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.