Appeal and Application of DR. TRACY HUDSON and WILLIAM KING MOSS III from action of the Board of Education of the Brentwood Union Free School District; superintendent Richard Loeschner; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod and Cynthia Ciferri; and appointee Francisco Herrera regarding board practices.

Decision No. 18,110

(April 25, 2022)

Ingerman Smith, L.L.P., attorneys for respondent, Michael D. Raniere, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Brentwood Union Free School District (“board”); superintendent Richard Loeschner; trustees Robert Feliciano, G. Paula Moore, Julia Burgos, Eileen Felix, Simone Holder-Daniel, Maria Gonzalez-Prescod, and Cynthia Ciferri (collectively, “respondents”) concerning the appointment of Francisco Herrera to an administrative position.  They also seek the removal of the trustees and the superintendent.  The appeal must be dismissed, and the application must be denied.

In June 2020, the board posted a job announcement for the position of “Coordinator of Health, Recreation, K-12 Physical Education and Athletics.”  Petitioner Hudson applied for this position.  Thereafter, for economic and other reasons, the board decided to make the coordinator position a temporary, “interim” position (i.e. from September 21, 2020 to December 31, 2020).  The board posted an updated job announcement for this interim position in September 2020.  Petitioner Hudson did not submit a timely application for the interim coordinator position.

After failing to receive a satisfactory pool of candidates, the board reposted the interim coordinator position in October 2020.  This posting was identical to the previous posting with two exceptions: it modified the original start date, which had passed, and indicated that previous applicants “need not” reapply. 

After receiving additional applications and conducting interviews, school district administrators recommended Francisco Herrera for the interim coordinator position.  The board appointed Mr. Herrera on October 15, 2020.  This appeal ensued.  Petitioners’ request for interim relief was denied on November 30, 2020.

Petitioner Hudson complains that, despite substantial qualifications, she was not interviewed for the interim coordinator position.  Petitioners allege that respondents’ decision to modify and repost the coordinator position was motivated by discrimination against African Americans.  Petitioners also generally allege that the board’s hiring practices are discriminatory.  Petitioners request removal of the trustees and superintendent, removal of Mr. Herrera from the interim coordinator position, and orders directing respondents to “cease and desist” from discriminatory hiring practices.

Respondents argue that the petition must be dismissed, among other reasons, as untimely, for lack of standing, and outside the scope of an appeal to the Commissioner of Education.  On the merits, respondents assert that they acted reasonably in posting and filling the interim coordinator position.  Respondents deny all allegations of unlawful discrimination.

The appeal must be dismissed as untimely to the extent that petitioners raise claims occurring before 30 days prior to the commencement of the instant appeal.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioners raise several allegations that occurred months, and in some cases years, prior to Mr. Herrera’ October 15, 2020.  To the extent petitioners seek redress for such allegations, the claims are untimely and will not be addressed (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952; Appeal of Cea, 58 id., Decision No. 17,483).

Petitioner Moss’s challenge to the appointment of Mr. Herrera must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  There is no indication that petitioner Moss applied to the coordinator position, nor has he alleged or proven in the petition that he would have been qualified for such.  Therefore, I find that petitioner Moss lacks standing to challenge Mr. Herrera’s appointment (Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001).

I must also dismiss petitioners’ claims of employment discrimination as outside the scope of an appeal to the Commissioner pursuant to Education Law § 310 (see e.g. Appeal and Application of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001 [petitioners’ claims “such as the disparate impact of hiring practices like ‘word of mouth’ referrals ... are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction”]); Appeal of T.A., 58 id., Decision No. 17,443 [appeal to Commissioner not appropriate forum to adjudicate disparate impact claims arising under the Civil Rights Act of 1964]; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879 [appeal to Commissioner not the proper forum for Title VII discrimination claim]).

Turning to the merits, petitioner Hudson’s remaining challenge to Mr. Herrera’s appointment must be dismissed for failure to meet her burden of proof.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 Hudson offers no proof that respondents acted improperly in posting, or modifying, the coordinator position.  In this respect, respondents observe that petitioner Hudson was not interviewed because she “did not submit a timely application for the interim [coordinator] position” posted in September 2020.  Even assuming that respondents did not follow all aspects of board policy in connection with this recruitment, “the mere fact that petitioner may have been qualified for [a] position does not [equate to] a legal entitlement to the position based upon respondents’ [alleged] failure to follow a procedure outlined in board policy” (Appeal of Moss, 61 Ed Dept Rep, Decision No. 18,095; Appeal of Moss and Sealy, 60 id., Decision No. 18,001; Application and Appeal of Moss, 58 id., Decision No. 17,602).  As such, petitioner Hudson has failed to meet her burden of proving any wrongdoing, let alone a violation of the Education Law or other act pertaining to the common schools as required for relief pursuant to Education Law §§ 306 or 310.

Finally, respondents request certificates of good faith on behalf of all school officers named as respondents (see Education Law § 3811 [1]).  Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in the statute.  It is appropriate to so certify unless it is established on the record that the requesting school officers acted in bad faith (Application of Valentin, 56 Ed Dept Rep, Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  Since there has been no finding that the individual respondents acted in bad faith, I hereby certify solely for the purpose of Education Law § 3811 (1) that the individual respondents are entitled to the requested certification.

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.

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