In the Matter of Amira Beatty, Respondent,v.City of New York, et al., Appellants.BriefN.Y.January 3, 2018£ Q/*/' <1263$ i c?- MtuGzs t To be argued by BRYAN D. GLASS New York County Index No 652103/14 NEW YORK SUPREME COURT APPELLATE DIVISION : FIRST DEPARTMENT In the Matter of the Application of AMIRA BEATTY, Petitioner-Appellant, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; and CARMEN FARINA, Chancellor of New York City Department of Education, Respondents-Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. APPELLANT'S BRIEF GLASS KRAKOWER LLP Attorneys for Petitioner- Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 bgSglasskrakower.com May 17, 2016 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS Page 1PRELIMINARY STATEMENT 2QUESTION PRESENTED 3STATEMENT OF FACTS 14JUDGMENT OF THE SUPREME COURT ARGUMENT THE SUPREME COURT CONFIRMING TERMINATION OF ERRED IN PENALTY OF EMPLOYMENT. THAT THE PENALTY IS DISPROPORTIONATE TO THE OFFENSE IN LIGHT OF MS. BEATTY'S PREVIOUSLY UNBLEMISHED SERVICE TO THE DEPARTMENT OF EDUCATION, CIRCUMSTANCES THAT SURROUND THE EVENT, THE WEAKNESS OF EVIDENCE AGAINST HER, THE LACK OF FINANCIAL HARM CAUSED TO THE DEPARTMENT, AND THE ABSENCE OF EFFECT ON HER ABILITY TO TEACH EFFECTIVELY LONG THE MITIGATING 14 Ms. Beatty had an unblemished career before this incident A. 16 The Hearing relatively circumstances of this case call for a lesser penalty evidence on which Officer relied weak and the was the B. 17 Ms. Beatty's behavior caused no financial Department of Education C. harm theto 21 Student A was unavailable for the entire month of November - almost half of the time that Ms. Beatty is accused of depriving him of services D. 22 Ms. Beatty's behavior had no effect on her ability to teach effectively E. 24 I ii 26CONCLUSION 27PRINTING SPECIFICATIONS STATEMENT 28STATEMENT PURSUANT TO CPLR 5519 | iii TABLE OF AUTHORITIES Statute: Education Law § 3020-a 15 Cases: Lackowv. Department of Education of the City of New York, 51 AD3d 563 (1st Dept. 2008) 15 Pell v. Board of Education of Union Free School District No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County 34 NY2d 222 (1974) 15 Riley v. City of New York, 84 AD3d 442 (1st. Dept. 2011) 16 Solis v. Department of Education of City of New York, 30 AD3d 532 (2d Dept. 2006) 16 Matter of Weinstein, 19 AD3d 165 (1st Dept. 2005) 15 iv I NEW YORK SUPREME COURT APPELLATE DIVISION : FIRST DEPARTMENT In the Matter of the Application of AMIRA BEATTY, Petitioner-Appellant, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; and CARMEN FARINA, Chancellor of New York City Department of Education, Respondents-Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. APPELLANT'S BRIEF PRELIMINARY STATEMENT In this Article 75 proceeding, petitioner-appellant Amira Beatty, a tenured special education teacher, challenges an arbitration award in a disciplinary hearing pursuant to Education Law § 3020-a. In that award, a hearing officer sustained four of five related disciplinary specifications against Ms. Beatty. The four specifications that the hearing officer sustained were, in essence, that on various dates from October 15, 2012, to December 19, 2012, Ms. Beatty submitted false or fraudulent daily logs and time sheets. The hearing officer held that as a result, the New York City Department of Education had just cause to terminate Ms. Beatty's employment. The Department did so terminate her tenured employment. Ms. Beatty commenced this proceeding in Supreme Court, New York County, against the City of New York, its Department of She sought to have the penalty reduced to a level below that of termination of employment. She argued that the hearing officer made illogical conclusions or failed to consider certain facts when determining Education, and the Chancellor of the Department. whether there was fraudulent intent. Moreover, Ms. Beatty contended that termination was particularly harsh and shocking to the conscience, given her seventeen years of service and lack of any prior discipline. In this appeal, Ms. Beatty seeks reversal of the judgment of the Supreme Court, New York County (Chan, J.), dated The Supreme Court confirmed the arbitration Ms. Beatty will demonstrate to this Court that the penalty of termination of employment is draconian July 15, 2015. award in all respects. and disproportionately severe, given her seventeen years of prior discipline-free service as a special education teacher and the dearth of evidence of her alleged fraudulent intent in submitting her time-keeping records. Put otherwise, the penalty of termination is shocking to the judicial conscience. QUESTION PRESENTED Did the Supreme Court err in confirming the penalty of termination of employment? 2 STATEMENT OF FACTS * Ms. Beatty's Career After earning her bachelor's degree from Medgar Evers College, Ms. Beatty began her professional career with the Department of Education ("DOE") in 1996 (175).1 From 1996 to she taught middle school special-education students at1999, Ocean Hill-Brownsville Secondary School in a self-contained classroom setting (175). Ms. Beatty spent the next several years in various teaching positions working with special- education students, and she also worked with the DOE's Second Opportunity Schools ("SOS") (175). At SOS, Ms. Beatty worked with suspended children who were considered to be the most dangerous in the City students who had one-year suspensions who could not return to their home schools until they were rehabilitated (175). In 2007, Ms. Beatty was assigned to work for the Home Instruction Program in Queens (175, 111). The Home Instruction Program provides instruction to children who are unable to attend school for either a short- or long-term period due to a medical condition (111-112). Students are referred to the program by hospitals, schools, and the Committee on Special Education (111-112). Ms. Beatty served District 75 as a Home Instruction teacher for six years (175). She was a tenured teacher (304) who had earned a satisfactory rating with no 1 Numbers in parentheses refer to pages in the Record on Appeal. 3 disciplinary issues since she began her career with the DOE in 1996 (25). Hurricane Sandy and its Aftermath In September 2012, Ms. Beatty was assigned to provide an eight-year-old boy with cerebralinstruction to Student A, At the time, Ms.palsy who lived in Far Rockaway, Queens (158). Beatty also provided instruction to two other students (115). On October 29, 2012, Hurricane Sandy hit New York City, causing In the immediate aftermath ofconsiderable damage (123). Hurricane Sandy, the Far Rockaway neighborhood, where Ms. Beatty and Student A both resided, was particularly hard-hit (123, 126). Both Ms. Beatty's home and student A's home were damaged (123). Student A's family home suffered extensive water damage and was uninhabitable (181). Moreover, there was no electricity in the Rockaway region until about the second week in December (208). Student A and his family were forced to relocate temporarily to a hotel in Brooklyn (123). Indeed, New York City schools were closed for a week following the Hurricane (125- 126). Likewise, in the days after the Hurricane, Ms. Beatty dealt with the damage to her home (181). The water destroyed everything from the ground to the mid-part of her home; she lost her car; and the home lost power, heat, and hot water (181). The day after the Hurricane, she called to check on the safety of the students assigned to her (181). She was not able to get in contact with all of them due to the chaos (181). Because 4 cellphone service was irregular, Ms. Beatty and her husband had to travel from Far Rockaway to Brooklyn just to place a call Even when she managed to connect a call, the Assistant Principal (AP) in place of her regular supervisor AP Daniel said that Teachers (181). who was MIA because of the stormRaydar were not to penalize their students and to work with the No other details were given since there was noparents. protocol to cover a disaster of this magnitude (181-182). Ms. Beatty visited Student A's home upon their return to Far The home was not safe due to moldRockaway in December (193). and there was no space or privacy to work due toconcerns, ongoing repair efforts (183). In January 2013, Student A's social worker informed Ms. Beatty's supervisor, Assistant Principal Raydar, that Student A had not received instruction from Ms. Beatty since the After confirming the information withHurricane (122-123). AP Raydar relayed it to Principal RamonaStudent A's mother, Pizarro, who reported the allegations to the Office of the Special Commissioner for Investigation ("SCI") ever contacted Mrs. Beatty to question her about her actions. (112). No one SCI conducted an investigation and reviewed Ms. Beatty's time¬ keeping records (86). AP Raydar also interviewed the parents of Ms. Beatty's two other assigned students, who told him that Ms. Beatty had provided instruction to them as scheduled (134). In a report dated March 29, 2013, SCI concluded that from October 15 to December 19, 2012, there were 24 days that 5 1 Ms. Beatty had recorded as providing instruction to Student A This is what she was(285-288).when she did not do so If a scheduleinstructed to do so as not to penalize a student. of the student cancelling or being unavailable were submitted, then the student would be penalized and removed from the roster after 5 cancellations. The only way to not penalize the student SCI also concluded that in Decemberwas to mark them present. 2012, Ms. Beatty did not report to schools and libraries as required when an assigned student is not available (287-288). What SCI neglected to take into consideration was that there were no schools or libraries open in Far Rockaway for over a While the rest of NYC schoolsmonth at least after the storm. opened a week after Super Storm Sandy, schools in Far Rockaway were being fixed due to immense water damage or used as The libraries on Far Rockaway did not open until theShelters. following year. Following SCI's investigation, DOE commenced disciplinary proceedings against Ms. Beatty alleging fraud, theft of services, misconduct, criminal conduct, neglect of duty, and conduct unbecoming her profession (53-54). These allegations arise solely from her timekeeping records with regard to Student A during the period following Hurricane Sandy from October through December 2012. It is undisputed that Ms. Beatty's seventeen-year career was otherwise untarnished. On or about January 14, 2013, Student A was assigned to Naomi Lucas, another home instructor servicing Queens (206- 210). Ms. Lucas testified that Student A's mother was constantly 6 kl cancelling instruction time with her son and that her excuses for not making Student A available often contradicted each other (209-210). Whereas Ms. Lucas was required to provide five hours of instruction per week to Student A, Ms. Lucas was usually able to provide only one to two hours of instruction per week between as a result of his mother's frequentJanuary and May of 2013, cancellations (209-212). j testified that in theAdditionally, Ms. Lucas immediate aftermath of Hurricane Sandy, she and all of her assigned students were displaced (206-207). When she was able to reach the Queens office to speak with her direct supervisor, she was told "[D]o not penalize the children because they're dispersed among wherever they've gone. Just keep in contact with the families. As long as you can make some sort of arrangements and it's understood with the families, it's fine. Do not mark them absent or punish them by saying they're not in school when they have no home to be in" (207). These were the same instructions that Ms. Beatty received and the same instructions Principal Ramona Pizarro testified her office gave to the Home Instruction Teachers. In fact, one of Ms. Lucas's students had relocated to Philadelphia, Pennsylvania, and did not return until mid- December (207). Ms. Lucas testified she maintained contact with that student's family and did not mark him absent or remove him from her roster, nor was she instructed to do so (207-208). Ms. at the same timeLucas's students returned in mid-December, \ 7 electricity was restored to Far Rockaway (208). Ms. Lucas was not penalized for not marking her students absent. The Disciplinary Specifications In 2013, the Department of Education issued five disciplinary specifications against Ms. Beatty (53-54). The -| third specification against her was ultimately dismissed and is The relevant specifications are asnot at issue in this appeal. follows: Specification 1: Respondent [Amira Beatty] submitted Daily Logs and Personnel Time reports containing false or fraudulent information to the Department stating that Respondent had worked and provided home instruction services to Student A when in fact, Respondent was not present and did not provide said instruction on [24 days between October 15, 2012, and December 19, 2012]. Specification 2: Respondent submitted Daily Logs and Personnel Time reports containing false or fraudulent information to the Department stating that a) Student A was absent, and b) As a result of Student A's absence, Respondent reported to various schools and/or libraries when in fact, the Respondent was not present at said schools and/or libraries on [12 days between December 3 and December 21, 2012]. Specification 4: As a result of Respondent's actions as stated in the above mentioned Specifications, October, November, and December of 2012, the Department issued Respondent her full salary for services she did not perform. during months ofthe Specification 5: As a result of Respondent's actions as stated in the above mentioned Specifications, Student A was deprived of 8 educational services he/she was entitled to receive. The Department classified the alleged behavior as "Conduct unbecoming Respondent's position, or conduct prejudicial to the good order, efficiency, or discipline of the service"; "criminal The Department"neglect of duty" (54).misconduct"; and asserted that the alleged behavior was "Just Cause for Termination" (54). The Disciplinary Hearing Pursuant to Education Law § 3020-a, Hearing Officer disciplinary hearing theFelice Busto conducted ona The hearing took place overspecifications against Ms. Beatty. four sessions between March and May of 2014 (52-53). The Hearing Officer received documentary evidence at Six witnesses testified: the principal andthe hearing. assistant principal of Home Instruction Schools during the relevant period; another Home Instruction Teacher in Queens at the time of the Hurricane; an SCI investigator; the mother of student A; and Ms. Beatty herself. Evidence Proffered by the Department of Education SCI's lead investigator in this matter,Matthew Martucci, 2012, Ms.testified that between October 15 and. December 19, Beatty provided time-keeping logs stating that she had provided instruction to Student A when she had not (86-88, 344-365). Mr. 9 r n Beatty did not report to aMartucci also testified that Ms. school or a library as required when an assigned student is not Student A's mother did not reportavailable (89-91, 305-343). the lack of instructional services from Ms. Beatty until on or Likewise, Principal Ramona2013 (112, 118).about January 4, Pizarro testified that AP Raydar did not receive, nor seemingly inquire into, the fact that Ms. Beatty did not submit her time¬ keeping records for November and December until January (118). Evidence Regarding Fraudulent Intent Ms. Beatty does not, and did not, deny that the time logs regarding her hours of instruction to student A were Ms. Beatty testified that it was herinaccurate (176, 181). practice to fill the logs out ahead of time, regardless of any That is, even if ascheduling change that might occur (263). session scheduled for 10 a.m. had to be moved to a later hour due to a medical appointment, she would not modify the time logs Despite this practice, Ms.to reflect the rescheduled session. Beatty made sure to provide her students with the instruction and time required (176, 181). In fact, of the 24 days described in Specification 1, These inaccuraciesthree occurred before Hurricane Sandy (58). were the result of medical appointments that Student A had to According to Student A's mother, Ms. Beatty did anattend (45). "excellent job" in providing instruction to him (169). 10 .V.... Evidence about Ms. Beatty's remuneration being independent of her reported daily logs Ms. Beatty received the same salary regardless of the number of students that she instructed each week (44). AP Raydar testified that, even if a home instruction teacher i-s not he or sheteaching a student during a particular time block, will receive compensation if he or she remains available for service (133). On direct examination, Ms. Beatty testified as follows (267-268): Just briefly in terms of your pay as a home instruction teacher, is your pay tied at all to whether or not kids are actually present for instruction? Q. No, it is not.A. Why do you say it is not?Q- A. As a full-time home instruction teacher, whether a child is absent, canceled, you're available for service. You're available, so you do not get docked, or there's any modification in your pay at all. Evidence about Ms. Beatty's continued fitness as a home instruction teacher whoAP Raydar and Student A's mother, testified against Ms. Beatty at her hearing, were nevertheless complimentary to her (9). Ms. stated that Ms. Beatty was a good teacher and did an excellent job up until the Hurricane 11 (9). If Ms. Beatty's employment had not been terminated, Ms. •I would want her to continue instructing her son (9). Moreover, AP Raydar testified that after discovering the problems with Student A, he spoke with the parents of Ms. Beatty's other students; they had no complaints (9). The Arbitration Award In an award dated June 30, 2014, the Hearing Officer sustained four disciplinary specifications and dismissed the She also foundremaining specification against Ms. Beatty (46). that the Department had just cause to terminate her employment (26-46). As to Specification 1, the Hearing Officer found that Ms. Beatty "submitted false and fraudulent documents stating that she was providing instruction to Student A on dates when She also found that Ms. Beatty "failed toshe was not" (44). report to schools and libraries as reflected on her daily logs on days that she marked Student A absent in December 2012," thus sustaining Specification 2 (33). As to Specification 3, the Hearing Officer dismissed it, finding that it was duplicative of the first two Specifications (45). With regard to Specification 4, the Hearing Officer found that Ms. Beatty "received a full salary despite the fact that she was not delivering seven hours of As to Specification 5, the Hearingdaily instruction" (44-45). 12 Officer found that as a result of Ms. Beatty's failure to provide Home Instruction, Student A was deprived of education services to which he was entitled (45). As to the penalty, the Hearing Officer found that the Department had just cause to terminate Ms. Beatty's employment She stated that by engaging in deception, Ms. Beatty(43-45). "destroyed the trust that is essential in a field-based program that depends on an honor system" (45). Commencement of this Proceeding By petition dated July 9, 2014, Ms. Beatty commenced this Article 75 proceeding in Supreme Court, New York County She argued that "the decision and penalty of(12-24). termination is particularly harsh, irrational and shocking to She also argued that "the decision isthe conscience" (14). arbitrary and capricious" (13). She asked the Court to vacate the Award and to "remand for no penalty or a lesser penalty" (24). By papers dated September 19, 2014, the Department, the Chancellor, and the City cross-moved to dismiss the proceeding for failure to state a cause of action (47-51). They also submitted the administrative record of the disciplinary hearing before the Hearing Officer (52-523). Ms. Beatty submitted an affirmation in opposition to the cross-motion and in further support of the petition (525- 13 I 531). The Department, the Chancellor, and the City, in turn, filed a reply affirmation, dated October 17, 2014, in further support of their cross-motion to dismiss the petition (533-541). JUDGMENT OF THE SUPREME COURT In a judgment dated July 15, 2015, the Supreme Court The(Chan, J.) dismissed the petition on the merits (6-11). Court held that "[Hearing Officer] Busto considered and analyzed the facts and circumstances as presented by both sides at the hearing, evaluated the witnesses' credibility, and made a reasoned decision based on the evidence" (11). ARGUMENT THE SUPREME COURT ERRED IN CONFIRMING THE PENALTY OF TERMINATION OF EMPLOYMENT. THAT PENALTY IS DISPROPORTIONATE TO THE OFFENSE IN LIGHT OF MS. BEATTY'S PREVIOUSLY UNBLEMISHED LONG SERVICE TO THE EDUCATION, CIRCUMSTANCES THAT SURROUND THE EVENT, THE WEAKNESS OF EVIDENCE AGAINST HER, THE LACK OF FINANCIAL HARM CAUSED TO THE DEPARTMENT, AND THE ABSENCE OF EFFECT ON HER ABILITY TO TEACH EFFECTIVELY. DEPARTMENT OF MITIGATINGTHE At the disciplinary hearing, the Hearing Officer found that the Department of Education had adequate grounds for terminating Ms. Beatty's employment. The Supreme Court including the penalty.confirmed arbitral award,the Termination, however, is a disproportionate penalty in light of 14 -ÿ This Court should orderall of the circumstances of this case. a reduced penalty that will enable Ms. Beatty to return to her previously unblemished teaching career, to the benefit of her future students, the Department, and herself. Courts have set forth the standards by which they Thisreview disciplinary penalties imposed by hearing officers. Court has stated that "[t]he standard for reviewing a penalty imposed after a hearing pursuant to Education Law § 3020-a is whether the punishment of dismissal was so disproportionate to the offense as to be shocking to the court's sense of fairness." 51Department of Education of the City of New York,Lackow v. AD3d 563, 568 (1st Dept. 2008). Other precedents refer to shock Matter of Weinstein, 19 AD3d 165of the judicial conscience. Relatedly, in Pell v. Board of Education of(1st Dept. 2005). 1 of Towns of Scarsdale andUnion Free School District No. 34 NY2d 222, 234 (1974), theMamaroneck, Westchester County, Court of Appeals stated that [A] result is shocking to one's sense of fairness if the disproportionate incompetence, individual, to the agency or institution or to the public generally visited or threatened by the derelictions of the individuals. sanction imposed is so misconduct,the failure or turpitude of the or to the harm or risk of harm to In the case at bar, a penalty less than termination is appropriate in light of Ms. Beatty's pristine work history, the circumstances of the case, the weak evidence used to establish the lack of financial harm caused to theher supposed fraud, 15 I Department, and the abundant evidence, cited by the Supreme Court, of her continued ability to teach effectively. Ms. Beatty had an unblemished career before this incident.A. Ms. Beatty's career is worth salvaging. a special education teacher for 17 years prior to the incident at issue without ever being formally disciplined (25). In reviewing penalties of termination of employment, She served as discipline-free careers ofcourts have relied on the long, In Riley v. City of Newteachers and other school employees. York, 84 AD3d 442 (1st Dept. 2011), this Court relied on a teacher's unblemished fifteen-year career in reducing a penalty In Solisof termination for an instance of corporal punishment. v. Department of Education of City of New York, 30 AD3d 532 (2d Dept. 2006), the Appellate Division relied on a teacher's "otherwise unblemished 12-year record as a teacher" in vacating a penalty of termination. Ms. Beatty's career with the Department of Education is similarly without blemish for nearly two decades and worthy of rescue. These precedents illustrate a reluctance to jettison Ms. Beatty'sunnecessarily a teacher of proven competence. record likewise calls for a resolution that allows her career to This would serve both her own interest and that ofgo forward. her future students. 16 I I The evidence on which the Hearing Officer relied was relatively weak and the circumstances of this case call for a lesser penalty. B. At her hearing, Ms. Beatty did not deny the charges in Specifications 1 and 2 (225, 229-230). The Supreme Court held that Ms. Beatty "acknowledged that it was a violation of her duties to indicate on her daily logs that she was at a location when she was not actually there, and that she had an obligation to accurately record her instruction activities" (8). While that admission was used to make out a charge of theft of service, or the grossly"stealing time" against her, concept This mischaracterizationmischaracterizes Ms. Beatty's actions. is particularly evident given that the allegations arose in the midst of an incredibly tumultuous and chaotic time following the In the aftermath of the devastation,Hurricane Sandy tragedy. Home Instruction teachers were told not to penalize students by marking them absent amid confusion as to how to treat displaced students. In her testimony, Principal Pizarro stated that a directive was issued to all home instruction teachers, via their supervisors, not to penalize any students for absences due to Hurricane Sandy (118): Q. Wasn't it the case that administrators informed teachers that no student was to penalized [sic] in any way for Sandy related problems? A. Yes. [-.] Q. And did you ever meet with, let's say Mr. Raydar to discuss what if anything he precisely said to teachers about how they 17 were to interpret that directive, not to have kids penalized for Sandy absences? A. I don't recall. Q. You did look into the other children and the services they were entitled to receive that were on Ms. Beatty's register once this came to light; am I right? A. Yes. Q. And am I also right- A. I directed Mr. Raydar to check. Q. And he reported to you there was no other concern voiced by any parent? A. No. Q. Correct? A. Correct. Q. In fact, isn't it the case that in your two to three years as Home Instruction Principal you have not had, other than this matter, a complaint from anybody about Ms. Beatty's performance? A. No, I have never. AP Raydar confirmed this directive and the general turmoil and confusion surrounding the Home Instruction program due to Hurricane Sandy during his testimony: Q. And is it true that Principal Pizarro had made it clear that no child in Home Instruction was to be penalized in any way for any sort of fallout affecting that child's family as a result of Sandy? A. Yeah. Q. And I know you've testified, and tell me if it's fair to say that there was already an awareness with the population you serve that here are times when emergencies come up and things happen and schedules shift because of medical needs and something else? That's fair to say? A. Yes, that's fair. Q. And Sandy was just a more extreme perhaps example of the things that might come up that affect the Home Instruction population; is that fair to say? A. In the areas that was [sic] affected, yes. (130) 18 another home instruction teacher,Ms. Lucas, corroborated Ms. Beatty's testimony that home instruction teachers were told not to penalize their students, nor change their paperwork, and that many children were displaced until mid-December (207, 214). Like Ms. Beatty, Ms. Lucas followed the directive from AP Raydar, but she was not penalized for doing so. Moreover, Ms. Lucas's testimony that her instruction was cut i short as a result of the frequent cancellations by Student A's mother undermines Speculation 5; Student A's loss of instruction was the result of his mother's actions and natural events, not Ms. Beatty (208-212). Ms. Beatty readily admitted that her paperwork was inaccurate (176, 181): My paperwork is garbage. [AP Daniel Raydar] knows where I am all the time. He can call me on my cell phone, whatever, whatever. In normal circumstances, Danny and I have a relationship where no communication is good communication, 'cause he knows I do my job. Beatty was accused of submitting 24 false andIn sum, Ms. fraudulent daily time entries from October 15 to December 19, Three of those false entries, from October 15 through 22,2012. took place before Hurricane Sandy struck. With respect to those pre-Sandy misreports, the Hearing Officer, herself, negates any fraud on the part of Ms. Beatty (45): With respect to the issue of Respondent's not providing services on Mondays and Fridays before the hurricane when Student A cal appointments, I credit Ms. testimony that Respondent did not 19 provide instruction on these dates. There was also documentation from the hospital that Student A had medical appointments on October 15, 19 and 22, and November 2, 2012. Stated otherwise, the Hearing Officer found those dates to be false, but not fraudulent. A similar logic can be expanded to The Hearing Officer insteadthe remaining dates as well. decided to question Ms. Beatty'"s credibility, and thus find her culpable of acting with fraudulent intent. With respect to the misreported time entries following Hurricane Sandy, Ms. Beatty committed misconduct in filling them out incorrectly with respect to Student A. However, the context of his displacement and the great chaos that took place for all Home Instruction teachers based in Far Rockaway during that time The Hearing Officer correctlymust be taken into account. observed that the charge of theft of time is a serious offense Any fraudulent intent on the part of Ms. Beatty cannot be(45). Thatinferred from any adequate evidence in the Record. inference is made all the weaker by the fact that Ms. Beatty did not benefit financially from the misreported daily logs, and was The punishmentfollowing a directive given by her supervisor. of termination was wholly disproportionate to what the evidence shows Ms. Beatty actually did in this case. This Court should factor the circumstances into a decision that the penalty here Beatty'sdisproportionate to the moral, quality of Ms.was behavior. 20 C. Ms. Beatty's behavior caused no financial harm to the Department of Education. As has just been discussed, there was no financial self-interest motivating Ms. Beatty's behavior. She acted out of habit and what she thought was best practices in her provision of home instruction to students in Far Rockaway following Hurricane Sandy. The Hearing Officer, herself, while addressing the subject of Ms. Beatty's financial gain, admits that according to the remuneration scheme for Home Instruction teachers, Ms. Beatty's salary did not depend on her reporting instruction to Student A (44): Teachers are not penalized or "docked" pay when students cancel or are transferred out of the program. All that mattered to the Department of Education, as noted by the Hearing Officer in her decision, was that she delivered seven hours of daily instruction (44-45). Ms. Beatty had no financial incentive to intentionally misreport time spent with Student A during his displacement to Brooklyn. The Hearing Officer goes on to describe how she thought Ms. Beatty did benefit financially from her misreporting, a description that manifests her misunderstanding of the salary structure for Home Instructors in the Department of Education (44-45): Between October and December 2012 she [Ms. Beatty] received full salary despite the fact that she was not delivering seven hours of daily instruction. 21 This finding is false and not supported by adequate evidence. As confirmed by the Hearing Officer's own statements, Ms. Beatty received the same salary regardless of the number of students that she instructed each week, so long as she delivered seven hours of daily instruction or remained available for service during those hours (44). Importantly, whether or not a Home Instruction teacher provides instruction to a child, there is no modification in one's pay at all (44). Moreover, as stated by the Supreme Court, even Ms. Beatty's supervisor, AP Raydar, confirmed that Ms. Beatty had been providing regular instruction to her other students during the relevant time period (9): After discovering the problems with student A, he spoke with the parents of petitioner's other students and they had no complaints. Ms. Beatty's misreporting was not motivated by any financial benefit to herself. It caused no financial harm to the Department of Education. This Court should weigh the financial realities of Ms. Beatty's actions, as well as what they reveal about her lack of fraudulent intentions as a factor calling for a reduction of penalty. D. Student A was unavailable for the entire month of November - almost half of the time that Ms. Beatty is accused of depriving him of services. The final specification alleges that Ms. Beatty deprived Student A of services to which he was entitled from the time of Hurricane Sandy, which occurred at the end of October 22 until the end of December. The record shows that Student A was unavailable for any kind of home instruction during the entire month of November, nearly half of the time that Ms. Beatty has been found to have deprived him of services. First, as discussed above, in the immediate aftermath of Hurricane Sandy, the Far Rockaway neighborhood, where Ms. Beatty and Student A both resided, was particularly hard-hit (123, 126). Student A and his family were forced to relocate to a hotel in Brooklyn (123). Ms. Beatty was a home instruction provider in Queens; she could not travel out of Queens to provide instruction. Second, both Ms. Beatty's home and Student A's home were extensively damaged Student A's family home(123). suffered extensive water damage and was uninhabitable (181). Student A's home was unfit for home instruction even after his family was able to return from their sojourn in Brooklyn (164). Ms. Beatty cannot, from any reasonable or conscionable standard, be held accountable for the deprivation suffered by Student A during the time that he was unavailable for home instruction by force majeure beyond her control. The realities faced by both parties in the horrific aftermath of Hurricane Sandy cannot be ignored and must be accounted for in calculating an appropriate punishment for Ms. Beatty's conduct. 23 E. Ms. Beatty's behavior had no effect on her ability to teach effectively. The Hearing Officer, in finding termination of employment to be an appropriate penalty in these circumstances, nevertheless conceded that Ms. Beatty (45-46): [H]ad no prior discipline in her 17 years with the Department, was well-respected, and that she too was impacted by the terrible effects of the hurricane. It is therefore difficult to see how the Hearing Officer found Beatty's behavior rendered her unfit for furtherthat Ms. Those reasons have no basis in logicemployment as a teacher. or adequate evidence. In fact, as noted by the Supreme Court, would like for Ms.even Student A's mother, Beatty to continue to provide home instruction to her special- needs son (9): _ thought petitioner was a good teacher and did an excellent job up until the hurricane. If petitioner's employment had not been terminated, she would want her to continue instructing her son. [Ms. The Department of Education portrays Ms. Beatty's Thebehavior as immoral and deceiving to her employer (539). Department has discretion in defining the level of trust Thenecessary for its continued employment of a teacher. Department, however, abuses that discretion by arguing that this one incident (taking place in extremely rare and chaotic circumstances and causing no financial harm) is an unforgiveable i j 24 —»<— act rendering her unfit for employment as a teacher. Such a hard-hearted, hard-headed, and arbitrary stance must surely be This one act does notsubject to effective judicial review. The likelihood of hermake her an incorrigible reprobate. repeating any behavior of this sort is small by any reasonable objective measure. In its discussion of penalty, the Department of Education placed heavy weight on Ms. Beatty continuing "to blame everyone but herself, [failing] to recognize how her conduct adversely affected a vulnerable student" (539). That reason amounts to punishing her for asserting her due process rights. Ms. Beatty took responsibility for her misreporting her time at the hearing. She explained that, during a very there was confusion as to how to report hometumultuous time, instruction without penalizing displaced students. She does not deny any wrongdoing, but contends that the granite-faced position argued by the Department of Education and accepted by the Hearing Officer and the Supreme Court should shock this Court's conscience and sense of fairness. 25 CONCLUSIONl FOR THE REASONS STATED, THE JUDGMENT ON APPEAL SHOULD BE REVERSED, WITH COSTS. Respectfully submitted, v GLASS KRAKOWER LLP Attorneys for Petitioner-Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 bg@glasskrakower.com By: BRYAN D. GLASS, Esq. 26 * : PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2010, According to the aforementionedusing Courier New 12. processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(i), contains 6,240 words. GLASS KRAKOWER LLP Attorneys for Petitioner-Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 bg@glasskrakower.com By: / BRYAN D. GLASS 27 NEW YORK SUPREME COURT APPELLATE DIVISION : FIRST DEPARTMENT In the Matter of the Application of AMIRA BEATTY, Petitioner-Appellant, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; and CARMEN FARINA, Chancellor of New York City Department of Education, Respondents-Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. STATEMENT PURSUANT TO CPLR 5531 1. The index number of this proceeding in the Supreme Court is 652103/14. 2. There have been no changes in the parties. This proceeding was commenced in Supreme Court,3. New York County. This proceeding was commenced by service of a petition on or about July 9, 2014. 4. On or about September 19, 2014, respondents cross-moved to dismiss the petition. 5. In this proceeding, petitioner challenges administrative determinations implemented by respondents after a hearing officer's award. 6. This appeal is taken from a judgment of the Supreme Court, New York County (Chan, M.), dated July 15, 2015. 28 i full7. This appeal is being prosecuted on a reproduced record. I 29