Matter of Bolt v. New York City Dept. of Educ.

Appellate Division of the Supreme Court of New York

Matter of Bolt v. New York City Dept. of Educ.

2016 NY Slip Op 8158, 145 A.D.3d 450, 42 N.Y.S.3d 151

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 6, 2016

Docket2088 653285/14

StatusPublished

Cited by5 cases

This text of 2016 NY Slip Op 8158 (Matter of Bolt v. New York City Dept. of Educ.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Matter of Bolt v. New York City Dept. of Educ., 2016 NY Slip Op 8158, 145 A.D.3d 450, 42 N.Y.S.3d 151 (N.Y. Ct. App. 2016).

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Order and judgment (one paper), Supreme Court, New York County (Joan M. Kenny, J.), entered April 28, 2015, which granted the petition to vacate an arbitrator’s opinion and award, dated October 15, 2014, terminating petitioner’s employment with respondent based on her misconduct, and denied respondent’s cross motion to dismiss the petition, unanimously modified, on the law, to confirm the Arbitrator’s determination that petitioner is guilty as charged in specifications 2 and 3 (a), (b), (c) and (d), and to remand the matter to respondent for imposition of a lesser penalty, and otherwise affirmed, without costs.

Notwithstanding the existence of conflicting testimony, the Arbitrator’s findings of misconduct on specifications 2, 3 (a), (b), (c) and (d) are supported by adequate evidence and are not irrational (see Lackow v Department of Educ. [or “Board”] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). However, while we confirm the Arbitrator’s finding, based on the [451]*451testimony of three students, that petitioner “directly or indirectly,” assisted several students on a standardized English Language Arts exam, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]).

“[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 NY2d at 234).

While petitioner’s behavior in suggesting to several students that some of their answers might be wrong demonstrated a lapse in judgment, petitioner did not provide the students with the correct answers and there is no evidence that the incident was anything but a one-time mistake (see Matter of Diefenthaler v Klein, 27 AD3d 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”]). Prior to her termination in October 2014, petitioner, a tenured teacher who had worked for respondent since 2003, had an unblemished record and, as the OSI investigator testified, was considered to be a good teacher (see Matter of Solis v Department of Educ. of City of N.Y., 30 AD3d 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”]). Moreover, the record is devoid of evidence that would suggest petitioner could not remedy her behavior.

Matter of Carangelo v Ambach (130 AD2d 898 [3d Dept 1987], lv denied 70 NY2d 609 [1987]), cited by the dissent, does not mandate a different result. In Carangelo, the teacher was found guilty of failing to properly safeguard his students’ Regents examinations, failing to accurately grade them and altering answers. The evidence indicated that of 705 answers on 15 examinations, 79 were altered. The teacher admitted that it was apparent that the answers had been changed by someone [452]*452other than the students and that he did nothing about it, and the District’s expert opined that it was highly probable that the teacher made 76 of the 79 changes (id. at 899). In affirming the penalty of termination, the Third Department found that “[a]ltering the answers given on an examination, or even ignoring alterations obviously not made by the student, amounts to a serious breach of a teacher’s obligations” (id. at 900). Here, petitioner pointed out to several students that certain answers on their exams might be wrong and suggested they take another look at them. She did not alter any of her student’s answers or advise them what the correct answers were.

Nor does Matter of Carlan v Board of Educ. of Lawrence Union Free School Dist. (128 AD2d 706 [2d Dept 1987]), cited in the Arbitrator’s report, mandate the penalty of termination. In Carian, the petitioner was found “guilty of some 53 charges and specifications concerning, inter alia, repeated and continuous neglect of duty, insubordination, failure to prepare and grade certain final examinations, and manipulation of students’ test scores” (id. at 707).

Concur—Acosta, Andrias, Manzanet-Daniels and Webber, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Joan M. Kenny, J.), entered April 28, 2015, which granted the petition to vacate an arbitrator’s opinion and award, dated October 15, 2014, terminating petitioner’s employment with respondent based on her misconduct, and denied respondent’s cross motion to dismiss the petition, unanimously modified, on the law, to confirm the Arbitrator’s determination that petitioner is guilty as charged in specifications 2 and 3 (a), (b), (c) and (d), and to remand the matter to respondent for imposition of a lesser penalty, and otherwise affirmed, without costs.

Notwithstanding the existence of conflicting testimony, the Arbitrator’s findings of misconduct on specifications 2, 3 (a), (b), (c) and (d) are supported by adequate evidence and are not irrational (see Lackow v Department of Educ. [or “Board”] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). However, while we confirm the Arbitrator’s finding, based on the [451]*451testimony of three students, that petitioner “directly or indirectly,” assisted several students on a standardized English Language Arts exam, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]).

“[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 NY2d at 234).

While petitioner’s behavior in suggesting to several students that some of their answers might be wrong demonstrated a lapse in judgment, petitioner did not provide the students with the correct answers and there is no evidence that the incident was anything but a one-time mistake (see Matter of Diefenthaler v Klein, 27 AD3d 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”]). Prior to her termination in October 2014, petitioner, a tenured teacher who had worked for respondent since 2003, had an unblemished record and, as the OSI investigator testified, was considered to be a good teacher (see Matter of Solis v Department of Educ. of City of N.Y., 30 AD3d 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”]). Moreover, the record is devoid of evidence that would suggest petitioner could not remedy her behavior.

Matter of Carangelo v Ambach (130 AD2d 898 [3d Dept 1987], lv denied 70 NY2d 609 [1987]), cited by the dissent, does not mandate a different result. In Carangelo, the teacher was found guilty of failing to properly safeguard his students’ Regents examinations, failing to accurately grade them and altering answers. The evidence indicated that of 705 answers on 15 examinations, 79 were altered. The teacher admitted that it was apparent that the answers had been changed by someone [452]*452other than the students and that he did nothing about it, and the District’s expert opined that it was highly probable that the teacher made 76 of the 79 changes (id. at 899). In affirming the penalty of termination, the Third Department found that “[a]ltering the answers given on an examination, or even ignoring alterations obviously not made by the student, amounts to a serious breach of a teacher’s obligations” (id. at 900). Here, petitioner pointed out to several students that certain answers on their exams might be wrong and suggested they take another look at them. She did not alter any of her student’s answers or advise them what the correct answers were.

Nor does Matter of Carlan v Board of Educ. of Lawrence Union Free School Dist. (128 AD2d 706 [2d Dept 1987]), cited in the Arbitrator’s report, mandate the penalty of termination. In Carian, the petitioner was found “guilty of some 53 charges and specifications concerning, inter alia, repeated and continuous neglect of duty, insubordination, failure to prepare and grade certain final examinations, and manipulation of students’ test scores” (id. at 707).

Concur—Acosta, Andrias, Manzanet-Daniels and Webber, JJ.

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2016 NY Slip Op 8158, 145 A.D.3d 450, 42 N.Y.S.3d 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-bolt-v-new-york-city-dept-of-educ-nyappdiv-2016.

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