The Court Found That a Hearing Officer's Decision of Suspension was Fair against Tenured Teacher

            The DOE, Petitioner, started an Article 75 proceeding that sought to vacate an arbitration award made after a disciplinary hearing against Respondent, a twenty-three year tenured teacher. 

          Respondent encountered with a female student where he “inappropriately touched her bare shoulders and neck and made sexually charged comments to her.” After trial, Respondent was acquitted of Endangering the Welfare of a Child. 

          The Hearing Officer found that Respondent was “culpable of some of the DOE charges leveled against him” but that the DOE failed to prove other charges.  Therefore, directed that Respondent be suspended for one half year without pay and then be permitted to return to work as a classroom teacher.

          The Hearing Officer found that Respondent was engaged in a “sexually charged banter with an introverted student” and was not soliciting sex.  The Hearing Officer stated that “there are situations where a single incident could require termination, however, this was not one of them.” Additionally, “any repeat behavior of the type for which he was charged will lead to termination.”

          DOE commenced these proceedings seeking to vacate the penalty “on the ground that the penalty was grossly inadequate, inconsistent with the hearing officer’s findings, and in violation of public policy.”   

          The Court found that the evidence presented “did not demonstrate a continued pattern of offensive behavior that reflects inability to understand the necessary separation between a teacher and his students.” “The ultimate penalty of dismissal is reserved for those situations involving the most egregious conduct, where no measure of alternative deterrence would be effective.”  The Hearing Officer analyzed the facts and circumstances and concluded that they did not warrant the penalty of dismissal.  The Court found that the penalty imposed “was not so disproportionate to the offense to be shocking to one’s sense of fairness.”  The petition was denied and the arbitration award confirmed. 

 

  http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3004001082011001SCIV.pdf

 

Court Upheld School District's Decision that Probationary Teacher Did Not Acquire Tenure by Estoppel

Matter of Andrews v. Board of Education of the City School District of the City of New York

 

          Petitioner sought pursuant to CPLR article 78 to “acquire tenure by estoppel and to compel respondents to reinstate her as a tenured teacher.” 

          Petitioner never received a 60-day written notice that she was not recommended for tenure.  This is mandated by Education Law 2573(1)(a) and 3012(2).  She had gone to work the day after her probationary term ended. 

          The Court did not find that Petitioner had acquired tenure by estoppel as respondents did not “with full knowledge and consent” consent to Petitioner’s return to work after her probationary period ended.  Petitioner had knowledge of her discontinuance of service in March of 2009 and when she reported to work after her probationary term expired, was told immediately of her termination and was given no assignments.  Respondent’s proceedings “speak loudly against any supposition that (they) meant to perpetuate (petitioner’s) employment.”