This claim arises out of events taking place on April 6, 1995 during a culinary
arts class offered as part of a food preparation worker training program in
which claimant Denise Gooding ("claimant") had been enrolled since the previous
January. Classes in this program were held in the facilities of defendant New
York City Technical College, a senior college of the City University of New York
("defendant" or "CUNY"). The students were predominantly single mothers
receiving public assistance.
Claimant and Ms. Lavinia Petro, the culinary arts class's instructor, agree
that sometime in the late morning Ms. Petro left the classroom, which was, in
fact, a large industrial kitchen, to go shopping for supplies to be used by the
class to cater an in-house luncheon that day; and that, upon her return from
this shopping trip, Ms. Petro discovered funds missing from her bag, which she
had placed on or near her desk in the front of the classroom. Claimant's and
Ms. Petro's versions of what happened after Ms. Petro's discovery of this
apparent theft differ markedly.
Claimant testified that after some
by the students, Ms. Petro told the class that she wanted to check everyone's
shoes, books, book bags and clothes. She then ordered the approximately
eighteen or twenty students, who were organized in groups of four around tables
or food preparation stations, to line up; immediately zeroed in on claimant,
whose station was in the front of the classroom nearest Ms. Petro; and
specifically asked or told claimant to take off clothes; i.e., to remove and
shake out her blouse/chef's jacket, which buttoned down the side, four-sided
apron, checkered pants and lace-up shoes and to empty items out of her bag,
which claimant did.
According to claimant, after she had disrobed Ms. Petro waved her hands and
shouted "Forget, forget it; I'm not going to search anyone else because I'm not
going to find the money here." Claimant protested "You just had me strip in
front of everybody and you're not going to search anyone else? You said you
wanted to search
and we all lined up, or was it me that you just wanted to
search?" Ms. Petro replied that "she didn't want to talk about it; forget it,
forget it." Having realized that a male was in the room--whom the class asked
to leave and who did, but tardily--claimant quickly slipped back into her
clothes. Ms. Petro then directed claimant to report to the office of the
program's director, Mr. Chuck Hoffman.
Mr. Hoffman asked claimant to wait in his office and left for about ten
minutes. Upon his return, Mr. Hoffman informed claimant that Ms. Petro had
"named [her] as the person who took" the missing funds. Specifically, class
members with whom Ms. Petro had met "supposedly" saw claimant take the money and
Ms. Petro had related this information to Mr. Hoffman.
Although claimant informed Mr. Hoffman about the search in the classroom, "he
didn't want to hear it." Mr. Hoffman then notified claimant that she was
terminated from the program; however, she was re-instated and returned to class
approximately two weeks after this incident, graduated and obtained her
certificate on time and, as part of the program, was placed in a job in food
service from which she was subsequently fired for theft.
Claimant testified that even before this incident Ms. Petro had acted rudely
towards her. Specifically, Ms. Petro ignored her, cut her off in conversation
and always reprimanded her. Ms. Petro made remarks in class about drug use and
welfare recipients, which claimant understood to be directed at her.
Lavinia Petro's Testimony
Ms. Petro testified that the missing money included roughly $200 left over from
the $300 given her to buy supplies for the catered
and was to have been divided among the students in the class. When she
discovered the money missing, she asked the class generally "Who took the money"
and did not accuse claimant or anyone else of theft. She did not ask the
students to empty out their pockets and take off any clothes. Rather, the
students "simultaneously" looked in the direction of claimant's station after
Ms. Petro asked "Who took the money." Claimant responded by "stamping and
screaming with a tantrum" and said "I didn't do it, I didn't do it, I didn't
take it." Ms. Petro then said "The money has to appear."
Next, another student shut the classroom's door and placed a napkin over the
door's window and started emptying out her pockets. The other students followed
suit, including claimant who, alone among the students, took off her apron. Ms.
Petro denied asking or directing any student to empty out pockets or remove any
item of clothing; she denied touching claimant or removing any item of her
clothing, observing that claimant was at the time located two tables or stations
distant from her. Ms. Petro denied lining up the students for any search or
"strip search"; she denied that any male student was present when the students
began emptying their pockets, commenting that the lone male student in the class
had been asked to leave beforehand. She did not call claimant or anyone else a
thief in front of the class; she did not recommend claimant's termination; and
claimant, who attended the next scheduled culinary arts class after this
incident, had a perfect attendance record in the food preparation worker
Ms. Petro testified that she had previously experienced what she characterized
as "minor" problems with claimant. Specifically, claimant repeatedly "mashed
down" the heels of her lace-up shoes, wearing them as slippers, which Ms. Petro
considered a safety hazard in the kitchen-classroom. In light of the sharp
knives and hot surfaces present in the kitchen-classroom, Ms. Petro was
similarly concerned about claimant's tendency to fall asleep standing and
sitting. Although no visitors were allowed in the classroom and claimant had
been told this, her husband (whom, in fact, Ms. Petro had seen headed for the
classroom as she was leaving on her shopping trip on April 6, 1995) nonetheless
frequently showed up. Finally, another student, calling claimant a
"kleptomaniac", had warned Ms. Petro to keep close watch on her during the
class's field trip to Balducci's.
Lillian Marrero's Testimony
Lillian Marrero, another student in the culinary arts class, corroborated Ms.
Petro's version of events taking place in the classroom on April 6, 1995 in all
essential aspects. According to Ms. Marrero, when Ms. Petro discovered that the
money was missing she announced this to the class, and asked anyone who had
anything to do with it to meet her after class "one on one", and no one else
would need know. At this point, another student closed the door to the
classroom and covered the window; the students "basically volunteered" to empty
their pockets; Ms. Petro never directed the students to line up for or conducted
any search or "strip search"; Ms. Petro never accused claimant of stealing the
money; Ms. Petro never touched any student; the lone male student attending
class that day was not in the room when the students started emptying their
pockets. Ms. Marrero characterized Ms. Petro as a caring teacher who treated
everyone fairly. She had a good opinion of claimant both before and after April
6, 1995, and had been surprised to learn that claimant had been terminated from
the program on account of the theft.
Chuck Hoffman's Testimony
Mr. Hoffman, the program director, testified that Ms. Petro informed him of the
theft by telephone. Mr. Hoffman and Ms. Petro differ in their characterization
of the nature or strength of the suspicions Ms. Petro communicated to him about
claimant in this conversation: Mr. Hoffman recalls that Ms. Petro conveyed a
"strong belief" that claimant had stolen the money, while Ms. Petro recalls
having expressed the "possibility" that claimant had stolen the money and having
noted that other students had regarded claimant suspiciously immediately after
the theft was made known to the class.
Mr. Hoffman commenced an investigation; specifically, he and two other staff
members met with the students during their afternoon workforce preparation
class, for which claimant was late. Mr. Hoffman testified that several students
made "oblique" references indicating their suspicions of claimant, but that the
tone of this conversation with the students changed "abruptly" once claimant
arrived for the workforce preparation class.
During the course of the semester, Mr. Hoffman had observed claimant nodding
off in class and taking extended (i.e., 20-minute) and frequent bathroom breaks,
which had prompted him to ask her if she had any health problems, which she
denied. Mr. Hoffman's professional training is in social work, and he has
experience in the field of substance abuse; he testified that although claimant
had never volunteered the information, he recognized her as a recovering addict.
When asked about any other "problems" he had observed with respect to claimant,
Mr. Hoffman noted that her husband kept coming to the classroom although
repeatedly asked not to do so; he had been advised by an assistant teacher that
a number of missing towels had been discovered in claimant's possession and when
asked about this, she had offered as her explanation that she planned to take
them home to wash them; and he knew that a student had warned Ms. Petro to watch
claimant closely during a class field trip to Balducci's.
Sometime after meeting with the students during the workforce preparation class
on the afternoon of April 6, 1995, Mr. Hoffman called claimant into his office
and told her "that I did not take this decision lightly, but there seemed to be
a preponderance of evidence indicating that she was involved in a theft; that
she had signed a contract stating that there were a number of behaviors which
could result in termination, theft being one; that I was very sorry to make this
decision, but for the good of the program I thought she should leave the
program." Claimant objected vehemently, throwing down her books, threatening
legal action and "storming" out of Mr. Hoffman's office.
By April 11, 1995 after further conversations with staff and students, Mr.
Hoffman had decided to rescind this termination "because we hadn't actually seen
[claimant] do it; because some of the students felt very sympathetic to
[claimant's] circumstances and because ultimately [I] just felt it was in the
best interest of the program to reconsider the decision." Mr. Hoffman testified
that because April 6
th was a Thursday, classes were not held on Friday and he rescinded his decision
on April 10th , the following Monday, claimant "at most" may have missed that
Monday's culinary arts class. He first became aware of claimant's allegation of
a strip search long after April 6, 1995, when the Director of Human Resources
informed him that claimant had made this charge in pending
litigation.Findings and Conclusions
Court does not find claimant to be a credible witness; she does not find
claimant's version of what occurred in the classroom during the culinary arts
class on April 6, 1995, which is directly contradicted in all essential aspects
by the testimony of both Ms. Petro and Ms. Marrero, at all persuasive.
Specifically, the Court finds no credible evidence to support claimant's
allegations that Ms. Petro ordered the students, including claimant, to line up
for a search or a "strip search"; or that Ms. Petro asked or directed or, in the
language of claimant's claim, "forced" claimant to remove any article of
clothing. Moreover, contrary to the allegations in her claim, at trial claimant
did not accuse Ms. Petro of touching her in any way; Ms. Petro denies having
done so and Ms. Marrero specifically corroborates Ms. Petro's testimony in this
regard. Also contrary to the allegations in her claim, at trial claimant
conceded that Ms. Petro did not accuse her of theft in front of the class; Ms.
Petro denies having made any such accusation in front of the class and Ms.
Marrero specifically corroborates Ms. Petro's testimony in this regard as well.
Whatever statements or accusations Ms. Petro conveyed to Mr. Hoffman over the
telephone are protected by the qualified privilege for communications made to
those with some common interest in the subject matter (see
, Foster v
, 87 NY2d 744).
Similarly, the Court does not find credible claimant's testimony that she
informed Mr. Hoffman on April 6, 1995 about any alleged strip search in the
culinary arts class. Mr. Hoffman testified that he first learned of claimant's
allegation of a strip search not from claimant, but from the Human Resources
Director who informed him that claimant had made such an allegation in her
litigation, and the Court believes his testimony. Finally, the Court does not
find credible claimant's testimony that she was terminated from the food
preparation worker training program for two weeks before her re-instatment her,
and instead finds that, based on the testimony of Ms. Petro and Mr. Hoffman,
claimant missed, at most, the culinary arts class held on Monday, April 10,
Claimant was granted permission to file a late claim and was considered to have
stated causes of action against CUNY for constitutional tort, battery, slander
, Dillon v City of New York
, 261 AD2d 34; CPLR 3016 [a])
and wrongful termination, which were not patently groundless, frivolous or
legally defective (see
, Gooding v The State of New York and City
University of New York
[Ct Cl, filed Apr. 2, 1996, Benza, J., Claim No.
None, Motion No. M-52845]; Court Exh. 1, claim filed April 11, 1996); however,
at trial she provided either no credible evidence or no evidence at all in
support of any of these causes of action. As already noted, the Court finds no
credible evidence to support the allegation of a strip search; claimant at trial
abandoned any allegation that Ms. Petro defamed her by accusing her of theft in
front of the class or committed battery by touching her in any way during the
alleged strip search. Although claimant alleged in her claim that she had been
terminated from the food preparation worker training program, at trial she
acknowledged that she had been re-instated, graduated on time with her class and
was placed in a job in food service as a result. Claimant provided no proof of
any injury as a result of her rescinded termination from the program; i.e, she
have missed one day of classes. While claimant's counsel argued that
claimant's reputation with fellow students was irredeemably harmed by the mere
fact of the termination, even though subsequently rescinded, she provided no
evidence of this, Ms. Marrero's testimony provides no factual support for this
theory of liability (characterized by claimant's counsel as "hybrid"
defamation/wrongful termination) and, indeed, Mr. Hoffman testified that
claimant's fellow students lobbied him to re-instate
Based on the foregoing, the Court dismisses the claim for failure to establish
case of negligence on any theory of liability pleaded. The
Chief Clerk is directed to enter judgment accordingly.