In the Matter of Terrell Williams, Respondent,v.City of New York, et al., Appellants.BriefN.Y.January 3, 2018O ZZ'-i IS To be argued by BRYAN D. GLASS New York County Index No. 653954/13 NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of TERRELL WILLIAMS, Petitioner-Appellant, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; and DENNIS WALCOTT, 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 bg@glasskrakower.com August 5, 2015 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS Page iiiTABLE OF AUTHORITIES PRELIMINARY STATEMENT 1 2QUESTION PRESENTED 2STATEMENT OF FACTS 10JUDGMENT OF THE SUPREME COURT ARGUMENT THE PENALTY EMPLOYMENT OF TERMINATION OF SHOCKINGLY DISPROPORTIONATE TO MR. WILLIAMS'S MISCONDUCT. CAREER DISCIPLINE. NOT EGREGIOUS AND HAD NO APPARENT ILL EFFECTS ON THE INVOLVED STUDENTS. CASTIGATION OF MR. MORALLY UNFIT TO TEACH IS SUPPORTED BY THE MISCONDUCT AT THE PRINCIPLES OF PROGRESSIVE DISCIPLINE REQUIRES THAT A LESSER PENALTY BE IMPOSED. IS HE HAS HAD A LENGTHY WITH NO HISTORY OF THE MISCONDUCT WAS THE HEARING OFFICER'S WILLIAMS AS NOT ISSUE. 10 Mr. Williams had an unblemished career before this incident A. 12 The incidents at issue were not egregious and had no apparent ill effects on the students at issue B. 13 The Hearing Officer's moral condemnation of Mr. Williams is out of proportion to his found misconduct C. 15 Termination of Mr. employment would principle discipline. Williams's violate the progressive D. of 20 i CONCLUSION 22 PRINTING SPECIFICATIONS STATEMENT 22 STATEMENT PURSUANT TO CPLR 5531 23 ii TABLE OF AUTHORITIES Statutes: 11, 20Education Law § 3020-a Civil Practice Law and Rules 7511 11 Cases: Matter of Binghamton City School District (Peacock), 1733 AD3d 1074 (3d Dept. 2007) Camacho v. City of New York, 106 AD3d 574 (l51 Dept. 2013) 14 Diefenthaler v. Klein, 27 AD3d 347 (1st Dept. 2006) 12 Haas v. New York City Department of Education, 106 AD3d 620 (1st Dept. 2013) 14 Lackow v. Department of Education of the City of New York, 51 AD3d 563 (1st Dept. 2008) 12 Motor Vehicle Manufacturers Assoc, v. State, 75 NY2d 175 (1990) 11,12 Polayes v. New York City Department of Education, 2014 NY Slip Op 03958 (1*L Dep't 2014) 16,22 Principe v. New York City Department of Education, 94 AD3d 431 (15L Dept. 2012), aff'd, 20 NY3d 963 (2012) ... 13 Riley v. City of New York, 84 AD3d 442 (1st Dept. 2011) 13,18 Saunders v. Rockland Board of Cooperative Educational Services, 62 AD3d 1012 (2d Dept. 2009) 12 Solis v. Department of Education of City of New York, 30 AD3d 532 (2d Dept. 2006) 13 Matter of Weinstein, 19 AD3d 165 (1st Dept. 2005) 12 iii NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of TERRELL WILLIAMS, Petitioner-Appellant, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; and DENNIS WALCOTT, 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 Terrell Williams challenges the termination of his employment as a tenured physical education teacher in the New York City public Respondent-respondent New York City Department ofschools. Education terminated his employment after mandatorya arbitration hearing pursuant to Education Law § 3020-a. The Hearing Officer sustained disciplinary specifications alleging that Mr. Williams engaged in inappropriate conversations with his eighth grade female students. In these conversations, Mr. Williams was found to have asked some students about their older sisters. The Hearing Officer dismissed some specifications, found Mr. Williams guilty of others, and found that the Department of Education had just cause to terminate his employment after many years of competent and discipline-free service. Mr. Williams commenced this Article 75 proceeding to challenge the award of the Hearing Officer. In a judgment dated July 14, 2014, the Supreme Court, New York County (Nervo, J.), denied the petition and granted the motion of the Department of Education to dismiss the proceeding. Mr. Williams now appeals from that judgment, asking this Court to hold that the penalty of termination of employment is shockingly excessive and disproportionate to any reasonable sense of fairness. QUESTION PRESENTED Did the Supreme Court err in finding that the penalty of termination of employment was not shockingly excessive? STATEMENT OF FACTS Ms. Williams 1 s Teaching Career Mr. Williams is a tenured teacher who became a New lYork City public school teacher in 2000 (71, 297 363). From approximately September of 2010 until October of 2012, he served as a physical education and health teacher at Public School/Middle School 282 in the Park Slope neighborhood of Brooklyn (71, 363). In October 2012, the Department of I Unless otherwise indicated, pages in the Record on Appeal. numbers in parentheses indicate 2 Education removed Mr. Williams from PS/MS 282 and placed him in the Absent Teacher Reserve pool (71). Until the incident at issue, Mr. Williams had no record of disciplinary action for misconduct in his career (71, 288). The Disciplinary Charges In 2012, the Department of Education lodged disciplinary charges in twelve specifications against Mr. Williams (69-70). The Department alleged that Mr. Williams "engaged in misconduct, conduct unbecoming his position, harassment and neglect of duties" (69). Ultimately, specifications 1, 2(a), 2(b), 2(c), 4, 5(b), 7, 9(a), 9(c), and 10 were sustained. This statement of facts will describe only those specifications, omitting those that were ultimately dismissed. The first specification alleged that "[d]uring the 2011-2012 school year, [Mr. Williams] repeatedly engaged in inappropriate conversations with female students" (69). The specification set forth no specific factual allegations. The second specification alleged that "[o]n or about and between January 3, 2012 and May 9, 2012, [Mr. Williams] asked and/or said to Student A words to the effect of: a) Do you have an older sister?; b) How old?; and c) She got a boyfriend?" (69) The fourth specification alleged that during the same time frame, Mr. Williams "received and accepted from Student A the phone number of Student A's sister" (69). The fifth specification alleged that "[o]n or about and between January 3, 3 2012 and April 27, 2012, Mr. Williams "[s]tated in sum and substance that he wanted to meet Student A's sister" (69). Specification 7 alleged that "[d]uring the 2011-2012 school year, [Mr. Williams] repeatedly asked students for photographs of their sisters" (70). The specification set forth no specific factual allegations. Specification 9 alleged that during the 2011-2012 school year, Mr. Williams "asked Student C in sum and substance: a) [ajbout Student C's sister [and] c) [t]he age of Student C's sister" (70). Specification 10 alleged that during the same time frame, Mr. Williams "told Student C words to the effect that Student C's mother had called him handsome" (70). The Disciplinary Hearing Pursuant to Education Law § 3020-a, Hearing Officer Lisa Brogan conducted a hearing on the disciplinary charges on seven days between April 9 and June 4 of 2013. Upon information and belief, Ms. Brogan was a new arbitrator recently appointed to the UFT-DOE disciplinary panel, and Mr. Williams had no input in her selection. Thirteen witnesses gave testimony: eight for the including five students,Department, schooltwo administrators, an investigator for the Department of Education, and a community associate. Mr. Williams, and three other teachers (including two gym teachers) who still worked at the school at the time they testified, appeared and testified on Mr. Williams' behalf. Documentary evidence was also received. 4 Evidence About Mr. Williams's Interaction with Student TC TC testified that she was an eighth-grade student at PS/MS 282 in the 2011-2012 school year (163). In the formal disciplinary charges, specifications 2 through 5 referred to TC as Student A. Mr. Williams was one of her gym teachers (163). At one point in that school year, Mr. Williams allegedly asked if so, whether herTC whether she had an older sister and, sister was cute and in a relationship (164). TC replied that she did have a cute older sister who had a fiance (164). TC testified that Mr. Williams asked her more than once for her sister's telephone number (164). She stated she obtained her sister's phone number and gave it to Mr. Williams (164). TC also had told the investigators initially that her older sister told her Mr. Williams texted her, but the older sister in the same investigative report denied that Mr. Williams ever contacted or texted her (374-375), casting into doubt TC's credibility. Fellow students JH, SB, TJ, and KN testified that Mr. Williams did ask TC about her older sister (138, 107, 102, 113). Mr. Williams testified that TC was a well-behaved student in his gym class in 2011-2012 (300). Starting in February or March of 2012, TC asked him approximately twenty times whether he would like to see a photograph of her older sister and whether he would like to socialize with her (302, 304-305, 315-316). He brushed those inquiries off without reporting them to his, principal (305, 316). TC eventually gave 5 him a piece of paper on which her sister's telephone number was written (305, 316). This act by TC shocked him (305). He explained that he never asked TC for her sister's telephone number (316). TC's mother eventually came to school, expressed her displeasure at his asking for her elder daughter's telephone and reported her displeasure to the school's principalnumber, (305). Also received into evidence was a report of an investigator for the Office of Special Investigations for the Department of Education (372-377). Dated August 6, 2012, that report chronicles the investigation of the interaction between Mr. Williams and TC (372-374, 376). Evidence About Mr. Williams's Interaction with Student JH JH testified that she was an eighth-grade student at PS/MS 282 in the 2011-2012 school year (137). In the formal disciplinary charges, specifications 9 and 10 referred to JH as Mr. Williams was her gym teacher (137).Student C. JH testified that at one point in that school year, Mr. Williams asked her whether she had an older sister and, if so, how old her sister was (137). JH replied that she did have an older sister who was in college (137). JH further testified that Mr. Williams stated in open class that JH's mother had called him "handsome" (137). Mr. Williams's statement made JH feel "aggravated" (138). When JH asked her mother about the remark, her mother stated that she would not even recognize Mr. Williams on the street (138). 6 Fellow students SB and TJ testified that Mr. Williams did ask JH about her older sister (108, 113). Mr. Williams testified that when he encountered her on the subway, JH's mother addressed him as "handsome" (302, 306). In March or April of 2012, JH stated in class that her mother was still awaiting an answer from Mr. Williams (306). Other girls in the class joked about JH's statement (306). Also received into evidence was a report of an investigator for the Office of Special Investigations for the Department of Education Dated August 6, 2012, that report chronicles the(372-377). investigation of the interaction between Mr. Williams and JH (375). Other Testimony Mr. Williams testified that there was "down time" (relatively unorganized time) at the start and the end of his gym classes (295, 301). During such down time, he often engaged in banter with his students (295-296, 301). His students often asked whether he wanted to see photographs of their mothers, aunts, and older sisters (298, 301). Although he brushed off such inquiries, the students would continue to ask him (298). He believed that while some students were serious, some were joking (299, 302). When asked what he would do differently at the disciplinary hearing, Mr. Williams testified that he would eliminate down time and would report all such matchmaking banter to his principal (309-310). 7 Kyle Plant testified that he too was a gym teacher at PS/MS 282 (221-277). He testified that his eighth-grade female students often made such matchmaking inquiries to him as they did to Mr. Williams. Nick Ficken also testified that he too was a gym teacher at the school and that he never heard of any issues between Mr. Williams and the students (170-187). Samuel Smith, a drama teacher at the school, also testified for Mr. Williams (202-219). He testified that he saw T.A. give Mr. Williams a piece of paper with a number on it and said her sister wanted him to have it,that T.A. and that Mr. Williams did not ask for it (203). The Hearing Officer's Award In an award dated October 29, 2013, the Hearing Officer sustained specifications 1, 2(a), 2(b), 2(c), 4, 5(b), 7, 9(a), 9(c), and 10, those for which the evidence was discussed above (68-91). The other disciplinary charges were The Hearing Officer did not credit Mr. Williams'sdismissed. testimony that the students initiated the matchmaking inquiries Neither did she credit the testimony of Mr.at issue (79, 84). Plant regarding similar incidents that had happened to him (83- 84). She found the testimony of the students reliable (79). She found that Mr. Williams initiated the conversations for inappropriate reasons (79). As to penalty, the Hearing Officer found the misconduct at issue to be "unconscionable" and an abuse of his 8 position (89). She emphasized that Mr. Williams did not recognize the seriousness of his misconduct and did not demonstrate remorse (89-90), and brazenly concluded that based on "his faulty moral judgment", Mr. Williams was incapable of modeling appropriate behavior for his students (90). The Hearing Officer concluded that, despite Mr. Williams's years of discipline-free service, his employment with the Department of Education "is terminated” (91). It is this draconian and disproportionate assessment of penalty that Mr. Williams challenges in this proceeding. Commencement of this Proceeding By petition dated November 14, 2013, Mr. Williams commenced this Article 75 proceeding in Supreme Court, New York County (15-30). He argued that some of the findings of guilt were not supported by adequate evidence and that some findings did not describe misconduct at all (23-24). He further argued in light of his many years of honorable discipline-freethat, service and of the lack of harm caused by the actions at issue, the penalty of termination was shockingly excessive (21-22, 25, 27-28). By cross-motion dated January 8, 2014, the Department of Education asked the Supreme Court to dismiss the petition for failure to state a cause of action (57-62, 427-450). Mr. Williams opposed the cross-motion with an affirmation of counsel, dated January 24, 2014 (452-459). 9 JUDGMENT OF THE SUPREME COURT By judgment dated July 14, 2014, the Supreme Court (Nervo, J.) granted the cross-motion, denied the petition, and dismissed the proceeding (9-12). The Court found no basis to disturb the findings of guilt (11-12). The Court further stated that "[g]iven the nature of the charges that were sustained, and petitioner's lack of contrition, even on this proceeding, the penalty of termination does not shock one's sense of fairness, despite petitioner's previous unblemished record" (12). ARGUMENT THE PENALTY OF TERMINATION OF SHOCKINGLY DISPROPORTIONATE TO MR. WILLIAMS'S MISCONDUCT. CAREER DISCIPLINE. ISEMPLOYMENT HE HAS HAD A LENGTHY WITH NO HISTORY OF THE MISCONDUCT WAS NOT EGREGIOUS AND HAD NO APPARENT ILL EFFECTS ON THE INVOLVED THE HEARING OFFICER'S OF MR. WILLIAMS AS UNFIT TO TEACH IS NOT BY THE MISCONDUCT AT THE PRINCIPLES OF DISCIPLINE REQUIRES THAT A LESSER PENALTY BE IMPOSED. STUDENTS. CASTIGATION MORALLY SUPPORTED ISSUE. PROGRESSIVE The Hearing Officer found that, despite his assertion of innocence, Mr. Williams had inappropriately inquired about his students' relatives. Even if believed, this Court should find it shocking that the Department of Education would end the career of a good teacher because of harmless banter with students that is unlikely ever to recur. This Court should 10 vacate the Hearing Officer's draconian penalty of termination, thus allowing the continuation of a career to the benefit of both Mr. Williams and his future students. Pursuant to Education Law § 3020-a, disciplinary charges against a tenured teacher are referred to arbitration before a hearing officer appointed for resolution to a disciplinary panel selected by the NYCDOE and UFT. The hearing officer makes factual findings as to guilt on each specification and assesses a penalty that the Department must implement. Subsection (5) of thatEducation Law § 3020-a(4)(a) and (b). statute provides that either party can challenge a hearing officer's award by a proceeding under Article 75 of the CPLR. Pursuant to the literal text of CPLR 7511(b), a court may vacate a hearing officer's award upon finding that the rights of a party were prejudiced by misconduct, arbitral partiality, an imperfect or excessive exercise of arbitral power, or failure to follow the procedures mandated by Article 75. (like Education Law § 3020-a)In cases where a statute requires arbitration of labor and employment disputes, courts have read additional heightened standards of judicial review into CPLR 7511. An award that results from compulsory arbitration must also "be in accord with due process[, be] supported by adequate evidence in the record [,] be rational[,] and satisfy the arbitrary and capricious standards of CPLR article 78 ... ." Motor Vehicle Manufacturers Assoc, v. State, 75 11 NY2d 175, 186 (1990); Lackow v. Department of Education of the City of New York, 51 AD3d 563, 567 (1st Dept. 2008). Courts have set forth the standards by which they review disciplinary penalties imposed by hearing officers. This 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 . ." Lackow, 51 AD3d at 569. Other precedents refer to shock Diefenthaler v. Klein, 27 AD3d 347,of the judicial conscience. 348 {1st Dept. 2006) (Article 78 case); Matter of Weinstein, 19 AD3d 165 (1st Dept. 2005) (Article 75 case). Other precedents categorize such a disproportionate penalty as an abuse of Diefenthaler, 27 AD3d at 349discretion as a matter of law. (Article 78 case); Saunders v. Rockland Board of Cooperative Educational Services, 62 AD3d 1012 (2d Dept. 2009) (Article 75 However phrased, the standard of judicial reviewcase). requires the vacating of a hearing officer's award that imposes a disproportionate penalty. Mr. Williams had an unblemished career before this incident. A. Mr. Williams' career is worth salvaging. He taught for approximately fourteen years prior to the present charges without ever being formally disciplined. In the small community of PS/MS 282, Mr. Williams was a productive, law-abiding presence. 12 In Principe v. New York City Department of Education, 94 AD3d 431, 433 (1st Dept. 2012), aff'd, 20 NY3d 963 (2012), this Court credited the teacher's "spotless record as a teacher for five years" in affirming a reduction of penalty to less than termination of employment for two instances of corporal In Solis v. Department of Education of City of Newpunishment. 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. In Riley v. City of New York, 84 AD3d 442 (1st Dept. 2011), this Court cited a teacher's fifteen-year without any discipline incareer affirming a reduction of penalty to less than termination of employment for one instance of corporal punishment, even though she showed no remorse for what she was accused of. These precedents illustrate a reluctance to jettison unnecessarily a tenured teacher of proven competence. Mr. Williams' teaching record likewise calls for a resolution that allows his career to go forward. This would serve both his own interest and that of the children he can teach in the future. The incidents at issue were not egregious and had no apparent ill effects on the students at issue. B. While verbal discussions with students of an inappropriate nature are a serious matter, under the particular circumstances of this case, even if believed, a minor lapse in judgment should not bring an end to Mr. Williams's teaching career. 13 The misconduct at issue here does not justify the termination of Mr. Williams's employment. There is no evidence that he sought or attained any intimate connection with any of There is no evidence that he made any contacthis students. The students mostly jokedwith older relatives of his students. among themselves about this banter without manifesting any distress. There are degrees of misconduct. Mr. Williams's case is quite different from recent precedents in which this Court upheld termination of employment. In Haas v. New York City Department of Education, 106 AD3d 620 {1st Dept. 2013), a teacher was found guilty of "pulling a chair out from underneath a kindergarten student [with special needs] and then kicking the student while he was on the floor The teacher also "directed the [kindergarten] students who witnessed the incident not to discuss what they had observed." Mr. Williams did not engage in the sort of ill-tempered cruelty that was found to have occurred in Haas. Similarly distinguishable is Camacho v. City of New York, 106 AD3d 574 (1st Dept. 2013). The teacher in Camacho was found guilty of verbal abuse of students, in that she "was unable to control her emotional outbursts, which resulted in her targeting special education students for insult and ridicule." Also, "[u]pon settlement of prior disciplinary charges, [she], 14 on the advice of counsel, entered into a stipulation with the if she were to be found guiltyDOE wherein she agreed that, after a hearing of verbally abusing students, she would be terminated." In contrast, the case at bar involves the first disciplinary charges against Mr. Williams. He also did not verbally abuse special education students. Mr. Williams's found misconduct is in no manner similar in degree to that in Camacho. There is no reason to believe that the conduct at issue will happen again, particularly now that Mr. Williams has endured this lengthy, arduous, and emotionally draining legal The upshot of this matter is that Mr. Williams hasprocedure. suffered far more than anyone else in the scenario. The penalty of termination of employment exceeds any penalty that is necessary and is appropriate. The Hearing Officer's moral condemnation of Mr. Williams is completely out of proportion to his found misconduct. C. The Hearing Officer inferred from the proof at the hearing that Mr. Williams was a morbidly-dismal human being (89- 91). In four remarkable paragraphs, she set forth a self-doubt- free condemnation of Mr. Williams as an incorrigible pedagogical reprobate, despite his devotion to his family and young children. The Hearing Officer's outrage is disproportionate to the found misconduct in this matter. The first paragraph puts Mr. Williams beyond the pale at the start of the analysis of penalty (89): 15 Respondent has been found guilty of making inappropriate inquiries of his female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher. To call his 8th grade disturbing It is unconscionable. isbehavior understatement. is miles beyond any appropriate boundary between teacher and student. an It It is an abuse of his position and authority. Moreover, a teacher is entrusted to help inculcate proper values and behavior into the students in their charge. Respondent's apparent lack of a moral compass renders him incapable of performing that essential function of a teacher. Having rejected Mr. Williams's account of these discussions, the Hearing Officer can rely only on the brief testimony of the students, all who were close friends of each other. That testimony does not identify the "personal agenda having nothing to do with school or his responsibilities as a teacher." The Hearing Officer brazenly infers that Mr. Williams was soliciting an adulterous sexual liaison with his students' older relatives. The evidence equally supports an inference that Mr. Williams was merely bantering or joking around, which is not misconduct by itself, as found by this Court in other cases. See, e.q., NYCDOE, 2014 NY Slip Op 03958 (1st Dep'tPolayes v. 2014)(vacating termination of a teacher found to be joking around with his students, in part on basis that DOE did not establish any rule that teacher violated). The evidence far from proves that Mr. Williams lacks "a moral compass" or is 16 "incapable of ... inculcat[ing] proper values and behavior into The moral condemnation by thethe students in [his] charge." hearing officer dwarfs the found misconduct. In paragraph two, the Hearing Officer stated that in setting the penalty of termination of employment, she gave "significant weight to the fact that Respondent did not admit to Instead, he placed thehis wrongdoing nor show any remorse. blame on the students, and then absolved himself of any responsibility for his failure to take action in response to In essence, the Hearingwhat he claimed they were doing" (89). Officer expressed outrage at Mr. Williams's choosing to put on a defense rather than pleading guilty. Mr. Williams asserted his innocence at the disciplinary hearing. Of course there was no expression of remorse on his part. This should not be equated with cases in which a person admits the alleged facts but denies and/or fails to see any wrongdoing in those facts. See, e.g., Matter of Binghamton City School District (Peacock), 33 AD3d 1074, 1077 (3d Dept. 2007). Mr. Williams made no expression of remorse because he genuinely believed that his students initiated the banter at issue. He testified that in the future, he would avoid all such conversation by eliminating down time and by reporting all such banter to his principal (309-310). The evidence indicates that Mr. Williams is unlikely ever to engage in such banter in the future. As such, this evidence 17 serves much the same purpose as expression of remorse by a person who admits the charged facts. The Hearing Officer's focus on remorse amounts to an admonishment of Mr. Williams for what she considered his false Such a reaction is a form of adjudicative hubris, atestimony. blindness to the uncertainty of human existence and fact An adjudicator with humility would not focus on thefinding. absence of expression of remorse by a person who maintains his innocence. A party who asserts innocence should not be penalized further because he did not prevail at the hearing based on a single credibility finding. See Riley, supra (vacating termination of 16 year employee for slapping a student, who showed no remorse at the hearing after maintaining she did not engage in such conduct). In paragraph three, the Hearing Officer stated that Mr. Williams "painted himself as a victim of some sort, but I am not sympathetic to the plight this man who claims he cannot contain a constant onslaught of female attention, even when it involves his students" (90). The Hearing Officer, of course, does not believe that Mr. Williams underwent any onslaught of attention. He testified that if it were to happen again in the future, he would report all such inquiries to the principal (309-310). That presumably is what the Hearing Officer believes Mr. Williams should have done in the past. 18 The Hearing Officer wrote Mr. Williams off as a lost cause (90-91): If I thought a fine or suspension might jolt him into such an understanding, and right the moral judgment which is so horribly askew, then I might consider such a penalty. But I do not believe such a penalty would be effective, nor do I think it adequately addresses the harm done here. One might argue that termination is too severe, considering that Respondent did not solicit nor engage in a relationship with any of the students themselves. We can be grateful for that, but it does not lessen the moral failings in what he did do. Contrary to his own misguided understanding, he is a role model for his students, and he is expected to model appropriate behavior. He has not done so. His actions directly implicate his character and fitness for the position. He has abused that position for his own benefit, without regard to the lessons he was passing on to impressionable young girls. It was not an isolated incident. It was not one girl. It was even by his own admissions, many girls in this case, and many other boys and girls in other places. It must stop. What are the fatal flaws in hisWhat is "the harm done here"? character and fitness for duty? Contrary to the innuendo that the Hearing Officer put forth, Mr. Williams was found guilty of the inappropriate banter with only two students. Is his moral failing a failure to recoil in horror at any implication that he would consider adultery with unseen relatives of his students? This entire disciplinary ordeal has taught Mr. Williams to avoid He is not incorrigible.any such banter at all costs. A lesser 19 penalty than termination would suffice to prevent any recurrence of this behavior. Termination of Mr. Williams's employment would violate the principle of progressive discipline. D. The principle of progressive discipline is rooted in Education Law § 3020-a(4): At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. The escalating menu of penalties codifies a concern that the Department of Education first make attempts to correct the offending behavior. Penalties should be employed to help the teacher rectify misconduct, not to end a career unnecessarily. The Department of Education has defined progressive discipline in the context of student discipline, a definition equally applicable to cases of teacher discipline: Understanding discipline as a "teachable moment" is fundamental to approach discipline uses incremental interventions to address inappropriate behavior with the a positive Progressivediscipline.to 20 ultimate goal of teaching pro-social behavior. Progressive discipline does not seek punishment. Instead, progressive discipline seeks concurrent accountability and behavioral change. The goal is prevention of a recurrence of negative behavior by helping students learn from their mistakes. "Citywide Standards of Intervention and Discipline Measures" http://schools.nyc.gov/NR/rdonlyres/188AF3E2-F12B-4754-(2013), 8471-F2EFB344AE2B/0/DiscCodebooklet20l3final.pdf, at 4. As to teachers, the goal is to help them reform their behavior, not to terminate their employment without trying other penalties first. In Mr. Williams's case, these are his first formal 3020-a charges. The Hearing Officer imposed the ultimate penalty of termination of employment, skipping over the lesser forms of formal discipline. This violates the spirit of the principle of progressive discipline. It also is significant to note that none of the students (including TC) were removed from his class following the report of the incident in this case, Mr. Williams himself was not removed from his duties without any further incident for over eight months following TC's report of the incident and finished with a Satisfactory rating during the year of the incident at issue,2 and that of the 70 students in the class, the 2 It is noteworthy that Mr. Williams was only removed from his duties shortly after he was elected chapter leader of the 21 investigators only interviewed six students, five who were friends with each other—and the sixth student stated that Mr. Williams never asked for a phone number from TC or any other It also is noteworthy that Mr. Williams qualified forstudents. unemployment insurance benefits following the hearing officer's decision, which is indicative of the conduct here not being considered "misconduct" and not a violation of any specific rule or regulation of the NYCDOE. As in Polayes, no specific DOE rule or regulation has been identified as being violated, and a similar result should be ordered here. CONCLUSION FOR THE REASONS STATED, THE JUDGMENT ON APPEAL SHOULD BE VACATED, WITH COSTS, AND THIS COURT SHOULD REMAND THIS MATTER FOR IMPOSITION OF A DISCIPLINARY PENALTY LESS THAN TERMINATION OF EMPLOYMENT. Respectfully submitted, GLASS KRAKOWER LLP Attorneys for Petitioner-Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 < /»- BRYAN/ D. GLASS, Esq. school, and that the principal of the school, Ms. Alexis, has since been involuntarily removed from the school for corruption. 22 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2000, 12.using Courier New According to the aforementioned processing system, the entire brief, including portions that may the word count pursuant to 22 N.Y.C.R.R.be excluded from § 600.10(d)(1)(i), contains 5,582 words. GLASS KRAKOWER LLP Attorneys for Petitioner-Appellant 100 Church Street, 8th Floor New York, New York 10007 (212)537-6859 /•*-By: BRY, D. GLASS 23 NEW YORK SUPREME COURT APPELLATE DIVISION : FIRST DEPARTMENT In the Matter of the Application of TERRELL WILLIAMS, Petitioner-Appellant, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; and DENNIS WALCOTT, 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 653954/13. There have been no changes in the parties. This proceeding was commenced in Supreme Court, 2. 3. New York County. This proceeding was commenced by service of a4. petition on or about November 14, 2013. Respondent submitted a cross-motion to dismiss on or about January 8, 2014. 5. In this proceeding, petitioner challenges an arbitration award terminating his tenured position as a teacher. 6. This appeal is taken from a judgment of the Supreme Court, New York County (Nervo, J.), dated July 14, 2014. 24 full7. This appeal is being prosecuted on a reproduced record. 25