New York Supreme Court Justice Alice Schlesinger ruled June 11 that Alini Brito is entitled to a new administrative hearing on her claim that she was wrongfully discharged by the New York City Department of Education from her position as a Spanish teacher at James Madison High School in Brooklyn. Vacating a decision by Hearing Officer Mary Crangle, Justice Schlesinger found that Ms. Brito's due process rights were violated by the hearing officer's handling of an issue involving spoliation of key evidence by the Department of Education (DOE), and that the penalty — termination — was excessive even if the charges against Brito were true.
Brito was discharged after an incident at the school on November 20, 2009. She and another female teacher were attending a musical event that evening in the school auditorium on the first floor. According to her account of what happened, she felt ill and her colleague accompanied her to the colleague's classroom on the third floor, where she was so faint she ended up taking off her sweater top to use as a pillow while she lay on the floor. She suffers from hypoglycemia, which had made her weak and glassy-eyed. After determining this was the problem using a blood sugar test kit, she ingested sweets and recovered. However, janitorial staff passing by heard a noise, glanced in the classroom door, concerned that students were in an off-limits area after school hours, and called security. Security officers arrived, one of whom later claimed to have seen two women naked on the floor engaged in some kind of sexual activity. Administrators were called, the two teachers were suspended, an investigation ensued (which, as described by the opinion, was not very professionally done), and the teachers were dismissed. Both Ms. Brito and the other teacher are challenging the Hearing Officer decisions upholding their terminations.
The Hearing Officer found Brito's account of what happened not credible, and preferred on every disputed point the account offered by the school's investigator and various witnesses, even though there were conflicts in the witnesses' stories. The investigator and two other administrators had viewed a surveillance videotape of the hallway during the time in question. Although the video did not show the interior of the classroom, it clearly documented who went in and came out of that room. The investigator took notes while watching the video, but made no request that the video be preserved and did not make it available to Ms. Brito or her representative or counsel. Indeed, under standard operating procedures, since no request had been made to preserve it, the same tape was used 60 days later and recorded over, so the original recording did not exist by the time of the hearing. (Evidently, James Madison's security system has not advanced to the age of digital recordings.)
The investigator was allowed by the Hearing Officer to testify about who went into and came out of the classroom based on her notes from viewing the video, over objections. During direct testimony, the investigator said that her notes were an accurate record of everybody who went into and exited the classroom. The most damaging testimony was that of the security officer, who testified to seeing the two women naked engaged in sexual activity (which, from the description in the opinion, might be cunnilingus). None of the other witnesses who were alleged to have entered the room over the course of events claimed to have seen the women naked, although one mentioned seeing Brito putting on her top and zipping up a boot. Interestingly, the investigator's notes did not record the arrival of the security officer or her entry into or exit from the classroom. This was brought out on cross-examination. Then on re-direct, counsel for DOE led the investigator to impeach her own testimony and state that her notes were not a complete record of what she saw on the video, and that it showed the security officer entering and exiting the classroom.
Counsel for Brito argued to the Hearing Officer that the unavailability of the video was a fatal flaw in the case, but the Hearing Officer ruled that because the video did not show inside the classroom, it was not material. The Hearing Officer, finding Brito guilty on three of the four charges (she did not find that Brito was drunk at the time), sustained the discharge, finding no mitigating factors, even though there was testimony that Brito had a clean record and was a highly rated teacher who had been promoted to Dean of her department.
Justice Schlesinger ruled that Brito's due process rights were violated because the videotape was key evidence that would either corroborate or discredit the security officer's testimony, and would also provide evidence on other disputed points that had seemed significant to the Hearing Officer. Even if spoliation of key evidence took place through inadvertence, nonetheless it had been within the control of the DOE, and at the least its unavailability should have led to adverse inferences about whether it would have corroborated the testimony offered against Brito about who went into and came out of the classroom. The judge also noted that the security officer's notebook contained no record of this incident, even though it was custom and practice to record every incident she observed.
Justice Schlesinger also found that imposing discharge in this case — even if Brito and the other teacher had engaged in sexual activity at that time and place — shocked the court as extreme. She reviewed other cases of teacher discipline for misbehavior and found the penalty here to be disproportionate to that imposed in other cases, although there was no other case that was factually closely on point.
Assuming, for purposes of discussion, that the charges against Brito were true, nonetheless the court found the penalty excessive by comparison to the case law.
"What can be gleaned here from the disparate penalties [imposed in other cases]?" asked Justice Schlesinger. "It is that a hearing officer, at the very least, must consider multiple factors in deciding on a penalty and that the penalty must have a rational connection to the specifications that have been proved against the teacher. Hearing Officer Crangle failed to adequately do that in this case. Several factors existed that typically would weigh in favor of the teacher, such as Ms. Brito's long, unblemished record, her outstanding performance as a teacher, the fact that no students had been involved in the incident, and the fact that the conduct was unlikely to be repeated. But the Hearing Officer discounted these factors. Why? As she repeatedly stressed, she found that the alleged conduct was serious and without justification and that Ms. Brito's excellence as a teacher simply could not be a mitigating factor. Everything was simply 'outweighed by the seriousness of the conduct at issue here.'
"Certainly to most people, the conduct of having sex in a school building with another teacher when students are present in the building, is outrageous or certainly very serious. All would agree that, at the least, it shows a real lack of judgment. But it is not even imaginable that conduct anything like this could ever happen again with Ms. Brito. And of course, it had never happened before. In fact, as previously noted, Ms. Brito's past record was unblemished, and she was described by her supervisor as one of the 'best', one who had recently been promoted to Dean. Arguably, Ms. Brito's conduct did not hurt anyone. Significantly, no inappropriate conduct with a student was involved. The Principal, who testified, said the reported conduct hurt the reputation of the school, and undoubtedly it did. Also, both the Principal and AP [Assistant Principal] Cohen testified that the incident and its press coverage were demoralizing to the students. But Dr. DiLorenzo testified that it hurt the students because they really missed their teacher. 'The students absolutely adored her.'" It seems that press attention came because a custodial employee who was not even present at the time repeated the story of finding naked women in a classroom to a reporter, resulting in an explosion of mocking media coverage extending to national television (the Leno show, for example).
"So what are we left with here?" asked Justice Schlesinger. "We have children who are deprived of a first class, caring teacher and a teacher who, due to one sensational publicly-exploited incident where she exhibited extremely poor judgment, is deprived of continuing a career she loves and excels at. That is not a good balance, in the opinion of the Court. In fact, the imbalance is shockingly bad. Therefore, the penalty is annulled."
In remanding the case for a new hearing, Schlesinger specified that Brito receive "a new hearing before a different Hearing Officer consistent with the terms of this decision and, in any event, for the imposition of a lesser penalty."
Ms. Brito is represented by Michael A. Valentine of Altman Schochet LLP. Corporation Counsel's Daniel Gomez-Sanchez represented the Department of Education.
Press reports suggested that DOE will most likely seek to appeal the case. What would make more sense (and save DOE time and financial resources) would be to negotiate a settlement involving reinstatement, and to provide some retraining for Hearing Officer Crangle about rules of evidence in administrative hearings. It is easy to conclude, from reading Justice Schlesinger's summary of the evidence and proceedings below, that this is a case where a school employee speaking "out of school" based on rumors generated a media firestorm, as a result of which embarrassed administrators "circled the wagons" and railroaded an excellent teacher through an incompetent investigation with the cooperation of an unduly accommodating Hearing Officer.