For judgment pursuant to Article 75 of the C.P.L.R.Decision and Order and Judgment In this proceeding, petitioner seeks an order which reverses Arbitrator Michael Lazan’s November 11, 2015 decision sustaining certain specifications and charges against him. Petitioner further seeks a declaration that the penalty, the termination of his employment as a special needs teacher, was disproportionate and shocking to the conscience; a modification of the award to include a lesser penalty; reinstatement with back pay and full credit for the period of his allegedly wrongful termination for the purposes of retirement benefits; and removal of petitioner from the ineligible list. Initially, respondent the New York City Department of Education (DOE) filed a pre-answer cross-motion to dismiss the petition, and petitioner moved for a preliminary injunction in lieu of notice of petition. On May 17, 2017, Justice Lucy Billings, who previously presided over the case, issued the order which denied the cross-motion and the request for injunctive relief. As to the cross-motion, Justice Billings ruled that without the full record of the administrative proceedings respondent did not sustain its burden. As to the request for preliminary relief, the judge concluded that although petitioner had set forth cognizable legal claims he had not shown a likelihood of success on the merits. Following the issuance of Justice Billings’ order, respondent answered the petition and the parties filed additional papers. The matter subsequently was transferred to this Part, and this Court heard oral argument. At the end of the argument, this Court requested letter briefs on recent Court of Appeals cases and on the pertinent concurring opinions. The Court has considered all the material before it, including the subsequent letter briefs, and incorporated its conclusions into this decision. After careful consideration, this Court dismisses the petition.Petitioner became a certified special education teacher in 2004 and he worked for respondent until his termination in 2015. Throughout his employment with the DOE respondent, he received positive performance evaluations, received awards and praise as a Science, Technology, Engineering, and Math (STEM) educator, including a STEM Educator Award in 2012 and a Brooklyn Borough President’s Proclamation regarding his work involving LEGO education. LEGO named him “teacher of the month” in June 2013, and Scholastic Educator Magazine featured him in its article, “Super Cool Teacher” in March 2014.According to petitioner, he has suffered from an anxiety disorder as well as attention deficit syndrome since high school. Petitioner alleges that for a period of eight years he was treated for this disorder by Dr. Dean F. Giannone without success. He states that now he is treated by Dr. Judy Scher, and under her care he successfully manages these disabilities. Currently, petitioner teaches at a private school. Before his disorder was under control, and while he was an employee of respondent, he missed several days of work annually due to his disability. Like all teachers, petitioner was entitled to take a maximum of ten sick days per year from his cumulative absence reserve (CAR). A doctor’s note is not required for these absences, although employees are encouraged to submit such notes whenever possible. Furthermore, a teacher can take “self-treatment” days when he or she does not treat with a doctor; this must relate to a teacher’s illness or disability for a condition for which self-care is approved. Finally, more than ten additional absences — other than days for jury duty, funerals, and other exceptions — is considered excessive.The charges which led to petitioner’s termination relate to petitioner’s work at two schools. Petitioner spent seven years as a special education classroom teacher at the first of these schools, P.S. 188. During his eighth year, the 2013-2014 school year, he piloted the school’s STEM and robotics program. Around June 5, 2014, Principal Frederick Tudda, discussed petitioner’s high number of absences for the 2013-2014 school year. Petitioner informed the principal that he had kidney problems. The principal wrote a letter to petitioner’s file about this conversation, including the comment that his absences were excessive. Furthermore, although petitioner provided lesson plans for the days he was absent from P.S.188, only one other teacher at the school knew how to teach robotics and it would not have been feasible to have that teacher cover petitioner’s classes during all his absences.1Petitioner resigned from P.S. 188 in 2014 and in September 2014 he commenced a new job, as a magnet resource specialist at P.S. 307K. He obtained this position pursuant to a $1.8 million grant which enabled the school to develop into a STEM magnet school. The school hired one other magnet resource specialist at petitioner’s level as well as a senior magnet resource specialist. The job required him to instruct third, fourth, and fifth grade students regarding STEM and to train the other teachers at the school so that they also could teach STEM. Petitioner was absent twice in mid-September, his first month at P.S. 307K, and he provided a medical note to the principal. Principal Roberta Davenport’s secretary pointed out that the note looked suspicious, and the principal contacted Dr. Giannone, who purportedly authored the note. The doctor stated that he did not write the note.After she received the doctor’s response, Principal Davenport met with petitioner. Petitioner, who was accompanied by his union representative, reiterated the statement he made to Principal Tudda at P.S. 188, that he had kidney problems. He added that he had undergone an MRI on one of the dates in question. On October 13, 2014, Principal Davenport notified the Office of the Special Commissioner of Investigation for the New York City School District (SCI) of the incident. SCI undertook an investigation, determined petitioner had committed fraud, recommended that petitioner be terminated from his position, and referred the matter to the Kings County District Attorney’s (DA) office for review. In addition, SCI made similar findings and made a subsequent referral to the DA when, after further investigation, Principal Davenport discovered fifteen similar notes in petitioner’s personnel file.Respondent commenced two cases seeking petitioner’s termination. The cases include the following specifications, which relate to petitioner’s work at The Michael E. Berdy School for The Arts (P.S. 188) and at Daniel Hale William, The Magnet School for Science, Technology, Engineering and Mathematical Studies (P.S. 307K):“CASE # 26,748SPECIFICATION 1: On or about and between September 9, 2013 and June 27, 2014, [petitioner], while assigned to The Michael E. Berdy School for The Arts, was excessively absent from work approximately sixteen (16) times on the following dates:DAY DATE1) Monday September 23, 2013*22) Tuesday October 22, 20133) Tuesday November 12, 20134) Wednesday November 13, 20135) Tuesday January 21, 2014*6) Wednesday January 22, 2014*7) Monday February 3, 2014*8) Monday February 10, 20149) Monday March 3, 2014*10) Friday March 21, 2014*11) Monday April 7, 2014*12) Monday April 28, 2014*13) Monday May 12, 2014*14) Tuesday May 13, 2014*15) Wednesday May 21, 201416) Thursday June 19, 2014SPECIFICATION 2: On or about September 16 and/or September 17, 2014, [while] assigned to [P.S. 307k] [petitioner] submitted and/or caused to be submitted a false and/or fraudulent doctor’s note to the Department stating that he had seen a doctor in order to excuse his absences from work.SPECIFICATION 3: On or about September 16 and/or September 17, 2014, while assigned to [P.S. 307K], [petitioner] was paid for the day he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work.CASE # 27,238SPECIFICATION 1: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], submitted and/or caused to be submitted a false and/or fraudulent doctor’s notes to the Department stating that he had seen a doctor in order to excuse his absences from work approximately (19) times on the following dates:DAY DATE1. Tuesday November 1, 20112. Wednesday November 2, 20113. Monday December 19, 2011*4. Monday March 12, 2012*5. Thursday May 10, 20126. Friday May 11, 20127. Monday December 10, 2012*8. Monday March 4, 2013*9. Tuesday November 12, 2013*10. Wednesday November 13, 2013*11. Tuesday January 21, 2014*12. Wednesday January 22, 2014*13. Friday March 21, 2014*14. Monday April 7, 2014*15. Monday April 28, 2014*16. Monday May 12, 2014*17. Tuesday May 13, 201418. Wednesday May 21, 201419. Thursday June 9, 2014SPECIFICATION 2: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work approximately nineteen (19) times on the following dates:DAY DATE1. Tuesday November 1, 20112. Wednesday November 2, 20113. Monday December 19, 2011*4. Monday March 12, 2012*5. Thursday May 10, 20126. Friday May 11, 20127. Monday December 10, 2012*8. Monday March 4, 2013*9. Tuesday November 12, 2013*10. Wednesday November 13, 2013*11. Tuesday January 21, 2014*12. Wednesday January 22, 2014*13. Friday March 21, 2014*14. Monday April 7, 2014*15. Monday April 28, 2014*16. Monday May 12, 2014*17. Tuesday May 13, 201418. Wednesday May 21, 201419. Thursday June 9, 2014SPECIFICATION 3: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work, in the amount of approximately $3556.90.SPECIFICATION 4: During the conduct as stated in Specifications 1, 2 and/or 3 above, [petitioner] did offer a False Instrument for Filing, in that Respondent, knowing that a written statement contains a false statement or false information, did offer or present it to a public office or public servant with the knowledge or belief that it will [be] filed with, registered or recorded in or otherwise become a part of the records of such public office or public service.SPECIFICATION 5: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to P.S. 307K…, was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work approximately nine (9) times on the following dates:DAY DATE1. Tuesday September 16, 20142. Wednesday September 17, 20143. Monday September 29, 20144. Friday November 14, 20145. Monday November 17, 20146. Monday January 12, 20157. Tuesday January 13, 20158. Monday March 2, 20159. Tuesday April 21, 2015The Foregoing Constitutes:Just cause for disciplinary actions under Education Law Sect. 3020-a;Conduct unbecoming [petitioner's] position, and conduct prejudicial to the good order, efficiency, or discipline of the service;Fraud;Conduct that could Constitute a Crime;Substantial cause rendering [petitioner] unfit to perform his obligations properly to the service;Violation of Chancellor’s Regulations;Violation of the by-laws, rules and regulations of the Chancellor, Department School or District;Neglect of duty; andJust cause for termination*Denotes a day before or after a weekend and/or holiday”(In re New York City Department of Education v. Mirenberg, SED File Nos. 26,748/27, 238, Exh. A [NYSCEF doc No. 5] [DOE v. Mirenberg], at pp 3-7).Petitioner and respondent appeared before Arbitrator Michael S. Lazan, Esq. to determine what, if any, penalty was appropriate for the charges above (see Education Law §3020-a). Arbitrator Lazan held numerous prehearing conferences between April 9, 2015 and July 9, 2015. The hearing began on July 9, 2015 after the prehearing conference, and it continued on July 22, July 23, August 12, August 13, September 17, September 25, and September 30. During the hearings, the arbitrator listened to the testimony of several witnesses including petitioner, the principals of the two schools, Dr. Giannone, and petitioner’s father.In its opening statement on July 9, 2015, respondent3 stated that there were two reasons petitioner should be terminated from his job: 1) he had been excessively absent from school, and 2) he had submitted fraudulent sick notes over the course of several years to justify some of those absences. Petitioner’s counsel presented her opening statement on July 22, 2015. Counsel stated that petitioner suffered from a kidney condition and from anxiety. She noted that under the Americans With Disabilities Act (ADA), petitioner’s anxiety disorder qualifies as a protected condition. She pointed out that despite his allegedly excessive absences, he received positive or satisfactory ratings during the periods in question; and that, while Principal Tudda discussed petitioner’s absences he did not discipline him. Thus, petitioner’s absences had not interfered with his job as a teacher.In his November 2015 determination, Arbitrator Lazan considered the parties’ positions. The decision noted that petitioner admitted to altering sixteen medical notes but claimed he did not receive extra pay for the dates in question because he was entitled to ten self-treated days for which no note was required. He stated that he was not excessively absent during the 2014-2015 school year. He finally argued that he altered the medical notes under the influence of his panic attacks and his anxiety disorder. Petitioner claimed that his disorder had prevented him from teaching on the dates he was absent, and his embarrassment about his condition had caused him to lie. He stressed that now, with proper care, he no longer is hampered by his disability.In response, respondent argued that petitioner defrauded the school system, and that he additionally lied to two school principals about his fabricated kidney condition.4 His misconduct was compounded by the fact that petitioner has never taken responsibility for submitting the notes but instead has attempted to excuse them. They stressed that many of the absences were on Mondays and Fridays, thus extending his weekends, that he repeated this pattern on a regular basis — all of which undercut petitioner’s argument that these actions were impulsive and caused by his panic attacks. They noted that Dr. Giannone’s progress notes did not support petitioner’s position that his anxiety was disabling. They argued that the affidavit of petitioner’s current treating therapist, Dr. Scher, is of no probative value as petitioner did not produce her as a witness.The arbitrator first evaluated petitioner’s claim that he is insulated from any adverse employment action under the Americans with Disabilities Act of 1990 (the ADA) (42 U.S.C. §§12101 et seq), which prevents employers from discriminating against individuals with disabilities that do not interfere with their work performance. He determined that, even if petitioner showed the existence of an anxiety disorder,5 he did not show that it had a major limiting impact on his life or his ability to perform his job. Dr. Giannone, the arbitrator noted, testified at the hearing that petitioner could perform normal activities despite his anxiety disorder. The arbitrator further noted that Dr. Scher’s affidavit, the sole evidence on which petitioner relied to support this claim, merely stated that petitioner has an anxiety disorder which, during stressful times, impaired his decision-making ability. Relying on federal case law such as Cody v. County of Nassau (577 F Supp 2d 623, 639 [EDNY 2008]), Arbitrator Lazan stated that Dr. Scher’s affidavit was insufficient to establish discrimination.Next, the arbitrator noted that teachers are given the benefit of an honor system as to their self-treated days. Medical documentation is not required for the first ten days of such absences, and — with notice — three of those days may be used for personal business. Arbitrator Lazan concluded that, “[b]y altering the sick notes from Dr. Giannone, [petitioner] effectively sidestepped the Department’s policy on ‘allowing’ ten ‘self-treated’ days. Even aside from the fact that [petitioner] committed fraud on [respondent], [petitioner] gave himself permission to take an extra six days of absence without having to provide any medical backup” (DOE v. Mirenberg, at p 16). Arbitrator Lazan rejected petitioner’s argument that sixteen days of absence is not excessive, relying on Principal Tudda’s statement that after ten days, a teacher’s absences might be considered excessive and on P.S.188′s faculty conference notes, in evidence, which stated as much. The arbitrator further agreed with respondent that because of petitioner’s fraud, all of the challenged absences were improper. He stated that, contrary to petitioner’s argument, his absences had an impact on the school in 2013-2014. Thus, he sustained the first specification, which related to petitioner’s work at P.S.188.Arbitrator Lazan next sustained the second specification which related to petitioner’s actions while he was at P.S.307K. He determined that petitioner falsified the doctor’s notes he submitted for September 16 and 17, 2014. As for specification three, the arbitrator found that petitioner improperly accepted payment for these days as he had not submitted any evidence establishing that he was ill, and his then-treating physician credibly testified his anxiety was not disabling and provided progress notes which refute petitioner’s statements about his mental health during specified periods. Arbitrator Lazan found that petitioner was not credible, pointing out that he changed his testimony on several occasions when confronted with evidence contradicting his contentions. He further found that petitioner was not credible based on the record, which established that he lied about his purported kidney problems.The arbitrator also considered the claims in the second case. He sustained specification one, relating to his nineteen falsified doctor’s notes at P.S.188. Although, as petitioner argued, an arbitrator generally cannot rule on claims relating to conduct over three years before the filing of the specifications, he had the power to do so here because fraud (a crime) was involved (Educ. Law §3020-a [1]). He rejected petitioner’s arguments that he did not mean to defraud respondent and he found petitioner’s contention that he had intended to reveal that he was ill without specifying his condition was of no avail. He stated that, under Aronsky v. Department of Education (75 NY2d 997, 1000 [1990]), respondent had satisfied the fraud by the applicable substantial evidence standard.In addition, the arbitrator sustained specification two in the second case. The specification also relates to the nineteen days for which petitioner submitted fraudulent doctor’s notes. As with a similar charge in the first case, Arbitrator Lazan found that petitioner improperly accepted payment for the nineteen days in question. The arbitrator reiterated that “[petitioner's] testimony was inconsistent and at times hard to believe” (DOE v. Mirenberg, at p 25) — using, as an example, petitioner’s statement that Dr. Giannone knew petitioner was writing altered doctor’s notes. Arbitrator Lazan again reviewed Dr. Scher’s affidavit and viewed it unpersuasive, noting that she stated petitioner suffered panic attacks in 2007, when he missed very few days of class, and that she did not indicate petitioner’s condition prevented him from working. Because he sustained specification two, he sustained specification three, which stated that petitioner improperly accepted money for the days in question. He sustained specification four, which required him to consider whether petitioner violated the penal law. He rejected petitioner’s argument that he lacked authority to rule on this issue, concluding that he only considered it only because it was necessary to determine whether he could rule on claims that were over three years old (see Educ. Law §3020-a [1]).Finally, the arbitrator dismissed specification five in the second case. This charge alleged that petitioner was excessively absent during his year at P.S.307K. He noted that “the pattern and practice [of respondent] appears to be that more than ten absences in the school year are required for a teacher’s absences to be deemed ‘excessive’” (DOE v. Mirenberg, at p 29), and pointed to testimony and evidence supporting his conclusion. He rejected respondent’s position that the two fraudulent notes from September transformed his absences from excusable to excessive.Based on all the aforementioned findings, Arbitrator Lazan concluded that petitioner’s termination was justified. He noted that petitioner concededly altered doctor’s notes, and that he only stopped doing so when “he was caught by a sharp-eyed secretary and an attentive principal” (id., at p 31). He rejected petitioner’s statements that he repented of his wrongdoing, partially on the basis that he didn’t acknowledge his wrongdoing and repent of it before he was caught — even after Principal Tudda reprimanded him for his excessive absences. He noted that, notwithstanding petitioner’s claim of panic attacks, he was not under the influence of an attack when he turned in the falsified documents. He noted that petitioner’s statement that he is now rehabilitated was self-serving and lacked evidentiary support, and that the only witness who supported petitioner’s claims was one of his parents. The arbitrator noted that the record supports petitioner’s claim that he is a good teacher, but concluded that “dishonesty on this scale cannot be tolerated in the workplace” (id., at p 33). He pointed out that petitionersubmit[ted] cases in support of his position, but not a single case where similar fraud by a teacher results in an arbitrator levying a penalty less than termination. The Department, on the contrary, presents case after case where where teachers submitted fraudulent medical notes and were terminated by arbitrators. See, e.g., New York City Dep’t of Educ. v. S.B., Case #5,215 (2006) (Bauchner, Arb.).Based on the above, Arbitrator Lazan found that respondent had shown — and petitioner had failed to refute — that termination was an appropriate penalty on the facts of the case.DISCUSSIONEducation Law §3020-a sets forth the procedures and penalties for disciplinary actions against tenured teachers. Subsection five of that statute authorizes judicial review of aarbitrator’s decision. That review is limited to grounds set forth in Section 7511(b) (1) of the Civil Practice Law and Rules: 1) corruption, fraud or misconduct in the award’s procurement, 2) bias on the part of the arbitrator, 3) a decision which shows the arbitrator exceeded his power or failed to clearly resolve the case, and 4) failure to follow the procedural guidelines. Where parties have submitted to compulsory arbitration, this Court applies a stricter standard of review than it does in voluntary arbitrations (See, e.g., Lackow v. Dep’t of Educ., 51 A.D.3d 563, 567 [1st Dept 2008]). The arbitrator’s decision must accord with due process, be supported by adequate evidence, and be rational and satisfy the arbitrary and capricious standards under Article 78 of the Civil Practice Law and Rules (id.) An arbitrator’s credibility determinations, however, are “largely unreviewable” (id. at 568). Petitioner bears the burden of proof in challenging the arbitrator’s decision under these standards (id.). Moreover, as the Court of Appeals stressed recently in Matter of Bolt v. New York City Department of Education (30 NY3d 1065, 1068 [2018]), even if a court disagrees with the severity of the penalty imposed, this “does not provide a basis for vacating the arbitral award or refashioning the penalty.”The Court has set forth the underlying arguments in detail above. In brief, the petition states that the arbitrator was biased, committed legal errors, and reached an arbitrary, irrational conclusion. Petitioner challenges the arbitrator’s credibility determinations. He notes the above-cited standard of review and cites to his protected status as a tenured teacher. He also states that in cases involving employees with prior good service, courts have deemed termination too harsh and suspended the teachers instead.After careful consideration, the Court concludes that there is no merit to Petitioner’s contentions in the instant application. The arbitrator’s determination, as set forth herein, was rational (Matter of Grassel v. Department of Education of the City of New York, 158 AD3d 501, 501 [1st Dept 2018]). As in Matter of Berkley v. New York City Department of Education, there was ample evidence in the record that supported the arbitrator’s decision (see — AD3d —, —, 2018 NY Slip Op 01669 [1st Dept 2018] [Berkley], at p 3). Petitioner cites to no specific examples of the arbitrator’s alleged bias (see Grassel, 158 AD3d at 501), and does not indicate that the arbitrator committed any specific legal error.Petitioner’s argument that the arbitrator did not consider Dr. Scher’s affidavit lacks merit. Contrary to petitioner’s contention, Arbitrator Lazan considered and discussed the affidavit of Dr. Scher and provided a cogent analysis (see supra, at pp 9, 11), but did keep in mind that she did not appear and was not subject to cross-examination. The arbitrator did not ignore, but commented upon, petitioner’s merit as a teacher. He simply concluded that the charges here were serious enough to overshadow petitioner’s talent and warrant termination. The arbitrator’s credibility findings are “largely unreviewable” (Matter of Board of Education of the City School District of the City of New York v. Ostrin, 120 AD3d 1105 [1st Dept 2014]), and petitioner has not shown evidence sufficient to justify deviation from this deferential standard.Moreover, the penalty of termination is not disproportionate, as fraud is a serious allegation and petitioner failed to correct his misconduct after his discussion with Principal Tudda (see Berkley, 2018 NY Slip Op 01669, at p 3). As the Court of Appeals found in Bolt, “the penalties imposed are not irrational and do not shock the conscience” (Bolt, 30 NY3d at 1068). The Article 78 proceedings to which petitioner cites in are distinguishable. Bovino v. Scott (22 NY2d 214 [1968]), for example, is a 1968 Court of Appeals case under Article 78, not Article 75, and it evaluates the penalty imposed by the Fire Commissioner on a firefighter. Mitthauer v. Patterson (8 NY2d 37 [1960]), is a 1960 Court of Appeals decision which also arose under Article 78. In that case, the court affirmed an appellate court decision which modified the penalty imposed on a petitioner, who had an unblemished twenty-year record and then was found to have taken three passengers’ fares for herself.6 The First Department’s 1958 decision, under Article 78, vacated the dismissal of a Public Works official with a long history of civil service who, during a period of serious illness and numerous surgical procedures, failed to timely complete an examination which the Commissioner of Investigation initiated under the Security Risk Law. The 1971 Court of Appeals case, Picconi v. Lowery (28 NY2d 962 [1971]), also related to the termination of a firefighter. In addition, the arbitrator did not act irrationally in rejecting petitioner’s argument that he submitted the fraudulent doctor’s notes due to his disability. Rather, in that case, the arbitrator reasonably found that petitioner’s actions were not caused by the disability, both based on petitioner’s own testimony that he was not disabled when he submitted the doctor’s notes and on the failure of petitioner to submit any supporting evidence.The Court has considered the parties’ other arguments, even if they are not discussed specifically in this order, and they do not alter this conclusion. Therefore, it isORDERED that the petition is dismissed.Dated: , 2018ENTER:
