James Madison High School
James Madison High School in Brooklyn ()

Two teachers should not have been fired after engaging in sexual activity on school property during a student musical competition but can face other punishment, a unanimous state appeals panel has ruled.

The Appellate Division, First Department, panel ruled Thursday in Brito v. Walcott, 100372/11, and Mauro v. Walcott, 100767/11, that termination was disproportionate to the teachers’ offense. It remanded the teachers’ cases to the Department of Education, which can impose a lesser penalty.

Justices Angela Mazzarelli (See Profile), Richard Andrias (See Profile), Leland DeGrasse (See Profile), Helen Freedman (See Profile) and Judith Gische (See Profile) sat on the panel in both teachers’ cases. The opinions were unsigned.

The incident that led to the teachers’ firing happened in November 2009. Alini Brito, a Spanish teacher at James Madison High School in Brooklyn, and Cindy Mauro, a French teacher there, had dinner after work with colleagues and then went back to the high school to watch a student musical competition being held in the school’s first floor auditorium.

While the performance was going on, the two women were allegedly seen by multiple people in a third-floor classroom, partly undressed and apparently sexually involved. The incident was widely reported in the New York media, and the Department of Education said that it brought “widespread negative publicity, ridicule and notoriety” to the school and DOE.

Each woman was fired following arbitration before a hearing officer, and both filed lawsuits challenging their termination.

On June 25, 2012, Manhattan Supreme Court Justice Alice Schlesinger (See Profile) vacated Brito’s termination as well as the finding of misconduct against her and remanded the matter for an entirely new hearing. The DOE appealed.

Mauro fared less well. Just two days later, Bronx Supreme Court Justice Robert Torres (See Profile), who was serving in Manhattan at the time, upheld her termination. Mauro appealed that finding.

Both cases went before the same First Department panel.

The panel partly reversed Schlesinger’s decision, reinstating the finding of misconduct against Brito and vacating Schlesinger’s order for an entirely new hearing.

“Here, Supreme Court erred in substituting its judgment for that of the hearing officer,” the panel ruled. “Multiple witnesses gave interlocking and closely corroborating testimony.”

However, the panel agreed with Schlesinger that termination was an excessive penalty, and reversed Torres’ decision upholding it for Mauro. It wrote in both of Thursday’s decisions that the penalty was “shockingly disproportionate” to the teachers’ conduct.

Each teacher, the panel wrote in the opinions, was at school “as an audience member and not in any official capacity,” and the conduct “involved a consenting adult colleague and was not observed by any student.”

Moreover, the panel said in both decisions, each teacher had an “unblemished” disciplinary record.

While both women displayed “a lapse in judgment, there is no evidence that this incident was anything but a one-time mistake,” the panel wrote.

It further noted in both decisions that “lesser penalties have been imposed where a teacher had an ongoing relationship or engaged in inappropriate behavior with a student.”

By way of example, the panel pointed to Colleen McGraham, a Staten Island teacher who was suspended for 90 days for sending romantic emails and instant messages to a 15-year-old student (NYLJ, July 14, 2010) and to Christopher Asch, a high school librarian who was suspended for six months for non-sexual but inappropriate touching of students (NYLJ, March 6, 2013). In a bizarre twist, however, the now-retired Asch was convicted earlier this month in an unrelated criminal case of plotting online to kidnap, torture, rape and murder women and children (NYLJ, March 18, 2014).

Finally, the panel said, the teachers’ conduct was unlikely to affect their ability to teach, and that the media attention to the case, though “unfortunate,” did not warrant a harsh penalty.

The panel therefore remanded the cases back to the DOE for imposition of a lesser penalty, though not a full new hearing.

“This is an incredible decision. I’m ecstatic that the Appellate Division agreed with us that the penalty imposed was excessive and that my clients can return to the jobs that they love,” said Michael Valentine, of counsel at Altman Schochet, who represents the teachers along with Aaron Altman.

The Department of Education is represented by Suzanne Colt, senior counsel in the appeals division of the city’s Law Department. “We are reviewing the decision and considering our options,” she said.