Matter of Matter of Principe v New York City Dept. of Educ.
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.
Gonzalez, P.J., Friedman, Moskowitz, Acosta, Richter, JJ.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 19, 2010, which, to the extent appealed from as limited by the briefs, denied respondent New York City Department of Education's (the DOE) cross motion to deny the petition and dismiss the proceeding brought pursuant to, among other things, CPLR article 75, and granted the petition to the extent of vacating as excessive the penalty of termination of petitioner's employment as a New York City schoolteacher, and remanded the matter to the Hearing Officer for a lesser penalty, affirmed, without costs.
Petitioner Peter Principe was the dean of discipline of a middle school located in East New York, where many of the students belong to criminal gangs. This proceeding arose from two incidents that occurred between petitioner and several students in 2007.
The first incident occurred on April 20, 2007. The Hearing Officer found that petitioner placed MT, an 11-year-old student, in a headlock and swung him around. At the hearing, petitioner denied placing MT in a headlock or swinging him around. Rather, petitioner testified that, after he received several reports of MT's misconduct from that morning and after breaking up two lunchroom fights involving MT, he took MT out of the lunchroom. Petitioner further testified that, as he was holding the lunchroom door open to allow other students to exit, he had his arm across the door to prevent MT from coming back into the lunchroom, but MT was pushing with his chest against petitioner's arm to get back into the lunchroom.
The second incident occurred on April 23, 2007. The Hearing Officer found that petitioner grabbed RP, a 13-year-old student, by the neck, threw him against a wall and requested RP and another student to retract their statements concerning the incident. At the hearing, petitioner testified that when he saw RP and another student in the hallway outside their homeroom teacher's classroom, he questioned them about their whereabouts that morning because he had learned from their homeroom teacher that they had run out of their homeroom class that morning, and petitioner had been unable to locate them in their morning classes. Petitioner further testified that, as he was questioning RP and the other student, they entered the homeroom teacher's classroom, and RP began shouting threats at his homeroom teacher. Petitioner testified that, as he and the two students were leaving the classroom, RP turned to re-enter the classroom and shouted more threats at his homeroom teacher, so petitioner grabbed RP to escort him from the room. As they turned to leave the classroom the two lost their balance and fell into the wall. Petitioner denied asking the students to retract their statements.
As to both incidents, the Hearing Officer found that petitioner's testimony was not credible and that he committed misconduct by using corporal punishment. We agree with the motion court that the Hearing Officer had an apparent bias against petitioner when he discredited petitioner's entire testimony based, in part, upon respondent's mischaracterization of a portion of petitioner's testimony in addition to petitioner's testimony that he had once filed for bankruptcy. We also agree with the motion court that, by discrediting petitioner's entire testimony, the Hearing Officer failed to consider all the circumstances, including the disciplinary histories of the students involved, the context of the threatening environment in which the two incidents took place and that, at the time of the two incidents, petitioner was, as he testified, "only fulfilling [the] demands" of his position as dean of discipline. Moreover, the Hearing Officer appeared to give an inordinate amount of credit to a portion of a video recording, related to the second incident, that had been altered from its original format so that it appeared frame by frame at one second intervals rather than its original format of a continuous video recorded in real time. The alteration to the videotape made what actually transpired during that incident unclear and equivocal. Although the motion court sustained the Hearing Officer's findings, petitioner did not cross appeal. That is understandable because petitioner otherwise received a favorable decision from the motion court.
The Hearing Officer also determined that termination was the appropriate penalty in this case. However, while we accept the Hearing Officer's findings against petitioner, we agree with the motion court that the evidence in this case demonstrates that petitioner's actions were not premeditated. Thus, given all of the circumstances, including petitioner's spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue, we find the penalty excessive and shocking to our sense of fairness (Matter of Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 ; cf. City School Dist. of the City of N.Y. v McGraham, 75 AD3d 445 , affd 17 NY3d 917  [penalty of 90-day suspension without pay and reassignment rather than termination reinstated in light of overall circumstances lending to the improbability of teacher engaging in similar inappropriate behavior in the future]).
Accordingly, we find that, in determining the penalty of termination, the Hearing Officer failed to consider all of the circumstances and relevant evidence, leading the Hearing Officer to view the incidents in isolation and divorcing them from the context in which they took place. Thus, we find the Hearing Officer's view of petitioner's credibility carried over, likely influencing his determination that petitioner should be terminated. Lesser sanctions are available that would deter petitioner from engaging in this conduct in the future (see Matter of Riley v City of New York, 2010 NY Slip Op 32540[U][Sup Ct, New York County 2010], affd 84 AD3d 442 ).
In this case, in view of the Hearing Officer's apparent unfair bias against petitioner, we believe that public policy considerations favor retention of a teacher who has a proven record of genuinely connecting with his students and making a positive impact in their lives (McGraham, 17 NY3d at 919 ["Courts will only intervene in the arbitration process in those cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator'"], quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 ). There is no evidence in the record to suggest that petitioner was not well liked by the student body, and as the motion court emphasized, RP, one of the students involved in the second incident "made clear that he really liked [Principe] and that he felt that [Principe] understood him and was really kind of rooting for him and helping him with his difficulties."
The dissent, in reasoning that the penalty in this case was proportionate so that it did not shock one's sense of fairness, cites cases in which the teachers involved engaged in conduct wholly unrelated to their employment with the DOE (Cipollaro v New York City Dept. of Educ., 83 AD3d 543 ; Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823 ). Indeed, in both Cipollaro and Rogers, neither of the teachers involved held a position similar to that of petitioner, the dean of discipline, and in both cases the hearing officer's determination to terminate the teachers' employment was based on fraudulent conduct wholly unrelated to their employment with the DOE. In the case before us, as the court below explained, petitioner "was put in the position of Dean of the school because obviously there was confidence in his judgment and his ability to deal with difficult situations and difficult children, which was the situation in both of these incidents" and "he was doing what he was supposed to be doing, which was to maintain order."
Moreover, the dissent cites Cipollaro for the proposition that, when determining the appropriate penalty, a hearing officer may consider a teacher's lack of remorse. Undoubtedly, it is entirely reasonable for a hearing officer to implement the harsher penalty of termination following a finding of a teacher's lack of remorse for engaging in fraudulent conduct. However, while lack of remorse is one factor that a hearing officer may consider when determining the appropriate penalty, here as the motion court articulated, the Hearing Officer placed petitioner in a "very difficult situation," when he expected petitioner to show remorse, while petitioner, ...