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September 28, 2016

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty


Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty
2016 NY Slip Op 06184, Appellate Division, First Department

The Appellate Division reversed, on the law, Supreme Court’s denial of an CPLR Article 75 petition filed by a teacher seeking an order vacating that part of an arbitration award that terminated his employment as a tenured teacher. The matter was then remanded to the appointing authority for the imposition of a lesser penalty.

The evidence presented at the disciplinary arbitration hearing established that the teacher, an eighth-grade physical education teacher, had initiated conversations with at least two of his female students asking them "if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them" and accepted the phone number of one student's 23 year-old sister.

One student had testified that the teacher’s conduct made her feel "uncomfortable," and another said that his conduct "aggravated" her.

Of the 12 specifications filed against the teacher, the Hearing Officer dismissed five. Finding the teacher guilty of the seven remaining specifications, including an allegation that he had engaged in similar behavior in a previous school year, the hearing officer said that he had found the teacher “to be insufficiently remorseful, that his actions revealed ‘moral failings,’ and that, although termination might be ‘too severe,’ it was the only penalty that could ‘jolt’ [the teacher] into an understanding of the seriousness of his misconduct.”

In view of “all the circumstances of the case, including the lack of any prior allegations of misconduct [filed] against the teacher during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation,” the Appellate Division said that it found the penalty imposed, termination, sufficiently “disproportionate to the offenses to shock the conscience” of the court.

Further, said the court, the teacher had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, “there is no evidence that a warning or reprimand or other penalty short of termination would not have caused [the teacher] to cease the objectionable conduct immediately.”

The Appellate Division panel adjudicating this appeal, Justice Tom dissenting, said although it shared some of Justice Tom’s concern regarding the teacher’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, it did not agree that the law supports imposing the penalty of termination “at this time.”

The court noted that the Hearing Officer found only that the teacher had made "inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher." Further, said the majority, the Hearing Officer did not find that the teacher actually intended to, or did, have any “romantic/sexual interactions” with anyone nor was there any evidence that the teacher “had made any sexual comments to his students.”

In the words of the majority, the teacher “showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education,” explaining that its decision does not excuse the teacher’s behavior but merely directs imposing “a less serious punishment.”

However, warned the majority, should such behavior continue, termination of the teacher “may well be in order in the future.”

The decision is posted on the Internet at:

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