Matter of Beatty v. City of New York , 148 A.D.3d 413 ( 2017 )

Order and judgment (one paper), Supreme Court, New York County (Margaret A. Chan, J.), entered July 20, 2015, which granted respondents’ cross motion to deny the petition seeking to vacate a penalty imposed in an arbitration award dated June 30, 2014, and dismissed the proceeding brought pursuant to CPLR article 75, reversed, on the facts, without costs, the petition granted, and the matter is remanded to respondent New York City Department of Education (DOE) for imposition of a lesser penalty.

The penalty of termination of employment was imposed by a hearing officer upon petitioner, a special education home instruction teacher, based upon the hearing officer’s finding that petitioner had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicating that she had reported to certain DOE schools and libraries over a two-month period. Notwithstanding petitioner’s misconduct, 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, 233 [1974]).

At the time of the incident in question, petitioner was faced with an extraordinary situation. Both she and the disabled student resided in Far Rockaway, Queens. On October 29, 2012, that area was damaged extensively by Hurricane Sandy. The homes of both petitioner and the disabled student were flooded and had no power or heat for an extended period, and petitioner lost the use of her car. Both petitioner and her student were displaced from their homes. In the aftermath of this unique disaster, DOE provided teachers with no guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students would not be penalized. Petitioner contacted the disabled student’s mother after the storm, but never provided educational services to the student. In January 2013, the student’s social worker informed petitioner’s assistant principal that the student had received no instruction from petitioner since the hurricane. However, that same month, petitioner had submitted documentation saying that she had provided such instruction. A subsequent investigation revealed that petitioner’s time sheets contained the false information.

As the Court of Appeals has explained, and as we have recently reiterated, “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” (Matter of Bolt v New York City Dept. of Educ., 145 AD3d 450, 451 [1st Dept 2016], quoting Pell, 34 NY2d at 234).

Petitioner filled out the time sheets in question in advance of the dates to which those time sheets pertained. Although she did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets, she submitted the time sheets without correction on a subsequent date. Because petitioner instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her actions. Petitioner’s misconduct is more a matter of lax bookkeeping than implementation of any venal scheme. There was no scheme to defraud or theft of services on petitioner’s part, and the harm to the public and to the DOE was mitigated.

Furthermore, before the incident in question, petitioner had an unblemished record over a 17-year period as a special education home instruction teacher. At the DOE hearing, the disabled student’s mother testified that petitioner was a good teacher who worked well with her son and had served his needs more successfully than had other teachers. Petitioner’s principal testified that before this incident, she had never received a complaint about petitioner. And one of petitioner’s coworkers, another special education teacher in the homebound program, testified that petitioner was a dedicated teacher who did everything she could to help her students excel.

At the hearing, petitioner admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. As petitioner acknowledges, her misconduct warrants punishment, since the disabled student was deprived of the services of a teacher for two months. Petitioner does not seek to set aside the findings of misconduct contained in the hearing officer’s opinion, but only to modify the penalty imposed on her. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error. There is no evidence that “petitioner could not remedy her behavior” (see Bolt, 145 AD3d at 451). The penalty of termination, we believe, is disproportionate to the level of petitioner’s misconduct and exceeds the standards that society requires to be applied to this offense (see Pell, 34 NY2d at 234).

The cases relied upon by the dissent are distinguishable in that, among other things, none of them mention extraordinary mitigating circumstances such as those faced by petitioner (see Matter of Davies v New York City Dept. of Educ., 117 AD3d 446, 447 [1st Dept 2014] [teacher failed to follow procedures and carry out duties, rendered incompetent service over two-year period and blamed others for her ineffectiveness]; Cipollaro v New York City Dept. of Educ., 83 AD3d 543 [1st Dept 2011] [non-resident New York City teacher enrolled two of her own children in City public schools, effectively stealing $98,000 in services from DOE over two-year period]; Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823 [3d Dept 2005] [teacher’s aide demonstrated a pattern of repeatedly taking excessive sick and paid leave despite two warnings not to do so and received leave time benefits as a result of his fraud]; Matter of Hegarty v Board of Educ. of City of N.Y., 5 AD3d 771 [2d Dept 2004]).

This is not, as respondents would have it, a case of extended, intentional and self-serving misconduct or repeated and continuous neglect of duty, but rather an isolated instance of neglect occurring under circumstances of extraordinary personal hardship and involving a teacher who had an otherwise unblemished and longstanding record. Had Super-storm Sandy not upended her life, there is no indication that petitioner’s wrongdoing would have occurred. As it is highly unlikely that the extraordinary situation presented in this case will recur, the factors of general and specific deterrence do not come into play (see Bolt, 145 AD3d at 450-451, quoting Pell, 34 NY2d at 234).

Concur — Moskowitz, Kapnick and Kahn, JJ.