Asch v New York City Board/ 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.
Mazzarelli, J.P., Sweeny, Moskowitz, Renwick, Freedman, JJ.
Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered July 21, 2011, which granted the petition to vacate an arbitration award ordering petitioner suspended without pay for six months, restored petitioner's employment status with back pay, and denied respondent Department of Education's cross motion to dismiss the petition, unanimously reversed, on the law, without costs, the petition denied, the cross motion granted, and the arbitration award reinstated.
Petitioner is a tenured school librarian/media specialist with over 20 years of service. His record was unblemished until charges were filed against him by respondent Department of Education (DOE) in 2008 as the result of two separate investigations into incidents alleged to have occurred during school years 2005/2006, 2006/2007 and 2007/2008. The first investigation involved allegations of petitioner's failure to obtain proper school or parental permission before taking students on a field trip to Boston. The second investigation involved claims that he inappropriately touched several students.
At the conclusion of these investigations, petitioner was charged with nine specifications. Seven alleged that petitioner inappropriately touched several male students by rubbing their backs, shoulders and spines; whispering into one student's ear; striking two male students on the buttocks with a rolled up newspaper; running his fingers through a student's hair; grabbing and squeezing another male student's stomach after being told "[d]on't [t]ouch [m]e"; and lifting and rubbing the leg of a male student while saying words to the effect of "Insert foot! Open mouth." The two remaining specifications charged that he took seven students on a trip to Boston without proper school or parental permission.
A disciplinary hearing was held pursuant to Education Law § 3020-a(3). It was conducted over a period of 12 days from November 23, 2009 through April 2010. The relevant hearing testimony revealed the following:
Assistant Principal Eric Grossman testified that in February 2008, he was approached by student I.F., who told him that petitioner had "been touching the students in a way that made them feel uncomfortable for some time." I.F. showed Grossman a sheet of paper with several emails that had been cut and pasted as corroboration of these allegations. Grossman admitted that he did not request to see the original documents. Significantly, Grossman testified that I.F. did not appear to be vindictive toward petitioner in reporting these allegations. Grossman took the paper to Principal Stanley Teitel and gave him a verbal account of his conversation with I.F.
I.F., now graduated, testified that starting in the 2005/2006 school year, he noticed that petitioner, in order to get a noisy student's attention in the library, would rub his hands over the student's back in a circular motion, stroke the student's hair or run two fingers down the student's back. He didn't initially think anything of it until he saw petitioner standing behind and stroking student M.M.'s hair. M.M., who was playing a video game, was apparently not aware of petitioner's actions on this occasion. I.F. further testified that in December 2007, he saw petitioner coming toward him and said, "Don't touch me." According to I.F., petitioner smiled at him and reached down and squeezed I.F.'s belly. While he was disturbed over this incident, I.F. did not report it, stating it was his senior year and he thought he could "st[i]ck it out."
Finally, I.F. stated that on Super Tuesday, 2008, he, F.N. and R.H. were having a political discussion in the back of the library. F.N. made a "politically incorrect" comment and petitioner grabbed F.N.'s leg, "lifted it up and sort of rubbed it up and down while saying open mouth, insert foot." I.F. then went about soliciting email recollections from other students about any inappropriate touching involving petitioner and turned them over to Assistant Principal Grossman. He also stated that some students he approached requesting information about any touching incidents involving petitioner refused to provide any information and were hostile to his requests.
M.M. testified that over three years at the school, petitioner touched him inappropriately approximately once every other week, but he did not report the incidents until I.F. asked him to write up a statement. M.M. stated he did not know who to go to about the incidents and was very uncomfortable with it. Several other students testified concerning petitioner's actions, none of which were reported prior to I.F.'s requests for emails.
Petitioner called a number of former students to testify, all of whom stated that any touching by petitioner was not viewed as sexual by them or made them feel uncomfortable. He also called Delisa Brown-Guc, another librarian who worked at the school. She testified that when she needed students to be quiet, she would walk over to them, smile, sometimes put her hand on their forearm and sometimes lean over and speak quietly to them. Significantly, she also stated that she never touched a student's hair, squeezed a student's shoulder, or ran her fingers down a student's spine. She further stated that such conduct is inappropriate and, had she seen it, would have reported it immediately to school supervisors.
Petitioner testified in his own behalf. He stated that, because of the configuration of the computers in the library, standing behind a student was often the only way to get that student's attention. He stated that he would try various methods of getting a noisy student's attention, such as trying to catch their eye, stand behind them and whisper or speak softly to them, tap them on the shoulder or, if that did not work, "give them a little squeeze on the shoulder." He also acknowledged that if that failed to get the student's attention, "I might run my finger a little bit down their" necks, (demonstrating this ...