 |
| Evan Mirenberg |
Evan Mirenberg, considered
an excellent teacher and winner of the
2013 PASCO STEM Awards, was charged with 16 absences for the 2013-2014 school year:
SPECIFICATION 1:
On or about and between September 9, 2013 and June 27, 2014, Respondent, while
assigned to The Michael E. Berdy School
for The Arts,
was excessively absent from
work
approximately sixteen (16) times on the following dates:
DAY DATE
1) Monday September 23, 2013*
2) Tuesday October 22, 2013
3) Tuesday November 12, 2013
4) Wednesday November 13, 2013
5) Tuesday January 21, 2014*
6) Wednesday January 22, 2014*
7) Monday February 3, 2014*
8) Monday February 10, 2014
9) Monday March 3, 2014*
10) Friday March 21, 2014*
11) Monday April 7, 2014*
12) Monday April 28, 2014*
13) Monday May 12, 2014*
14) Tuesday May 13, 2014*
15) Wednesday May 21, 2014
SPECIFICATION 2: Approximately on or about between November 1, 2011 and September 2, 2014, Respondent, while assigned to The Michael E. Berdy School for The Arts, was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or a fraudulent document to explain his absences from work approximately nineteen (19) times on the following dates:
DAY DATE
1. Tuesday November 1, 2011
2. Wednesday November 2, 2011
3. Monday December 19, 2011*
4. Monday March 12, 2012*
5. Thursday May 10, 2012
6. Friday May 11, 2012
7. Monday December 10, 2012*
8. Monday March 4, 2013*
9. Tuesday November 12, 2013*
10. Wednesday November 13, 2013*
11. Tuesday January 21, 2014*
12. Wednesday January 22, 2014*
13. Friday March 21, 2014*
14. Monday April 7, 2014*
15. Monday April 28, 2014*
16. Monday May 12, 2014*
17. Tuesday May 13, 2014
18. Wednesday May 21, 2014
19. Thursday June 19, 2014
SPECIFICATION 3: Approximately on or about and between November 1, 2011 and September 2, 2014, Respondent, while assigned to the Michael E. Berdy School for The Arts, was paid for the days he claimed to be sick, knowing he was not entitled to receive said money when he submitted a false or a fraudulent document to explain his absences from work, in the amount of approximately $3556.90.
SPECIFICATION 4: During the conduct as stated in Specifications 1, 2 and/or 3 above, Respondent did offer a False Instrument for Filing, in that Respondent, knowing that a written statement contains a false statement or false information, did offer or present it to a public office or public servant with the knowledge or belief that it will filed with, registered or recorded in or otherwise become a part of the records of such public office or public service.
SPECIFICATION 5: Dismissed
Mr. Mirenberg made a mistake. In order to cover his excessive absences, he handed in altered doctor's notes. He claimed he was in panic mode. Arbitrator Michael Lazan terminated him after looking at all the prior decisions of arbitrators handed in by the Department with similar complaints about the teacher charged with fraudulently handing in doctor's notes and violating the 'honor code' for teachers who take absences for supposedly some kind of illness.
The NYC Department of Education cited Penal Law Sect. 170.00(4):
A person "falsely makes" a written instrument when:he makes or draws a complete written instrument in its entirety, or an incomplete written
instrument, which purports to be an authentic creation of its ostensible maker or drawer, but
which is not such either because the ostensible maker or drawer is fictitious or because, if real,
he did not authorize the making or drawing thereof.
Arbitrator Michael Lazan in his 3020-a decision in this case:
"It is regrettable that a teacher capable of good performance put himself in this situation, and it is certainly sad that the students in New York City will have lost a teacher with special expertise. Still, in a case like this, I must conclude that Respondent's actions constitute "conduct unbecoming a teacher," and that there is just cause for terminating Respondent from his position as a teacher for the New York City Department of Education."
Supreme Court Judge Lucy Billings originally had this case on Appeal (Article 75) and denied the DOE's Motion To Dismiss for insufficient supporting evidence. The case was transferred to the Part of Judge Carmen Victoria St. George, who granted the DOE's Motion To Dismiss and denied Mr. Mirenberg's Petition to vacate his termination.
The lesson here is that no DOE employee should create fake documents because he/she, if charged with 3020-a, will be terminated.
Below is the decision:
MATTER
OF MIRENBERG v. NEW YORK CITY DEPT. OF EDUC.
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653846/2015.
2018 NY Slip Op 50670(U)
IN THE MATTER OF THE APPLICATION OF EVAN MIRENBERG, Petitioner,
v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
Supreme Court, New York County.
Decided May 9, 2018.
Attorney(s) appearing for the Case
The Charrington Firm, P.C., Karen H. Charrington , One Cross Island
Plaza, Suite 212, Rosedale, NY 11422, for Petitioner.
Corporation Counsel, Shirley W. Bi , 100 Church Street, New
York, NY 10007-2601, for Respondent.
CARMEN VICTORIA ST. GEORGE, J.
In this proceeding, petitioner seeks an order
which reverses Arbitrator Michael Lazan's November 11, 2015 decision sustaining
certain specifications and charges against him. Petitioner further seeks a
declaration that the penalty, the termination of his employment as a special
needs teacher, was disproportionate and shocking to the conscience; a
modification of the award to include a lesser penalty; reinstatement with back
pay and full credit for the period of his allegedly wrongful termination for
the purposes of retirement benefits; and removal of petitioner from the
ineligible list.
Initially, respondent the New York City
Department of Education (DOE) filed a pre-answer cross-motion to dismiss the
petition, and petitioner moved for a preliminary injunction in lieu of notice
of petition. On May 17, 2017, Justice Lucy Billings, who previously presided
over the case, issued the order which denied the cross-motion and the request
for injunctive relief. As to the cross-motion, Justice Billings ruled that
without the full record of the administrative proceedings respondent did not
sustain its burden. As to the request for preliminary relief, the judge
concluded that although petitioner had set forth cognizable legal claims he had
not shown a likelihood of success on the merits. Following the issuance of
Justice Billings' order, respondent answered the petition and the parties filed
additional papers. The matter subsequently was transferred to this Part, and
this Court heard oral argument. At the end of the argument, this Court
requested letter briefs on recent Court of Appeals cases and on the pertinent
concurring opinions. The Court has considered all the material before it,
including the subsequent letter briefs, and incorporated its conclusions into
this decision. After careful consideration, this Court dismisses the petition.
Petitioner became a certified special
education teacher in 2004 and he worked for respondent until his termination in
2015. Throughout his employment with the DOE respondent, he received positive
performance evaluations, received awards and praise as a Science, Technology,
Engineering, and Math (STEM) educator, including a STEM Educator Award in 2012
and a Brooklyn Borough President's Proclamation regarding his work involving
LEGO education. LEGO named him "teacher of the month" in June 2013,
and Scholastic Educator Magazine featured him in its article, "Super Cool
Teacher" in March 2014.
According to petitioner, he has suffered from
an anxiety disorder as well as attention deficit syndrome since high school.
Petitioner alleges that for a period of eight years he was treated for this
disorder by Dr. Dean F. Giannone without success. He states that now he is
treated by Dr. Judy Scher, and under her care he successfully manages these
disabilities. Currently, petitioner teaches at a private school. Before his
disorder was under control, and while he was an employee of respondent, he
missed several days of work annually due to his disability. Like all teachers,
petitioner was entitled to take a maximum of ten sick days per year from his
cumulative absence reserve (CAR). A doctor's note is not required for these
absences, although employees are encouraged to submit such notes whenever
possible. Furthermore, a teacher can take "self-treatment" days when
he or she does not treat with a doctor; this must relate to a teacher's illness
or disability for a condition for which self-care is approved. Finally, more
than ten additional absences — other than days for jury duty, funerals, and other
exceptions — is considered excessive.
The charges which led to petitioner's
termination relate to petitioner's work at two schools. Petitioner spent seven
years as a special education classroom teacher at the first of these schools,
P.S. 188. During his eighth year, the 2013-2014 school year, he piloted the
school's STEM and robotics program. Around June 5, 2014, Principal Frederick
Tudda, discussed petitioner's high number of absences for the 2013-2014 school
year. Petitioner informed the principal that he had kidney problems. The
principal wrote a letter to petitioner's file about this conversation,
including the comment that his absences were excessive. Furthermore, although
petitioner provided lesson plans for the days he was absent from P.S.188, only
one other teacher at the school knew how to teach robotics and it would not
have been feasible to have that teacher cover petitioner's classes during all
his absences.1
Petitioner resigned from P.S. 188 in 2014 and
in September 2014 he commenced a new job, as a magnet resource specialist at
P.S. 307K. He obtained this position pursuant to a $1.8 million grant which
enabled the school to develop into a STEM magnet school. The school hired one
other magnet resource specialist at petitioner's level as well as a senior
magnet resource specialist. The job required him to instruct third, fourth, and
fifth grade students regarding STEM and to train the other teachers at the school
so that they also could teach STEM. Petitioner was absent twice in
mid-September, his first month at P.S. 307K, and he provided a medical note to
the principal. Principal Roberta Davenport's secretary pointed out that the
note looked suspicious, and the principal contacted Dr. Giannone, who
purportedly authored the note. The doctor stated that he did not write the
note.
After she received the doctor's response,
Principal Davenport met with petitioner. Petitioner, who was accompanied by his
union representative, reiterated the statement he made to Principal Tudda at
P.S. 188, that he had kidney problems. He added that he had undergone an MRI on
one of the dates in question. On October 13, 2014, Principal Davenport notified
the Office of the Special Commissioner of Investigation for the New York City
School District (SCI) of the incident. SCI undertook an investigation,
determined petitioner had committed fraud, recommended that petitioner be
terminated from his position, and referred the matter to the Kings County
District Attorney's (DA) office for review. In addition, SCI made similar
findings and made a subsequent referral to the DA when, after further
investigation, Principal Davenport discovered fifteen similar notes in
petitioner's personnel file.
Respondent commenced two cases seeking
petitioner's termination. The cases include the following specifications, which
relate to petitioner's work at The Michael E. Berdy School for The Arts (P.S.
188) and at Daniel Hale William, The Magnet School for Science, Technology,
Engineering and Mathematical Studies (P.S. 307K):
CASE No.
26,748
SPECIFICATION 1: On or about and between September 9, 2013 and June 27,
2014, [petitioner], while assigned to The Michael E. Berdy School for The Arts,
was excessively absent from work approximately sixteen (16) times on the
following dates:DAY DATE 1) Monday September 23, 2013*2 2)
Tuesday October 22, 2013 3) Tuesday November 12, 2013 4) Wednesday November 13,
2013 5) Tuesday January 21, 2014* 6) Wednesday January 22, 2014* 7) Monday
February 3, 2014* 8) Monday February 10, 2014 9) Monday March 3, 2014* 10)
Friday March 21, 2014* 11) Monday April 7, 2014* 12) Monday April 28, 2014* 13)
Monday May 12, 2014* 14) Tuesday May 13, 2014* 15) Wednesday May 21, 2014 16)
Thursday June 19, 2014
SPECIFICATION 2: On or about September 16 and/or
September 17, 2014, [while] assigned to [P.S. 307k] [petitioner] submitted
and/or caused to be submitted a false and/or fraudulent doctor's note to the
Department stating that he had seen a doctor in order to excuse his absences
from work.
SPECIFICATION 3: On or about September 16 and/or September 17, 2014,
while assigned to [P.S. 307K], [petitioner] was paid for the day he claimed to
be sick knowing that he was not entitled to receive said money when he
submitted a false or fraudulent document to explain his absences from work.CASE
# 27,238
SPECIFICATION 1: Approximately on or about between November 1, 2011 and
September 2, 2014, [petitioner], while assigned to [P.S. 188], submitted and/or
caused to be submitted a false and/or fraudulent doctor's notes to the
Department stating that he had seen a doctor in order to excuse his absences
from work approximately (19) times on the following dates:DAY DATE 1. Tuesday
November 1, 2011 2. Wednesday November 2, 2011 3. Monday December 19, 2011* 4.
Monday March 12, 2012* 5. Thursday May 10, 2012 6. Friday May 11, 2012 7.
Monday December 10, 2012* 8. Monday March 4, 2013* 9. Tuesday November 12, 2013*
10. Wednesday November 13, 2013* 11. Tuesday January 21, 2014* 12. Wednesday
January 22, 2014* 13. Friday March 21, 2014* 14. Monday April 7, 2014* 15.
Monday April 28, 2014* 16. Monday May 12, 2014* 17. Tuesday May 13, 2014 18.
Wednesday May 21, 2014 19. Thursday June 9, 2014
SPECIFICATION 2: Approximately
on or about between November 1, 2011 and September 2, 2014, [petitioner], while
assigned to [P.S. 188], was paid for the days he claimed to be sick knowing
that he was not entitled to receive said money when he submitted a false or
fraudulent document to explain his absences from work approximately nineteen
(19) times on the following dates:DAY DATE 1. Tuesday November 1, 2011 2.
Wednesday November 2, 2011 3. Monday December 19, 2011* 4. Monday March 12,
2012* 5. Thursday May 10, 2012 6. Friday May 11, 2012 7. Monday December 10,
2012* 8. Monday March 4, 2013* 9. Tuesday November 12, 2013* 10. Wednesday
November 13, 2013* 11. Tuesday January 21, 2014* 12. Wednesday January 22,
2014* 13. Friday March 21, 2014* 14. Monday April 7, 2014* 15. Monday April 28,
2014* 16. Monday May 12, 2014* 17. Tuesday May 13, 2014 18. Wednesday May 21,
2014 19. Thursday June 9, 2014
SPECIFICATION 3: Approximately on or about
between November 1, 2011 and September 2, 2014, [petitioner], while assigned to
[P.S. 188], was paid for the days he claimed to be sick knowing that he was not
entitled to receive said money when he submitted a false or fraudulent document
to explain his absences from work, in the amount of approximately $3556.90.SPECIFICATION
4: During the conduct as stated in Specifications 1, 2 and/or 3 above,
[petitioner] did offer a False Instrument for Filing, in that Respondent,
knowing that a written statement contains a false statement or false
information, did offer or present it to a public office or public servant with
the knowledge or belief that it will [be] filed with, registered or recorded in
or otherwise become a part of the records of such public office or public
service.
SPECIFICATION 5: Approximately on or about between November 1, 2011 and
September 2, 2014, [petitioner], while assigned to P.S. 307K . . ., was paid
for the days he claimed to be sick knowing that he was not entitled to receive
said money when he submitted a false or fraudulent document to explain his
absences from work approximately nine (9) times on the following dates:DAY DATE
1. Tuesday September 16, 2014 2. Wednesday September 17, 2014 3. Monday
September 29, 2014 4. Friday November 14, 2014 5. Monday November 17, 2014 6.
Monday January 12, 2015 7. Tuesday January 13, 2015 8. Monday March 2, 2015 9.
Tuesday April 21, 2015
The Foregoing
Constitutes:
Just cause for
disciplinary actions under Education Law Sect. 3020-a;Conduct unbecoming
[petitioner's] position, and conduct prejudicial to the good order, efficiency,
or discipline of the service;Fraud;Conduct that could Constitute a
Crime;Substantial cause rendering [petitioner] unfit to perform his obligations
properly to the service;Violation of Chancellor's Regulations;Violation of the by-laws,
rules and regulations of the Chancellor, Department School or District;Neglect
of duty; andJust cause for termination*Denotes a day before or after a weekend
and/or holiday
(In re New York City Department of
Education v Mirenberg, SED File Nos. 26,748/27, 238, Exh. A [NYSCEF
doc No. 5] [DOE v Mirenberg], at pp 3-7).
Petitioner and respondent appeared before
Arbitrator Michael S. Lazan, Esq. to determine what, if any, penalty was
appropriate for the charges above (see Education Law § 3020-a).
Arbitrator Lazan held numerous prehearing conferences between April 9, 2015 and
July 9, 2015. The hearing began on July 9, 2015 after the prehearing
conference, and it continued on July 22, July 23, August 12, August 13,
September 17, September 25, and September 30. During the hearings, the
arbitrator listened to the testimony of several witnesses including petitioner,
the principals of the two schools, Dr. Giannone, and petitioner's father.
In its opening statement on July 9, 2015,
respondent3 stated
that there were two reasons petitioner should be terminated from his job: 1) he
had been excessively absent from school, and 2) he had submitted fraudulent
sick notes over the course of several years to justify some of those absences.
Petitioner's counsel presented her opening statement on July 22, 2015. Counsel
stated that petitioner suffered from a kidney condition and from anxiety. She
noted that under the Americans With Disabilities Act (ADA), petitioner's
anxiety disorder qualifies as a protected condition. She pointed out that
despite his allegedly excessive absences, he received positive or satisfactory
ratings during the periods in question; and that, while Principal Tudda
discussed petitioner's absences he did not discipline him. Thus, petitioner's
absences had not interfered with his job as a teacher.
In his November 2015 determination, Arbitrator
Lazan considered the parties' positions. The decision noted that petitioner
admitted to altering sixteen medical notes but claimed he did not receive extra
pay for the dates in question because he was entitled to ten self-treated days
for which no note was required. He stated that he was not excessively absent
during the 2014-2015 school year. He finally argued that he altered the medical
notes under the influence of his panic attacks and his anxiety disorder.
Petitioner claimed that his disorder had prevented him from teaching on the
dates he was absent, and his embarrassment about his condition had caused him
to lie. He stressed that now, with proper care, he no longer is hampered by his
disability.
In response, respondent argued that petitioner
defrauded the school system, and that he additionally lied to two school
principals about his fabricated kidney condition.4 His
misconduct was compounded by the fact that petitioner has never taken
responsibility for submitting the notes but instead has attempted to excuse
them. They stressed that many of the absences were on Mondays and Fridays, thus
extending his weekends, that he repeated this pattern on a regular basis — all
of which undercut petitioner's argument that these actions were impulsive and
caused by his panic attacks. They noted that Dr. Giannone's progress notes did
not support petitioner's position that his anxiety was disabling. They argued
that the affidavit of petitioner's current treating therapist, Dr. Scher, is of
no probative value as petitioner did not produce her as a witness.
The arbitrator first evaluated petitioner's
claim that he is insulated from any adverse employment action under the
Americans with Disabilities Act of 1990 (the ADA) (42 U.S.C. §§ 12101 et seq),
which prevents employers from discriminating against individuals with
disabilities that do not interfere with their work performance. He determined
that, even if petitioner showed the existence of an anxiety disorder,5 he
did not show that it had a major limiting impact on his life or his ability to
perform his job. Dr. Giannone, the arbitrator noted, testified at the hearing
that petitioner could perform normal activities despite his anxiety disorder.
The arbitrator further noted that Dr. Scher's affidavit, the sole evidence on
which petitioner relied to support this claim, merely stated that petitioner
has an anxiety disorder which, during stressful times, impaired his
decision-making ability. Relying on federal case law such as Cody v
County of Nassau (577 F.Supp.2d 623, 639 [EDNY 2008]), Arbitrator Lazan
stated that Dr. Scher's affidavit was insufficient to establish discrimination.
Next, the arbitrator noted that teachers are
given the benefit of an honor system as to their self-treated days. Medical
documentation is not required for the first ten days of such absences, and —
with notice — three of those days may be used for personal business. Arbitrator
Lazan concluded that, "[b]y altering the sick notes from Dr. Giannone,
[petitioner] effectively sidestepped the Department's policy on `allowing' ten
`self-treated' days. Even aside from the fact that [petitioner] committed fraud
on [respondent], [petitioner] gave himself permission to take an extra six days
of absence without having to provide any medical backup" (DOE v
Mirenberg, at p 16). Arbitrator Lazan rejected petitioner's argument
that sixteen days of absence is not excessive, relying on Principal Tudda's
statement that after ten days, a teacher's absences might be considered
excessive and on P.S.188's faculty conference notes, in evidence, which stated
as much. The arbitrator further agreed with respondent that because of petitioner's
fraud, all of the challenged absences were improper. He stated that, contrary
to petitioner's argument, his absences had an impact on the school in
2013-2014. Thus, he sustained the first specification, which related to
petitioner's work at P.S.188.
Arbitrator Lazan next sustained the second
specification which related to petitioner's actions while he was at P.S.307K.
He determined that petitioner falsified the doctor's notes he submitted for
September 16 and 17, 2014. As for specification three, the arbitrator found
that petitioner improperly accepted payment for these days as he had not
submitted any evidence establishing that he was ill, and his then-treating
physician credibly testified his anxiety was not disabling and provided
progress notes which refute petitioner's statements about his mental health
during specified periods. Arbitrator Lazan found that petitioner was not
credible, pointing out that he changed his testimony on several occasions when
confronted with evidence contradicting his contentions. He further found that
petitioner was not credible based on the record, which established that he lied
about his purported kidney problems.
The arbitrator also considered the claims in
the second case. He sustained specification one, relating to his nineteen
falsified doctor's notes at P.S.188. Although, as petitioner argued, an
arbitrator generally cannot rule on claims relating to conduct over three years
before the filing of the specifications, he had the power to do so here because
fraud (a crime) was involved (Educ. Law § 3020-a [1]). He rejected petitioner's
arguments that he did not mean to defraud respondent and he found petitioner's
contention that he had intended to reveal that he was ill without specifying
his condition was of no avail. He stated that, under Aronsky v
Department of Education (75
N.Y.2d 997, 1000 [1990]), respondent had satisfied the fraud by the
applicable substantial evidence standard.
In addition, the arbitrator sustained
specification two in the second case. The specification also relates to the
nineteen days for which petitioner submitted fraudulent doctor's notes. As with
a similar charge in the first case, Arbitrator Lazan found that petitioner
improperly accepted payment for the nineteen days in question. The arbitrator
reiterated that "[petitioner's] testimony was inconsistent and at times
hard to believe" (DOE v Mirenberg, at p 25) — using, as an
example, petitioner's statement that Dr. Giannone knew petitioner was writing
altered doctor's notes. Arbitrator Lazan again reviewed Dr. Scher's affidavit
and viewed it unpersuasive, noting that she stated petitioner suffered panic
attacks in 2007, when he missed very few days of class, and that she did not
indicate petitioner's condition prevented him from working. Because he
sustained specification two, he sustained specification three, which stated
that petitioner improperly accepted money for the days in question. He
sustained specification four, which required him to consider whether petitioner
violated the penal law. He rejected petitioner's argument that he lacked
authority to rule on this issue, concluding that he only considered it only
because it was necessary to determine whether he could rule on claims that were
over three years old (see Educ. Law § 3020-a [1]).
Finally, the arbitrator dismissed
specification five in the second case. This charge alleged that petitioner was
excessively absent during his year at P.S.307K. He noted that "the pattern
and practice [of respondent] appears to be that more than ten absences in the
school year are required for a teacher's absences to be deemed
`excessive'" (DOE v Mirenberg, at p 29), and pointed to
testimony and evidence supporting his conclusion. He rejected respondent's
position that the two fraudulent notes from September transformed his absences
from excusable to excessive.
Based on all the aforementioned findings,
Arbitrator Lazan concluded that petitioner's termination was justified. He
noted that petitioner concededly altered doctor's notes, and that he only
stopped doing so when "he was caught by a sharp-eyed secretary and an
attentive principal" (id., at p 31). He rejected petitioner's
statements that he repented of his wrongdoing, partially on the basis that he
didn't acknowledge his wrongdoing and repent of it before he was caught — even
after Principal Tudda reprimanded him for his excessive absences. He noted
that, notwithstanding petitioner's claim of panic attacks, he was not under the
influence of an attack when he turned in the falsified documents. He noted that
petitioner's statement that he is now rehabilitated was self-serving and lacked
evidentiary support, and that the only witness who supported petitioner's
claims was one of his parents. The arbitrator noted that the record supports
petitioner's claim that he is a good teacher, but concluded that
"dishonesty on this scale cannot be tolerated in the workplace" (id., at
p 33). He pointed out that petitioner
submit[ted] cases in support of his position,
but not a single case where similar fraud by a teacher results in an arbitrator
levying a penalty less than termination. The Department, on the contrary,
presents case after case where where teachers submitted fraudulent medical
notes and were terminated by arbitrators. See, e.g., New York City
Dep't of Educ. v. S.B., Case #5,215 (2006) (Bauchner, Arb.).
Based on the above, Arbitrator Lazan found
that respondent had shown — and petitioner had failed to refute — that
termination was an appropriate penalty on the facts of the case.
DISCUSSION
Education Law § 3020-a sets forth the
procedures and penalties for disciplinary actions against tenured teachers.
Subsection five of that statute authorizes judicial review of aarbitrator's
decision. That review is limited to grounds set forth in Section 7511(b) (1) of
the Civil Practice Law and Rules: 1) corruption, fraud or misconduct in the
award's procurement, 2) bias on the part of the arbitrator, 3) a decision which
shows the arbitrator exceeded his power or failed to clearly resolve the case,
and 4) failure to follow the procedural guidelines. Where parties have
submitted to compulsory arbitration, this Court applies a stricter standard of
review than it does in voluntary arbitrations (See, e.g., Lackow v. Dep't of
Educ., 51 A.D.3d 563, 567 [1st Dept 2008]). The
arbitrator's decision must accord with due process, be supported by adequate
evidence, and be rational and satisfy the arbitrary and capricious standards
under Article 78 of the Civil Practice Law and Rules (id.) An
arbitrator's credibility determinations, however, are "largely
unreviewable" (id. at 568). Petitioner bears the burden of
proof in challenging the arbitrator's decision under these standards (id.).
Moreover, as the Court of Appeals stressed recently in Matter of Bolt v
New York City Department of Education (30
N.Y.3d 1065, 1068 [2018]), even if a court disagrees with the severity
of the penalty imposed, this "does not provide a basis for vacating the
arbitral award or refashioning the penalty."
The Court has set forth the underlying
arguments in detail above. In brief, the petition states that the arbitrator
was biased, committed legal errors, and reached an arbitrary, irrational
conclusion. Petitioner challenges the arbitrator's credibility determinations.
He notes the above-cited standard of review and cites to his protected status
as a tenured teacher. He also states that in cases involving employees with
prior good service, courts have deemed termination too harsh and suspended the
teachers instead.
After careful consideration, the Court
concludes that there is no merit to Petitioner's contentions in the instant
application. The arbitrator's determination, as set forth herein, was rational
(Matter of Grassel v Department of Education of the City of New York,
158 A.D.3d 501, 501 [1st Dept 2018]). As in Matter of Berkley v New
York City Department of Education,there was ample evidence in the record
that supported the arbitrator's decision (see ___ AD3d ___, ___,
2018 NY Slip Op 01669 [1st Dept 2018] [Berkley], at p 3). Petitioner cites to
no specific examples of the arbitrator's alleged bias (see Grassel, 158
AD3d at 501), and does not indicate that the arbitrator committed any specific
legal error.
Petitioner's argument that the arbitrator did
not consider Dr. Scher's affidavit lacks merit. Contrary to petitioner's
contention, Arbitrator Lazan considered and discussed the affidavit of Dr.
Scher and provided a cogent analysis (see supra, at pp 9, 11), but
did keep in mind that she did not appear and was not subject to
cross-examination. The arbitrator did not ignore, but commented upon,
petitioner's merit as a teacher. He simply concluded that the charges here were
serious enough to overshadow petitioner's talent and warrant termination. The
arbitrator's credibility findings are "largely unreviewable" (Matter
of Board of Education of the City School District of the City of New York v
Ostrin, 120 A.D.3d 1105 [1st Dept 2014]), and
petitioner has not shown evidence sufficient to justify deviation from this
deferential standard.
Moreover, the penalty of termination is not disproportionate,
as fraud is a serious allegation and petitioner failed to correct his
misconduct after his discussion with Principal Tudda (see Berkley, 2018
NY Slip Op 01669, at p 3). As the Court of Appeals found in Bolt, "the
penalties imposed are not irrational and do not shock the conscience" (Bolt, 30
NY3d at 1068). The Article 78 proceedings to which petitioner cites in are
distinguishable. Bovino v Scott (22
N.Y.2d 214 [1968]), for example, is a 1968 Court of Appeals
case under Article 78, not Article 75, and it evaluates the penalty imposed by
the Fire Commissioner on a firefighter. Mitthauer v Patterson (8
N.Y.2d 37 [1960]), is a 1960 Court of Appeals decision which
also arose under Article 78. In that case, the court affirmed an appellate
court decision which modified the penalty imposed on a petitioner, who had an
unblemished twenty-year record and then was found to have taken three
passengers' fares for herself.6 The
First Department's 1958 decision, under Article 78, vacated the dismissal of a
Public Works official with a long history of civil service who, during a period
of serious illness and numerous surgical procedures, failed to timely complete
an examination which the Commissioner of Investigation initiated under the
Security Risk Law. The 1971 Court of Appeals case, Picconi v Lowery (28
N.Y.2d 962[1971]), also related to the termination of a firefighter.
In addition, the arbitrator did not act irrationally in rejecting petitioner's
argument that he submitted the fraudulent doctor's notes due to his disability.
Rather, in that case, the arbitrator reasonably found that petitioner's actions
were not caused by the disability, both based on petitioner's own testimony
that he was not disabled when he submitted the doctor's notes and on the
failure of petitioner to submit any supporting evidence.
The Court has considered the parties' other
arguments, even if they are not discussed specifically in this order, and they
do not alter this conclusion. Therefore, it is
ORDERED that the petition is dismissed.
FootNotes
1. Arbitrator Lazan states this based on the hearing he held and the documents
before him. This Court discusses the arbitration supra at page
7.
2. This is a verbatim
copy of the specifications. As stated at the end of the charges, the asterisk
"Denotes a day before or after a weekend and/or holiday."
3. In the arbitration,
respondent here was the "petitioner" and petitioner here was the
"respondent." For the sake of clarity, however, the Court uses the
titles they have in this proceeding.
4. At times,
petitioner's attorney alludes to the fact that petitioner did have kidney
issues. The arbitrator found no information tying his absences or his decision
to submit fraudulent doctor's notes to his kidney problems.
5. The arbitrator did
not decide that petitioner was disabled, but assumed it for the sake of his
analysis.
6. She collected the
fees and told them not to go through the turnstile.
See also:
Dep’t of Education v. Brust OATH Index No. 2280/07 (Sept. 29, 2008), adopted, Chancellor’s Decision (Oct. 22, 2008),
appended
