By Anne A. Marchessault
Sept. 20 –A tenured teacher in Brooklyn, N.Y., who was fired following his arrest for bringing heroin to jury duty, will be reinstated after a court-ordered penalty reduction, a New York Supreme Court judge decided Sept. 16 (Matter of Esteban v. N.Y.C. Dep't of Educ., N.Y. Sup. Ct., No. 651904/13, 9/16/13).
Damian Esteban worked as a tenured teacher at the Williamsburg High School for Architecture for two years prior to his arrest. Following compulsory arbitration during which arbitrator Alan Berg found Esteban's testimony to be "entirely truthful," Berg imposed a penalty of termination of employment.
Granting Esteban's motion to vacate the penalty, Judge Manuel J. Mendez said the Department of Education of the City School District of the City of New York failed to introduce evidence demonstrating that Esteban was impaired in his ability to teach as a result of the conduct for which he was arrested.
"There is no evidence that this one arrest or the publicity it generated has impaired his ability to teach, or that he has lost the respect of his students," Mendez ruled.
Negative Publicity, Notoriety Around Arrest
On Oct. 17, 2012, court security discovered heroin in Esteban's backpack when he arrived for jury duty. He was arrested and later charged with misdemeanor possession of a controlled substance.
Esteban received an adjournment in contemplation of dismissal on the condition that he complete one day of community service with the Treatment Readiness Program. After Esteban completed the program, the charges were dismissed and the record sealed.
The department brought disciplinary charges against Esteban for: (1) entering a criminal courthouse while in possession of approximately 20 glassines of a controlled substance; (2) being removed as a juror in a murder trial; (3) violating chancellor's regulation C-105 by failing to report his arrest, failing to provide a copy of the criminal complaint issued against him and failing to provide a copy of the disposition of his arrest; (4) pleading to an adjournment in contemplation of dismissal and entering a one-day treatment readiness program; (5) participating in actions causing widespread negative publicity, ridicule and notoriety to the department.
The New York Post, the Daily News and the New York Times all had run articles detailing Esteban's arrest. The stories were headlined, "Jury duty dope busted for bringing heroin to court," "Junkie high school teacher sent to 'rubber room' after he was busted bringing heroin to court," and "Should've left that at home, teacher is told at jury duty."
Arbitrator Decides on Discharge Penalty
Because Esteban was a tenured teacher, the department held a compulsory arbitration regarding the charges against him.
Esteban admitted to specifications 1, 2, 4 and 5 at the arbitration, but he denied Specification 3 regarding failure to report his arrest and the criminal proceeding against him.
He testified that his drug addiction had been under control since January 2012, that he was not aware that the bag he used Oct. 17 contained drugs, that he only used drugs on the weekends, and that he had never used drugs or brought drugs with him to school.
Although the arbitrator said Esteban's testimony was "entirely truthful" and dismissed Specification 3, he found that the department showed that Esteban was guilty of the misconduct alleged in the other specifications and imposed a penalty of termination.
Esteban sought to set aside his discharge.
'Speculative Conclusions' Insufficient Support
The court ruled that Esteban satisfied his burden of showing the arbitration ruling is invalid.
Esteban alleged that there was no evidence in the record to support the arbitrator's finding that Esteban subjected himself and the department to widespread ridicule "compromising his ability to retain the respect of students and thereby throwing away his ability to be an effective teacher" or the finding that Esteban's conduct left the department "with no ability to know whether or not petitioner has brought the same drugs into a school building posing a risk to students."
"The Arbitrator found Petitioner to be 'entirely truthful' and then came to speculative conclusions not supported by the record," Mendez said.
Furthermore, Esteban alleged, the arbitrator failed to consider mitigating factors such as Esteban's unblemished criminal record, his outstanding record as a teacher, or that the conduct at issue was off-campus, while Esteban was off-duty, involved no students, and was highly unlikely to be repeated.
"There is no evidence that the conduct with which petitioner was charged affects his performance as a teacher or that any publicity would impair his capacity to discharge his responsibilities as a teacher," Mendez ruled.
Suspension Sufficient for Tenured Teacher
The court decided to revise the administrative sanction because it was so disproportionate to Esteban's offense as to "shock the conscience of the court."
"Unless there is no proof whatever to justify the award so as to render it entirely irrational, the arbitrator's finding is not subject to judicial oversight," Mendez said.
"There is no proof to justify the arbitrator's conclusions that petitioner's 'conduct and notoriety have seriously compromised his ability to retain the respect of students and to be perceived as a responsible adult to whom they should pay attention; or to justify the arbitrator's conclusion that petitioner has brought or will in the future bring drugs into a school building posing a risk to students,' warranting the penalty of termination," Mendez held.
The court found that the circumstances rendered the penalty of termination excessive because Esteban admitted and is in treatment for his drug addiction; his possession of drugs was inadvertent; he was charged with misdemeanor drug possession; he received an adjournment in contemplation of dismissal; the charges against him were dismissed and the record sealed; the conduct took place off the school's campus and no student was involved; Esteban has a spotless record as a teacher; and lesser sanctions are available that would deter Esteban from engaging in similar conduct in the future.
"Under these facts," Mendez concluded, "termination of employment is unduly harsh, an abuse of discretion and shocking to this court's sense of fairness."
Mendez vacated the arbitrator's sanction and ordered the department on remand to impose the lesser penalty of suspension without pay.
Eugene G. Eisner, Maria L. Chickedantz and Benjamin N. Dictor of Eisner & Mirer in New York represented Esteban. Corporation Counsel of the City of New York Michael A. Cardozo and Assistant Corporation Counsel Daniel LaRose represented the department.
To contact the reporter on this story: Anne A. Marchessault in Washington at amarchessault@bna.com
To contact the editor responsible for this story: Susan J. McGolrick in Washington at smcgolrick@bna.com
Text of the opinion is available at http://about.bloomberglaw.com/files/2013/09/Esteban-Ruling.pdf.
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