Before: Alan R. Viani, Impartial Hearing Officer

Appearances:

For the Board of Education

CHAD VIGNOLA, ESQ.

General Counsel to the Chancellor

Attorney for Complainant

Office of Legal Services

110 Livingston Street Brooklyn, New York 11201

BY: SUSAN MANDEL, ESQ.

For the Union

JAMES R. SANDNER, ESQ.

General Counsel, New York State United Teachers

Attorney for Respondent

260 Park Avenue South

New York, New York 10010

BY: CONRAD W. LOWER, ESQ., of Counsel

BOUBAKAR FOFANA, Tenured Teacher/Respondent

The undersigned, pursuant to the procedures of Section 3020-a of the New York State

Education Law, was duly designated as the Hearing Officer in this matter.


A pre-hearing conference was held December 6, 1999.

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Hearings were held March 9, April 10, May 5, June 2, and June 25, 2000. The parties were

afforded a full opportunity to submit documentation, examine and cross-examine witnesses,

and make argument in support of their respect positions. They did not submit post-hearing

briefs. A written transcript of the proceedings was made, the final installment of which was

received by me on July 24, 2000, on which date the hearing was closed.

ISSUE

The issue agreed upon by the parties is:

First, has the Board of Education proven the case by a preponderance of evidence, and,

second, if so, do the proven charges constitute just cause for discipline under section 3020-a of

the Education Law?

BACKGROUND

Boubakar Fofana ("the Respondent") was educated in Burkina Faso, the Ivory Coast,

France, and the United States. After teaching for a number of years in the Ivory Coast and

Gabon, in 1989 he was first employed by the New York City Board of Education ("the

Board"), and three years later, in 1992, assigned to Erasmus Hall Campus High School for

Business and Technology ("Erasmus") as a probationary Teacher of mathematics. He

received tenure some two years later, and continued to teach at Erasmus until he was

suspended in February 1998 pursuant to this matter. In an undated document (Board Exhibit1)

[ 1 ], the Respondent was charged as follows:

"During the 1997-1998 and 1998-1999 school years, Respondent was excessively

absent and/or excessively late, insubordinate, neglected his duties, and rendered improper

services, incompetent services, performed corporal punishment, and used offensive language

which is just cause for discipline, as follows:

IN PARTICULAR:

SPECIFICATION I:

During the 1998-1999 school year, Respondent was excessively absent from work on the following days: [63 dates enumerated]

SPECIFICATION II:

During the 1998-1999 school year, Respondent was late forty-­four (44) times for work on the following days: [dates and number of minutes enumerated]

SPECIFICATION III:

[ 2 ] … Respondent acted improperly on or about January 23, 1998 in that:* * *

4. Respondent told Pupil Personnel Service Coordinator Laura Edwards a threat to the effect of 'If you write one statement about me, you'll be hearing from my lawyer. '

SPECIFICATION IV:

On or about 9:00 A.M. on February 3, 1998, Respondent improperly asked student RP if she thought she was cute.

SPECIFICATION V:

On or about February 3, 1998, Respondent used offensive language and acted improperly in that:

The foregoing_ constitutes:

- Neglect of duty;

- Offensive language;

- Excessive absenteeism and latenesses;

- Corporal punishment under Section lOA of the By-laws of the Board of Education; and

- Just cause for discipline under Education Law section 3020-a."

Specifications I and II

Myrna Walters, Erasmus Principal since August 1995, has held a variety of

Board positions since at least 1981. She testified that on or about October 17, 1995 she had

discussed "the absence policies" with the Respondent and had written him a letter concerning

them. (T47) (Board Exhibit 3) She also sent a letter to the Respondent dated September 11,

1995, "[b ]ecause at the beginning of the term Mr. Fofana did not appear for - to school, and

I think it was, like, 18 days later that he showed up for the beginning of the school year.

(T51) (Board Exhibit 4) [ 3 ] Under cross-examination, Walters acknowledged that the absences

and latenesses with which the Respondent is herein charged [ 4 ] occurred after he was removed

from the school, that she had no supervisory responsibility for the locations to which he was

assigned, and she did not speak to the Respondent about the absences that are the subject of

the specifications. (TI09)

The Respondent testified that he was reassigned to administrative duty after February

4, 1998, specifically, that after meeting with Superintendent Joyce Coppin on February 23,

he was assigned on February 26 to East New York High School for Transit ("Transit"), and

remained there for the school year 1998-'99, and that he was assigned to Wingate High

School ("Wingate") for the 1999-2000 school year. At Transit, he "was asked [orally, by

Principal Lazarus] to write a curriculum in math, an interdisciplinary curriculum,

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mathematics and physics. . . to help the students taking the Regent Exam in physics, to help

them in math." (T263) (Respondent's Exhibit 18) At the time he was pursuing doctoral

studies at Rutgers University in the application of mathematics to management. The

Respondent testified that he got no feedback on the "curriculum project," had not been

asked anyone for any work he had done on it; had not had any meeting with anybody

concerning it. He stated, with respect to the absences, " I was absent because it appeared

clearly to methat what I was doing was of no interest to the school administration."

They didn't ask me anything about the curriculum. I did not discuss anything about the

curriculum. When I came back from the previous school year, in September, nobody talked

to me about what I should be doing, despite the fact that I was sharing an Assistant

Principal's office. So it appeared to me clearly the work I was given was just "make-work,"

just to keep me busy. They were not interested.

As a result, I decided to focus on my studies and that's why I was absent and I was

deducted." (T266, 267)

The Respondent testified that he was not advised by anyone at the school that he

should not be absent nor was he criticized by anyone for his absences; he did not submit

leave forms nor was he asked to; his absences were recorded by failure to punch his time

card, and deductions were made from his pay reflecting each absence and lateness. (T270,

271) (e.g., Respondent's Exhibit 11 ) [ 5 ]

The Respondent testified that, by letter (dated January 11, 1999) with accompanying

form (Respondent's Exhibit 17 ) [ 6 ] to Erasmus Principal WaIters, he requested a leave of

absence without pay, to commence in February, because he "just felt it would be more

practical. . . to take a leave of absence. . . to pursue my doctoral studies, pending the

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resolution of my case because. . . when I'm absent, I'm getting deducted so let's do it in a,

you know, consistent manner, just request it and take the time." (T281) (Respondent's

Exhibit 12) This letter was returned as undeliverable (Respondent's Exhibit 13) but a copy

was delivered by certified mail to Superintendent Joyce Coppin. (Respondent's Exhibit 14)

In early June 1999, the Respondent received a call from a Mr. Ferrera, "Head of Personnel"

in the District Superintendent's office, to discuss the leave request; however, since the

school year was virtually over, he advised Ferrera, "I don't need it any more." (T285,286) It

was not until June 1999, upon receipt of the charges herein, that the Respondent was made

aware that his attendance record was unsatisfactory, he testified. (T287) Under cross-

examination,he acknowledged that he is aware of the need for regular attendance and

promptness. (T305)

Specification III

Laura Edwards, a Board employee since 1986, is Interim Acting Assistant Principal

of Pupil Personnel Services, Erasmus. She testified that on January 23, 1998, after an

"incident" (T80) in a classroom, she and Principal Walters left the classroom, whereupon the

Respondent approached her and said "[s]omething to the effect of that 'if you write one thing

down you will be hearing from my lawyer.' " (T81) [ 7 ]

The Respondent denied making the statement alleged or using any threatening words.

(TI83)

Specification IV

Student RP, now a student at Kingsboro Community College, testified with regard to

the Respondent, "I never really attended his class because I used to get kicked out a lot, not

for being rude or disruptive. . . but when I enter that class he would tell me that my clothing

is distracting to the guys in the class. So I asked him if it was distracting to him or the guys."

"They had one incident where I entered the class. I was a couple of minutes late, like five

minutes late or whatever. He asked me if I think I'm walking into a fashion show. I said,

'Yes I do. If that's what you think, yes, I'm walking into a fashion show.' Then he asked me

if I think I'm cute. 'No, I do not think I'm cute, I am cute.' That's when he told me, 'Go to

the Dean's office,' and I went to the Dean's office and I wrote up a complaint." (Board

Exhibit 15) (T138, 139) [ 8 ] RP stated that she was in the Respondent's class no longer than a

month prior to being transferred out. (T143) She said, "I was never really in Mr. Fofana's

class. .. most times I would be in the guidance counselor's class during that period."

(T145) She said, "Say, in a week I would probably be in his class four days out of that

week." (T146) Under cross-examination she stated she sat through an entire class on

"[ a] bout, like four" occasions. (T150)

The Respondent testified that, on February 3 or 4, RP "came into my class. . . late, 15

minutes or more, and she was dressed in what I would call an inappropriate manner. . . very

short skirt and the top was open and she was dragging her feet as she entered the classroom."

"She took her time, if you will, and that attracted the students. . . ," who reacted by

"whistling." (T198)[ 9 ] After reminding her that "this is not a fashion show," and telling her,

"Go to your seat or leave immediately or I will remove you," the Respondent testified.

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She ignored me and walked toward her seat but in a very calculated manner because the students

continued to laugh. I repeated, again: "I'm not going to repeat it. Either you go, immediately. . . or

I will have you removed" and she. . . came back to the door. . . and was making faces. . . just to

taunt me, you know. 1 said to her, "You think you're cute?" She said, " I am." (T198, 199)

The Respondent testified that the last day he taught that semester was February 9.

Specification V

Student TB last attended Erasmus in February 2000. When asked about February 3,

1998, she testified that the Respondent "used to call us stupid and he used to say we belong

in a zoo. . . [b ]ecause we be talking." (T121) Specifically, according to TB, the respondent

directed his remark toward herself and her friend, N, because, "N was talking to me and I

was talking back to her. So he came and told us, 'Stop,' and N. didn't stop. And N. was

telling him, talking back to him. Then he said, 'Well, both of you belong in a zoo.'" TB

wrote an undated statement regarding this incident (Board Exhibit 5) [ 10 ] after speaking with

Principal Walters, who told her she should write a statement "if you want to." (T124)

Student RP testified, ". . . there were other kids in the class including T[B] that have

had problems with Mr. Fofana, whether it would be him telling them that they are stupid, that

they belong in a zoo, whatever the case may be. . . ." (T142)

The Respondent testified that RP was not in the same class section as TB; he knew

this because he had the official rosters. (T203) [ 11 ]

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Student JS testified that on the first day of class (T16),TB "was sitting at her desk and

she kept raising her hand asking Mr. Fofana what is his name. He did not answer her so she

got up and went to him and asked him politely, she said, 'Mr. Fofana,' she said, 'Excuse me,

sir, can I please know your name?' He did not answer her and when she walked away he

said to her that she belonged in a zoo and she got very upset and started screaming

everything else, and she walked out of the classroom." (T9, 10) Under cross-examination JS

testified that TB was "screaming under her breath. . . like, [w]hen mumbling, like you can

see her say something but you don't hear it verbally." (T25) He stated that he had not

advised anyone about this "incident" contemporaneously with its occurrence and that the first

time he related it was when testifying. (T27, 28)

The Respondent testified that he did not have any recollection of TB having been in

his class; he never stated to his classes that the students belonged in a zoo; he never referred

to his class as stupid. (T202, 203) Under cross-examination he said, "I don't even know T. I

heard this name the very first time when I received the complaint, the formal charges, one

year later."

Specification VI

JS, a 9th grade student of the Respondent in February 1998, testified that on February

4, after a misunderstanding involving book receipts, "Mr. Fofana called me a clown and then

he changed the story, he changed the story that I called him a clown and when I said, 'I did

not say that to you,' he replied that my father is a clown, and then he spit in my face," after

which "security guards came and after that I got in his face. When I got in his face he had

made a comment to me that, 'I'll make your life a living hell.' " (T11) "He just said that out

of the blue." (T67) Under cross-examination JS testified that after he completed two math

problems given by the Respondent, "[s]omebody in the classroom. . . [j]ust said the word,

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'clown,' that the Respondent ". . . looked at me like I said clown. . . [t]hen he replied my

father is a clown so I got up in his face." (T54, 55) When JS "was real in his face," he

testified, the Respondent "spit in my face." (T56,57) He "stepped back and then spit."

(T58)

JS entered two written statements, [ 12 ] one at Edwards' direction and the other the

following day Walters' direction. He testified that he "was transferred immediately to

another class." (T13)

JS depicted himself as a student who had been criticized for talking and making noise

in class; he denied having received disciplinary referrals that year, denied having refused to

work or inciting others not to work, eating, speaking loudly, disturbing other students,

interfering with lessons, throwing paper balls, leaving the classroom without permission,

using obscene language, and threatening or cursing another teacher. (T76, 77) [ 13 ]

The Respondent testified that on February 4 1998, after he told JS to change his seat

from the back to the front of the room, JS, ". . . instead of going to his seat, he went straight

to me. . . about three feet [away]." "I told him - 1 just gestured - 1 made a motion to go to

your seat a:nd he refused and the students started to yell at him. . . ." 1 said to the students,

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'Hey, you guys, stop clowning around in my class; otherwise there will be some

suspensions.'" "Mr. S [JS] was in front of me and he said to me, 'You're the fucking

clown. ' ", "Well, I looked at him quietly and I said, Would you say that to your father? and

he responded, 'Leave my fucking father alone.' (T250, 251) "At that point there was some

pandemonium. . . that increased. . . and I stepped aside again and I said, 'I am not going to

repeat it again,' and, boom!, a couple of students threw paper balls, and, at one point, I felt

some object on my lower lip. It felt wet, so I immediately rejected it." [Here the Respondent

made a spitting motion and brought his hand back and up to his mouth.] At that point, the

Respondent testified, another student said, "'Oh, he is spitting at James. '" (T252) He stated

he was not close enough to JS for saliva to fly into his face and before he exited the room JS

did not complain of having saliva. (T257)

DISCUSSION

It is, of course, the Board's position that it has "met its burden of proving that Mr.

Fofana has acted inappropriately. . . ," and, moreover, that the "proper penalty" is termination

of his employment. (T463,464) The Respondent's position, not surprisingly, is that ". . . the

Board. . .has not met its burden of proof that any action of Mr. Fofana was misconduct" and

requests that I ". . . dismiss these charges so that they are expunged from Mr. Fofana's

record, so that he can return to the classroom and teach students." (T441)

SPECIFICATIONS I and II

It is undisputed that the absence and lateness with which the Respondent is charged,

most of which were admitted, occurred during the period following his removal from the

classroom. The Union submits, "very simply, this is a case of acquiescence." (T434) "The

Board is estopped from claiming that the absences and latenesses in this case constituted

misconduct because the Board acquiesced in Mr. Fofana's actions." The Union notes the

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unrebutted testimony of the Respondent that his pay was docked for all absences and

latenesses; that there was no disruption of instruction because he was removed from teaching

duties; that he was never put on notice of or chastised for being late or absent, or directed to

modify his behavior in that regard, and that the assignments given to him during this period

were "essentially. . . 'make-work.'" (T439,440)

The Board argues that the Respondent "understood the obligations. . . that he had to

show up at work. . .." "He could have quit. That was his choice not to." That his pay was

docked "is not the issue here." "The issue is you are supposed to show up on time"

regardless of whether the Respondent, who "has his right to be offended" "by the lack of use

that this school system put in" utilizing the curriculum he was developing, deems the

assignment to be "make-work."

The Union and the Board each make legitimate points. The underlying responsibility

of an employee to report to a work assignment, on time, is fundamental, and, except for the

special circumstances surrounding this matter, cannot easily be mitigated. That the

Respondent's assignment was "make-work," as the Union contends, is clear; that this is a

legitimate basis for him to abrogate his responsibility would under other circumstances be far

less clear. However, another fundamental principal of the workplace is that an employee has

the right to be put on notice if his conduct is unacceptable to the employer. I agree with the

Union that the Board acquiesced in the Respondent's failure to regularly report, or report on

time, by its own failure to advise him of its expectations or his dereliction at any time during

the six month period encompassed in the specifications. Instead, his paychecks were

routinely docked, and, complacent in the knowledge that he was not in wrongful receipt of

taxpayer funds, his belief that he could pursue his doctoral studies with impunity during this

period was not entirely misplaced. Was he "excessively absent" and "excessively late," as

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the Board charges? Absolutely. Were these absences and latenesses cause for discipline?

Absent a showing by the Board of intent by the Respondent to deceive the employer or his

willful failure to meet its expectations or notify him that his record was unacceptable, they

represent a technical violation only, and, as such, he should be penalized by the modest

penalty of a written reprimand.

Specification III

Subsections 1.,2., and 3. having been previously dismissed, it remains only to

determine whether the Respondent "told Pupil Personnel Service Coordinator Laura Edwards

a threat to the effect of, 'If you write one statement about me, you'll be hearing from my

lawyer. "

The Board states, "In this case, it's Ms Edwards' credibility versus Mr. Fofana's,"

submitting that Edwards is "more credible" because the Respondent "was angry at her now

because of her investigation into his supposed misconduct, and he threatened her in his own

manner. . .." (T448)

Noting Walters' failure to corroborate Edwards' testimony as well as conflicting

testimony about precisely where the so-called "threat" was made, the Union argues that the

allegation simply "makes no sense from beginning to end." (T400,401)

I am not going to dwell on this specification. I am inclined to give the Board the

benefit of the doubt here, and find that the Respondent said what he is alleged to have said. I

do not, however, find that he "acted improperly" in the sense that discipline is justified. The

Respondent had the right to call his lawyer if Edwards, in effect, "wrote him up," and to

advise her that he would be doing so. I am here constrained to observe that in Edwards'

written statement about this event (Board Exhibit 13), in which she says, "I told Mr. Fofana

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to 'Tell it to my husband,'" advice that may more reasonably be perceived as threatening

than the Respondent's advice to Edwards.

Specification IV

In the case of student RP, there is no significant dispute between the parties as to the

facts. The Board states, "[S]pecification 4 regarding RP discusses improper comments

toward RP. She thought that he was focusing on her in a sexual manner, and improperly.

And the Board of Education chose to agree with her." (T448,449) I was, frankly, taken

aback by the Board's suggestion that the remarks directed toward the student by the

Respondent had a sexual connotation as well as its assertion that RP herself thought this to be

the case. There is no evidence in the record to support this conclusion. As the Union noted,

the context in which the Respondent, who acknowledged having asked RP if she thought she

was "cute," employed this characterization "has. . . nothing to do with. . . the suggestion of

the specification that there is some sexual connotation there. It has to do with, 'do you think

your acting cute? Do you think you're cute in coming in and disrupting my class?'" (T409)

The specification alleges that the Respondent "improperly" made this inquiry of RP; the

word "improperly" connotes a host of possibilities not limited to sexual harassment. A

careful review of RP's testimony, in its entirety, convinces me that she herself did not take

the Respondent's remarks as of a sexual nature. She said, "Well, Mr. Fofana - I never really

attended his class because I used to get kicked out a lot. . . when I enter that class he would

tell me that my clothing is distracting to the guys in the class. So I asked him if it was

distracting to him or the guys." Such provocation by the student induced the Respondent to

expel her from the classroom. Coupled with the Respondent's testimony, which I found

credible, it is apparent to me that the clearly rhetorical question he directed at RP referred to

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her behavior and reflected his exasperation at her disruptive, inappropriate, and deliberately

provocative manner.

Under the circumstances, I find that the Respondent's having asked RP "if she

thought she was cute" was not improper and I find no justification for discipline.

Specification V

The Board's position with regard to TB appears to be encompassed in its general

assertion that, "The children's testimony is cumulative and persuasive. Inappropriate

language was used. T[B] coming in and saying she was referred to as if she was an animal in

a zoo is very troubling." (T457)

As the Union notes, "[I]t's very difficult to prove a negative. . . ." Accordingly, I

found it necessary to carefully examine the testimony of the students that was offered to

corroborate TB's testimony; in my view, it does not stand up under close scrutiny.

The Respondent testified that TB, RP, and JS were each in different math sections.

Although the Board asserts that the January 28, 1998 computer printouts offered by him to

support this testimony (Respondent's Exhibits 6, 7, and 8), having been in his possession, at

the time of their submission no longer represented "official business records," the columns

showing the student's names do not appear to have been altered. The Board advised that

information regarding changes made to the rosters after those documents were produced was

unavailable because it did not maintain such records (Board Exhibit 16). I am not convinced

that JS and TB were in the same class, despite their testimony. I cannot, of course, entirely

preclude the possibility that changes were made in the three business days between January

28 (a Wednesday) and the morning of February 3 (a Tuesday). Without any evidence to the

contrary, I have no solid basis to conclude that RP was in the same class as IB, and the

Union's argument that these students conferred with one another in an effort to support each

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other's testimony cannot be entirely discounted. I am constrained to give the Union the

benefit of the doubt, keeping in mind, as always, the Board's burden to prove its case by a

preponderance of the credible evidence - and here I emphasis "credible." Without

supporting documentation of changes to the original rosters, the students' testimony, which

was fraught with inconsistencies, is insufficiently persuasive.

For example, RP stated that she was in the same class as TB. (T141) However, her

own testimony about the incident that was the subject of Specification IV was that upon

entering the classroom late, an exchange of words occurred between herself and the

Respondent, whereupon she exited the classroom. This occurred the same day as the TB

incident. Thus, even if she had been in the same section as TB, RP could not possibly have

heard the Respondent address TB as the Board suggested she had. In fact, when pressed by

the Union to describe "the circumstances of how that [Respondent calling TB "stupid"]

happened, RP could only say, "I really cannot remember the circumstances of when that was

said, but 1 do know it was said." (T144) Her testimony, "I'm absolutely sure he said she was

stupid," (T145) is highly suspect and I am unable to assign it any value in supporting the

Board's position.

JS has a similar credibility problem. His version of this incident involves TB

repeatedly asking the Respondent to tell the students his name; according to JS, after raising

her hand and getting no answer, TB ". . . got up and went to him and asked him politely, 'Mr.

Fofana,' she said, 'excuse me, sir, can I please know your name?'" (T9) The farcical nature

of such an exchange, in which, according to JS, TB addressed the Respondent by name to ask

his name, hardly inspires confidence in the credibility of his testimony. Equally as

unconvincing is JS' s testimony that TB "started screaming" after the Respondent allegedly

said she belonged in a zoo (T9), given his later admission that she was "screaming under her

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breath. . . like when mumbling, like you can see her say something but you don't her it

verbally. ... she wasn't screaming." (T25) He also presented very confusing testimony

about who was sitting where, and acknowledged not having said anything to anybody about

this incident until the date of his testimony (T27) All in all, even if I were to accept that JS

was in the classroom with TB, his testimony was so inconsistent and lacking in credibility as

to be rendered of small value. [ 14 ]

TB herself testified that the Respondent "used to call us stupid and he used to say we

belong in a zoo" (T121); that he told her and her friend N. that they "belong in a zoo (T122);

that "he told us we're stupid" (T125). These rather straightforward assertions might have

been persuasive but for TB's affirmative response to a question by the Union that such

comments by the Respondent occurred over a two-month period. It is undisputed that the

Respondent was removed from the classroom almost immediately thereafter, in early

February 1998 (T133), and thus could not have over such a protracted period (and, in any

event, that is not what he is charged with). Furthermore, TB's testimony that the Respondent

"used to call us stupid" is suspect because it suggests a continuing offense. That she did not

even report the alleged offense to the Principal until two weeks later, after the Respondent

was no longer her math teacher, provides additional cause to question her veracity. (Her

written statement [Board Exhibit 5] is undated, and, in fact, the form lacks a designated

space for identifying the date it is filled out.)

The Respondent, whose testimony was straightforward, claims that he did not

remember TB and only heard her name upon receipt of the charges (T344), perhaps

understandably so since he was only in the classroom for some four days that semester.

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In this instance, I am faced with the difficult task of evaluating whether the

Respondent made statements he claims not to have made based on the testimony of students

who have been shown to be prone to exaggeration, lacking a clear memory of events, and, I

believe, in some instances downright untruthful. Again, recognizing the Board's obligation

to prove the charge by a preponderance of the evidence, I cannot say with any reasonable

degree of certainty that the Respondent made the remarks with which he is charged, and,

therefore, find no cause for discipline in connection with this specification.

Specification VI

Even allowing for JS's failure to "own up to having been a behavior problem," -- as

the Board speculates, "Perhaps, in his mind, he wasn't," - according to the Board, "That does

not discount the situation that took place between J and Mr. Fofana." (T451) The Board

concludes, "Spitting, as described by Mr. Fofana just simply doesn't make sense. It makes

more sense that he spit in this kid's face, who was really annoying him and not listening, and

in that regard J simply is more credible than Mr. Fofana." (T453) The Board conceded that,

after the Respondent said to the class, '" [S]top clowning around in my class,'" JS "responded

with inappropriate words. . . 'You the fucking clown,' but. . . [h]e is a child. He is not

supposed to act like an adult." (T454)

The Union observes JS's testimony that, immediately prior to the events underlying

the alleged statements and action of the Respondent, ". . . he was sitting at his desk doing

nothing out of the ordinary, minding his own business, that there was nothing that happened

that gave Mr. Fofana any reason to say that to him." (T417) I find the Respondent's

testimony more credible. He described a virtually out-of-control classroom, in which JS,

who on the previous day had been running around in the classroom from one student to the

next, on the day in question, was "coming in and out, yelling, moving from one seat to the

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next." (T237,238) In fact, the Respondent's written Student Behavior Memo/Referral of

that date for JS, identifying by name five other disruptive students and characterizing the

classroom as "chaos," supports that characterization. (Respondent's Exhibit 10) It states, in

part, with respect to JS:

"I told him to change seat or I would remove him from class. Reluctantly, he complied. Slowly he

moved to his new seat with a stop at my desk. Because I said to a group of students very

disruptive in the back to stop clowning around or there would be suspensions (They responded

with profanities), J. said to my face, 'You are the fucking clown.' I replied: 'Would you say that

to your father?' He became hysterical, yelling: 'leave my father alone! Leave my father alone!' I

called security in. He went down the hall yelling: 'leave my father alone.' "

This is essentially consistent with the Respondent's testimony, which indicated that

the context in which he referred to JS's father was not insensitive or discourteous. To my

mind, it was reasonable and acceptable; in effect, "Would you speak to your father the way

you are speaking to me?"

And, interestingly, although the Union urges that I discount TB's testimony in regard

to JS as not credible (T417, 418), in part, at least, it supported the Respondent: "J was

talking like always. He was talking to everybody in the class. He [the Respondent] was

telling him to stop. J said, 'No.' ... so Mr. Fofana went to J and say, 'So don't stop.' Told J

to come up. J said he won't come up there. Then there was a pulling and tugging of each

other. J said - I don't remember what J said. Mr. Fofana told J he act like a clown. J said,

'I'm not no clown." Mr. Fofana said, 'So why are you acting like a clown? So stop.'"

(T125, 126) There is no evidence in the record about any "pulling and tugging." And even

when TB, who was friends with JS, was asked by the Board, "Do you remember him [the

Respondent] saying anything else to. . . J during that same period?", TB responded

ambiguously, "He told J about his father and J got offended because J father died." There are

only two possible conclusions here. Either TB was in the classroom, in which case her

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testimony does not support the Board's allegation that the Respondent referred to JS's father

as a clown, or she was not, and her story was simply the resultant fabrication of consultations

with her fellow students. One way or the other, it fails to persuade.

The "spitting incident" is another case of determining whose testimony is the more

credible, the student's or the teacher's. I found the Respondent to have testified more

credibly. His version appears far more logical than that of JS, whose testimony, as I already

noted, I am unable to accept without grave reservations.

There is no foundation or corroborating testimony to support the Board's allegation

that the Respondent told JS he "would make his life a living hell." Balancing JS's testimony

against that of the Respondent, I find the Respondent to be the more credible in connection

with the allegations in this specification and find that he is not guilty.

Finally, let me note that I reviewed the five decisions (citations omitted) offered by

the Board. I do not find them helpful or instructive in this matter, since, except for

Specifications 1 and 2, I find that the Board did not prove by a preponderance of the credible

evidence that the Respondent is guilty of the four remaining specifications

In accordance with my discussion, above, and after having carefully reviewed all of

the evidence in the record before me, I do not find just cause for termination of the

Respondent's employment, and I hereby make the following:

AWARD

1. Specification I:

The Respondent was excessively absent from work during the 1998-1999 school year.

The penalty shall be a written reprimand.

2. Specification II:

The Respondent was excessively late to work during the 1998-1999 school year.

The penalty shall be a written reprimand.

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3. Specification III:

Subsections 1.,2., and 3., are dismissed. The Board has proven by a preponderance of evidence that the Respondent is guilty of subsection 4.

The proven charge does not constitute just cause for discipline.

4. Specification IV:

The Board has not proven by a preponderance of evidence that the Respondent is guilty.

5. Specification V:

The Board has not proven by a preponderance of evidence that the Respondent is guilty.

6. Specification VI:

The Board has not proven by a preponderance of evidence that the Respondent is guilty.