Académique Documents
Professionnel Documents
Culture Documents
2016EF334
ONONDAGA COUNTY
Respondents.
-------------------------------------------
Respectfully Submitted,
Of Counsel:
Dennis G. O'Hara, Esq.
Stephen Ciotoli, Esq.
Ryan G. Files, Esq.
TABLE OF CONTENTS
PRELIMINARY STATEMENT
STATEMENT OF FACTS
10
11
11
A.
11
B.
12
13
16
16
B.
17
18
D.
18
E.
Constitutional Implications
19
Petitioner Agrees the Room was Not an Approved "Time Out" Room
22
22
23
C.
24
27
B.
28
29
B.
30
31
32
E.
.40
.48
B.
50
C.
53
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ii
59
62
B.
62
64
65
B.
66
68
71
B.
72
73
74
B.
75
76
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iii
TABLE OF AUTHORITIES
Cases
Aikins v. Curtis 81 A.D.2d 1020 [4th Dep't 1981]
20
20
Appeal of Board of Education of the Goshen Central School District, 30 Ed. Dept. Rep.
28
181,187; (Decision No. 12,426, November 30, 1990)
Bd. of Educ. of Dundee Cent. School District [Colemanl, 96 AD3d 1536 [4th Dep't.,
2012]
17
Ferraro v. Board of Education, 32 Misc. 2d 563 [Sup. Ct. NY, App. Term. 2nd Dep't.
1961]
24
Gongora v. NYC Dept. of Educ., 34 Misc. 3d 161 (Sup. Ct., NY County, 2009)
19
King v. New York State Dep't of Health, 295 AD2d 743 [3d Dep't 2002]
31
Lackow v. Department of Educ. of the CitvofNew York, 51 A.D.3d 563 [1st Dep't 2008]
...................................................................................................................................16
Martin v. Ambach, 67 N.Y.2d 975 [1986]
18
24
17
16,17, 19
20
19
18, 74
1
Statutes
8 NYCRR 19.5
24
8 NYCRR 200.22
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passim
iv
8 NYCRR 82-3.8
17,21
19
CPLR 7803
1, 16, 18
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GLOSSARY
The following lists the individuals mentioned in this memorandum of law and
briefly describes their role or relevance to the charges. The witnesses
are identified by their last names in this Memorandum of Law.
------------------------------------------------------------------------------------------------------------------Role or Relevance
Witness
Student CS ("CS")
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vi
Student KP ("KP")
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vii
Laura Viera-Suarez
Petitioner
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viii
PRELIMINARY STATEMENT
electronically to the Court as Exhibit "C" to the affirmation, and references to the
transcript are identified by the letter "T" followed by the appropriate page number. The
District's hearing exhibits are Exhibit "0" and Petitioner's hearing exhibits are Exhibit "E"
to the affirmation).
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STATEMENT OF FACTS
Petitioner was a successful educator for 36 years prior to the termination of her
employment. A significant portion of her personal and professional life has been
devoted to educating and caring for emotionally disturbed young men with a
commitment that extended far beyond what can be reasonably expected.
(T. 1700-
1705).
Petitioner has worked closely with children with severe emotional problems
throughout her career. Petitioner's first employment after graduation from school was in
1979 with Oneonta Job Corps, which was an alternative to incarceration for youth.
Petitioner taught and also worked on the development of the program and GED
programs. (T. 1699). Petitioner then worked in a Putnam County residential psychiatric
treatment center (an "RTC") where she taught emotionally disturbed students for 7
years, and held several administrative positions, starting as the clinical curriculum
coordinator and then Vice Principal, followed by 13 years as Principal of the RTC. (T.
1700-1702).
The SOCES serviced nine component districts and had several sites for
Petitioner worked for the Utica City School District as the Principal of the Liberal Arts
Academy at Proctor High School. (T. 1703-1704). Petitioner has been employed by the
Syracuse City School District (the "District") since 2005, beginning as Principal of
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Fowler High School from 2006-2009 and then Director of English as a Second
Language, ESL Bilingual and Languages other than English from 2009-2012. (T. 1705).
Petitioner has an Associate's Degree in Early Childhood Education from
Farmingdale University. Petitioner completed her Bachelor's Degree in Education and
began to work on her Master's Degree at SUNY Oneonta and completed her Master's
Degree and Professional Diploma in Special Education in School Administration at
Fordham University. (T. 1704-1705). Petitioner's Certifications are in Special Education,
Early Childhood Education, School Administrator/Supervisor Certification and School
District Administrator. (T. 1704-1705).
As Principal of LeMoyne Elementary School for the 2012-2013 and 2013-2014
school years, she supervised 100 staff members and more than 500 students.
(T.
1728-1729; Exhibit E-58). Special education students constituted 19.3% (over 100) of
the entire student population of LeMoyne Elementary (Exhibit E-58) and several
emotionally disturbed students placed incredible management demands on the staff.
(See, Joint Exhibit 4, Exhibits E-1-4, and E-9). Amongst her colleagues and superiors,
Appellant has been widely praised and commended for her "nurturing" demeanor and
unwavering commitment to all of her students. (See, testimony of Moulton [T. 286],
Cleary [T. 371], Dooley [T. 620], McDonald [T. 800], Wade [T.1385], Abt [T. 1574],
Lowengard [T. 1490-1491] and Warren [T. 1906]).
Petitioner's husband is employed by the Roman Catholic Archdiocese of
Syracuse as the program director of after-school programs.
(T. 1706-1707).
By
profession, he is a counselor who also spent most of his career working with severely
emotionally disabled students.
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been scrutinized by case workers, law guardians and others whose job is to protect the
welfare of vulnerable children.
about the Suarez household for decades because Petitioner and her husband have
entered foster parent relationships and "closed adoptions" with six severely emotionally
disabled children who they have raised to adulthood.
The first child adopted by Petitioner and her husband was a resident of the RTC.
Before coming to that facility, he had been hospitalized for a year with multiple burns
and other injuries inflicted by his birth father. They adopted this young man when he
was seven years old. (T. 1710-1711). The next two adopted children were brothers who
were placed in foster care with Petitioner and her husband when they were 13 and 14
years old.
directly from
schizophrenia.
Rockland
Psychiatric
hospital with
diagnosis
onset
Both boys had ODD (Oppositional Defiant Disorder), and one was
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(1. 1723).
As a consequence, law
guardians and other case workers still frequently inspect and evaluate the Suarez family
setting. (1. 1712-1713).
Student KP's Behaviors and the District's Responses
The student at the center of the Charges (KP) is emotionally disturbed and prone
to extremely hostile behavior and outbursts that create serious safety risks for everyone
around him. He presents constant and almost insurmountable behavioral problems that
endanger himself, his teachers and fellow students. (See, Joint Exhibit 4 which contains
32 Disciplinary Referrals for the 2013-2014 school year for KP, and Exhibits E-1-4, and
E-9).
His documented behaviors included running throughout the school and hiding
wherever he can; screaming, cursing, and dumping over trash cans; physically and
without provocation attacking younger students; hitting a pregnant teacher in the
abdomen; slamming doors to classrooms; throwing wastebaskets; climbing on stair
railings; banging on windows and walls; scratching the face of staff members; and
kicking, punching and tantruming on an almost daily basis. Staff members testified that
KP's typical behaviors were "extremely unsafe" (1. 748-749) and frequently required
him to be physically restrained in order to effectively protect himself, others and school
property. (1. 246 [Moulton], 762-763 [McDonald], 1246, 1316-1317, 1342-1353 [Wade]
and 1858 [Petitioner]; See, Exhibit 0-14 for 1-18-12,3-1-13 (twice), 3-4-13, 3-13-13,424-13, 4-26-13 and 9-27-13). Sometimes, that response required immediate restraint
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using reasonable physical force at a location near his outburst. (T. 1341-1342, 22812282).
KP frequently had to be restrained to protect himself, others and school property.
Vice Principal McDonald told Wade, the District's lead investigator in this matter, she
has "to restrain [KPJ - when he strikes out at people" and that her "biggest fear - he will
hurt a bigger kid and they retaliate." (See, Exhibit 0-24). Teaching Assistant, Bishop,
provided similar testimony (T. 2258-2282), and KP's private therapist agreed that
restraint was necessary. (T. 754-786). In fact, Wade observed one out-of-control
situation where KP had to be restrained by the substitute Principal. (T.1353). These
dangerous behaviors were confirmed by testimony of other staff members.
(See,
T.199-200 [Moulton], T. 305 [Cleary], T. 447, 508 and 521 [Dooley], T.909-910, 939-940
and 1268 [Wade], T. 1886-1887, 1894-1895 and 1900 [Warren] and T. 1574-1576
[Abt]).
She
would meet KP at the front of the building every morning and escort him to breakfast
either in the cafeteria, if he could put up with that stimulus or, more often, in Petitioner's
office. (T.1905-1906).
McCarthy program was a separate school operated for students with serious emotional
issues. (See, e.g., T. 1270).
(T.1762-1763). However, his grandmother refused to let him stay in the program
because it dismissed too early in the day and she "had other things to do." (T. 242, 764765, 1270-1271). Despite the unquestioned severity of KP's issues, the LeMoyne staff
received little help in response to numerous requests made to both the District's Special
Education office and KP's family. (Exhibit 0-38, Pg. 3 of 5). The Special Education
department ignored pleas by the staff to transfer him to McCarthy or another more
appropriate setting.
3. KP was a "Runner."
It is uncontested that one of KP's typical behaviors was to run into various
spaces throughout all floors of the school building.
("Dooley") testified that he would run to any unlocked area and hide. (T. 518). Bishop
also testified that KP "would run through the halls. He -- he would run out of the building.
He has jumped out of a window and when he's running through the halls he's trashing
and he's hitting students. And the scariest part is when he stands up on the railings in
the second floor and looks down the stairs." In Bishop's opinion, KP's behaviors
absolutely constituted a danger to himself and to other students. (T. 2258).
Warren told Wade "There is a place he goes to - Mr. Bishop would meet him in
area - right in there - he would get sick and throw up in the room".
(Exhibit 0-40).
Petitioner testified that KP frequently worked himself into such an agitated state that he
would throw up. (He "would throw up often. He -- his temper tantrums were such that
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he would temper tantrum to a point where he would -- he would gag and make himself
throw up."). (T. 1785).
Also, the Committee on Special Education noted in his December 18, 2013 IEP
that KP ran around the school and that an "adult is usually with him at all times to try to
help him be successful throughout the day with his peers and academics, but most of all
to be safe." (See, Exhibit 0-3, p. 3 of 8).
typical behaviors was "running away from class and hiding throughout the School."
(Decision, p. 7). As it relates specifically to the Charges, McDonald testified that KP
"actually open[ed] the door' to the Vestibule room one time after he had run to that
location. (T. 803).
Whenever KP bolted from the classroom, Warren or one of the classroom
teachers immediately pursued him. (T. 230).
situation they could not handle, they contacted the Main Office for assistance via an
intercom system.
(T. 757).
(T. 757).
McDonald testified that when KP "got angry, he would run, he would hit, he would kick,
he would spit," and that she dealt with KP's behaviors on a "almost a daily basis."
(T.664-665).
"Time Out Rooms" v. "Emergency Interventions"
There was some confusion throughout the hearing regarding the difference
between using a "Time Out Room" for reflection (see, 8 NYCRR 200.22[c]) and
employing an "Emergency Intervention" to prevent an out-of-control student from
harming himself, others or destroying District property. (See, 8 NYCRR 200.22[d]).
These two concepts were the subject of significant focus at the hearing as it related to
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(T. 508-509,
Dooley claims Petitioner asked her to help get KP to the Vestibule room and,
after they got him there, Petitioner held the door shut while KP screamed for fourminutes from inside the room.
Dooley also claims that Francis, the building's custodian, came by the Vestibule
room on October 29th while KP was screaming inside the room, and that Francis then
took Dooley and Petitioner inside the room to show them that there was no lock on the
inside door. Dooley claims the three of them had a discussion about the lock. (See,
Exhibit 0-15, and see also, T. 455-457, 493-494, 549).
denied any recollection of this incident.
(T. 1953).
Petitioner denies that the incident claimed by Dooley ever occurred. In addition,
from approximately 8:45 am to at least 10:15 am on October 29, 2013, she was
involved responding to a serious fight between three emotionally disturbed students that
resulted in personal injury and significant property damage, including injury to Petitioner.
The Main Office area was trashed during this incident and one student was taken to the
hospital. Several staff members responded to the incident, including Dooley who treated
injuries to the student and Petitioner. Police officers and representatives of Onondaga
Case Management ("OCM") were also called to assist, as was an ambulance with EMS
personnel.
Discipline Referral and accident reports that were contemporaneously prepared
by several individuals are exhibits in the record. Dooley documented her treatment of an
injury suffered by the student (CS) when he kicked in a panel to the office door. (T.
1816). She prepared that note at 9:43 that morning. (Exhibit E-64). Dooley examined
the students ankle injury, called 911 to have him transported to St. Joseph's Hospital,
immobilized his right lower leg to the knee with a splint, applied ice packs to the leg, and
determined that he was "in stable condition" when he left for the hospital in an
ambulance with his grandmother. (Exhibit E-65). She also attended to Petitioner's injury
and signed the accident report. (Exhibit E-17).
The Grandmother's Complaint
On June 11, 2014, KP was again out of control banging on the glass windows in
the hallway outside Dooley's office. When Dooley tried to stop him, KP kicked and
punched her in the abdomen. Dooley telephoned KP's grandmother to inform her that
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10
the school had called 911 to transport him to C'Pep at St. Joseph's Hospital for a
psychiatric evaluation. (See, Exhibit 0-14, pp. 4-5). KP's aunt was the first family
member to arrive at the school in response to that call. She reacted angrily to the
situation and claimed that KP was acting out because the school was "locking him in a
closet in the basement." (T. 1849-50). The aunt also called the District's Special
Education office to make the same complaint. (Exhibit 0-6).
11
a "Time Out." McDonald was the sole witness who claimed that Petitioner had given
her such a direction.
Both Charges allege that KP was subjected to "physical abuse" by being placed
in the Vestibule room.
District employee who "investigated" the complaint of KP's family that he had been
"locked in a closet in the basement of the school," were not truthful and, also, that
Petitioner "requested" Dooley and McDonald to "make false statements" to Wade
relative to her investigation.
B. The Hearing Officer's Determinations
posed to her by Wade during the "investigation," and that she had requested" Dooley
and McDonald to "make false statements" to Wade relative to her investigation.
The hearing officer determined that there was "just cause to Impose the penalty
of discharge" based on his findings that Petitioner had "placed or caused to be placed a
disabled male student (KP) in [the Vestibule room] in violation of his IEP and BIP, had
personally given "false accounts" to Wade and had "wrongfully relied on her position as
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12
2. Due process and Education Law 3020-a(4)(a) require that the hearing officer's
Decision set forth findings of fact on each charge, [and] his ... conclusions with
regard to each charge based on said findings." The hearing officer made only
minimal findings of fact on disputed material issues that are relevant on the
merits of the Charges, and some of these were erroneous. He also failed to
make any findings of fact on significant evidence. As a consequence the
Decision consists primarily of conclusory statements that lack any evidentiary
foundation.
3. The hearing officer's conclusory findings regarding Charge No. 1 are based on
an erroneous standard of proof. After creating a bizarre and incomplete
"timeline" of events on October 29, 2013, the hearing officer found that "there is
an unaccounted gap between the initial disciplinary referrals of 8:45 am and
Respondent's injury at 10:00 am which does not make the alleged EMR incident
with KP an impossibility." This analysis erroneously required Petitioner to prove
that Dooley's version was "impossible." Conversely, it changed the District's
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13
October 29, 2013. This fact makes it highly unlikely, if not impossible, that
she was at the Vestibule room as she claims.
5. The hearing officer's conclusory findings regarding Charge No. 2 are not
supported by substantial evidence, and McDonald's testimony fails to establish
any misconduct by Petitioner.
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14
(a) Petitioner denies McDonald's claim that, in January 2014 she, Warren and
KP when he was out of control near that room. At least once, she shut the
door and held it closed for a brief period as KP tried to pull it open. Putting
KP in the room alone and holding the door shut on him was a decision
McDonald made in her discretion. It was never discussed with Petitioner
and, most certainly, was not done pursuant to any "directive" from
Petitioner. (T. 1884-1885, 1985).
(e) McDonald's testimony was uncertain regarding exactly what the alleged
directive was. At one point, she stated Petitioner "said she had a place
that she thought would work." (T. 676). Later, she "said this could be a
good time out space for' KP (T. 681), and still later that Petitioner said
"this would be a good space for' KP. (T. 682).
6. Charges Nos. 3, 4, and 5, which regard the District's investigation of the
allegations encompassed in Charges No. 1 and 2 are dependent on the outcome
of those two charges. If Petitioner is exonerated on Charges No. 1 and 2, she
must also be exonerated on Charges Nos. 3, 4, and 5.
7. The penalty of termination of employment was unwarranted, unjust and rendered
without any consideration given to the criteria set forth in Matter of Pell, 34 NY2d
222 (1974).
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15
Educ. of the City of New York, 51 A.D.3d 563, 567 [1st Dep't 2008], citing Matter of
Motor Veh. Ace. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [19961).
While Article 75 may provide a constitutionally adequate judicial review of an award in
voluntary arbitration, the Court of Appeals has held that "voluntary arbitration and
compulsory arbitration are fundamentally different."
deprivations of, or restrictions upon, personal rights that an individual might freely
consent to may only be compelled by government if they "accord with procedural and
substantive due process." (Mt. St. Mary's Hospital v. Catherwood, 26 NY 2d 493, 500
[1970]).
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16
Twenty years after the Mount St. Mary's decision, the Court of Appeals
reaffirmed the enhanced standard for judicial review of compulsory arbitration awards in
the following terms:
Inasmuch as compulsory arbitration is involved, judicial review under
CPLR article 75 is broad, requiring that the award be in accord with due
process and supported by adequate evidence in the record (see, Caso v.
Coffey, 41 NY2d 153, 156; Mount St. Mary's Hosp. v. Catherwood, 26
NY2d 493, 508, supra). The award must also be rational and satisfy the
arbitrary and capricious standards of CPLR article 78 (Caso v. Coffey,
supra, at 158). If the arbitrator fails to follow the statutory standards, the
award should be vacated for exceeding the legislative grant of
authority (see, Mount St. Mary's Hosp. v. Catherwood, 26 NY2d 493,
506, supra, quoting Matter Guardian Life Ins. Co. v. Bohlinger, 308 NY
174,183).
(Motor Vehicle Mfrs. Ass'n v. State, 75 N.Y.2d 175, 186-87 [1990]).
Here, the underlying 3020-a hearing was compulsory. As such, the award must
be evaluated under this enhanced standard of review. (See, also, Matter of Bd. of Educ.
of Dundee Cent. School District [Coleman], 96 AD3d 1536, 1538 [4th Dep't., 2012]
[where the ''parties are subject to compulsory arbitration, the award must satisfy an
additional layer of judicial scrutiny - it 'must have evidentiary support and cannot be
arbitrary and capricious. "1).
B. Additional Levels of Inquiry for a 3020-a Decision
Three additional levels of judicial inquiries are required for awards in 3020-a
proceedings, two mandated by statute and one judicially defined. First, Education Law
17
Second, Education Law 3020(1) provides that "No person enjoying the benefits
of tenure shall be disciplined or removed during a term of employment except for just
cause." A reviewing court should determine whether the hearing officer has complied
with this imperative so that no finding is made or penalty imposed without just cause.
Third, Pell v. Board of Education, 34 NY2d 222 (1974), requires the court to
determine whether a penalty imposed is "shocking to one's sense of fairness." If so, the
Court should "ameliorate harsh impositions of sanctions ... not only as a matter of
legislative intention, but also in order to accomplish what a sense of justice would
dictate." (Pell, supra, at 235).
C. The District's Burden of Proof
The District bears the burden of providing a quantum of evidence relative to the
charges that is sufficient to prove each charge by a preponderance of the evidence.
(Martin v. Ambach, 67 N.Y.2d 975 [1986]).
D. Substantial Evidence is the Appropriate Standard of Judicial Review
Phrases such as "must have evidentiary support' and "supported by adequate
evidence in the record' establish that judicial review in a compulsory arbitration case is
to extend beyond the limited grounds set forth in CPLR 7511. They do not, however,
establish the standard of review to be used by the judiciary in examining the record (i.e.,
rational basis, substantial evidence, preponderance of the evidence, beyond a
reasonable doubt or some other standard).
In this regard, courts have borrowed standards from CPLR Article 78.
For
example, where an award is not based on a hearing at which evidence was taken, the
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18
Court of Appeals has adopted the CPLR 7803(3) standard that requires an award "have
evidentiary support and cannot be arbitrary and capricious" (see generally, Alexander,
Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7511 :5, at
778-782, citing MVAIC v Aetna Cas. & Surety Co., 89 NY2d 214, 223 [1996]).
Where, as here, the award is the result of a hearing at which evidence was taken
pursuant to direction by law, the standard of judicial review is the CPLR 7803(4)
requirement that the award be, "on the entire record, supported by substantial
evidence." See, e.g., Matter of Gongora v. NYC Dept. of Educ., 34 Misc. 3d 161, 166
(Sup. Ct., NY County, 2009) ("The requirement that the decision under review be
supported by adequate evidence restates CPLR 7803(4)'s ground for review.").
E. Constitutional Implications
The Court of Appeals in the Mt. St. Mary's held that due process requires an
appropriate standard of judicial review in any compulsory arbitration that potentially
impacts constitutionally protected property or liberty interests. (Mt. St. Mary's Hospital,
26 N.Y.2d at 498-99, 508-09). There are also equal protection concerns relative to the
proper standard of judicial review of a 3020-a award since, generally, all public
employees in New York are entitled to judicial review under the substantial evidence
standard codified in CPLR Article 78. A non-tenured public employee holding a clerical
position who challenges an award following a pre-deprivation hearing would be
statutorily entitled to have that award judicially reviewed under the CPLR 7803(4)
substantial evidence standard. To apply any lesser standard to the review of an award
in a 3020-a case would effectively deny the tenured employee the equal protection of
the laws guaranteed by the U.S. and State Constitutions.
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19
This is one more reason why it is necessary for the judiciary to borrow from
Article 78 when reviewing a 3020-a award.
The Fourth Department has held that the award following an administrative
hearing must contain more than simple conclusory statements of guilt in order to survive
judicial review. (Aikins v. Curtis 81 A.D.2d 1020 [4th Dep't 1981]). The hearing officer
has an obligation to analyze the entire record fairly and objectively and make specific
findings of fact based on that evidence to support his or her conclusions. The Court
expressed this fundamental obligation as follows:
"The administrative finder of fact is obliged to "consider and sift all the
evidence -- accepting the true and rejecting the false" (cite omit). Since the
hearing officer's report does not contain any specific findings of fact but
only conclusory statements of guilt, we can only assume from this
somewhat ambiguous statement on the quality of the evidence that an
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20
{W0274748.1}
21
POINT III
THE HEARING OFFICER ERRONEOUSLY FAILED TO
CONSIDER RELEVANT AND PROBATIVE EVIDENCE REGARDING
"EMERGENCY INTERVENTIONS"
Several specifications allege that the Vestibule room (Elevator Machine Room)
was not a District authorized "Time Out" room and did not conform to the requirements
of 8 NYCRR 200.22(c). Petitioner denies that she ever placed KP in the Vestibule room
or directed McDonald or anyone else to do so. However, she agrees that any use of that
room
purposes would
the
requirements
of
Commissioner's Regulation 200.22(c), and further agrees that such use was not
authorized by the District. In fact, the Board did not adopt a resolution to authorize the
use of any Time Out room until January 24,2015. (See, Exhibit E-29).
A. Petitioner Agrees the Room was Not an Approved "Time Out" Room
There is no question that the Vestibule room as it existed in the 2013-14 school
year did not comply with the requirements of Commissioner's Regulation 200.22(c). In
fact, it is doubtful whether any room within the l,.eMoyne Elementary school satisfied all
of those requirements (i.e. "adequate in width, length and height to allow the student to
move about and recline comfortably", "wall and floor coverings designed to prevent
injury to the student," "free of objects and fixtures can be potentially dangerous to a
student," etc.). (Section 200.22[c][5]).
that was a precondition for using any room for "Time Out" purposes until January 24,
2015. (See, 8 NYCRR 200.22[c][5]; Exhibit E-29).
Time out rooms are used to remove a student to a supervised area in order to
reflect and facilitate self-control consistent with the student's Behavior Intervention Plan
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22
"Time Out" stated" Student will be removed for a timeout. The 5 minutes will begin when
he is quiet with his head down. (in conference room)." (See, Exhibit 0-5). This was the
room next to Petitioner's office in the Main Office suite (T.120), a multipurpose room
designated as a reflection room in other student's BIPs and used for several other
activities beyond student reflection. There were times when it was in use and not
available for KP. (T. 1770).
The conference room could only be used when KP was under control, quiet, and
able to put his head down to reflect for five minutes. (T.1771). That "response" was
ineffective when he was in a rage and out of control. The BIP was meaningless when
KP was racing through the halls, tearing items off the walls, assaulting younger
students, kicking and punching staff members, climbing on the banisters of the second
floor stairway, or screaming, swearing, spitting and biting. (See, e.g. T. 532-533
[Dooley], T. 664-665,748 [McDonald], T. 1761, 1767, 1887 [Petitioner] and T. 22582259 [Bishop]). In these circumstances, a different intervention was required.
B. An Emergency Intervention was Often Necessary and Appropriate
Commissioner's Regulation 8 NYCRR 200.22(d) authorizes the use of
"Emergency Interventions" in situations where Section 19.5(a)(3) of the Rules of the
Board of Regents permit the use of physical force with a student. These situations are
(i) to protect oneself from physical injury; (ii) to protect any person from physical injury;
(iii) to protect the property of the school, school district or others; or (iv) to restrain or
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23
remove a pupil whose behavior is interfering with the orderly exercise and performance
of school or school district functions, powers and duties. (See, 8 NYCRR 19.5[a][3])).
There are several reasons why it was appropriate for school authorities to take
appropriate emergency intervention when KP was out of control. One is the fact that, if
the District failed to adequately supervise his conduct, it could be held liable for
foreseeable death or injuries proximately related to that lack of supervision. (Mirand v.
City of New York, 84 NY2d 44 [1994]). The District certainly had sufficient and specific
knowledge of KP's dangerous conduct and more than adequate notice of his potential to
cause injury to third parties as well as himself if left alone. Resulting injuries could and
should have reasonably been anticipated. School authorities may not ignore dangerous
conduct of a very seriously disturbed child without consequences. (Ferraro v. Board of
Education, 32 Misc. 2d 563 [Sup. Ct. NY, App. Term. 2nd Dep't. 1961]).
emergency intervention.
acknowledged that this type of intervention was required even if they were not
specifically aware of Commissioner's Regulation 200.22(d). (See, e.g.,1.1760-61
[Petitioner], 1. 752-754 [McDonald], 1. 1894-95 [Warren] and 1.2258-2261 [Bishop]).
{W0274748.1}
24
McDonald testified that she only used the room when KP was out of control "near
the room" and she had to "defuse" those behaviors and "restrain" him from hurting
himself or others.
(T. 763-764).
tantrum and he was a danger to himself or a danger to anyone else." (T. 690). She
An emotionally disturbed
student who is out of control has to be calmed down by appropriate staff intervention. It
is only then that such a seriously troubled student would be able to receive any benefit
from reflection time. (T. 1765-66).
However, Petitioner does not agree with McDonald's decision to close the door
on KP and hold it shut. She also believes that an adult should always be in the room
{W0274748.1}
25
handling KP in this way, she would have put an immediate stop to such treatment.
Wade, the District's lead investigator, had no knowledge of the Commissioner's
Regulation on Emergency Interventions. (T. 1360). It is not surprising, therefore, that
she wrongly believed the regulations governing a "Time Out" room (which the Vestibule
room clearly did not satisfy) rendered any use of the room illegal, including appropriate
emergency interventions. Her ignorance regarding emergency interventions and her
words and actions regarding the possibility of criminal conduct spread fear and anxiety
among the staff and apparently motivated some to blame others for their own actions.
This was an incredibly important issue to Petitioner. She adamantly denies ever
placing KP in the Vestibule room or directing anyone else to do so. At the same time,
she contends that appropriate use of that room for an emergency intervention (i.e., with
the door open and an adult inside with the student) should not be the subject of
charges. An essential element of Petitioner's defense was that it was wrong for the
District to attempt to graft the formalities for Time Out rooms onto the Emergency
Intervention Regulation. However, the Decision does not say one word about
"Emergency Interventions." This omission violates the hearing officer's obligation to
consider and evaluate all the evidence and deprives Petitioner of her statutory right to
be disciplined only for just cause.
{W0274748.1}
26
POINT IV
THE HEARING OFFICER FAILED TO CONSIDER RELEVANT
AND PROBATIVE EVIDENCE REGARDING THE UNFAIRNESS
OF THE DISTRICT'S INCOMPETENT "INVESTIGATION"
OF THE COMPLAINT BY KP's GRANDMOTHER
The reasons why Petitioner contends the "investigation was incompetent and
flawed to her detriment include the fact that (a) Wade is a Civil Service stenographer
with limited experience and no real training in conducting investigations (T. 881-83,
1391-93) who was not qualified to conduct the investigation, (b) her former boss, exSuperintendent Daniel Lowengard, testified that she did not have the aptitude to
conduct such an investigation because she saw everything in black and white, with no
gray (T.1489), (c) she had no knowledge of the controlling policies or laws (T. 128687), (d) she had no experience in Elementary School operations or administration (T.
1263-65) and (e) she had no experience dealing with emotionally disturbed students.
Moreover, her investigation was fatally flawed by her failure to interview the
complainant, the fact that she made premature judgments without all the facts, her
failure to get corroborating evidence to confirm witnesses' input, and her failures to
{W0274748.1}
27
properly document the evidence received and to prepare a report that summarized and
analyzed the evidence and justified her conclusions.
B. Wade's Incompetence Prejudiced Petitioner
Perhaps Wade's most egregious error was her failure to inform Petitioner as to
what Dooley and McDonald had stated to her.
An indispensable element of a
robbed her of the chance to refute the claims and eliminated any opportunity to provide
a proper context for facts which can be misconstrued in the wrong context.
The
inevitably to the 3020-a charges. Those charges are primarily based upon Dooley's
fabrication regarding October 29, 2013 and McDonald's self-serving interpretation of
various discussions with Petitioner. Clearly, the "he said, she said" nature of these
{W0274748.1}
28
The hearing officer refers to the Vestibule room as the "EMS" or "Elevator
Machine Room" throughout the Decision. They are the same room.
{W0274748.1}
29
The IEP does not mention time out rooms and has no relevance to the use of
such rooms since the District did not permit the use of Time Out rooms at any
school in the District until January 24, 2015. (See, Exhibit E-29). Also, the
IEP has no relevance to an "Emergency Intervention" in any event.
4. Placing KP in the Vestibule room for purposes of subjecting him to a
"time out" was not "authorized" by his behavior intervention plan
("BIP").
KP's Behavior Intervention Plan provided a range of possible "Responses" to
his disruptive behaviors. The closest one to a "Time Out" room stated
"Student will be removed for a timeout. The 5 minutes will begin when he is
quiet with his head down. (in conference room)." (See, Exhibit 0-5). By
definition, the BIP had no application to an "Emergency Intervention."
apparently realized that Wade believed something horrible had happened to KP and
was looking for someone to blame. Dooley became nervous, since she knew that KP
{W0274748.1}
30
had been in the Vestibule room but had not reported it or noted it in her nurses' notes.
(Exhibit 0-14). Realizing that she might come under criticism, Dooley concocted the
story that Petitioner had asked her to help Petitioner put KP in the room and then,
sometime around her third interview on June 18, 2014, created the nurses' note to
support this story.
Her story evolved from no mention of the Vestibule room to eventually claiming
that she helped Petitioner place KP in the Vestibule room on October 29, 2013. She did
not make this claim during her initial interview with the District's investigators, made a
vague reference to it during her second interview, and added further allegations during
subsequent interviews.
{W0274748.1}
31
support the determination, it is error for a hearing officer to accept one version over
another simply to resolve a credibility dispute.
D. The Hearing Officer Failed to Properly Address the Credibility Conflict
No other relevant and probative evidence provides any evidence, let alone
substantial evidence, to support Dooley's story.
corroborating evidence.
computer system, offered no evidence that the entries 90uld not be backdated. In fact,
Dooley confirmed information could be entered into her computer at any time. (T. 554).
On the other hand, Petitioner's testimony is supported by a significant body of relevant
and probative evidence from a number of documentary and testimonial sources.
The hearing officer did not address this conflict by analyzing the credibility of
either Petitioner or Dooley as one might expect. Instead, he relied almost exclusively
on the testimony of McDonald to bolster Dooley's claim. He did so despite the fact that
McDonald was not even in the building on October 29, 2013 (see. T. 780), and had
never claimed that Petitioner placed KP in the room. In fact, McDonald testified that she
never saw Petitioner put KP in the room. (T. 777-778, 791).
The hearing officer set forth five "reasons" why he determined that Dooley was
credible and Petitioner was not. These reasons are irrational and not supported by
evidence in the record:
32
T. 1964: "Q. In-In this fall of 2013, you did have discussion with Ms.
McDonald about using a room for Student [KP) when he tantrumed (sic),
correct? A. We had a conversation about the possibilitv of using a room
for Student [KP). Q. And the use of the elevator machine room was
discussed as a possibilitv with Ms. McDonald, correct? A. That was one of
the possibilities.'J Such conversation took place when: "Shortly after the
meeting Laura mentioned that (KP's) grandmother had given permission
to use the 'time out room'." (0.16, p.2.) Petitioner denied that NS ever
gave her permission to use the EMR as a time out room. Petitioner also
denied telling Ms. McDonald to use the "time out room" (EMR). McDonald
asserted in a statement given to police that the first time she was actually
told to use the EMR was by Suarez in January 2014 (D. 16, p.2)."
(Decision p. 9) (Emphasis added).
1(b).
Petitioner freely testified that she and McDonald did "discuss" the Vestibule room
as one of several "possible" time out rooms. (T. 1838-39, 1908-09). That discussion
was based on the understanding that a number of hurdles had to be cleared before any
space could be used for that purpose.
policy that authorized the use of "time out" rooms within the District generally. At that
time, they were not allowed anywhere within the District. 3 Second, a specific time out
room would then have to be approved for use by the District's Director of Special
Education, Brian Pulvino. (T. 1839). Finally, if the Vestibule room was to be used for
"Time Out" purposes, it required modifications to comply with the Commissioner's
Regulations. (See, 8 NYCRR 200.22(c)(5); Exhibit E-30; see, also, T. 2001-02). No
action was taken at the building level beyond discussion of possibilities, and the
Vestibule room was never designated as a "time out" room. (T. 2004).
The Board did not approve the use of "time out" rooms until January 14, 2015,
long after the charges had been levied against Petitioner. (See, Exhibit E-29; T. 1756).
{W0274748.1}
33
Obviously, the fact that Petitioner and McDonald "discussed" the room as a
possibility at one time is not competent proof that Petitioner put KP in the room on
October 29, 2013 as alleged by Dooley.
2(a).
The implication that McDonald was a "newbie" who had to obtain prior approval
from Petitioner for all her actions is completely unfounded. The Hearing Officer knew
that McDonald was not an "intern" in the traditional sense.
District required individuals who applied for administrative positions to serve a so-called
"administrative internship." This enabled the District to extend the probationary term for
administrators by employing them in an "intern" basis before they received their actual
probationary appointments. (T. 1129-30, 1159, 1774).
McDonald is an experienced educator who, at the time, had been employed by
the District for 19 years.
(T. 657).
Leader by SED and was qualified by experience and certification to function as a public
school administrator. (T. 659, 666). She was also a "mandated reporter" who had a
statutory obligation to report to Child Protective Services ("CPS") or other law
enforcement agency whenever she had reason to suspect that a student was the victim
of child abuse or neglect. (T. 732-733).
{W0274748.1}
34
program is a school operated by the District for students with severe emotional deficits
(T. 33), and McDonald worked at McCarthy during the summer months. (T. 667). No
other administrator performed the Vice Principal duties and responsibilities at LeMoyne;
they were all handled by McDonald. (T. 742-743).
Nevertheless, the hearing officer appears to have concluded that McDonald
could not act independently and had to receive direction from Petitioner on every action
she took in her position as Vice Principal. For example, he stated it was "highly unlikely
that Ms. McDonald would have used the EMR without approval from Ms. Suarez"
(Decision, p.6). He further found "little reason to believe" that McDonald acted on her
own, and he credited McDonald's testimony that "she acted upon the advice and
direction of Ms. Suarez" when she placed KP in the Vestibule room. (Decision, p.10).
Based on these assumptions, the hearing officer held Petitioner legally culpable for
McDonald's actions.
The hearing officer's determination that McDonald lacked independent authority
and Petitioner is, therefore, culpable for McDonald's actions is not supported by the
evidence. McDonald was the Vice Principal in fact. She was responsible for "evaluating
and supervising teachers and staff, disciplining students, working with the community
{W0274748.1}
35
and parents and -- in other words, supporting the principal of the school." (T. 660). No
one else acted as the Vice Principal and McDonald acknowledged that her duties "as an
3 (a).
''Third, Ms. McDonald admitted using the EMR, while Suarez denied either
using the EMR herself or advising McDonald to use it for controlling KP's
behavior." (Decision p. 9).
3(b).
McDonald did use the Vestibule room, and she could not plausibly deny that fact
because of the number of people who saw her at the room with KP.
For example,
Warren, who was with KP every day (T. 1886), testified that McDonald used the room
for KP at least four times and that she was with her each of these times. Warren also
testified that she never saw Petitioner at the room. (T. 1896 1901, 1904).
Bishop too saw McDonald use the room with KP. He heard screaming from the
room in June 2014 and saw KP in the room with McDonald at the door and Warren
standing behind McDonald. (T. 224-25). Dooley also testified that she saw McDonald
place KP in the room on two occasions. (T. 469-70, 474). Finally, Francis, the school
McDonald has been on a paid administrative leave since June 18, 2014, in
connection with the complaint regarding KP. She is not the subject of any charges or
other disciplinary action by the District. (T. 658).
{W0274748.1}
36
custodian, saw McDonald in March 2014 outside the room holding the door closed with
a student in the room. (T. 1950-51).
Thus, it is not surprising that McDonald admitted using the room. However, it is
difficult to understand how that admission has any bearing upon Petitioner's credibility.
The fact that McDonald admitted using the room and Petitioner denied doing so is of no
help in resolving the irreconcilable differences between Petitioner and Dooley regarding
the events of October 29, 2013.
otherwise.
4(a).
"Fourth, Petitioner was well aware that the EMR had been used for KP,
being present at the EMR at the very least once in December 2013 as
witnessed by Mr. Anthony Bishop (T.2230-22345) and confirmed by
Suarez herself (T.1840-1842). While Suarez admitted seeing McDonald,
Bishop and PK at the EMR at that time, there is no proof that she took any
affirmative action to question or admonish McDonald, if, in fact, the
placement was contrary to her expectations." (Decision p. 9).
4(b).
The one and only time Petitioner was made aware that KP had been in the room
was the "throw up" incident involving Teaching Assistant, Bishop, on December 9, 2013.
Petitioner had been told that KP had run into the Vestibule room on his own that day. (T.
1840, 1842; see, Exhibit E-28, p. 11).
corroborated by McDonald's testimony that she and Bishop "were chasing" him when he
was "running through the halls" (T. 692) and that KP opened the door to the room. (T.
693). This is what McDonald told Petitioner, this was Petitioner's understanding as to
{W0274748.1}
37
how KP came to be in the Vestibule room, and this is what she told the school
investigators.
There is no dispute that one of KP's typical behaviors was to run into various
spaces throughout the school building. (See, Section B.3 of the Statement of Facts).
Therefore, there would be no reason for Petitioner "to question or admonish McDonald"
because KP had run into the Vestibule room. There is no rational reason to conclude
that Petitioner's version of events on October 29, 2013 lacks credibility because
McDonald
was not admonished, and whether Petitioner did or did not reprimand
"if, in fact, the placement was contrary to her expectations." Petitioner's "expectation"
was that KP would run to any location within the school if given the opportunity to do so.
(1. 1761).
Her further "expectation" was that either Warren, Bishop or one of his
classroom teachers would immediately pursue KP to prevent him from hurting himself or
others. (1. 1760-61). These expectations were justified and reasonable considering
KP's daily conduct.
5(a).
Petitioner asserts that Dooley's story regarding October 29, 2013 could not
possibly have happened because Petitioner was fully occupied that morning responding
to what was a full scale brawl among emotionally disturbed students that began in a
classroom and spread to the Main Office suite. The hearing officer completely
discounted this evidence and determined that this argument "also fails" because he
{W0274748.1}
38
found "an unaccounted gap between the initial disciplinary referrals of 8:45 am and
Respondent's injury at 10:00 am which does not make the alleged EMR incident with
KP an impossibility."). (Decision, p. 9).
5(b).
There are multiple responses as to why this stated reason is irrational. First, to
say that Dooley's version is "not an impossibility" is not to say that it has been
established as fact by a preponderance of the credible evidence. What it does say is
that the hearing officer believes Dooley over Petitioner even though no other relevant
and probative evidence supports that story and other evidence discredits it and
corroborates Petitioner's testimony. The hearing officer's finding was not based on the
preponderance of the credible evidence but, rather, on his conclusion that it was a
"possibility." That was clear error.
Second, there is absolutely no evidentiary support for the statement that "Ms.
Suarez did not appear in her office until after 9:30 a.m. and possibly after 9:45 am." She
was there well before 8:00 and was in the office from the time Muehl ran into
Petitioner's office to report a major fist fight in the classroom at about 8:50 am until well
after 10: 15 am that morning. No testimony supports this finding; no document makes
that assertion.
Third, this finding is based on a truly bizarre timeline analysis that ends with the
completely unwarranted conclusion that "there is an unaccounted gap between the
initial disciplinary referrals of 8:45 am and Respondent's injury at 10:00 am." The
hearing officer created this "gap" by starting with an event at the beginning of the
incident (Le., The disciplinary referrals prepared by Muehl regarding the fight at 8:45 am
{W0274748.1}
39
- Exhibits E-14, 15, 16) and juxtaposing them with an event that occurred near the end
of the incident (i.e., The report regarding Petitioner's injury at 10:00 am - E.17). 5
Of course, the relevant time period is 9:00 to 9:31 that morning (which is when
Dooley claims she, Francis, Petitioner and KP were at the Vestibule room) and not 8:45
to 10:00 as stated by the hearing officer.
overwhelming evidence in the record, both testimonial and documentary, that places
Petitioner in the Main Office area throughout this entire period of time. There is simply
no support for his conclusions regarding credibility.
E. Dooley's Story Re: October 29, 2013 is a Fabrication
Of the 22 District employees interviewed during the "investigation," Dooley was
the only one who claimed that Petitioner placed KP in the Vestibule room. The only
documentary evidence to support this allegation was a printout of a computer entry that
Dooley made in her Nurse's Notes regarding KP's alleged visits to her office. (Exhibit D14). It is important to note that these entries could have been entered into Dooley's
computer at any time. (T. 428).
Dooley is a mandated reporter, and the evidence established that she was seen
by Bishop at the Vestibule room (T. 2243). She also admitted seeing McDonald put KP
in the Vestibule room but did not report it to CPS or any other law enforcement
The Decision also states, "While Ms. Suarez testified that she filled in a portion of
Muehl's referral, the time of Suarez' input is not evident; nor, was Ms. Suarez able to
testify as to any time at which she added her input." (Decision, P. 9). This too makes no
sense. The time, or times, when Petitioner made her entries on the three Discipline
Referral forms does not prove whether she was in the Main Office suite between 9:00
and 9:31 that morning handling a major disruption, as she claims, or at the Vestibule
room with Dooley and Francis during that time period, as Dooley claims.
5
{W0274748.1}
40
authority. (T. 470, 477-79). When the District's investigators caused the staff to think
that there was possible criminal liability (see, POINT II), Dooley had every reason to
protect herself by creating a type of "Nuremburg" defense, blaming Petitioner for her
omissions.
However, that defense is not supported by the evidence, which establishes that
what Dooley claims simply did not happen.
Charge No.1 is erroneous and should be vacated for at least four reasons:
The evidence established that Petitioner was occupied in the Main Office
suite from before 9:00 am until at least 10: 15 am on October 29, 2013
responding to a crisis involving another student ("CS").
Dooley was interviewed by Wade three times between June 12 and June 19,
2014. She also gave Detective Murphy a sworn affidavit on June 27, 2014 (Exhibit D15) and testified at this 3020-a hearing. Her story about the alleged incident of October
29, 2013 evolved and changed with each version which seriously undercuts her
credibility.
{W0274748.1}
41
a. Delay in Making Her Claim - The alleged incident of October 29, 2013
is obviously significant. If it had really happened, there can be no doubt that it would
have been in the forefront of Dooley's mind when she was questioned by the
investigators. However, she made no mention of it during her first interview with Wade
on June 12th. (See, Exhibit D-21).
b. Delay in Producing the 10/29/13 Nurse's Note - When Dooley was
interviewed a second time four days later on June 16, 2014, she produced at least a
portion of her nurses' notes. This was a note for March 18,2014 stating that McDonald
had grabbed KP's arm and asked Dooley to "check him." (See, Exhibit D-14, pg. 7).
This interview took place at the school (T. 511) and a printout of the October 29, 2013
nurses' note could have then been produced in a few moments if it truly existed as of
that date. However, the note was not produced at this interview. (T. 458-460).
c. Was the Vestibule Door Opened or Closed - Dooley's story as to
whether the Vestibule door was opened or closed on October 29, 2013 changed from
version to version. On June 12th, she said that "If ever closed -someone is presentnever lock a kid alone in a room" and later, "She remembers the door being locked."
(Exhibit D-21).
Four days later, she said "The door was open" - "Door was always
open" and "Never seen him with door closed." (Exhibit D-22, pg. 2 of 2; Exhibit E-32).
Three days later after Petitioner was suspended, Dooley said "I don't know if it was
opened, or if she opened it." (Exhibit E-33, pg.1). Finally, on June 27, 2015, Dooley
signed an affidavit which stated "It was closed. I don't remember if Laura had a key or
not, but she opened it up. I certainly don't have a key. as mine are limited to anything
that pertains to my nurse's office." (Exhibit D-15).
{W0274748.1}
42
During four interviews over the course of fifteen days, Dooley's story went from
remembering the door being locked and, if it was ever closed, an adult was inside
(Exhibit 0-21), to the door was always open and she never saw KP with the door closed
(Exhibits 0-22 and E-32), to either the door was open (Exhibit 0-23) or she did not know
if it was open (Exhibit E-33) and, finally, to it was closed and Petitioner opened it
(Exhibit 0-15). Her testimony at the hearing changed yet again when she testified she
never saw KP in the room with the door closed. (T. 544).
d. How did KP Get to the Vestibule Room - Dooley's testimony regarding
how KP allegedly got to the Vestibule room on October 29, 2013 was also inconsistent.
At her first interview, she did not even mention the alleged October 29, 2013 incident.
(Exhibit 0-21). On June 16th, she said that she first saw KP in the room ("the room by
the stairs), with the door open, and Suarez asked her to stay with him for 4 minutes."
She also said she was "not sure if he was brought into the room or ran into the room."
(See, Exhibits E-32 and 0-22).6
After Petitioner was suspended, Dooley finally gave the District's investigators a
copy of her October 29, 2013 nurse's note. (See, Exhibits E-33 and 0-23). By the time
she gave her affidavit on June 27, 2014, her story was, "I helped by holding [KPj by the
arm, as did Laura, and we guided him down the hallway." (Exhibit 0-15). Over a period
of two weeks, Dooley's story changed from not being sure whether KP had been
A note at the bottom of page 2 of Exhibit E-32 states that Dooley asked
McDonald (the "VP") if she had it in writing from the grandmother who could not be
trusted. Thus, Dooley had clearly spoken with McDonald before about using the room.
(T. 780).
6
{W0274748.1}
43
brought to or ran into the room to stating that she and Petitioner guided an irate KP from
the hallway outside the gymnasium to the Vestibule room.
e. Was she Inside or Outside the Room - Dooley's testimony as to where
she and Petitioner were positioned once they got to the Vestibule room on October 29,
2013 was also contradictory. She did not mention the alleged incident during her first
interview.
On June 16th, she was not specific about where they were positioned,
except to say "Laura was in the room" and asked Dooley to stay with KP to "keep them
in a nice quiet space." (Exhibit 0-16). On June 19th, she said "Both were in the room
Petitioner with child - All three in the room." She also said that "She stayed with [KP] for
4 minutes he was in there" and she was "not sure if [Petitioner] left or not." Beardall
heard her say "I don't remember if she [Petitioner] left or not. I'm just not sure." (See,
Exhibit 0-23, pg. 2 of 5; Exhibit E-33).
Dooley's June 27, 2014 affidavit no longer has either Petitioner or herself in the
room with KP.
In that affidavit, she states, "Laura put [KP] in the room and began
talking to him through the closed door. Laura asked me to stay with her. [KP] was
responding to Laura as she spoke with him through the door, and he started to calm
down. Laura then cracked the door and began talking to him with the door open a bit. I
actually timed the whole episode was there, and it lasted four minutes. I didn't speak
with [KP] at all. I just observed." (Exhibit 0-15). Her story was embellished yet again
during her testimony where she claimed that Petitioner was holding the door shut from
the outside while an "agitated" and "angry" KP struggled to get out of the room. (T. 45354).
{W0274748.1}
44
Over fifteen days, Dooley's story went from no mention of KP in the Vestibule
room (Exhibit 0-22), to Petitioner being in the room with him (Exhibit 0-16), to
Petitioner, Dooley and KP all in the room together (Exhibit 0-23), to KP in the room
alone with Petitioner opening the door "a bit" (Exhibit 0-15), to Petitioner holding the
door shut against a struggling and screaming KP inside the room. (1. 453-54).
Respectfully, this volume of changes regarding material and relevant issues
seriously discredits Dooley's story. It was incumbent upon the hearing officer to at least
analyze the impact of these several conflicts on her credibility. However, he failed to
even mention this issue and, instead, accepted Dooley's testimony as credible evidence
based upon his confused and erroneous discussion of McDonald's testimony.
45
throughout the building to function as hall monitors, including one in the immediate
proximity of the Vestibule room.
(1. 1825).
monitor to confirm Dooley's story that Petitioner was struggling with KP in the hall that
morning. Also, Petitioner's standard practice was to have KP and other students in her
office for breakfast before class. (1. 34, 293, 1905-1906). Considering these established
procedures, the odds of Petitioner being alone struggling with KP in the hall outside of
the gymnasium between 9:00 and 9:30 on any school day are slim to none.
3. Corroboration or Refutation by Other Evidence
Francis testified that he had no recollection that this ever happened. (1. 1953).7 He
also testified that he never saw Petitioner at the Vestibule room. (1. 1953).
Dooley claims that KP was at the Vestibule room between 9:00 am and 9:30 am
on October 29, 2013.
Petitioner was at the Vestibule room between 9:00 am and 9:30 am on October 29,
2013. Abt, Petitioner's secretary, testified that Petitioner never left the Main Office area
that morning. (1.1623). Both the Police and Onondaga Case Management responded
to the incident and parents, grandparents and/or guardians of each of the four boys
Based on his clear recollection of other statements and activities regarding the
Vestibule room (See, e.g., 1. 1951), he would have remembered seeing Dooley and the
Principal holding the door on a screaming student if it had, in fact, occurred
{W0274748.1}
46
involved in the brawl were called to come to the school. This was not a forgettable
incident for anyone involved which lends strong credibility to their testimony.
4. No Complaint bv the Grandmother 10 Days Later
Petitioner took photographs of the destruction that the October 29th brawl
caused to the Main Office area. Several photographs are dated and time stamped for
October 29,2013 at 9:36 am. (See, Exhibits E-36, E-37 and E-38). Dooley's story would
have Petitioner rush back to the Main Office from the Vestibule room located in another
portion of the building, grab her I-phone and take several photographs of the damage in
a five minute period. To borrow the hearing officer's analysis, that might not have been
an "impossibility." However, it is highly unlikely in the real world, and is another relevant
factor that should have been considered by the hearing officer, but was ignored.
{W0274748.1}
47
The incident that Dooley described with increasing detail from her initial interview
to her testimony simply never happened. The hearing officer's acceptance of her story
based solely on his convoluted discussion of McDonald's testimony, while ignoring
significant relevant, probative and credible evidence to the contrary, was irrational and
should be vacated by this Court.
POINT VI
THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE
NO.2 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 2 accuses Petitioner of "conduct unbecoming a principal,
misconduct, misconduct constituting physical abuse, neglect of duty, immoral conduct,
and other just causes for disciplinary action" in that she "directed" McDonald to use the
Vestibule room as a "time out room" for KP in the fall 2013 and again in January 2014.
It alleges, further, that in fall 2013, Petitioner "falsely represented to McDonald that KP's
grandmother had authorized use of the room for time out purposes.
{W0274748.1}
48
{W0274748.1}
49
Vestibule room, McDonald testified that Petitioner "never said that room."
(T.771 ).
The hearing officer devoted barely a half page of his Decision to a discussion of
Charge No.2, and made little or no reference to the evidence elicited at the hearing. He
simply held that "Petitioner directed District employee Cheryl McDonald to place
disabled male student KP in the EMR, as described (0.16, p.2)." (See, Decision p. 10).
50
five months after the alleged January 2014 directive. In this conversation, McDonald
told Petitioner for the first time that she had used the room with KP. (T. 2005). This
admission was made while Mark Warner, a Teacher Assistant who was active in the
union, was in the room and after Petitioner had told Wade that the only time she was
aware of when KP had been in the room was the time he ran in there himself (the socalled "throw up' incident with Bishop). After McDonald sheepishly admitted she had
placed KP in the room, Petitioner said to her "Don't tell me any more" (T. 1983) and then
tried to contact Wade so that she could pass this information on to her. (T. 2011).
However, Wade had already mistakenly determined that Petitioner was responsible for
KP being held inside the room alone and did not return the call to Petitioner.
The fact that Petitioner asked McDonald not to say any more to her about the
matter has no relevance on whether she also gave McDonald directives regarding use
of the Vestibule room, as the Charge alleges. There simply is no evidentiary support for
the hearing officer's conclusion that Petitioner "directed" McDonald to use the room
either in the Fall 2013 or January 2014 as alleged in Charge NO.2.
mention of any alleged directive in Fall 2013. The Decision does not even discuss the
alleged Fall 2013 directive, and the hearing officer clearly failed to make any
{W0274748.1}
51
statements of alleged fact in that affidavit do not support such a conclusion. According
to McDonald,
"Laura and I were summoned down to the classroom, and upon arriving to
[sic] the hallway near the classroom, I observed Kendell acting out. He
was ripping things off the wall, yelling, swearing, tantrumming, and being
violent. He had already started running when we approached him. My
experiences with Kendell are that he typically runs in the direction of the
"time out .room". This is in the opposite direction of the office. When we
caught up to him, we weren't very far from the "time out room". Laura said
that we should try using the "time out room, " and told me to take him
52
1. Onlv McDonald Claims that Petitioner "Directed" Use of the Vestibule Room
The District interviewed 22 staff members. McDonald is the only one who claims
to have received a "directive" from Petitioner on how to respond to KP's behaviors. No
one else makes that claim. No directives were given to Moulton or Wills, the classroom
teachers who had to deal with KP daily (T. 286), or to Warren, the 1:1 aid who was with
KP all day, every day. (T. 1899).
If Petitioner truly believed that the Vestibule room could effectively and legally be
used as a "Time Out" room for KP within the meaning of 8 NYCRR 200.22(c), it defies
{W0274748.1}
53
common sense that she would convey that strategy only to McDonald. The record
establishes that McDonald's exposure to KP's behaviors was limited compared to that
of his one-on-one TA, Warren (who was with him all day, every day), his two classroom
teachers (Moulten and Wills), and TA Bishop.
members had far more exposure to KP, and a far greater need for assistance on how to
handle his behaviors, than did McDonald. (T. 798). However, the record establishes
that Petitioner never made any such directive to these other staff members.
{W0274748.1}
54
Later, she
"said this could be a good timeout space for' KP (T. 681), and still later that Petitioner
said "this would be a good space for' KP. Regardless of the linguistic differences, it
appears that each description related to possible locations for a future time out room.
Not one of them was a directive that McDonald hold KP behind closed doors with no
adult in the room whenever he acted out. (T. 682).
McDonald's testimony establishes that what the Charge alleges were specific
"directions" in Fall 2013 were, in fact, only discussions among the building's two
administrators regarding what could be done to control KP in a safe and secure manner.
It is irrational and without any evidentiary foundation to conclude otherwise.
4. McDonald's Testimony was Controverted by Warren
According to Warren, the incident McDonald claims to have occurred in January
2014 in the school hallway never happened. Warren testified that the first time she and
McDonald took KP to the Vestibule room was when he was so out of control in the
classroom that all other students were removed from the room while McDonald tried to
get him under control. When she was unable to do so, McDonald told Warren to "come
with me" and she took KP directly to the Vestibule room. Warren testified that Petitioner
was not present at that time or at any other time when KP was placed in the room by
McDonald. (T.1896 -1902).
{W0274748.1}
55
Even if we assume, arguendo, that Petitioner told McDonald to use the Vestibule
room, she never gave her any direction as to what to do once she was there. McDonald
is a college graduate with a Masters degree, an experienced educator and a fully
certified administrator who admits that she was never given "any direction or instruction
as to how to carry out the timeout." (1. 687). Petitioner did not direct her to put KP in
the room alone. (1. 776-777). Petitioner never directed her to close the door on him (1.
777) and she certainly never told her to hold the door shut. (1. 777).
McDonald
acknowledged these were actions she took on her own within her discretion. (1. 777).
6. McDonald did Not Treat Whatever Petitioner Said to Her as a "Directive"
56
their discussion in November 2013 regarding the Vestibule room and KP, and there is
no memorandum, email or other writing that confirms any "directive."
The hearing
officer found that Petitioner did give McDonald a directive to place KP in the Vestibule
room, "as described" in her June 27 2014 affidavit and because "there is little reason to
believe that Ms. McDonald did so on her own. Ms. McDonald testified that she acted
upon the advice and direction of Petitioner." (See, discussion at POINT VI, B, supra).
Respectfully, this finding is irrational and without evidentiary support for several
reasons.
McDonald certainly understood the meaning of a "directive." Petitioner testified
that she asked McDonald to keep in a box on her desk three-by-five cards that noted
parent and student contacts, which was a practice that Petitioner followed. According to
Petitioner, the reason for that practice was so that "if I got a call from a parent, or I had a
student come down and either I wasn't available or she wasn't, we could go to each
other's box, take out the card, and know what was done previously with that student.
That's a practice I have engaged in probably my entire career as a principal and my vice
principals and interns would tell you that." (T. 1779). When asked if she was required to
keep notations of student contacts on three-by-five cards (which would likely have been
relevant evidence in evaluating the credibility of her story regarding KP), McDonald
testified,
A. No, I was not required to.
Q. She didn't say to you that we both need to keep three-by five cards in case
{W0274748.1}
a directive?
57
A. No.
(1. 746). In other words, she believed she was required to follow a directive; anything
McDonald is not
stupid and she knew from the beginning that Wade was investigating a complaint that
KP had been held in a room behind a closed door. In fact, McDonald testified that, after
Wade met with Petitioner on June 12, 2014, Petitioner informed her "that they were
investigating the use of the room that we had placed [KPj in." (1. 702).
However, when she was first interviewed by Wade on June 12, 2014, she did not
say a word about using the room or receiving alleged directions from Petitioner. She
See, Exhibit 0-16, page 2 ("The first time I was told to use the room, I believe
happened in January 2014. This was the first time that I thought anyone had placed him
in there."). (Emphasis added).
10
{W0274748.1}
58
knew what the investigation was about, but told Wade that "they do not have rooms they
lock kids in." She even volunteered that KP ran into a "Boiler room" in the building but
said nothing about her use of the Vestibule room. (See, Exhibit 0-24).
McDonald continued to give dishonest responses to Wade during her second
interview on June 16th. This interview took place after McDonald had been called to the
Vestibule room by Petitioner and Wade so that they could use her key to unlock the
door to that room. She clearly knew, therefore, what room was the subject of the
investigation. (1. 708-09). During this interview, McDonald misled Wade by stating that
she "never unlocked the door to allow a student to go in with an adult." She also told
Wade that students have run into the room and were allowed to be in there until they
calmed down. She also told Wade that a former school social worker, Deb Webster,
informed her that the room had been approved and used for time out purposes before
Petitioner became Principal. (She did not say that Petitioner made that claim). (See,
Exhibits 0-25 and E-34). She said nothing, however, about having used the room with
KP or about an alleged directive from Petitioner. This was clearly dishonest.
In her hearing testimony, McDonald tried to justify her less than candid
responses to Wade by claiming that Wade did not ask the right questions. (1. 806-07).
This excuse is truly disingenuous.
falsely represented to Ms. McDonald that the use of the Elevator Machine Room for
purposes of subjecting the student to a "timeout" was authorized by the student's
grandmother." With respect to this charge, the Decision states, "I also find that Ms.
{W0274748.1}
59
Suarez falsely represented to Ms. McDonald that use of the EMR was authorized by
KP's grandmother. This finding is based on the preponderance of the credible record
evidence. (See, e.g., T. 675-676 [McDonald], T.1838-1839 [Suarez]; 0.16, p.2.)."
Respectfully, this finding is erroneous and has no evidentiary foundation. In fact,
it is controverted by the testimony of the only District witness who addressed this
charge. McDonald was the sole District witness on this specification, and her testimony
failed to establish that any such representation was made. To the contrary, she testified
that after the November 8, 2013 services meeting with KP's grandmother, Petitioner told
her that the grandmother had "agreed to using a timeout with [KP]' (T. 675). When
asked if Petitioner had represented to her that the grandmother had authorized use of
the Vestibule room, McDonald testified that Petitioner "never said that room." (T.771).
(Emphasis added). Thus, Petitioner denies she ever said the grandmother had
approved the use of the Vestibule room for a timeout location, and McDonald confirms
that Petitioner simply told her that the grandmother had agreed to use time outs, not a
specific room. (T. 771).
Moreover, it is a stretch for McDonald to claim that she was relying on something
Petitioner told her on November 8, 2013 about conversations with the grandmother
when she first used the room in January 2014.
grandmother regarding his behavior "almost every day." (T. 665, 764). If she had any
question about what responses the grandmother approved or did not approve,
McDonald was in a far better position than anyone else was to get answers to such
questions from the grandmother.
{W0274748.1}
60
POINT VII
THE HEARING OFFICER'S DETERMINATIONS REGARDING
CHARGE NO.3 LACK ANY EVIDENTIARY FOUNDATION
AND ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 3 alleges that Petitioner improperly attempted to influence
McDonald's response to questions posed by the District's investigators. Specifically, it
asserts that in June 2014 she was aware of "several incidents" where KP had been
placed in the Vestibule room for "time out" purposes and "requested" that McDonald
disclose only one of these incidents to District investigators.
{W0274748.1}
61
McDonald prepared at her lawyer's office and then had inserted into police affidavit
form. (Exhibit 0_16).11
The hearing officer did not address any of McDonald's testimony, direct or cross,
and he failed to provide any reason for determining that Petitioner's testimony was not
credible. Apart from McDonald's self-serving affidavit, he did not identify any evidentiary
basis for his conclusions. (See, Decision p. 11). Respectfully, the determination is not
supported by substantial evidence and the failure to provide any evidentiary reason for
his rejection of Petitioner's testimony constitutes reversible error.
A. McDonald's Testimony Disproves the Charge
interviewed by Wade and Beardall at which time she was asked if anyone attempted to
interfere with the investigation or encourage people not to cooperate with the
investigators. McDonald's response as recorded by Wade was, "No one asked her to
not to cooperate with the investigation.
The premise of this charge is that Petitioner knew KP had been put in the
Vestibule room "several" times. However, Petitioner was not aware of any time when he
was "put" into the room; she only knew he had run into the room one time while being
chased by staff members (the so-called "throw up" incident) (1. 1840-1841). Petitioner
The hearing officer also cites to the charge itself immediately after two of his
findings. It is not clear why he did so, but it cannot be as support for his findings.
11
{W0274748.1}
{W0274748.1}
62
was
examined
and
cross-examined
extensively on
this
issue,
and
testified
unequivocally that she was not aware of any other incident where KP had been put in
the Vestibule room by McDonald, or anyone else.
{W0274748.1}
63
reason for making this statement if McDonald had, in fact, already informed Petitioner
that she had used the Vestibule room to restrain KP. 12
c.
(T. 1865).
McDonald said "what if it is about KP" and Petitioner responded "Listen, if it's about KP.
Tell your story." (T. 1865). Also, McDonald acknowledged the phrase "I've got your
back' is common and frequently used by Petitioner and others in the educational
{W0274748.1}
64
community.
(1. 797-98).
POINT VIII
THE HEARING OFFICER'S DETERMINATIONS REGARDING
CHARGE NO.4 LACK ANY EVIDENTIARY FOUNDATION
AND ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 4 alleges that on October 29, 2013, Petitioner directed Dooley to
place KP in the Vestibule room to subject him to a "time out." It further alleges that, on
June 17, 2014, Petitioner asked Dooley to falsely state to Wade that she had
"misunderstood' that "directive." One paragraph of the Decision states as follows:
Given prior findings relating to Ms. Suarez' credibility, I credit Ms. Dooley's
account of the incident of June 17, 2014 regarding her conversation with
Ms. Suarez. I find that Ms. Dooley's testimony is believable regarding Ms.
Suarez request to Dooley to make false statements to District personnel
regarding placement of a disabled male student (KP) in the LeMoyne EMR
(0.15, p.2) (Charge 4. Specification 4.1). I have already found that Nurse
Dooley's notes and testimony were dispositive on the issue of KP's
placement in the EMR for a "time out" on October 29, 2013 by Ms. Suarez
with the requested assistance of Nurse Dooley. I find, as credible. that Ms.
Suarez requested, in sum and substance, that Nurse Dooley tell District
investigators that she had misunderstood a directive she received from
Suarez on or about October 29, 2013 directing Dooley to place KP in the
EMR for purposes of subjecting the student to a time out. Ms. McDonald
also witnessed the aforesaid conversation and verified Nurse Dooley's
account (0.16. p.3). (See, Decision p. 11).
{W0274748.1}
65
statement, she was accompanied by her brother-in-law who is also a police officer. (T.
479). The second is Exhibit 0-16. This is the June 27, 2013 affidavit that McDonald
gave to the police which had been prepared by her attorney. (T. 795).
Petitioner,
Dooley and
McDonald
each
testified
regarding
this
charge.
Respectfully, their testimony establishes on balance that the charge is without any
evidentiary foundation and not supported by substantial evidence. However, the hearing
officer did not refer to any specific testimony to support his findings. The failure to
consider all the evidence and to make even a minimal analysis of conflicting evidence,
standing alone, is a basis to vacate the Decision.
B. Dooley's Affidavit and Testimony are Not Credible
Moreover, even a perfunctory analysis of the record establishes that the finding
of guilt on this charge is not supported by substantial evidence. To begin with, Dooley's
affidavit of June 27, 2013 was prepared after Petitioner, McDonald and Warren had
been suspended and at a time when the police were involved and the "heat was on."
Dooley knew that McDonald and Bishop had been in the Vestibule room with KP (T.
616) and she had not reported that fact to anyone. Considering the atmosphere of fear
created by Wade's incompetent investigation, it can be assumed that Dooley's story
kept changing out of a concern for her own future.
Dooley had been interviewed several times by Wade and by the police before
June 27, 2013.
However, this was the first time Dooley came up with the following
version of events:
66
office after the kids had left school, and the school day was over. I ran into
Laura in her office. Cheryl was there. They were discussing the incident.
Laura was making a point that she had never brought a child into the
room. I told her about the time in late October, and proceeded to refresh
her memory. She denied remembering it. She told me that she never
mentioned it to Lisa Wade, from Talent Management. She then said that
she would just tell them that I misunderstood what her directive to me was.
I was floored. I told her what she was saying wasn't true, and that it was in
my nurse's notes. She seemed shocked to hear that.
So did Cheryl. She then pulled out an index card that had a note on it, and
held it up. She said something like "we don't have to worry, because I
have the o.k. from the grandmother to do this". So, first she wants me to
change my story, then when she realized that wouldn't happen, it's like,
"well I had permission". It was unbelievable. Then, she mentioned that if it
came to it, she'd get a lawyer.
On its face, the allegation that Petitioner would ask Dooley to give false
testimony to the District's investigators on the evening of June 17 makes no sense. By
that time, Dooley had been interviewed multiple times by Wade and had given Wade a
copy of the Nurse's note allegedly prepared on October 29, 2013. (T. 510-11, 515-17).
Also, the excuse that Dooley did not appreciate the severity of the allegations regarding
KP until Petitioner "told her that she was going to lie" is disingenuous. Dooley was a
trained nurse and a mandated reporter who knew what her obligations were. The last
minute change in her story to shift blame to Petitioner is simply not credible.
{W0274748.1}
67
A. I think it was -- I made the statement that I had placed him in the room.
Ms. Suarez had made a statement saying that she had never placed
him in the room and Donna that, yes, she did place him in the room.
Q. Was she talking to Laura about that issue?
A. Yes. She said that she did place him in the room. Laura said no, I
didn't. Donna brought up an incident from, I believe, October of 2013
where she was asked by Ms. Suarez to help. Ms. Suarez said, "Donna,
I think you're mistaken" and Donna said, "No, it was in my nurse's
note."
Q. And what happened next, if anything?
A. I asked Donna Dooley where was I when this happened. Donna stated
she didn't know where I was. I was not there, but that it was in her
nurses' note. She explained to us that her nurses' notes were turned
over to the District.
Q. Were you aware at that time of any incident where Ms Suarez placed
Student A in the elevator machine room?
A. No.
Q. How did that meeting end?
{W0274748.1}
68
A. Donna told Laura not to really worry about it. Donna left. Laura and I
had a continued conversation. She, you know, said what should I do.
She asked who she thought she should call, our union rep and tell him
about it, and I said yes and she --I don't know when she called or who
she was going to call Dean or email-I don't know.
(T. 1868). She testified that she told Dooley and McDonald
during the June 17th conversation "she had never put the child, Student A, in to the
room." This was a true statement. (T. 482).
{W0274748.1}
69
POINT IX
THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE
NO.5 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 5 alleges that Petitioner' statements to Wade that she had not placed
KP in the Vestibule room and had not directed anyone else to do so were not truthful.
The hearing officer's terse Decision states:
I find by a preponderance of the credible record evidence that Ms. Suarez
failed to truthfully answer questions by District personnel about placement
of a disabled male student in the EMR (Charge 5. Specification 5.1). As an
example, Ms. Suarez claimed to District personnel that KP ran into the
EMR on his own, when, in fact, a lock preventing this had been placed on
the exterior door to the EMR by Head Custodian Rob Francis in January,
2013 (0.18, 20). In particular, a preponderance of the credible record
proof shows that not only did Ms. Suarez place a disabled male student
KP in the EMR, but she also directed District employee McDonald to do so
as well (Charge 5, Specification 5.2). The notes kept by Ms. Wade as well
as her testimony and the statement of Ms. McDonald (0.16), Nurse
Dooley (0.15), Ms. Warren (0.62, p.3) and others reveal the discrepancies
in Ms. Suarez account and are credible. Thus, I find that Ms. Suarez is
guilty of conduct unbecoming a principal, misconduct, neglect of duty.
(Decision, p.11).
Of course, this Charge is dependent upon the District's ability to prove the
allegations of Charge NO.1 and Charge NO.2 and, for the reasons already stated,
Petitioner contends that the hearing officer's findings on those two charges are not
supported by substantial evidence. Moreover, the two reasons cited by the hearing
office to support his finding of guilt on this Charge are controverted by other evidence,
and it was incumbent upon the hearing officer to evaluate that evidence. Stated
somewhat differently, it was improper for him to simply ignore other evidence which
establishes that Petitioner's responses to Wade's questions were truthful.
{W0274748.1}
70
preponderance of the credible record evidence," the hearing officer cites to only one
reason why he concludes Petitioner's denial regarding Charge No.5 was not a truthful.
He states, Petitioner "claimed to District personnel that KP ran into the [Vestibule room]
on his own, when, in fact, a lock preventing this had been placed on the exterior door to
the [room] by Head Custodian Rob Francis in January, 2013."
This erroneous conclusion was reached because the hearing officer made the
same error in logic that Wade did early on in her investigation. During the first interview
Petitioner told Wade that KP was a runner and had once ran into that room. This
statement was based on information Petitioner had received from other staff members
regarding the so-called "throw up" incident. Although Petitioner did not vouch for the
accuracy of that information, she had no reason to question it and believed it was
accurate when she spoke with Wade. That belief was reasonable since there was no
question that KP was a "runner" (T. 518, 1206, 1246, 1267, 1272, 2266) and at least
McDonald and Bishop had told Petitioner that KP ran into the room. (T. 694, 1842). In
fact, as late as the 3020-a hearing, McDonald testified that KP ran into the room and
opened the door at a time after the lock had been installed. (T. 803).
There are several reasons why a door with a lock could be opened by a student.
Nevertheless, Wade jumped to the unwarranted conclusion that Petitioner had "lied"
when she said KP ran into the room on his own.
conclusion the morning of June 12th after receiving an e-mail from Francis regarding
the door lock (Exhibit D-18), which "shocked' and "surprised' her. (T. 1204). This was
{W0274748.1}
71
the first day of her investigation and it jaundiced all that followed. Moreover, when Wade
interviewed Petitioner later on June 12th, she did not say anything about the conclusion
she had reached based on the Francis email.
13
The hearing officer states that (1) the notes kept by Ms. Wade as well as her
testimony, and (2) the affidavits that McDonald, Dooley and Warren gave to the police
and the statements of others "reveal the discrepancies in Ms. Suarez account and are
credible." He did not explain what "testimony" of Wade or what "statements of others"
(See, also
The Francis e-mail stated that "[q]uestions regarding this space [the Vestibule
room] usage can be directed to the VP - Sharon [sic] McDonald at Lemoyne." (Exhibit
D-18). Any competent investigator concerned with how the Vestibule room was used
would certainly have followed up with Francis as to the reason why he specifically
referred to McDonald in the work order. However, Wade did not do so.
13
{W0274748.1}
72
disadvantage when Wade failed to inform her of the information she was receiving
during her "investigation." This failure denied Petitioner the opportunity to clarify and/or
refute misunderstandings by reference to established facts, documents or input from
other individuals.
{W0274748.1}
73
POINT X
THE PENALTY OF TERMINATION IS SO DISPROPORTIONATE TO ANY
OFFENSE ESTABLISHED BY THE DISTRICT AS TO BE TRULY
SHOCKING TO THE CONSCIENCE AND SHOULD BE VACATED
The hearing officer devoted one paragraph of his Decision to the issue of
Penalty, in which he found that Petitioner's employment should be terminated. He made
no mention of her 34 year career in education or her amazing and inspiring personal life
story. There was no discussion of her extensive work with emotionally disturbed
children or her adoption of multiple disabled children. (See, Decision p. 12).
A. The Requirements Established by Matter of Pell
The seminal case on the obligations of the hearing officer regarding the issue of
penalty is the Court of Appeals decision in Matter of Pell v. Board of Education of Union
Free School District No.1, 34 NY2d 222 (1974). In Pell, the Court of Appeals held that a
court may set aside a penalty that "is so disproportionate to the offense, in the light of all
the circumstances, as to be shocking to one's sense of fairness." (Matter of Pell, supra,
at 233). The Court defined this standard as follows:
but also in order to accomplish what a sense of justice would dictate." (Pell, supra, at
{W0274748.1}
74
235). The following factors may be relevant considerations for a court when reviewing
the penalty imposed:
the probability that a dismissal may leave the employee without any
alternative livelihood,
(Pell, supra, at 235; see, also, Matter of Principe v. NYC Dept. of Educ., 94
A.D.3d 431 (1st Dep't 2012) and Matter of Bovino v. Scott, 22 NY2d 214, 216 (1968)).
B. Petitioner's Character, Exemplary Career and Background
If the Decision is allowed to stand, it will be a career-ender for Petitioner, and will
unquestionably have a devastating effect upon her family. Petitioner has served
severely disabled children in educational institutions for over 35 years and deserves
better. If one looks at this dispute objectively, several facts become clear:
1. There is no "smoking gun" in this case. Instead, there are "she said, she said'
accusations that are uncorroborated by any other evidence. These
accusations are made by two employees who had a lot to lose if, in fact, the
restraint of KP was a violation of law.
2. There is no pattern of repeated dangerous or illegal conduct. Dooley alleges
one instance and McDonald admits to 3 or 4 times when she took KP to the
Vestibule room. This was a maximum of five restraints over approximately
360 school days. There is no question that KP acted out daily and was a
danger to himself and others.
3. Wade's ignorance of employee's rights in Emergency Intervention situations
and the incompetent investigation she conducted caused Dooley and
{W0274748.1}
75
circumstances, and the testimony of the two protagonists is disputed on many levels by
several sources.
warranted.
SUMMARY AND CONCLUSION
KP is an emotionally disturbed and troubled young boy who should have been
placed in McCarthy or some other District program designed to handle his daily
outbursts and disruptive behaviors. Those behaviors were dangerous and a threat to
his physical welfare (i.e., climbing on second floor stair railings, pounding on glass walls
{W0274748.1}
76
and steel doors, running throughout the school and from the building, etc.). His repeated
conduct of throwing objects and punching, kicking, biting and poking people with pencils
and similar acts also threatened other students and staff.
The Commissioner's Regulations authorize the use of physical force to prevent a
student from injuring himself or others and from destroying District property or disrupting
the educational program. (8 NYCRR 200.22[d]). While the staff knew instinctively or
anecdotally to intervene and restrain a student in such circumstances, the District had
not provided any training on "Emergency Intervention" under the Commissioner's
Regulation. During the relevant period, the Board did not allow schools to establish
'Time Out" rooms in accordance with 8 NYCRR 200.22(c) and, even if it had permitted
them, it is doubtful whether KP would have received any benefit from such a reflection
location.
In June 2014, KP's family complained that he had been "locked in a closet in the
basement of the schooL" Wade was assigned to investigate that complaint. She was
not qualified by experience, training or personal aptitude to carry out that investigation in
a fair and complete manner.
{W0274748.1}
77
expanded over a series of interviews with Wade and the police, and neither Dooley nor
McDonald made allegations against Petitioner during their initial interviews.
Dooley had been seen at the Vestibule room when KP was there and had not
reported it. Her story regarding October 29, 2013 is not supported by Francis as she
said it would be and is controverted by Warren. On its face, the idea that a building
Principal and school nurse could struggle in a main hallway outside the cafeteria with a
student who was screaming, kicking and punching and then drag him to a room and
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hold the door shut for four minutes while he screamed and pounded on the door without
any of the 100 staff members witnessing that incident is simply not believable.
Dooley's story is also controverted by a mountain of evidence that Petitioner was
occupied all morning in the Main Office area handling a major student fight on October
29, 2013. Of course, if the incident did happen as described by Dooley, she committed
a crime by not reporting it to CPS. Finally, Dooley's story that Petitioner attempted to
influence her testimony to District investigators is belied by McDonald's recollection of
that discussion.
McDonald's story regarding the alleged "direction" in Fall 2013 is, at best, her
takeaway from what was said in an unrecorded and undocumented discussion between
two administrators charged with running a public school with 500 students, 100 staff
members and a large population of disruptive emotionally disturbed students. It is
equivocal and makes no distinction between an illegal "Time Out" reflection room and a
legal Emergency Intervention. Moreover, that whatever was said was not meant as a
directive, and was not interpreted by McDonald as being one, is evident from the fact
that McDonald did not use the room for KP for about two months although his behavior
outbursts occurred daily.
The alleged January "directive" is controverted by Warren who was with KP all
day, every day. The hearing officer does not even discuss her testimony let alone
provide a basis to treat it as not worthy of belief. Moreover, the "Laura, I have used the
room" admission by McDonald in June 2014 is further indication that Petitioner was
unaware of this fact until that time. Again, the charge presents a "she said, she said'
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scenario and the hearing officer simply did not provide any rational basis for resolving
that dispute by a preponderance of the credible evidence.
Based on the foregoing, Petitioner respectfully requests that the Decision be
vacated and annulled and that Petitioner be restored to her employment with the District
and such other and further relief as the Court deems just be awarded to Petitioner with
costs of this proceeding ..
Respectfully submitted,
February 3,2016
.~~,
TO:
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