transp.], 91 N.Y.2d 190, 194 [1997] ). However, because courts consider disciplinary hearings under Education Law § 3020–a to be a form of compulsory arbitration, the hearing officer's decision and award must have a rational basis and adequate support in the record (see Matter of Hegarty v. Board of Educ. of the City of New York, 5 AD3d 771, 772 [2d Dept.2004] ; Matter of Bernstein (Norwich City School Dist. Board of Educ.), 282 A.D.2d 70, 73 [3d Dept.2001], lv denied 96 N.Y.2d 937 [2001] ; Matter of Fischer v. Smithtown Cent. School Dist., 262 A.D.2d 560, 561 [2d Dept.1999] ).
Petitioner has fallen far short of showing that Hearing Officer Javits' decision and award was irrational. Petitioner's hearing lasted for 18 days and consisted of testimony from 33 different witnesses who underwent direct examination, and subsequent cross-examination. In weighing the testimony of those witnesses, Hearing Officer Javits balanced the arguments each party made before coming to a conclusion with respect to the validity of each specification. For instance, when faced with the charges against petitioner concerning a hand gesture with his middle finger towards another teacher, Hearing Officer Javits had the following discussion:
The Department contends that the [petitioner] continued to taunt and harass Teacher Eileen Mayclim, when on April 27, 2012, the [petitioner] gave Ms. Mayclim “the middle finger.” Ms. Mayclim credibly testified that the [petitioner] held his middle finger to his head and gave her the finger as he walked past her. Several other witnesses, who were present at the time of the incident, including Teacher Samantha Rizzi, corroborated this testimony. According to the Department, the [petitioner]'s defense that he was not giving Ms. Mayclim the finger is simply absurd.
The Department notes that the [petitioner] when given the chance to respond to the allegation during a disciplinary meeting, once again, failed to offer a credible explanation. Even in the letter of rebuttal that he submitted to Principal Skerritt shortly after the incident, the [petitioner] did not mention that he was “scratching his head” as he later claimed in his testimony. Instead, the [petitioner]'s letter of rebuttal claimed that he was holding his cell phone with one hand—was not giving the finger to Ms. Mayclim—at the time of the incident. Quite simply, there is no consistency in the [petitioner]'s story and his version of events should be dismissed, the Department asserts.
The [petitioner] contends that the Department failed to substantiate the instant charges by [a] preponderance of the evidence. The [petitioner] argues that the testimony of Teacher Eileen Mayclim should be dismissed in its entirely as it was biased and motivated by an intense personal dislike of the [petitioner]. He contends that Ms. Mayclim had a personal vendetta against him, as evidenced by the fact that she would often speak of him in a disparaging way ...
The [petitioner] further contends that the testimony of Teachers Samantha Rizzi and Mercedes Benitez should similarly be disregarded by the Hearing Officer. Although both individuals made a number of allegations against the [petitioner], their testimonies were motivated by their hostile personal feelings towards the [petitioner]. The [petitioner] argues that the testimony of Teachers Rizzi and Benitez should be dismissed as it too was motivated by a desire to support their friend, Teacher Eileen Mayclim ...
[T]he Hearing Officer finds that the [petitioner] engaged in the misconduct charged. At the hearing, Teacher Eileen Mayclim credibly testified the [petitioner] held his middle finger to his head and gave her the finger as he walked past her. This evidence was corroborated by another teacher who was present at the time of the incident, Samantha Rizzi, who testified that she saw the [petitioner] give her and Ms. Mayclim the finger as he walked past them in the hallway on April 27, 2012. The Hearing Officer found the testimony of these individuals to be strong and unbiased.
Even if one were to accept the [petitioner]'s assertion that Ms. Mayclim was not a credible witness—an assertion that the Hearing Officer dismisses—the [petitioner] still fails to explain why there were so many other witnesses who strongly corroborated Mayclim's testimony.
In contrast, the [petitioner] in his defense offered up a very weak excuse, claiming that he was probably scratching his head on the day in question and was not giving Ms. Mayclim the finger. His testimony with respect to this evidence was incredible, and, as a result, is discounted by the Hearing Officer (see Matter of the Disciplinary Charges Proffered by the Department of Education of the City School District of the City of New York, Petitioner, against Jason Roberts, Respondent, Pursuant to Education Law § 3020–a, Case # 21,400, # 21,820 at pp. 89–90, 92, and 99–101).
The remainder of Hearing Officer Javits' decision and award contains a similarly thorough analysis of both the specifications that were sustained and those that were denied. Hearing Officer Javits' decision and award carefully evaluates testimony, DOE analyses, and other evidence submitted totaling 1,216 pages. Therefore, it is clear that Hearing Officer Javits' decision and award was rational based on the record that was before him. Petitioner's contention that the record does not support the Hearing Officer Javits' determination is without merit as a matter of law.
Petitioner next claims that his rights to due process were violated because the DOE preferred charges against him without first presenting those charges to an Executive Session for a vote and without notice as to whether probable cause existed to sustain the charges. Despite the fact that the record indicates that petitioner was informed of his right to a hearing, and participated therein, with counsel, in a process which involved a review of a significant amount of evidence and testimony, lasting a total of 18 days, he claims that he was denied due process because charges were not initially reviewed by the governing school board for a finding of probable cause. Education Law § 3020–a [1 ] provides that “[a]ll charges against a person enjoying the benefits of tenure ... shall be in writing and filed with the clerk or secretary of the school district or employing board....” Section 3020–a [2 ][a] requires that:
[u]pon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board itself. Within five days after receipt of charges, the employing board, in executive session, shall determine by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section.
After such a vote, the board must notify the employee of his right to a hearing. Pursuant to Education Law § 3020–a [2 ][c], if the charges involve “pedagogical incompetence or issues involving pedagogical judgment,” the employee is entitled to have the charges heard before “a single hearing officer or a three member panel....” The determination of the hearing officer is to be made within 30 days after the termination of the hearings (N.Y. Educ. Law § 3020–a [4 ][a] ).
An exception is made for charges falling within Education Law § 3012–c, which is not applicable here.
However, respondent points out that strict adherence to the procedures laid out in Education Law § 3020–a [2 ][a] for preferring disciplinary charges has routinely been rejected by the courts (see Haas v. N.Y.C. Bd./Dept of Educ., No. 110190/11. 2012 N.Y. Misc. LEXIS 1590, at * *3–4 [Sup.Ct., N.Y. Cnty. Apr. 2, 2012] [Authorizing hearing officer to conduct Education Law § 3020–a proceeding on the basis of charges preferred by principal of petitioner's school.]; Luft v. N.Y.C. Bd./Dept of Educ., No. 100370/11, 2011 Misc. LEXIS 4129, at *12–13 [Sup.Ct., N.Y. Cnty. Aug. 18, 2011] [“[A]s [B]OE and [petitioner's principal] are authorized to [prefer charges] pursuant to Education Law § 2590–h[38] and § 2590–f[1][b] and [c] respectively, the hearing officer did not exceed her authority in sustaining them.”] ).
When interpreting whether strict adherence to the procedures laid out in Education Law § 3020–a [2 ][a] must be followed, courts have looked to additional provisions of the Education Law for guidance. Whether or not a collective interpretation of the various provisions within the Education Law authorize the Chancellor to delegate powers that originated with an employing board to other officials is irrelevant in this matter, and need not be decided here. A review of the transcript of the eighteen-day § 3020–a hearing reveals that petitioner was afforded all the necessary elements of due process. Throughout his § 3020–a hearing, petitioner was represented by union counsel, received ample notice of the charges against him and a full opportunity to contest them, called witnesses to testify on his behalf, cross-examined witnesses who testified on respondent's behalf, introduced evidentiary exhibits, and testified on his own behalf.
Education Law § 2590–h[38–a] grants the Chancellor the authority to “exercise all of the duties and responsibilities of the employing board as set forth in section three thousand twenty-a of this chapter with respect to any member of the teaching or supervisory staff,” and to “delegate the exercise of all such duties and responsibilities to all of the community superintendents of the city district” (N.Y. Educ. Law § 2590–h[38–a] ) [emphasis added]. Education Law § 2590–h[19] provides “that the Chancellor may [d]elegate any of his or her powers and duties to such subordinate officers or employees as he or she deems appropriate and to modify or rescind any power and duty so delegated” (N.Y. Educ. Law § 2590–h[19] ; see also Rivers v. Board of Educ. of City School Dist. of City of NY, 66 AD3d 410, 410 [1st Dept.2009] ). On April 19, 2011, Chancellor Dennis M. Walcott delegated, pursuant to Education Law § 2590–h[19], the power to initiate and resolve disciplinary charges against teaching and supervisory staff members to community school district superintendents. Education Law § 2590–f authorizes community superintendents to “delegate any of her or his powers and duties to such subordinate officers or employees of her or his community district as she or he deems appropriate, at his or her sole discretion ...” (see N.Y. Educ. Law § 2590–f[1][b] ).
Education Law § 3020–a[2][a] specifically states that an “employing board, in executive session, shall determine by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding” [emphasis added].
Additionally, the court finds no merit in petitioner's contention that the DOE's charging procedures are tantamount to allowing an accuser to make findings of probable cause and therefore deny due process where, as in here, the ultimate fact finder is a neutral decision-maker. The court finds petitioner's due process argument to be utterly without merit.
Also without merit is petitioner's claim that Hearing Officer Javits' decision should be vacated because it relied on “hearsay.” It is well-established that technical adherence to the rules of evidence does not govern hearing procedures (Austin v. Board of Educ. of City School Dist. Of City of NY, 280 A.D.2d 365, 365 [1st Dept.2001] ). As such, it is well within a hearing officer's right to accept hearsay testimony. Indeed, “[h]earsay evidence can be the basis of an administrative determination' and, if sufficiently probative, it may constitute substantial evidence” (Matter of Café La China Corp. v. New York State Liq. Auth., 43 AD3d 280, 281 [1st Dept.2007] [quoting Matter of Gray v. Adduci, 73 N.Y.2d 741, 742 [1988] ). In any event, in this matter several of the witnesses whose testimony was considered by Hearing Officer Javits during the 18–day hearing testified live based on their own observations and were subject to cross-examination. Moreover, in several instances where witnesses testified to matters outside their personal observation or knowledge, their hearsay accounts were subsequently corroborated by the testimony of the observing witnesses. The court therefore finds that Hearing Officer Javits did not exceed his authority by considering hearsay in reaching his ultimate decision.
The vacuity of petitioner's due process challenges is clear. Throughout his § 3020–a hearing, petitioner was represented by union counsel, received ample notice of the charges against him and had a full opportunity to contest the charges, call witnesses on his behalf, and cross-examine the witnesses who testified on respondent's behalf. This court therefore finds no evidence to indicate a denial of petitioner's due process.
Next, petitioner challenges Hearing Officer Javits' decision and award based on petitioner's contention that Hearing Officer Javits made incredible findings and demonstrated bias. As previously noted, however, it is well established that “[a] hearing officer's determinations of credibility ... are largely unreviewable” (Lackow, 51 AD3d at 568 ). Courts have made such determinations, in part, based on the practical reality that a hearing officer has an opportunity to “observe the witnesses and [is] able to perceive ... all the nuances of speech and manner that combine to form an impression of either candor or deception.” (Id. at 568 ; accord Matter of Douglas v. New York City Bd./Dept. of Educ., 87 AD3d 856, 857 [1st Dept.2011] [“The hearing officer who heard the actual testimony from the witnesses, was entitled to weigh the testimony and make independent findings.”] ). When conflicts emerge based on the evidence adduced at a hearing, a court will defer to a hearing officer's credibility determinations, and will not disturb an award that is rationally supported (see Cipollaro v. New York City Dept. of Educ., 83 AD3d 543, 544 [1st Dept.2011] [a hearing officer's determination of conflicting evidence “is entitled to deference”] ).
Here, Hearing Officer Javits had the opportunity to observe and perceive the testimony and demeanor of the witnesses that appeared during petitioner's 18–day hearing. Hearing Officer Javits' 188–page decision and award includes a detailed assessment of the testimony of each witness, balancing everything from their ability to clearly recall past events to their visible demeanor while being questioned. Hearing Officer Javits' credibility determinations here are, therefore, “largely unreviewable,” are not arbitrary and capricious, and in fact are supported by the overwhelming evidence.
Petitioner's similar allegations that the Hearing Officer Javits was biased and not impartial in rendering his final decision are supported by little, if any, specific factual support. As a general matter, “[a] party seeking to set aside an arbitration award for alleged bias of an arbitrator must establish his claim by clear and convincing proof” (Matter of Infosafe Sys. [Int'l Dev. Partners], 228 A.D.2d 272, 272–73 [1st. Dept.1996] ; accord Batyreva v. NYC Dept. of Educ., 95 AD3d 792, 792 [1st Dept.2012] ; Matter of Moran v. New York City Tr. Auth., 45 AD3d 484, 484 [1st Dept.2007] ). Indeed, mere allegations of bias, absent specific references, are not sufficient to vacate an administrative determination (Matter of Moro v. Mills, 70 AD3d 1269, 1270 [3d Dept.2010] ). Bias cannot be inferred merely on account of a petitioner's issue with or different version of events with respect to allegations preferred against him (Bronx–Lebanon Hosp. Ctr. v. Signature Med. Mgmt. Group, 6 AD3d 261, 261 [1st Dept.2004] ).
Here, petitioner alleges in conclusory fashion that Hearing Officer Javits was biased. Indeed, in the entire 188–page decision and award generated by the hearing in this matter, petitioner can only point to one specific allegation of bias by Hearing Officer Javits: the decision to credit a student's account of a stapler being shot into the student's arm over petitioner's account of the same incident. Hearing Officer Javits' ability to assess the credibility of the student witness's account when weighed against petitioner's, as previously noted, is a power within any hearing officer's purview. Thus, petitioner's allegations of bias are speculative at best, and do not meet the “heavy burden of showing arbitrator misconduct or partiality” such that vacatur of an award is warranted (Moran, 45 AD3d at 484 ). Accordingly, the court finds that to the extent that petitioner seeks vacatur of the award on the grounds that Hearing Officer Javits made incredible findings an exhibited partiality, the petition fails to state a cause of action.
The court has considered the petitioner's remaining challenges to the decision and award, and finds that petitioner fails to demonstrate any legally cognizable ground for vacating the hearing officer's decision and award. For instance, petitioner alleges that the hearing officer exceeded his authority by ignoring the requirements of Education Law §§ 3020–a[2][A], 3020–a[4], 2590–h as well as the New York City Charter in assessing the penalty imposed against him. Where such a claim is made, the petitioner must demonstrate that “the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power” (see Bd. of Educ. v. Campbell, No. 400780/09, 2010 N.Y. Misc. LEXIS 2067, at *15–16, 2010 N.Y. Slip Op 31129(U), at * *14–15 [Sup.Ct., N.Y. Cnty. Apr. 14, 2010] [citing Matter of New York City Tr. Auth. v. Transport Workers' Union of Am., Local 100, AFL–CIO, 6 NY3d 332, 336 [2005] ). As such, “[j]udicial intervention on public policy grounds is [, therefore,] permitted only in cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator” ' (Campbell, at *15–16; citing Matter of New York City Tr. Auth. v. Transport Workers' Union of Am., Local 100, AFL–CIO, 99 N.Y.2d 1, 7 [2002] ). Here, petitioner does not specifically allege that Hearing Officer Javits' decision and award violated a strong public policy. Instead, his sole argument is that Hearing Officer Javits “exceeded his authority and misapplied the plain language of the statutory authority binding him.” However, petitioner has not shown that the hearing officer's consideration of charges preferred by a school administrator and his consideration of hearsay evidence violates a strong public policy.
Similarly, petitioner alleges that the penalty of termination in this instance was too harsh and excessive and therefore shocks the judicial conscience and fundamental fairness. The standard of review with respect to that claim is “whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness' “ (see Matter of Pell v. Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 233 [1974] ). Therefore a penalty must be upheld as a matter of law unless it shocks the judicial conscience in such a flagrant manner so as to constitute an abuse of discretion (Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554 [2000] ). In determining whether a penalty is appropriate, the Educational Law requires hearing officers to consider whether adequate measures have been taken to correct the behavior of the employee who charges have been preferred against (N.Y. Educ. Law § 3020–a[4] ). A hearing officer may consider, but is not limited to considering the following means to correct employee behavior: remidiation, peer intervention or an employee assistance plan. Following such considerations, the fact that a teacher has been a long-standing DOE employee does not rule out the ultimate penalty of termination of employment (see Matter of Patterson v. City of New York, 96 AD3d 565, 566 [1st Dept.2012] [upholding a penalty of termination for a petitioner with 10 years of no disciplinary history]; see also Matter of Rogers v. Sherburne–Earlville Cent School Dist., 17 AD3d 823 [3d Dept.2005] ; Matter of Robinson v. City of New York, 33 Misc.3d 1228(A), 2011 N.Y.Misc. LEXIS 5669, at * * *13, * * *20 [Sup.Ct., N.Y. Cnty Nov. 28, 2011] [dismissal warranted and not excessive notwithstanding petitioner's 23 years of satisfactory performance] ).
Here, petitioner argued at his hearing that the length of his tenure should be considered in crafting an appropriate punishment for his alleged actions. The transcript of Hearing Officer Javits' decision and award bears out that petitioner's tenure was considered. However, when balancing that against the fact that petitioner's behavior continued and was widespread, that petitioner received warnings that his conduct was considered inappropriate, and that petitioner showed no contrition for his actions, Hearing Officer Javits decided that termination was an appropriate course of action. In making that determination Hearing Officer Javits specifically made reference to the fact that petitioner had met with the school principal to discuss petitioner's misconduct on prior occasions preceding petitioner's hearing. Moreover, Hearing Officer Javits noted that petitioner's lack of remorse with respect to his actions gave him little reason to believe that petitioner's pattern of egregious behavior would cease were he to continue to teach. As such, in accordance with the measures outlined in § 3020–a[4], Hearing Officer Javits concluded that petitioner's termination was appropriate. Courts have held that conduct that includes a pattern of corporal punishment and verbal abuse is enough to sustain a hearing officer's determination that termination of one's employment does not shock the conscience (see Matter of Camacho v. City of New York, 106 AD3d 574 [1st Dept.2013] ; see also Matter of Haas v. New York City Dept. of Educ., 106 AD3d 620, 620–21 [1st Dept.2013] ). Consequently, petitioner's claims on this ground are without merit. In fact, it would shock the court's conscience if Hearing Officer Javits had reached a different result and afforded petitioner another opportunity to teach.
Moreover, since petitioner fails to demonstrate that the decision and award lacks a rational basis and adequate support in the record, it is confirmed pursuant to CPLR § 7510.
Accordingly, it is
ORDERED and ADJUDGED that respondents' cross motion to dismiss the petition and confirm the arbitration award is granted, the petition is denied, and the proceeding is dismissed; and it is further
ADJUDGED that the decision and award dated February 24, 2014 issued by Joshua M. Javits, Hearing Officer in the Matter of the Disciplinary Charges Proffered by the Department of Education of the City School District of the City of New York, Petitioner, against Jason Roberts, Respondent, Pursuant to Education Law § 3020–a, Case # 21,400, # 21,820 is hereby confirmed in its entirety.