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Decision No. 13,445

Appeal of DAVID LEE RACKLEY from action of Dr. Taras Herbowy, Superintendent, James D. Tyler, Director of Personnel, John Scriber, Principal, and the Board of Education of the City School District of the City of Utica regarding termination of employment.

Decision No. 13,445

(July 7, 1995)

Donald R. Gerace, Esq., attorney for respondents

SHELDON, Acting Commissioner.--Petitioner appeals respondents' termination of his services as a probationary teacher in the City School District of the City of Utica. The appeal must be dismissed.

In September 1991, the board of education of the City School District of the City of Utica ("respondent board") appointed petitioner to a probationary teaching position. Although the record is ambiguous, it appears that some time prior to March 1994 petitioner was advised that Superintendent Herbowy would not be recommending him for tenure. On or about March 2, 1994, petitioner received a letter from respondent Tyler, the Personnel Director, explaining why respondent Herbowy would not be recommending tenure. Petitioner commenced this appeal on April 27, 1994 and requested a stay. On May 11, 1994, Commissioner Sobol denied that request.

Petitioner alleges that he was not recommended for tenure because of his race, gender and religion, and seeks reinstatement to his former position. Petitioner also asks that I grant him tenure, direct respondents to reimburse him for medical costs, expenses and attorney's fees, and award him damages.

Respondents maintain that the appeal should be dismissed because petitioner fails to establish that he has been aggrieved by any action of respondents. Respondents also maintain that the petition does not contain a clear and concise statement of petitioner's claim and that it requests inappropriate relief. In addition, respondents contend that the appeal should be dismissed as premature. Lastly, respondents maintain that they are empowered to evaluate and decide the tenure status of probationary teachers.

Before I review the merits, I must address a procedural matter. On or about December 12, 1994, petitioner submitted an addendum to his original petition, in part, because he was no longer represented by an attorney. The provisions of 8 NYCRR 276.5 authorize the Commissioner to accept additional affidavits, exhibits and supporting papers upon such terms and conditions as he may specify. In the addendum, petitioner withdraws certain demands for relief from the petition, including his request for damages. In addition, petitioner submits several exhibits which demonstrate that petitioner filed in other forums complaints challenging his dismissal. Specifically, it appears that petitioner filed several complaints with the New York State Division of Human Rights, charging that the Utica City School District discriminated against him on the basis of race, gender and religion. These complaints were filed on or about February 11, July 19, and September 16, 1994. In addition, petitioner commenced an action challenging his dismissal, in Supreme Court, Oneida County, by summons and complaint dated September 28, 1994. Accordingly, I will accept petitioner's addendum to the extent that it withdraws certain demands for relief and shows that petitioner has pursued relief in other forums.

I turn now to the procedural arguments raised by respondents. Respondents maintain that the petition must be dismissed as premature and because petitioner is not aggrieved. Respondents maintain that at the time this appeal was commenced, the superintendent had not yet recommended that petitioner be denied tenure nor had respondent board voted to deny tenure. According to an affidavit submitted by respondents, as of April 28, 1994, petitioner was still employed by respondent board. In addition, according to the addendum submitted by petitioner, a final vote regarding tenure was not scheduled until August 30, 1994. Since this appeal was commenced prior to a final decision regarding tenure, I find that it is premature and must be dismissed.

Respondents also maintain that the appeal should be dismissed because the petition does not contain a clear and concise statement of petitioner's claim. Section 275.10 of the Commissioner's regulations provides that a petition:

shall 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. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

In this case, I find that the petition adequately states petitioner's claim and respondents adequately addressed petitioner's allegations in their answer. Because respondents have failed to establish that they were somehow prejudiced by the alleged inadequacy of the petition, I will not dismiss the appeal on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

Even if this appeal were not procedurally defective, it would nevertheless warrant dismissal on the merits. Under Education Law '2509(1)(a), the services of a probationary teacher in a city school district may be discontinued at any time during the probationary period, on the recommendation of the superintendent, by a majority vote of the board of education. Although a board of education has broad discretion to terminate a probationary teacher's employment, a teacher's services may not be terminated for impermissible reasons (James v. Bd. of Educ., Central School Dist. No. 1 of the Towns of Orangetown and Clarkstown, 45 AD2d 1017, aff'd 37 NY2d 891, Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439).

While petitioner alleges that he was, indeed, terminated for impermissible reasons, he provides no facts in the petition to substantiate his claim. In fact, the petition even fails to identify petitioner's race or religion. Since petitioner bears the burden of establishing the facts upon which a claim for relief is based (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Negrin, 29 id. 484; Appeal of Pickreign, 28 id. 163), the claim that his dismissal was improper must be dismissed.

In addition, it appears from petitioner's addendum that, among other things, petitioner filed a complaint with the New York State Division of Human Rights alleging discrimination on the basis of race, gender and religion. Accordingly, petitioner has already chosen a forum in which to litigate his claims of discrimination, and may not relitigate the same issues in a proceeding instituted pursuant to Education Law '310 (Appeal of Nicholaou-Guirguis, supra).

Finally, petitioner correctly withdrew his claims for damages. It is well settled that the Commissioner of Education lacks authority to award damages, costs or attorney's fees (Appeal of Martin, 32 Ed Dept Rep 381; Appeal of Silano, 33 id. 20; Appeal of Martin, 31 id. 441).