In the Matter of Amira Beatty, Respondent,v.City of New York, et al., Appellants.

Brief

N.Y.January 3, 2018

October 11, 2017 Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Beatty v. City of New York, et al., APL-2017-00123 Dear Mr. Asiello: Pursuant to 500.11(e) of this Court’s rules, we respectfully request the Court’s permission to submit this reply, because we believe that it will be helpful to the Court in deciding the important issues presented in this appeal. We also renew our request, now joined by petitioner- respondent, that this appeal be heard with full briefing and argument (see Resp. Ltr. at 1). PRELIMINARY STATEMENT DOE established in its opening letter that the arbitrator’s decision to dismiss Beatty was far from a shocking step, where she deprived a disabled student of all educational instruction for two full months and deliberately falsified time logs to indicate she had in fact been providing the instruction. The First Department erred in vacating the arbitrator’s chosen penalty, and this Court should reverse. ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 KATHY CHANG PARK Assistant Corporation Counsel Phone: (212) 356-0855 Fax: (212) 356-2509 Email: kpark@law.nyc.gov >% 2 Beatty essentially asks this Court to apply a de novo standard of review to arbitrators’ decisions regarding penalty in teacher discipline cases. But the Court’s precedents—most notably, Pell—have long held that an arbitrator’s judgment regarding penalty is entitled to deference and should be overturned only in exceptional cases. This rule exists for good reason: arbitrators are best positioned to find facts, judge matters of credibility, and assess a teacher’s level of regret for and insight into her misconduct. And the multi-tiered statutory process featuring numerous protections for teachers, including the right to a trial-like hearing before an independent arbitrator, is built upon the understanding that the arbitration is the main event, and thus that courts will intrude into the arbitrator’s province only in those limited instances when the result lies beyond the acceptable range of disciplinary choices. The penalty of dismissal is plainly within that range here. There is no merit to Beatty’s attacks on the arbitrator’s conclusions regarding the serious and calculated nature of her actions, the credibility of her excuses, her lack of insight into her wrongdoing, and her failure to express any regret for its consequences for the student. Such questions are usually best resolved by the arbitrator, and Beatty has failed to identify a basis for disturbing the arbitrator’s well-supported findings in this case. ARGUMENT A. Beatty misconstrues the appropriate standard of review. Stripped to its essence, Beatty’s position is that no deference should be accorded to arbitrators’ determinations (Resp. Ltr. Br. at 2-4). She instead presses for more deference to be given to courts—and, in particular, the First Department—in reviewing arbitral awards in teacher disciplinary cases. But as we demonstrated in our opening letter (App. Ltr. Br. at 9- 11), Beatty’s position cannot be squared with this Court’s precedent confirming the high level of deference owed to arbitrators’ determinations as to penalty. Beatty misreads Pell v. Board of Education as allowing for subjective judicial discretion in assessing the 3 excessiveness of a chosen penalty (Resp. Ltr. Br. at 3-4), when Pell simply recognized that lower courts would benefit from guideposts in applying the somewhat vague “shocking to the conscience” standard. 34 N.Y.2d 222, 234-35 (1974). Beatty fails to grapple with Pell’s central teaching that judicial intervention in employee disciplinary matters should be limited, especially where a public employee has been disciplined for acts that call his integrity and trustworthiness into question. Id. Not only does Beatty improperly ask this Court to depart from its settled precedent, but she also ignores the Legislature’s intent that arbitrations function as the central stage in teacher disciplinary proceedings. She fails to rebut our points explaining how the legislative framework was designed with the understanding that courts will intervene on the question of penalty only in those limited instances when the result lies beyond the acceptable range of disciplinary choices (App Ltr. Br. at 11). Instead, Beatty resorts to distorting the facts about teacher disciplinary cases. But there is no merit to her contention that the arbitrators who preside over teacher disciplinary proceedings are not truly independent. She complains, for example, that an individual teacher has no direct input in the selection of an arbitrator for a particular case. But as she acknowledges (Resp. Ltr. Br. at 5), the arbitrator for a particular matter is selected on a rotating basis from a panel whose makeup has been jointly agreed upon by the teachers’ union and DOE. Beatty cannot seriously argue that the arbitrators on the panel side exclusively with DOE, when the teachers’ union is equally involved in the selection of the panel.1 1 In a footnote, Beatty suggests for the first time that racial discrimination was at play here. But she points only to the fact that the three teachers presently under review are members of racial minorities, while the arbitrators who presided over their hearings are not. This Court should reject Beatty’s intimation that the arbitrators discriminated against petitioners: none of the petitioners ever raised a claim of bias on the part of the respective arbitrators, and the mere fact that petitioners belong to minority groups, without more, would not come close to stating such a claim. 4 Beatty further insists that the number of terminations has “increased exponentially” with the implementation of the new rotational panel system. But she offers no support for this proposition, and in fact, the actual numbers tell a vastly different story. DOE records for the last several years show that only about five percent of misconduct cases brought result in dismissal: out of more than 200 disciplinary cases alleging misconduct charged each year, only around ten per year culminate in awards of dismissal.2 This is out of an overall pool of tens of thousands of tenured teachers—hardly suggesting an exponential increase in dismissals. There is also no truth to Beatty’s unfounded assertion that the DOE “frequently” ejects arbitrators from the rotational panel when they do not terminate enough teachers (Resp. Ltr. Br. at 2-3). Beatty again cites no support for this false assertion, nor could she, because DOE has no authority to unilaterally remove arbitrators from the panel. The teachers’ union would have to agree. Nor is there any basis for Beatty’s mistaken claim that arbitrators “often have little or no experience or exposure with the realities of New York City public education” (Resp. Ltr. Br. at 3). Arbitrators in teacher disciplinary proceedings regularly handle such matters, conducting lengthy hearings and reviewing extensive evidence pertaining to DOE’s policies and practices. They see the full range of cases that judges do not. Thus, there can be no serious dispute that the arbitrators are much better positioned than the courts to develop familiarity with the intricacies of the New York City public school system. That is not to deny that courts provide a useful check against aberrant decision-making by arbitrators. But that check should be 2 Along similar lines, the Wall Street Journal reported in 2014 that, out of 496 resolved teacher disciplinary cases over the 2012-13 and 2013-14 school years, arbitrators imposed a penalty of dismissal as to a total of only 17 educators for misconduct. Leslie Brody, Educators Fined, Not Fired, Wall St. J. (Jul. 27, 2014), available at http://on.wsj.com/2mUP7mZ. 5 reserved for circumstances where the penalty strays far from the range of acceptable measures and thus can fairly be described as “shocking to notions of fairness.” The First Department’s recent trend of repeatedly vacating arbitral dismissals that fall well within the range of reasonable penalties cannot be reconciled with the Court’s precedent, with the critical need to ensure that students receive an appropriate education, or with the statutory scheme centered around independent arbitration that is set forth in the Education Law. B. Beatty’s attempts to avoid the arbitrator’s findings are unavailing. As we established in our opening letter, the arbitrator properly determined that Beatty failed to provide educational instruction to Student A for two full months without excuse or justification; deliberately doctored her time logs; exploited the circumstances of Hurricane Sandy for her own personal advantage; and intended to receive a financial benefit at Student A’s expense. In attempting to claim that the penalty of dismissal was shocking, Beatty’s defense reduces to a flat rejection of these findings in favor of exclusive reliance on her own version of events. But the validity of the arbitrator’s factual findings is beyond the scope of this appeal, and, in any event, Beatty fails to offer any convincing objection to the soundness of the arbitrator’s findings, let alone show that its conclusion as to penalty is shocking to notions of fairness. First, there is no merit to Beatty’s contention that the arbitrator’s decision is irrational because the arbitrator found that Beatty obtained a financial benefit from her misconduct, yet dismissed the relevant specification that pertained to that allegation (Resp. Ltr. Br. at 1, 5). There is no inconsistency: the decision made clear that the arbitrator was dismissing that specification only because it contained facts duplicative of those set forth in the other specifications, not for any lack of merit to those allegations (R. 20). And the arbitrator explicitly found that Beatty’s misconduct was intentional and designed to receive a benefit that she was not entitled to receive (R. 19). The arbitrator did not credit Beatty’s assertion that she spent her mornings preparing 6 instruction for other students, instead of teaching Student A as she was assigned to do. The record also firmly supports the arbitrator’s finding that Beatty’s false recordkeeping was a calculated effort to defraud DOE. Beatty protests that she had filled out her time logs in advance (Resp. Ltr. Br. at 5), but she fails to explain why she varied her log entries week over week and day over day, such as by marking Student A absent on ten specific days in December 2012 when he was undisputedly available to receive instruction, and by further claiming to have visited various schools on those days to use the time constructively given the student’s purported absence. Beatty has never addressed this point or explained how the studied variation in her time-log entries over the relevant period is consistent with her claim of inadvertent errors in her paperwork. Even if this Court were to put to one side the highly deferential standard of review that governs these proceedings, the record does not support any other conclusion other than that she deliberately intended to cover up her dereliction of instruction duties. In the same vein, Beatty also wrongly insists that Hurricane Sandy excuses her misconduct (Resp. Ltr. Br. at 1, 10). As we established in our opening brief (at 15), the arbitrator rejected the idea that Hurricane Sandy was a credible excuse for (a) her failure to teach Student A for two full months, including a month after he was back in his family home; (b) her failure to ever discuss the matter at any point with her supervisor; and (c) her deliberate falsification of time sheets that claimed to have provided instruction throughout the period, save for the ten days in December where she instead decided to falsely mark Student A absent. Unable to avoid the arbitrator’s findings, Beatty’s defense of the First Department’s decision quickly unravels. For example, her effort to avoid cases (Resp. Ltr. Br. at 6) like Montanez v. City of New York, 110 A.D.3d 487 (1st Dep’t 2013), and Cipollaro v. New York City Department of Education, 83 A.D.3d 543 (1st Dep’t 2011), is unavailing, because she distinguishes those cases only by rejecting the arbitrator’s finding that she acted fraudulently. 7 Attempting to downplay the arbitrator’s conclusion that she was stealing time, Beatty also claims that the same would be true whenever an employee is excessively absent, shows up late for work, or spends time doing personal tasks during work hours (Resp. Ltr. Br. at 5). But even if there are other ways to steal time, it does not minimize the seriousness of Beatty’s prolonged efforts to falsify her time logs. In essence, on at least 36 separate school days, Beatty claimed to have worked an hour at the beginning of the day that she did not in fact work (R. 36, 44, 345-47, 350-53). And the pattern might well have persisted much longer had a social worker not happened to find out about it during a hospital visit by Student A. And although Beatty emphasizes that she had pledged to change her paperwork practices (Resp. Ltr. Br. at 5), that only shows that, at most, she promised to be less sloppy with her paperwork, without showing insight as to the seriousness of her wrongdoing. Because the arbitrator quite reasonably found that the problem was not simply one of careless recordkeeping, the arbitrator also reasonably found that Beatty’s promise to improve her paperwork rang hollow. Beatty further insists that her misconduct was somehow excusable because the student’s mother was not concerned about the lack of instruction for her son (Resp. Ltr. Br. at 1). But the record shows that the mother did care about the lack of teaching for her son and sought to make arrangements for her son to receive instruction from Beatty during the two-month period, even if she had evident regard for Beatty. And even setting aside the mother’s concern, the record shows that the student himself suffered: the arbitrator credited the mother’s testimony that her son “became depressed” from the lack of instruction and fell “way behind” (R. 160). Nor can Beatty solely rely on her satisfactory job history. She ignores the well-established law that a previously adequate record of service does not preclude termination, particularly in cases of misconduct involving a breach of the employer’s trust. She also ignores Pell’s admonition that where the record establishes “a violation of a trust and a breach of duty which, if condoned and imitated, could wreak havoc with the entire system,” courts must accord “greater weight or 8 recognition” to the “nature of the misconduct charge” than to “prior good records of service.” 34 N.Y.2d at 239. Trust is vital to any employer- employee relationship—and especially so when it comes to the Home Instruction Program, which operates on an honor system. Further, to the extent that Beatty complains that the arbitrator failed to consider the grave impact her dismissal would have on her family, she never introduced any evidence of such hardship during the arbitration. Cf. Id. at 239 (discussing record evidence of hardship to petitioner, including forfeiture of pension rights). It is too late for her to inject new factual matter now, when DOE is deprived of the opportunity to test its veracity; nor may she do so through the unsupported assertions of her attorney. See Bingham v. N.Y.C. Transit Auth., 99 N.Y.2d 355, 359 (2003); cf. Peckham v. Calogero, 12 N.Y.3d 424, 430 (2009) (an argument may not be raised for the first time before the courts in an article 78 proceeding). In any event, even properly tendered evidence of hardship cannot overcome misconduct involving “a violation of trust and a breach of duty.” Pell, 34 N.Y.2d at 235, 239. And although Beatty stresses that a number of non-binding lower courts have upheld lesser penalties, those cases involved different facts, and at most show that there are a range of acceptable measures that may be chosen by an arbitrator. And to the extent that Beatty cites decisions annulling arbitral determinations of dismissal, we explained in our opening letter that these cases reflect the First Department’s diluted application of the shocking-to-the-conscience standard, which the Court should correct (App. Ltr. Br. at 11). As for Beatty’s reliance on this Court’s decisions, City School District of the City of New York v. McGraham, 17 N.Y.3d 917 (2011), only underscores the relevant principles of deference here. This Court emphasized there that it matters not whether reasonable minds might have disagreed over the appropriate penalty, because that would not be a basis to vacate the arbitrator’s award or refashion the penalty. McGraham, 17 N.Y.3d at 918, 920. Beatty’s fraudulent intent and prolonged deprivation of instruction to Student A also makes this case much different from Matter of Principe v. New York City Department of Education, 94 A.D.3d 431 (1st Dep’t 2012), aff’d 20 N.Y.3d 963 (2012), 9 which involved two acts of corporal punishment during threatening situations by a dean of discipline whose job it was to diffuse fights to protect students and faculty. Id. at 434-35. And of course, this Court’s guidance in Pell confirms that dismissal here was not “shockingly disproportionate” to Beatty’s misconduct (App. Ltr. Br. at 12). It is telling that Beatty does not even try to distinguish her case from the facts of Pell closest to this case, where this Court upheld termination of a teacher who “absented himself from his teaching duties [on seven occasions], thereby requiring replacements, falsely certified to being ill on those occasions, and was paid therefor.” 34 N.Y.2d at 236. In essence, Beatty’s brief shows that she can only claim her dismissal to be shocking by ignoring the arbitrator’s detailed findings of fact. But she has provided no basis to disturb those findings, and dismissal was not a shocking step where the arbitrator (1) found that she wholly neglected Student A, despite being his sole assigned teacher, for two full months; (2) further found that she deliberately falsified and doctored her time logs over the period to receive a financial benefit to which she was not entitled; (3) recognized that the mother and DOE were rightly concerned about the loss of instruction to Student A, who became depressed and fell behind; and (4) considered that the effective functioning of the Home Instruction program depends on teachers who can be trusted when they are operating in the field. Beatty insists that everyone would lose if she were dismissed (Resp. Ltr. Br. at 10), but she entirely ignores the arbitrator’s findings of fact and gives short shrift to DOE’s critical public mission to educate the City’s schoolchildren. Regardless of whether Beatty or others might feel that she should be given another chance, it was well within the arbitrator’s discretion to decide that she should not, after considering her serious and sustained pattern of behavior, gauging the credibility of her excuses, and observing her lack of remorse for her conduct or even just regret for the simple fact that Student A was deprived of all educational instruction for two full months. C. Conclusion DOE renews its request that the Court grant full briefing and argument in this case, and coordinate the briefing and oral argument 10 among this appeal and the Bolt and Williams appeals currently pending in this Court. In the alternative, this Court should reverse the Appellate Division’s decision and order, reinstate the penalty of termination, and dismiss the petition. Respectfully submitted, Kathy Chang Park Assistant Corporation Counsel Richard Dearing of Counsel cc: Bryan Glass, Esq. Counsel for Petitioner-Respondent Amira Beatty 100 Church Street, 8th Floor New York, NY 10007 11 CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word 2010, and according to that software, it contains 3,137 words in the body of the submission. ______________________________ Kathy Chang Park