Altman Schochet LLP, New York (Michael A. Valentin of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondent.
Mazzarelli, J.P., Andrias, DeGrasse, Freedman, Gische, JJ.
Order, Supreme Court, New York County (Robert E. Torres, J.), entered June 27, 2012, which denied the petition to vacate findings of misconduct and restore petitioner to her teaching position, and granted respondent's cross motion to dismiss the petition and confirm the arbitration award, unanimously modified, on the law, to grant the petition and deny the cross motion to the extent of vacating the penalty of termination, and the matter is remanded for the imposition of a lesser penalty, and otherwise affirmed, without costs.
Petitioner taught French at James Madison High School (JMHS) from 2001 until November 20, 2009. On Friday, November 20, 2009, she ate dinner with colleagues and returned to the school later that evening to watch a musical competition in the first floor auditorium, although she was not required to do so. During the performance, petitioner was allegedly observed in an upstairs classroom "partially undressed (Specification 2) and "appeared to be engaging in sexually inappropriate behavior with a colleague" (Specification 3). These actions allegedly "caused widespread negative publicity, ridicule and notoriety to [JMHS] and the New York City Department of Education (DOE) when [petitioner's] misconduct was reported in New York area news reports and papers" (Specification 4).
The hearing officer's findings of misconduct on Specifications 2, 3 and 4 are supported by adequate evidence (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 A.D.3d 563, 567 [1st Dept 2008]). Multiple witnesses gave interlocking and closely corroborating testimony indicating that petitioner engaged in sexual conduct with an adult colleague in a darkened and empty third-floor classroom on November 20, 2009 at about 9:00 p.m., while a student musical performance was under way in an auditorium on the main floor. There is no basis for disturbing the hearing officer's credibility determinations (see id. at 568).
Petitioner was accorded a full and fair hearing with notice and an opportunity to be heard (see Harris v Department of Educ. of the City of N.Y., 67 A.D.3d 492 [1st Dept 2009]). The hearing officer did not violate petitioner's due process rights by declining, in the exercise of her discretion, to order any remedy for respondent's failure to preserve a surveillance videotape of the hallway outside the classroom (see Matter of Daxor Corp. v State of N.Y. Dept. of Health, 90 N.Y.2d 89, 98 , cert denied 523 U.S. 1074 ). While it would have been better if the tape had been preserved, petitioner's ability to prepare a defense was not hindered by its inadvertent destruction. The camera did not record what occurred in the classroom, and numerous witnesses testified as to what transpired in the hallway. Thus, the hearing officer had a reasonable basis for declining to remedy the spoliation (see Cuevas v 1738 Assoc., LLC, 96 A.D.3d 637 [1st Dept 2012]).
The hearing officer did not violate petitioner's due process rights by admitting into evidence the transcript of the testimony given by a school safety agent at the earlier hearing of the colleague with whom petitioner was found to have engaged in misconduct (see CPLR 4517[a][iii]). It is undisputed that the school safety agent was unable to appear at petitioner's hearing because she was confined to her home under doctor's orders.
We find, however, that in light of all of the circumstances, the penalty of termination of employment is shockingly disproportionate to petitioner's misconduct (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233 ).
"[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved" (Pell, 34 N.Y.2d at 234).
Petitioner was present at the school as an audience member and not in any official capacity. The incident involved a consenting adult colleague and was not observed by any student. Before the incident, petitioner, a tenured teacher, had an unblemished disciplinary record and consistently satisfactory teacher ratings (see Matter of Principe v New York City Dept. of Educ., 94 A.D.3d 431, 433 [1st Dept 2012] [termination disproportionate where petitioner's actions were not premeditated and petitioner had a spotless record as a teacher for five years], affd 20 N.Y.3d 963 ; Matter of Riley v City of New York, 84 A.D.3d 442, 442 [1st Dept 2011] [termination disproportionate where "(t)he student admitted that she sustained no physical or emotional injury as a result of the incident, and in the 15 years preceding the incident, petitioner had received not a single formal reproach"]; Matter of Solis v Department of Educ. of City of N.Y., 30 A.D.3d 532, 532 [2d Dept 2006] [termination disproportionate "(i)n light of, among other things, the petitioner's otherwise unblemished 12-year record as a teacher"]).
While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that the incident was anything but a one-time mistake (see Matter of Diefenthaler v Klein, 27 A.D.3d 347, 349 [1st Dept 2006] ["we find it shocking to the conscience that these long-standing and well-regarded employees have been terminated for such an isolated error of judgment"]). Of critical significance is that, unlike matters involving some sort of romantic involvement or other inappropriate conduct with a student, petitioner's engaging in consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship with or engaged in inappropriate behavior with a student (see City School Dist. of the City of N.Y. v McGraham 75 A.D.3d 445 [1st Dept 2010] [penalty of 90-day suspension without pay and reassignment rather than termination reinstated in light of overall circumstances demonstrating the improbability of teacher engaging in similar inappropriate behavior in the future], affd 7 N.Y.3d 917 ; Matter of Asch v New York City Bd./Dept. of Educ., 104 A.D.3d 415 [1st Dept 2013] [six-month suspension and mandatory counseling constituted an appropriate penalty for a librarian with 20 years of service who had engaged over a three-year period in inappropriate touching of high school students that the hearing officer found was not sexual misconduct]; Nreu v New York City Dept. of Educ., 25 Misc.3d 1209 [A] [Sup Ct, NY County 2009] [where petitioner, who had unblemished record, was found guilty of repeated inappropriate communications with student, one year suspension without pay did not shock one's sense of fairness]).
Nor is there is any indication in the record that petitioner's conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination (see Matter of Ellis v Ambach, 124 A.D.2d 854 [3d Dept 1986][two-year suspension for driver education teacher who had been convicted of criminally negligent ...