Thursday, July 18, 2013

Employee’s two-day suspension without pay ruled “beyond arbitrary” under the circumstances

Employee’s two-day suspension without pay ruled “beyond arbitrary” under the circumstances
2013 NY Slip Op 51145(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

In this Article 78 Proceeding, the Petitioner asked Supreme Court to annul and rescind the New York City Department of Education’s [DOE] determination that she had administered corporeal punishment to a student and her being suspended without pay for two days as a result of that determination. In addition, Petitioner asked the court [1] to compel DOE “to expunge their files” concerning the event leading to Petitioner’s suspension and [2] her award of back pay and other benefits lost.

The genesis of this action was Petitioner’s receiving a letter from the school principal [Principal] scheduling an appointment to investigate an allegation of corporal punishment made by a parent of one of the students in Petitioner’s class. Petitioner denied the allegations that she had administered corporal punishment to the child.

Principal then notified Petitioner that she was going to refer the allegations to the DOE's Office of Special Investigations [OSI] and Petitioner submitted a written response to Principal in which Petitioner again denied the allegations.

At the conclusion of the school year, Principal told Petitioner that DOE's OSI had not rendered a decision regarding the allegations of corporal punishment nor did the record submitted to Supreme Court contain any information about any investigation or determination by OSI. Subsequently, however, Principal informed Petitioner that she had investigated the complaint, which included interviews with the child’s mother, interviews with students in Petitioner's class who wrote “witness statements,” and the classroom teacher.

The Principal sent Petitioner a “Suspension Letter” stating that:

I have evaluated all of the investigatory results, including your response … and conclude that after completing the investigation, a specific date of occurrence could not be determined. I also could not determine whether or not you have pulled [[the child] by the his neck or shoulders, or pushed him on his back [as his mother alleged]. However based on statements made by some of the students in the class, I conclude that you have grabbed [the student] by the arm and pulled on his sleeves in the past.  

Principal then suspended Petitioner for two days without pay.

After addressing a number of procedural issued, Supreme Court Judge Manuel J. Mendez address the merits of Petitioner’s appeal, finding:

1. The Suspension Letter, the only documentation supplied to the Court recording “DOE's decision,” states that the Principal “was not able to determine the truth regarding any of the allegations made by [the pupil] and his mother.”

2. The Principal’s decision concerning the allegations of corporal punishment were based on the written statements of eight students and the record is silent as to how her discussion with the teacher “factored into her decision.”

3. Seven of the eight written statements submitted by DOE in these proceedings written by “2nd grade special education students ‘include translations' at the bottom whereby someone took it upon themselves to interpret what the unnamed individual concludes the children meant to say.”

4. Four of the seven letters “clearly and unequivocally” state Petitioner never touched the student while three statements mention physical contact between Petitioner and the student, two which state that Petitioner grabbed the student’s arm and the third stated that Petitioner grabbed the student’s clothes. The court noted that there was no description, context, or explanation accompanied these statements.

The court’s conclusion:  “those three written statements were enough for [the principal] to substantiate allegations of corporal punishment against Petitioner and reflect such in Petitioner's permanent record with the DOE.”

Judge Mendez opined that for the Principal to substantiate allegations of corporal punishment against Petitioner based solely on what “those three children wrote at someone else's prompting,” after she was unable to determine any truth to the original allegations, “is beyond arbitrary.”

Judge Mendez annulled the letter substantiating allegations of corporal punishment against Petitioner and ordered DOE to expunge all reference to the “Suspension Letter” determination, and anything else referring to it, from its files, “including, but not limited to, any reference to a substantiated allegation of corporal punishment and the two day suspension.” The court then directed DOE pay Petitioner two-days back pay and other benefits lost as a result of Petitioner's two-day suspension. 

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51145.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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