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Monday, August 20, 2018

How To Win a 3020-a Hearing

UFT General Counsel Adam Ross, UFT President Mike Mulgrew, former
Chancellor Carmen Farina, and former NYC DOE General Counsel
Courtenaye Jackson-Chase
As I have said many times on this blog for the past 11 years, 3020-a arbitration can be won, if you have a strong defense. My definition of a "win" is an Award of complete exoneration, a small fine, a short suspension, or a reprimand. A loss is anything else, which includes a long suspension, a fine $10,000 or above, and termination. This is a general guideline, because if a Respondent has been fined let's say $2,000 and wants to appeal because the charges were false on their face and the arbitrator was biased or did not make a good faith effort to be impartial, then we will fight the fine.

My suggestion is that every employee must take action to preserve his/her record and job starting right now, even if there is no sign that anyone is - or will - target you. All NYC Department of Education employees should consider what he/she would do when or if charged with either incompetency or misconduct WAY BEFORE any charges are served.

Here are some of my guidelines for establishing a strong defense against any charges brought against you. Again, I am not an attorney, but I have participated in 70 cases of 3020-a arbitration, and won most of the cases:

Remember these warnings:

*If you retire after being charged but before you go through the hearing, your license is terminated and the charges stay on your record.

*If you settle you cannot sue the NYC DOE for any action taken up to the date of signing, and you cannot appeal.

*If you do not testify at the hearing you will be terminated.

*As the 3020-a hearing process is not based upon the rules, laws, and regulations which you are told to rely on, you must do a lot of work on discovering the secret deals made by the UFT and the NYC DOE which have changed the way cases are done in New York City as opposed to elsewhere in New York State. For example, the charging papers for 3020-a have a page included in the packet served on a Respondent (tenured teacher) saying that probable cause for 3020-a charges have been determined at an Executive Session of the Panel For Educational Policy, the NYC school board. But there will be no date for an Executive Session listed in the papers served. (See the law, below). Outside of NYC the omission of a vote in Executive Session of the school board is grounds to dismiss the 3020-a. I know, I've done that.

There is no date because in NYC there was no Executive Session or vote on the probable cause. The UFT/NYSUT and NYC DOE want the hearings to be under their total control, and want the hearings to proceed quickly, so the right to a vote in Executive Session pursuant to Education Law 3020-a(2)(a) was waived, secretly, without the knowledge or consent of the employee who is served charges. For this reason a plethora of substitutions/excuses for the missing dates will be given, but the bottom line is that NYSUT will not argue in favor of an Executive Session and vote on probable cause. In my opinion, this action harms all charged employees and I always submit a Motion To Dismiss with supporting exhibits in every hearing.

See my post on this blog about a secret meeting held at NYC DOE headquarters on February 24, 2015. At this meeting for all NYSUT Attorneys and all arbitrators, former Chancellor Carmen Farina spoke about the need for speed and called all the assembled people her "army".

I filed a Freedom of Information request for all the paperwork on this meeting after an arbitrator on the incompetency panel told me about it.

In fact, NYSUT may pursue a probable cause hearing so that the Respondent/you can be taken off salary for two or more months. We have put a stop to these hearings, at least for now - we heard that the NYC DOE and NYSUT are looking for an arbitrator to hearing these cases brought to probable cause. I have sent the right questions to the right people about why these hearings are illegal.

*document everything. Write down in a journal everything that happens every day, and I am not kidding. When you get home from school, write down everything that you remember, everyone who entered your class, anything unusual and whatever lesson you were doing.

*If you are an ATR you are rated S/U. In NYC, the growing number of Absent Teacher Reserve (ATRs), speech teachers, and teachers of pre-k are all rated on the S/U APPR, not Danielson. So, the following procedure for formal observations stands. See Teaching For The 21st Century, Component B:



A recent arbitration ruling with significance for more than 5,000 teachers reinforces the UFT position that principals must conduct separate pre-observation and post-observation conferences when formally observing UFT members who are still rated under the Satisfactory/Unsatisfactory system.
Arbitrator Marlene Gold found that a principal’s acknowledged, so-called practice of making the post-conference for one formal observation the pre-observation conference for the next violated the UFT-DOE contract. Her ruling stressed the “clear and unambiguous” language of the contract regarding the need for separate and distinct conferences before and after a formal observation.
The arbitrator relied upon the testimony of UFT representatives when ruling that a preobservation conference must focus on the specific content of the lesson to be observed and the areas to be evaluated.
Gold ordered the formal observation report in question removed from the file of the teacher who filed the grievance. She also said that it could not be considered in determining the teacher’s overall rating for that school year.
UFT Grievance Director Ellen Gallin- Procida said the arbitrator’s ruling was important “because it confirms the different, but equally important roles of the pre- and post-observation conferences in supporting a teacher’s professional growth.”
The principal also acknowledged at the arbitration hearing that she did not announce formal observations in advance — another violation, according to Gold.
With respect to the principal’s lack of notice, Gallin-Procida said the arbitrator’s ruling “confirms that a formal observation is one where the teacher knows in advance when an administrator is coming.”
UFT members most affected by the arbitration decision include speech and pre-K teachers and teachers in the Absent Teacher Reserve and others not covered by the Advance teacher evaluation system.
Mindy Karten Bornemann, the speech improvement chapter leader, said she was delighted with the unambiguous language of the ruling. “The pre-observation conference gives our members the opportunity to discuss their lesson prior to their formal observation so they can do their very best,” she said.
UFT-DOE Agreement on rubber rooms April 15, 2010

*If you are not an ATR but a full-time tenured employee, then you must fight the Danielson rating rubrics. There is a way to overcome the 60% given to observation ratings in the HEDI score.

*rebut all observations, letters to file, counseling memos, letters, emails.

*grieve all end-of-year ratings that are "ineffective"; rebut any "developing ratings.

*secretly tape all meetings/conversations with the administration, including observation feedback meetings. (I am not a lawyer, but would never advise anyone to violate a law! In New York State, a one-party state, it is legal to secretly tape anyone with whom you are in a conversation).

*decide who you want to represent you at a 3020-a, if you are charged. You have a choice as to whether or not you have a NYSUT Attorney or a private Attorney speak for you in these hearings. You can also go pro se and do it yourself, but if you are thinking about doing that, you need to have an advocate with you who can help with procedures. Some arbitrators are vicious and don't want to arbitrate a hearing with the Respondent representing him/herself. Call around, speak with people and go with someone who puts you first and wants to involve you in the process.

*ask for an open and public hearing to make sure that you have people who can watch the proceedings. Anyone who is a potential witness cannot be an observer, too.

*choose witnesses to testify for you, have your attorney subpoena them if they are currently working for the NYC DOE.

*when proceeding with the hearing, be a partner with the Attorney and/or legal team. Give all information about anything and everything that you think shows the false allegations and the true allegations. Admitting to something that you did is good, within a comprehensive examination of all the evidence and facts. Credibility is very important, and not appealable.

*ask your legal team/representative to send you all transcripts when they are emailed so you can spot any errors, as well as assist in making closing arguments.

*give your legal team points that you want to have in the hearing itself, or argued at closing, including any misconduct of the principal or other administrators.

Think about it. Your career is about to be changed without your consent. Don't let that happen.

Betsy Combier
 betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Education Law
Title IV  Teachers and Pupils
Article 61  Teachers and Supervisory and Administrative Staff

NY CLS Educ § 3020-a  (2015)

§ 3020-a.  Disciplinary procedures and penalties
1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.
2. Disposition of charges.
     a. Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. 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. If such determination is affirmative, a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.
     b. The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical abuse of a minor or student.
     c. Where charges of misconduct constituting physical or sexual abuse of a student are brought on or after July first, two thousand fifteen, the board of education may suspend the employee without pay pending an expedited hearing pursuant to subparagraph (i-a) of paragraph c of subdivision three of this section. Notwithstanding any other law, rule, or regulation to the contrary, the commissioner shall establish a process in regulations for a probable cause hearing before an impartial hearing officer within ten days to determine whether the decision to suspend an employee without pay pursuant to this paragraph should be continued or reversed. The process for selection of an impartial hearing officer shall be as similar as possible to the regulatory framework for the appointment of an impartial hearing officer for due process complaints pursuant to section forty-four hundred four of this chapter. The hearing officer shall determine whether probable cause supports the charges and shall reverse the decision of the board of education to suspend the employee without pay and reinstate such pay upon a finding that probable cause does not support the charges. The hearing officer may also reinstate pay upon a written determination that a suspension without pay is grossly disproportionate in light of all surrounding circumstances. Provided, further, that such an employee shall be eligible to receive reimbursement for withheld pay and accrued interest at a rate of six percent compounded annually if the hearing officer finds in his or her favor, either at the probable cause hearing or in a final determination pursuant to the expedited hearing held pursuant to subparagraph (i-a) of paragraph c of subdivision three of this section. Any suspension without pay shall last no longer than one hundred and twenty days from the decision of the board of education to suspend the employee without pay and such suspension shall only relate to employee compensation, exclusive of other benefits and guarantees. Notwithstanding any other provision of law or regulation to the contrary, any provision of a collective bargaining agreement entered into by the city of New York as of April first, two thousand fifteen, that provides for suspension without pay for offenses as specified in this paragraph shall supersede the provisions hereof and shall continue in effect without modification and may be extended.
     d. The employee shall be terminated without a hearing, as provided for in this section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of paragraph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter.
   <1>
     e.  (i) For hearings commenced by the filing of charges prior to July first, two thousand fifteen, within ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges and when the charges concern pedagogical incompetence or issues involving pedagogical judgment, his or her choice of either a single hearing officer or a three member panel, provided that a three member panel shall not be available where the charges concern pedagogical incompetence based solely upon a teacher's or principal's pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article. All other charges shall be heard by a single hearing officer.
         (ii) All hearings commenced by the filing of charges on or after July first, two thousand fifteen shall be heard by a single hearing officer.
     <1>f. The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing. Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee's notice or request for a hearing, notify the commissioner of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.
3. Hearings.
     a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to provide to the commissioner forthwith a list of names of persons chosen by the association from the association's panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner shall forthwith send a copy of both simultaneously to the employing board and the employee. The commissioner shall also simultaneously notify both the employing board and the employee of each potential hearing officer's record in the last five cases of commencing and completing hearings within the time periods prescribed in this section.
     b.  (i) Hearing officers. All hearings pursuant to this section shall be conducted before and by a single hearing officer selected as provided for in this section. A hearing officer shall not be eligible to serve in such position if he or she is a resident of the school district, other than the city of New York, under the jurisdiction of the employing board, an employee, agent or representative of the employing board or of any labor organization representing employees of such employing board, has served as such agent or representative within two years of the date of the scheduled hearing, or if he or she is then serving as a mediator or fact finder in the same school district.
             (A) Notwithstanding any other provision of law, for hearings commenced by the filing of charges prior to April first, two thousand twelve, the hearing officer shall be compensated by the department with the customary fee paid for service as an arbitrator under the auspices of the association for each day of actual service plus necessary travel and other reasonable expenses incurred in the performance of his or her duties. All other expenses of the disciplinary proceedings commenced by the filing of charges prior to April first, two thousand twelve shall be paid in accordance with rules promulgated by the commissioner. Claims for such compensation for days of actual service and reimbursement for necessary travel and other expenses for hearings commenced by the filing of charges prior to April first, two thousand twelve shall be paid from an appropriation for such purpose in the order in which they have been approved by the commissioner for payment, provided payment shall first be made for any other hearing costs payable by the commissioner, including the costs of transcribing the record, and provided further that no such claim shall be set aside for insufficiency of funds to make a complete payment, but shall be eligible for a partial payment in one year and shall retain its priority date status for appropriations designated for such purpose in future years.
             (B) Notwithstanding any other provision of law, rule or regulation to the contrary, for hearings commenced by the filing of charges on or after April first, two thousand twelve, the hearing officer shall be compensated by the department for each day of actual service plus necessary travel and other reasonable expenses incurred in the performance of his or her duties, provided that the commissioner shall establish a schedule for maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed.
         (ii) The commissioner shall mail to the employing board and the employee the list of potential hearing officers and biographies provided to the commissioner by the association, the employing board and the employee, individually or through their agents or representatives, shall by mutual agreement select a hearing officer from said list to conduct the hearing and shall notify the commissioner of their selection.
         (iii) Within fifteen days after receiving the list of potential hearing officers as described in subparagraph (ii) of this paragraph, the employing board and the employee shall each notify the commissioner of their agreed upon hearing officer selection. If the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list. The provisions of this subparagraph shall not apply in cities with a population of one million or more with alternative procedures specified in section three thousand twenty of this article.
         (iv) In those cases commenced by the filing of charges prior to July first, two thousand fifteen in which the employee elects to have the charges heard by a hearing panel, the hearing panel shall consist of the hearing officer, selected in accordance with this subdivision, and two additional persons, one selected by the employee and one selected by the employing board, from a list maintained for such purpose by the commissioner. The list shall be composed of professional personnel with administrative or supervisory responsibility, professional personnel without administrative or supervisory responsibility, chief school administrators, members of employing boards and others selected from lists of nominees submitted to the commissioner by statewide organizations representing teachers, school administrators and supervisors and the employing boards. Hearing panel members other than the hearing officer shall be compensated by the department at the rate of one hundred dollars for each day of actual service plus necessary travel and subsistence expenses. The hearing officer shall be compensated as set forth in this subdivision. The hearing officer shall be the chairperson of the hearing panel.
     c. Hearing procedures.
         (i)  (A) The commissioner shall have the power to establish necessary rules and procedures for the conduct of hearings under this section.
             (B) The department shall be authorized to monitor and investigate a hearing officer's compliance with statutory timelines pursuant to this section. The commissioner shall annually inform all hearing officers who have heard cases pursuant to this section during the preceding year that the time periods prescribed in this section for conducting such hearings are to be strictly followed. A record of continued failure to commence and complete hearings within the time periods prescribed in this section shall be considered grounds for the commissioner to exclude such individual from the list of potential hearing officers sent to the employing board and the employee for such hearings.
             (C) Such rules shall not require compliance with technical rules of evidence. Hearings shall be conducted by the hearing officer selected pursuant to paragraph b of this subdivision with full and fair disclosure of the nature of the case and evidence against the employee by the employing board and shall be public or private at the discretion of the employee and provided further that the hearing officer, at the pre-hearing conference, shall set a schedule and manner for full and fair disclosure of the witnesses and evidence to be offered by the employee. The employee shall have a reasonable opportunity to defend himself or herself and an opportunity to testify in his or her own behalf. The employee shall not be required to testify. Each party shall have the right to be represented by counsel, to subpoena witnesses, and to cross-examine witnesses. All testimony taken shall be under oath which the hearing officer is hereby authorized to administer. A child witness under the age of fourteen may be permitted to testify through the use of live, two-way closed-circuit television, as such term is defined in subdivision four of section 65.00 of the criminal procedure law, when the hearing officer, after providing the employee with an opportunity to be heard, determines by clear and convincing evidence that such child witness would suffer serious mental or emotional harm which would substantially impair such child's ability to communicate if required to testify at the hearing without the use of live, two-way closed-circuit television and that the use of such live, two-way closed-circuit television will diminish the likelihood or extent of such harm. In making such determination, the hearing officer shall consider any applicable factors contained in subdivision ten of section 65.20 of the criminal procedure law. Where the hearing officer determines that such child witness will be permitted to testify through the use of live, two-way closed-circuit television, the testimony of such child witness shall be taken in a manner consistent with section 65.30 of the criminal procedure law.
             (D) An accurate record of the proceedings shall be kept at the expense of the department at each such hearing in accordance with the regulations of the commissioner. A copy of the record of the hearings shall, upon request, be furnished without charge to the employee and the board of education involved. The department shall be authorized to utilize any new technology or such other appropriate means to transcribe or record such hearings in an accurate, reliable, efficient and cost-effective manner without any charge to the employee or board of education involved.
         (i-a)  (A) <1><2><3>Where charges of misconduct constituting physical or sexual abuse of a student are brought, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which shall commence within seven days after the pre-hearing conference and shall be completed within sixty days after the pre-hearing conference. The hearing officer shall establish a hearing schedule at the pre-hearing conference to ensure that the expedited hearing is completed within the required timeframes and to ensure an equitable distribution of days between the employing board and the charged employee. Notwithstanding any other law, rule or regulation to the contrary, no adjournments may be granted that would extend the hearing beyond such sixty days, except as authorized in this subparagraph. A hearing officer, upon request, may grant a limited and time specific adjournment that would extend the hearing beyond such sixty days if the hearing officer determines that the delay is attributable to a circumstance or occurrence substantially beyond the control of the requesting party and an injustice would result if the adjournment were not granted.
             (B) The commissioner shall annually inform all hearing officers who have heard cases pursuant to this section during the preceding year that the time periods prescribed in this subparagraph for conducting expedited hearings are to be strictly followed and failure to do so shall be considered grounds for the commissioner to exclude such individual from the list of potential hearing officers sent to the employing board and the employee for such expedited hearings.
         (ii) The hearing officer selected to conduct a hearing under this section shall, within ten to fifteen days of agreeing to serve in such position, hold a pre-hearing conference which shall be held in the school district or county seat of the county, or any county, wherein the employing school board is located. The pre-hearing conference shall be limited in length to one day except that the hearing officer, in his or her discretion, may allow one additional day for good cause shown.
         (iii) At the pre-hearing conference the hearing officer shall have the power to:
             (A) issue subpoenas;
             (B) hear and decide all motions, including but not limited to motions to dismiss the charges;
             (C) hear and decide all applications for bills of particular or requests for production of materials or information, including, but not limited to, any witness statement (or statements), investigatory statement (or statements) or note (notes), exculpatory evidence or any other evidence, including district or student records, relevant and material to the employee's defense.
         (iv) Any pre-hearing motion or application relative to the sufficiency of the charges, application or amendment thereof, or any preliminary matters shall be made upon written notice to the hearing officer and the adverse party no less than five days prior to the date of the pre-hearing conference. Any pre-hearing motions or applications not made as provided for herein shall be deemed waived except for good cause as determined by the hearing officer.
         (v) In the event that at the pre-hearing conference the employing board presents evidence that the professional license of the employee has been revoked and all judicial and administrative remedies have been exhausted or foreclosed, the hearing officer shall schedule the date, time and place for an expedited hearing, which hearing shall commence not more than seven days after the pre-hearing conference and which shall be limited to one day. The expedited hearing shall be held in the local school district or county seat of the county or any county, wherein the said employing board is located. The expedited hearing shall not be postponed except upon the request of a party and then only for good cause as determined by the hearing officer. At such hearing, each party shall have equal time in which to present its case.
         (vi) During the pre-hearing conference, the hearing officer shall determine the reasonable amount of time necessary for a final hearing on the charge or charges and shall schedule the location, time(s) and date(s) for the final hearing. The final hearing shall be held in the local school district or county seat of the county, or any county, wherein the said employing school board is located. In the event that the hearing officer determines that the nature of the case requires the final hearing to last more than one day, the days that are scheduled for the final hearing shall be consecutive. The day or days scheduled for the final hearing shall not be postponed except upon the request of a party and then only for good cause shown as determined by the hearing officer. In all cases, the final hearing shall be completed no later than sixty days after the pre-hearing conference unless the hearing officer determines that extraordinary circumstances warrant a limited extension.
         (vii) All evidence shall be submitted by all parties within one hundred twenty-five days of the filing of charges and no additional evidence shall be accepted after such time, absent extraordinary circumstances beyond the control of the parties.
     d. Limitation on claims. Notwithstanding any other provision of law, rule or regulation to the contrary, no payments shall be made by the department pursuant to this subdivision on or after April first, two thousand twelve for: (i) compensation of a hearing officer or hearing panel member, (ii) reimbursement of such hearing officers or panel members for necessary travel or other expenses incurred by them, or (iii) for other hearing expenses on a claim submitted later than one year after the final disposition of the hearing by any means, including settlement, or within ninety days after the effective date of this paragraph, whichever is later; provided that no payment shall be barred or reduced where such payment is required as a result of a court order or judgment or a final audit.
4. Post-hearing procedures.
     a. The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing, and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board. The written decision shall include the hearing officer's findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer <1>may consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions. Provided, however, that the hearing officer, in exercising his or her discretion, shall give serious consideration to the penalty recommended by the employing board, and if the hearing officer rejects the recommended penalty such rejection must be based on reasons based upon the record as expressed in a written determination.
     b. Within fifteen days of receipt of the hearing officer's decision the employing board shall implement the decision. If the employee is acquitted he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph b of subdivision two of this section, has said conviction reversed, the employee, upon application, shall be entitled to have his or her pay and other emoluments restored, for the period from the date of his or her suspension to the date of the decision.
     c. The hearing officer shall indicate in the decision whether any of the charges brought by the employing board were frivolous as defined in section eighty-three hundred three-a of the civil practice law and rules. If the hearing officer finds that all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges. If the hearing officer finds that some but not all of the charges brought against the employee were frivolous, the hearing officer shall order the employing board to reimburse the department a portion, in the discretion of the hearing officer, of the reasonable costs said department incurred as a result of the proceeding and to reimburse the employee a portion, in the discretion of the hearing officer, of the reasonable costs, including but not limited to reasonable attorneys' fees, the employee incurred in defending the charges.
5. Appeal.
     a. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.
     b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
 

Sunday, August 12, 2018

Former Teacher John Leftridge Loses His Termination Appeal

NYC Teacher John Leftridge Lost His Job at 3020-a, Appealed, and Lost His Appeal
The Leftridge case is full of surprises, with laws, procedures, and evidence ignored. Perhaps his representatives did bad jobs, too. Nonetheless, it seems that he claimed medical issues, and that the principal held onto his medical records and then did not properly submit these records for medical accommodation.
     
Arbitrator David Reilly's 3020-a Decision
NYC Law Department letter Motion To Dismiss
Judge's ORDER
3020-a Arbitrator Michael Lendino's Opinion and Award
Leftridge Verified Petition by Attorney Jordan Harlow
NYC Department of Education Memorandum of Law in Support of the Motion To Dismiss
Leftridge Affirmation


Case Digest Summary

Teacher Leftridge was charged with incompetence; the matter was referred to a hearing officer (HO) who sustained the charges and imposed a termination penalty--found appropriate as Leftridge failed to acknowledge his own deficiencies or need to correct his pedagogy. HO concluded DOE established there was a deficiency in Leftridge's pedagogy, and despite DOE's attempts he was still incompetent. While HO acknowledged Leftridge experienced unfortunate personal issues, no medical evidence was introduced to substantiate his depression adversely impacted his performance, nor did he take a leave of absence. HO claimed Leftridge's status as an ineffective teacher was due to his failure to follow that learned through professional development. The court found while Leftridge focused on his supervisors' actions, he failed to dispute observation reports' facts finding his teaching performance incompetent--the deficiencies in his pedagogy was similar in each report. HO found Leftridge was provided ample opportunities to improve and he failed to use the resources given him, thus, the penalty of termination did not shock the conscience, and dismissal of the petition was granted.
In the Matter of the Application of John Leftridge, Petitioner
v.
The City of New York, New York City Department of Education, Carmen Farina, Chancellor of New York City Department of Education, Respondents

For a Judgment Pursuant to Article 75 of the Civil Practice Law and Rules
DECISION, ORDER & JUDGMENT
 The cross-motion to dismiss the petition is granted and this proceeding is dismissed.
Background
This proceeding arises out of petitioner’s employment as a teacher for respondent New York City Department of Education (“DOE”). Petitioner started working as a teacher in 2001 and worked as a gym teacher for over a decade until he was moved into the classroom in the 2013-2014 school year. Shortly after being assigned to a classroom, petitioner was moved from P.S. 93 to P.S. 3 while charges against him were resolved. In the 2014-2015 school year, petitioner was moved back to P.S. 93.
Petitioner was charged with incompetence and misconduct during the 2014-2015, 2015-2016 and 2016-2017 school years. The matter was assigned to a Hearing Officer who, after hearing testimony from both sides, sustained the charges against petitioner and imposed a penalty of termination. The Hearing Officer found that the Principal and Assistant Principal, both of whom evaluated petitioner’s performance as a teacher, were “credible and convincing witnesses” (NYSCEF Doc. No. 15 at 40). The Hearing Officer concluded that “the Department has established that there was a deficiency in [petitioner's] pedagogy. Second, the [petitioner] was on notice of the deficiency through observations, post-observation meetings with administrators, and the Department’s remediation efforts. Third, as stated above, the Department attempted to remediate [petitioner's] deficiency. Finally, the Department has established that despite the remediation, the [petitioner] is still incompetent” (id. at 41).
The Hearing Officer acknowledged that petitioner experienced unfortunate personal issues, including the death of his father, which caused him to suffer from anxiety and depression (id. at 40). But the hearing officer observed that”[n]o medical or other evidence was introduced to substantiate that [petitioner's] depression was such that it could have adversely impacted his performance” and that he should have requested a leave of absence, which he did not do (id.).
The Hearing Offer asserted that petitioner’s status as “an ineffective teacher was a consequence of his failing to follow what he learned though professional development” (id. at 41). Termination was found to be the appropriate penalty because petitioner “did not acknowledge his own deficiencies or need to correct his pedagogy” and petitioner “did nothing to improve his pedagogy and did not teach” (id. at 43). The Hearing Officer added that petitioner’s “lack of participation in the observation conferences and his failure to improve his pedagogy demonstrate that [petitioner] is unwilling or unable to improve his pedagogy” and that there was no reason to provide petitioner with another opportunity to improve (id.).
Discussion
“Education Law §3020-a(5) provides that judicial review of a hearing officer’s findings must be conducted pursuant to CPLR 7511. Under such review an award may only be vacated on a showing of misconduct bias, excess of power or procedural defects” (Lackow v. Dept. of Educ. [or Board] of City of New York, 51 AD3d 563, 567, 859 NYS2d 52 [1st Dept 2008]) [internal quotations and citation omitted]. “[W]here the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration” (id. at 567). The hearing officer’s “determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78. The party challenging an arbitration determination has the burden of showing its invalidity” (id. at 567-68). To overturn a penalty of termination the punishment must shock’s one sense of fairness (Matter of Davies v. New York City Dept. of Educ., 117 AD3d 446, 447, 985 NYS2d 76 [1st Dept 2014]).
A Hearing Officer’s decision is not arbitrary or capricious where the “Hearing Officer engaged in a [thorough] analysis of the facts and circumstances, evaluated witnesses’ credibility, and arrived at a reasoned conclusion” (Matter of Davis v. New York City Bd./Dept. of Educ., 137 AD3d 716, 717, 30 NYS3d 2 [1st Dept 2016]).
Petitioner claims that the Hearing Officer failed to take into account that the principal was out to get him and that he endured substantial hostility while working at P.S. 93. Petitioner stresses that the was provided with no support to run an effective classroom and he was targeted for holding a leadership position with his union.
While petitioner focuses on the actions of his supervisors and others, he fails to dispute the fact that the observation reports of his teaching performance found that he was an incompetent teacher. Those observation reports highlighted petitioner’s inability to properly effectuate a lesson plan. For instance, petitioner was told “there was little or no monitoring of student learning” and “No guidance for their improvement was offered so how could they be aware of an assessment criteria?” (NYSCEF Doc. No. 17 [Observation on March 31, 2015]). Another observation report stated “You displayed little understanding of prerequisite knowledge important to student learning of the content” and “No evidence of learning activities were planned to reflect subtraction as per your submitted lesson plan” (id. [Observation on October 7, 2015]).
The fact is that petitioner was rated ineffective on countless components throughout the school years in question. The detailed observation reports evidenced specific criticisms of petitioner’s teaching ability rather than a principal “out to get petitioner.” The deficiencies in petitioner’s pedagogy were similar in each observation report-petitioner was unable to manage student behavior, he did not challenge students’ reasoning for their responses, his lesson plans were poor and the objectives for each lesson were poorly executed.
The Penalty Does not Shock the Conscience
“[T]he mere fact that a penalty is harsh, and imposes severe consequences on an individual, does not so affront our sense of fairness that it shocks the conscience, unless it is obviously disproportionate to the misconduct and in contravention of the public interest and policy reflected in the agency’s mission” (Bolt v. New York City Dept. of Educ., 2018 WL 341034, *3, 2018. NY Slip Op 00090 [2018] [Rivera, J., concurring]). A “court’s review is limited to considering the proportionality of the sanction to the individual’s misconduct, including the potential impact on the agency and its interest in deterrence, and whether the sanction appears to minimize or trivialize the individual’s conduct” (id.).
The Hearing Officer found that petitioner was provided with ample opportunities to improve and that petitioner did not utilize the resources provided to him. In fact, the Hearing Officer stressed that petitioner did not acknowledge he had any deficiencies. The penalty of termination does not shock the conscience in these circumstances.
Summary
While petitioner has numerous complaints about respondents, including respondents’ handling of a medical arbitration arising out of a purported on-the-job injury petitioner suffered and alleged misconduct by the principal, that is not the focus of this opinion. This decision is concerned with the Hearing Officer’s decision finding petitioner to be an incompetent teacher and firing him. There is no basis to overturn that determination given the substantial documentation demonstrating petitioner’s inability to manage a classroom. The fact that petitioner served in a leadership position with his union has nothing to do with whether petitioner could effectively teach children in the classroom. The detailed observation reports show that petitioner could not prepare a lesson plan, execute a lesson plan or implement improvements suggested by supervisors to improve his pedagogy. The Court cannot overlook petitioner’s incompetency simply because petitioner did not get along with his supervisors. The Court’s main concern is whether petitioner was an effective teacher and he has provided no reason, besides blaming others, for this Court to vacate the Hearing Officer’s decision to terminate him.
Accordingly, it is hereby
ORDERED that the cross-motion to dismiss the petition is granted; and it is further
ADJUDGED that the petition of John Leftridge is dismissed, without costs and disbursements.
Dated: July 18, 2018
New York, New York

Noah Berkley Loses his Article 75 Appeal


Matter of Berkley v New York City Dept. of Educ.
2018 NY Slip Op 01669
Decided on March 15, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on March 15, 2018 
Manzanet-Daniels, J.P., Tom, Mazzarelli, Webber, Kern, JJ.

6025 650648/16 

[*1]In re Noah Berkley, Petitioner-Appellant,

v

New York City Department of Education, Respondent-Respondent.

Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent.


Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 27, 2016, which granted respondent's motion to confirm a hearing officer's award terminating petitioner's employment as a school teacher with respondent, denied the petition, and dismissed the proceeding, unanimously affirmed, without costs.
The standard of review mandated by Education Law § 3020-a(5)(a) is that of CPLR article 75, which provides that an arbitration award may be vacated only on a showing of "misconduct, bias, excess of power or procedural defects" (City School Dist. of the City of N.Y. v McGraham, 75 AD3d 445, 449 [1st Dept 2010], affd 17 NY3d 917 [2011]; see CPLR 7511[b]). This Court has applied a "hybrid" standard which incorporates the arbitrary and capricious test in CPLR article 78 as well (id.).
Where the arbitration is compulsory, as here, judicial scrutiny is stricter than for a determination rendered in voluntary arbitration proceedings, and the determination must be in accord with due process, supported by adequate evidence, and rational (Matter of Gongora v New York City Dept. of Educ., 98 AD3d 888, 889-890 [1st Dept 2012]).
Petitioner argues that his due process rights were violated because the corporal punishment specification did not allege the specific date of the misconduct and the hearing officer improperly relied on hearsay evidence, consisting of out of court statements by students.
Due process in the context of administrative hearings requires that the charges be "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense" (Matter of Block v Ambach, 73 NY2d 323, 333 [1989] [internal citation omitted]).
The court properly found that petitioner's due process rights were not violated by the failure to specify the date he was alleged to have inflicted corporal punishment on a named student, in that he was provided with enough information to mount an adequate defense. Moreover, at the hearing, he did not indicate any vagueness with regard to the incident, since he knew the name of the student who made the complaint and had received statements by other students in the room at the time.
Petitioner's due process rights were not violated by the hearing officer's partial reliance on hearsay evidence in that such evidence may be the basis of an administrative determination, as petitioner acknowledged (Matter of Colon v City of N.Y. Dept. of Educ., 94 AD3d 568 [1st Dept 2012]). Moreover, the hearsay evidence was supported by the testimony of various school administrators and aides, who were subject to cross-examination by petitioner.
The court correctly concluded that the hearing officer's decision was supported by the record, in that ample evidence, including petitioner's admissions, supported the finding that he exposed himself to students in the boys' bathroom, improperly touched a student's knee, used his foot to push another student, and was frequently late. The hearing officer was entitled to reject petitioner's explanations based on an assessment of his credibility.
The penalty does not shock the conscience in light of the seriousness of the misconduct and petitioner's failure to heed warnings (see Matter of Bolt v New York City Dept. Of Educ.,
___ NY3d __, 2018 NY Slip Op 00090, *2 [2018]; Lackow v Department of Educ [or "Board"] of the City of New York, 51 AD3d 563, 569 [1st Dept 2008]).
We have considered petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2018
CLERK

NYS Supreme Court decision:
MATTER OF BERKLEY v. NEW YORK CITY DEPT. OF EDUC
Docket No. 650648/2016, Mot. Seq. No. 001. 2016 NY Slip Op 31210(U)
In the Matter of the Application of NOAH BERKLEY, Petitioner, For an Order Vacating a Decision of a Hearing Officer pursuant to Section 3020-a(5) of the Education Law and Article 75 of the CPLR, v. NEW YORK CITY DEPARTMENT OF EDUCATION Respondent.
Supreme Court, New York County.
June 27, 2016.

DECISION/ORDER
CAROL R. EDMEADJudge.

MEMORANDUM DECISION

Petitioner Noah Berkley ("Petitioner") is a formerly-tenured teacher with Respondent New York City Department of Education (the "DOE"). The Petition seeks, pursuant to CPLR 7511, to vacate the January 28, 2016 Decision and Award (the "Decision") of Hearing Officer Gloria Johnson (the "Hearing Officer"), which found, after a seven-day hearing, just cause to terminate Petitioner. DOE cross-moves, pursuant to Education Law 3020-a(5) and CPLR 404(a), 3211(a)(7), and 7511 to dismiss the Petition and/or confirm the Decision.

BACKGROUND FACTS

Petitioner was employed at P.S. 33 (Timothy Dwight Elementary) in the Bronx since September 2005, when he was hired by the DOE. During Petitioner's time at P.S. 33, he received "satisfactory" ratings each year until 2013-2014, when he received an "effective" rating.1

In 2015, the DOE asserted two sets of specifications (or "charges") under "SED 27,285" (Exh D-1; the "Group 1 Specifications") and "SED 27,977" (Exh D-5; the "Group 2 Specifications")2 against Petitioner.3The Group 1 Specifications alleged that "[Petitioner] engaged in indecent exposure, inappropriate touching, corporal punishment, conduct which could constitute a crime, conduct unbecoming his profession, misconduct and neglected duties." The Group 2 Specifications alleged that "[Petitioner] engaged in corporal punishment, conduct which could constitute a crime, conduct unbecoming his profession, excessive lateness, misconduct and neglected his duties."

After respondent's request for a hearing, the Hearing Officer convened a pre-conference hearing on August 10, 2015, and full evidentiary hearings were held on October 5, 6, 26, and 27, November 17 and 20, and December 4, 2015, comprising a transcript of approximately 2000 pages (Pet'r Exh B, "Tr").4 After the parties provided post-hearing submissions, the record closed on December 28, 2015. On January 28, 2016, the Hearing Officer issued the 60-page Decision, which made the following findings:

I. Group 1 Specifications
a. Group 1, Specification 1: The Auditorium Incident ("Student A"/J.R.)
Specification 1: On or about January 30, 2015, [Petitioner] inappropriately pinched and/or placed his hand on Student A's thigh.

On or about January 30, 2015, Petitioner approached J.R., an 8 year-old male student, during indoor recess in the auditorium because, unlike the other children, J.R. was not dancing. Leoncia Martinez ("Martinez"), a school aide who was monitoring a group of children in the auditorium seated a few rows behind J.R., observed Petitioner's hand make contact with J.R.'s leg (Decision at 7). Martinez approached J.R. and asked him, in Spanish, to clarify what Martinez had just witnessed (id. at 7). J.R. confirmed that Petitioner had placed his hand on the student's thigh, and demonstrated the nature of the contact, subsequently recounted at the hearing and characterized by the Hearing Officer as "stretching out [the] hand on [] mid-thigh and [pressing] into the flesh visibly" (Tr at 171). New York City Special Investigator Vincent J. Pellizzi ("Investigator Pellizzi") subsequently confirmed the contact by interviewing J.R. on February 12, 2015, noting that J.R. demonstrated a pinching motion with his thumb and index finger and stated that Petitioner's contact "hurt a little bit" (Exh D-3 at 5).

Petitioner had several defenses to Specification 1: first, that the specification could not be sustained because there was no direct evidence regarding the nature of the physical contact with J.R., including J.R.'s testimony, and second, that the contact was innocuous. The Hearing Officer rejected both arguments, finding by a preponderance of the evidence that there was sufficient evidence to sustain the specification (Decision at 33-37). The Hearing Officer held that hearsay was permissible when corroborating direct testimony and credited the testimony of Martinez that the contact occurred, finding that the testimony was corroborated and supplemented by the written statements of Investigator Pellizzi regarding the precise nature of the contact (Decision at 35, citing Tr at 122).

b. Group 1, Specification 2: The Bathroom Incident
Specification 2: On or about January 29, 2015, [Petitioner] while inside of a student Bathroom:(a) Exposed his penis to numerous students.(b) Urinated in the student bathroom while in the presence of numerous students.(c) [sic] Immediately next to students whom were urinating.

On or about January 29, 2015, Petitioner entered a students' bathroom, while students were present, despite the availability of a faculty bathroom about 20 feet away (Decision at 40-41; Tr at 365, 1454, 1520; Exh D4a-g). Petitioner walked past several enclosed stalls to the final stall on the right (Exh D-4d), and urinated at an unshielded urinal in such a manner that nearby students could see his penis. The Hearing Officer credited the testimony of Eneida Vielman ("Vielman") who, after hearing several boys laughing and yelling in the student bathroom, warned the bathroom's occupants of her impending entry verbally and with a whistle, and then entered (Tr at 103-04, 344-45). Once inside the bathroom, Vielman personally witnessed the students standing within line of sight of Petitioner's exposed penis, including a student next to him (Decision at 43; Tr at 103-05, 350, 356-57). Investigator Pellizzi and "Student D", one of the students present in the bathroom on that date, corroborated Vielman, confirming that several of the students saw Petitioner's penis (Decision at 44-46; Tr at 250, 262-263; Exh D-3 at 5).

The Hearing Officer also credited the testimony of Principal Lynette Santos ("Principal Santos"), who testified to personally advising Petitioner not to use the students' bathroom in November of 2013, over Respondent, who acknowledged having received verbal notice of the policy on separate occasions, albeit from other sources (Decision p. 39; Tr at 1070-1072; 1440-1442).

Ultimately, the Hearing Officer rejected both Petitioner's factual defenses and legal defenses—in sum and substance, that the students could not have seen his penis, and that Vielman's testimony could not be credited because she misidentified one of the students and was biased against Petitioner for comments he had previously made to her (Decision at 45-46). In rejecting those arguments, the Hearing Officer noted the substantial corroboration of Vielman's observations (id. at 46). The Hearing Officer also found that Petitioner had been warned not to use the students' bathroom (id. at 39-40). In light of the prior warnings and the nature of the act itself, the Hearing Officer found Petitioner's conduct so egregious that progressive discipline was not required (id. at 39-40).

c. Group 1, Specification 3
Specification 3: As a result of committing one, some, or all of the actions as specified within Specifications 1-2 above, [Petitioner] knowingly acted in a manner likely to be injurious to the physical, mental and/or moral welfare of the children less than seventeen years of age.

The Hearing Officer sustained Specification 3, notwithstanding Petitioner's jurisdictional objection that the specifications effectively charged and sought adjudication of a Penal Code violation (Decision at 46-47). The Hearing Officer disagreed, holding that the determinations made during the hearing may have relied upon similar definitions, but did not rely upon the Penal Code itself (id. at 47-49). Though Petitioner challenges the underlying determinations, this specification is not challenged here.

II. Group 2 Specifications
a. Group 2, Specification 1 (The Corporal Punishment Incident, "Student 2B"/I.O.)5
Specification 1: On or about and in between September 9, 2014 until April 20, 2015, [Petitioner]:(a) kicked [I.O.] in the leg.(b) Punched [I.O.] in the stomach.(c) Slapped [I.O.] in the face.(d) Stated words to the effect of: I don't care.

The Hearing Officer rejected Petitioner's argument that the charges were unconstitutionally vague for failure to set forth specific dates of the incidents. The Hearing Officer found the lack of specificity a "significant weakening factor", but ultimately found that the record contained additional relevant facts which prevented the charges from being unconstitutionally vague (Decision at 50). The Hearing Officer upheld specifications 1 (a) and (b), but did not find any evidence to substantiate specifications 1 (c) and (d) (id. at 52).

The Hearing Officer cited the direct testimony of two students; the student victim, I.O., and an eyewitness classmate, Student X. At the hearing, I.O. testified only that the allegations she had recounted to her mother, the basis for the four allegations in Specification 1, were the truth (Decision at 52; Tr at 515).6Because I.O. did not specify what she told her mother, the Hearing Officer concluded that there was no direct evidence that Petitioner slapped I.O. or told her "I don't care."

However, the Hearing Officer found corroboration for Specifications 1 (a) and (b), crediting Student X's testimony that Respondent "grabbed I.O.'s arm softly and put her back on the rug" (Decision at 51, citing Tr at 591) and finding that the record contained evidence that Petitioner physically contacted I.O.'s leg with his foot (Decision at 52; Tr at 516-18). The Hearing Officer also credited the statements taken by Assistant Principal Ceara of Student Y, who did not testify at the hearing.7 Student Y's statement asserted that Petitioner sometimes "grabs the arms of students hard and they say `ouch'" and that Student Y observed Petitioner grab I.O.'s arm, and punch her on her stomach (Decision at 51, citing Exh D-13).

The Hearing Officer also found that progressive discipline was not required in the case of corporal punishment. However, though specifications 1 (a) and (b) were upheld, the Hearing Officer found that the relatively vague timeframe, lack of direct evidence and "less than strong level of hearsay" corroboration "does not rise to the substantial level of evidence that would support a termination" (Decision at 50).

b. Group 2, Specification 2 (The Corporal Punishment Incident, "Student 2B")
Specification 2: As a result of committing one, some, or all of the actions specified within Specifications [sic] 1 above, [Petitioner] knowingly acted in a manner likely to be injurious to the physical, mental and/or moral welfare of a child less than seventeen years of age.

The Hearing Officer decided this specification identically to Group 1, Specification 3, finding that criminal statutes could be used to guide the drafting and decision of specifications, and that teachers could be disciplined for conduct that could be considered a crime (Decision at 55). Petitioner challenge the underlying determination made on this specification.

c. Group 2, Specification 3 (2012-2013 Lateness)
Specification 3: During the 2012-2013 school year, the [Petitioner] was excessively late on ten (10) occasions[.]
The Hearing Officer credited the testimony of Debra laniello, PS 33's payroll secretary, who verified the accuracy of Petitioner's time cards (Decision at 56; Tr at 647, et seq.). Based on this determination, the Hearing Officer upheld this specification, "with the exception of" the lateness on February 5, 2013. (id.). The Hearing Officer found that petitioner was unfairly charged as late on February 5, 2013, and should have been permitted to use leave time, because although he called in sick, he was asked to come in later if he felt better, and he did (id.).8

d. Group 2, Specification 4 (2013-2014 Lateness)
Specification 4: During the 2013-2014 school year, the [Petitioner] was excessively late on eleven (11) occasions[.]
Of the eleven allegations of lateness, the Hearing Officer upheld nine and dismissed two for November 6, 2013, and January 24, 2014 (Decision at 57 [dismissing sub-specification 6 and stating "Number 5 is also dismissed"; Tr. 707-708]). Specifically, as to the November 6, 2013 alleged lateness, both numbers, "7" and "2," were noted on the timecard, and petitioner argued that he was two, not seven, minutes late (after 8:00 a.m.). According to respondent's payroll secretary. "Someone clocked over it, but it's a 2." (Tr. at 707-708). Further, the January 24, 2014 lateness was "due to transit' (Tr. at 806).9 Notwithstanding, the Hearing Officer subsequently stated that Petitioner was absent 10 times during the 2013-2014 school year, and the subsequent Conclusion/Award section sustains the entirety of Specification 4 with only one exception: sub-specification 6 (Decision at 58, 60).

e. Group 2, Specification 5 (2014-2015 Lateness)
Specification 5: During the 2014-2015 school year, the [Petitioner] was excessively late on fifteen (15) occasions[.]

The Hearing Officer upheld thirteen of fifteen instances of lateness; the dates he was late on May 18 and May 27, 2015, when Petitioner had meetings with school administrators, were dismissed (Decision at 58, citing Exh R-5).

III. Hearing Officer Award
Based on the findings detailed in the Decision, the Hearing Officer denied Petitioner's motion to dismiss Specification 3,10 and found just cause for Petitioner's termination.

IV. Petition and Cross-Motion to Dismiss
Petitioner subsequently filed this Petition, stating three causes of action: first, that the Hearing Officer exceeded her power and issued a decision that was irrational, arbitrary, and capricious: second, that the Hearing Officer violated Petitioner's constitutional and statutory rights to due process of law; and third, that the Hearing Officer imposed a penalty that shocks the conscience and is excessively harsh.

Petitioner supplements these causes of action in his memorandum of law, arguing: first, that DOE's failure to specify the date of the alleged corporal punishment in Group 2, Specification 1 deprived him of due process; second, that the Hearing Officer's reliance upon hearsay testimony to support her findings in the corporal punishment incident violated Petitioner's right to confront and cross-examine witnesses; and third, that the Hearing Officer's findings as to the bathroom incident, the corporal punishment incident, and Petitioner's alleged pattern of tardiness were not supported by adequate evidence. With respect to Petitioner's alleged tardiness, Petitioner argues that the Decision's discussion does not match its conclusion, i.e., the discussion concludes that certain instances of lateness should be dismissed, but factors them into the conclusion nonetheless, to Petitioner's detriment. Petitioner also argues that the Hearing Officer's findings are arbitrary and unclear, or ignored Petitioner's arguments, and attacks the Hearing Officer's conduct during the hearing.11

In support of its cross-motion to dismiss the Petition, the DOE argues; first, that the limited standard for review of arbitration awards, even in the case of mandatory arbitration, requires only that an arbitrator's decision be rational; second, that the Decision was rational, and that Petitioner's arguments to the contrary fail to demonstrate that the Decision was not rational insofar as Petitioner challenges only the unreviewable credibility findings made by the Hearing Officer; third, that administrative proceedings permit hearsay, and that in any event, the Hearing Officer's findings used hearsay only to corroborate direct testimony; fourth, that the failure of the Specifications to list a specific date for the corporal punishment allegation did not deny Petitioner due process because they were sufficiently specific, and that even if they were not, an arbitrator's misapplication of the law is not a basis for reversal; and fifth, that the penalty did not shock the conscience.

In reply, Petitioner argues: first, that the DOE mischaracterized certain testimony as providing adequate notice of the corporal punishment incident's date; second, that the Decision lacked, and that the DOE has still not provided, sufficient non-hearsay evidence supporting the corporal punishment allegations; third, that the Hearing Officer mischaracterized the Petitioner's conduct in the bathroom; fourth, that the DOE does not address Petitioner's argument as to the tardiness specifications; and fifth, that no Answer is necessary if the DOE's cross-motion to dismiss is denied.

In further reply, the DOE argues; first, that Petitioner has still failed to meet his burden of demonstrating that the Hearing Officer's decision was not rational, particularly because of its reliance on certain undisputed facts such as the existence of a separate faculty bathroom nearby and Petitioner's choice to forego closed stalls in favor of unobstructed urinals; second, that the Hearing Officer's finding that Petitioner's misconduct in the bathroom could, by itself, merit termination render any other errors (including the corporal punishment or tardiness specifications) irrelevant to the Award's validity; third, that Petitioner fails to demonstrate, by clear and convincing evidence, any misconduct by the Hearing Officer, and fourth, that the Hearing Officer's findings were rational and supported by the record.

DISCUSSION

I. Petition to vacate arbitration award
"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" (Roberts v Department of Educ. of City of N.Y., 45 Misc.3d 1206(A), 3 N.Y.S.3d 287 [Sup Ct, NY County 2014]; see also Abreu v N.Y.C. Dept. of Educ., 43 Misc.3d 1215(A), 990 N.Y.S.2d 436 [Sup Ct, NY County 2014] citing Lackow v. Department of Educ. of City of N.Y., 51 A.D.3d 563, 567 [1st Dept 2008]). "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" (Roberts, 45 Misc.3d 1206(A). citing Hackett v Milbank, Tweed, Hadley & McCloy, 86 N.Y.2d 146, 154-55 [1995]). The Court turns first to the due process violations alleged by Petitioner, because they allege defects that go to the heart of the proceedings themselves.

Where, as here, the parties are subject to compulsory arbitration, "judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration" (Asch v N.Y.C. Board/Department of Educ., 104 A.D.3d 415960 N.Y.S.2d 106 [1st Dept 2013] citing Lackow, 51 AD3d at 567). "The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" (Lackow, 51 AD3d at 567). A § 3020-a decision is supported by adequate evidence when "there is a rational basis in [the whole record] for the findings of fact supporting the [hearing officer's decision]" (Carroll v Pirkle, 296 A.D.2d 755, 756 [3d Dept 2002]; see also Principe v N.Y.C. Dept. of Educ., 94 A.D.3d 431, 437 [1st Dept 2012], affd, 20 N.Y.3d 963 [2012] [decision must be in accord with due process, have adequate evidentiary support, and cannot be arbitrary, capricious or irrational]).

A. Alleged Due Process Violations/Hearing Deficiencies
1. Failure to Provide Adequate Notice of Corporal Punishment Incident
Petitioner cites to Ronga v New York City Dept. of Educ. (114 A.D.3d 528 [1st Dept 2014]) to argue that the corporal punishment specification is deficient because it provided inadequate notice of the charge, and therefore deprived him of the opportunity to prepare an adequate defense. However, Ronga's factual recitation on this issue is sparse, and the Wolfe v Kelly, (79 A.D.3d 406, 407-08 [1st Dept 2010]) decision cited by the court in Ronga, explains the contours of the notice requirement in administrative hearings as broader than Petitioner's interpretation. In Wolfe v Kelly, the First Department found that certain specifications against the petitioner, a police officer, were impermissibly vague because they each alleged multiple. discrete disciplinary violations over a period of 2 years, but did not specify the dates of the violations. This violated the petitioner's due process rights because the charges were not "reasonably specific, in light of all the relevant circumstances" to allow the petitioner to prepare an adequate defense (id., distinguishing Matter of Block v Ambach, 73 N.Y.2d 323 [1989] [emphasis added]). Notably, however, the First Department did not find that the third specification, which alleged one instance of perjury "on or about and between April 23, 1998 and December 17, 1998" — an 8-month window, similar to the one alleged here — violated the petitioner's due process rights (Wolfe, 79 AD3d at 408).

The Wolfe decision (and, by extension, the Ronga decision) is illuminated further by Block, (73 N.Y.2d 323), wherein a registered nurse faced administrative proceedings alleging various forms of professional misconduct. The Court of Appeals noted that the respective guarantees of due process in criminal and administrative proceedings are not identical; specifically, fair notice to the respondent in the context of Education Law and Administrative Procedure Act proceedings does not require the same specificity as those under the Criminal Procedure Law (see Block, 73 N.Y.2d 332-33, comparing CPL § 200.50, 200.30 with Administrative Procedure Act § 301 [2] [d] and Education Law § 6510 [1] [c]). Stated another way, the graver consequences of criminal proceedings, as well as the added consideration of double jeopardy, demand greater specificity in the criminal charging document (id.). Conversely, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him" (Block, 73 NY2d at 333 [emphasis added]).

Thus, the use of "general time periods" alone does not violate due process, provided that the charges apprise the respondent of the allegations and allow for the preparation of an adequate defense (Block, 73 NY2d at 333: see also Arroyo v City of N.Y., 245 A.D.2d 186, 187 [1st Dept 1997] [failing to provide more precise dates not in bad faith where numerous and extensive investigations occurred before charges were finally filed and where one complaining witness delayed filing a formal complaint]). When an alleged time period is not facially unreasonable, the required degree of specificity is to be determined by reference to several factors: whether a more precise date was known or should have been known, the age and intelligence of the victims and witnesses, and the nature of the offense, including whether it is likely to occur at a specific time or be discovered immediately (Block, 73 NY2d at 333 [1989], citing People v Morris, 61 N.Y.2d 290, 295-296 [1984]; People v Keindl, 68 N.Y.2d 410, 419 [1986]).

Applying those principles to the facts here, petitioner failed to establish that the charges violated his due process rights, as they contained the requisite specificity in light of the relevant circumstances, to place Petitioner on notice of the allegations and allow for the adequate preparation of the defense. Specification 1 of Group 2 alleged several instances of corporal punishment and a verbal statement approximating "I don't care" toward a student between September 9, 2014 until April 20, 2015 — approximately the same length as the upheld charge in Wolfe (79 AD3d at 411).

Petitioner also received, sometime before the hearing, an investigative report which contained several relevant documents that should have apprised Petitioner of the conduct alleged: student statements regarding the alleged corporal punishment, a "corporal punishment intake form" noting that on April 20, 2015, the mother of I.O. reported that Petitioner had "pinched and punched" I.O. in class within the prior week (Tr at 1498:18; 1501:18; Exh D-13 at 10 ["I understand that the statements have been provided for the limited purpose of responding to an allegation that was made against me"]).12

These documents inject additional "relevant circumstances" that, combined with the age and intelligence of the victims and witnesses (young children) and nature of the offense, support the conclusion that the charges were as specific as possible under the circumstances, and that Petitioner had sufficient time and knowledge of the allegations to prepare a defense (see e.g. Downes v Klein, 15 Misc.3d 1141 (A) [Sup Ct, NY County 2007] ["From the exchange of materials prior to the hearing, it was clear what the issues were"]).

Accordingly, the Court finds that the Corporal Punishment specification (Group 2, Specification 1), and the hearing that eventually substantial a portion of it, did not deprive Petitioner of due process.

2. Hearsay
Where specifications are supported by consistent student statements (even unsworn statements) and corroborated by administrative investigation including consultation with those students, hearsay evidence can be the evidence of an administrative determination (Colon v City of N.Y. Dept. of Educ., 94 A.D.3d 568[1st Dept 2012]). This is particularly true where a petitioner has acknowledged the incidents, while offering differing, uncorroborated exculpatory accounts (id.). A hearing officer's decision to credit the corroborated hearsay statements amounts to a credibility finding, which is entitled to deference (id., citing Douglas v N.Y.C. Bd/Dept. of Educ., 87 A.D.3d 856, 857 [1st Dept 2011]). Accordingly, to the extent that Petitioner argues that the Decision is invalid because many of the findings rest exclusively on hearsay, that argument is rejected. The sufficiency and particular facts of each finding are addressed further below.

3. Martinez Testimony13
To the extent that Petitioner also argues that the Hearing Officer improperly compelled school aide Leoncia Martinez to testify in English (Pet'r Memo of Law at 4), Petitioner improperly raises this issue here for the first time (Adolphe v New York City Bd. of Educ., 89 A.D.3d 532, 533 [1st Dept 2011]). In any event, where a witness displays a sufficient ability to understand and speak the English language, the lack of an interpreter (or sporadic interpretation) does not constitute a lack of due process—especially where the challenge is belated (Sirota v Hammons, 264 A.D.2d 343 [1st Dept 1999], citing People v Ramos, 26 N.Y.2d 272, 309 N.Y.S.2d 906 [1970]).

There is also insufficient evidence that the Hearing Officer, as Petitioner asserts, "insisted that Martinez deliver her testimony in English" (Pet'r Memo of Law at 4, citing Tr at 168). Given that none of Petitioner's objections below related to interpretation concerns, that Petitioner's counsel questioned Martinez in English (Tr at 166:3), and that Martinez spoke to the investigator in English (Tr at 175:4-8), it appears — and evidently appeared to those at the Hearing — that Martinez was proficient in the English language. Where Martinez had difficulty, the interpreter was there to assist her (Tr at 166). Accordingly, the failure of Martinez to testify in Spanish did not deprive Petitioner of due process.

B. Hearing Officer Impartiality14
A petitioner seeking to prove arbitrator misconduct or partiality must do so by "clear and convincing proof" (Moran v N.Y.C. Tr. Auth., 45 A.D.3d 484 [1st Dept 2007]). "The mere inference of impartiality . . . is not sufficient to warrant interference with the arbitrator's award" (Rose v J.J. Lowrey & Co., 181 A.D.2d 418, 419 [1st Dept. 1992]).

Petitioner fails to meet his burden. There is inadequate support, for example, for Petitioner's contention that the Hearing Officer fell asleep or, if that occurred, any objection by counsel at that juncture (Tr at 797).

Petitioner's remaining challenges to the Hearing Officer's determination are ad hominem attacks upon the Hearing Officer's credibility, and by extension her credibility findings. Petitioner characterizes the Decision as "smug" (Pet'r Memo of Law at 19); sarcastically suggests — in response to the Hearing Officer's rejection of Petitioner's argument that an urgent need to urinate necessitated his entry into the bathroom—that "[Petitioner] should have stopped by his urologist to measure his bladder capacity" (id. at 19-20); and makes various other flippant remarks that address the quality of the Hearing Officer's writing (id. at 2, fn 2). Whatever the merit of these contentions, Petitioner cites no authority establishing that such actions may act as the basis for reversal of an arbitrator's decision, or that they demonstrate partiality on the part of the Hearing Officer. More importantly, Petitioner's attacks ignore a more important point, and one which weighs more heavily here; the Hearing Officer's findings are supported by the extensive record.

C. Arbitrator's Substantive Findings
With respect to fact and credibility findings, courts cannot substitute their judgment for that of a hearing officer who had the opportunity to hear and see witnesses (see City School Dist. of the City of N.Y. v McGraham, 75 A.D.3d 445, 450 [1st Dept 2010], affd, 17 N.Y.3d 917 [2011]). Thus, the credibility determinations of a hearing officer are entitled to deference, even where a party seeking to vacate a § 3020-a decision claims that there is evidence which conflicts with the hearing officer's determination (see Cipollaro v N.Y.C. Dept. of Educ., 83 A.D.3d 543, 544 [1st Dept 2011]; Tasch v Bd. of Educ., 3 A.D.3d 502, 770 [2d Dept 2004]).

Ultimately, the party challenging an arbitration determination has the burden of showing its invalidity (Caso v Coffey, 41 N.Y.2d 153, 159, 391 N.Y.S.2d 88, 359 N.E.2d 683 [1976]). Based on the submissions, Petitioner fails to establish a basis to vacate the Hearing Officer's Decision.

1. Auditorium Incident (Group 1, Specification 1)
The Hearing Officer's findings substantiating this specification are based rationally upon the record. School aide Martinez testified that she observed Petitioner's hand contact J.R.'s thigh on the date in question (Tr at 171). Investigator Pellizzi also testified that he confirmed the nature of Petitioner's actions by interviewing J.R., noting that J.R. demonstrated a pinching motion with his thumb and index finger and stated that Petitioner's contact "hurt a little bit" (Tr at 122; Exh D-3 at 5). Accordingly, the Court finds that the Hearing Officer's findings as to this specification were rational and not arbitrary or capricious.

2. The Bathroom Incident (Group 1, Specification 2)
Ample evidence existed to support the Hearing Officer's findings and conclusion that Petitioner acted inappropriately by entering a student bathroom, where students were present, and urinating within view of the children in such a manner that his penis was exposed (Decision at 39-46).

Petitioner testified to having been admonished regarding the use of student bathrooms (Tr at 1445), and admitted that an adult bathroom was about 20 feet away (Decision at 40, citing Tr at 1520), a fact corroborated by subsequent investigation (Decision at fn 9, citing Exh D-3 at 2). The Hearing Officer rejected Petitioner's explanation for his alleged emergent use of the bathroom, that the adult bathroom was always locked (Decision at 41, citing Tr at 1519). The Hearing Officer noted that Petitioner could not recall verifying that the adult bathroom was locked on the day in question, and that Petitioner did not dispute walking past several enclosed stalls before using an unobstructed urinal (Decision at 42, citing Trat 1471-72).

Additionally, school aide Eneida Vielman described the scene in the bathroom: that, as relevant here, there were five students present in the bathroom when she entered, at least some of whom who could see Petitioner's penis (Tr at 355-57). At least one of those students testified to seeing Petitioner's penis (Tr at 262), and multiple students confirmed the same to an investigator (Exh D-3 at 2).

More importantly, the Hearing Officer's choice to credit the testimony of others over Petitioner are not subject to reversal under CPLR 7511 so long the record demonstrates that the Hearing Officer's decision was rational (see Cipollaro, 83 AD3d at 544, citing Lackow v. Department of Educ. (or "Board") of City of N.Y., 51 A.D.3d 563, 568, 859 N.Y.S.2d 52 [1st Dept 2008]). Based on the above, the Court finds that the Hearing Officer's decision as to this specification was rational and not arbitrary or capricious.

3. Corporal Punishment Incident (Group 2, Specification 1)
For similar reasons, the Court finds that the Hearing Officer's substantive findings upholding sub-specifications 1 (a) and (b)—that Petitioner kicked I.O. in the leg and punched her in the stomach — also find sufficient support in the record.15
With respect to sub-specification 1 (a), I.O. testified that Petitioner used his foot to "forc[e] me to go to the end of the cubby and sit down" (Tr at 515:20). With respect to sub-specifications 1 (a) and (b), the Hearing Officer noted that Assistant Principle Castro's report, prepared after Assistant Principle Ceara interviewed student witnesses, substantiated the allegations (Decision at 51, citing Tr at 855, 932). For example, another student interviewed by Assistant Principal Ceara witnessed Petitioner punch I.O. in the stomach (Exh D-13).16 Accordingly, the Court also finds that the Hearing Officer's findings as to this specification were rational and not arbitrary or capricious.

4. Tardiness Specifications (Group 2, Specifications 3-5)
Though the timecard entries justifying the tardiness specifications were verified by payroll secretary lanniello (Decision at 56, citing Tr at 644, et seq.), the Hearing Officer's findings with respect to these specifications are inconsistent—a fact which the DOE does not substantively deny (Pet'r Reply at 6; DOE reply at 7). Although the Decision does not precisely state which policy this violates there are several mentions of excessive lateness: one in the annual handbooks provided to teachers (Exhs D-18 at 100; D-22at 109), and in Chancellor's Regulation 601 [4] [e] and [2] [b] (Exh D-6). Petitioner does not explicitly challenge the Hearing Officer's designation of 10 instances of lateness as "excessive."

With respect to Specification 3, the Hearing Officer confirmed 9 of 10 instances of lateness with the exception of February 5, 2013, for which the Hearing Officer found that Petitioner should have been permitted to use leave time. This was inconsistent, however, with the Award section of the Decision, where the Hearing Officer sustained the entirety of Specification 3 (Decision at 60).

For Specification 4, the Hearing Officer upheld nine of eleven instances of tardiness with the exception of two on November 6, 2013, and January 24, 2014 (Decision at 57 [dismissing sub-specification 6 and stating "Number 5 is also dismissed"]). However, this is inconsistent with the Hearing Officer's subsequent statement that Petitioner was absent 10 times during the 2013-2014 school year, and the subsequent Conclusion/Award section sustaining the entirety of Specification 4 with only one exception: sub-specification 6 (Decision at 58, 60). The discrepancy is noteworthy, in that the Hearing Officer acknowledged that ten instances of lateness violates the Chancellor's regulations (Tr at 639).

With respect to Specification 5, the Hearing Officer upheld thirteen of fifteen instances of lateness, upholding two challenges by Petitioner as to lateness on May 18 and May 27, 2015, when Petitioner had meetings with school administrators (Decision at 58, citing R-5). However, Petitioner correctly notes that he challenged 5, not 2, sub-specifications (Tr at 1739).

Nevertheless, and for the reasons below, however, the Court finds that these errors do not merit a vacatur of the ultimate award.

c. Appropriateness of Penalty
The proportionality of a petitioner's penalty should be examined "in light of all the circumstances", and should be affirmed unless it is "shocking to one's sense of fairness" (Principe, 94 AD3d at 433, 434 [penalty excessive where the petitioner had a "spotless" record for five years and was promoted to dean two years prior to the incidents at issue, and where the hearing officer demonstrated clear bias against the petitioner and failed to consider the disciplinary histories of the students involved and threatening environment in which the incidents took place], citing Pell, 34 NY2d at 233);
[A]result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed.

The sanctions must also reflect the standards of society to be applied to the offense involved (Brito v Walcott, 115 A.D.3d 544, 546, 547 [1st Dept 2014] [termination for sexual conduct with a colleague on school property, a `one-time mistake' unwitnessed by students, inappropriate where the petitioner was a tenured teacher who had made many positive contributions to the school, had an unblemished disciplinary record, and was described by her supervisor as one of the best teachers she had ever worked with], citing Pell, 34 NY2d at 234).
While no bright-line rule exists, the termination of petitioners with otherwise-unblemished records has been upheld even for a single instance of misconduct (see Matter of Patterson v City of N.Y., 96 A.D.3d 565, 566 [1st Dept 2012] [upholding a penalty of termination for a petitioner with 10 years of no disciplinary history who used a false address to avoid paying New York City income taxes]; see also Matter of Rogers v Sherburne—Earlville Cent School Dist., 17 A.D.3d 823 [3d Dept 2005] [upholding termination for falsifying time sheets and a pattern of excessive leave time usage and abuse of leave time benefits despite "a long and previously unblemished record"]; Matter of Ebner v Board of Educ. of E. Williston Union Free School Dist. No. 2, N. Hempstead, 42 N.Y.2d 938, 397 N.Y.S.2d 1008 [1977] [teacher terminated for dragging a student by the hair from one class to another]; Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 A.D.3d 1012879 N.Y.S.2d 568 [2d Dept 2009] [teacher terminated for allowing a student to be strapped to a chair without cause and for striking a student in the chest and jaw]; Matter of Giles v Schuyler—Chemung—Tioga Bd. of Coop. Educ. Servs., 199 A.D.2d 613604 N.Y.S.2d 345 [1993] [teacher terminated for striking a student on the hands with a book and for throwing a car jack through a window]; compare Riley v City of N.Y., 84 A.D.3d 442 [1st Dept 2011] [termination of petitioner with unblemished 15-year career shocked the conscience where unspecified offense did not cause "physical or emotional injury" to student]; compare Matter of Weinstein v Department of Educ. of City of N.Y., 19 A.D.3d 165798 N.Y.S.2d 383 [1st Dept 2005] [termination for single incident of improper use of physical force shocked the conscience where petitioner was carrying out assigned duty of denying access to locker room to all but gym class students], Iv den 6 N.Y.3d 706, 812 N.Y.S.2d 35, 845 N.E.2d 467 [2006]).

Less severe behavior can also justify termination of a long-standing employee if the behavior is part of a pattern, particularly where warnings about inappropriate behavior have been issued (Roman v N.Y.C. Dept. of Educ., 128 A.D.3d 590, 591 [1st Dept 2015] [upholding termination despite long, otherwise satisfactory tenure and absence of progressive discipline where the petitioner had been warned about inappropriate conduct, had taken no responsibility for his actions, denied the incidents despite corroborating evidence, and showed no remorse]; Matter of Robinson v City of N.Y., 33 Misc.3d 1228(A), 2011 NY Misc LEXIS 5669 at *13, *20 [Sup Ct. NY County 2011] [dismissal warranted, notwithstanding petitioner's 23 years of satisfactory performance, for pattern of abusive behavior]; Roberts v Dept. of Educ. of City of N.Y., 45 Misc.3d 1206(A) [Sup Ct, NY County 2014] [dismissal warranted despite 11 years of satisfactory performance upon 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"]; Mazzella v Bedford Cent. School Dist., 49 Misc.3d 675, 683 [Sup Ct, Westchester County 2015] [termination of 18-year employee justified for recent pattern of incompetence]; compare Polayes v City of N.Y., 118 A.D.3d 425, 426 [1st Dept 2014] [Supreme Court's confirmation of petitioner's termination reversed, despite prior warnings to petitioner not to engage in non-sexual touching of students, when latest incident involved only innocuous conversation which did not offend students]).

Applying those principles here, the Hearing Officer's award is justified by the record, which contains evidence of at least three instances of inappropriate conduct—specifically, the Hearing Officer's findings that Petitioner: engaged in inappropriate physical contact with a student (Group 1, Specifications 1 and 3); despite prior warnings, entered into a student bathroom and, at minimum, negligently created a situation where multiple students saw his penis (Group I, Specification 2 and 3); and engaged in corporal punishment (Group 2, Specifications 1 and 2) despite policies against such behavior (see e.g. Exh D-21; D-23).17 Notably, the first two incidents occurred within a day of each other.

Moreover, even crediting Petitioner's challenges to the tardiness specifications (Group 2, Specifications 3 to 5), the record still contains 27 unchallenged instances of tardiness in three years (9 in 2012-2013, 8 in 2013-2014, and 10 in 2014-2015). Petitioner was also warned about his repeated tardiness at least once (Exhs D-15; D-16), but did not subsequently alter his behavior.18

Coupled with the other behavior confirmed by the Hearing Officer, there is sufficient evidence in the record to justify termination.

II. DOE's Cross-motion to Dismiss
In determining whether a pleading should be dismissed pursuant to CPLR 3211(a)(7), the Court's role is deciding "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail" (African Diaspora Maritime Corp. v Golden Gate Yacht Club, 109 A.D.3d 204968 N.Y.S.2d 459 [1st Dept 2013]; Siegmund Sirauss, Inc. v East 149th Realty Corp., 104 A.D.3d 401960 N.Y.S.2d 404 [1st Dept 2013]).

On a motion made pursuant to CPLR 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs "the benefit of every possible favorable inference," and "determine only whether the facts as alleged fit into any cognizable legal theory" (Siegmund, 104 AD3d at 403 Nonnon v City of New York, 9 N.Y.3d 825 [2007]; Leon v Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972 [1994]). Utilizing this standard would prove problematic, however, because accepting Petitioner's facts and affording her every possible inference under CPLR 3211 would clash with the deference afforded to the Hearing Officer's credibility findings under CPLR 7511.

Accordingly, when documentary evidence is submitted by the parties, the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182 [1977]; see Abreu, 43 Misc.3d 1215(A) [granting DOE's cross-motion brought pursuant to CPLR 3211 to dismiss an Article 75 petition seeking to vacate an arbitration award terminating petitioner]). Therefore, given the extensive record discussed at length above, sufficient documentary evidence exists to support the Hearing Officer's findings and conclude that Petitioner has no cause of action.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the application of Petitioner Noah Berkley for an Order pursuant to CPLR 7511 vacating the January 28, 2016 Opinion and Award (the "Award") of Hearing Officer CPLR 7511 vacating the January 28, 2016 Opinion and Award (the "Award") of Hearing Officer Gloria Johnson is denied in all respects; and it is further
ORDERED that the application of Respondent New York City Department of Education for an Order to confirm the Award pursuant to CPLR 7511 and/or to dismiss the Petition pursuant to CPLR 3211(a)(7) is granted to the extent that the award is confirmed; and it is further
ORDERED that this Petition is hereby dismissed with prejudice; and it is further
ORDERED that the Clerk may enter judgment accordingly; and it is further
ORDERED that counsel for Respondent shall serve a copy of this Order with notice of entry upon all parties within 20 days.
This constitutes the decision and order of this court.
FootNotes

1. The "HEDI" 4-tier system, which rates teachers, in decreasing order of competence, as highly effective, effective, developing, and ineffective replaced the previous rating system ("unsatisfactory" and "satisfactory") in 2010 (Education Law § 3012-c [2] [a] [1]; see 2010 Sess. Law News of N.Y. Ch. 103 [A. 11171] [McKinney's]).
2. Exhibits prefaced with "D" refer to those filed by the DOE in the hearing, and those prefaced with "R" refer to those filed by Petitioner (designated as "Respondent" during the hearing).
3. The references to "Student A." "B", etc., in the charges and exhibits to identify the varying students (see e.g. Decision at 6; Pl Exh D-3) create confusion in that they relate to separate incidents that were later consolidated for hearing purposes. Petitioner utilizes several students' full names, and includes an unredacted copy of the transcript, which lists the childrens' names (see e.g. Tr at 1404). To balance clarity against the need to maintain the children's privacy, the Court will refer to the names of the children by their initials. The Court also notes 22 NYCRR 202.5, which directs that(1) . . . whether or not a sealing order is or has been sought, the parties shall omit or redact confidential personal information in papers submitted to the court for filing . . . [C]onfidential personal information (CPI) means:(iii) the full name of an individual known to be a minor, except the minor's initials;(2) The court sua sponte . . . may . . . order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of section 216.1 of this Title that any sealing be no broader than necessary to protect the CPI. . . . (emphases added).
4. Two transcripts were submitted together in the same exhibit, i.e., the hearing on October 10, 2015 terminates at page 404, is interrupted by a 55-page, separately-paginated transcript of the October 15, 2015 hearing consolidating the two sets of specifications, then resumes at page 405, which transcribes the October 26, 2015 hearing. Unless otherwise noted, this decision references only the main transcript.
5. Student 2B is identified as "Student A" in the transcript (Tr at 567).
6. The Decision actually cites page 575, but this appears to have been an error because the relevant portion of "Student 2B"/I.O.'s testimony (identified as "Student A" in the transcript) take place on page 515. Page 575 transcribes the testimony of a different witness.
7. Assistant Principal Castro prepared the report containing those statements, and concluded that the allegations were substantiated (Tr at 872; Exh D-13).
8. The Award section of the Decision sustains Specification 3, however, without mention of the exception of the lateness on February 5, 2013 (id. at 60).
9. According to the Hearing Officer, ten instances of lateness constitute a violation of the Chancellor's regulations (Tr at 639).
10. The Hearing Officer did not specify whether she was referring to Group 1 or 2, but that omission does not appear to have been challenged by Petitioner.
11. Petitioner does not directly challenge Group 1, Specification 3 and Group 2, Specification 2.
12. A document that appears to have been signed by Petitioner on June 5, 2015 acknowledges receiving student statements, but it is unclear which statements, or whether Petitioner received the full investigative report on June 5 (Exh D-13 at 10). In any event, the Hearing Officer ordered the production of these documents at the pre-hearing conference on August 20, 2015, nearly two months before the initial hearing date on October 5, 2015 (Tr at 7, et seq.). DOE did not object to producing those documents, Petitioner does not deny receiving them, and Petitioner did not object to their introduction at the hearing (or their use now), Indeed, Petitioner filed all of the exhibits relied upon here by both parties, including those with a "D" prefix denoting "Department of Education" exhibits.
13. The Court addresses this argument as it is raised in Petitioner's discussion of the facts.
14. This is also not a discrete argument, but referenced throughout Petitioner's memorandum of law.
15. Petitioner's due process arguments regarding hearsay and notice were addressed and rejected above.
16. The Court also notes that though Petitioner was not specifically charged with grabbing students' arms, the Hearing Officer found support for those actions as well (Decision at 51, citing Tr at 591).
17. The Hearing Officer noted — correctly—that the corporal punishment finding alone could merit termination.
18. The same exhibit also notes that several other conferences were held on November 7, 2013, January 8, 2014, and February 12, 2014.

Noah Berkley's 3020-a termination decision