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June 03, 2020

Court sustains dismissal of a teacher found to have placed a student at serious risk of harm

A teacher [Plaintiff] employed by the New York City Department of Education [DOE] was served with disciplinary charges and specifications pursuant to Education Law §3020-a. The arbitrator found Plaintiff guilty of having had a physical altercation with a student and the penalty imposed on the teacher was dismissal from his position.

Plaintiff then filed an appeal pursuant to CPLR Article 75 in Supreme Court challenging his termination from his position. Finding that the penalty imposed, dismissal, was disproportionate to Plaintiff's offense, Supreme Court vacated the penalty set in the arbitration award and remanding the matter to DOE to provide for a hearing before a different arbitrator, who would then issue a new penalty determinationDOE appealed Supreme Court's ruling and the Appellate Division unanimously vacated the lower court's decision on the law.


The Appellate Division, noting that Plaintiff did not contest the  arbitrator's finding at his disciplinary hearing that he had punched a student twice in the head or face while physically removing him from the classroom, said that the record demonstrates that the arbitrator considered all the circumstances, including the fast-developing situation necessitating the student's removal from the classroom and generally credited Plaintiff's testimony. 


The court concluded that regardless of whether or not the arbitrator erred in finding that Plaintiff's denial of having thrown punches precluded a finding of remorse, the record showing minor injuries to the student, and a separate finding by the arbitrator that Plaintiff's actions put the student at serious risk of harm, supports imposing the penalty of dismissal based on the Plaintiff's use of excessive force.

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, the Appellate Division opined that "Contrary to Supreme Court's finding, the penalty of termination of [Plaintiff's] employment was not so disproportionate to his offense as to shock one's sense of fairness" and reinstated the penalty  initially imposed on Plaintiff by the arbitrator, dismissal from his position. 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_02893.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

 Determining an appropriate disciplinary penalty to be imposed on an employee
 in the public service found guilty of misconduct or incompetence.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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