Disciplinary action based on alleged sexual misconduct
2015 NY Slip Op 02418, Appellate Division, First Department
A former teacher [FT] was served with disciplinary charges pursuant to Education Law §3020-a alleging that he “hugged and kissed another teacher at least once a week for two months, despite her continually communicating to him that she did not want him to do this.” This unwanted contact escalated in a later encounter. The arbitrator found FT guilty of sexual misconduct towards another teacher and FT was terminated from his employment.
FT then filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court denied FT’s motion and granted FT’s employer’s cross-motion to dismiss FT's petition and confirmed the arbitration award. The Appellate Division unanimously affirmed the lower court’s ruling, noting that the teacher had told FT several times that she did not want to meet with him and wanted no further contact.
The court held that the hearing officer “reasonably found” that under these circumstances that FT’s asking to embrace the teacher, and telling her to keep things between themselves also constituted misconduct in violation of the [employer’s] sexual harassment policies.”
The Appellate Division ruled that in consideration of the “egregious nature” of FT’s misconduct and the hearing officer's conclusion that FT did not credibly display remorse or an appreciation for the seriousness of his actions, the penalty of termination was appropriate notwithstanding FT's twenty-year satisfactory employment history
In another case involving alleged sexual misconduct, Jane Doe v New York City Department of Education [DOE], 2015 NY Slip Op 02433, it was undisputed that a substitute teacher [ST] and ST’s infant student plaintiff [Plaintiff] had unlawful sexual intercourse at a motel after school hours. The court, however, dismissed Plaintiff’s vicarious liability claim against DOE because ST's alleged conduct was not in furtherance of school business and was outside the scope of his employment.
The court also dismissed Plaintiff’s negligent supervision claim, explaining that the misconduct occurred after school hours and off school premises and that Plaintiff “failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of [ST’s] misconduct or that [ST's] misconduct could reasonably have been anticipated.” Although there was evidence that ST drove Plaintiff and others home from school in violation of a Chancellor regulation, this, said the court, was insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct.
The decision is posted on the Internet at:
The Doe decision is posted on the Internet at:
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