In the Matter of Amira Beatty, Respondent,v.City of New York, et al., Appellants.BriefN.Y.January 3, 2018New York County Index No 652103/14 To be argued by BRYAN D. GLASS 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 REPLY BRIEF GLASS KRAKOWER LLP Attorneys for Petitioner- Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 bglass@ghnylaw.com December 15, 2016 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS Page 1PRELIMINARY STATEMENT ARGUMENT THE COURT ERRED IN PENALTY OF THAT SUPREME CONFIRMING TERMINATION OF EMPLOYMENT. PENALTY IS DISPROPORTIONATE TO THE OFFENSE IN LIGHT OF MS. BEATTY'S PREVIOUSLY THE UNBLEMISHED LONG DEPARTMENT OF MITIGATING SERVICE TO THE EDUCATION, CIRCUMSTANCES THAT SURROUND THE EVENT, THE WEAKNESS OF EVIDENCE AGAINGST HER, THE LACK OF FINANCIAL HARM CAUSED TO THE DEPARTMENT, AND THE ABSENCE OF EFFECT ON HER ABILITY TO TEACH EFFECTIVELY THE 2 Ms. Beatty had an unblemished career before this incident A. 3 The evidence on which Hearing Officer relied relatively weak and circumstances of this case call for a lesser penalty the was the B. 3 Ms. Beatty's behavior caused no financial Department of Education C. theharm to 5 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. 6 Ms. Beatty's behavior had no effect on her ability to teach effectively E. 7 7CONCLUSION PRINTING SPECIFICATIONS STATEMENT 8 ii 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 REPLY BRIEF PRELIMINARY STATEMENT Petitioner-Appellant Amira Beatty submits this brief in reply to the brief submitted by respondents-respondents City of New York, its Department of Education, and the Chancellor of the Department. 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 SERVICE TO 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. UNBLEMISHED THE DEPARTMENT OF MITIGATING LONG THE Ms. Beatty has not denied that her time logs were She maintains, however, that her false paperworkinaccurate. was not intended to defraud the Department of Education. Her behavior took place in the unquestionably (both physically and psychologically) disruptive aftermath of Hurricane Sandy. That storm ejected both Ms. Beatty and Student A from their homes in Far Rockaway. Faced with the personal disruption and with facially ambiguous instructions from her supervisors, and with the desire of the parent that she remain her son's instructor (162-163), Ms. Beatty chose a course of conduct that, in hindsight, Viewed withis a violation of departmental rules. empathy and in context, Ms. Beatty acted under stress in a way that actually was benevolent. Although the Hearing Officer ascribed a fraudulent motive to Ms. Beatty, the circumstances (ifaround her behavior point at least to a good-faith misconceived) motive that does not support termination of her position as an appropriate penalty. 2 Ms. Beatty had an unblemished career before this incident.A. Ms. Beatty served as a special education teacher for seventeen years prior to the incident at issue without ever For seven of those years, shebeing formally disciplined (25). served in the honor-code discipline of the Home Instruction The Hearing Officer overtly took her long andProgram. admirable service into account and found it outweighed by the events of November and December of 2012. Beatty's service has passed byOne aspect of Ms. unnoticed. After seventeen uneventful years, she suddenly engaged in this alleged scheme of misconduct in the immediate aftermath of a "storm of the century" that disrupted her life The confusion caused by theand that of the City at large. Hurricane is the unavoidable context and cause of the conduct at The evidence points directly at good-faith decisions inissue. a time of stress, not to a sudden onset of larcenous intent The Hearingseventeen years into a career of public service. Officer's weighing of Ms. Beatty's long service resulted in a shockingly excessive penalty of termination of employment. The evidence on which the Hearing Officer relied was relatively weak and the circumstances of this case call for a lesser penalty. B. specialPerhaps misconstrued theBeattyMs. instructions that were in effect after the Hurricane. Those instructions were, however, uncertain enough to support a good- faith course of conduct by her. finding of good-faith conduct rather than deliberate fraud. The evidence plainly supports a 3 The supervisors instructed hometheProgram instructors "that no student was to penalized in any way for Sandy related problems." (118, 130, 207, 214). The open-ended and ambiguous nature of those instructions failed to provide any concrete guidance for conduct in the emergency. theIndeed, instructions can be read to urge on instructors a course of behavior that would serve the students and their families in Objectively, thepreference to rigid rule enforcement. emergency and the instructions weigh against a finding of Ms. Beatty was seeking to keep Student Adeliberate deceit. under her wing, while the post-Hurricane Sandy disruption was sorted out, not to deprive him of services. In addition, Ms. Beatty was not the only home instructor to interpret these ambiguous instructions the same way as Ms. Beatty did. Home Instructor Ms. Lucas also did not "penalize" students with post- , Hurricane Sandy absences and she was not served disciplinary charges as Ms. Beatty was. (529). Also, the students that Ms. Lucas served had access to technology, such as email, that Student A did not. While the Hearing Officer may have support in the record to find Ms. Beatty guilty of the charges, she has no evidentiary basis to find that her intent was to defraud the Department of Education or to harm Student A. The Department of Education argues that Ms. Beatty's conduct took place over a two-month period (Resp. Br. at 15-16, 18-19). That is true. It is also true that that two-month 4 period (a) is not so terribly long in the context of her seventeen-year career and (b) occurred in the direct aftermath of a great storm that disrupted lives and working routines. The two-month period is essentially one act, not very much different from the one-time slap in Riley v. City of New York, 84 AD3d 442 (1st Dept. 2011), against an otherwise unblemished career, which convinced this Court to vacate her penalty of termination. In the setting of the storm of the century, this episode does not justify the ultimate penalty of termination. C. Ms. Beatty's behavior caused no financial harm to the Department of Education. Ms. Beatty did not realize any unwarranted financial benefit that would support a finding of fraudulent intent. record supports a finding that the Department of Education paid to her only her full regular salary, nothing more. possible benefit to Ms. Beatty was a lighter caseload for a Objectively speaking, this The The only while, an increase in her leisure. benefit is a trifling gain compared to the benefits of a It is much more likely that Ms. Beattyseventeen year career. acted to keep Student A as one of her students (a good-faith, if ill-advised, motive) than that she was angling for some extra Indeed, in some of this leisure time, Ms. Beattyleisure time. did visit Student A at his home, hardly a leisurely pursuit. She also continued to service the three other students on her caseload during this time without any problems. The one student in question accounted for no more than 5 hours of a 35 hour workweek. However one weighs the misconduct here, a finding of 5 self-interested fraud does not fit the facts. Confusion about the emergency instructions, an intent to help Student A rather than to hurt him, and even some form of post-traumatic stress can all fit the facts of this case in a way that deceit does In the absence of deliberate deceit, the ultimate penaltynot. of termination is shockingly excessive. The Department of Education may have preferred to give Ms. Beatty another student in lieu of Student A. In retrospect, the Department perhaps suffered a financial burden in that The evidence, however, does not realistically support asense. finding that Ms. Beatty deliberately sought to impose this Her intent was not so malevolent.1penalty on the Department. 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. On this argument, Ms. Beatty relies on her brief in chief. In addition, the Department found that Student A did not receive services in January 2013. However, as per Student A's mother's testimony, her child did not receive another home instructor until March 2013. 1 It is noteworthy that a school principal of a Staten Island middle school, Linda Hill, was found guilty of double-dipping by getting paid for two per session activities at the same time over a period of three years, and only received an $800 fine from the Department and was not brought up on any charges for termination. In contrast, here, Petitioner-Appellant merely continued to receive her own salary for servicing her caseload of several different students. See also Bolt v. NYCDOE, 653285/14 (1st Dep’t, NYLJ 1202774195837 Decided December 6, 2016) (vacating termination of tenured teacher involving integrity of testing as too harsh as isolated instance in otherwise unblemished career). 6 E. Ms. Beatty's behavior had no effect on her ability to teach effectively. The Department of Education argues that Ms. Beatty is a likely recidivist (Resp. Br. at 16-18). To the contrary, Ms. Beatty is unlikely to engage in such misconduct again. She acknowledges the inadequacy of her record-keeping and recognizes the necessity of improving her performance in this regard. More generally, the events of Hurricane Sandy were so unique that they offer no useless basis for predicting future behavior. CONCLUSION FOR THE REASONS STATED, THE JUDGMENT ON APPEAL SHOULD BE REVERSED, WITH COSTS. Respectfully submitted, GLASS KRAKOWER LLP Attorneys for Petitioner-Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 bgSglasskrakower.com By: BRYAN D. GLASS, Esq. 7 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2013, using Courier New 12. Accordingto the aforementioned 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 1723 words. GLASS KRAKOWER LLP Attorneys for Petitioner-Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 bg@glasskrakower.com ABy: BRYAN D. GLASS 8