Appeal of ANTOINETTE A. HUFFINE from action of the Board of Education of the South Country Central School District regarding a discrimination complaint.

Decision No. 15,893

(March 13, 2009)

Lewis Johs Avallone Aviles, LLP, attorneys for respondent, Robert W. Doyle, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the South Country Central School District (“respondent” or “board”) not to appoint an investigator to examine her discrimination complaint.  The appeal must be dismissed.

On June 11, 2008, petitioner, a member of the board, verbally complained to the district’s Human Resource Officer (“HR officer”) about alleged gender-based discrimination against her by respondent.  According to petitioner, at respondent’s next meeting on June 18, 2008, the HR officer asked that the board appoint an investigator to investigate the complaint.  Petitioner alleges that respondent declined to appoint an investigator.  She requests that an unbiased investigator be appointed to immediately hear her case.

Respondent denies petitioner’s allegations and contends that petitioner lacks standing.  It also contends that the petition must be dismissed as untimely, for failure to state a cause of action upon which relief may be granted, and because petitioner is seeking similar relief in another forum.

The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Smolen, 43 id. 296, Decision No. 15,000).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).

Petitioner initiated this appeal on August 22, 2008, having already filed a verified complaint (“complaint”) on June 20, 2008 with the New York State Division of Human Rights (“NYSDHR”) alleging discrimination relating to “unlawful discriminatory actions” relative to her position as a member of the board.  By Determination and Order dated October 27, 2008, NYSDHR dismissed the complaint for lack of jurisdiction because petitioner is an elected unpaid official and not an employee of the board, and therefore is not offered protection under the New York State Human Rights Law.  Since that matter was dismissed for lack of jurisdiction, I decline to dismiss this appeal on election of remedies grounds.

Nevertheless, the appeal must be dismissed.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

The petition requests that an unbiased investigator be appointed to hear petitioner’s discrimination complaint, but it contains no facts or information pertaining to the underlying complaint or demonstrating that petitioner is entitled to any relief.  Consequently, petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief.

Moreover, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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