Opinion
Index No. 103563/12
04-02-2013
MICKELSON ST. CYR, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
, Justice
Petitioner in this Article 78 _____ challenges the decision of respondent Department of Education ("DOE") to permanently revoke his school bus driving certificate. He seeks to be removed from the list of ineligible drivers kept by the DOE. Respondent moves to dismiss the petition.
BACKGROUND
The petition alleges that petitioner Mickelson St. Cyr began working as a school bus driver in 1995. Beginning in 2006 he worked for Brothers Transportation, a private bus company that contracts with the DOE. In the 2011-12 school year, St. Cyr was assigned a bus route in Queens which included driving special needs children.
On December 19, 2011, St. Cyr was driving his bus to JHS 190 when one of his passengers, a ten year old girl referred to as "Student A" in the petition to protect her privacy, began to act out. According to the petition, a school matron on the bus, Marthe Joseph, attempted without success to get Student A to behave properly. The petition alleges that despite Ms.' Joseph's efforts Student A "continued to act in an aggressive and physical manner" with the other students.
The petition alleges that at one point St. Cyr stopped the bus and directed Student A to move her seat and put on her seat belt. Student A refused. St. Cyr states that he never touched Student A.
Student A allegedly called her mother from the bus, and told her that St. Cyr had grabbed her arm and left a bruise. Student A's mother reported this incident to DOE.
Soon thereafter, St. Cyr was suspended from his job on the strength of Student A's mother's complaint. DOE's Office of Pupil Transportation ("OPT") conducted an investigation. After speaking to petitioner, Student A, Student A's mother, Ms. Joseph, and several students, OPT determined that St. Cyr had grabbed Student A by the arm and forcibly dragged her to the front of the bus.
On January 12, 2012, DOE informed petitioner that it had revoked his certification to drive a school bus.
Petitioner appealed this decision. A Disciplinary Appeal Conference was held on March 14, 2012 pursuant to Chancellor's Regulation C-100. Petitioner was represented at this hearing by counsel. Two witnesses testified: petitioner and the OPT investigator who investigated the incident. OPT also introduced other witness statements and photographs of Student A's arm. Petitioner did not call any witnesses beside himself or submit any documents into evidence.
In a written Conference Report, the hearing officer who presided at the Conference sustained the revocation of petitioner's certification. Petitioner was placed on an "Ineligible List," which prevents him from becoming a bus driver for DOE in the future. The petition states that Brothers Transportation terminated his employment.
DISCUSSION
The petition asserts that the Hearing Officers' decision was not supported by substantial evidence. However, the First Department has held that the substantial evidence standard is not applicable to decisions made after Disciplinary Appeal Conferences held pursuant to Chancellor's Regulation C-100. (Matter of Duncan v Klein, 38 AD3d 380.) Instead, such decisions are reviewed under the arbitrary and capricious standard of review. (Id.) Under that standard, a Court's inquiry is limited to whether the agency acted rationally. (E.g. Matter of Pell v Board of Education of the Union Free School District I, 34 NY2d 222.) A court may not substitute it's judgment for that of the agency, and the- fact that other reasonable minds might have reached a different conclusion is not sufficient to override an agency decision. (See Ignizio v City of New York, 85 AD3d 1171.)
The DOE's determination is rational and must be upheld. The record before the hearing officer was sufficient to sustain his finding. The hearing officer was entitled to weigh the probative value of the evidence and the court may not second guess that evaluation unless it is irrational. (See A. Uliano & Son, Ltd. v New York State Dep't of Labor, 97 AD3d 664.) Petitioner complains that Ms. Joseph was not called as a witness, and he offers her affidavit with the instant petition to support his version of events. However, petitioner could have called Ms. Joseph as a witness. While petitioner complains that he was not afforded due process he does not state how the hearing he was afforded fell short of what he was due. He was given notice of the charges, an opportunity to be heard, and an opportunity to provide evidence.
Nor does petitioner's termination from employment shock the court's conscience. (See Webster Parking LLC v City of New York, __ Misc3d __, 2008 NY Misc Lexis 1229.) Once the hearing officer found that petitioner had grabbed Student A's arm with sufficient force to cause visible bruising, it was reasonable to terminate petitioner. Petitioner points to an otherwise unblemished record as a bus driver. Respondent offers nothing to the contrary. However, it is not irrational to terminate an employee charged with the welfare of children upon a finding that the employee caused a child within his care physical harm.
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted, the petition is denied, and this proceeding is dismissed. This constitutes the decision and judgment of the court.
________________________
A.J.S.C.