Decision No. 12,910

(April 12, 1993)

Shaw & Silveira, Esqs., attorneys for petitioner, Garrett L. Silveira, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Gerard John DeWolf, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Poughkeepsie City School District, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of conduct unbecoming a teacher and imposed a reprimand. Petitioner seeks reversal of the panel's dismissal of two specifications against respondent, together with authorization to terminate his services. The appeal must be sustained in part.

Respondent is a tenured teacher assigned to the Poughkeepsie Middle School as an instructor of computers in the Poughkeepsie Academic and Cultural Enrichment Program (PACE). Respondent has been employed as an elementary school teacher for 19 years. On or about January 24, 1991 and March 29, 1991, petitioner found probable cause to prefer three charges against respondent for conduct unbecoming a teacher. Charge I involved an incident that occurred in early January 1991, when respondent allegedly stated to a school administrator "I just like the way your nipples stand up when you wear that dress", and another incident that occurred on or about January 16, 1991, when respondent allegedly placed his arm around a student's shoulder and touched her breast. Charge II involved an incident where respondent allegedly approached a female teacher and inappropriately touched her while making a suggestive comment. Charge III consists of several specifications that respondent inappropriately touched or massaged several female students in his class.

A hearing was held over seven days between July 9 and September 27, 1991. On January 17, 1992, the hearing panel rendered its decision, finding respondent guilty of Charge I, Charge II and two specifications in Charge III. The panel dismissed two other specifications in Charge III. Based on its findings of guilt, the panel recommended a penalty of reprimand. Petitioner appealed on April 27, 1992.

Petitioner contends that the hearing panel erred when it dismissed two of the specifications ("B" and "D") in Charge III. In particular, petitioner argues that the panel improperly relied on respondent's general statements while disregarding the clear, concise and consistent testimony of two female students offered by petitioner to support those specifications. Petitioner also argues that even if the Commissioner upholds the hearing panel's determination as to those specifications, he should substitute his judgment on penalty and authorize respondent's dismissal because a a reprimand is disproportionately lenient to the offenses committed.

Respondent does not dispute the panel's findings of guilt but contends that the two specifications it dismissed should not be disturbed, since they were based on the panel's assessment of witness credibility. Respondent also argues that a reprimand was the proper penalty and should not be set aside.

The burden of proof in a teacher disciplinary hearing pursuant to Education Law '3020-a lies with the complainant. To sustain a charge, the complainant must establish the charges by a preponderance of the evidence (Martin v. Board of Education, 67 NY2d 975, 502 NYS2d 1991 [1986]; Matter of the Board of Education of the City School District of the City of New York, 29 Ed Dept Rep 302). Unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts, I will not substitute my judgment for that of the panel (Matter of Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 595, aff'd, 56 NY2d 700, 451 NYS2d 722 [1982]; Appeal of Board of Education of the Greater Johnstown City School District, 30 Ed Dept Rep 89; Appeal of LePore, 28 id. 425; Matter of Community School Board No. 18, 21 id. 216).

Regarding Specification B, which asserts that respondent placed his arm across the shoulder and down the arm of a student and/or rubbed her arm, the panel found the student testimony upon which the district relied not credible. In reaching its decision, the panel specifically noted that the student never identified the place or approximate time of the alleged incident and found her testimony hesitant, inconsistent and sketchy. Respondent's testimony also indicated that the student was not a member of his computer class and that he had few occasions to come in contact with her. Finding the student's testimony unpersuasive, the panel concluded that the district had failed to establish by a preponderance of the evidence that respondent committed the acts alleged. Since there is no evidence that the panel's determination was contrary to the facts, there is no basis for me to set aside the panel's decision.

The other specification challenged by petitioner ("Specification D") also alleges that respondent massaged the neck and/or shoulders of a student, and on one occasion reached across her chest area so as to be near and/or brush against her breast. In dismissing that specification, the panel concluded that although the teacher's arm extended across the front of the student, near her chest, "it was the most natural movement of a professional who knew precisely how to assist the student to respond to the physical and intellectual challenge being presented." Notably, in discussing the specification, the panel disregarded the student's testimony, describing her extreme discomfort with respondent's actions as "subjective perceptions due to increased adolescent sensitivity." However, in another specification, the panel found respondent guilty of massaging a student based, in part, on its conclusion that

These seeming inconsistencies in the panel's determinations are particularly troubling since its rationale for finding respondent guilty of the charges in one specification appears to be the same used to find him not guilty of a similar charge in this specification. In addition, the panel failed to address entirely that part of the specification charging the respondent with massaging the student. Thus, even though there is insufficient evidence in the record for me to find respondent guilty of the charges in this specification, the panel is admonished, nonetheless, for failing to reconcile the inconsistencies and contradictions noted within its decision and for ignoring altogether one of the elements charged in the specification.

Turning to the penalty, it is well established that the Commissioner of Education may substitute his judgment for that of the hearing panel (Matter of Levyn v. Ambach, 56 NY2d 912, 453 NYS2d 410; Matter of Shurgin v. Ambach, supra; Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603). Upon careful review of the record, I find that the measure of discipline imposed by the hearing panel for the offenses committed by respondent is disproportionately lenient.

In recommending only a reprimand, the hearing panel underestimated the seriousness of respondent's misconduct. Respondent was found guilty of charges involving two female colleagues that potentially constitute sexual harassment in the workplace (Equal Employment Opportunities Commission Guidelines, 29 CFR '1604.11[a]). Respondent's attempts to characterize his comment to a female colleague, which constituted part of Charge I, as a "flattering" statement regarding her anatomy are inappropriate and demonstrate both a fundamental misunderstanding and insensitivity toward members of the opposite sex. Such behavior cannot be condoned or explained away within the bounds of a professional relationship. Nor does the fact that the female staff member involved may have told a sexually provocative joke or been present during risque conversations justify or diminish the impropriety of respondent's comment. Charge II found respondent guilty of improperly touching a female teacher and making an inappropriately suggestive comment to her. Because respondent's actions were both unprofessional and well beyond the bounds of acceptable conduct for a teacher and role model, I find the penalty of a reprimand inexplicably lenient.

Regarding the charges involving students for which respondent was found guilty, the record indicates that he was on prior notice that such behavior was unacceptable. Furthermore, respondent's continual attempts to characterize his physical contact with students as an educationally sound teaching method not only exemplifies his lack of remorse but demonstrates, once again, a lack of sensitivity and a misunderstanding regarding the propriety of his actions.

Despite repeated warnings that physical contact with female students was improper, respondent persisted in this behavior. In proceedings under Education Law '3020-a, "a penalty must be imposed which is sufficient to act as a deterrent to further repetition of the improper conduct and impress upon respondent that ...the behavior is unacceptable" (Appeal of the Board of Education of the City School District of the City of New York, 29 Ed Dept Rep 228). Since the panel's findings do not involve an isolated incident but an inappropriate course of conduct, and the record reveals that these problems are not new, I find the appropriate penalty to be a suspension of one year without pay.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel is annulled insofar as it imposed a penalty of reprimand; and

IT IS FURTHER ORDERED that petitioner is authorized to suspend respondent without pay for a period of one year.

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