New York State Court of Claims

New York State Court of Claims

GOODING v. CITY UNIVERSITY OF NEW YORK, #2000-001-501, Claim No. 93812


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Beth J. Schlossman, Esq.By: Bruce Provda, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Janet Polstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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.[1]

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's Testimony
Claimant testified that after some "coaxing"[2]
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
everybody 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 luncheon,[3]
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 training program.

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
The 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 Churchill, 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, 1995.

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 (
but see, 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 may 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 her.
Based on the foregoing, the Court dismisses the claim for failure to establish a
prima facie case of negligence on any theory of liability pleaded. The Chief Clerk is directed to enter judgment accordingly.

June 30, 2000
New York, New York

Judge of the Court of Claims

Defendant's counsel argued that because the food preparation worker training program was funded by a grant and the instructor and program director received their paychecks from an apparently CUNY-affiliated not-for-profit research foundation, these individuals were foundation employees, not CUNY employees, for purposes of this claim and therefore CUNY may not be sued in the Court of Claims for any torts they may have committed during the course of their employment for the program. These facts alone (i.e., the program's funding source and the account from which an employee's paycheck is paid), presented for the first time at trial, provide insufficient basis for the Court to conclude that CUNY is not the proper defendant here.
Unless otherwise indicated, all quotations are from the Court's trial notes or audiotapes of the trial on liability.
According to Ms. Petro's and Ms. Lillian Marrero's testimony, this "kitty" or "piggybank" apparently also included 50-cent or one-dollar donations made by the students throughout the semester for items of leftover food that they took home.