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Decision No. 13,994

Appeal of FANNY OGBUNUGAFOR from action of the Board of Education of the Union Free School District of the Tarrytowns regarding the hiring of professional staff.

Decision No. 13,994

(August 18, 1998)

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Union Free School District of the Tarrytowns ("respondent") to hire her as a social studies teacher, and challenges an alleged district policy of not hiring minorities for professional positions. The appeal must be dismissed.

Petitioner moved into the district in the fall of 1994, and her two children attended the district's Sleepy Hollow High School. Approximately 50% of the student population at the high school is Hispanic, 12% African-American, and 36% Caucasian. In March 1997, respondent advertised a vacancy for a social studies teacher, and petitioner submitted an application. Respondent received more than 325 applications for the position. Seven applicants were interviewed, including 3 minority candidates, and a Hispanic man was chosen to fill the position. Petitioner did not receive an interview.

Petitioner, an African-American woman, alleges that respondent has a policy of hiring only Caucasian faculty although the student body is 70% non-Caucasian, and that respondent refuses to hire African-American professionals. Petitioner contends that this lack of diversity among the faculty hurts the non-Caucasian students, leading to low achievement. Petitioner further alleges that she qualifies for certain positions in the district, including the full-time social studies position, but that she has not been given notice or consideration for any of the openings. Although she does not address the minority status of the applicant who was appointed to the social studies position, petitioner complains that she and two other well-qualified African-American teachers applied for teaching positions and were not even given interviews. As relief, petitioner requests that the Commissioner grant her and her two colleagues a chance to teach in the district.

Respondent denies having a policy of not hiring minority faculty, and submits a copy of its "Hiring Procedures Manual," which states on page 1 that the district will actively seek minority candidates. Respondent further states that it sends notice of vacancies to many organizations such as the local office of the NAACP and historically minority colleges to recruit minority candidates.

Respondent asserts that, since 1994, the district has hired 74 new teachers and administrators, 25% of whom are minorities. For the 1997-98 school year 19 new teachers were hired, 8 of whom are minorities – 1 African-American, 6 Hispanic and 1 Asian. As to the specific social studies position, respondent asserts that, of the 7 persons interviewed for the position, 3 were non-Caucasian and all 7 were more qualified than petitioner.

In September 1997, respondent additionally hired an African-American woman as a special education teacher, after the former teacher resigned in August 1997. Respondent considered petitioner for that position. However, petitioner’s application and resume on file with respondent did not reflect any special education experience, and the teacher who was hired had many years of experience in special education.

Respondent also raises three affirmative defenses. Respondent claims that petitioner lacks standing to assert any cause of action regarding the effect of the alleged discriminatory hiring practices on the student population, as both her children graduated in June 1997, before the appeal was filed. Respondent also contends that petitioner has failed to join as a necessary party the social studies teacher who was appointed to the position sought by petitioner, and further alleges that the petition fails to state a cause of action.

Before addressing the parties’ contentions, I will initially address two procedural issues. First, respondent objects to additional factual material and exhibits contained in petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3(a), 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeals of Lindauer and McKee, 34 id. 596). Therefore, I will not consider those portions of petitioner’s reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

Second, after service of her reply, petitioner requested pursuant to 8 NYCRR "276.5 an opportunity to submit additional information about an appointment to a special education vacancy that occurred in September 1997. Respondent objected to submission of this additional information, but submitted an affidavit by Dr. Susan Heiferman regarding the circumstances of the appointment. In February 1998, respondent also requested pursuant to "276.5 that I consider a decision issued by the New York Office for Civil Rights ("OCR") dated January 16, 1998. OCR investigated a complaint that respondent discriminated on the basis of race, and refused to hire African-American teachers or administrators. In its decision, OCR reviewed respondent’s recruitment and hiring practices, and found that there was no statistically significant disparity in the numbers of African-American individuals who were interviewed and hired by respondent for the high school during the 1997-98 school year, in comparison to their representation in the pool of potentially available candidates. Petitioner submitted a response dated February 18, 1998, objecting to OCR’s methodology and noting that OCR had only considered the hiring practices for the 1997-98 school year, although the complaint had alleged discrimination in hiring over the past five years.

Section "276.5 of the Regulations of the Commissioner of Education permits the submission of additional evidence not available at the time the appeal was brought. However, the supplemental filings may not raise additional claims not previously raised in the pleadings (Appeal of the Coalition for the Empowerment of People of African Ancestry, 36 Ed Dept Rep 425; Appeal of Mary Ann and Richard W., 33 id. 630; Appeal of Bosco, 32 id. 554). The additional materials submitted by the parties are directly related to the claim raised in the petition that respondent follows a policy of refusing to hire African-Americans or other minorities, and the information contained in these submissions was not available at the time the petition, answer and reply were filed. Accordingly, pursuant to "276.5, I have accepted these additional submissions for consideration.

Evaluation of respondent’s affirmative defenses of lack of standing and failure to join a necessary party requires an analysis of the type of relief that petitioner seeks. The sole relief requested initially, in the petition, was to give petitioner and two other minority applicants an opportunity for appointment to teaching positions in the school district. Petitioner has standing to challenge her nonappointment to the social studies position (Appeal of Distefano, 36 Ed Dept Rep 217), although she would not have standing to seek relief on behalf of the other two applicants who were not appointed to positions with the district (Appeal of Cappa, 36 Ed Dept Rep 278; Appeal of Szymkowiak, 36 id. 204; Appeal of Ulcena, 33 id. 328). Therefore, to the extent petitioner appeals on behalf of the other two applicants, her claims are dismissed.

Respondent correctly asserts that an employee whose rights would be adversely affected by a determination in petitioner’s favor must be joined as a party to the appeal, and failure to join this necessary party ordinarily would require dismissal of the appeal (Appeal of Kurlans, et al., 37 Ed Dept Rep 293; Appeal of Distefano, supra; Appeal of Philip, 35 id. 355). However, after receiving respondent’s answer which asserted that a Hispanic man was appointed to the social studies position, petitioner stated in her reply that she "would never seek to replace a non-white candidate" and that she was overwhelmingly happy to see a Hispanic man in the position of social studies teacher. It would thus appear from her reply that petitioner has withdrawn her request to be appointed to the social studies position, so the appeal need not be dismissed for failure to join the appointed teacher as a necessary party.

To the extent that petitioner challenges her nonappointment to any other teaching position, she has not clearly indicated the particular position, the date that the vacancy was filled, and the grounds upon which petitioner claims that her nonappointment to that position resulted from discrimination. It is petitioner’s burden to demonstrate a clear legal right to the relief requested (8 NYCRR "275.10) and to establish the facts upon which she seeks such relief (Appeal of Oyibo, 37 Ed Dept Rep 356; Appeal of Lupiani, 36 id. 355; Appeal of Marek, 35 id. 314). Petitioner thus fails to state a claim as to her nonappointment to any position other than the social studies position, and has not joined as necessary parties the present incumbent of any other position to which she seeks appointment. Additionally, there is no showing in the record that there are any other vacant positions in the educational areas for which petitioner has appropriate certification. A petitioner may not compel an appointment to a position unless there is a clear showing that there are vacancies (Appeal of Dreymann, 32 Ed Dept Rep 592, citing Eisenberg v. Board of Education of City of New York, 264 App Div 318).

There being no viable challenge to nonappointment to a specific position, the petition must be dismissed in its entirety for lack of standing. As noted above, petitioner lacks standing to assert any claims on behalf of other applicants for teaching positions in respondent's district. As to petitioner herself, having withdrawn her challenge to nonappointment to the social studies position, she presents no other claim upon which she is personally aggrieved in the sense that she has suffered personal damage or injury to her civil, personal or property rights (Appeal of Folsom, 37 Ed Dept Rep 347; Appeal of Woodward, 36 id. 445; Appeal of Craft and Dworkin, 36 id. 314). Without a showing of such personal injury, neither one’s status as a resident of the district nor even as a parent of a student in the district automatically confers standing to appeal actions of a board of education with respect to its employees (Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Pecorale, et al., 31 id. 493; Appeal of Strober, 30 id. 4).

To the extent that petitioner complains about the general impact lack of diversity among the faculty members has upon the student population, petitioner also lacks standing. Her two children who attended the high school both graduated in June 1997, before this appeal was initiated, and petitioner lacks standing to assert these claims on behalf of other parents and students (Appeal of Reed, et al., supra; Appeal of Szymkowiak, supra; Appeal of Ulcena, supra).

I am also constrained to dismiss this appeal on the merits. Taking all of petitioner’s submissions as a whole, including her February 1998 response regarding the OCR decision, it is clear that petitioner’s complaints encompass at least five years of perceived discrimination in hiring despite the documented hiring of minority candidates for the 1997-98 school year, and her fear that the gains in minority hiring for 1997-98 will not be repeated in the future. While I am sympathetic to her concerns, petitioner’s historical and future complaints in this appeal do not provide a basis for me to order meaningful relief. The burden of substantiating a claim of discrimination is clearly upon the petitioner (Appeal of Fink, 33 Ed Dept Rep 340; Appeal of Nicholaou-Guirguis, 32 id. 439; Appeal of Negrin, 29 id. 484), and the papers before me make no showing that respondent pursued any discriminatory policies regarding the hiring of minorities for the 1997-98 school year. Absent a challenge to specific appointments, there is no relief that may be granted to petitioner at the current time.

Although I must dismiss this appeal, I recognize that petitioner has raised important issues regarding the recruitment and appointment of minority candidates for professional positions, especially in a school where minorities constitute 65% of the student population. I note that respondent’s figures show that 9 of the 20 teachers hired for the 1997-98 school year were minorities, representing a significant increase over its asserted record of hiring approximately 25% minority candidates for 74 positions filled since 1994. I encourage respondent to continue following its written policy to develop a more diversified teaching staff.

In light of the foregoing disposition, I will not address the parties' remaining contentions.