A New York Appellate Division panel in Manhattan, unanimously reversing a trial judge, reinstated an arbitrator’s ruling that suspended an openly-gay tenured school librarian in the New York City school system for six months without pay, after the arbitrator found that the librarian had engaged in “inappropriate touching” of students of a non-sexual nature. The appellate panel found no evidence in the record of any sexual orientation discrimination that might provide a public policy justification for refusing to enforce the arbitrator’s award. The case is Asch v. New York City Board/Department of Education, 2013 Westlaw 791252, 2013 N.Y. Slip Op. 01360 (March 5, 2013).
Christopher Asch, a tenured school librarian/media specialist with over 20 years seniority, had an “unblemished” record until charges were filed against him by the Department of Education based on alleged incidents that occurred between 2005 and 2008. Nine charges were filed, seven relating to allegations that Asch had “inappropriately” touched several male students, and two relating to a field trip to Boston with seven students, for which it was claimed that Asch had not received proper school or parental permission for a student’s participation in the trip.
The investigation leading to these charges was set in motion in February 2008 when a student, I.F., approached the assistant principal and said that Asch had “been touching the students in a way that made them feel uncomfortable for some time.” I.F. showed the assistant principal “a sheet of paper with several emails that had been cut and pasted as corroboration of these allegations.” The assistant principal brought the paper to the principal and told him about I.F.’s allegations. The charges that were subsequently filed against Asch were referred under established procedures to a neutral arbitrator, designated for this purpose as a “hearing officer” by the American Arbitration Association.
The court’s opinion details the testimony of several students about how Asch would touch students in ways that made them feel uncomfortable, although none of the touching could be characterized as overtly sexual in nature. Asch presented testimony by several students who said “that any touching by petitioner was not viewed as sexual by them or made them feel uncomfortable.” Another librarian testified about her practice of sometimes touching students in order to get their attention in the library, the problem being that students would be sitting totally absorbed in front of computer screens, perhaps wearing headphones, and making noise or overstaying their allotted time. This librarian, called as a witness by Asch, reacted to descriptions of the touching from the testimony of students who felt uncomfortable, and indicated that she would not touch a student’s hair, squeeze a student’s shoulder, or run her fingers down a student’s spine, as Asch was alleged to have done, and would have considered such conduct inappropriate. Asch’s own testimony corroborated some of the allegations of the students, as he described methods he would use to get the attention of students.
The field trip incident involved a student whose mother had not given permission for him to go the with the “Quiz Bowl Club” to a competition in Boston. When the student showed up in Boston, claiming he had his parents’ permission to be there, Asch took his word for it rather than calling the parents to verify this and let them know their son was in Boston.
The hearing officer dismissed several of the specifications, finding that the evidence didn’t support them, but found that Asch had been derelict in his duty concerning the field trip issue and that some of the touching was inappropriate, stating “this case is about boundaries.” The Education Department had sought dismissal of Asch. The hearing officer concluded that a six-month suspension without pay and mandatory counseling and/or training regarding appropriate physical boundaries would be the appropriate penalty, considering Asch’s employment record, tenured status and the likelihood that he would not repeat the objectionable behavior as a result of this experience.
Asch appealed to Supreme Court, New York County, where Justice Manuel J. Mendez granted his petition to vacate the arbitrator’s decision, restoring Asch’s employment status with full pay. Justice Mendez found that the decision, while perhaps not intended to discriminate against Asch because of his sexual orientation, had that effect. He pointed to some evidence in the record of student hostility against Asch because he was gay, and rumors that had circulated about him among the students. Justice Mendez minimized differences between the descriptions of Asch’s touching and the practices of other librarians, asserting that Asch was being punished for conduct that had brought no discipline when a heterosexual librarian did the same things. Justice Mendez was inclined to accept Asch’s interpretation of the evidence, and opined that it would violate the ban on sexual orientation discrimination in the Human Rights Law to impose a disciplinary suspension without pay on Asch based on the judge’s view of the evidence.
The Appellate Division panel unanimously found that Mendez erred. “We discern no basis on which the motion court should have disturbed the hearing officer’s determination,” they wrote. The court insisted that “the record is devoid of any anti-gay animus on the part of the witnesses called by respondent. The hearing officer specifically found that petitioner’s inappropriate touching of the students was of a non-sexual nature and involved a question of crossing ‘boundaries.’ While it is true that I.F. was alleged to have used an anti-gay slur, Assistant Principal Grossman testified that he did not demonstrate any vindictive motive in reporting what he believed to be inappropriate touching. In fact, some of the students testified that the touching made them uncomfortable while others were not offended by it.”
“In short,” said the court, “the record is completely devoid of any indicia that either the charges or the penalty imposed were motivated in whole or in part by petitioner’s sexual orientation. As a result, the motion court improperly substituted its judgment for that of the hearing officer and thus erroneously applied the narrow public policy exception to invalidate the hearing officer’s determination.” The court also rejected Mendez’s finding “that the hearing officer demonstrated bias, whether intentional or not, in evaluating the testimony and credibility of the witnesses who testified at the hearing,” finding that the decision issued by the hearing officer showed that “he carefully weighed the evidence presented by both parties,” and had dismissed some of the specifications against Asch based on his credibility determinations. The court found no indication in the record that the evidence credited by the hearing officer was “animated by bias.” The court concluded that the penalty imposed by the hearing officer was not shocking to the sense of fairness or arbitrary or capricious in light of the hearing evidence, which would be the standard for judicial reversal of an administrative determination of this type.