Decision No. 14,238

(October 29, 1999)

MILLS, Commissioner.--Petitioner, a secretary in the Rondout Valley Middle School Guidance Office, appeals the decisions of the superintendent and Board of Education of the Rondout Valley Central School District concerning a sexual harassment complaint she filed against a middle school guidance counselor. The appeal must be dismissed.

Petitioner filed a sexual harassment complaint containing 21 allegations of misconduct against a co-worker, Carol Arnone-Ippolitti, on July 30, 1996. Superintendent of Schools, David S. Giles, conducted an investigation of the allegations in the complaint which lasted several months.

During the course of his investigation, Superintendent Giles conducted 72 personal interviews, including those with petitioner, Ms. Arnone-Ippolitti, and other staff. He concluded his investigation with a written report, issued on December 23, 1996. In his report, Superintendent Giles verified a number of the allegations of misconduct brought by petitioner. He found that Ms. Arnone-Ippolitti’s actions were offensive, insensitive, created a hostile work environment, and rose to the level of sexual harassment. Superintendent Giles recommended that a copy of his report and recommendations be placed in Ms. Arnone-Ippolitti’s personnel file, that counseling letters be issued to her and placed in her personnel file, that she undergo counseling and sensitivity training, that her workplace location be changed, and that her behavior be closely monitored by the building principal.

Petitioner, through her attorney, submitted a request for revision of the report, dated January 15, 1997, which was denied by Superintendent Giles in writing on January 16, 1997. In March 1997, petitioner appealed some of the findings of the superintendent’s report to the respondent board. After reviewing the entire record of the investigation, the board met in executive session on April 23, 1997 to discuss the appeal.

Subsequent to its meeting of April 23, 1997, respondent board issued its decision (the decision of the board, while written, is undated). It found that of the 21 incidents complained of, only three could be characterized as sexual in nature. It did not find the three incidents sufficient to form a basis for hostile work environment sexual harassment. The board based this determination on the fact that the alleged conduct was not sexually charged, was not severe and pervasive, and was not specifically directed at petitioner.

The board determined that Ms. Arnone-Ippolitti had engaged in distasteful, unprofessional, and unacceptable conduct in the Middle School Guidance Office. It also found inappropriate office protocol in the Guidance Office on the part of Ms. Arnone-Ippolitti and the office in general. It directed the superintendent to conduct an investigation into the situation at the Middle School Guidance Office and to report back to the board with his conclusions and recommendations, including a plan of action.

Finally, the board directed that Ms. Arnone-Ippolitti be returned to her previous location in the guidance office. However, on July 10, 1997, in response to petitioner’s request that respondent board reconsider its decision, the board reversed its determination that Ms. Arnone-Ippolitti be returned to the same location as petitioner for the 1997-98 school year. This appeal ensued. Petitioner’s request for interim relief was denied on July 2, 1997.

Petitioner alleges that there were deficiencies in Superintendent Giles’ investigation. She claims that none of the witnesses interviewed by the superintendent were sworn to tell the truth, that she was interviewed along with another person, and that she was never supplied with a transcript or record of testimony of any other witness. She also objects to the report’s findings which did not support her allegations of misconduct.

Petitioner also maintains that respondent board’s decision is erroneous on a number of grounds. She claims the board only addressed some of the issues raised in her appeal, and did so in a cursory fashion. Petitioner contends that Superintendent Giles abused his discretion and was arbitrary and capricious in reaching his findings and taking the actions he did. Petitioner further contends that respondent board abused its discretion and was arbitrary and capricious in reversing the superintendent’s findings to the extent that it found no hostile work environment. Petitioner requests that I find that the harassment created a hostile work environment; direct that Ms. Arnone-Ippolitti not be relocated back to petitioner’s office; and find that respondent board’s determination of unprofessional conduct in the guidance office does not apply to petitioner.

Respondents contend that the superintendent’s investigation was comprehensive and competent. They further contend that his findings were appropriate, reasonable and rational. Respondents also contend that the board's review of the superintendent’s report was appropriate. Respondents maintain that the board extensively reviewed petitioner’s appeal and gave it serious consideration. Respondents assert that the board was not required to agree with the superintendent’s determination. They contend that the board’s finding that Ms. Arnone-Ippolitti’s conduct did not constitute hostile work environment sexual harassment was not arbitrary, capricious, an abuse of discretion, or a violation of law.

Before addressing the merits, I must first address a procedural issue. In essence, petitioner is dissatisfied with what she perceives as the superintendent’s and the board’s lenient treatment of Ms. Arnone-Ippolitti. She asks that I substitute my judgment for respondents, sustain all of her allegations of harassment and prevent Ms.Arnone-Ippolitti’s relocation to petitioner’s office. Thus, if I were to decide any aspect of this appeal in petitioner’s favor, Ms. Arnone-Ippolitti’s rights would unquestionably be affected. Accordingly, she is a necessary party to this appeal and should have been named and served with a copy of the notice and petition. Inasmuch as petitioner failed to join her as a party, the appeal must be dismissed (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Andela, 38 id. 249, Decision No. 14,026; Appeal of Basil, 37 id. 568, Decision No. 13,929).

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The record reflects that Superintendent Giles conducted an extensive investigation, which resulted in a counseling memo, sensitivity training and monitoring of the alleged harasser. Respondent board disagreed with some of the superintendent’s findings, particularly his finding that a hostile work environment existed, but did not change his recommendations with respect to the personnel actions. A board of education has broad powers pursuant to Education Law "1709(13) and (33) concerning the superintendence, management, and control of a school district.

I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable laws (Appeal of Taber, et al., 32 Ed Dept Rep 346, Decision No. 12,850). After reviewing the procedures employed by respondents in their investigation, petitioner’s complaints, and the evidence in the record, I find no basis to substitute my judgment for respondents’.

Finally, with respect to petitioner’s request that I modify the board’s determination of unprofessional conduct insofar as it applies to petitioner, I do not find that the report makes any finding of inappropriate conduct by petitioner. Accordingly, I find no basis for the relief requested.

THE APPEAL IS DISMISSED.

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