Fraud Will Get You Terminated at 3020-a

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.

Cited Cases

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.

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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.

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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

 Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

Evan Mirenberg Wins In The Supreme Court on the Issue of Dishonesty as Sufficient For Termination, or Not

Summary of the decision:

Ex-teacher Mirenberg sought vacatur of a disciplinary decision by Department of Education (DOE) terminating his employment. Mirenberg previously resigned from PS 188 after being cautioned about excessive absences. He took a job at PS 307K, and DOE alleged he was absent on various days for which he submitted an allegedly forged doctor's note. After an investigation it was concluded Mirenberg forged numerous notes and charges were preferred against him—excessive absences and submitting forged notes, among others. He admitted to altering the notes, but argued his absences and fraud did not impact his effectiveness as a teacher. A Hearing Officer (HO) found against Mirenberg on all, but one, charge, recommending termination. Mirenberg challenged the decision. The court found DOE conceded it terminated Mirenberg's employment due to unprofessional conduct—dishonesty and excessive absences—but nowhere did the HO conclude if excessive absences were removed from the analysis, Mirenberg's dishonesty alone warranted termination. As Mirenberg did not need the notes to obtain paid leave his vacation days would have covered, the penalty imposed, if not based on excessive absences, may be disproportionate. DOE's motion to dismiss was denied.

• Supreme Court, New York County, IAS Part 46
• 653846/2015
• Justice Lucy Billings

Cite as: Matter of Mirenberg v. N.Y. City Dept. of Educ., 653846/2015, NYLJ 1202785731276, at *1 (Sup., NY, Decided April 17, 2017)

CASENAME

In the Matter of the Application of Evan Mirenberg, Petitioner v. New York City Department of Education, Respondent

653846/2015

Justice Lucy Billings

Read Summary of Decision

Decided: April 17, 2017

For a Judgment Pursuant to Article 75 of the C.P.L.R.

DECISION AND ORDER

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Petitioner, a former tenured teacher for respondent New York City Department of Education, seeks to vacate a disciplinary decision terminating his employment after a hearing pursuant to New York Education Law §3020-a.

I. UNDISPUTED BACKGROUND FACTS AND THE PARTIES' CLAIMS

In June 2014, petitioner resigned from Public School (P.S.) 188, where he had worked since 2004, after P.S. 188's Principal Frederick Tudda cautioned petitioner about his excessive absences. Petitioner, who had been absent 16 days during the 2013-14 school year, advised Principal Tudda that a kidney condition had caused these absences.

Petitioner then accepted a position at P.S. 307K for the 2014-15 school year. Respondent claims that he was absent September 16-17, 2014, and submitted a forged physician's note excusing these absences. When P.S. 307K's principal, Roberta

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Davenport, contacted petitioner's physician, Dean Giannone M.D., to verify the note's authenticity, Dr. Giannone responded that he did not write the note. Principal Davenport contacted respondent's Office of the Special Commissioner of Investigation (SCI), who investigated, concluded that petitioner had forged the note, and recommended that he be terminated from his employment. In January 2015, Davenport discovered 15 prior notes from Dr. Giannone in petitioner's personnel file, many related to the 16 absences during 2013-14, and also referred them to SCI, who again investigated, concluded that petitioner had forged the notes, and recommended termination of his employment.

Respondent preferred two sets of charges against petitioner in 2015. The first set of charges alleged that he (1) was excessively absent 16 times between September 9, 2013, and June 27, 2014, while assigned to P.S. 188; (2) submitted a forged physician's note for September 16 and 17, 2014, while assigned to P.S. 307K; and (3) received pay for these medical absences when they were not due to a medical condition. The second set of charges alleged that petitioner (1) submitted forged physician's notes to excuse his absences 19 times between November 1, 2011, and September 2, 2014; (2) received pay for medical absences when they were not due to a medical condition during that same period; and (3) was excessively absent nine times during the 2014-15 school year.

Petitioner was afforded a hearing before a neutral

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arbitrator pursuant to Education Law §3020-a, where petitioner claimed that he suffers from an anxiety disorder and panic attacks, which caused his absences and prompted him to forge the notes. He admitted that he altered the notes in question, but maintained that his absences and fraudulent notes did not impact his effectiveness as a teacher or his students in any way and that he did not derive a monetary benefit from the altered notes, as his available vacation leave covered all his absences for which he submitted a fraudulent note. Finally, petitioner explained that his behavior resulted from Dr. Giannone's mistreatment of the anxiety disorder and panic attacks, that petitioner subsequently had addressed his condition through current therapy with Judy Scher Psy.D., and that he was an excellent teacher regardless of these incidents.

The Hearing Officer found against petitioner on all but one of the charges and recommended termination of his employment, because he intentionally forged the physician's notes and continued to be excessively absent even after Principal Tudda confronted petitioner about his absences. The Hearing Officer held that petitioner failed to produce any evidence that his anxiety disorder or panic attacks caused him to forge the notes or that Dr. Giannone mistreated petitioner, causing his behavior. The Hearing Officer concluded that petitioner's dishonesty outweighed his excellence in teaching and, combined with his excessive absences that negatively affected his teaching, warranted termination of his employment as the only

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suitable penalty.

II. THIS PROCEEDING

Petitioner challenges the Hearing Officer's decision as irrational and arbitrary, because the Hearing Officer relied on testimony by Dr. Giannone that was not credible and ignored evidence that petitioner suffered from an anxiety disorder and panic attacks that affected his judgment in deciding to forge the notes. Dr. Giannone testified in person and, while acknowledging that petitioner suffered from an anxiety disorder, never diagnosed panic attacks and found that the anxiety disorder was under control and did not affect his daily functioning or professional capabilities. Petitioner, in contrast, presented his psychological evidence only through Dr. Scher's brief sworn report. Moreover, she attested only that she treated petitioner for panic attacks in 2007 and that his diagnosed anxiety disorder, which continued into 2015, could, but not that it did, alter his judgment and affect his decisionmaking. Petitioner presented no medical or psychological evidence that Dr. Giannone negligently or ineffectively treated petitioner, causing his aberrant behavior. All these factors bore on the Hearing Officer's assessment of these witnesses' credibility, their testimony's probative weight, and his consequent factual findings, for which the court may not substitute its own judgment. C.P.L.R. §7511(b)(1); Brito v. Walcott, 115 A.D.3d 544, 545 (1st Dep't 2014); Cipollaro v. New York City Dept. of Educ., 83 A.D.3d 543, 544

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(1st Dep't 2011); Lackow v. Dept. of Educ. (or "Board") of City of N.Y., 51 A.D.3d 563, 568 (1st Dep't 2008).

Nevertheless, petitioner also claims that the evidence in the hearing record does not support the Hearing Officer's finding that petitioner's absences were excessive, because no evidence indicates his absences affected his teaching or his students' learning. Finally, petitioner challenges the penalty as shocking to the conscience and disproportionate to his conduct in view of his teaching record and his rehabilitation. Respondent moves to dismiss the petition because, in all these respects, it fails to state a claim. C.P.L.R. §3211(a)(7).

III. RESPONDENT'S MOTION TO DISMISS THE PETITION

When evaluating respondent's motion to dismiss under C.P.L.R. §3211(a)(7), the court must acceptpetitioner's allegations as true, liberally construe them, and draw all reasonable inferences in his favor. JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 764 (2015); Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 (2013); Lawrence v. Miller, 11 N.Y.3d 588, 595 (2008); Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007). Dismissal is warranted only if the petition fails to allege facts that fit within any cognizable legal theory. Lawrence v. Miller, 11 N.Y.3d at 595; Nonnon v. City of New York, 9 N.Y.3d at 827; Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 570-71 (2005); Mill Financial, LLC v. Gillett, 122 A.D.3d 98, 103 (1st Dep't 2014).

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Without the complete record of the administrative hearing, respondent fails to establish that petitioner lacks any cognizable legal claim. As set forth above, petitioner claims that the record does not support the Hearing Officer's finding that petitioner was excessively absent during the 2013-14 school year as no evidence indicated his absences limited his effectiveness. Both petitioner and the Hearing Officer cite to the New York City Department of Education Chancellor's Regulation §C-601(1)(c), which provides that excused absences alone are not grounds for disciplinary action. Only "absences which are so numerous as to limit the effectiveness of service may lead to disciplinary action."

The Hearing Officer did not conclude that this regulation was inapplicable because petitioner's absences, excused only by fraudulent notes, were unexcused. The omission of such a conclusion allows for a conclusion that his absences would have been covered by his available vacation leave. The Hearing Officer held only that petitioner's absences during the 2013-14 school year were so numerous that they limited his effectiveness, relying on Principal Tudda's testimony, correspondence to petitioner in February 2014 warning him about his absences, and petitioner's testimony that another teacher was capable of replacing him. V. Pet. Ex. A, at 17-18.

Principal Tudda's testimony that the Hearing Officer cites, however, concludes only that excessive absences, in the abstract, may disrupt continuity in the teaching and curriculum

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and impact learning, but does not find that petitioner's excessive absences disrupted his teaching, curriculum, or students' learning or limited his effectiveness. Id. Ex. M, at 732-33. While petitioner's testimony may bear on whether petitioner was replaceable, this testimony does not support the conclusion that his excessive absences limited the effectiveness of his teaching. Id. Ex. N, at 753.

Finally, respondent may not rely on the February 2014 letter that the Hearing Officer cites, as informing petitioner that his absences disrupted his students' learning and might result in an unsatisfactory rating, id. Ex. A, at 17, since this correspondence is not an exhibit to the petition and therefore, even had respondent presented such an exhibit, may not be considered to support respondent's motion. Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d at 351; Lawrence v. Miller, 11 N.Y.3d at 595; GEM Holdco, LLC v. Changing World Tech., L.P.. 127 A.D.3d 598, 599-600 (1st Dep't 2015). In fact this correspondence may be simply notice to petitioner regarding his unsatisfactory performance, rather than a finding of disruption to his students' learning based on personal knowledge. Even insofar as respondent may rely on this correspondence as a warning to petitioner, he denies that he received it, and the Hearing Officer did not find to the contrary.

On the other hand, the exhibits to the petition do include many positive evaluations of petitioner during the 2013-14

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school year and letters of recommendation and praise from multiple faculty members, including Principal Tudda. This evidence, if also in the administrative hearing record, buttresses petitioner's claim that his absences did not limit his effectiveness and thus were not excessive. Therefore, drawing all inferences in his favor, the complete record may establish that his absences did not limit the effectiveness of his teaching and thus were not excessive, such that the Hearing Officer's contrary finding was not supported by the record.

While petitioner's success on this claim would not negate his admitted dishonesty, the Hearing Officer, in finding termination of petitioner's employment the only penalty warranted, cited to the finding against petitioner on the charge of excessive absences for the 2013-14 school year. As respondent acknowledges, it terminated his employment because of his unprofessional conduct in two respects: his dishonesty and his excessive absences. The Hearing Officer nowhere concludes that, if excessive absences were removed from his analysis, petitioner's dishonesty alone would warrant termination of his employment. As petitioner urges, the very fact that he did not need the physician's notes to obtain paid leave, as the complete record will disclose accumulated vacation leave to cover all the days for which he used the notes, shows that a disorder affected his judgment, negates any dishonest derivation of compensation, and otherwise ameliorates his dishonesty. Therefore the penalty imposed, if no longer based on the excessive absences, may be

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disproportionate.

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IV. PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION

Although the petition alleges cognizable legal claims, petitioner does not demonstrate such a likelihood of success on those claims as to warrant a preliminary injunction reinstating him in his teaching position with respondent. C.P.L.R. §§6301, 6312(a); Kalyanaram v. New York Inst. of Tech., 63 A.D.3d 435, 435 (1st Dep't 2009). See Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 (2005); A1 Entertainment LLC v. 27th St. Prop. LLC, 60 A.D.3d 516, 516 (1st Dep't 2001); Metropolitan Steel Indus., Inc. v. Perini Corp., 50 A.D.3d 321, 322 (1st Dep't 2008); U.S. Re Cos., Inc. v. Scheerer, 41 A.D.3d 151, 154-55 (1st Dep't 2007). Nor does he demonstrate the irreparable harm required for a preliminary injunction because, if he does succeed on his claim, he will be reinstated with retroactive compensation and benefits. C.P.L.R. §§6301, 6312(a); Valentine v. Schembri, 212 A.D.2d 371, 372 (1st Dep't 1995). See Zodkevitch v. Feibush, 49 A.D.3d 424, 425 (1st Dep't 2008); OraSure Tech., Inc. v. Prestige Brands Holdings, Inc., 42 A.D.3d 348, 348-49 (1st Dep't 2007); U.S. Re Cos., Inc. v. Scheerer, 41 A.D.3d at 155; Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 A.D.3d 223, 228-29 (1st Dep't 2004).

V. CONCLUSION

For the reasons explained above, the court denies respondent's motion to dismiss the petition. C.P.L.R. §3211(a) (7), and also denies plaintiff's motion for a preliminary injunction. C.P.L.R. §§6301, 6312(a). Respondent shall serve

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an answer to the petition within 30 days after service of this order with notice of entry, as requested. See C.P.L.R. §§3012(a), 3211(f), 7804(c)-(f). Petitioner shall serve any reply to the answer within 20 days after service of the answer. C.P.L.R. §§3012(a), 7804(c), (d), and (f). Upon petitioner's subsequent service and delivery to Part 46 of a new notice of his petition, the court will schedule a further hearing on the petition.

DATED: April 17, 2017