In the Matter of Amira Beatty, Respondent,v.City of New York, et al., Appellants.BriefN.Y.Jan 3, 20181 GLASS KRAKOWER LLP ATTORNEYS AND COUNSELORS AT LAW A Limited Liability Partnership 100 CHURCH STREET, 8TH FLOOR, SUITE 800 NEW YORK, NY 10007 212-537-6859 FAX NO. 845-510-2219 Bryan D. Glass E-mail: email@example.com Partner September 25, 2017 Via hand delivery Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: Beatty v. City of New York, et al., APL-2017-00123 Dear Mr. Asiello: We represent Petitioner-Respondent Amira Beatty in the above-referenced appeal. Ms. Beatty is a dedicated tenured special education teacher who had seventeen (17) years of seniority with the New York City Department of Education (DOE) with no prior discipline. Hearing Officer Felice Busto’s decision, which originally terminated Ms. Beatty’s employment, was found “shocking to the conscience” by the Appellate Division, First Department. As the NYCDOE does here in its letter brief, the Hearing Officer’s decision mischaracterized the nature of Ms. Beatty’s misconduct as theft of time or service and did not fully recognize the extraordinary circumstances present here involving Hurricane Sandy. Indeed, the DOE provided instructions to its home instructions teachers that were ambiguous and arguably supported the actions Ms. Beatty took in this matter. She had always admirably serviced that student without issue in the past when instructions were clear. The Hearing Officer also did not appreciate the fact that the mother of the student in question testified that Ms. Beatty was an excellent teacher and was willing to have Ms. Beatty teach her son again. The mother apparently did not have any genuine concern about Ms. Beatty depriving her child of instructional time. It appears that a social worker questioned the mother about her child receiving educational services at the time, and the mother and the school administration sought to blame Ms. Beatty to avert their own culpability in the matter. The Hearing Officer failed to recognize that Ms. Beatty was in no way in any type of scheme to defraud the NYCDOE of work time or obtain some type of personal benefit. Ms. Beatty, as a salaried employee, had more than an ample caseload of special education students to serve. Fundamentally, Hearing Officer Busto’s decision was also irrational and inconsistent. The Hearing Officer dismissed the most serious charge, which alleged that Ms. Beatty obtained a financial benefit, but then concluded that Ms. Beatty obtained a financial benefit and utilized that conclusion to find that discharge was appropriate. Whatever Ms. Beatty did, she did not receive a 2 financial benefit. Therefore, the Hearing Officer’s decision was arbitrary and capricious, and the Appellate Division properly vacated it under the applicable standard used in Pell v. Board of Education, 34 N.Y.2d 22 (1974). I. THIS CASE SHOULD BE FULLY BRIEFED AND ORALLY ARGUED. We disagree with many of the hyper-exaggerated statements in the Department’s August 14, 2017 submission. We agree, however, that this case warrants full briefing and oral argument to do proper justice to understanding the nuances of this UFT-DOE hearing panel in New York City and the actual reality of the facts of these individual cases. While leave to appeal has been granted in Williams v. City of New York, APL-2017-00107 and Bolt v. Department of Education, APL-2017-00068 as well as this case, each of these cases involve different parties and different factual patterns. Ms. Bolt is represented by a different law firm than this firm, which represents both Mr. Williams and Ms. Beatty. More fundamentally, each of these cases involve unique facts. The legal issue common in each case concerns the penalty imposed by the Education Law § 3020- a Hearing Officer (and they are called hearing officers under the statute and not independent labor arbitrators). Under Pell, the determination of whether a penalty is shocking to the conscience is by its very nature subjective. Therefore, each of these cases needs to be fully examined on its own merits. II. THE REALITY OF TEACHER DISCIPLINE CASES DEMANDS JUDICIAL REVIEW. In Section 3020-a proceedings conducted by hearing officers in cases from school districts outside New York City, those hearing officers are mutually selected from an American Arbitration Association list by the school district and the tenured teacher and his/her individual attorney. In contrast, in New York City, the decisions at issue here in each of these three cases come from hearing officers appointed on a lucrative panel by the NYCDOE and UFT. The individual teacher has absolutely no input on the selection of the hearing officer. These hearing officers on the NYCDOE-UFT panel are appointed on an annual renewal basis and are guaranteed at least five days per month of 3020-a hearings on a per diem basis, paying over $1,000 per hearing day. This can incentivize them to please the institutional interests that appoint and reappoint them. Notably, the NYCDOE is headquartered in the geographic area covering the First Department. Accordingly, First Department justices often review Section 3020-a hearing officer decisions. Therefore, the First Department has extensive experience in reviewing teacher discipline penalties. The reversals coming from the Appellate Division in the last few years regarding these hearing officer decisions are not due to a “disturbing trend” by the courts regarding revisiting the shocking the conscience standard, but more likely a recognition that the hearing officers on the UFT-DOE disciplinary panel (not independent labor arbitrators) are subject to economic and political pressures that can affect the fairness of their decision-making regarding proper imposition of penalties. On the other hand, the NYCDOE has shown no reluctance recently to challenge decisions from hearing officers it finds too lenient and to eject hearing officers from its lucrative panel who 3 do not terminate enough teachers. It is interesting that the NYCDOE asserts without any support whatsoever in its brief that the vast majority of tenured teachers do not get terminated in this NYC 3020-a hearing process; in fact, anecdotal experience indicates that the number of teachers charged as well as the number of teacher terminations ordered by hearing officers since 2003 (when this new rotational panel system was implemented essentially guaranteeing at least 50 annual hearing dates to hearing officers) has increased exponentially.1 Indeed, the five justice panels reviewing the penalties are far more “independent” and diverse than the hearing officers appointed to the NYCDOE-UFT disciplinary panel, who often have little or no experience or exposure with the realities of public education in New York City. If anything, this provides justification to provide for a level of measured deference to the Appellate Division’s decisions, whose members are primarily elected justices from the Bronx and Manhattan. The NYCDOE’s allegation that these cases represent some type of disturbing pattern from the First Department is entirely conclusory and simply an effort to inflame the case. In fact, most of the Appellate Division’s decisions still clearly uphold hearing officer decisions and their penalties in the vast majority of cases. The fact that a few outlier cases with excessive penalties recently have been reversed as disproportionate by balanced and truly independent judicial panels does not provide a basis to disturb a longstanding and workable system of review for these cases. III. THE APPELLATE DIVISION APPLIED THE PROPER STANDARD OF REVIEW OF THE PENALTY IN THIS MANDATORY ARBITRATION CASE. In Pell, 34 N.Y.2d at 234-35, 241, this Court described what has become known as the “shocking to the Court’s conscience” standard as follows: Of course, terminology like “shocking to one’s sense of fairness” reflects a purely subjective response to the situation presented and is hardly satisfactory. Yet its usage has persisted for many years and through many cases. Obviously, such language reflects difficulty in articulating an objective standard. But, this is not unusual in the common-law process until, by the impact of sufficient instances, a more analytical and articulated standard evolves. The process must in any event be evolutionary. At this time, it may be ventured that a result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual 1 The three teachers presently under review are all racial minorities, who were terminated by Caucasian hearing officers. All involve issues of credibility based on their “lack of remorse” which led to their terminations. In Riley v. NYCDOE , 84 AD3d 442 (1st Dept 2011), and Guzman v. NYCDOE, 110 A.D. 3d 581 (1st Dep’t 2013), affirming, 2012 N.Y. Slip Op. 30512(U) (N.Y. Co. 2013), cases involving appellate vacatur of 3020-a terminations, these minority teachers were terminated by Caucasian hearing officers also based on credibility issues. In those cases, the First Department vacated their terminations as shocking to the conscience. The NYCDOE did not appeal those decisions to the Court of Appeals, and both of these teachers are presently working again with the NYCDOE without further incident since their return to the system. 4 or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved. Thus, for a single illustrative contrast, habitual lateness or carelessness, resulting in substantial monetary loss, by a lesser employee, will not be as seriously treated as an offense as morally grave as larceny, bribery, sabotage, and the like, although small sums of money may be involved….Consideration of length of employment of the employee, the probability that a dismissal may leave the employee without any alternative livelihood, his loss of retirement benefits, and the effect upon his innocent family, all play a role, but only in cases where there is absent grave moral turpitude and grave injury to the agency involved or to the public weal…. Thus, in adopting the “shocking the conscience” standard, Pell itself recognized that public employees are human and make errors. Pell recognized that hearing officers are not perfect and there will be times when their decisions will be vacated. The NYCDOE seeks to mask this fact by referring to Hearing Officer Busto as an “independent arbitrator”, when in fact she was merely recommended by colleagues to serve as a hearing officer on a lucrative disciplinary panel chosen by UFT and DOE legal officials, who choose to assign cases to her at their discretion without any input from the individual pedagogue being charged. Case law decided under Education Law § 3020-a recognizes that in compulsory disciplinary cases, such as this one, where the teacher is given no choice other than to participate, judicial review of hearing officer decisions is more exacting than ordinary Article 75 review. See Peterson v. Katonah-Lewisboro Union Free School Dist., 134 A.D. 3d 1125 (2d Dep’t 2016) (noting stricter standard of review of Education Law § 3020-a decisions); Lackow v. Department of Education, 51 A.D. 3d 563 (1st Dep’t. 2008) (same), citing Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y. 2d 214 (1996). Similarly, this Court held in City School District v. McGraham, 17 N.Y.3d 918 (2011), that although Education Law § 3020-a limits judicial review to grounds set forth in CPLR 7511, in compulsory disciplinary cases an award must satisfy an additional layer of judicial scrutiny. In sum, this Court has recognized that judicial review of disciplinary penalties entails an unavoidable element of subjective judicial discretion. That discretion is entirely appropriate under the enhanced review available in Article 75 cases involving mandatory arbitration. IV. TERMINATION WAS NOT PROPORTIONATE TO THE MISCONDUCT IN THIS CASE. Any discussion of “shocking the judicial conscience” and proportionality must begin with an analysis of the misconduct. That misconduct then must be examined and compared with existing case law, particularly recent case law involving teachers because, as stated in Pell, the standard can evolve over time. Hearing Officer Felice Busto did not do this. When the inflammatory sensibilities are removed and the behavior here is reviewed objectively, this is a garden variety misconduct case involving limited misconduct during 5 extraordinary times. Significantly, no sexual abuse of students occurred or was alleged, no physical contact between the teacher and the student occurred or was alleged, and Ms. Beatty did not stand to gain financially. Also, the mother of the student in question testified that Ms. Beatty was a good teacher and was more than willing to have Ms. Beatty return as her son’s teacher. Ms. Beatty committed no crime or violation of Department policy. What Ms. Beatty did have was seventeen (17) years of exemplary service and no prior discipline. The DOE charged Ms. Beatty, a special education home instruction teacher, with submitting false daily logs and personnel time reports on twenty-four days (Specification 1), submitting false daily logs and stating that the teacher reported to libraries on twelve days (Specification 2), making false representations resulting in the teacher receiving a financial benefit (Specification 3), obtaining her full salary for services she did not perform (Specification 4) and depriving Student A of education services (Specification 5) (Hearing Officer Decision at 3-4). Very significantly, the Hearing Officer dismissed Specification 3 (Hearing Officer Decision at 20, n. 12). Remarkably, Hearing Officer Busto then stated: “I have concluded that Respondent failed to provide home instruction to Student A and submitted false and fraudulent documentation for services that she did not provide to him and that she gained a financial benefit by doing so.” (Hearing Officer Decision at 13) (emphasis added). But as we just saw above, the Hearing Officer dismissed the only Specification that alleged that Ms. Beatty obtained a financial benefit. This was so even though the Hearing Officer also recognized that Ms. Beatty would be paid the same amount regardless of the number of students she taught. (Id. at 19). The Hearing Officer also characterized this case as involving “stealing time” or “theft of time” (id. at 20), but just about every disciplinary case could be characterized as such when an employee is excessively absent, shows up late for work, or when he or she is talking on the phone at work or otherwise being non-productive. It was undisputed that Ms. Beatty was a salaried employee and would receive her full salary regardless of the number of students she saw. It is also undisputed that Ms. Beatty taught her other students on the dates in question. The decision is written in such a way as to imply that Ms. Beatty went on a frolic during her entire work day. However, what really is involved here is one hour of instruction per day for one student during approximately two months under the most trying of personal conditions both the student and her teacher were facing. (Id. at 7, 14). Ms. Beatty did not in fact frolic away the one hour per day in question. She spent that time preparing lessons for her other students that she was unquestionably teaching. Dedicated teachers, such as Ms. Beatty, are known to do that. Of significance is that the mother in question was more than willing to accept Ms. Beatty as her son’s teacher even after all of this and testifying for the DOE at the hearing. (Id. at 14-16). It is undisputed that Ms. Beatty prepared her timekeeping-related paper work in advance. She admitted that it was “garbage” and that it did not reflect her actual services (Hearing Officer Decision at 18). It is also undisputed that Ms. Beatty recognized her mistakes and pledged not to repeat them regarding the paperwork (Id. at 11). While the DOE spends much time recharacterizing its view of the facts to make Ms. Beatty appear as a thief, the Hearing Officer’s decision speaks for itself. It is that decision that the Courts 6 below examined and that this Court will review. Suffice it to say that Ms. Beatty has a much different view of the facts during a time of an utter lack of clarity from her supervisors how to service home instruction students who lost their home following a major hurricane. Of important significance is that Hearing Officer Busto did not examine any case law concerning the appropriate penalty. Indeed, in its Letter Brief to this Court, the DOE cites a few cases which are all distinguishable. For example, Montanez v. City of New York, 110 A.D. 3d 487 (1st Dep’t 2013), concerned a teacher who fraudulently obtained an entire education for her son for a full school year. Cipollaro v. N.Y.C. Dep’t. of Education, 83 A.D.3d 543 (1st Dep’t 2011), concerned a teacher who fraudulently obtained an entire education for her children for two full years. (DOE Letter Brief at 13, 16). As discussed above, whatever Ms. Beatty did, it is undisputed that she did not receive any financial benefit. Additionally, only one hour per day of instruction time was involved here over a period of approximately two months and Ms. Beatty performed all of her other assignments. Hearing Officer Busto’s decision violates the principle stated in Santer v. Board of Education, 23 N.Y.3d 251 (2014) (as well as Pell, supra) because it is arbitrary and capricious in that she did not examine other cases in imposing termination and found Ms. Beatty guilty of uncharged conduct. As this Court stated in Santer: Where, as here parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny- it must have evidentiary support and cannot be arbitrary and capricious. Very significantly, as noted above, only one Specification charged Ms. Beatty with obtaining a financial benefit. That Specification (Specification 3) was dismissed. Hearing Officer Busto then remarkably concluded that Ms. Beatty obtained a financial benefit even though it was no longer charged. This is exactly what a Hearing Officer may not do- i..e, find a teacher guilty of uncharged conduct. See Soucy v. Board of Education, 41 A.D. 2d 984 (3d Dep’t. 1973), lv. denied, 33 N.Y.2d 653 (1973); Denoff v. Mamaroneck Union Free School Dist., 29 Misc. 3d 1207 (A) (Westchester Co. 2010), affirmed, 101 A.D. 3d 997 (2d Dep’t. 2012) (same). Hearing Officer Busto’s decision is irrational and arbitrary and capricious. This provides an independent basis to vacate the termination penalty award. This Court should also consider City School District of New York v. McGraham, 17 N.Y.3d 917 (2014). Like Ms. Beatty, Ms. McGraham engaged in teacher-student misconduct. Significantly, however, by any measure, Ms. McGraham’s misconduct was much more severe than anything Ms. Beatty was alleged to have done. Yet, this Court recognized that Ms. McGraham should not have been fired. In McGraham, a teacher communicated electronically directly with a student outside of school hours and sometimes late at night. They discussed personal matters, and the teacher tried to discuss the nature of their relationship which was potentially romantic. Thus, McGraham went further over any line that Ms. Beatty may have crossed. At worst, Ms. Beatty was found not to have provided teaching services to one student during an extraordinary event. In McGraham, as in this case, there was no physical contact, no physical relationship, and no sexual misconduct. 7 The Hearing Officer found McGraham guilty of conduct unbecoming her profession and imposed a 90-day suspension without pay as well as reassignment to a different school. The DOE argued that the penalty violated “public policy,” but the Court concluded that while public policy protected students, the penalty imposed did not violate any public policy. Though not discussed directly by this Court, the Appellate Division decision in McGraham, which was affirmed by this Court, also concluded that “the award in this case recognizes the seriousness of the allegations and imposes a penalty which we do not think is disproportionate to the charges . . . Moreover, we find the penalty imposed upon her not to be so lenient to have been arbitrary or capricious.” The Appellate Division also cited decisions involving the shocking the conscience standard. See 5 A.D. 3d 445 (1st Dep’t 2010). Thus, the Appellate Division applied the Pell standard to that student- teacher misconduct case. Significantly, even where a teacher was found guilty of engaging in sexually charged banter directly with a student, the Appellate Division, relying upon McGraham, upheld a suspension for one half of a school year. Matter of Board of Education v. Ostrin, 120 A.D. 3d 1105 (1st Dep’t 2014), affirming, 2012 N.Y. Misc. Lexis 1355 (N.Y. Co. 2012). Mr. Ostrin, unlike Ms. Beatty here, also had a prior history of discipline. The lower Court decision in Ostrin, which was affirmed on appeal, did not find the penalty “shocking” because “the ultimate penalty of dismissal is reserved for those situations involving the most egregious conduct, when no measure of alternative deterrence would be effective.” While that Court recognized the important role that teachers play as role models, it held that the misconduct cannot be viewed in a vacuum and that McGraham requires courts to evaluate “the proportionality between a teacher’s offensive conduct and the penalty.” This Court also should consider a decision which was affirmed by this Court, Principe v. Department of Education, 4 A.D. 3d 431 (1st Dep’t 2012), affirmed, 20 N.Y. 3d 963 (2012). As here, that decision involved student-teacher misconduct. The termination of a teacher found guilty of imposing multiple acts of excessive physical force on students was vacated under Pell as shocking because of the teacher’s length of service and performance. See Senior v. Board of Education, 37 A.D.3d 610 (3d Dep’t 2007) (termination of employee who had physical altercation with co-worker vacated as shocking). In Asch v. Board of Education, 104 A.D. 3d 415 (1st Dep’t 2013), the Appellate Division upheld a 6-month suspension without pay for an admitted gay male librarian who engaged in teacher-student misconduct by rubbing male student backs, shoulders, and spines and by stroking a student’s hair. The hearing officer found that sexual misconduct was not involved and that given Mr. Asch’s long record of employment and lack of any prior discipline, this inappropriate behavior would probably not be repeated. Of significance is that the Appellate Division cited to Pell and concluded that the penalty was not shocking to one’s sense of fairness. Nothing in the record here could possibly support any claim that Ms. Beatty will repeat the behavior which led to this case. In Nreu v. Department of Education, 901 N.Y.S. 2d 908 (N.Y. Co. 2009), the Court concluded that a one year suspension without pay was not “shocking to the conscience” with respect to a teacher who was found guilty of making 39 phone calls to a student; leaving a voice 8 mail message on a student’s phone which stated that the student was special, that the teacher missed her, and that he would like to adopt her; sending eight text messages, including one at 4:12 a.m., stating that the teacher thinks about the student every day; and appearing at her place of employment and staring at her. While the penalty in Nreu is severe, it is significantly less than that imposed by Hearing Officer Busto here. The misconduct at issue is much more inappropriate than the allegations against Ms. Beatty here. See also Groton Central School Dist. v. Davis, 975 N.Y.S. 2d 709 (Tompkins Co. 2013) (two-month suspension of male teacher who, on numerous occasions, touched female students, inappropriately addressed them as “honey” or “babe,” told a student that she was beautiful or sexy, and had inappropriate discussion about condoms was not shockingly lenient). Directly related to teacher-student misconduct cases, such as the one at bar, are decisions involving moral turpitude. In Mauro v. Walcott, 115 A.D. 3d 547 (1st Dep’t. 2014), for example, two teachers were observed partially undressed in an upstairs classroom and appeared to have been engaging in sexually inappropriate behavior. This action caused the Board of Education widespread negative publicity and the Education Law § 3020-a hearing officer fired her. The First Department vacated the penalty of termination as shocking under Pell, supra. The Court relied upon the teacher’s excellent record and the fact that no criminal conduct was involved. Significantly, the Court cited to McGraham, Asch, and Nreu because “lesser penalties have been imposed where a teacher had an ongoing relationship with or engaged inappropriate behavior with a student.” See Brito v. Walcott, 115 A.D. 3d 544 (1st Dep’t 2014) (same, in a companion case involving the “other” teacher). In Rubino v. City of New York, 6 A.D 3d 439 (1st Dep’t. 2013), affirming, 2012 NY Slip Op. 50189(U) (N.Y. Co. 2012), a teacher’s termination was vacated under Pell’s shocking to the conscience standard. Rubino, who initially denied the charges, posted offensive comments about her students on her Facebook page, stating that she hated her students and implied that one of them should die by floating away after it was reported that another NYC student had fatally drowned during a field trip to the beach. In Matter of Board of Education v. Campbell, 2010 N.Y. Misc. LEXIS 2067 (N.Y. Co. 2010), a teacher was found guilty of downloading pornographic photographs in school and on a school computer in violation of the DOE’s Education’s internet use policy. Considering his fifteen years of service and unblemished record, the hearing officer imposed a suspension for the rest of the school year or 90 days, whichever was longer. The Court specifically held that given these facts, the penalty was “not shockingly lenient” and did not violate public policy, an issue that has not even been raised here. See also Simons-Koppel v. N.Y.C. Dep’t. of Education, 920 N.Y.S. 2d 244 (N.Y. Co. 2010) (upholding one year suspension without pay for teacher found guilty of multiple acts of misconduct including commenting on revealing nature of a female student’s clothes, mentioning strip clubs in class, corporal punishment and taking pictures of students). Moreover, teachers who have committed serious felonies have remained employed. See, e.g., Ellis v. Ambach, 124 A.D 2d 854 (3d Dep’t 1986), lv. denied, 69 N.Y. 2d 606 (1987) (two- year suspension upheld for driver education teacher who had been convicted of criminally negligent homicide in connection with a hit-and-run accident that had been widely reported in the press). 9 Additionally, Hearing Officer Busto’s decision was properly vacated because she did not even bother to discuss the grave impact termination would have on Ms. Beatty and her family. Pell teaches us that a hearing officer must at least consider these factors before imposing the capital punishment of termination. V. TERMINATION IS DISPROPORTIONATE TO THE OFFENSE BECAUSE IT DID NOT INVOLVE MORAL TURPITUDE AND MS. BEATTY DID NOT OBTAIN ANY FINANCIAL BENEFIT. The DOE seeks to put Ms. Beatty on a high pedestal because she is a role model. Just about every public employee who deals with the public or with children is a role model because any agency is concerned with their public perception. Indeed, every responsible employer, even private sector employers, wants to project a positive public image. The DOE refuses to recognize that teachers are human. They make mistakes, but many times, as here, they deserve a second chance. This Court recognized these principles in Pell, and McGraham. The DOE, however, does not. It even questioned in its appellate brief whether any judicial review of Education Law §3020-a decisions is appropriate. Very significantly, when public employees commit misconduct which does not involve morality and they obtained no personal benefit, courts are loath to sustain terminations under Pell, supra. See, e.g., Stevenson v. Spencerport Central School Dist., 97 A.D. 2d 758 (4th Dep’t. 1983) (dismissal of employee who paid an employee for work performed by another and was guilty of insubordination was disproportionate because offense did not involve moral turpitude and employee received no personal benefit); Henry v. Wilson, 85 A.D 2d 885 (4th Dep’t. 1981) (same with respect to employee guilty of refusing to work night shift and improperly making certain recordings). Indeed, this case is not even as severe as Matter of Guzman v. City of New York, 110 A.D. 3d 581 (1st Dep’t 2013), affirming, 2012 N.Y. Slip Op. 30512(U) (N.Y. Co. 2013), where termination was deemed inappropriate for a teacher who engaged in a scheme to use a school aide’s address to enroll her granddaughter in school and thereby inappropriately obtain school services. See also Diefenthaler v. Klein, 27 A.D. 3d 347 (1st Dep’t. 2006)(termination of carpenter who stood outside and did no work is excessively shocking). Pell, supra, mandates that hearing officers consider that public employees can make mistakes and that mitigating circumstances must be taken into serious consideration. Thus, in Castillo v. Schiro, 49 Misc. 3d 774 (N.Y. Co. 2015), under an identical standard as here, the Court found shocking the termination of a probationary correction officer who was absent 63 times and guilty of being absent without leave (AWOL) for a court appearance because she was also a victim of domestic violence. Being displaced from your home because of a major hurricane should merit the same consideration. Discharge is a draconian penalty and would be a travesty of justice. It will not benefit the Department or the students at all. It bears repeating that Ms. Beatty received no financial benefit, 10 the misconduct occurred during Hurricane Sandy, and the mother of the student in question is fine with having Ms. Beatty continue to teach her son. If the student’s mother is not upset and is willing to accept Ms. Beatty, why is it so difficult for the DOE to accept that Ms. Beatty deserves a second chance? Who really gains by Ms. Beatty’s termination? No one. Who loses from Ms. Beatty’s termination? Everyone, Ms. Beatty, her family, and the students of the DOE. Surely, Ms. Beatty learned her lesson and the behavior at issue will never be repeated. Whatever this Court thinks about Ms. Beatty’s conduct, the cases cited herein demonstrate that her conduct is far less severe than other teachers who have not been terminated and have been given a second chance. The case law cited herein is overwhelming. Any radical change in the process is for state legislators, not the courts. Therefore, it is apparent that the decision of Hearing Officer Felice Busto which terminated Ms. Beatty without any case law analysis is shocking to the conscience. VI. CONCLUSION This Court should permit full briefing and oral argument in this case. In any event, it is submitted that this Court should affirm the well-reasoned decision of the Appellate Division, First Department in a fully-reported decision. Respectfully submitted, By: ______s/_____________ Bryan D. Glass, Esq. Glass Krakower LLP 100 Church Street, 8th Floor, Suite 800 New York, NY 10007 212-537-6859 firstname.lastname@example.org cc: Kathy Chang Park Assistant Corporation Counsel Attorney for Respondents-Appellants 11 CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word, and according to that software, it contains 5,134 words. ____s/_________________ Bryan D. Glass, Esq.