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Decision No. 14,346

Appeal of DOUGLAS MORRISON from the determination of a hearing panel convened pursuant to Education Law "3020-a by the Board of Education of the City School District of the City of New York.

Decision No. 14,346

(April 25, 2000)

Michael D. Hess, Corporation Counsel of the City of New York, attorney for respondent, K. Leslie Legorni, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of a hearing panel convened pursuant to Education Law "3020-a, which found him guilty of certain charges brought against him by the Board of Education of the City School District of the City of New York ("respondent") and recommended his suspension without pay for six months. The appeal must be dismissed.

Respondent has employed petitioner since 1982. Respondent also employed petitioner from 1970-79, but he resigned that position and was hired as a new employee in 1982. On April 1, 1988, petitioner was assigned to the Office of Related Contractual Services ("ORCS"). ORCS coordinates the activities of private agencies that contract with respondent to provide various services to students. On June 22, 1994 respondent preferred disciplinary charges against petitioner. Specification I alleged immoral conduct, neglect of duty, conduct unbecoming petitioner’s position, unfitness, incapacity to teach and insubordination and included 25 charges concerning petitioner’s behavior on about 20 dates between October 1992 and May 1994. The charges alleged that petitioner acted in an unprofessional, disruptive and threatening manner towards co-workers and others, failed to complete a priority assignment, failed to report for a required medical exam and used school computers for personal business. Specification II alleged immoral conduct, neglect of duty, conduct unbecoming petitioner’s position, insubordination and unfitness. It contained two charges regarding petitioner’s repeated use of his office computer for personal matters.

A hearing was held over ten days between May 3, 1995 and March 19, 1996. The hearing panel issued a decision on or about July 18, 1996 which petitioner received on or about July 23, 1996. The panel found petitioner guilty of 14 of the charges and imposed a six-month suspension without pay. This appeal ensued.

Petitioner contends that the charges sustained by the hearing panel are meritless and that the panel’s findings are arbitrary and capricious. He alleges that the charges were filed in retaliation for his discrimination complaint to the Equal Employment Opportunity Commission and that hearing testimony did not substantiate them. Petitioner claims that his co-workers conspired to harass and intimidate him and that the panel erred when it credited their testimony. He asserts that he was not supplied with a copy of the report underlying the order to report for a medical exam, and that he therefore was not required to attend.

Respondent claims that the appeal is untimely and that it duplicates petitioner’s federal court action against the board and several of his supervisors. Respondent also contends that the hearing panel’s findings are consistent with and amply supported by the evidence produced at the hearing. Respondent argues that the hearing panel’s assessments of witnesses’ credibility are central to its findings and that petitioner has failed to demonstrate that the panel’s credibility assessments are inconsistent with fact.

I will first address the timeliness issue. An appeal to the Commissioner must be brought within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The 30-day period for appeals from "3020-a proceedings commences upon receipt of the panel’s decision (Appeal of Rayfield, 39 Ed Dept Rep __, Decision No. 14,280; Appeal of Grihin, 38 id. 399, Decision No. 14,064). The record reveals that petitioner received the panel’s decision on or about July 23, 1996. Accordingly, petitioner’s time to bring an appeal expired on or about August 23, 1996.

Petitioner did not attempt to commence an appeal until on or about August 26, 1997, more than a year after his time expired. My Office of Counsel rejected his initial petition. Petitioner re-served a petition on respondent on or about October 10, 1997. Petitioner requests that I excuse his delay in commencing this appeal. He argues that he had good cause for the delay because he was involved in disputes with his former attorneys, who withheld portions of his files. Petitioner claims that his attorneys wrongfully caused the delay and that he commenced the appeal promptly once he regained his files.

The record, however, does not support petitioner’s contentions. By letter dated August 13, 1996, petitioner’s former attorney, Mr. Brewington, stated that he could no longer represent petitioner unless petitioner paid his bill. He further stated that although he had sought an extension of time from the State Education Department for commencing an appeal, it was up to petitioner to follow-up on that request. According to that letter, Mr. Brewington enclosed petitioner’s hearing file.

Petitioner signed a retainer agreement with new counsel, Mr. Cherner, on August 19, 1996. By letter dated August 26, 1996, Mr. Cherner notified my Office of Counsel of his intent to bring an appeal, but he apparently took no further action. On October 24 petitioner wrote to Mr. Cherner complaining about Mr. Cherner’s failure to bring an appeal. Petitioner offers no explanation why he waited until October to complain about this failure even though he was aware that the deadline for commencing an appeal had already passed. This unexplained delay is, on its own, a sufficient reason to dismiss the appeal as untimely (see Appeal of Goldin, 39 Ed Dept Rep 14; Decision No. 14,158.)

Moreover, petitioner did not take any further action until December 9, 1996. At that time, he filed complaints against both attorneys with the departmental disciplinary committee. Petitioner claims that the attorneys finally offered to return his files in August 1997 as a result of the disciplinary proceedings. However, petitioner signed a June 4, 1997 receipt for his federal court files acknowledging that Mr. Brewington’s firm had previously returned the file in Board of Education v Morrison. Petitioner provides no explanation for the disparity between his statements about when he received the files and the receipt he signed. The only reason he gives for failing to commence the appeal until August 26, 1997 is his claim that his attorneys continued to withhold documents. As stated above, it is not clear what, if any, documents were withheld. Furthermore, petitioner has not established that he was not otherwise able to access the information needed to begin an appeal before that date. In sum, in light of the record evidence discussed above, I find that petitioner’s disputes with his attorneys do not constitute good cause for bringing the appeal late. Accordingly, petitioner’s appeal is dismissed as untimely.

Even if the appeal were not dismissed as untimely, I would dismiss it on the merits. On review of a hearing panel’s determination rendered pursuant to Education Law "3020-a, the Commissioner has the power to substitute his judgment for that of the hearing panel with regard to findings of fact and to make new findings (Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Appeal of Odell, 36 Ed Dept Rep 440, Decision No. 13,772). However, the Commissioner will not ordinarily substitute his judgment for that of a hearing panel unless the panel decision is contrary to the weight of the evidence and the panel has not adequately examined its rejection of otherwise convincing testimony (Shurgin, supra, Appeal of Odell, supra). The same standards apply to the hearing panel’s determinations regarding witness credibility (Appeal of Rayfield, supra; Appeal of Gibbs, 33 Ed Dept Rep 684, Decision 13,196; Appeal of the Bd. of Ed. of Community School District No. 2, 32 id. 391, Decision No. 12,864). After careful review of the extensive record before me, I find no basis for substituting my judgment for that of the hearing panel.

Based upon its review of the evidence, the hearing panel, in a 45-page decision, dismissed 13 of the charges, finding that in the cited instances petitioner had not disrupted the workplace or threatened his co-workers. The panel reasoned that petitioner had a right to express disagreement with his colleagues and supervisors, as long as he did not disrupt others’ work or threaten them. The panel, however, found petitioner guilty of seven charges in instances where it credited testimony that petitioner’s behavior was disruptive or made others feel threatened. For example, the panel found petitioner had been "abusive and confrontational, yelling and screaming" when a supervisor explained that it was improper for petitioner to use his position to obtain personal information about a woman he planned to sue. Similarly, the panel credited a co-worker’s testimony that petitioner angrily confronted her as she left work one evening and made threats that drew the attention of bystanders. The panel also found that petitioner disrupted a unit meeting by proclaiming that his supervisor could not assign him work and that he mistreated a license applicant, whose papers he was responsible for processing, until she was reduced to tears.

The panel rejected petitioner’s testimony that he did personal work on his office computer only outside his work hours. It chose to credit testimony from petitioner’s supervisor that he had instructed petitioner not to do personal work on the computer during office hours but that petitioner persisted and attempted to conceal what he was doing.

The hearing panel also credited testimony that petitioner failed to complete a priority assignment as instructed. Petitioner was asked to summarize certain reports submitted by contract agencies. The hearing panel relied on evidence that he received the assignment in July 1993 and failed to complete it before December 1993. Petitioner’s argument -- that he was ordered to leave work several days before the final deadline on this project -- is unavailing. The record showed the project could and should have been completed much earlier.

The hearing panel further concluded that petitioner failed to report for a required medical examination on May 24, 1994. It found that petitioner was given a copy of the report recommending the examination in February 1994 and concluded that, while petitioner may have been justified in refusing to attend an examination before receiving the report, he should have attended the May 24 exam. The panel also noted that petitioner failed to seek injunctive relief to halt the scheduled exam or to bring a grievance to challenge the procedure.

Finally, I have considered petitioner’s claims of retaliation and conspiracy and find that they are not supported by the record.

In sum, the hearing panel’s findings are consistent with the evidence and rest in large part on credibility determinations. Even if the appeal had not been dismissed as untimely, on the record before me, I would have no basis for substituting my judgment for that of the hearing panel.

In light of this disposition, I need not address the parties’ remaining contentions.