In the Matter of Ericka Bolt, Respondent,v.New York City Department of Education, Appellant.

Brief

N.Y.January 3, 2018

To be Argued by: RICHARD J. WASHINGTON llupreim atnurt nf U,e ~late nf New f nrk Appellate 1Diuisinu -1J1irst 1Departmeut ~------~+~-------~ In the Matter of the Application of ERICKA BOLT, Petitioner-Respondent, For a Judgment and Order Pursuant to Article 75 of the Civil Practice Law and Rules, - against - THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Appellant. BRIEF FOR PETITIONER-RESPONDENT LAW OFFICES OF RICHARD J. WASHINGTON, P.C. Attorneys for Petitioner-Respondent 100 Church Street, 8th Floor New York, New York 10007 (646) 512-5886 richard@washington-at-law.com New York County Clerk's Index No.: 653285/2014 APPELLATE INNOVATIONS (91 4) 948-2240 (i Printed on Recycled Paper 10203 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........ .. ......... .. .. ...... ...... ... ...... ................................. ...... iii PRELIMINARY STATEMENT ............ ..................... ............... ... .. ........................ .. 1 QUESTIONS PRESENTED ............................................................................ ... ...... . 3 STATEMENT OF THE CASE .............. ..... .. ............................... .... .. .. ....... ... ....... .... .4 A. Background ........ ...... ........... ....... ...... ... ..... .... ......... ........ ......... ... ..... ............. 4 B. The 3020-a Hearing ....... ... .... .... ............ .... .............. ...... .................. ............ 7 1. The Department of Education's Case ....................................... ............... 7 2. Petitioner Ericka Bolt's Case ........... ... ......... ... ........ .................... ........... 11 C. The Opinion and Award ..... ..... .... ... ..................... ...... ............................... 13 D. The Petitioner-Respondent's Article 75 Proceeding in Supreme Court .. 14 ARGUMENT: POINT I: THE SUPREME COURT VACATUR WAS PROPER BECAUSE THE ARBITRATOR'S AWARD WAS WHOLLY IRRATIONAL WHEN ANALYZED IN ITS TOTALITY ................. .... 17 A. The Supreme Court Judgment was Proper in that it Found the Opinion Irrational, and was not an Assessment of Witnesses Credibility ......... .. .. 18 B. The Va~atur Recognized that the Opinion and Award Neglected to Analyze the Testimony from Ms. Bolt's Student Witnesses ...... ...... ... 22 C. The Supreme Court Submissions Raised the Issue of Prejudice and the Record Reveals the Manner in which Ms. Bolt was Prejudiced ........ 25 1. The Issue of Prejudice was not Waived .. ...... .. ....................... .. ..... ...... ... 25 1 2. The Evidence Before the Supreme Court Demonstrated Prejudice ...... 26 POINT II: TERMINATING A TEN-YEAR EMPLOYEE WITH AN UNBLEMISHED HISTORY IS SHOCKING TO THE CONSCIENCE ......................................................................................... 29 CONCLUSION ........................................................................................................ 33 11 TABLE OF AUTHORITIES Page Cases: Altsheler v. Bd. o(Educ .. 62 N.Y.2d 656, 657 (1984) ......................................................................... 28, 29 Batyreva v. NY.C. Dept. o{Educ. 95 A.D.3d 792 (1st Dept. 2012) ........................................................................ 23 Carangelo v. Ambach. 130 A.D.2d 898 (3rd Dept. 1987) ............................................................... 28, 29 City School Dist. o(City o{Ne;w York vHershkowitz, 7 Misc 3d 1012(A) (Sup. Ct. 2005) .................................................................. 19 Cocozza v. Ward. 162 A.D.2d 202 (1st Dept. 1990) ...................................................................... 26 Cortlandt Nursing Home v. Axelrod, 66 NY2d 169 ..................................................................................................... 27 Deutsch v. New York City Dep't o{Educ., 41 Misc. 3d 1228(A)(Sup. Ct. 2013) ........................ ............. .... ..... ..... .... ......... 31 Diefenthaler v. Klein, 27 A.D.3d 347 (1st Dept. 2006) ............ ....................... ................. ..... ............... 31 Hackett v. Milbank, Tweed. Hadley and McCloy, 86 N.Y.2d 146 (1995) ....................................................................................... 21 Lackow v. Dep't o(Educ. o{Citv o{New York, 51 A.D.3d 563 (1st Dept. 2008) .................................................................. 18, 26 Matter of Asch v. N. Y. C. Bd./Dept. of Educ., 2013 NY Slip Op 1360, if 4, 104 A.D.3d 415, 960 N.Y.S.2d 106 (1st Dept. 2013) ................................................................... 28 w Matter of Chaplin v. N . Y. C. Dept. of Educ. , 48 A.D.3d 226 (1st Dept. 2008) ........................................................................ 30 Matter of Cherry v. Horn. 66 A.D.3d 556 (1st Dept. 2009) ..... ... ... ... ... .... ...... ................ ..... ........................ 26 Matter of Polayes v. City of NY., 118 A.D.3d 425 (1st Dept. 2014.) .................. ... .... ................ ... .......... .. ............. 19 Matter of Town of Callicoon (Civil Serv. Employees Ass'n, Inc., Town of Callicoon Unit) , 70 N.Y.2d 907 (1987) ....................................................................................... 19 Mauro v. Walcott. 115 A.D.3d 547 (1st Dept. 2014) ...................................................................... 31 .Montanez v. Dept. o[Educ, of City o[New York, 110 A.D.3d 487 (1st Dept. 2013) ................................................................ 28, 29 Moran v. New York Citv Transit Auth .. 45 A.D.3d 484 (1st Dept. 2007) ...................... .................................................. 19 Motor Vehicle Mfrs. Ass 'n v. State, 75 N.Y.2d 175 (1990) ....................................................................................... 18 Pat's Carpet Outlet v. State Exec. Dep 't, Div. of Human Rights, 244 A.D.2d 338 ........ .... .. ......................... ............................................... .. ......... 27 Pell v. Bd. o(Educ., 34 N.Y.2d 222 (1974) ............. ... ...................... ...... ............. .... .... ... ... ......... ... .. .. 29 People ex rel. Packwood v. Rilev, 232 N.Y. 283, 133 N.E. 891 (1922) ... ....... .. .... ....... .. ....... .................................. 22 Principe v New York City Dept. of Educ., 94 AD3d 431(1st Dept 2012) affd, 20 NY3d 963 (2012) ......... .. ........ 21, 23, 31 Saunders v. Rockland Bd. o(Co-op. Educ. Servs., 62 A.D.3d 1012 (2nd Dept. 2009) .............. .. ...... ... ........... ................... .. ..... ... .. . 18 IV Spear, Leeds & Kellogg v Bullseye Sec .. Inc .. 291AD2d255 (1st Dept. 2002) .................................................................. 19, 21 Tasch v. Board. of Education, 3 A.D.3d 502 (2nd Dept. 2004) ......................................................................... 20 Weinstein v. Dep't o[Educ. of City o[New York, 19 A.D.3d 165 (1st Dept. 2005) ......... ....................................................... ........ 31 Rules, Laws and Statutes: CPLR 751 l(b) .......................................................................................................... 18 CPLR article 75 .................................................................................................. 18, 21 CPLR article 78 ............................................................ ................................... ... 18, 21 New York Education Law § 3 020-a ................................................................ 1, 7, 18 v PRELIMINARY STATEMENT This is an appeal from a Judgment in Supreme Court, New York County (Joan M. Kenney, J.), dated April 27, 2015, which granted Petitioner Ericka Bolt's petition to vacate an arbitration award finding Ms. Bolt guilty of instructing her students to change their answers on the 2010-2011 statewide English Language Arts ("ELA") examination and terminating Ms. Bolt. The Supreme Court found the Arbitrator's Opinion and Award was irrational, inconsistent, and prejudicial. In addition, the Supreme Court found that the penalty imposed in the Opinion and Award was "shocking to the court's sense of fairness" given the lack of evidence (R.16). The Supreme Court Judgment restored Ms. Bolt's employment status and denied Respondent's cross motion to dismiss the petition. Petitioner-Respondent Ericka Bolt is a former tenured teacher who was employed by the New York City Department of Education (hereinafter "DOE") for approximately eleven ( 11) years. During her tenure with the DOE, Ms. Bolt taught fifth grade at P.S. 199 in Bronx County. Pursuant to New York Education Law § 3020-a, Ms. Bolt was served with charges and accused of improperly assisting several students during the administration of the statewide Math and ELA during the 2010-2011 school year. The initial allegations against Ms. Bolt were based upon an anonymous report more than one year after the exams had taken place. The allegations were first presented to the Special Commissioner of Investigation, who declined to investigate the matter. Shortly thereafter, Danielle Lerro and Samantha Cato made a similar complaint regarding Ms. Bolt to Ms. Patricia Bentley, the principal at Intermediate School 303 ("I.S.303"). Ms. Bentley investigated the allegation but determined there was not sufficient evidence to pursue the matter further. The matter was then referred to the DOE Office of Special Investigations ("OSI"), and after an investigation that spanned thirteen months, the DOE investigator concluded that Ms. Bolt assisted her students on the 2010-2011 math and ELA exams. The charges against Ms. Bolt mirrored the OSI conclusions, and a 3020-a hearing was held. At the conclusion of the 3020-a hearing, which occurred more than three years later after the exams in question took place, the Arbitrator dismissed one of the charges, sustained the remaining two charges, and terminated Ms. Bolt. The decision was based, at least in part, upon the testimony of two students that were not present in Ms. Bolt's classroom during the exams. The students that testified on behalf of the City were friends that attended I.S. 303. Ms. Bolt, on the other hand, produced three former students from different schools, wlio all testified the testing procedures were proper. Although the decision recounted the testimony of Ms. Bolt's witnesses, the evidence that those witnesses provided was not discussed in the decision. 2 Prior to the Arbitrator's decision, Ms. Bolt was an active member of the United Federation of Teachers, and she had an excellent service record with no prior discipline. Ms. Bolt challenged the irrational Opinion and Award, as well as the shockingly disproportionate penalty, in the underlying Article 75 petition. The City filed a cross motion to dismiss. The Supreme Court granted the petition and denied the cross motion. In short, the Supreme Court's finding was not the result of an impermissible credibility determination, but instead was the result of viewing the evidence in its totality and determining that there was no rational basis for the finding. The Judgment should be affirmed. QUESTIONS PRESENTED 1. Whether the Supreme Court properly vacated an inconsistent, irrational, and prejudicial Opinion and Award that was not based on sufficient evidence? 2. Whether the Supreme Court was correct when it determined that the penalty of termination was shocking to the conscience, given the lack of consistent and reliable testimony against Ms. Bolt, as well as her unblemished employment history and eleven-year tenure with the New York City Department of Education? 3 STATEMENT OF THE CASE A. Background In 2003, the DOE hired Ms. Bolt as a Second Grade Teacher at The Shakespeare School (P.S. 199) in the Bronx. Over the next eleven (11) years, Ms. Bolt held several positions within the Shakespeare School, including Math Specialist, Data Specialist, Fifth Grade Teacher, Afterschool Teacher and Pre- Kindergarten Teacher. Ms. Bolt also earned two Masters Degrees while working as a full-time teacher. Ms. Bolt was tenured in 2006. The DOE alleges, on or about June 15, 2012, the Special Commissioner of Investigation (hereinafter "SCl")1 received an anonymous report stating that teachers at LS. 303 believed that teachers at P.S. 199 had tampered with student tests (Record on Appeal ["R"] 58-59). The lone basis for this allegation was that students from P.S. 199 had test scores that decreased "markedly" when they matriculated to l.S. 303 (id.). The Special Commissioner declined to investigate the matter and referred the case to the Office of Special Investigation ("OSI"). Upon receiving the referral from SCI, OSI began speaking to teachers and students regarding the allegations. Allegedly, Samantha Cato and Danielle Lerro, 1 The Special Commissioner of Investigation is a unit of the Department of Investigation that operates independently of the Department of Education. The office investigates alleged acts of corruption and other criminal activity, conflicts of interest, unethical conduct and misconduct by anyone within the New York City School District. SCI is endowed with the authority and jurisdiction to investigate the subject matter of the June 2012 report. 4 both teachers at l.S. 303, reported that they were administering an exam when some of their students requested help on their exams (R.62).2 Ms. Cato and Ms. Lerro reported the testing incident to the l.S. 303 principal, Patricia Bentley (R.62- 63). Ms. Cato and Ms. Lerro also discussed the testing incident with one another individual; however, it is unclear whether this discussion took place before or after the incident was reported to Principal Bentley (id.). When interviewed by the OSI investigator, neither Ms. Lerro nor Ms. Cato were able to identify a specific student that had requested help (id.). Even though Ms. Lerro and Ms. Cato could not identify the students that requested help, Principal Bentley nonetheless investigated the matter and somehow determined that Ms. Bolt had taught some, but not all, of the students that requested help (R.59). Principal Bentley did not believe the allegations were meritorious and did not pursue the matter further (R.64). The OSI investigation continued with a focus on interviewing Ms. Bolt's former students, even though there were other P.S. 199 students attending 1.S. 303 that Ms. Bolt had not taught (R.58-59). The OSI investigation into Ms. Bolt revealed that, although she taught six of the seven students interviewed, she did not 2 The investigator's report is unclear as to whether the students were taking a practice or an actual test, as well as whether this was during the math or the ELA portion of the state test (R.58- 65). 5 proctor the exam for four of the seven students because those students received an additional time accommodation, or they were not in her class (id.). For some inexplicable reason, the OSI investigator only spoke with Ms. Bolt's former students that had matriculated to LS. 303. Equally dubious is the fact that only those former students who were then in Ms. Lerro or Ms. Cato's classes stated that Ms. Bolt instructed them to "fix" answers. None of Ms. Bolt's former students who were attending other schools were interviewed, and there was no evidence to suggest that Ms. Bolt's students attending other schools suffered a similar "marked" decline in their test scores between fifth and sixth grade. The OSI Investigator also interviewed Ms. Bolt (R.64). She denied the allegations (id.). Nearly eight (8) months after conducting her first interview, the OSI Investigator issued her final report and substantiated the allegations that Ms. Bolt assisted students with the fifth grade ELA and Math Exams (id.). The OSI Investigator did not review the students' state tests and substantiated the allegations based solely upon her interviews of Ms. Bolt's former students attending IS 303. On October 12, 2013, the DOE preferred charges against Ms. Bolt based upon the OSI final report (R.67). At the time the OSI Investigator issued her final report, she did not even know when the 2011 state exams had taken place. In an 6 effort to clarify the ambiguity, the OSI investigator submitted an addendum to her final report five (5) months after it was issued and two weeks after charges against Ms. Bolt had been preferred. The addendum included the 2011 test date (R.69). In total, the OSI investigation took approximately eighteen (18) months. The DOE sought to terminate Ms. Bolt, and a 3020-a hearing was held. B. The 3020-a Hearing The hearing was held before Arbitrator James Mc Keever over eleven ( 11) hearing dates between February 28, 2014, and June 18, 2014. The focus of the hearing was twofold: (a) whether the Department of Education could prove by a preponderance of the evidence that Ms. Bolt engaged the charged misconduct, and (b) whether there was just cause to terminate Ms. Bolt under Education Law § 3020. 1. The Department of Education's Case The DOE called the OSI Investigator as a witness (R.77-87). The Investigator testified that Ms. Bentley identified Ms. Bolt as the former teacher of the students in issue (R.78). Moments after stating Ms. Bolt was the target of her investigation, however, the investigator testified that "Ms. Bentley ... couldn't tell me who specifically ... whether [the students] were in Ms. Bolt's class" (R.79). Then, when asked why she failed to interview all of the students that Ms. Bentley 7 identified, the investigator stated "I don't know, maybe I had enough students already by that time" (R.258). The investigator further stated that she interviewed a student, listed only as student B. Ms. Bolt did not proctor Student B's exam because Student B received additional time as a testing accommodation. Although the investigator claimed Student B was given his/her test booklet back in order to "fix the correct answers", the investigator was unclear as to whether Ms. Bolt or the Student B's proctor gave the test back to Student B (R. 79). In addition to the investigator, the DOE called three students: Student B, Student C, and Student F. Not only were the students' testimonies inconsistent, but the record also reveals that Ms. Bolt did not even proctor the exams for Student B or Student C because each of those students received an additional time accommodation, and they were taken to a different classroom for testing (R.79-80). Student B testified that that she received time accommodations on the 2011 state ELA exam, and Ms. Bolt did not proctor her exam because of that accommodation (R.91). Student B further stated that, upon completing the test, Student B was allowed to take her test booklet to Ms. Bolt's class (id.). Once inside the class, Student B gave her booklet to Ms. Bolt, and Ms. Bolt called Student B to Ms. Bolt's desk and told her to "go back to her answer, like, to check" 8 (R.92). According to Student B, this took place in the classroom while the other students were "sitting around" (R.97) . Additionally, Student C testified that she took the 2011 test with Student B, but Student C could not remember who proctored her exam (R.103). Student C acknowledged, however, that Ms. Bolt did not proctor her exam (id.). Student C stated she and other students receiving a time accommodation left the room before the 2011 test began, and they returned after Ms. Bolt's other students had completed the exam (R.104). Contrary to Student B, Student C admitted that Ms. Bolt did not speak to her (Student C) after the exam, but contended that Ms. Bolt told other students who did not receive time accommodations to "fix" their answers (R.101 ). Student C could not explain how the students that did not receive a time accommodation would still have been testing when she returned from her time-accommodated test (R.103- 104). Student C initially claimed that Ms. Bolt proctored Student C's test, but later recanted (R.103). Student C was also the only witness who testified that she and Student B both carried their tests back to Ms. Bolt's classroom (R.103-104). Student G was the third student to testify for the DOE. Student G did not receive a testing accommodation, and Ms. Bolt did proctor Student G's state exam (R.107). Student G stated that, during the test, Ms. Bolt told she and other students to "go back. .. that is wrong" (id.). Student G testified that, by the time Student B 9 and Student C returned from their tests, Student G and the other students in the Ms. Bolt's class had already finished their tests (R.111). There was no testimony that Student G observed Ms. Bolt tell Student B or Student C to "fix" their answers. All of the children that testified on behalf of the DOE were students at LS. 303 at the time of the hearing. In fact, Student B testified that she and Student G were "good" friends at the time of the hearing (R.95). None of the Students that testified on behalf of the DOE claimed that Ms. Bolt actually told them the answers to the questions.3 Additionally, the DOE did not produce one witness that claimed Ms. Bolt assisted them during the statewide math examination. The Principal and Assistant Principal at P.S. 199 testified for the DOE. Giselle Medina, the Principal at P.S. 199, testified that proctors were expected to "make sure that students are bubbling the correct answer" (R.175). In addition, the DOE submitted the 2012 P.S. 199 Testing Procedures Memorandum into evidence. The memorandum stated that test proctors must "make sure the students are bubbling in their answer correctly" (R.603).4 3 Although the City claims that Ms. Bolt's students received "some of the highest test scores in the borough," that claim is completely unsubstantiated and is based upon hearsay evidence from Investigator Celik (App. Brief at 4). The Investigator included that allegation in her report, but could not substantiate the allegation during the hearing (R.146). In fact, the uncontroverted evidence admitted during the 3020-a arbitration revealed that 36 percent of the Petitioner's students did not meet proficiency in ELA (R. 521 ). 4 This is particularly relevant, given that Ms. Bolt is alleged to have instructed students to "fix" answers. 10 It is also important to note the witnesses that the DOE did not call to testify at the hearing. Samantha Cato and Danielle Lerro, the alleged reporters did not testify at the hearing. Principal Bentley did not testify at the hearing, despite the contention that she received the initial report and allegedly identified Ms. Bolt as a potential subject, but ultimately did not find the allegations meritorious.5 Student D, who allegedly stated that Ms. Bolt told students to "fix" their answers, did not testify at the hearing (R.60-61 ). Student E, who allegedly observed Ms. Bolt "whispering" to other students did not testify at the hearing (R.61 ). 2. Petitioner Ericka Bolt's Case Three students testified on Ms. Bolt's behalf. Although the students did not attend LS. 303 at the time of the hearing and had not been interviewed during the investigation, Ms. Bolt taught each of the students during their fifth grade years at P.S. 199. Moreover, unlike the students that DOE produced on its case-in-chief, each of the students Ms. Bolt called as a witness attended a different school at the time of the hearing. Furthermore, the students that testified on behalf of Ms. Bolt provided consistent testimony. Specifically, Student J.B. testified that Ms. Bolt actually proctored his 2010-2011 state exam (R.488). Student J.B. also testified that Ms. 5 While the City notes that OSI recommended that Principal Bentley face disciplinary charges for not forwarding the vague and anonymous complaint to OSI, the City does not state whether such action was taken. 11 Bolt ensured that the students did not look at one another's test booklets; Ms. Bolt did not speak with any of the students during the test; and, when the test was completed, Ms. Bolt asked how the students felt about the test (R.488-489). According to Student J.B., Ms. Bolt did not assist any other students on the test. Ms. Bolt also proctored the 2011 state exams for Student H.O., who testified at the hearing, and Ms. Bolt called Student C.H. to testify as well. Student H.O. and Student C.H. each stated without equivocation that they did not witness Ms. Bolt speaking to any students during or after the state test (R.478-480; R.533-535). Student C.H. in particular received a time accommodation, and tested with Student B and Student C (R.533). Student C.H. testified that the proctor returned the exams to Ms. Bolt after the test, and Ms. Bolt did not improperly assist any students (R.533-535). The DOE attorney did not even cross-examine student C.H. (R.535), and thus his testimony was uncontroverted. In sum, Student H.O. and Student C.H. corroborated Student J.B. 's testimony and controverted the testimony supplied by the DOE student witnesses. Ms. Bolt testified on her own behalf as well. She testified regarding the procedures that she followed when she proctored the 2011 state test (R.512-514). Concerning the students that left her classroom during the 2011 state exam, Ms. 12 Bolt clarified that the test proctor returned the tests to her classroom and not the students themselves, consistent with the statewide testing policy (R.514)6• Ms. Bolt categorically denied the allegations and testified that she did not assist students during the 2011 state examination (id.). C. The Opinion and Award On or about October 15, 2014, the arbitrator issued his Opinion and Award. The arbitrator concluded that there was "no evidence in the record to support a finding that [Petitioner] assisted any of her students with the state-wide math exams" (R.51 ). As a general matter, the Arbitrator acknowledged that the DOE student witnesses' testimony "was not flawless" (id.). Specifically, the arbitrator conceded a "discrepancy" in Student B's testimony (R.52). The arbitrator further noted that Student C's testimony was so "inconsistent" that he refused to "credit" portions of her testimony (R.53). Finally, the arbitrator noted several discrepancies in the investigative report, such as the omission of facts that Student G later testified to during the hearing (id.). Despite these inconsistencies, discrepancies and omissions, the arbitrator sustained two of the three Specifications and terminated Ms. Bolt's position with the DOE. 6 The Petitioner's testimony on testing procedures was corroborated by her witnesses, Assistant Principal Giselle Medina and ESL Teacher Celeste Castillo. 13 D. The Petitioner-Respondent's Article 75 Proceeding in Supreme Court On October 27, 2014, Ms. Bolt submitted a timely Article 7 5 Petition seeking to vacate the Arbitrator's Opinion and Award. Ms. Bolt submitted a Memorandum of Law together with her Petition. In that memorandum, the Ms. Bolt specifically questioned the Arbitrator's failure to consider that the inconsistent student witnesses may have been mistaken because nearly one year elapsed between the test and their interview, and the 3020-a hearing took place nearly three years after 2011 state test. The Petition highlighted the illogical and irrational Opinion and Award. Specifically, the Petition noted that the Arbitrator did not discuss the credible testimony provided from Ms. Bolt's student witnesses, but instead sought to rehabilitate the inconsistencies in the DOE student witnesses' testimony. The Arbitrator's decision is replete with such rehabilitation attempts, and does not contemplate that the students may have been mistaken as to the events given the lapse in time. Ms. Bolt's Article 75 Petition advanced two theories in support of vacating the award. First, she highlighted that the award was irrational. Second, she pointed out that the penalty imposed was excessive and shocking to the conscience. Ms. Bolt sought to annul the Opinion and Award, because the arbitrator, inter alia, disregarded consistent testimony from students who had no interest in the outcome 14 of the proceeding in favor of students who - upon reviewing the record - presented patently inconsistent testimony littered with discrepancies. Ms. Bolt argued that the arbitrator's Opinion was irrational, and the award -which terminated the her - was excessive and shocking the conscience, particularly when considered alongside her unblemished history after ten years with the DOE. On December 18, 2014, the City submitted a cross-motion to dismiss the Petition. The City's cross motion to dismiss argued that Ms. Bolt merely disagreed with the arbitrator's credibility assessment and that the penalty was not shocking to conscience. Ms. Bolt submitted opposition to the cross-motion to dismiss and noted that the Article 75 was not predicated solely upon a disagreement as to witness credibility, but was instead based upon several factors including the lapse in time, the prior refusal to report the alleged misconduct, inconsistent testimony, the refusal to follow relevant precedent, and the implementation of a penalty that is shocking to the conscience of the Court (R.651 ). The Respondent-Appellant submitted a Reply Affirmation, and the matter was fully submitted. On April 27, 2015, Justice Joan Kenney issued her decision, vacating the arbitrator's award, and dismissing the City's motion in its entirety. Justice Kenney noted the enhanced scrutiny that the court is obliged to apply when reviewing decisions resulting from compulsory arbitration. Justice Kenney did not second- guess the arbitrator's credibility determinations; she analyzed the case in its totality 15 : .. and sought to find a rational basis in the arbitrator's decision. Despite her best efforts, she could not. Taking all factors into consideration and viewing the decision holistically, Justice Kenney found the arbitrator's decision was irrational. The Opinion and Award was vacated and the City's cross-motion to dismiss was denied in its entirety. The City filed Notice of Appeal on June 5, 2015, and the matter was stayed before Ms. Bolt could return to work. The City filed a Motion for Enlargement of Time to Perfect its appeal, and Ms. Bolt crossed moved for dismissal. The City filed its appeal on July 11, 2016. In their appeal, the City argues that the arbitrator's award rests on credibility determination that were within his sole discretion to make, and that the penalty of dismissal was not shocking to the conscience. For the reasons set forth herein, the Supreme Court Judgment should be affirmed. 16 POINT I: ARGUMENT THE SUPREME COURT VACATUR WAS PROPER BECAUSE THE ARBITRATOR'S AWARD WAS WHOLLY IRRATIONAL WHEN ANALYZED IN ITS TOTALITY The Supreme Court analysis recognized that, although the opm10n and award contained a resuscitation of the testimony from Ms. Bolt's witnesses, the discussion concerning Ms. Bolt's guilt neglects to examine the testimony her witnesses provided. The Supreme Court further analyzed the inconsistencies in the testimony of the witnesses that arbitrator relied upon to reach his verdict. Importantly, the students' credibility was not called into question; their memories were questioned. Unlike the arbitrator, the Supreme Court considered that the City's fourteen-year-old student witnesses had testified about incidents alleged to have happened when they were only eleven years old (R.17). Moreover, the students' testimonies, although frequently contradicted, were rarely corroborated. In short, it was clear that the City failed to satisfy the burden of proving their case by a preponderance of evidence, and the decision was therefore irrational. Terminating a teacher with an immaculate service record on such scant evidence is shocking to the Court's sense of fairness, and the opinion was vacated on those grounds as well. 17 -· A. The Supreme Court Judgment was Proper in that it Found the Opinion Irrational, and was not an Assessment of Witnesses Credibility Here, the Supreme Court's decision to vacate the Opinion and Award was based upon more than a mere post-hac credibility assessment; it was based upon the Court's review of the evidence, or lack thereof, presented during the course of the arbitration. Such review was proper because Ms. Bolt was under a statutory mandate to proceed to arbitration to defend the false charges that had been leveled against her. See Education Law§ 3020-a(5). As a general rule, when the requirement to arbitrate anses through a statutory mandate, the arbitrator's determination is subject to closer judicial scrutiny under CPLR 7 511 (b) than it would receive had the arbitration been conducted voluntarily. See Lackow v. Dep't of Educ. of City of New York, 51 A.D.3d 563, (1st Dept. 2008) and Saunders v. Rockland Bd. of Co-op. Educ. Servs., 62 A.D.3d 1012, 1013, (2nd Dept. 2009). In cases where "compulsory arbitration is involved, judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Motor Vehicle Mfrs. Ass'n v. State, 75 N.Y.2d 175, 186 (1990)(emphasis added). The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78. Id. (emphasis added). 18 This court has held that a finding of misconduct that is not supported by adequate evidence is arbitrary and capricious. Matter of Po/ayes v. City of N. Y., 118 A.D.3d 425, 426, (1st Dept. 2014.). Moreover, an arbitration award may be vacated when it is totally irrational, and an award that is inherently inconsistent may be deemed totally irrational. See e.g. Matter of Town of Callicoon (Civil Serv. Employees Ass'n, Inc., Town of Callicoon Unit), 70 N.Y.2d 907, 909 (1987); Spear, Leeds & Kellogg v Bullseye Sec., Inc., 291AD2d255, 256 (1st Dept. 2002); and City School Dist. of City of New York v Hershkowitz, 7 Misc 3d 1012(A) (Sup. Ct. 2005). In this case, the Opinion and Award was inconsistent and irrational. Justice Kenney noted these very facts in rendering her Judgment, which did not challenge the witnesses' credibility because, in most instances, an arbitrator's determination of witness credibility is beyond judicial review. Moran v. New York City Transit Auth., 45 A.D.3d 484, 485 (1st Dept. 2007). Instead of assessing witness credibility, the Judgment analyzed the arbitrator's award in search of a rational basis for the ultimate determination. Though the Judgment referenced numerous inconsistencies in the City's student witnesses, the court was merely echoing the arbitrator's observations contained in the Opinion and Award (R.15). Justice Kenney did have to make an assessment of 19 credibility in order to find the Arbitrator's Opinion and Award irrational; she simply compared the testimony with the uncontroverted and irrefutable evidence. For example, Students B and C are special needs students that received additional time to complete their respective tests in the 2010-2011 school year (R.91; R.100). They started testing at the same time as Ms. Bolt's students, but they were taken to a different room and a different teacher proctored their exams (R.91; R.101). When students B and C returned to Ms. Bolt's classroom, Ms. Bolt's students had already completed their exams and were sitting at their desks. This means that at least one of the students in Ms. Bolt's classroom would have heard Ms. Bolt assisting students B and C if that had taken place. This also means that Student C did not correctly recall the circumstances of the test because Student C testified that Ms. Bolt was assisting students who were still testing when he or she arrived. Unlike Tasch v. Board. of Education., where "the evidence was conflicting and room for choice existed," there was crucial testimony in this case that the arbitrator accepted as fact even though it was directly controverted by irrefutable evidence. 3 A.D.3d 502, 503, (2nd Dept. 2004). To ignore such a blatant contradiction on one of the dispositive issues in the case renders the Opinion and A ward irrational. 20 The lack of reliable evidence against Ms. Bolt was such that she was not afforded the due process rights she is entitled to under the law. Although the City contends that their student witnesses' inconsistent testimony was "corroborated by two sixth grade teachers' independent accounts to OSI," this reasoning is flawed because the sixth grade teachers (Ms. Lerro and Ms. Cato) could not corroborate anything to which the City student witnesses testified (App. Brief at 23). A review of the record will reveal that Mr. Lerro and Ms. Cato merely alleged that their students requested assistance on the 2012 exam (R.42; R.58-59). Neither Ms. Lerro nor Ms. Cato had independent knowledge regarding the allegations against the Petitioner. Likewise, the OSI investigator's testimony was composed entirely of hearsay and double hearsay. In light of the evidence presented during the 3020-a hearing, it was irrational for the Opinion to find that the Department of Education sustained the charges and specifications by a preponderance of the evidence. See Principe v New York City Dept. of Educ., 94 AD3d 431, 433 (1st Dept 2012) aff'd, 20 NY3d 963 (2012). Accordingly, Justice Kenney had no other alternative but to vacate the Opinion and Award on the grounds that it was totally irrational. See Hackett v. Milbank, Tweed, Hadley and McCloy, 86 N.Y.2d 146, 154-155 (1995); Spear, Leads & Kellogg v. Bulseye Secs., Inc., supra. 21 To be sure, the 3020-a hearing process and its resulting decisions are veritably sacrosanct. But the process must be questioned when the memories of child witnesses have been diluted by the passage of time. If an arbitrator's decisions were unreviewable, as the City implies, then CPLR Article 75 and Article 78 would be rendered obsolete. To the contrary, these causes of action exist so that the Court may intervene in matters such as this. These causes of action exist so that a career and reputation cannot be destroyed based upon inconsistent testimony, a lax investigation and an irrational Opinion and A ward. The hearing to be accorded to a teacher must not become "a mere form to precede a predetermined removal." People ex rel. Packwood v. Riley, 232 N.Y. 283, 286, 133 N.E. 891, 892 (1922). B. The Vacatur Recognized that the Opinion and Award Neglected to Analyze the Testimony from Ms. Bolt's Student Witnesses The Opinion and A ward is irrational because it should have discussed the testimony of the three students that testified on Ms. Bolt's behalf. With the exception of Student G, Ms. Bolt produced the only fact witnesses that were present throughout the time period relevant to the charged misconduct. Contrary to the City's assertions, the arbitrator did not "consider the accounts of every one of the student witnesses, including those Bolt presented" (App. Brief at 21). The Supreme Court Judgment understood the distinction between recounting the testimony that was taken at trial, and incorporating that 22 testimony into the analysis concerning Ms. Bolt's guilt or innocence. This is a crucial error because Ms. Bolt's student witnesses each attend different schools, while the DOE student witnesses each attend the same school and are friends. The City further argues that "there is no clear and convincing evidence of bias on the part of the arbitrator, as required to vacate this award" (App. Brief at 21). The City's contention, like the arbitrator's decision ignores the evidence that was presented during the hearing. Though the City cites Batyreva v. N. Y. C. Dept. of Educ in support of its argument, this case differs from Batyreva because the record cannot establish that "[ e ]ach of the sustained specifications was well supported by both documentary evidence and witness testimony." 95 A.D.3d 792 (1st Dept. 2012). To the contrary, this case is one of those narrow exceptions in which this Court should recognize that "the Hearing Officer failed to consider all of the circumstances and relevant evidence, leading the Hearing Officer to view the incidents in isolation and divorcing them from the context in which they took place." Matter of Principe v. NY.C. Dept. of Educ:.., supra, A.D.3d at 433. Thus, even in the absence of clear and convincing evidence of bias, the decision still must be rational. The underlying decision in this case clearly is not. The arbitrator's Opinion is irrational because it did not discuss the credibility of Ms. Bolt's student-witnesses. Instead, the Opinion merely notes that the students were focused on the test and did not see everything (R.44). But those students 23 would have no longer been testing when Student B and Student C came back to Ms. Bolt's classroom. Therefore, they would have seen if Ms. Bolt had instructed Student Band Student C to correct answers on their exams upon their return from their time-accommodated exams. Similarly, Ms. Bolt's other former students, whom the OSI Investigator should have interviewed, would have also witnessed such actions if they did in fact occur. Although the Opinion highlights weaknesses and flaws in the DOE's case, the Opinion reasons that the DOE student-witnesses had no basis to fabricate their testimony (R.54). This reasoning was flawed because it failed to appreciate that the DOE student witnesses may have been merely mistaken or confused about the actual test and the practice tests that had been taken throughout the year in question. In addition, it is possible that instructions to correctly bubble in answers were erroneously perceived as an indication that answers were incorrect. After all, the students are special needs children who were only ten (10) years old at the time; nearly one year elapsed between the test and their interview with OSI, and the 3020-a hearing took place nearly three years after the 2010-2011 state-wide test. It is equally important to consider that at least two of the DOE student- witnesses took several practice tests with Ms. Bolt during the 2010-2011 school year (R. 103-104; R.109-110). 24 The Arbitrator's failure to discuss relevant exculpatory evidence is tantamount to failure to hold the Department of Education to their burden of providing credible evidence to establish Ms. Bolt's guilt by a preponderance of the evidence. C. The Supreme Court Submissions Raised the Issue of Prejudice and the Record Reveals the Manner in which Ms. Bolt was Prejudiced 1. The Issue of Prejudice was not Waived The City claims that the inordinate delay in prosecuting the case against Ms. Bolt "was never raised in the petition and therefore was not properly before the Court" (App. Brief at 24). However, this claim is inaccurate. Ms. Bolt's petition noted both the delay in investigating the allegations and the delay in prosecuting the case (R.22; R.26). The "lapse in time" was placed before the Court again in Ms. Bolt's opposition to the City's motion to dismiss, and the City argued the absence of prejudice caused by the inordinate delay in it Reply papers (R.651; R.659). Thus, the City's contention that the issue was not properly before the Court is incorrect. Accordingly, this matter is distinguished from those cited by the City wherein the Court refused to consider issues which were not raised in the initial petition. See Matter of Cherry v. Horn, 66 A.D.3d 556 (1st Dept. 2009) and Cocozzo v. Ward, 162 A.D.2d 202 (1st Dept. 1990). 25 . . Assuming arguendo that the issue had not been raised, it would not be improper for the court to determine whether Ms. Bolt was prejudiced by the fact that the City waited more than two years to arbitrate this matter. Although the city cites cases in which this court has declined to consider arguments that were not raised in the initial petition, this court and the Supreme Court are endowed with great discretion when deciding the merits of compelled arbitration decisions such as this. See Lackow v. Dep't of Educ. of City of New York, supra. 2. The Evidence Before the Supreme Court Demonstrated Prejudice The City avers that the "Supreme Court essentially held that prejudice was to be presumed ... because child witnesses were involved" (App. Brief at 25). The City oversimplifies the issue of prejudice and misinterprets the Court's reasoning. From an evidentiary standpoint, the prejudice to Ms. Bolt is apparent because the contradictory and uncorroborated testimony of three students, who were also friends attending the same school, was the lone basis of the Arbitrator's finding of guilt. These children were as old as fifteen when they testified, but they were testifying about incidents that took place when they were approximately ten or eleven years old. This fact, coupled with the arbitrator's complete failure to do more than rehash the testimony from the petitioner's witnesses, is prejudicial. 26 Indeed, the Supreme Court recognized this when pointing out that the decision was especially prejudicial when the finding hinges on "the memory of children asked to recall matter[ s] that may or may not have occurred years before they are asked to testify" (R.17). The students' inconsistent statements at trial and during the investigation underscore the prejudice to Ms. Bolt. The City argues that the Supreme Court erred in recognizing the prejudice that resulted from the three-year delay in prosecuting this matter. The lapse of time between the alleged incident was discussed in Ms. Bolt's memorandum of law, and further in her affirmation in opposition to the City's Motion to dismiss (R.651 ). Thus, the finding that Ms. Bolt was prejudiced is not merely a conclusory contention based solely upon the City's inordinate delay in investigating and prosecuting the matter. See Cortlandt Nursing Home v. Axelrod, 66 NY2d 169 and Pat's Carpet Outlet v. State Exec. Dep 't, Div. of Human Rights, 244 A.D.2d 338. Moreover, the fact that each of the students that testified for the City were friends that attended the same school must not be dismissed. Particularly when Ms. Bolt called three different students that each attended different schools, and those students (as well as other students interviewed by OSI) stated that Ms. Bolt did not assist any students during the test (R.59-61; R.475-477). Ms. Bolt even called a witness who received a time accommodation and tested with Student B and Student C. 27 Even in Matter of Asch v. N. Y. C. Bd./Dept. of Educ:., the Court noted that "the hearing officer's decision demonstrates that he carefully weighed the evidence presented by both parties." 2013 NY Slip Op 1360, ii 4, 104 A.D.3d 415, 420, 960 N. Y. S .2d 106, 112 (1st Dept. 2013) The court further noted that '' [ t ]he record as a whole simply does not support the inference that the witnesses upon whose testimony the hearing officer relied were incredible as a matter of law." Id. at 421. In this case, however, the hearing officer did not discuss the exculpatory testimony of Ms. Bolt's student witnesses. Moreover, the issue in this matter is the recollection of the students, not their credibility. It is unfair, not only to those students, but more importantly to Ms. Bolt, that her career should be subject to their recollection of events, which, again, took place almost three years prior. Furthermore, unlike the teacher in Altsheler, who disclosed words that would be used on a standardized test, the allegations against Ms. Bolt are far less egregious in that she is merely alleged to have directed the students to "fix" wrong answers. Altsheler v. Bd. of Educ., 62 N.Y.2d 656, 657 (1984)(citations omitted). Likewise, there is no contention that she changed students answers and then refused to testify on her own behalf. See Carangelo v. Ambach, 130 A.D.2d 898. Nor are there allegations that she falsified records, as in Montanez v. Dept. of Educ, of City of New York. 110 A.D.3d 487 (1st Dept. 2013). Additionally, there was no allegation that she provided the students with the answers. With 28 unwavering consistency, Ms. Bolt has maintained that she did not make such statements or commit any act that assisted students on exams. The City goes on to argue that the Supreme Court second-guessed the Arbitrator's Opinion and Award, and "second-guessing that determination was improper". App Brief at 26. However, in each of the cases that the City cites, the Court first concluded that "there [was] such relevant proof as a reasonable mind may accept as adequate to support a conclusion." Altsheler v. Bd. of Educ., supra 62 N.Y.2d at 657 (1984); see also Carangelo v. Ambach, 130 A.D.2d 898 (3rd Dept. 1987) and Montanez v. Dept. of Educ, of City of New York. 110 A.D.3d. 487 (1st Dept. 2013). Such proof is not present in this case. In this case, the Opinion and A ward is not supported by sufficient relevant proof and therefore is irrational. POINT II: TERMINATING A TEN-YEAR EMPLOYEE WITH AN UNBLEMISHED HISTORY IS SHOCKING TO THE CONSCIENCE The Court may set aside a penalty, only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness. Pell v. Bd. of Educ., 34 N.Y.2d 222, 233, (1974)(emphasis added). Viewing all the circumstances of this case, termination should be shocking to the Court's sense of fairness. Ms. Bolt maintains her innocence. She is a ten (10) year employee with no prior disciplinary history. Other than the instant matter, charges have never been 29 preferred against Ms. Bolt. Thus, Ms. Bolt's previously unblemished work record demonstrates that she has a basic understanding of what constitutes proper conduct in the school environment. In the event this Court determines that the charges against Ms. Bolt should have been sustained, termination is an excessive and unfair penalty that is shocking to the conscience. This Court has found that termination should only be reserved for the most egregious misconduct, such as criminal conduct committed in the course of public employment. Matter of Chaplin v. N.Y.C. Dept. of Educ., 48 A.D.3d 226, (1st Dept. 2008). Although the allegations against Ms. Bolt constituted misconduct, they do not rise to the level of egregious misconduct. It was never alleged that Ms. Bolt told the students the answers. The alleged acts were isolated incidents that took place over the course of one test on one day nearly three years ago. The alleged acts do not establish a pattern of misconduct that would warrant termination. Further, Ms. Bolt presented evidence that contradicted the underlying allegations and urges the Court to believe that she did not engage in the charged misconduct. The lack of consistent evidence against Ms. Bolt is an additional reason that the arbitrator should not have imposed the ultimate penalty. Moreover, public policy favors the retention of teachers who have a proven record of genuinely connecting with students. See Principe v New York City Dept. of Educ., 30 supra at 433; see also Clarke, supra at 10. Ms. Bolt had a genuine connection with her students. Three prior students testified on her behalf. Even the DOE's student witnesses testified that they were fond of Ms. Bolt. As such, the award was vacated because it violated public policy. While respondents and their designated Hearing Officers unquestionably are authorized to impose fines on teachers for disciplinary offenses, the decision- makers must do so fairly, not arbitrarily. In the context of 3020-a arbitration, courts have found similar and lesser penalties shocking to conscience. See generally Weinstein v. Dep't of Educ. of City of New York, 19 A.D.3d 165 (1st Dept. 2005)(termination of teacher for corporal punishment found excessive and shocking to the conscience given the teacher's unblemished history and tenure); Deutsch v. New York City Dep't of Educ., 41 Misc. 3d 1228(A)(Sup. Ct. 2013)(a punitive U-rating given to a tenured teacher found to be shocking and disproportionate to the Court); Diefenthaler v. Klein, 27 A.D.3d 347 (1st Dept. 2006)(penalty of dismissal was so disproportionate to City Department of Education employees' offense that it shocked the judicial conscience, in view of each employee's lengthy and otherwise unblemished record of service); see also Mauro v. Walcott, 115 A.D.3d 547, 549 (1st Dept. 2014)(the penalty of termination of employment found to be shockingly disproportionate to petitioner's misconduct of engaging in sexual misconduct in the school). 31 Even the arbitrator's decision cites to similar cases in which a penalty short of termination was imposed (R.48-49). Here, the penalty was excessive because it exceeds the punishment meted out in prior proceedings. The record is devoid of evidence that would suggest Ms. Bolt could not remedy her behavior. Although the arbitrator mistakenly believed Ms. Bolt was guilty, she could have been given an opportunity to modify the behavior she was found guilty of engaging in. There are lesser corrective measures available than termination, and the Supreme Court Judgment should be affirmed. 32 CONCLUSION Petitioner respectfully requests that the Court affirm the Supreme Court Decision, vacating the Opinion and A ward and dismissing the City's Cross Motion in its entirety, together with full back pay, costs, and such other relief as the Court may deem just and proper. Dated: New York, New York August 9, 2016 Respectfully Submitted, BY: =i