Finding that a labor arbitrator's imposition of a 6-month suspension without pay was "shocking to this court's sense of fairness," New York Supreme Court Justice Manuel J. Mendez vacated the arbitrator's decision and ordered that an openly gay high school librarian be restored to full employment status with back pay and without any requirement for counseling or training. The decision in Asche v. New York City Board of Education, 108528/10, NYLJ 1202498891395 (N.Y. Supreme Court, N.Y. County) was reported in the New York Law Journal on June 30, 2011.
According to Justice Mendez's opinion, Christopher Asch, "an openly gay man," has more than twenty years of service and holds a tenured appointment as a librarian with the New York City Department of Education (DOE). He was employed at Stuyvesant High School. The DOE brought charges against him in June 2009 based on two issues. The first involved a claim that he violated rules by failing to obtain parental permission before taking a group of students on a field trip to Boston. The other involved allegations by some students that he had been touching them improperly in the library.
After an investigation by the Office of the Special Commissioner of Investigations (SCI), criminal charges were filed against Asche, which received some publicity in the press, but the district attorney's office, upon its own investigation, determined that there had been no criminal activity warranting prosecution. Nonetheless, DOE sought Asche's dismissal, and he was reassigned to the infamous "rubber room" pending the outcome of his case. Under the Education Law, the issue of his discharge was subject to mandatory arbitration. A hearing stretching over twelve days between November 2009 and January 2010 was held by Arbitrator David Hyland, designated as a "hearing officer" for this purpose under the Education Law.
Evidence presented at the hearing was conflicting. It seems that Asche was a last-minute substitute for a parent chaperone on the Boston trip, which did not involve a school-sanctioned club activity, but Hearing Office Hyland found that Asche was still responsible for obtaining appropriate permission for the students, at least one of whose parents had indicated that the student could not go. The issue involving touching was more complicated. There was evidence at the hearing that it was customary in the library for librarians to touch students to get their attention without having to raise their voices, in order to maintain quiet in the library. There was specific testimony that a heterosexual female librarian engaged in the same conduct as Asche and was never cited or disciplined for it.
Hearing Officer Hyland found that none of the touching that students complained about was sexual in nature, but that some of it was "inappropriate," and Asche claimed that Hyland had inappropriately rejected attempts to show that there was some sort of conspiracy by homophobic students to get him fired. Wrote Justice Mendez, "The hearing officer did not find substantial cause rendering petitioner unfit to perform his obligations of service, but found he had neglected his duty and that some of the charged conduct was unbecoming to his position or was prejudicial to the good order, efficiency or discipline of the service."
Although Hyland rejected the DOE's demand that Asche be terminated, he ordered a six-month suspension without pay, and that Asche be required to "attend counseling and/or training to understand appropriate professional and physical boundaries between himself and the students, whether in management of student behavior in the library or otherwise."
Representing himself, Asche appealed his suspension, complaining that his right to be free of sexual orientation discrimination under the state's Human Rights Law was violated. He argued that Hyland's conclusions were "arbitrary and capricious," in light of the testimony that his conduct was no different in kind from that of a heterosexual female librarian who had not been charged with misconduct or subject to discipline. He argued that the penalty imposed on him was "shocking to one's conscience" and would "have a chilling effect on gay, lesbian and transgender individuals employed in the education system because they would be subject to actions by students based on their sexual preferences and not their actual conduct."
Justice Mendez sided with Asche, concluding, "The public policy considerations embodied in [the Human Rights Law] were violated by the finding that petitioner, an openly gay man, engaged in inappropriate touching when his actions, i.e., touching, whispering and standing silently next to students, were the same as the heterosexual female librarian. . . No charges were brought against the female librarian, and she was not required to attend counseling or training."
"Hearing Officer Hyland may not have intended to discriminate against the petitioner," Mendez continued, "but the opinion and award has that effect. Petitioner has the right not to be discriminated against or abused by students based on his sexual orientation." Justice Mendez noted that the SCI investigator had testified at the hearing that "whispering and touching students on the shoulder was generally acceptable to get their attention in the library." Mendez concluded that "there is no rational basis for a finding that his touching of students, which was done in the same manner as a heterosexual librarian, constitutes an inappropriate touching; especially given his history of 20 years of exemplary service."
Normally a court is not authorized to substitute its judgement for that of an arbitrator on the merits of a case, but Mendez noted that a ruling that was "shocking to one's sense of fairness" could be set aside. "The nonexistence of a prior disciplinary record in twenty years and the financial impact of the six month suspension without his salary, is clearly disproportionate to petitioner's conduct," wrote the judge. "He was forced to defend himself against criminal charges and was exposed to the stigma of being described as a 'pervert' in the press. It is shocking to one's sense of fairness that petitioner is required to attend counseling or training to understand appropriate professional or physical boundaries, when touching and whispering is acceptable practice, and was done in the same manner that was permissible if performed by the heterosexual female librarian." Indeed, Mendez noted evidence in the record that among all the librarians employed at Stuyvesant High, Asche was deemed the least physically intrusive with students to maintain order in the library.
Mendez concluded that Asche, representing himself in the appeal, had met the burden required to overturn the arbitrator's award. "A legally recognizable cause of action can be identified even if it is not skillfully prepared," he wrote, denying the Education Department's motion to dismiss Asche's petition on technical grounds, and ruling for Asche on the merits.
The Education Department was represented by the City Corporation Counsel's Office, which will have to decide whether to appeal.