Professional Documents
Culture Documents
Respondent-Tenured Employee,
APPEARANCES:
A telephonic Pre-Hearing Conference was held on August 23, 2016, before Hearing
Officer, Gloria Johnson. During the Pre-Hearing Conference, the Respondent, was represented by
Jordan Harlow, Esquire, Glass Krackower, LLP. The Department of Education was represented by
The DOE provided for discovery and inspection of the documents that were available, per
the Respondents request, prior to, after and during the evidentiary hearings.
Evidentiary Hearings were held, before this Hearing Officer, Marc A. Winters, on February
1, 2, 14, 15, 16, & March 7, 2017, at 100 Gold Street, New York, New York. At the Evidentiary
Hearings, the Respondent was represented by Jordan Harlow, Esquire, Glass Krackower, LLP. The
Department of Education was represented by Clorisa Cook, Esquire, and Larry Mutz, Esquire, of
INTRODUCTION
The Board of Education of the City of New York, also known as the New York City
Department of Education, brings this action pursuant to Education Law 3020-a against
During the 2015-2016 school year, Respondent engaged in corporal punishment, verbal
abuse, insubordination, misconduct, neglect of duty, and conduct unbecoming to his position as
follows:
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SPECIFICATION 1:
On or about February 5, 2016, Respondent failed to submit his mid-year narratives.
SPECIFICATION 2:
By committing the act described in Specification 1, Respondent failed to comply with Principal
Monika Gargs directive that he submit his mid-year narratives by the February 5, 2016 deadline.
SPECIFICATION 3:
a) Used his cellphone to videotape and/or record Student A while Student A was crying.
b) Continued to videotape and/or record Student A as Student A walked away crying
from Respondent.
c) Failed to comfort and/or engage with Student A beyond using his cellphone to
videotape and/or record the student.
d) Engaged in the acts described in Specification 3(a) and/or Specification 3(b)
during instructional time.
SPECIFICATION 4:
SPECIFICATION 5:
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a) Put and/or pushed and/or lay his body on top of Student B, a third-grade student.
b) Used his chest and/or stomach area to make physical contact with Student Bs
body and/or back area.
c) Stated to Student B words to the effect of, This doesnt make you feel right, why are
you doing this to others?
d) Stated to Student B words to the effect of, Do you like how that feels?
e) Pushed Student B to the floor and/or downward after Respondent told Student B to sit
up.
SPECIFICATION 6:
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The undersigned was appointed Hearing Officer in this matter. The DOE and Respondent
were represented by Counsel throughout the proceedings. Both the DOE and Respondent were
afforded a full and fair opportunity to present witnesses, to conduct, to direct and to cross-examine
All witnesses were sworn. A stenographic record of each Hearing was made. This Hearing
Officer has full authority to resolve any arbitral challenges or procedural issues and to decide the
case on its merits. Both Advocates, for the DOE and the Respondent, made opening statements,
entered numerous exhibits into the record and gave oral closings. Neither party objected to the
fairness of this arbitration proceeding. Based on the record produced, this case is now properly
DOE:
The Department of Education asserts that they have proven by a preponderance of the
evidence that the Respondent has engaged in conduct that was unbecoming of his position. As a
result of not handing in narratives on time, videotaping students against DOE policy and punishing
a student by laying his body on top of her, the Respondent engaged in corporal punishment, verbal
The DOE argues that based on the Respondents conduct just cause does exists where
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RESPONDENT:
The Respondent is a tenured teacher and dedicated pedagogue who engages students in a
non-traditional way to help them understand and then reflect on the consequences of their actions.
He engages in behavior management techniques that are effective. Respondent denies all charges
against him stating that all allegations are grossly misstated and completely innocuous. Respondent
The Respondent argues that the Department of Education has failed to meet their burden
DEFINITIONS
Corporal punishment is defined as any act of physical force upon a pupil for the purpose of
punishing that pupil. Corporal punishment does not include the use of reasonable physical force
to protect another pupil or teacher or any other person from physical injury (e.g., breaking up a
to restrain or remove a pupil whose behavior is interfering with the orderly exercise and
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performance of school district functions, powers, or duties if the pupil refuses to comply with a
request to refrain from further disruptive acts, and alterative procedures and methods that do not
involve the use of physical force cannot be reasonably employed to achieve the purpose set forth
above.
Employer must have just cause for imposing such a penalty. The burden of proof falls directly on
the Employer. Education Law, Section 3020a cases are no different. The DOE bears the burden of
Preponderance of the evidence, simply put, means the evidence has to be sufficient, to
create, in this Hearing Officers mind, that the DOE has established its case.
The Respondent, in this case, has been charged with engaging in corporal punishment,
verbal abuse, insubordination, misconduct, neglect of duty, and conduct unbecoming to his
position.
two distinct areas of proof. First, whether guilt has been established. Second, has the proper penalty
This Hearing Officer first must determine if the Respondents conduct did in fact rise to
the level of behavior for which the end result would justify termination. The question becomes.
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Was the evidence presented at the Hearing, in support of the charges, sufficient to prove the
The most important evidence in a case, such as this, comes in the form of testimony from
witnesses. The source of such testimony whether it is firsthand knowledge or merely hearsay is an
important part for proving just cause. This Hearing Officer relies heavily on the firsthand
knowledge of such witnesses since the consequences to the Respondent are so great.
Specifications and the evidence supporting those charges along with the Respondents defenses of
those charges listed in the DOEs Specifications. This Hearing Officer, then, must determine
whether the DOE is accurately portraying the conduct of the Respondent for which the DOE is
Both the Counsel for the DOE and Counsel for the Respondent, respectively, argued many
First, the DOE, portrayed the Respondent as a teacher who does not want to listen to anyone
of authority and is intent on doing things his way. Here, we have a new principal coming into a
teacher run school where the Respondent, a lead teacher by example, according to the DOE, felt
that the new principal was undermining the progressiveness of the school and immediately butted
heads.
Respondent and his Attorney concerning Respondents character, reputation and teaching ability
as a beloved and well respected teacher by the community, his students, his students parents and
fellow co-workers and teachers at their school. A number of parents, students and co-workers
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testified to the above-facts.
However, to make a decision in this case it is not necessary to discuss each and every issue
argued. The above characterizations are nothing more than a distraction from the charges listed in
the specifications and whether the evidence submitted by the DOE does in fact support those
charges.
Respondent was charged with insubordination for failing to submit his mid-year narratives
and for failing to comply with the Principals directive that the mid-year narratives be submitted
Respondent was responsible for submitting seventeen (17) mid-year narratives by 5:00
P.M., Friday February 5th as directed by the Principal. That deadline, according to the Principals
Testimony from the Hearing resulted in the following facts: Out of the 17 (17) narratives
the Respondent was required to submit, seven (7) were submitted in January and fourteen (14) of
the seventeen (17) were submitted by the extended February 7th deadline. The remaining three (3)
were submitted the very next day on Monday, February 8th, all in time for submission to the parents
The testimony and evidence further revealed that the Respondent never refused to submit
his narratives. Never refused to follow any directive. There was never any intent not to comply
with the Principals directive or to intentionally disregard her directive. The Respondent did have
shared responsibilities with other co-workers that caused some delay in submitting all narratives
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on time, but again nothing proven to be an intentional or deliberate act.
The Principal further testified that other teachers also missed the deadline yet none of those
Respondent had no previous letters to file or discipline for failing to submit narratives or
follow such a directive nor were there any similarly situated incidents or issues after the issues
The general rule followed by all arbitrators when deciding an insubordination case is that
there must be a clear and unambiguous order/directive in which an employee understands the
consequences for not complying with or violating such order or directive. Here we had a directive
although somewhat clear, being extended yet lacking any warning of consequences for not
Taking into consideration the facts-above, simply missing a deadline, one time, without intent not
to comply, such conduct, an isolated occurrence that appears to be corrected, does not rise to a
level of misconduct where termination or any discipline for that matter is warranted.
record Student A while Student A was crying; Continuing to videotape and/or record Student A as
Student A walked away crying from Respondent; Failing to comfort and/or engage with Student A
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beyond using his cellphone to videotape and/or record the student; and, Engaging in the acts
As a result of the charges listed above the Respondent is further charged with in
Specification 4 as Causing Student A to cry and/or to continue to cry; Causing Student A to feel
sad and/or scared and/or upset; Causing Student A to feel humiliated and/or embarrassed and/or
uncomfortable; Acting in a manner that had or would have had the effect of unreasonably and/or
manner which reasonably caused or would have been reasonably expected to cause mental,
emotional, or physical harm to a student; and, Knowingly acting in a manner likely to be injurious
to the physical, mental, or moral welfare of a child or children less than seventeen-years.
could be the result or cause and effect should this Hearing Officer find that the DOE did prove the
The evidence provided during the Hearings through witnesses and a videotape showed that
Student A was a particularly challenging student. Student A is provided with both physical and
and is very difficult to calm down when having one of his outburst. Student A is and was very
obsessive over a female student whom he always wanted to play with at recess. When the female
student did not want to play with Student A, he would become extremely aggressive as he could
not comprehend or understand why she would not want to play with him.
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On the date in question, February 11, 2016, the Respondent found Student A, crying and
having an outburst on the steps leading from the cafeteria back to the floor where his classroom is.
Student A was extremely upset because the female student would not play with him and he did not
understand why. While trying to engage the student the Respondent thought that it would be helpful
to record his interaction with Student A so he could assess the effect of his engagement after the
immediate situation was over. The Principal upon hearing and seeing Student A crying and seeing
the Respondent videotaping the event told the Respondent to stop videotaping and she would take
care of Student A.
Based on the above-events the Respondent was charged with the conduct listed in
Specifications 3 and 4.
As to Specification 3a: using his cellphone to videotape and/or record Student A. The
evidence provided through testimony of the Respondent and corroborated by co-teacher is that
Administrators. The Principal argued that the Respondent did not have authorization to videotape
this student, by use of the consent form listed as Department Exhibit 10, which is a violation of
the Chancellors Regulations. After further review, a different consent form, as admitted as
Respondent Exhibit 9, proved that Respondent did in fact have consent form signed by Student
As parent. There were arguments made that Department Exhibit 10 was the correct consent form,
however, there was no evidence to suggest Respondent Exhibit 9 was not a valid consent form to
be used. Additionally, it must be noted that when the Principal told the Respondent to stop
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videotaping, the Respondent immediately complied. Further testimony from the Principal indicates
no further videotaping incidents occurred after that point with this Respondent.
A walked away crying from Respondent, and, Failing to comfort and/or engage with Student A
beyond using his cellphone to videotape and/or record the student. The evidence, as this Hearing
Officer watched the videotape exhibit of the incident over and over for several times, was that
while Respondent was trying to engage and comfort Student A while videotaping the engagement
at the same time, Student A kept walking and crying, why wouldnt she play with me, I want to
talk to her. There was absolutely no indication that Student A was trying to get away from the
Respondent. There was absolutely no indication that Student A was agitated or upset by the
Respondent videotaping the interaction. Student A was clearly upset over the female student not
wanting to play with him. Although the Respondent attempted to continue trying to calm Student
A and make him understand why he should not be upset, Student A continued to obsess about the
female student not wanting to play with him. Student A was completely innocuous to the fact he
As to Specification 3d: Engaging in the above acts during instructional time. Evidence
clearly shows that the whole episode occurred during the transitional time between lunch and the
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There is no evidence that Respondent caused Student A to cry and/or continue to cry as
stated in 4a. There is no evidence that Respondent caused Student A to feel sad and/or scared and/or
upset as stated in 4b. There is no evidence that Respondent caused Student A to feel humiliated
and/or embarrassed and/or uncomfortable as stated in 4c. The only evidence for 4a, 4b, and 4c,
would be from the testimony of the Principal, the Respondent and the videotaped account. Without
the testimony of Student A, who did not testify at the Hearing, all other evidence is inconclusive
As to 4d, 4e and 4f: Respondent acting in a manner that had or would have had the effect
well-being; Acting in a manner which reasonably caused or would have been reasonably expected
to cause mental, emotional, or physical harm to a student; and, Knowingly acting in a manner
likely to be injurious to the physical, mental, or moral welfare of a child or children less than
seventeen-years. Without the testimony of an expert witness, with an educational and professional
background in either psychology or psychiatry or a related field and who had fist hand knowledge
of Student As mental and emotional condition, there was no reliable testimony to suggest 4d, 4e
Although the Respondents methods, by using videotaping to assess how the effect of such
an engagement worked or not, may or may not be the correct method to use with young students
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With regards to Specifications 5 and 6:
In specification 5 Respondent is charged that he put and/or pushed and/or lay his body on
top of Student B, a third-grade student; Used his chest and/or stomach area to make physical
contact with Student Bs body and/or back area; Stated to Student B words to the effect of, This
doesnt make you feel right, why are you doing this to others; Stated to Student B words to the
effect of, Do you like how that feels; Pushed Student B to the floor and/or downward after
As a result of the charges listed above the Respondent is further charged with in
Specification 6 that he caused Student B to cry; Caused Student B and/or others students in the
class to feel sad and/or scared and/or upset; Caused Student B and/or the other students in the class
to feel humiliated and/or embarrassed and/or uncomfortable; Acted in a manner that had or would
have had the effect of unreasonably and/or substantially interfering with a students mental,
emotional, or physical well-being; Acted in a manner which reasonably caused or would have been
reasonably expected to cause mental, emotional, or physical harm to a student; Knowingly acted
in a manner likely to be injurious to the physical, mental, or moral welfare of a child or children
could be the result or cause and effect should this Hearing Officer find that the DOE did prove the
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by Respondents paraprofessional Ms. Goldberg. Those charges were based on conduct Ms.
Goldberg related as follows: On March 8, 2016, while students were getting ready to transition out
of the classroom, Student A was crawling on the floor bumping into students who were standing
and getting ready to leave. Ms. Goldberg stated that she observed the Respondent approach Student
A, push his body on top of her and state, This doesnt make you feel right, why are you doing this
to others? Ms. Goldberg explained that, when the Respondent put his body on top of Student B,
she was sitting on the floor with her legs crossed. Ms. Goldberg further stated that the Respondents
chest and stomach made direct contact with Student Bs back. After a short period of time,
according to Goldberg, Respondent told Student A to sit up and then used his hands to push her
back down onto the floor. Goldberg also stated that she did not believe that the Respondents
actions to be sexual in nature but were meant to punish Student A for her behavior.
Student B has been described by all as being extremely sensitive. Her own mother testified
that Student B is a child with big emotions who does no handle discipline well. She melts down
and acts out like the world is coming to an end. Student B receives occupational therapy because
of the way she moves. Student B has difficulty with coordination, balance and spatial awareness.
Because of the spatial awareness issue she often bumps into students or moves in odd ways.
Respondents testimony was that Student B, who had occupational therapy that day was
upset because she missed passing out cupcakes for another students birthday. Being upset, Student
B, while crawling on the floor pushed another student. Respondent went over asked Student B to
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move to the side of the classroom. Respondent then kneeled down beside her and tried to help her
understand her emotions and actions. Respondent was attempting to teach her how she could move
and interact with children appropriately. Respondent testified that when reaching around her to
show her, his arm and body may have touch her but in no way was he attempting to hurt or punish
Although Student Bs mother would not let her give a statement to the Office of Special
Investigations or permit her to testify, Student Bs mother did testify at the Hearing. Respondent
had an extensive history with Student Bs family, her siblings and mother. Student Bs mother had
only exceptionally kind words to describe the Respondent and his teaching methods used with her
daughter. Student Bs mothers testimony of what her daughter had told her about the incident was
Respondents attorney argued Ms. Goldbergs statement and testimony was biased because
Ms. Goldberg had recently been removed as a para for another child in Respondents classroom.
In that action Respondents believed Ms. Goldberg was not helping or working well with the
student.
With Ms. Goldbergs testimony as well as with the DOEs case, there were many flaws.
to this Hearing Officer that the Respondent did not create an intimidating, hostile or offensive
environment for learning. In fact, just the opposite with his loving, caring and unique ability to
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Second, many students were in class during the day of the alleged incident. None would
The DOEs entire case rests on the testimony of Ms. Goldberg who may or may not be
biased. Two student written statements that were provide to the OSI investigator even had
differences not only from each other statements but from what Goldberg had stated too.
When assessing credibility of a witness Hearing Officers normally look for the following
characteristics of their testimony. The relative strength of their recollection. Any showing of
obvious bias. And, a showing of emotional stress that would impair the witnesss ability to respond
to questions carefully and accurately. Additionally, a biased accuser is always subject to doubt.
Ms. Goldbergs testimony was not convincing. The overall quality and reasonableness of
her testimony was in doubt. Not to mention that on her written statement she asked to remain
At the Hearing it was quite obvious that Ms. Goldberg did not want to be there and was
extremely uncomfortable the entire time. Her memory was hazy to some questions, however,
perfect for others. For example, at the time in question, she testified that the student was crying
but did not remember when she actually started or if she ever stopped crying. Ms. Goldberg
remembered she was sitting at her table working on a students homework but did not remember
who was sitting with her and did not notice Student B crawling on the floor and bumping into
students. Ms. Goldbergs reasoning was she was very engaged in her work yet she noticed the
whole incident of Respondent supposedly laying on top of Student B. When pressed on cross-
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examination, Ms. Goldberg, would not confirm that she observed Respondent laying on top of
Student B in a manner that may crush her or whether he was putting significant weight on Student
B.
Interesting and yet disturbing to this Hearing Officer is that fact that Ms. Goldberg did
nothing to intervene in the situation she alleges. Ms. Goldberg never spoke to the Respondent
concerning the alleged incident nor did she ever speak to Student B concerning the alleged
incident. Ms. Goldberg testified that she did nothing to help calm Student B down or to check and
Chancellors Regulation states that Corporal punishment is defined as any act of physical
force upon a pupil for the purpose of punishing that pupil. There is absolutely no credible evidence,
direct or corroborating to suggest the Respondent was trying to punish Student B by using physical
What is believable is that some form of physical contact was made between the Respondent
and Student B. However, the evidence in not conclusive as to the extent of the physical contact
actually made. What is clear is physical force was not used nor was any contact made for the
There is no evidence that Respondent caused Student B to cry as stated in 6g. There is no
evidence that Respondent caused Student B and/or others students in the class to feel sad and/or
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scared and/or upset as stated in 6h. There is no evidence that Respondent caused Student B and/or
others students in the class to feel humiliated and/or embarrassed and/or uncomfortable as stated
in 6i.Without the testimony of Student B, and other students with firsthand knowledge, at the
Hearing, all other evidence is inconclusive to prove what has been charged in the Specifications.
As to 6j, 6k and 6l: Respondent acting in a manner that had or would have had the effect
well-being; Acting in a manner which reasonably caused or would have been reasonably expected
to cause mental, emotional, or physical harm to a student; and, Knowingly acting in a manner
likely to be injurious to the physical, mental, or moral welfare of a child or children less than
seventeen-years. Without the testimony of an expert witness, with an educational and professional
background in either psychology or psychiatry or a related field and who had first hand knowledge
of Student Bs mental and emotional condition, there was no reliable testimony to suggest 6j, 6k
The evidence in this case does not support the charges, filed by the DOE. After weighing
the evidence presented by the parties and accessing the credibility of the witnesses, including a
videotape this Hearing Officer finds the Respondent not guilty of the conduct charged in
Specifications 1, 2, 3, 4, 5 & 6.
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AWARD:
Based on the evidence presented, the weight associated and the credibility of the witnesses,
Based on the reasoning and discussion above and the entire record before me, This Hearing
Officer finds the DOE has not proven the Respondent unable to provide a valid educational
experience for the students assigned to his class. The evidence presented at the Hearings, in
support of the charges, were not sufficient to prove conduct for which the end result would justify
termination.
__________________________________
Marc A. Winters, Hearing Officer
Seven Fields, Pennsylvania
AFFIRMATION
I, Marc A. Winters, do hereby affirm, upon my oath as a Hearing Officer, that I am the
person, described herein, who executed this document which is my Opinion and Award.
_______________________________________
Marc A. Winters
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