Stories & Grievances
Neil Lovinger, Former Teacher at Booker T. Washington, Sues and Wins
Brooklyn Supreme Court Judge Yvonne Lewis says, "this court has been placed at a difficult crossroads which it is loathe to journey. Assuming that the petitioner's assertions are true, one fork would have this court reach the conclusion that the OSI investigators, in complicity with school officials (principal, vice-principal, etc.), fabricated an investigation in order to wrongfully terminate Mr. Lovinger. "
Decided on April 27, 2005
Supreme Court, Kings County
Neil Lovinger, Plaintiff,
New York City Department of Education, Defendant
Yvonne Lewis, J.
Neil Lovinger, a special education teacher from October, 1998 to June, 2001, has moved this court, pursuant to CPLR §§7803 (1), (3), and (4) for a judgment annulling or modifying the final determination of the Chancellor of the New York City Department of Education, dated August 5, 2003, which terminated his employment with said department.
Mr. Lovinger resigned from his position at MS 54, commonly known as Booker T. Washington School, in June 2001, in order to relocate to California. In November 2002, he returned to New York to care for his elderly mother. When he applied to be rehired by the Department of Education, he learned that he had been categorized as ineligible for employment on October 25, 2001 (later inexplicably changed to September 5, 2001) as a result of having been found guilty of committing corporal punishment. Mr. Lovinger thereupon submitted a request for a "C31" hearing, which was ultimately held on May 23, 2003.
Mr. Lovinger asserts that despite procedural and substantive infirmities, the absence of any substantial evidence that he inflicted any corporal punishment, the respondent nevertheless sustained the recommendation to terminate his certificate/license to teach in New York City on August 5, 2003.
More particularly, Mr. Lovinger maintains that the following deficiencies should serve as bases for setting aside or modifying the Department's final decision to bar his employment; to wit,
1. The underlying facts do not constitute the infliction of corporal punishment. In April 2001, a piece of chalk unintentionally flew out of his hand and hit a student's lip during class. Assistant principal Bertha McGee informed Mr. Lovinger that the incident had been determined to have been accidental and would not be pursued. Neither he nor the student were removed from the classroom, and the matter was never again mentioned to him;
2. Mr. Lovinger never received notice-written or oral-of an investigation, hearing, or its results in California or at his parents' home where he had resided prior to relocation;
3. Mr. Lovinger was never interviewed by the Office of Special Investigations (OSI);
4. None of the students, including the alleged victim, or the teacher's aide who was present during the incident, or Assistant principal Bertha McGee were produced at the hearing. It is to be noted that teachers at such hearings have no subpoena or compulsory process power;
5. Of twelve students in the class, only the alleged victim, another who said that he was talking to the victim, and did not see if the chalk was thrown intentionally, and a third who said that he didn't see anything were interviewed;
6. The investigative report was silent vis-a-vis the teacher's aide;
7. An investigator other than the one who actually conducted the investigation testified at the hearing; and,
8. At the hearing, Principal Lynch admitted to having given Mr. Lovinger a satisfactory rating despite the allegation of corporal punishment. It is also to be noted that a required A-420/A-421 form, "Alleged Corporal punishment and/or verbal abuse report of investigation," was never produced at the hearing or provided to Mr. Lovinger.
Mr. Lovinger maintains that the foregoing demonstrates that "the respondent acted in bad faith and was arbitrary and capricious in terminating him from his position." In addition, he asserts that even if he had been guilty of the charge, "the penalty imposed here is disproportionate and should shock the conscience of any fair minded, and dispassionate arbiter."
The respondent, New York City Board of Education (BOE) begins its response by asserting that it is incorrectly being sued as the Department of Education. It adds that "0n May 10, 2001, petitioner was sent a letter from confidential investigator Michael Kondos of OSI indicating that OSI was conducting an investigation into allegations of corporal punishment lodged against him, thereby putting him on notice. . ." The letter also advised that ". . .he, or his attorney or union representative, should contact investigator. . .Kondos on or before May 15, 2001 to schedule an interview. . . .and that if he failed to contact investigator Kondos, action would be taken without further notice." The respondent further notes that assistant principal McGhee had advised OSI investigators Small and Kondos that the student had come to her office after having been struck with a piece of chalk and had been observed to be bleeding on the inside of her mouth; that she thereupon visited the petitioner's classroom where students told her that petitioner had "thrown a piece of chalk at the student; that the petitioner had indicated that the chalk had slipped out of his hand; and, that the petitioner had declined to write a statement after speaking with his union representative."
The said investigators had also interviewed the subject student in her father's presence, at which time she had indicated that ". . .while she was talking to another student in her class, she was hit in the face with a piece of chalk, which had been thrown by the petitioner" whereupon she had immediately left the classroom. She also indicated that she had ". . .witnessed petitioner throw a piece of chalk at another student in the presence of Ms. Young, an art teacher." The student with whom she had been speaking advised the investigators that ". . .during the conversation, petitioner threw a piece of chalk at the student, striking her in the face." That same student opined that ". . .it appeared that petitioner threw the chalk 'hard' at the injured student and then shrugged like, 'no big deal' after the chalk hit the injured student
. . . .and she witnessed petitioner throw a piece of chalk at another student on another occasion, but the chalk did not hurt anyone." According to the investigators, a third student admitted that he had not actually seen the petitioner throw the chalk, but that the petitioner laughed afterwards and said ". . .that the chalk slipped out his hand." The investigators confirmed with the school nurse, Ms. Clemens, that the subject student had sustained abrasions to the inside and outside of her mouth. In addition, the art teacher aforementioned, Ms. Young, admitted that ". . .she had witnessed petitioner throw a piece of chalk, although it did not hit anyone. . . .that petitioner threw the chalk in jest, not malice." The respondent further notes that the petitioner was interviewed in the presence of his UTF representative on May 23, 2001, at which time he made the following comments, ". . .that on the day of the incident, he was walking around the classroom and joking with a student. . . .that as he walked away, he began to laugh and waive [sic] his hand. . . .that as he waived his hand, the piece of chalk slipped out of his hand and hit a student. . .that the student walked out of the classroom after the chalk hit her. . . .that he apologized to the other students after the student hit with the chalk left the classroom." Lastly, the respondent notes that on August 2, 2001, investigator Small was advised by principal Lynch that the petitioner had resigned on June 14, 2001 by way of an "irrevocable letter of resignation."
This court notes that Mr. Lovinger employed that specific designation in his handwritten letter of resignation, attached as respondent's "Exhibit 5." It is also to be noted that third party documents, aside from OSI documents, as well as petitioner's resignation letter, were removed form the record as documents not intended as file documents.
Insofar as the appeal of petitioner's ineligibility designation, the respondent observed the following salient points; to wit,
1. principal Lynch testified that contrary to petitioner's representation at the time of his hiring in September 2000, he received documentation in July 2001 that the petitioner had prior unsatisfactory service;
2. principal Lynch gave the petitioner a "marginally satisfactory rating" in June 2001 since he had not received the results of the OSI investigation; and,
3. Investigator Small testified that he had assisted investigator Kondos in the investigation/interview of the student victim, three student witnesses, the petitioner, and the school nurse. The respondent also noted that the petitioner's representative was permitted to object to the conduct of the investigation, and the fact that petitioner did not have an opportunity to cross examine any of the witnesses against him.
Furthermore, the respondent concedes that the required A-420 form, hereinabove mentioned, could not be located at the time of the hearing or presently. Lastly, the respondent asserts that the Chancellor's committee found ". . .although there were discrepancies noted, particularly regarding the date of the incident (Office of Special Investigations' corporal punishment intake form, detailing the alleged incident was dated April 26, 2001), the basic facts of the incident were not in dispute. . . .petitioner's actions resulted in an injury to a student, and his claim that a piece of chalk he was holding accidentally flew out of his hand and struck a student in the mouth was not credible. . . .petitioner knew that he was the subject of an investigation of an allegation of corporal punishment."
The committee also acknowledged that the conduct of the investigation were beyond the purview of the C-31 review, but felt that it was free to assume that the recommendation was ". . .based on the findings of an investigation that was fairly conducted according to established procedures and guidelines." Accordingly, the chancellor's designee ". . .sustained the recommendation to terminate petitioner's license(s) or certificate(s) to teach. . . as a consequence of petitioner having engaged in conduct unbecoming of his position and committing an act of corporal punishment." The respondent points out that the dictates of due process have been met herein inasmuch as ". . .the cancellation of a teaching certificate license can be effected only after a formal hearing which must: (1) provide the teacher with the specific charges dealing with the conduct which will be subject to review; (2) a reasonable period of time to prepare a defense to the charges; (3) allow the teacher the right to counsel; (4) allow the teacher to present witnesses; and, (5) allow the teacher to cross-examine witnesses (citing Lowenstein v. Bd. of Educ., 9 Ed. Dept. Rep. 207, 209; and, Climent v. Bd. of Educ. of Comm. Sch. Dist. No.22, et. al., 732 NYS2d 892, 288 AD2d 312)."
In addition, the respondent notes that hearsay evidence is admissible at administrative hearings or reviews (citing, Gray v. Adduci, 73 NY2d 741; Bullock v. NY Dept. of Social Services, 248 AD2d 380 (2d Dept., 1998); Curto v. Cosgrove, 256 AD2d 497 (2d Dept., 1998); Lumsden v. Commissioner, 134 AD2d 595 (2d Dept, 1987; Matter of Bullock v. State of NY Dept. of Social Services, 248 AD2d 380; and, Matter of Nieto v. DeBuono, 231 AD2d 573). Equally important, the respondent notes that the Court of Appeals has established that ". . .since the hearing procedure is advisory rather than determinative. . .it suffices if the chancellor's decision is not arbitrary and capricious" (citing, Kaufman v. Anker, 42 AD2d 835, 397 NYS2d 376; Bigler v. Cornell Univ., 266 AD2d 92, 698 NYS2d 472 (1st Dept.); Climent v. Bd. of Educ. of Comm. Sch. Dist. #
22, et. al., supra , 732 NYS2d 892. See also, Von Gizycki v. Levy, 731 NYS2d 174, 3 AD3d 572; and Swanson v. Bd. of Educ., 759 NYS2d 371, 305 AD2d 610). Accordingly, the respondent summarizes that on the basis of the foregoing, the petition fails to state a cause of action; its actions were legal, proper, reasonable, in conformity with the constitution and all applicable laws and regulations, and therefore not arbitrary and capricious; the C-31 review likewise conformed to the just mentioned standards and hence afforded the petitioner his due process; and, finally, the chancellor's decision was lawful, reasonable, and a proper exercise of discretion.
In his reply to the foregoing, Mr. Lovinger argues that the respondent has submitted no verifiable proof of any attempt to have notified him that he was on the ineligible list prior to his return to New York. In addition, he submits that his understanding that nothing more would come of the incident on the day of its occurrence is underscored by the fact that he was permitted to continue teaching his classes until the end of the school year ". . . instead of being removed from teaching class pending the outcome of the investigation and placed on administrative duty as is required when allegations of corporal punishment are made." Furthermore, Mr. Lovinger points to the contradictory assertion by the respondent that he failed to respond to its "notice letter" of May 10, 2001 yet is alleged to have inexplicably appeared with a UFT representative at OSI on May 23, 2001. Mr. Lovinger also notes that the just mentioned letter was addressed to his work place not his home.
A fortiori, Mr. Lovinger avers that
1. he never appeared at the OSI office because he never received notification to do so;
2. he was never interviewed by any investigator from OSI;
3. he never met investigator Smalls until the C-31 hearing; and,
4. he never went to the OSI office with a UFT representative, particularly George Caufield, whom he has never met. Mr. Lovinger's attorney also submitted an affirmation indicating that UFT representative Caufield informed him ". . .that he has absolutely no recollection of ever going to OSI on behalf of the petitioner." In addition, he learned from Mr. Caufield that a teacher and his representative appear at OSI pursuant to a notice of investigation; that on arrival at OSI, both teacher and representative are clocked in via a sign-in sheet; that a teacher's statement is reduced to writing and signed by the teacher; and, that following the interview, the teacher is given a time stamped form to present to the school, none of which items have been documented by the respondent.
In essence, Mr. Lovinger's argument is that a series of nonfeasances occurred herein; to wit, the failure to have afforded him an opportunity to confront the charges against him in the investigatory phase, the omission in not reducing any of the witnesses' statements to writing, the non-production of the teacher's aide and children eyewitnesses at the hearing, and the absence of any documentary proof on the respondents's part, which constituted egregious violations of his due process rights and resulted in placing him in the disadvantageous and prejudicial position of trying to disprove the negative imprimatur of ineligibility at the C-31 hearing.
CPLR §3011 define pleadings as complaints (including, interpleaders and third party complaints), answers (with or without counterclaims) and replies, and specifically provides that "there shall be no other pleadings unless the court otherwise provides." CPLR §2214, in turn, refers to motion papers as motions, answering affidavits, and replies. Accordingly, the petitioner's further submission of a sur-reply, with accompanying memorandum of law in support thereof, was not considered by this court.
Nevertheless, in light of the inimical positions advanced by the parties, this court has been placed at a difficult crossroads which it is loathe to journey. Assuming that the petitioner's assertions are true, one fork would have this court reach the conclusion that the OSI investigators, in complicity with school officials (principal, vice-principal, etc.), fabricated an investigation in order to wrongfully terminate Mr. Lovinger. The other path would lead this court to find that Mr. Lovinger has wilfully lied to it and that his attorney has suborned that perjury.
On the basis of the case law cited by the respondent, this court agrees that the level of review herein required is the arbitrary and capricious standard. provided by CPLR §7803 (3), and that hearsay testimony was permissible. This court also notes, as previously observed in the Matter of Consolidated Bus Transit, Inc. v. LOCAL 854, International Brotherhood of Teamsters, AFL-CIO, NYLJ 6/17/04; p. 18; col 3; 2004 WL 1794815; 2004 NY Slip Op. 50861(U), that "a court may remit an administrative determination to a board for further proceeding, including reconsideration." (See Matter of 50 Plaza Co. v. New York City Conciliation & Appeals Board, 104 AD2d 886).
However, "it is well settled that the Court's power to review an administrative action is limited to whether the determination was warranted in the record, has a reasonable basis in law and is neither arbitrary nor capricious." (See Matter of Pell v. Board of Education, 34 NY2d 222, 356 NYS2d 833; Matter of Colton v. Berman, 21 NY2d 322, 287 NYS2d 647). In other words, for this court to decide that the Chancellor's decision to terminate Mr. Lovinger is arbitrary and capricious, it has to find that the Chancellor's decision was without reason, unsupported by substantial evidence, or erroneous as a matter of law.
Here, the respondent has tendered several reasons that on the surface appear to be justifiable bases for the petitioner's termination. The wrinkle-as raised by the petitioner's protestations-is that the foundation on which the Chancellor has sought to pillar those reasons (i.e., his decision) is so unsettling that, if true, cannot be permitted to stand on due process and/or public policy grounds. In other words, this court would be constrained to find as unacceptably violative of due process and common-sense fair play the result herein had if indeed it was arrived at solely by virtue of
1. the hearsay statements of impressionable children which were not recorded, videotaped, contemporaneously reduced to writing, and/or subject to cross-examination. (In this regard, the court is also mindful that no clarification was contained in the papers submitted by either side to elucidate what "special education" signified in the context of these particular children, taking into consideration whether they were questioned individually or collectively, by leading or open ended questions, etc.);
2. the uncharged, undocumented prior instances of similar violent conduct attributed to the petitioner which were herethereto ignored by school officials but allowed as hearsay evidence without benefit of cross examination;
3. the absence of documentation that is mandated by the investigatory protocols established by the Department of Education (eg., notice letter, incident forms, etc.) with no adequate explanation and/or the imposition of at least some sort of adverse inference in favor of the petitioner; and,
4. the imputation of a statement to the accused petitioner in the presence of a UFT representative who both disavow the occurrence and were unknown to each other. Certainly, the just mentioned factors raise grave concerns of due process violations that cannot be disregarded without further clarification. For this reason, this court finds that the matter must be reconsidered by the Chancellor after remission to the Department of Education for a reconstituted hearing that is consonant with the due process considerations afore highlighted. Any review as to the adequacy of the remedy imposed is contingent on the outcome of a valid hearing, and must therefore be held in abeyance.
This constitutes the decision and order of this Court.