In the Matter of The Application of Jaime Gongora v. N.Y. City Dep't of Educ.

• Decision Date: 23 November 2010
• Citation: 930 N.Y.S.2d 757,2010 N.Y. Slip Op. 20554,272 Ed. Law Rep. 606,34 Misc.3d 161
• Parties: In the Matter of the Application of Jaime GONGORA, Petitioner.v.NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
• Court: New York Supreme Court

34 Misc.3d 161

930 N.Y.S.2d 757

272 Ed. Law Rep. 606

2010 N.Y. Slip Op. 20554

In the Matter of the Application of Jaime GONGORA, Petitioner.

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.

Supreme Court, New York County, New York.

Nov. 23, 2010.

Edward H. Wolf Esq., Wolf & Wolf, LLP, Bronx, for Petitioner.Abra Mason, Assistant Corporation Counsel, New York, for Respondent.LUCY BILLINGS, J.

Petitioner seeks to vacate a decision dated June 24, 2009, after mandatory arbitration, terminating petitioner's employment as a high school teacher by respondent New York City Department of Education upon finding that petitioner engaged in sexual misconduct and neglected his duties. C.P.L.R. § 7511(b)(1); NY Educ. Law § 3020–a. After oral argument, for the reasons explained below, the court grants the petition to the extent of vacating parts of the decision and remanding the proceeding to respondent for a redetermination whether a lesser sustained charge warrants petitioner's termination from his position.

I. UNDISPUTED FACTUAL BACKGROUND

During the 2006–2007 academic year, petitioner, a tenured bilingual teacher at Evander Childs High School in Bronx County, taught Student A, a Spanish speaking student who struggled with English and expressed concerns that she would fail her Regents Examination. On June 25, 2007, when Student A had passed her 18th birthday and completed all the requirements for graduation, but not yet formally graduated from Evander Childs High School, petitioner telephoned Student A at her home. When Student A's mother, Mother A, answered, petitioner identified himself by his first name and asked to speak to Student A. After directing her daughter to answer the telephone, Mother A listened to the conversation from another extension. While the parties dispute other details of the conversation, petitioner admits he asked Student A to “go out” with him, but claims he was joking and had telephoned to inform Student A she had passed the Regents Examination. Ver. Answer, Ex. 2 at 721. When Mother A then interjected and confronted petitioner, he hung up the telephone.

Shortly afterward Mother A and Student A complained about the telephone conversation to the school principal, who initiated an investigation. Respondent charged petitioner with sexual misconduct and gross neglect and held a hearing pursuant to Education Law § 3020–a. Student A, however, did not testify at the hearing. The arbitrator found petitioner had engaged in sexual misconduct and neglected his duties and imposed the penalty terminating him as a teacher.

II. STANDARDS FOR REVIEW OF A DECISION AFTERMANDATORY ARBITRATION

A. The Interrelationship Between C.P.L.R. § 7511 and Education Law § 3020–a(5)

Petitioner bears the burden to show that the arbitral determination warrants vacatur. Lackow v. Department of Educ. of City of N.Y., 51 A.D.3d 563, 568, 859 N.Y.S.2d 52 (1st Dep't 2008). Ordinarily, the grounds on which the court may review an arbitrator's decision are limited to her misconduct, bias, and exceeding her power and to procedural defects. C.P.L.R. § 7511(b)(1); Lackow v. Department of Educ. of City of N.Y., 51 A.D.3d at 567, 859 N.Y.S.2d 52. Because arbitration is mandatory under the Education Law, however, “the standard for judicial review ... is more exacting than in voluntary arbitration.” Matter of Furstenberg, 49 N.Y.2d 757, 758, 426 N.Y.S.2d 465, 403 N.E.2d 170 (1980); Matter of Utica Ins. Co., 27 A.D.3d 990, 992, 813 N.Y.S.2d 547 (3d Dep't 2006). The arbitrator exceeded her power if her decision failed to accord due process, is unsupported by adequate evidence, is irrational, or is arbitrary and capricious. C.P.L.R. §§ 7511(b)(1), 7803; Educ. Law § 3020–a(5); City School Dist. of the City of N.Y. v. McGraham, 75 A.D.3d 445, 450, 905 N.Y.S.2d 86 (1st Dep't 2010); Lackow v. Department of Educ. of City of N.Y., 51 A.D.3d at 567, 859 N.Y.S.2d 52. See Motor Vehicle Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349 (1996); Matter of Utica Ins. Co., 27 A.D.3d at 992, 813 N.Y.S.2d 547.

The requirement that the decision under review be supported by adequate evidence restates C.P.L.R. § 7803(4)'s ground for review: whether a decision is “supported by substantial evidence,” defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion.” Miller v. DeBuono, 90 N.Y.2d 783, 793, 666 N.Y.S.2d 548, 689 N.E.2d 518 (1997); People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 (1985) (emphasis added). See New York Botanical Garden v. City of New York, 91 N.Y.2d 413, 422, 671 N.Y.S.2d 423, 694 N.E.2d 424 (1998); S & R Lake Lounge v. New York State Liq. Auth., 87 N.Y.2d 206, 210, 638 N.Y.S.2d 575, 661 N.E.2d 1355 (1995); Gray v. Adduci, 73 N.Y.2d 741, 743, 536 N.Y.S.2d 40, 532 N.E.2d 1268 (1988); Verdell v. Lincoln Amsterdam House, Inc., 27 A.D.3d 388, 391, 813 N.Y.S.2d 68 (1st Dep't 2006). Thus, when reviewing mandatory arbitration under Education Law § 3020–a(5) or under a comparable mandate, the court, through C.P.L.R. § 7511(b), uses the standards for review under C.P.L.R. § 7803.

B. Transferring Review for Substantial Evidence to the Appellate Division Pursuant to C.P.L.R. § 7804(g)

Although the parties do not raise the issue, C.P.L.R. § 7804(g), despite the application of § 7803 standards, does not require transferring the court's review of the arbitral decision to the Appellate Division. C.P.L.R. § 7804(g), which requires transfer of Article 78 petitions that reduce to review for “substantial evidence,” does not apply to decisions pursuant to Education Law § 3020–a(5), because the court does not actually apply C.P.L.R. § 7803(4). The court merely borrows C.P.L.R. § 7803's standards to interpret C.P.L.R. § 7511(b), which Education Law § 3020–a(5) requires be applied for judicial review. Lackow v. Department of Educ. of City of N.Y., 51 A.D.3d at 567, 859 N.Y.S.2d 52.

Even if C.P.L.R. § 7804(g) does apply, it does not require a transfer here. Without considering whether substantial evidence supported the arbitral decision, the court vacates the decision on the independent bases that the arbitrator (1) exceeded her power, by failing to adhere to the applicable standards; (2) demonstrated bias, by prejudging the evidence and failing to find facts independent of her predisposition; and (3) thus violated due process. C.P.L.R. §§ 7511(b)(1), 7803(3).

C. Standards of Proof for Imposing the Penalty of Termination From Employment

Absent a “stigma plus,” the stigma of termination from employment, alone, does not demand a higher standard of review than substantial evidence. Swinton v. Safir, 93 N.Y.2d 758, 763, 697 N.Y.S.2d 869, 720 N.E.2d 89 (1999); Miller v. DeBuono, 90 N.Y.2d at 791, 666 N.Y.S.2d 548, 689 N.E.2d 518; Agnew v. North Colonie Cent. School Dist., 14 A.D.3d 830, 831, 787 N.Y.S.2d 521 (3d Dep't 2005); Malloch v. Ballston Spa Cent. School Dist., 249 A.D.2d 797, 799–800, 671 N.Y.S.2d 845 (3d Dep't 1998). This increased stigma derives from such accompanying effects as a listing in a registry of offenders, legal foreclosure from future employment, and accusations more serious than isolated poor judgment and serious enough to foreclose employment in petitioner's field as a natural consequence. Swinton v. Safir, 93 N.Y.2d at 764, 697 N.Y.S.2d 869, 720 N.E.2d 89; Miller v. DeBuono, 90 N.Y.2d at 791, 666 N.Y.S.2d 548, 689 N.E.2d 518; Lee TT v. Dowling, 87 N.Y.2d 699, 708, 642 N.Y.S.2d 181, 664 N.E.2d 1243 (1996). See Talamo v. Murphy, 38 N.Y.2d 637, 640, 382 N.Y.S.2d 3, 345 N.E.2d 546 (1976); Agnew v. North Colonie Cent. School Dist., 14 A.D.3d at 831, 787 N.Y.S.2d 521; Williams v. Nicoletti, 295 A.D.2d 353, 354, 743 N.Y.S.2d 160 (2d Dep't 2002); Malloch v. Ballston Spa Cent. School Dist., 249 A.D.2d at 799–800, 671 N.Y.S.2d 845. The charges against petitioner fall within this rubric. While his name has not been added to a registry, and the charges amount to only a single instance, a telephone conversation, accusations of a teacher's sexual misconduct toward a student brand the teacher with a “stigma plus” inherently likely to foreclose future employment far more than unsafe driving by a bus driver, failing a drug test, or stealing, for example. Agnew v. North Colonie Cent. School Dist., 14 A.D.3d at 831, 787 N.Y.S.2d 521; Malloch v. Ballston Spa Cent. School Dist., 249 A.D.2d at 799–800, 671 N.Y.S.2d 845. See Williams v. Nicoletti, 295 A.D.2d at 354, 743 N.Y.S.2d 160;

Charges that potentially stigmatize a prospective employee to this extent must be supported by a preponderance of the evidence, rather than substantial evidence. Application of the preponderance of evidence standard demands a de novo review of the record. See, e.g., Matter of Alessandro, 13 N.Y.3d 238, 241, 249, 889 N.Y.S.2d 526, 918 N.E.2d 116 (2009); Matter of Hart, 7 N.Y.3d 1, 5, 816 N.Y.S.2d 723, 849 N.E.2d 946 (2006); Matter of Mulroy, 94 N.Y.2d 652, 656, 709 N.Y.S.2d 464, 731 N.E.2d 120 (2000).

Substantial evidence “is less than a preponderance of the evidence.” Miller v. DeBuono, 90 N.Y.2d at 793, 666 N.Y.S.2d 548, 689 N.E.2d 518; 300 Gramatan Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 (1978). Application of the substantial evidence standard demands only that “a given inference is reasonable and plausible, not necessarily the most probable.” Miller v. DeBuono, 90 N.Y.2d at 793, 666 N.Y.S.2d 548, 689 N.E.2d 518. Substantial evidence thus may support inconsistent inferences and findings. Id.; Berenhaus v. Ward, 70 N.Y.2d 436, 443–44, 522 N.Y.S.2d 478, 517 N.E.2d 193 (1987).

Here, the court need not determine which standard applies, because no specifications against petitioner that satisfy the substantial evidence standard fail to satisfy the higher preponderance of evidence standard. Miller v. DeBuono, 90 N.Y.2d at 793–94, 666 N.Y.S.2d 548, 689 N.E.2d 518; Lee TT v. Dowling, 87 N.Y.2d at 703, ...