Teacher Aide Claims Retaliation, Judge Kern Says No

Sandiford v City of New York Dept. of Educ.

2012 NY Slip Op 03081

Decided on April 24, 2012

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 24, 2012 
Tom, J.P., Saxe, Catterson, Moskowitz, Manzanet-Daniels, JJ.

5100 104190/06 

[*1]Ayodele Sandiford, Plaintiff-Appellant-Respondent, — 

v

City of New York Department of Education, et al., Defendants-Respondents-Appellants, The Research Foundation, et al., Defendants.

Meenan & Associates, LLC, New York (Colleen M. Meenan 
of counsel), for appellant-respondent. 
Michael A. Cardozo, Corporation Counsel, New York 
(Mordecai Newman of counsel), for respondents-appellants. 

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about February 18, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's retaliation claim under the New York City and the New York State Human Rights Law and denied the motion insofar as it sought dismissal of her discrimination claims, modified, on the law, to deny the motion as to plaintiff's retaliation claim, and otherwise affirmed, without costs.

In this action alleging discrimination based on sexual orientation, plaintiff is a lesbian and has been employed as a school aide by defendant Department of Education (DOE) since May 2001. During the 2004/2005 school year, plaintiff was assigned to P.S. 181, in Brooklyn, where defendant Coleman was principal. According to plaintiff, Coleman repeatedly made derogatory remarks regarding gays and lesbians in front of plaintiff, the students and the teachers. Plaintiff stated that Coleman had commented that "two men should not be behind closed doors," "whatever two men is [sic] doing behind closed door[s], God would judge them for himself." Plaintiff also stated that Coleman had said that "his church can change people like us for the better" and, while acting out an obscene walk, "this is how faggots walk." On another occasion, Coleman allegedly admonished students for using the word "lesbian." Plaintiff claimed that she complained about certain staff members who had teased her, taunted her with notes in her locker and made lewd comments to her.

In March 2005, plaintiff was advised that she was being suspended without pay pending an investigation by defendant DOE's Office of Special Investigation (OSI) regarding an allegation of sexual misconduct pertaining to an incident which occurred on or about February 11, 2005 involving two coworkers at P.S. 181, a college student, age 18, and a DOE student, age 16. Plaintiff allegedly asked the DOE student to "hook her up" with the college student. When [*2]the DOE student refused and advised plaintiff to "leave it alone," plaintiff allegedly persisted and contacted the college student directly. Her alleged attempts to establish a personal relationship were purportedly rejected. Plaintiff denies the incident occurred.

Thereafter, plaintiff allegedly complained about Coleman's conduct to various DOE offices to no avail. In late June 2005, plaintiff again met with Coleman and was allegedly "berated, belittled and reprimanded" for complaining about his treatment of her. Plaintiff was then advised that, an investigation by OSI had substantiated the allegations of misconduct and recommended termination of her employment, and that Coleman had decided to terminate plaintiff's employment.

Plaintiff filed a grievance with the DOE challenging her termination and was reinstated with back pay, less two weeks, and a letter placed in her file warning her not to engage in inappropriate conduct or conversation with any DOE student. Thereafter, plaintiff commenced the instant action alleging claims for discrimination and retaliation under the New York State and New York City Human Rights Laws.

Defendants' argument that the claims are precluded by the doctrine of collateral estoppel based on implicit findings by the DOE is improperly raised for the first time on appeal (see Gavin v Catron, 35 AD3d 354 [2006]). In any event, the argument is without merit. The record shows that plaintiff did not have a full and fair opportunity to litigate her claims of discrimination in the grievance process. Indeed, her testimony suggests that she had little involvement in the proceedings. Thus, the record does not allow us to conclude that the facts asserted were "adequately tested, and that the issue was fully aired" (Jeffreys v Griffin, 1 NY3d 34, 40-41 [2003] [internal quotation marks omitted]). Here, the record merely reflects plaintiff's request for a review by the Grievance Panel, and the panel's subsequent decision. Moreover, plaintiff did not have an opportunity to appeal the grievance decision, as it was the Union's decision whether to proceed further (cf. Hickey v Hempstead Union Free School Dist., 36 AD3d 760 [2007]).

Plaintiff's testimony regarding Coleman's repeated derogatory remarks regarding gays and lesbians was sufficient to raise a question of fact as to plaintiff's claim alleging unlawful discriminatory practices under the New York City Human Rights Law (Administrative Code of City of NY § 8-101; § 8-107 [13][a] and [b]), the uniquely broad and remedial provisions of which are liberally construed to provide expansive protections not afforded by their state and federal counterparts (Williams v New York City Hous. Auth., 61 AD3d 62, 66 [2009], lv denied 13 NY3d 702 [2009]; Administrative Code § 8-130). This Court has made clear that where a plaintiff "responds with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete, a host of determinations properly made only by a jury come into play, and thus such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied" (Bennett v Health Mgmt. Sys., Inc., 92 AD3d 29 [2011] [emphasis added]).

Moreover, in light of plaintiff's testimony regarding Coleman's comments and conduct, the record did not conclusively establish that defendants would have made the same decision to terminate plaintiff's employment had they not considered plaintiff's sexual orientation. Thus, there being triable issues of fact, summary judgment was precluded insofar as the complaint alleged unlawful discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]; see McKennon v Nashville Banner Publ. Co., 513 US 352, 360 [1995]; Chertkova v [*3]Connecticut Gen. Life Ins. Co., 92 F3d 81, 91 [2d Cir 1996]).

Regarding plaintiff's claim of retaliation, to the extent the claim is based upon the New York City Human Rights Law (Administrative Code § 8-107[7]), summary judgment is precluded by triable issues of fact as to whether, within the context of this matter and the workplace realities as demonstrated by the record, plaintiff's termination from employment would be reasonably likely to deter other persons in defendants' employ from engaging in protected activity (see Williams, 61 AD3d at 70-71).

To the extent the claim is based upon the New York State Human Rights Law (Executive Law § 296[1][e]), summary judgment is precluded by triable issues of fact as to whether, in response to plaintiff's prima facie showing that her termination was the direct result of retaliatory animus, defendants offered a 
pretextual explanation (see Sukram v Anjost Corp., 72 AD3d 491 [2010]; Pace v Ogden Servs. Corp., 257 AD2d 101, 104-05 [1999]; Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000]).

We have considered the parties' remaining arguments and find them unavailing.

All concur except Saxe and Catterson, JJ. who dissent in a memorandum by Catterson, J. as follows:

CATTERSON, J. (dissenting)

I must respectfully dissent. The plaintiff school aide did not challenge a grievance decision which concluded that she had engaged in inappropriate conduct with a 16-year-old female student, yet now argues that her termination was based on her sexual orientation and so was discriminatory and retaliatory. In my opinion, the plaintiff's attempt to inoculate herself against the consequences of her inappropriate conduct must be rejected: as set forth more fully below, well-established precedent upholds termination of educators for sexually inappropriate behavior towards a student — regardless of their sexual orientation.

In focusing on the principal's alleged derogatory remarks, the majority gives no weight to the fact that the misconduct charges against the plaintiff were investigated and substantiated by the New York City Department of Education (hereinafter referred to as "DOE"), and that the DOE then recommended that the principal terminate plaintiff. Regardless of any remarks made by the principal, it was the plaintiff's burden to "respond[] with some evidence that at least one of the reasons proffered by defendant is false, misleading or incomplete," and the plaintiff entirely failed to do so. The substantiated charges were affirmed by the DOE at the conclusion of her appeal, and she failed to challenge them.

The record reflects the following: The plaintiff, a lesbian, is an employee of the DOE working as a school aide in a Brooklyn public school. The plaintiff also worked at an after-school program at the public school operated by a private not-for-profit corporation.

On February 10, 2005, a 16-year-old student employee and an 18-year-old coworker complained to the defendant principal of the public school where the plaintiff worked that plaintiff had engaged in inappropriate behavior. In written statements, they explained that the plaintiff called the student on a classroom telephone and asked the student to "hook her up" with the coworker. Although the student told her the coworker was not gay, the plaintiff "didn't want [*4]to get off the phone." The student explained to the coworker why the plaintiff was calling, but the coworker refused to speak with the plaintiff. When the plaintiff called back, the coworker answered the phone and the plaintiff asked the coworker for a date.

The principal reported the allegations to the DOE on February 11, 2005, and on March 16, 2005, suspended the plaintiff without pay pending the outcome of an investigation by the DOE's Office of Special Investigation (hereinafter referred to as "OSI"). The plaintiff was advised that she was not permitted to return to the building until the investigation was completed, and that she could not continue her job with the after-school program. At a meeting with her union representative and the OSI investigator on March 30, 2005, the plaintiff complained that the principal's treatment of her was discriminatory. The plaintiff also complained to a DOE representative at the Chancellor's office on April 20, 2005.

The OSI investigation included interviews with the student, the coworker, the plaintiff with her union representative, and another 16-year-old student who also worked in the after-school program. The OSI substantiated the allegations and the Chancellor's office prepared a report dated June 20, 2005, concluding that:

"[The plaintiff] used her position as an employee of the New York City Department of Education in an attempt to engage in a personal relationship. [The plaintiff] utilized a sixteen year old Department of Education student to assist her in doing so. [The plaintiff] engaged a sixteen year old Department of Education Student in inappropriate conversation."

The report further recommended that the principal review the report, that the plaintiff's employment be terminated, and that her name be placed on the DOE's "Invalid/Inquiry List." The principal met with the plaintiff on June 22, 2005, and gave her a letter stating that the OSI had substantiated the allegations against her and that after reviewing the findings, he had decided to terminate her employment.

On December 13, 2005, the plaintiff appealed her termination, and on September 15, 2006, the Chancellor issued a grievance decision. The decision begins by describing the plaintiff's position, including her denial that she asked the coworker out or that she asked the student to speak to the coworker on her behalf. The decision then presents the DOE's position, including details of the student and coworker's complaints to the principal, his report of the incident, and the OSI interviews. The decision states that the OSI found "that the grievant used a sixteen year old student to assist her in engaging in a personal relationship with the college student, which included inappropriate conversation with the sixteen year old student," and that "[]i]n view of the investigator's findings and conclusions, the principal discharged the grievant." The decision then concludes that "the following [sic] happened" and that "[a]lthough inappropriate, the grievant's conduct in this matter did not warrant discharge."

The DOE reinstated the plaintiff with all but two weeks back pay and placed a warning letter in her file. The grievance decision was not appealed, and the plaintiff commenced the instant action on March 28, 2006.

On May 23, 2006, the plaintiff filed an amended complaint against the DOE, the principal, the corporation that operates the after-school program, and its director ^[FN1]. The complaint [*5]alleges that the plaintiff was defamed and that pursuant to the Administrative Code of the City of New York § 8-107 et seq. (NYS HRL), the New York State Executive Law § 296 et seq. (NYS HRL), and the New York State Constitution, her employment was unlawfully terminated because of her sexual orientation and in retaliation for complaining about the principal's conduct. The plaintiff claims $2 million in damages.

At deposition, the student testified that the plaintiff telephoned her in a classroom and told her that although the plaintiff wanted to take her out, the student was "too young." Plaintiff then asked the student to "hook [the plaintiff] up" with the coworker. The student told the plaintiff that the coworker was not gay and that the plaintiff should "leave it alone." According to the student, the plaintiff said she "[didn't] care" and still wanted to take out the coworker and wouldn't "take no for an answer." The student attempted to pass the telephone to the coworker, who refused to speak with the plaintiff. Although she felt "uncomfortable," the student related the plaintiff's intentions to the coworker.

In her deposition testimony, the coworker stated that the plaintiff then called back to speak with her directly, told the coworker she was "very attractive," and asked her "did [the student] tell you." The coworker told the plaintiff "yes" but that she was not a lesbian. The coworker turned down the plaintiff's proposition to "go out one night" and reported the incident to the principal.

The plaintiff testified at deposition that the principal had made derogatory remarks about homosexuals. She described an incident where the principal imitated what he characterized as a "faggot's" walk, and stated that he did this several times in front of different people and looked at her. She also claimed that he commented to her and her nephew and niece that "two men should not be behind closed doors," "whatever two men [sic] is doing behind closed door, God would judge them for himself," and that "his church can change [homosexuals] for the better." On another occasion, the principal allegedly admonished a student for calling another student a "lesbian."

The plaintiff further testified that when the principal gave her the termination letter, he told her that she "caused this upon [her]self" for complaining to the Chancellor's office and Regents about him. The plaintiff also denied that she did anything inappropriate with the student or the coworker.

In his deposition, the principal explained that pursuant to the Chancellor's guidelines, he reported the incident to the DOE on February 11, 2005. He further explained that the plaintiff's supervisor told him that the plaintiff told her that she knew her actions were wrong, but that she "could not help [her]self." The principal confirmed that he is a minister in a Pentecostal church. When questioned about his views on homosexuality, the principal stated that his church's view is that "it is not permissible under the ordinances of what we believe the Bible speaks of." He further stated that even were he not a church member, homosexuality is against his "moral fabric." The principal conceded that the plaintiff's complaints to the Chancellor's office may have been "mentioned [to him] in some conversation," but denied saying anything to the plaintiff about her complaints when he terminated her.

By notice of motion dated April 27, 2009, the DOE and the principal moved for summary judgment dismissing all causes of action against them. The defendants argued, inter alia, that the plaintiff had been terminated for her inappropriate conduct, a legitimate, non-discriminatory [*6]reason, and therefore any purported discrimination was not causally related to her termination. In opposition, the plaintiff asserted that she was treated disparately, and denied engaging the student in a conversation about the coworker or having any inappropriate conversations with either the student or coworker.

By decision and order dated February 9, 2010, the court granted the defendants' motion to the extent of dismissing the claims for retaliation and libel, but denied summary judgment as to the plaintiff's discrimination claims. The plaintiff appeals from the dismissal of her retaliation cause of action and the defendants cross-appeal denial of their summary judgment motion to dismiss the plaintiff's discrimination cause of action.

For the reasons set forth below, I would modify the decision of the trial court to dismiss the plaintiff's discrimination claim and otherwise affirm. As a threshold matter, the plaintiff's claims should be viewed in the context of overriding public policy that seeks to protect children from predatory teachers regardless of whether the teacher is heterosexual or homosexual. See e.g. Matter of Douglas v. New York City Bd./Dept. of Educ., 87 AD3d 856, 857, 929 N.Y.S.2d 127, 128 (1st Dept. 2011) (termination was appropriate where "petitioner's unacceptable behavior [of making sexual comments to students] compromised his ability to function as a teacher"); Lackow v. Department of Educ. of City of N.Y., 51 AD3d 563, 859 N.Y.S.2d 52 (1st Dept. 2008) (the penalty of termination was not disproportionate to the defendant's offense of making inappropriate remarks to students); Matter of Katz v. Ambach, 99 A.D.2d 897, 897, 472 N.Y.S.2d 492, 494 (3rd Dept. 1984) (terminating teacher for making sexual comments and putting his arm around students is an appropriate penalty "in view of the potentially harmful effect upon the young minds entrusted to a teacher's care"); City School Dist. of City of N.Y. v. Hershkowitz, 7 Misc 3d 1012(A), 2005 NY Slip Op 50569[u] (Sup. Ct., N.Y. County 2005) (respondent should have been terminated rather than suspended for one year for sending sexually explicit e-mails). This policy was recently reaffirmed in the Court of Appeals decision in City School Dist. of City of N.Y. v. McGraham, 17 NY3d 917, 934 N.Y.S.2d 768, 958 N.E.2d 897 (2011). In that decision, the Court upheld the 90-day suspension of a teacher for engaging in an "inappropriate communication" with a 15-year-old student in her class. The Court acknowledged that the state has a broad public policy of protecting children.

In any event, the plaintiff fails to establish a prima facie claim of discrimination. The standards relating to burden and order of proof in employment discrimination cases brought under the State HRL are the same as those established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825 (1973); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 n.3, 786 N.Y.S.2d 382, 390, 819 N.E.2d 998, 1006 (2004). To establish a prima facie claim of discrimination, a plaintiff must initially show: (1) that the employee is a member of protected class, (2) that she was discharged, (3) that she was qualified for the position, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824; Forrest, 3 NY3d at 305, 786 N.Y.S.2d at 390.

Further, discrimination cases may be characterized as "pretext" cases or "mixed-motive" cases. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.1992), cert. denied 506 U.S. 826, 113 S.Ct. 82 (1992). In "pretext" cases, the burden-shifting framework articulated in McDonnell Douglas Corp. (411 U.S. at 802, 93 S.Ct. at 1824) is applied. Upon the plaintiff's prima facie showing of discriminatory animus, the burden then shifts to the defendant to provide a legitimate non-discriminatory reason for the adverse employment action. Brennan v. [*7]Metropolitan Opera Assn., 284 A.D.2d 66, 729 N.Y.S.2d 77 (1st Dept. 2001). If the defendant provides a legitimate non-discriminatory reason, the burden then shifts back to the plaintiff to produce evidence demonstrating that it is more likely than not that the defendants' stated reasons were false and thus a pretext for another non-legitimate reason. McDonnell Douglas Corp., 411 US at 804, 93 S.Ct. at 1825; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000), cert. denied 540 U.S. 811, 124 S.Ct. 53 (2003).

In this case, the plaintiff claims that the principal's alleged disparaging remarks about homosexuality raise an inference of discrimination. In response, the principal relies on the OSI report substantiating the plaintiff's inappropriate conduct towards a female student and coworker. The plaintiff contends, as she did before the motion court, that she did not engage in any inappropriate conduct and that the principal's anti-gay animus is sufficient to raise a triable issue of fact that his reason for terminating her is false.

The principal argues that the doctrine of collateral estoppel precludes the plaintiff from relitigating the issue of whether she engaged in "inappropriate" conduct. I agree. The doctrine of collateral estoppel is applicable where the issue in the current litigation is identical to a material issue decided in a prior proceeding, and the issue was fully and fairly litigated. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-501, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984). Further, it is well settled that a final determination by a quasi-judicial administrative agency may be accorded preclusive effect. Ryan, 62 N.Y.2d at 499, 478 N.Y.S.2d at 825-826. This is particularly true when the party to be precluded solicited resolution of the issue by that agency, and fully participated with the expectation that the parties are bound by the decision. Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 532 N.Y.S.2d 230, 528 N.E.2d 153 (1988), cert. denied 488 U.S. 1005, 109 S. Ct. 785 (1989).

In its rejection of the principal's collateral estoppel argument, the majority contends that the plaintiff did not have a full and fair opportunity to litigate her discrimination claim. This entirely misconstrues the issue that was determined in the grievance process and which the plaintiff is barred from relitigating. The grievance decision, crediting the OSI report, plainly finds that the plaintiff engaged in "inappropriate" conduct. The record is devoid of any evidence indicating that she was deprived of an opportunity to defend herself against the charge of inappropriate conduct with a minor student. Furthermore, the grievance process was initiated by the plaintiff, who was represented by her union. Whether she had the right under her collective bargaining agreement or not, it is undisputed that the plaintiff did not request that the union appeal on her behalf or otherwise challenge the findings in the decision.

As such, the plaintiff cannot argue that the principal's reason for terminating her, her inappropriate conduct with a 16-year-old student, is false. Therefore, under a "pretext" analysis, her discrimination claim must fail ^[FN2]. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 786 [*8]N.Y.S.2d 382, 819 N.E.2d 998 (2004), supra (plaintiff's prima facie case, without any evidence that the defendant's justification is false, does not permit the trier of fact to conclude that the employer unlawfully discriminated).

The majority's reliance on this Court's decision in Bennett v. Health Mgt. Sys. (92 AD3d 29, 936 N.Y.S.2d 112 (2011)) is misplaced. Indeed, Bennett supports dismissal of her claims. In Bennett, the plaintiff claimed that his termination was "motivated by hostility to his age and race." 92 AD3d at 33, 936 N.Y.S.2d at 115. In opposition, the defendant offered credible evidence of the plaintiff's poor attendance, inability to master his job, and sleeping and drinking on the job. The defendant was granted summary judgment because the plaintiff failed to show that the evidence was false, misleading, or incomplete. Similarly, in this case the plaintiff cannot show that the charge of inappropriate conduct, which was the only reason proffered by the principal for terminating her, is false.

Even if the plaintiff were permitted to relitigate the issue of whether she engaged in inappropriate conduct, in my opinion it would not help her. While the majority makes much of the principal's purported anti-gay religious views and conduct, the record reflects that the principal followed DOE policy in reporting the allegations. More significantly, at the time the principal made his decision to terminate the plaintiff, he was in receipt of a DOE report that substantiated her misconduct and recommended her termination. In my view, it is clear that this documentation induced the principal to terminate the plaintiff, and that he would have done so no matter what her sexual orientation. For this reason, her claim also fails under a "mixed-motive" analysis.

In order to defeat a motion for summary judgment under a "mixed-motive" analysis, the plaintiff must raise a triable issue of fact that unlawful bias was the "motivating" or "substantial" factor for termination. De la Cruz v. New York City Human Resources Admin. Dept. of Social Servs., 82 F.3d 16, 23 (2d Cir. 1996). The initial burden on the plaintiff under the mixed-motive analysis is greater than in the pretext analysis. Id. The plaintiff may meet her initial burden by showing "evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the alleged discriminatory attitude." Raskin v. The Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997) (internal quotation marks omitted); see Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1794-1795 (1989) (plurality opinion). Once the plaintiff offers such evidence, the burden shifts to the defendant to demonstrate that she would have been terminated even in the absence of alleged discriminatory bias. De la Cruz, 82 F.3d at 23; Price Waterhouse, 490 U.S. at 252, 109 S.Ct. at 1792 ("the employer . . . must show that its legitimate reason, standing alone, would have induced it to make the same decision"); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 173 (2d Cir. 2006). [*9]

Verbal comments serve as evidence of discriminatory motivation when a nexus exists between the defendant's allegedly discriminatory remarks and the decision to terminate the plaintiff. Schreiber v. Worldco, LLC, 324 F.Supp.2d 512 (S.D.N.Y. 2004)(citations omitted). In determining whether a comment is a probative of discrimination, the following factors are considered: (1) whether the comment was made by a decisionmaker, a supervisor, or a low-level coworker; (2) whether the remark was made close in time to the adverse employment decision; (3) whether a reasonable juror could view the remark as discriminatory; and (4) the context of the remark - that is, whether the remark related to the decision making process. Id. at 519.

Here, even if the principal could be viewed as a "decisionmaker" demonstrating an anti-gay animus, his remarks do not relate in any way to his decision to terminate the plaintiff. See e.g. Equal Empl. Opportunity Commn. v. National Broadcasting Co., Inc., 753 F.Supp. 452 (S.D.N.Y. 1990), affd. 940 F2d 648 (1991) (plaintiff presented no evidence to connect the alleged stereotyped remarks to the decision-making process); cf. St. Louis v. New York City Health & Hosp. Corp., 682 F.Supp.2d 216, 230 (E.D.N.Y. 2010) (supervisor's repeated statements that she "did not like working with females" and that plaintiff was "out of here" suggests a relationship between gender bias and the decision to terminate); Bookman v. Merrill Lynch, 2009 WL 1360673, *14, 2009 US Dist. LEXIS 40766, *37 (S.D.N.Y. 2009) (employer's comment that "the future of the office lay with young [w]hite brokers" related directly to the plaintiff's prospects at the company). Here, there is no indication that the principal's explanation of his religious views and those of his church had anything to do with the plaintiff's termination. Similarly, his parody of a walk bears no relation to the plaintiff's employment. There is also no indication that the comments were close in time to the plaintiff's termination.

The plaintiff argues that under the "broad and remedial provisions" of the NYC HRL, evidence of the principal's anti-gay beliefs and her testimony describing his behavior meets her initial burden. However, even if she does meet her burden, I would find that the substantiation of her misconduct in the OSI report and the recommendation of the Chancellor's office to terminate the plaintiff, standing alone, would have induced the principal to make the same decision. See e.g. St. Louis v. New York City Health & Hosp. Corp., 682 F.Supp.2d at 231-232 (defendants met their burden by producing negative performance evaluations); Cramer v. Pyzowski, 2007 WL 1541393, 2007 US Dist. LEXIS 38375 (E.D.N.Y. 2007) (defendants' detailed record of plaintiff's performance deficiencies met their burden); Bellom v. Neiman Marcus Group, Inc., 975 F.Supp. 527 (S.D.N.Y. 1997) (defendant produced evidence that the plaintiff failed to meet sales quotas for three consecutive months).

In light of the sexual nature of the allegations, the defendant principal's decision to follow the Chancellor's recommendation was not unwarranted. See New York City Board of Education Chancellor's Regulation A-830, Attachment 1, p. 2 (prohibiting sexual harassment by teachers toward students). As the United States Supreme Court has observed, judicial review of a school administrator's action is "by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Board of Education v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051 (1982).

With regard to the plaintiff's retaliation claim, I agree with the motion court that the plaintiff fails to raise a triable issue of fact as to causation. In order to make out a prima facie case of retaliation under the City HRL, the plaintiff must show that (1) she is engaged in a "protected activity," (2) the protected activity was known to defendant, (3) defendant took an adverse employment action and, (4) there is a causal connection between the protected activity [*10]and the adverse employment action. See Forrest, 3 NY3d at 312-313, 786 N.Y.S.2d at 396. If plaintiff meets this initial burden, the burden shifts to the defendant to show that it had legitimate, non-retaliatory reasons for the adverse employment action. See Williams v. The City of New York, 38 AD3d 238, 831 N.Y.S.2d 156 (1st Dept. 2007), lv. denied 9 NY3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514 (2007). Upon defendant's proffer of a legitimate reason, the plaintiff must then show that the reason provided is pretextual. See id. In this case, the plaintiff engaged in protected activity when she complained to the OSI investigator and the Chancellor's office, and the principal conceded in deposition that he knew of her complaints. She points to the temporal proximity of her complaints to her termination and the principal's comments at the time of her termination to meet her initial burden and to show pretext.

The plaintiff asserts that her termination took place three months after her complaints to the OSI investigator on March 30 and Chancellor's office on April 20. However, the principal reported her misconduct on February 11 and suspended her on March 11, prior to her complaints. Causation cannot be established where the complaints are made after the adverse job action began. Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 94-95 (2d Cir. N.Y. 2001), cert. denied 534 U.S. 951, 122 S.Ct. 348 (2001); see e.g. Hernandez v. Bankers Trust Co., 5 AD3d 146, 773 N.Y.S.2d 35 (1st Dept. 2004) (no causation where the complaint was made after plaintiff was notified that his use of a racially offensive password was a terminable offense). Even considering her termination in June as the beginning of the adverse employment action, the plaintiff's claim nevertheless fails. As with her discrimination claim, she does not raise a triable issue of fact that the reasons for her termination were false and or that the principal would not have made the same decision regardless of her complaints.

THIS CONSTITUTES THE DECISION AND ORDER 
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 24, 2012

CLERK

Footnotes

Footnote 1:The causes of action against the corporation that operates the after-school program and its director were dismissed on May 29, 2008 and they are not parties to this appeal. 

Footnote 2: The plaintiff's contention that the doctrine of collateral estoppel cannot be raised for the first time on appeal is unavailing. Whether a collateral estoppel argument may be raised on appeal depends upon whether the argument was apparent on the face of the record and whether the record on appeal is sufficient. See Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252, 255 (1st Dept. 1996), lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 (1996);Gerdowsky v. Crain's N.Y. Bus., 188 A.D.2d 93, 97, 593 N.Y.S.2d 514, 516-517 (1st Dept. 1993); see also Szigyarto v. Szigyarto, 64 N.Y.2d 275, 280, 486 N.Y.S.2d 164, 167-168, 475 N.E.2d 777, 780-781 (1985). Because the grievance decision is in the record and it is undisputed that it was not appealed, there are no evidentiary issues which would prevent the Court from considering the applicability of collateral estoppel at this time. The cases cited by the plaintiff that hold otherwise are either factually distinguishable or there is no reasoning supporting the decision. 

NYS Court of Appeals: DOE Loses The Appeal of 90-days Suspension For Teacher Colleen McGraham

City School Dist. of the City of New York v McGraham

LINK

More Sharing Service|

Justia.com Opinion Summary: Respondent, a 36-year-old tenured high school teacher, was the subject of disciplinary charges pursuant to Education Law 3020-a as a result of her improper conduct with respect to a 15-year-old male student. Petitioner commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, arguing that the penalty imposed was irrational and contrary to the public policy of protecting children. The court held that the arbitration award did not violate public policy where the award, on it's face, was neither prohibited by statute nor common law. The court also held that the award was not arbitrary, capricious, or irrational where the hearing officer engaged in thorough analysis of the facts and circumstances, evaluated respondent's credibility, and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty. Accordingly, the judgment was affirmed.

 City School Dist. of the City of New York v McGraham 2011 NY Slip Op 08228 Decided on November 17, 2011 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. 
Decided on November 17, 2011 
No. 193 

[*1]The City School District of the City of New York, Appellant,
v
Colleen McGraham, Respondent. 
 
Stephen J. McGrath, for appellant. 
Maria Elena Gonzalez, for respondent. 

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

Respondent, a 36-year-old tenured high school teacher, was the subject of disciplinary charges pursuant to Education Law § 3020-a as a result of her improper conduct with [*2]respect to a 15-year-old male student. Respondent corresponded with the student electronically outside of school hours sometimes late at night about a variety of personal matters and tried to discuss with him the nature of their relationship, which, in her view, was potentially romantic. There was, however, no physical contact, let alone a physical relationship, between the two and none of her communications were of a sexual nature. They never met outside of school grounds.

The hearing officer found respondent guilty of three of the five specifications preferred against her and determined that she engaged in inappropriate communications of an intimate nature with the student, constituting conduct unbecoming her position as a teacher. In determining the appropriate penalty, the hearing officer considered that respondent was remorseful for her conduct and that she sought therapy soon after her behavior came to light. The hearing officer did not believe that respondent would repeat such conduct and imposed a penalty of a 90 day suspension without pay and reassignment to a different school upon her reinstatement. Petitioner commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, arguing that the penalty imposed was irrational and contrary to the public policy of protecting children.[FN1]

Education Law § 3020-a (5) limits judicial review of a hearing officer's determination to the grounds set forth in CPLR 7511. Where, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny it "must have evidentiary support and cannot be arbitrary and capricious" (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]).

Contrary to petitioner's argument, the arbitration award does not violate public policy. Courts will only intervene in the arbitration process in those "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator" (Matter of Sprinzen (Nomberg), 46 NY2d 623, 631 [1979]). It cannot be disputed that the State has a public policy in favor of protecting children, but this broad, well-settled principle is not the type of absolute prohibition from arbitrating a "particular" matter necessary to invoke the public policy exception and to overturn the arbitral resolution. Looking at the award on its face, it cannot be [*3]said that either statutory or common law prohibits the penalty imposed by the hearing officer.

Nor is the award arbitrary and capricious or irrational. The hearing officer engaged in a thorough analysis of the facts and circumstances, evaluated respondent's credibility and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty. It was rational, under the circumstances, for the hearing officer to find that respondent's actions constituted serious misconduct, but that she was remorseful and her actions were unlikely to be repeated, such that termination was not mandated. That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty. 
* * * * * * * * * * * * * * * * * 
Order affirmed, with costs, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur. 
Decided November 17, 2011 Footnotes 

Footnote 1: Respondent's employment was terminated in July 2009 because she allowed her teacher's certification to lapse. However, since petitioner seeks her termination under § 3020-a in an effort to prevent her from being in a position to obtain future employment with the Department of Education, this appeal is not moot (see e.g. Matter of Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, 286 [1937]).

 

City School Dist. of the City of N.Y. v McGraham

LINK

More Sharing ServicesShare|

City School Dist. of the City of N.Y. v McGraham 2010 NY Slip Op 06065 [75 AD3d 445] July 13, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2010 

City School District of the City of New York, Respondent,
v
Colleen McGraham, Appellant.

—[*1] James R. Sandner, New York (Maria Elena Gonzalez of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), for respondent.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered January 13, 2009, in a proceeding pursuant to Education Law § 3020-a (5) and CPLR 7511 to vacate an impartial hearing officer's determination, dated February 16, 2007, which found that respondent teacher was guilty of serious misconduct unbecoming a person in the position of teacher, and imposing a penalty of 90 days suspension without pay and reassignment, granting the petition and remanding the matter for imposition of a new penalty, reversed, on the law, without costs, the award reinstated and the petition dismissed.

Respondent, a 36-year-old tenured high school teacher considered by the school's principal to be hard-working and conscientious, taught honors English to M.S., a 15-year-old boy who was known as one of the brightest and most talented students in the school. Respondent also served as an advisor to a poetry club in which M.S. was active. In order to facilitate after-hours communication concerning the poetry group, respondent provided her personal e-mail address to M.S. and another student. Thereafter, respondent and M.S. embarked on a series of frequent electronic communications, via e-mail and instant message, in which the two discussed literature, writing and movies. Respondent lent movies to M.S. that she thought he would find interesting, such as the documentary Fahrenheit 9/11. She also gave him a copy of the Catcher in the Rye.

In early 2005, respondent agreed to serve as faculty advisor to a theater group formed by M.S. and several other students. The group met frequently and, consequently, respondent's contact with M.S. increased substantially. They regularly communicated electronically after school hours, often after midnight. The on-line conversations included personal matters affecting M.S., including issues he was having with his mother. Respondent continued to lend M.S. movies she thought he might find interesting, including Harold and Maude, a 1972 film depicting a relationship between a teenage boy and an older woman.

In May 2005, respondent felt compelled to discuss with M.S. the nature of their relationship. She claims this was because of several incidents, which included M.S. posting on his personal blog: "you crazy woman you, look what you do to my heart?" She also became concerned that once, during theater rehearsal, M.S. called her "Colleen my darling" and that [*2]another time during rehearsal he was standing particularly close to her. Respondent claims that she told M.S. during the discussion that their relationship had to be better defined. M.S. recalls respondent telling him that the lines in their relationship were becoming blurred and that she was "confused."

One month later, respondent and M.S. engaged in an instant message chat in which, according to M.S., respondent asked him whether he thought it was "crazy" or inappropriate for her to "think that there was something between us." Respondent, on the other hand, claims that after M.S. stated he was joking in the blog postings which alluded to feelings he had for her, she merely suggested that she must be "crazy" for thinking that M.S. was being sincere. This was the last electronic conversation between respondent and M.S., who ignored further entreaties by respondent to communicate.

On the last day of school in 2005, M.S. told another teacher about his communications with respondent. The teacher encouraged M.S. to file a report with the school's principal, which he did. The principal referred the matter to the Office of the Special Commissioner of Investigation, which opened an investigation. That night, respondent, unaware of the investigation, sent an e-mail to M.S., in which she stated that:

"I am not sure how we got to this place where we are not talking to each other. I think various feelings of hurt, fear, loss, anger etc. Powerful emotions that can make people act crazy even when they don't intend to . . .

"I want you to know I tried so hard to handle things in the right way, and feel I failed miserably. Constantly telling myself one thing, and at moments being overridden by emotion.

"Maybe you can understand, take pity and forgive. I know I haven't dealt very well with this situation, due to several reasons. One is, in one way I never in a million years would have thought I would have found myself in this situation, and I did not know how to deal with what I felt. In another way it is a situation I haven't dealt with in 10 years, so maybe I am rusty or something. But obviously the particulars make this unique and complex, certainly for me. I hope this is not too cryptic.

"I hope at some point we will be able to talk and understand each other better. You have meant too much to me for this to end 'in silence and tears,' as the Byron poem says. But if you don't want to talk to me, I will do my best to understand. Know that my intention was never to hurt you, and I am sure that you as well did not intend the reverse. I don't know how people can get so far away from what they intend, maybe partly lack of communication and the mix of emotions. But I hope you know I am truly sorry."

In response to this e-mail, M.S.'s mother and the assigned investigator composed and sent [*3]an e-mail to respondent, purporting to be from M.S., which stated that M.S. was "confused" and suggested that he had similar emotions as respondent concerning their relationship. Respondent replied later that day by e-mail, stating that:

"I definitely relate to the chaotic mess in the head. I haven't meant to confuse the hell out of you. I just think the situation makes it incredibly confusing. I think we have both been afraid of being embarrassed. I think we have both been afraid of a lot of things. I feel like we have been doing this dance around each other since practically the beginning of the year.

"Because we have both been confused I have wanted us to talk. But that seems to create problems for both of us. When I have tried to talk to you, you seem to run a bit in the opposite direction. And my nervousness leads me to maybe not be entirely forthright. There is so much I would like to tell you, to discuss with you. But even now writing this, there is fear. You, I am sure, understand the risks involved for me. But you have no idea how happy it makes me to hear from you. And as far as where I am standing, there is only one place I would like to be standing. God, help me! So, I guess we should try to talk. I have often thought of the idea of talking over tea or coffee or the beach or something, I don't know how. I just didn't know how insane the idea was." The next day, respondent sent two additional e-mails to M.S. imploring him to talk so they could sort out their feelings.

The investigator confronted respondent with her various e-mails and instant messages on June 30, 2005. During the interview, respondent admitted to the communications and acknowledged the inappropriateness of her actions, which she attributed to an "intellectual attraction" to M.S. that never resulted in physical contact. Shortly thereafter, respondent began therapy.

In early July 2005, M.S. discovered postings made by respondent to an on-line journal, under an alias. The entries for May and June 2005 consistently discussed respondent's strong feelings for an unidentified male. One entry described respondent and the person "standing . . . so close [to each other] I could feel the heat from his body radiate to me. I wanted to just let myself go, lean backwards and sink into him." Another talked about her desire to be "kissing him." Yet another stated that her thoughts regarding the person that day "were of a salacious nature." The vast majority of the postings, however, described the deep emotional pain respondent was experiencing from the person's decision to cease communicating with her.

In December 2005, after the investigation was concluded with a recommendation that respondent be terminated, petitioner filed charges against respondent, supported by five specifications. The first specification cited to each of the entries posted by respondent in the on-line diary. The second referred to respondent's statement to M.S. in May 2005 that the lines in their relationship were becoming blurred and the third specification was based on respondent's asking M.S. in June 2005 whether he thought it was "crazy" or inappropriate for her to "think that there was something between us." The fourth and fifth specifications concerned the e-mails [*4]sent by respondent to M.S. on June 23 and June 24, 2005, respectively, in which she implored him to get together for a talk about their feelings towards each other. The hearing officer granted respondent's motion to strike the first charge, stating that the on-line journal was not intended for M.S.'s consumption; however, the ruling expressly provided that the entries could be used for the limited purpose of illuminating respondent's state of mind when making the communications that supported the remaining charges.

Respondent was found guilty of specifications three, four and five, the hearing officer having found that by making each communication respondent had placed M.S. in an uncomfortable position and had acted in a fashion unbecoming of a person in her position. The second specification was dismissed based on the fact that M.S. continued to communicate with respondent after she told him that their relationship had become "blurred." Describing respondent's behavior as "serious" and the type that "tends to destroy the teacher/student relationship," the hearing officer stated that it called for a "significant" penalty. In fashioning the penalty, he took note of respondent's remorse when confronted by the investigator and that she ceased all communications with M.S. at that time and shut down her on-line diary. The hearing officer credited respondent's testimony that she gained a valuable lesson regarding the importance of appropriate student-teacher relationships and that she had sought therapy to deal with the emotional issues underlying her behavior. Based on his belief that respondent would not allow such a situation to occur again, he opted not to terminate her, but rather to suspend her without pay for 90 days, and to have her reassigned to a different school.

Petitioner commenced this proceeding, seeking an order vacating or modifying the arbitration award. Petitioner alleged that the dismissal of the second specification was "illogical and irrational" because the communication alleged therein was inappropriate, whether or not it made M.S. feel uncomfortable. It further contended that the penalty was inconsistent with the state's strong public policy interest in maintaining a safe environment in the schools. Petitioner asserted that the hearing officer's conclusion that respondent would not repeat her behavior was irrational.

Supreme Court granted the petition. The court acknowledged that the standard of review mandated by Education Law § 3020-a is that of CPLR article 75, which provides that an arbitration award may only be vacated on a showing of "misconduct, bias, excess of power or procedural defects" (Austin v Board of Educ. of City School Dist. of City of N.Y., 280 AD2d 365, 365 [2001]; see CPLR 7511 [b] [1]). However, following recent precedent from this Department, the court applied a "hybrid" standard which incorporated the arbitrary and capricious test embodied in CPLR article 78. Utilizing this standard, the court concluded that "the penalty imposed by the arbitrator of a mere 90 day suspension violates a strong public policy to protect children and is accordingly without a rational basis." The court further stated that "[t]he arbitrator's observation regarding the inappropriateness of placing a child in a position of a consenting adult is at the heart of why the penalty of a three month suspension is not rational and does not serve the public policy of protecting children. The arbitrator seems to have been impressed by the fact that the child had gone to college and had 'moved on with his life . . .' as well as that there had not been any physical contact between Ms. McGraham and her student and that the teacher had not actually asked MS out on a date. But as was noted by Justice Acosta in City School Dist. of City of N.Y. v Hershkowitz (7 Misc 3d 1012 [A] [2005]) . . . it is irrational to use a student's resolve in the face of a teacher's improper and persistent advances, to minimize the teacher's improper conduct. Furthermore, in Hershkowitz, as is the case here, the arbitrator has 'failed to appreciate the harm that respondent's behavior may have on a child, both presently and in the future, by [respondent's] inappropriate conduct, even if [respondent] did not 'cross the line' and have physical contact with [the student]. (id.)"

Respondent does not question that Supreme Court applied the correct standard. Indeed, while CPLR 7511 is dictated by Education Law § 3020-a to be the proper standard of review, this Court has held that "where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration" (Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567 [2008]). Because the arbitration at issue was compulsory, "[t]he determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" (id.).

Applying this standard, we discern no basis upon which the court should have disturbed the hearing officer's determination. Under the circumstances of this case, we may not vacate on the ground that it is contrary to public policy. It is beyond question that, in the broadest sense of the term, there is a strong public policy in preventing student/teacher relationships that, whether of a sexual nature or not, threaten students' well-being. In upsetting an arbitral award on public policy grounds, however, more than a general societal concern must be at issue. Rather, the public policy exception applies only in " 'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator' " (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 7 [2002], quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). Moreover, "courts must be able to examine an arbitration . . . award on its face, without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement" (Sprinzen, 46 NY2d at 631).

Transport Workers involved two arbitral decisions arising out of separate accidents, one caused by the negligence of a train operator, another by the negligence of a bus operator which resulted in a pedestrian being injured. In both cases, the arbitrator declined to dismiss the transportation workers, instead demoting one worker for six months and docking him six weeks' pay, and docking the other over four months' pay and effectively placing him on probation. The public authority in each case challenged the awards, relying on Public Authorities Law § 1204 (15), which grants to the authorities at issue the power "[t]o exercise all requisite and necessary authority to manage, control and direct the maintenance and operation of transit facilities . . . for the convenience and safety of the public." The Court of Appeals rejected this position, finding that "[t]he legislative authority to 'manage, control and direct' the operation of New York City's public transportation system for the 'convenience and safety of the public' does not translate into a statutory prohibition against some relinquishment to arbitrators of the final say in safety matters when they arise in the context of employee discipline" (99 NY2d at 9). Nor [*5]did the Court find that such authority, "in any direct, let alone absolute, sense set forth requirements or standards for the disciplining of employees violating safety rules" (99 NY2d at 12).

Here, in claiming that the award violates public policy, petitioner points to article 10 of the Family Court Act and Social Services Law § 384-a. These are both statutory schemes which expressly recognize the paramount importance of the safety and welfare of children. However, they do not in any way govern school disciplinary proceedings, much less mandate the type of penalty which is appropriate in such proceedings. Indeed, the public policy at issue here is no different than the equally important public policy of protecting the physical safety of the riders of public transportation which was at issue in Transport Workers, and which was rejected by the Court of Appeals as forming the basis for the overturning of the arbitrator's awards in that case. We recognize that this conclusion appears to be directly at odds with the Third Department's decision in Matter of Binghamton City School Dist. (Peacock) (33 AD3d 1074 [2006], appeal dismissed 8 NY3d 840 [2007]) and the Second Department's decision in Matter of Board of Educ. of E. Hampton Union Free School Dist. v Yusko (269 AD2d 445 [2000]). However, for the reasons set forth by the dissent in Matter of Binghamton, we think that Transport Workers compels a different result from the ones reached in those cases. Further, the award in this case recognizes the seriousness of the allegations and imposes a penalty which we do not think is disproportionate to the charges (see Transport Workers, 99 NY2d at 11 [finding that "although the awards directed reinstatement of the employees, they clearly did not disregard safety concerns and the seriousness of the breaches of safety rules. Instead, they imposed serious financial sanctions in both cases"]).

Moreover, we find the penalty imposed here not to be so lenient as to have been arbitrary or capricious. Preliminarily, Supreme Court is incorrect that the hearing officer found the absence of physical contact and the fact that M.S. seemed to have "moved on with his life" to be mitigating factors. While the award discusses these facts, there is no evidence that the final disposition relied on them. To the contrary, the hearing officer condemned respondent's behavior in no uncertain terms, and the only mitigating factors he found revolved around respondent's remorse and the actions she took to prevent the problem from recurring. The hearing officer's conclusion that respondent was not likely to repeat her actions was necessarily a determination based on respondent's credibility, and he was in a far superior position than Supreme Court to make that determination (see Whitten v Martinez, 24 AD3d 285, 286 [2005]). Moreover, the determination was based on specific actions taken by respondent such as her decision to seek treatment and her cessation of contact with M.S. Under those circumstances, the sanction was appropriate.

This case contrasts sharply with Matter of Binghamton, cited by Supreme Court and the dissent. There, the Court, in affirming the vacatur of a one-year suspension that Supreme Court had found "shockingly lenient" (33 AD3d at 1076) noted that the teacher "showed no remorse for the conduct proven by petitioners, disobeyed administrative direction to cease his relationship with the student and not transport her in his car, and continued to contact her even after disciplinary charges were brought against him" (33 AD3d at 1077). This case is also distinguishable from Lackow v Department of Educ. (or "Board") of City of N.Y. (51 AD3d 563 [2008], supra), upholding the sanction of dismissal, where the teacher had been warned three times about the inappropriateness of his behavior, yet allowed it to continue. To be sure, we do not disagree with the dissent that respondent's behavior was highly inappropriate. We simply [*6]disagree that the evidence demonstrates that respondent is unrepentant and likely to pursue inappropriate relationships with students in the future. The dissent places too much emphasis on the on-line diary. The entries were not, as the dissent describes them, "communications," but rather respondent's musings which she posted under an alias on a public website without informing the student that she had done so. Moreover, the hearing officer found that, at best, the entries confirmed that respondent had "romantic" feelings toward M.S. To the extent, however, that they express a desire to commence a physical relationship with M.S., we can only speculate that respondent planned to actually pursue such a course. Again, we do not condone respondent's communicated desire to even talk to the student about her feelings toward him, but the question before us is only whether there was a rational basis for the hearing officer to conclude that respondent is not a sexual predator who is unable to respect the boundaries that must exist between educators and their charges.

Finally, we do not view this case as being analogous to City School Dist. of City of N.Y. v Hershkowitz (7 Misc 3d 1012[A], 2005 NY Slip Op 50569[U] [2005]), in which our dissenting colleague found a one-year suspension to be inadequate where a teacher pursued a relationship with a student. First, the behavior in that case was far more egregious. The teacher sent sexually explicit e-mails to the student in which he directly invited her to have sex with him. Second, the teacher acted deceptively by instructing the student on how to keep his behavior hidden from her mother. Third, when the student's mother did find out, the teacher contacted the mother and discouraged her from making "a big deal" out of his conduct. Finally, it does not appear from the Hershkowitz decision that, as here, the teacher showed remorse and took affirmative steps to reform himself such as seeking therapy. In fact, Justice Acosta rejected out of hand the teacher's claim that he was capable of rehabilitation. The sole basis for that contention was the teacher's attorney's statement that his client had not engaged in any misconduct for the six years that he had been on administrative duty while the charges were pending, an assertion which Justice Acosta called "speculative and unsustainable" and "unworthy of credence" (2005 NY Slip Op 50569[U], *7). Here, the hearing officer had a strong basis for concluding that respondent could be trusted once again to teach students. Accordingly, his decision to suspend respondent, but not terminate her, was supported by the evidence and not arbitrary and capricious. Concur—Mazzarelli, J.P., Moskowitz and Renwick, JJ.

Saxe and Acosta, JJ., dissent in a memorandum by Acosta, J., as follows: Because I believe that the 90 day penalty imposed is irrational and disconnected from the strong public policy of protecting children from improper conduct by those entrusted to educate and guard them, I respectfully dissent.

Respondent is a tenured high school teacher employed by petitioner. In December 2005, respondent was charged with inappropriate intimate conduct with one of her students.

Pursuant to New York Education Law § 3020-a, an arbitration hearing on the charges was held before an arbitrator, who sustained three out of the five charges against respondent. [*7]The Department of Education (DOE) presented evidence to support the charges and specifications, which included e-mail and instant message communications between respondent and her student, M.S., and respondent's personal blog relating her feelings toward her student. Respondent argued that she believed M.S. had inappropriate feelings for her, and that her blog entries were an attempt to clarify their relationship.[FN1] Some of these communications include the following:

"May 02, 2005—Why do the tears always come? My feelings for him are so strong, and I can't say or do anything—I love being close to him, talking to him, being around him, but it is just so filled with pain at times also. Today at one point he was standing behind me so close I could feel the heat from his body radiate to me. I wanted to just let myself go, lean backwards and sink into him . . .

"May 05, 2005—Do I enjoy insanity? I know I enjoy feeling strong emotions. I know I just like being with him, talking with him. And what that is wrong?

"May 23, 2005—In my heart I just feel I don't care about anything else but having the chance of being with him. Talking with him, kissing him. When he gets back I hope I can do what I want. I want to tell him that I think we should go out for coffee or tea and talk. Maybe go to the Muddy Cup . . . I want to talk to him about everything. Clear everything up. Ultimately I would love to tell him how I feel about him. And to know how he feels.

"May 28, 2005—All I have thought about is it moving beyond the realm of fantasy. I want it to be more. But it is scary, for oh so many reasons. I've just been thinking about him so much. Today my thoughts were of a salacious nature. I can't wait to see him, but I also feel nervous" (emphasis added).

From May 2, 2005 to July 1, 2005, the record shows that respondent wrote 20 such blog entries. On or about June 23, 2005, respondent wrote to M.S. among other things, the following: "There is so much I would like to tell you, to discuss with you. But even now writing this, there is fear. You, I am sure, understand the risks involved for me. But you have no idea how happy it makes me to hear from you. And as far as where I am standing, there is only one place I would like to be standing. God, help me so! So, I guess we should try to talk. I have often thought of the idea of talking over tea or coffee or the beach or something, I don't know. I just didn't know how insane the idea was" (emphasis added).

Based on the blog entries and communications between respondent and M.S., the arbitrator agreed with DOE that respondent had allowed an inappropriate relationship to [*8]develop, had attempted to communicate her feelings, and ultimately attempted to blame the student for having feelings for her. The arbitrator imposed a penalty of suspension without pay for 90 days, to be followed by reassignment to another school.

Thereafter, petitioner commenced this proceeding to vacate, or in the alternative, modify the penalty imposed by the arbitrator. In a detailed 17 page decision, Supreme Court granted the petition, vacated the arbitrator's decision and remanded the matter for the imposition of a new penalty. I believe Supreme Court properly vacated the arbitrator's award as being irrational and violative of New York State's public policy to protect children from harmful conduct of adults in loco parentis.

Initially, and significantly, the issue in this case is not limited to whether the 90-day suspension is appropriate under the circumstances. Rather, the issue is whether the suspension is rational absent a specific finding that respondent, who was placed in a position of authority over children and who betrayed that trust and her responsibility, does not pose a danger to those students. Given the facts of this case, I do not believe the 90-day penalty is rational or that it deals appropriately with the public policy interest of protecting children against future misconduct by returning respondent to a different school following her suspension. This belief is not based on the length of the penalty, but rather on its failure to adequately ensure against future similar misconduct. The record is devoid of any evidence that once respondent is placed back in an environment with adolescent students, she will not continue her improper conduct.

The penalty imposed by the Arbitrator was based in part on the arbitrator's conclusion that respondent's "remorsefulness and subsequent actions and prior record" demonstrated that respondent would not engage in this type of conduct in the future. This was an irrational conclusion. Respondent did express belated remorse for the situation she was in, but nevertheless continued to pursue a romantic relationship with her student. A pointed example is respondent's June 26, 2005 blog entry: "This is just so difficult. Because of course with in the realm of the way things are 'supposed' to be, obviously it is crazy. But life is all about things that don't happen like the norm. Many crazier things have happened and been okay"; respondent continues to write, "Damn the consequences." It could not be any clearer that whatever hesitation respondent may have had about her pursuit of her student, she determined the consequences were worth it, including shattering the sacred student-teacher relationship.

The arbitrator's reliance on respondent's "subsequent actions" is likewise irrational. An investigation of respondent's conduct was commenced on or about June 15, 2005. During the interim, respondent continued her pursuit of M.S.,[FN2] and was subsequently called in for an interview on June 30, 2005 by the Office of the Special Commissioner of Investigation. It was only after this interview that respondent claims that she sought therapy. Prior to this, while respondent had acknowledged the impropriety of her feelings, she refused to correct them or to seek therapy until responsible adults intervened. Once the investigation commenced, respondent was forced to avoid contact with M.S. It was not by her own volition. I disagree with the majority that this forced cessation of contact with the student may be considered as an act of [*9]remorse.

Nor does the lack of any physical contact between respondent and the student justify the 90 day suspension. New York State has an "explicit and compelling public policy to protect children from harmful conduct of adults" (Matter of Binghamton City School Dist. [Peacock], 33 AD3d 1074, 1076 [2006], appeal dismissed 8 NY3d 840 [2007]). This public policy overrides the absence of physical contact in this case. In Binghamton, the Third Department correctly noted, I believe, that a court's authority to overturn an arbitration award based on public policy grounds includes the state's compelling interest in protecting our children. The Second Department has likewise recognized that an arbitration award that does not sufficiently protect the children of the state can be vacated on public policy grounds (Matter of Board of Educ. of E. Hampton Union Free School Dist. v Yusko, 269 AD2d 445 [2000]). Indeed, placing emphasis on physical contact alone misses the point. Respondent's conduct was in fact harmful to her teenage student, and it is conduct that New York guards against.

To be sure, the lack of physical contact here is of no benefit to respondent inasmuch as it resulted from the child alerting adults and not from respondent's lack of effort. Indeed, the record clearly demonstrates that it was the student's maturity and resistance to respondent that prevented any carnal interaction, to the dismay of respondent. Again, some of respondent's blog entries are telling. On May 2, 2005, respondent wrote, "Today at one point he was standing behind me so close I could feel the heat from his body radiate to me. I wanted to just let myself go, lean backwards and sink into him." On May 23, 2005, respondent wrote that she just cared about being with her student and "kissing him." A few days later, respondent began thinking about "moving beyond the realm of fantasy," and her thoughts "were of a salacious nature."

These examples, combined with respondent's relentless pursuit of her pupil, undoubtedly show that given the opportunity respondent would have moved "beyond the realm of fantasy." For example, respondent expressed her frustration of unrequited love on June 11, 2005, when she declared "I ha[t]e you: For not being honest with me. For making it seem so easy to let go, when all I want to do is hold on. For playing with my heart. For being what you are. For not holding me in your arms and telling me it will all be okay. For entering my life. Yet, still I want nothing more than to be with you."

An educator must be in control of her emotions and respect the boundaries required by her privileged position. The record is replete with examples of respondent allowing her emotions and improper thoughts to get the best of her. On May 5, 2005, respondent confidently asserted that "I know I enjoy feeling strong emotions." On June 14, 2005, respondent expressed hurt and anger toward a minor avoiding her romantic advances: "I had to leave, went down to the beach to let out the racking sobs. If I can't let this go, I don't know what is going to happen to me. It hurts so much. I am so angry at him. Yet, my heart refuses to let go." Respondent's June 27, 2005 blog makes it crystal clear that she had no control of her emotions and thoughts, and the line of teacher and student was completely gone in her mind: "I cry, and cry, and cry, to what end . . . I don't know why him, I don't know how, I don't know anything anymore. I don't know what I am doing, or how I will go on. I have never faced anything this difficult in my life . . . Why did he bother to contact me if he didn't want us to talk? That's what kills me."

The arbitrator's penalty does not address the state's interest in protecting children from a person who is unable to control such "strong emotions," and what steps respondent would take [*10]during the suspension period to keep her emotions under control. It is evident that the last thing on respondent's mind was to do her job, namely to educate her student. And that is precisely what the penalty must address; it must not only punish the teacher's misconduct, but fully protect students and guarantee that all efforts have been made to keep them from such a dangerous environment. Contrary to the majority's position, it is speculative to conclude that respondent has been rehabilitated. The majority points to no evidence to buttress its position that respondent, after serving a completely arbitrary temporal penalty, is fit to teach male teenage students. As noted, respondent self-servingly claims that she sought therapy after getting caught responding to the Special Commissioner of Investigation's e-mail; yet respondent does not identify what therapy she underwent, the time period, and her progress, if any. I believe it is dangerous to the students of this state to allow teachers who have allowed themselves to be "attracted" to their students, whether "intellectually" or physically, to merely state, without more, that they are fit to teach after serving a specified suspension period.

Finally, respondent argues that Supreme Court improperly likened this case to that of City School Dist. of City of N.Y. v Hershkowitz (7 Misc 3d 1012[A], 2005 NY Slip Op 50569[U] [2005]). I disagree. While the facts in Hershkowitz are different and respondent's overt actions therein were far more egregious, I believe there is a parallel. For example, in both instances, the teachers who were entrusted to educate and protect the children in their care attempted to engage them in a sexual manner. Unlike the respondent in Hershkowitz, respondent here was careful to cloak her intentions and thoughts in a more discrete and "romantic" way. Her communications were not outright vulgar or sexually explicit in nature as they were in Hershkowitz; the communications, nevertheless, very subtly demonstrated her sexual interest in a minor entrusted to her, just as the respondent in Hershkowitz. I, however, do not believe that respondent here should be protected because of her subtlety. In both Hershkowitz and here, the evidence indicated that the teachers were insufficiently rehabilitated to be trusted with the education of their students, and the penalty imposed failed to address the state's public policy interests in protecting students.

For these reasons, I would affirm Supreme Court's order to vacate the arbitration award and remand the matter for imposition of a new penalty. Footnotes 

Footnote 1: Respondent's contention that her Xanga blog entries were not intended to communicate to internet users, including her student, is belied by respondent unwittingly conceding that on certain occasions she posted her blogs in specific response to blog entries by her student. 

Footnote 2: On June 30, 2005 respondent wrote "the connection between us is so incredible and special that we will be together in the future."