Decision No. 17,975
Appeal of DR. TRACY HUDSON, from action of the Board of Education of the Central Islip Union Free School District; Dr. Howard Koenig as superintendent; Christopher Brown as assistant superintendent of personnel; Jim Musumeci, Glenn Mitchell, William Softy, Fred Phillips, Michele Harriott, Daniel Devine, and Norman Wagner as trustees; and Timothy Lynam regarding board practices.
Decision No. 17,975
(March 29, 2021)
Kevin A. Seaman, attorneys for respondent, Kevin A. Seaman, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Central Islip Union Free School District (“board”); Dr. Howard Koenig as superintendent (“superintendent”); Christopher Brown as assistant superintendent of personnel (“assistant superintendent”); and Jim Musumeci, Glenn Mitchell, William Softy, Fred Phillips, Michele Harriott, Daniel Devine, and Norman Wagner as trustees (collectively, “respondents”) regarding board practices. Petitioner also joins Timothy Lynam (“Lynam”), a successful applicant for an administrative position in respondents’ district, as a necessary party. The appeal must be dismissed.
On November 8, 2019, respondents advertised a vacancy for the position of high school principal. Petitioner, an elementary/middle school principal in respondents’ district, and Lynam, who was then serving as respondents’ interim high school principal and had formerly served as the assistant high school principal, each applied for the high school principal position. The record reflects that, prior to applying for the position, Lynam requested a meeting with the assistant superintendent. While the parties dispute the circumstances of this meeting, they agree that Lynam and the assistant superintendent discussed certain aspects of the posted high school principal position.
On December 12, 2019, the district interviewed both petitioner and Lynam. On January 13, 2020, the board appointed Lynam to the position of high school principal on a probationary basis. This appeal ensued.
Petitioner claims that she was a more qualified candidate than Lynam for the high school principal position and that respondents improperly afforded Lynam preferential treatment during the interview process. Petitioner further maintains that such preference constituted unlawful discrimination on the basis of race and/or gender. Petitioner also asserts that respondents improperly placed a corrective action letter in her personnel file in November 2019 without her knowledge or signature. For relief, petitioner requests expungement of all unsigned “disciplinary notes and letters” from her personnel file; an order directing respondents to follow all district policies and laws regarding the hiring of personnel; an order directing respondents to cease and desist from retaliating against petitioner; and reversal of the board’s appointment of Lynam to the position of high school principal.
Respondents contend that petitioner’s claims of discrimination must be dismissed for lack of jurisdiction. Respondents also maintain that petitioner has not met her burden to show that respondents’ action in hiring Lynam as the high school principal was discriminatory or otherwise unlawful.
The appeal must be dismissed, in part, as outside the jurisdiction of the Commissioner under Education Law §310. Petitioner alleges that respondents engaged in discriminatory employment practices or otherwise violated her rights under the Human Rights Law (see Executive Law §§291, 296). An appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to address such claims (Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952; see also Appeal of T.A., 58 id., Decision No. 17,443 [appeal to Commissioner not appropriate forum to adjudicate disparate impact claims arising under Title VII of Civil Rights Act of 1964]; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879 [appeal to Commissioner not proper forum for alleged violation of Title VII of the Civil Rights Act of 1964]). The Human Rights Law contains a comprehensive scheme for the investigation and enforcement of human rights violations through the Division of Human Rights (“DHR”) (see Executive Law §293). It would be contrary to this statutory structure for the Commissioner to assume jurisdiction over claims arising under the Human Rights Law.
Likewise, with respect to petitioner’s claims that respondents engaged in discrimination in violation of the New York State Constitution (N.Y. Const. Art. 1, §11), an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810). A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319). Accordingly, I decline to consider petitioner’s allegations of discrimination on constitutional grounds (Appeals of Students with Disabilities, 57 Ed Dept Rep, Decision No. 17,423; Application of Murray, 56 id., Decision No. 17,002; Appeal of W.Z. and A.Z., 50 id., Decision No. 16,102).
To the extent that petitioner alleges that respondents engaged in discrimination in violation of board policy, petitioner has submitted no evidence to support this claim. 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioner maintains that Lynam received preferential treatment because: (1) the assistant superintendent met with Lynam to discuss the high school principal position before Lynam applied; (2) the committee that interviewed Lynam did not include one administrator who was present for petitioner’s interview; and (3) Lynam, once hired, started on “Step 4 on the Salary Schedule instead of Step 1.” Petitioner, however, has produced no evidence beyond her own conclusory assertions that these events, even if they occurred, constituted discrimination on the basis of race or gender. Accordingly, she has not met her burden of proof and these claims must be dismissed.
In any event, respondents have submitted evidence to support their position that the appointment of Lynam was unaffected by discriminatory animus. Specifically, the superintendent submits an affidavit wherein he explains that respondents selected Lynam for the high school principal position because, “[d]uring his service as interim [p]rincipal, his performance was outstanding” and he “was able to provide a continuity of administration at the [h]igh [s]chool,” unlike petitioner, who had “served the [d]istrict in an elementary/middle school role during her eight years of service.” Petitioner has not submitted a reply or any other information to refute the superintendent’s explanation. Accordingly, on this record, I have no basis to conclude that respondents engaged in discrimination in violation of board policy.
Petitioner’s remaining claims must also be dismissed on the merits. Petitioner alleges that Lynam gifted the president of the Central Islip Teacher’s Association two tickets to a New York Knicks basketball game, which petitioner characterizes as an “unethical gesture” that renders respondents’ appointment of Lynam improper. As with her allegations concerning discrimination, petitioner has produced no proof of this assertion. Moreover, respondents expressly deny petitioner’s claim that Lynam gave any such gift. Accordingly, I cannot find that Lynam’s appointment was improper on this basis.
Petitioner further maintains that Lynam is “less qualified” than her for the high school principal position and, thus, respondents’ appointment of Lynam violates board policy 9240, which dictates that “the district will seek the most qualified applicants” and “implement and maintain a high-quality recruiting and hiring program to attract, secure and retain the best-qualified staff.” Again, however, petitioner submits no evidence to establish that Lynam is indeed less qualified than her for the position of high school principal, and she neither alleges nor establishes that Lynam is unqualified for the position. In any event, even assuming petitioner’s qualification for this position, such qualification does not give her a legal entitlement to the position (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952; Appeal of Moss, 58 id., Decision No. 17,602). Accordingly, I have no basis to conclude that respondents violated board policy 9240 by appointing Lynam as high school principal.
Next, petitioner alleges that, on November 25, 2019, the assistant superintendent placed “a memorandum in the form of a corrective action letter,” concerning petitioner’s absence from work on November 22, 2019, in her personnel file “without proper signature.” According to petitioner, she “took a family bedside care day” on November 22, 2019. In support of this assertion, petitioner submits a sign-in sheet covering a two-week period from November 11 through November 22, 2019, which reflects that petitioner’s initials, T.H., were recorded on each work day except November 22, where the absence code “B.C.,” for “bedside care,” was recorded instead. Petitioner further asserts that this “timesheet ... was sent to the [a]ssistant [s]uperintendent” on “November 25, 2019.” Notably, however, petitioner does not explain the discrepancy between the date of her absence and the date that she indicates her absence was reported to the assistant superintendent, nor does she submit a copy of the allegedly improper corrective action letter that the assistant superintendent placed in her personnel file. Moreover, with respect to her claim that the corrective action letter is invalid because it does not contain her signature, petitioner does not identify any board policy, collective bargaining agreement provision, or other source of law requiring such a signature.
Respondents, meanwhile, deny petitioner’s assertions and posit that “a memo was written to [petitioner] regarding her failure to inform [c]entral [o]ffice as to her absence from work on November 22, 2019.” Respondents also specifically assert that there is no “contractual dictate under the [applicable collective bargaining] agreement to solicit the signature of a unit member to be affixed to a memo prior to it being placed in a personnel file.” Petitioner did not submit a reply or otherwise respond to these contentions. Therefore, on this record, petitioner has not met her burden of proof, and her request that I “remove an[y] and all disciplinary notes and letters not signed by [petitioner] from her personnel file” must be dismissed.
Finally, to the extent that petitioner requests that respondents adhere to their own policies and all applicable laws in the future and that she be protected from future retaliation, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).
I have considered petitioner’s remaining requests for relief and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The significance of this, according to petitioner, is that the omission of this individual from the hiring committee “decreased the number of blacks/African-Americans on the committee by one (1)/33% and females by one (1)/25% [sic].”
 Petitioner also claims that, “[u]pon information and belief,” the corrective action letter was motivated by unlawful discrimination. As with her other claims of discrimination, she has produced no proof to support this allegation.