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Decision No. 14,705

Appeal of J.K. from action of the Board of Education of the City School District of the City of Glen Cove regarding a sexual harassment complaint.

Decision No. 14,705

(March 28, 2002)


Jaspan, Schlesinger & Hoffman, LLP, attorneys for respondent, Carol M. Hoffman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the City School District of the City of Glen Cove ("respondent") to dismiss his sexual harassment complaint. The appeal must be dismissed.

Petitioner is a tenured high school English teacher. On September 14, 2001 the English Language Arts Coordinator, who was petitioner"s supervisor, and the high school principal called a meeting of the teachers in the English Department. The purpose of the meeting was to discuss a recent memo circulated by one English teacher to the other teachers in the department about the September 11, 2001 tragedies. During the meeting, petitioner asked the coordinator whether individual teachers were allowed to send memos to other teachers in the department, rather than distributing all memos from her office. The coordinator replied, "[A]ny English teacher has a right to distribute anything he or she wants. If you wanted to distribute pornography, there would be nothing I could do about it."

Respondent indicates that, by making this statement, the coordinator had intended to say generally that she was not a censor, that staff members had freedom to distribute almost any material they wished among other staff members, and that as coordinator she could not prohibit any teacher from sharing his or her thoughts, ideas and materials. The statement was not intended to be a personal comment or attack against petitioner. However, petitioner apparently took the remark personally, especially the reference to pornography, and asserts that he was shocked and insulted by this comment that was made in front of his entire department.

Petitioner did not immediately object to the statement, but on Monday, September 17, 2001, he spoke to the principal and told him that he had been offended by the comment. Petitioner advised the principal that he intended to appeal to the superintendent and demand an apology from the coordinator. On September 17, petitioner also states that he was greeted with comments and jokes by at least two named teachers referring to his possessing pornography. One teacher denied that he had made the alleged remarks to petitioner, but the second teacher admitted that he had made comments about pornography. Petitioner filed a complaint with the superintendent on September 21, 2001 charging the coordinator with sexual harassment.

The district has a policy and procedure for investigating sexual harassment complaints, School District Policy and Regulation No. 4160.6 (the "policy"). In accordance with the provisions of the policy, the superintendent appointed the assistant to the superintendent for personnel to investigate the complaint. The assistant superintendent interviewed petitioner on September 26, and interviewed the coordinator on September 28, 2001. She then met with the superintendent and district counsel to discuss her findings and make a final recommendation.

By memorandum dated October 16, 2001, the assistant superintendent advised petitioner of respondent"s determination to deny his sexual harassment complaint. Respondent concluded that the comment in question did not constitute sexual harassment as defined in the policy. The assistant superintendent explained that the coordinator had intended to make the point that freedom of speech allows the distribution of a wide variety of material, and nothing in the comment would suggest that the speaker was intending to convey any impressions about petitioner. The term "pornography" was only used as an extreme example of material that the supervisor believed she would have to permit to be distributed. The assistant superintendent further stated that the comment did not meet the requirement in the policy that, to constitute harassment, actions must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive or hostile work environment.

This appeal ensued. Petitioner contends that the Commissioner should reverse the decision and require the coordinator to make a public apology to him. Respondent contends that it acted in full compliance with the requirements of the policy, that its decision is reasonable and appropriate, and that the Commissioner lacks authority to order a district employee to apologize to another district employee.

I agree that I lack jurisdiction to grant the relief sought by petitioner, an apology from the coordinator (Appeal of Philips, 41 Ed Dept Rep ___, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303; Appeal of Basil, 37 id. 568, Decision No. 13,929). There is no legal basis for demanding such relief. Also, to the extent that petitioner seeks my intervention in obtaining an apology, he is in effect asking that I engage in some form of discipline against the coordinator. I have previously held that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner (Appeal of Lloyd, supra; Appeal of Basil, supra).

I also agree with respondent"s conclusion that the comment did not constitute sexual harassment under the definition contained in the district"s policy. I further find that the procedures followed in investigating petitioner"s complaint were in compliance with the procedures established in the district"s policy. For these reasons, the appeal must be dismissed and I need not address the other defenses raised by respondent.