FILED: NEW YORK COUNTY CLERK 04/17/2014 INDEX NO /2014 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/17/2014

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1 FILED: NEW YORK COUNTY CLERK 04/17/2014 INDEX NO /2014 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAVID PECORARO, -against- Petitioner, THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, RESPONSE AFFIRMATION IN FURTHER SUPPORT OF PETITIONER S VERIFIED PETITION AND IN OPPOSITION TO RESPONDENTS CROSS-MOTION TO DISMISS Index No /14 To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511 BRYAN D. GLASS, an attorney admitted to practice in this State, affirms under penalty of perjury and pursuant to CPLR Rule 2106 as follows: 1. I am a partner in the law firm of Glass Krakower LLP, attorney for Petitioner David Pecoraro in the above-captioned CPLR Article 75 proceeding. As such, I am familiar with the facts and circumstances in this matter. 2. This response affirmation to Respondents cross-motion to dismiss is in further support of Petitioner David Pecoraro s Article 75 special proceeding commenced to vacate the penalty of termination of his tenured employment as a teacher with Respondent NEW YORK CITY DEPARTMENT OF EDUCATION (hereinafter NYCDOE ) as shocking to the conscience. As set forth in the Verified Petition, Mr. Pecoraro s employment as a tenured teacher was cruelly, unjustly and summarily terminated following a decision by Hearing Officer Randi Lowitt, dated January 9, 2014, in a compulsory arbitration proceeding pursuant to Section 3020-a of the New York State Education Law, as modified by the UFT-DOE Collective Bargaining Agreement (CBA). 1

2 3. At the outset, Respondent NYCDOE s procedural cross-motion to dismiss pursuant to CPLR Section 3211(a)(7) should be summarily denied. Clearly, a cause of action is stated in the instant Verified Petition based on a shocking to the conscience or disproportionate penalty theory; consequently, Respondents should not be allowed to exploit a procedural mechanism pursuant to CPLR Rule 3211(a)(7), which clearly is not applicable to the instant proceeding, and is being made to obtain an additional reply which would not be otherwise available if Respondents had properly submitted a Verified Answer to the Petition. 4. Respondents procedural cross-motion to dismiss should also be summarily denied because justices of this Court have long recognized that they have jurisdiction to vacate a compulsory arbitration award via an Article 75 proceeding if the Section 3020-a arbitration award is shocking to the conscience and disproportionate to the charged conduct. These reversals have become increasingly frequent in this Court and the appellate courts. See, e.g., Brito v. Walcott, 2014 N.Y. Slip Op (1 st Dep t March 20, 2014) (finding termination unwarranted based on one-time incident, similar to this case involving classroom video and publicity); see also Riley v. NYCDOE, Index No /10 (September 13, 2010) (reversing termination decision of 3020-a hearing officer as disproportionate given nature of conduct at issue and length of service of teacher), aff d, 2011 NY Slip Op (1 st Dep t May 3, 2011); Principe v. NYCDOE, Index No /09 (April 28, 2010) (reversing termination decision as shocking and disproportionate), aff d, 94 A.D.3d 431 (2012); Gabriel v. NYCDOE, Index No /08 (September 10, 2009) (same); Solis v. NYCDOE, 30 A.D.3d 532 (2d Dep t 2006); Weinstein v. NYCDOE, 19 A.D.3d 165 (1 st Dep t 2005), leave to appeal denied, 6 2

3 N.Y.3d 706 (2006); Diefenthaler v. Klein, 27 A.D.3d 347 (1 st Dep t 2006); Harris v. NYCDOE, Index No /09 (Sup. Ct. N.Y. Co. October 13, 2009); Garcia v. NYCDOE, Index No /10 (Sup. Ct. N.Y. Co. 2011); Moreno-Lieberman v. NYCDOE, Index No /11 (Sup. Ct. N.Y. Co. 2012). 5. Though a court must examine whether there is any rational basis for the findings of fact supporting the Hearing Officer s decision, Carroll v. Pirkle, 296 A.D.2d 755, 756 (3d Dep t 2002), this standard does allow some discretion, as evidenced by the above-referenced cases, for the court in making this determination, and does not prohibit the Court from determining if the penalty befits the factual findings. 6. As set forth in greater detail in the Verified Petition, the decision and penalty of termination is particularly harsh, irrational, and shocking to the conscience in this case given, inter alia, Petitioner s long period of over 30 Satisfactory year of service with the DOE with no prior incidents of this type, his numerous accolades for contributions to the school and community, the questionable nature of the alleged misconduct in the context of trying to control an habitually and acknowledged unruly and misbehaving student, Petitioner s lack of prior disciplinary history with the NYCDOE, and the improper credibility determinations of the Hearing Officer. 7. Respondents argue that the video evidence supports their contention that Petitioner intimidated and taunted student M.R. This could not be farther from the truth. Though it is possible to discern the Petitioner and M.R. in the grainy, obstructed, and incomplete footage of the video (as noted by the New York Post), it is impossible to discern what exactly each is doing. As such, the court should rely only on the audio of the 3

4 footage, which is consistent with Petitioner s version of the events that took place on February 7, See, generally, Verified Petition and Exhibit A of the Verified Petition. 8. Respondents also incorrectly argue that whatever happened in the hallway during the incident is irrelevant. Due to the poor video footage on which the Hearing Officer relied, there were doubts as to what transpired in and around the classroom on February 7, The hallway surveillance tape, which the DOE conveniently did not preserve, would have shown that Petitioner s principal, along with two members of the network staff, idly stood outside of Petitioner s classroom during the incident, rather than intervening, which was entirely unknown to Petitioner at the time of the incident. This is relevant, and was improperly brushed aside by the Hearing Officer, for several reasons. First, evidence that Petitioner s principal watched and did not intervene during the incident supports Petitioner s contention that no misconduct took place. Had any misconduct taken place in view of the principal, one would reasonably expect that the principal would have intervened. Second, the student s conduct certainly was emboldened to some degree by his knowledge that the principal and others were standing outside of his classroom, observing the situation yet providing no support. The Hearing Officer improperly did not weigh this in her assessment of why the student acted as he did. Finally, if indeed Petitioner s principal idly sat and watched this incident play out, he would be as culpable as the Petitioner. The Hearing Officer also ignored the likelihood that the misbehaving student was playing to the camera. Again, because this footage was lost, the Hearing Officer did not weigh any of these factors in her decision. Rather than address this deficiency, the Hearing Officer improperly dismissed them as red herrings. See Exh. A of the Verified Petition, at 26. 4

5 9. The Hearing Officer clearly construes the purpose of Section 3020-a disciplinary proceedings as punitive. As indicated in the Verified Petition, and not disputed by Respondents, the Hearing Officer did not consider a lesser penalty than termination, nor did she consider remediation, or the fact that Petitioner himself took steps on his own initiative to seek remediation by going to a psychiatrist on his own for 5 months. See Verified Petition at 18. As argued in the Verified Petition, it was improper for the Hearing Officer to do this. Id. The primary purpose of a Section 3020-a disciplinary proceeding is not punitive, but rather, to determine a teacher's fitness to teach and to carry on professional responsibilities. See Appeal of the Bd. of Ed. of the Goshen CSD, 30 Ed Dept Rep 181, 187; see also Matter of Bott v. Bd. of Ed., 41 NY2d 265 (1977). Thus, Hearing Officer Lowitt should not have been concerned with the appropriate punitive penalty, but rather with whether the penalty would lead to remediation and change in the Petitioner. The point of a penalty other than termination is to allow a teacher the opportunity to change and remediate his behavior, as set forth in the Education Law Section 3020-a(4)(a) statute itself, which discusses a range of penalties other than termination. Yet, Hearing Officer Lowitt did not address why any other penalty other than termination, including remediation, would be insufficient in her discussion. Given the Petitioner s extensive length of Satisfactory service with the DOE, it is shocking that no attention was given to this discussion. 10. Additionally, Respondents are incorrect in their assertion that Petitioner was on notice about his behavior prior to February 7, Respondents point to two documents a disciplinary letter to file and an informal observation report as evidence that Petitioner was warned to improve his behavior. In reality, these documents contain 5

6 nothing more than general recommendations, and certainly no specifically tailored recommendations, to Petitioner regarding his conduct towards M.R. a 20 year old sophomore student. Further, DOE Hearing Exhibit #17, attached to Respondents Response Papers as Exhibit 4, reflects the lack of support given to Petitioner by his administration. If Petitioner s administrators were truly concerned about Petitioner improving his relationships with his students, they would have done more than provide him with the general recommendations contained in this document. Regardless, Hearing Officer Lowitt did not even consider whether these sparse recommendations qualified as adequate notice or support. Had she considered these, she would have properly concluded that Petitioner never had an opportunity to remediate. 11. The Hearing Officer also inappropriately weighed Petitioner s lack of remorse in her decision. This double penalty against Petitioner for not expressing remorse was rejected by the Appellate Division, First Department, in Riley, supra. and Rubino v. NYCDOE, 2012 NY Slip Op (Sup Ct. N.Y. Co. 2012), and the Hearing Officer should have limited her assessment of penalty to be proportionate with the actual alleged misconduct at issue in this case, which was minimal at best. 12. Under the circumstances of this case, it would be a travesty of justice, and certainly shocking to any sense of fairness, to let the Hearing Officer s decision stand, summarily end Mr. Pecoraro s longstanding unblemished tenured teaching career of over 30 years, and deprive him of the ability to practice his livelihood and means of support, over one discrete incident of misconduct involving a troubled and clearly disruptive student. It was undisputed that M.R. was a disruptive student with a history of 6

7 misbehavior, that there were serious deficiencies in the investigation of the incident, and that the Hearing Officer did not consider a lesser penalty than termination. 13. In sum, the decision to terminate Petitioner s employment was arbitrary and capricious, excessive, and shocking to the conscience and disproportionate, and should be vacated and remanded, in accordance with prior decisions of this Court reviewing NYCDOE teacher 3020-a hearing officer decisions which have been found to be shocking to the conscience. See, e.g., Principe, supra; Riley, supra; Gabriel, supra; Moreno-Lieberman, supra; Solis, supra (reducing penalty from termination to six months in light of otherwise unblemished 12-years as a teacher, as shocking to one s sense of fairness) (citing additional cases); Weinstein, supra; Diefenthaler, supra; Harris, supra (reducing one month penalty for single corporal punishment to two weeks); see also Feldman v. NYCDOE, 111 A.D.3d 545 (Nov. 21, 2013) (finding $1500 to be appropriate penalty for tenured teacher who made statements such as hey baby and how you doing baby to underage female student); Rubino, supra (vacating termination decision of Hearing Officer Lowitt as shocking to the conscience and too harsh a penalty). WHEREFORE, it is respectfully requested that this Court vacate the Section 3020-a decision of the Hearing Officer and annul any action taken in reliance thereon, and remand for no penalty or a lesser penalty and/or remediation, and grant such other and further relief as this Court may deem just and proper. Dated: New York, New York April 17, 2014 Respectfully submitted, GLASS KRAKOWER LLP Attorneys for Petitioner David Pecoraro 100 Church Street, 8 th Floor New York, NY

8 (212) By: /s/ BRYAN D. GLASS, ESQ. 8