Decision No. 17,142
Appeal of ROBERT CINCOTTA from action of the Board of Education of the Hempstead Union Free School District regarding the abolition of his position.
Decision No. 17,142
(August 14, 2017)
Leeds Brown Law, P.C., attorneys for petitioner, Sean O’Hara, Esq., of counsel
Hamburger, Maxson, Yaffe & McNally, LLP, attorneys for respondent, Andrew K. Martingale, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hempstead Union Free School District (“respondent” or “board”) to abolish the position of Director of Athletics and Physical Education and to create new positions in the district. The appeal must be dismissed.
On September 2, 2005, petitioner was hired as Director of Athletics and Physical Education, and was granted tenure in this area effective September 1, 2008. By letter dated May 30, 2013, petitioner was notified by the superintendent of schools that his position was abolished for economic reasons. At a board meeting held on June 20, 2013, the board approved the superintendent’s recommendation to terminate petitioner, effective June 21, 2013. This appeal
ensued. By letter dated October 14, 2014 to respondent’s attorney, my Office of Counsel requested an update with respect to the issues in this proceeding. By affidavit dated October 19, 2015, the superintendent of respondent’s district advised my Office of Counsel that petitioner was recalled from the preferred eligibility list, effective August 31, 2015 to the job title of Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team.
Petitioner asserts that his position was improperly excessed, in violation of section 135.4 of the Commissioner’s regulations, which requires all public school districts with a high school to employ a director of physical education. Petitioner further asserts that he was terminated in bad faith because the district created several new positions after he was terminated and requests that he be reinstated to his prior position, with back pay and benefits.
Respondent alleges that it had the statutory authority to abolish petitioner’s position for sound economic and budgetary reasons and that it acted in good faith in its decision to abolish petitioner’s position. Respondent further contends that no new employee has been hired to replace petitioner and that instead, the district distributed his duties to three long-standing employees; none of who are performing more than 50% of petitioner’s former duties.
That part of the appeal that requests that petitioner be reinstated to his former position must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dep’t Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).
The record reflects that at its August 20, 2015 meeting, respondent board recalled petitioner to the position of Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team, effective August 31, 2015 in the same tenure area and at the same salary and benefit level as his prior position. Therefore, to the extent that petitioner requests that he be reinstated to this prior position, the appeal is moot. However, to extent petitioner seeks a determination that he was erroneously excessed from his position as Director of Athletics and Physical Education on June 21, 2013 and, consequently, demands seniority, back pay and benefits from June 21, 2013 through August 30, 2015, I decline to dismiss that part of the appeal as moot.
Turning to the merits, petitioner claims that respondent acted arbitrarily and “without a rational basis” in abolishing his position and then creating four new positions. It is well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith (Education Law §1709 and ; Matter of Young v. Bd. of Educ. of Central School Dist. No. 6, Town of Huntington, et al., 35 NY2d 31, 34 [abolition of attendance teacher position]; Cohen v. Crown Point Cent. School Dist., et al., 306 AD2d 732 [abolition of civil service business manager position]; Currier v. Tompkins-Seneca-Tioga Bd. of Coop. Educ. Services, 80 AD2d 979 [abolition of Director of Department of Continuing Education position]). 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
In this case, the superintendent avers that the decision to abolish petitioner’s position was driven by budgetary constraints. Specifically, she asserted in an affidavit that the district paid three current administrators a small stipend to carry out a portion of petitioner’s former duties, instead of paying petitioner’s high salary, which resulted in a cost savings to the district of approximately $144,975. As respondent argues, it is permissible for a board of education, acting in good faith, to abolish a position for economic reasons and fractionalize its duties among multiple other existing positions (Matter of Young v. Bd. Of Educ. of Central School Dist. No. 6, 35 NY2d 31; Matter of Currier v. Tompkins-Seneca-Tioga BOCES, 80 AD2d 979; Appeals of J.R., 56 Ed Dept Rep, Decision No. 17,076; Appeal of Allen, et al., 34 id. 627, Decision No. 13,433). Petitioner has failed to refute respondent’s assertion that his position was abolished in order to realize cost savings from fractionalization of his duties.
I am also unpersuaded by petitioner’s claim that, by abolishing the Director of Athletics and Physical Education position, respondent violated 8 NYCRR §135.4(c)(4)(iii), which provides, in pertinent part, that “all public school districts which operate a high school shall employ a director of physical education”. Respondent submitted an affidavit from Barbara Intrieri, who was appointed by respondent in September 2013 to be the part-time Director of Physical Education (40% of her duties). Since the record reveals that respondent continued to employ a Director of Physical Education following the abolition of petitioner’s position, I find that respondent complied with this regulation. Contrary to petitioner’s argument, even if more than 50% of the duties of his former position involved his responsibilities as Director of Athletics and Physical Education, the regulation does not prescribe a particular percentage of duties that must be dedicated to the responsibilities of a Director of Physical Education (see e.g., Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631).
Petitioner also makes conclusory allegations that the district acted in bad faith by creating new positions, including a Director of Social Studies, Director of Science, Technology and Engineering, Director of Science and an Assistant Superintendent for Special Education position. The burden of proving bad faith is on the party asserting it (Appeals of J.R., 56 Ed Dept Rep, Decision No. 17,076; Appeal of Allen, et al., 34 id. 627, Decision No. 13,433). The mere fact that other new positions unrelated to petitioner’s former position were created at the same time or after the abolition does not establish that respondent acted in bad faith in abolishing petitioner’s position for economic reasons. On the record before me, petitioner has not met his burden of proving that his position was abolished in bad faith.
Education Law §3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. To establish petitioner’s right to appointment to any newly-created positions, petitioner must first establish that the abolished position and the new position are in the same tenure area(s) (see Appeal of Jordan, 37 Ed Dept Rep 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.). Moreover, petitioner is only entitled to appointment to a newly-created position if the new position is similar to his former (abolished) position. Accordingly, petitioner has the burden of proving that a majority of the duties of the new position are similar to those of his former position (Appeal of Wills, 49 Ed Dept Rep 147, Decision No. 15,982). Petitioner has failed to establish that new positions were created or that the duties of the employees to whom his former duties were assigned are similar to that of his former position. On the contrary, the record reflects that no new employees were hired to take on the duties of petitioner’s former position; instead, his duties were fractionalized and re-distributed among three current employees. Respondent asserts that none of those three employees are assigned more than 50% of petitioner’s former duties. Petitioner has provided no evidence to refute that assertion. Since petitioner’s position was abolished for fiscal reasons and none of the three employees were assigned more than 50% of the duties of petitioner’s former position, I find that respondent properly abolished that position (Matter of Currier v. Tompkins Seneca-Tioga BOCES, 80 AD2d 979; Appeal of Allen, et al., 34 Ed Dept Rep 627, Decision No. 13,433).
Therefore, on the record before me, I cannot conclude that petitioner has carried his burden and established a clear right to the relief requested.
THE APPEAL IS DISMISSED.
END OF FILE
 On May 29, 2014, petitioner (“plaintiff”) filed a complaint against the district (“defendant”) with the New York State Division of Human Rights (“DHR”) and the Equal Employment Opportunity Commission (“EEOC”). On April 8, 2015, at plaintiff’s request, the DHR dismissed plaintiff’s complaint and issued him a right to sue letter so he could pursue his claims in federal court. On August 17, 2015, plaintiff commenced an action against defendant in the Eastern District of New York, asserting eight separate causes of action for age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and the New York State Human Rights law (“NYSHRL”), race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the NYSHRL, and disability discrimination in violation of the Americans with Disabilities Act (“ADA”). Defendant moved to dismiss the complaint. On November 18, 2015, plaintiff filed an amended complaint adding additional defendants, withdrawing claims under Title VII, the ADEA and the ADA and added a §1983 claim, further asserting that the defendants violated his Fourteenth Amendment rights by engaging in unlawful discriminatory practices by its policymakers in voting to terminate plaintiff. Defendants filed a motion to dismiss the amended complaint. By decision dated August 30, 2016, the Court denied defendants’ motion to dismiss with regard to plaintiff’s §1983 claims and granted the motion to dismiss with regard to the plaintiff’s NYSHRL claims. This proceeding is still pending.
 Petitioner erroneously cites this regulation as 8 NYCRR 135.4(b)(4)(iii).