Special Needs Paraprofessional Entitled to “Second Chance” at Employment Following Conviction for Drunk Driving Assault

In Thomas v. New York City Dept. of Educ., the New York Supreme Court held that the Department of Education erred by denying petitioner – a paraprofessional who worked with special needs children at the Department of Education – reinstatement following his termination due to a conviction for drunk driving assault.

It annulled, under CPLR Article 78, the DOE’s denial of employment (on the ground that it was “arbitrary and capricious”) and ordered that petitioner’s application be processed on an expedited basis.

New York Correction Law § 752 (part of New York Correction Law Article 23-A) provides:

Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited.

No application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual’s having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of “good moral character” when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:

(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

(Emphasis added.)

Correction Law § 753, in turn, outlines numerous factors that must be considered in making any determination.

The court explained the public policy underlying these statutes:

The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. Further, an applicant who has a certificate of relief from disabilities is entitled to a presumption of rehabilitation in regard to the specified offense.

In Thomas, the petitioner worked as a paraprofessional “without blemish” since 2002. In 2006, he struck a pedestrian while driving drunk and pled guilty to a drunk driving assault in the second degree. As a result, DOE fired him. In seeking reinstatement, petitioner claims that he has been sober since the accident, that he completed treatment at an outpatient dependency program, and that he has been successfully employed for the past four years.

In 2013, the DOE denied his application to return to DOE, citing his felony offense for assault. DOE argues, among other things, that it “properly concluded that petitioner’s conviction and prior acts do bear a ‘direct relationship’ to his ability to perform as a paraprofessional and that employing him poses an unreasonable risk to the safety and welfare of children.”

The court disagreed:

[Although the] DOE considered all the requisite elements[, it] erroneously concluded that the crime, and the facts which surrounded petitioner’s plea, bore a “direct relationship” to the license’s requirement of working with children, and, failed to give effect to the presumption to which petitioner was entitled. This conclusion is arbitrary and capricious as there is no evidence in the record concerning this “direct relationship” nor does DOE ever articulate how petitioner’s crime or his prior acts bear a “direct relationship” with the job duties of a paraprofessional. Instead the denial appears to be based simply on supposition unsupported by facts. Such decision-making does not comport with the Correction Law, and runs athrwart the presumption of rehabilitation afforded by Correction Law § 753(2). …

Further, DOE arbitrarily concluded that petitioner would pose an unreasonable risk to the safety and welfare of the children with whom he previously—and successfully worked—presumably because he would relapse or because he is in denial. … What underlies Investigator Caldwell’s statement, that petitioner’s “admitted, albeit cured’ alcoholism is too much concern for me to recommend he be able to work directly with children” is a lack of trust that petitioner is, in fact, rehabilitated. This supposition is antithetical to the letter, spirit and purpose of the Correction Law which is meant to protect an ex-offender whose crime bears no direct relationship to the employment he seeks.

It thus concluded that the “law mandates that petitioner is entitled to a second chance.”

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