By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
Two language teachers at a Brooklyn high school were improperly fired after a sexual encounter on school grounds, a Manhattan appeals court ruled.
Cindy Mauro and Alini Brito taught French and Spanish, respectively, at James Madison High School on Bedford Avenue. In 2009, after having dinner off campus with colleagues, the two went back to the high school campus to observe a musical competition.
It is alleged in court documents that at some point, the two women were seen in a third-floor classroom "partially undressed … and "engaging in what appeared to be sexually inappropriate behavior.” Mauro and Brito were fired after an arbitration hearing with the New York City Department of Education (DOE).
The teachers challenged the arbitration, Brito in Manhattan and Mauro in the Bronx, yielding separate results. The Bronx County Supreme Court upheld Mauro’s firing, causing Mauro to further appeal to a higher appellate court. The presiding justice in Brito’s appeal to Manhattan’s Supreme Court concluded with the presiding justice discounting the hearing officer’s observations and vacating Mauro’s firing. The DOE subsequently challenged the finding.
Brito’s and the DOE’s separate challenges were heard by the same panel of Appellate Division, 1st Department justices as they involved the same set of facts despite competing demands for relief.
In the cases against Mauro and Brito, the justices found each firing to be improper and excessive.
Looking at Brito’s case, the justices deemed the lower court judge’s decision not to factor the hearing officer’s observations of witness improper. The court acknowledged that an arbitration hearing officer’s report on witness testimony may, at time, be deemed precarious primarily because, unlike in trial court, the hearing officer’s determination of a witness’s credibility is largely unreviewable.
"A hearing officer's determinations of credibility, however, are largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures -- all the nuances of speech and manner that combine to form an impression of either candor or deception," the court noted in its unsigned opinion.
Because of this “unreviewable” record, it is pertinent, the appellate court advised, that any further judge hearing an appeal of an arbitration, take on face value, the observations made by the arbitration officer.
The justice in Brito’s case wrongly substituted her own assumptions of facts for the evidence deduced by the hearing officer. “The Supreme Court erred in substituting its judgment for that of the hearing officer,” the court ruled.
The facts in either case, Brito or Mauro, should not have been in dispute, the court concluded. The teachers did engage in improper conduct, and the evidence supported findings of misconduct. Witnesses gave “interlocking and closely corroborating testimony” in both cases, indicating that the teachers had engaged in sexual conduct during the musical performance.
The issue for the Appellate Division was not whether or not Brito and Mauro were sexually involved on DOE property, but rather whether or not the punishment of termination fit the alleged offense. The court ruled that the punishment did not fit the crime.
Citing prior cases of teachers caught in illicit sexual acts with other students, the court used the light penalties issued as an example of the exactly how inappropriate Brito and Mauro’s firings were. In 2010, for instance, Staten Island teacher Cynthia McGraham was given a 90-day suspension without pay for sending explicit instant messages and emails to a 15-year old student. And more recently, in 2013, Stuyvesant High School librarian Christopher Asch was given a one-year suspension for alleged inappropriate non-sexual touching of students.
Neither Brito nor Mauro engaged in inappropriate behavior with minors. However, their punishment far exceed that of teachers who had. Brito and Mauro were “engaging in consensual sexual conduct with an adult colleague [and that] is not in and of itself either criminal or otherwise improper,” the court stated. “The incident involved a consenting adult colleague and was not observed by any student.”
The court acknowledged that it was inappropriate for the teachers to philander on school property noting, however, that at the time of the incident both teachers were not on the grounds in any “official capacity.” Rather ,they were “audience members” of that evening’s musical performance.
Brito and Mauro’s actions were “demonstrated a lapse in judgment,” the court declared, but “there is no evidence that this incident, was anything but a one-time mistake.”
The DOE argued that the terminations were just given the “widespread negative publicity, ridicule and notoriety to [JMHS] and the New York City Department of Education (DOE) when [Brito and Mauro’s] misconduct was reported in New York area news reports and papers."
While the press attention is “unfortunate,” said the court, termination was still not a just punishment. The “penalty of termination of employment is shockingly disproportionate to petitioner's misconduct,” the court ultimately ruled, reversing Brito and Mauro’s termination of employment remanding for a lesser penalty to be imposed.
Dubbed “Horndog High” by many news outlets, this is not the first time James Madison High School has been in the news related to sexual inappropriateness by its staff. In June 2013 Erin Sayar, former teacher at the Marine Park school, plead guilty to sexually assault charges steaming from accusations that she engaged in a sexual relationship with her student, Kevin Eng.