Marcato v. Board of Education

40 A.D.2d 978, 338 N.Y.S.2d 209, 1972 N.Y. App. Div. LEXIS 3191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1972
• Status: Published

Opinion

Proceeding pursuant to article 78 of the CPLR to review and annul respondent’s determination, made April 1, 1971 after a hearing, which dismissed petitioner from her position as a tenured teacher in respondent’s employ. Determination modified, on the law, by reducing the punishment to a suspension for two months without pay, commencihg as of April 1, 1971, petitioner to be reinstated with full pay as of June 1, 1971, less any earnings by her since that date. As so modified, determination confirmed, without costs. Although there are circumstances indicating the possibility that the bringing of the charges might have been motivated, to some extent at least, by divergent ideological views, and the acts of misconduct charged were minor, we cannot say that respondent’s determination finding petitioner guilty of the charges herein is not supported by substantial evidence. Acéordingly, we may not disturb that finding. It is our opinion, however, under all the circumstances presented by the record, that the drastic disciplinary action of dismissal constitutes exceedingly excessive punishment for the acts found to have been committed, and an abuse of discretion, especially in the light of petitioner's excellent record in the subject school as a capable, dedicated teacher. We deem the penalty of two months’ suspension, with loss of pay, as above provided, adequate (cf. Matter of Mitthauer v. Patterson, 8 N Y 2d 37; Matter of Tessier v. Board of Educ. of Union Free School Dist. No. 5, 24 A D 2d 484; Matter of Brink, 7 Educ. Dept. Rep. 9). Munder, Acting P. J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.