Decision No. 12,923

(April 30, 1993)

SOBOL, Commissioner.--Petitioner appeals from respondents' refusal to appoint her to a position in Community School District 28 ("District 28") and their decision to charge her with abandoning her position in Community School District 8 ("District 8"). The appeal must be dismissed.

Petitioner is licensed to teach in Common Branches K-6, and, at the time in question, was on the eligible list for appointment to a teaching position in the City School District of the City of New York. On September 8, 1992, petitioner was referred to the personnel office in District 28 for a teaching position. Although petitioner interviewed at two schools in the district, she received no offers. Consequently, petitioner was advised by District 28 that she should contact other districts about vacancies.

On September 14, 1992, petitioner was granted a probationary appointment at IS 52, in District 8. On September 15, 1992, petitioner was assigned to IS 52 as a common branches teacher, consistent with her license. When petitioner reported to work the next day, she was asked to teach classes in different subjects within her license. On September 17, 1992, petitioner did not report to work and later informed respondent that she did not intend to return because she had not been given a permanent appointment. This appeal ensued.

Subsequent to the filing of this appeal, on November 18, 1992, petitioner was charged with abandoning her position. Petitioner alleges that respondent lost her medical and fingerprint records and that this was somehow discriminatory. Petitioner further asserts that respondents' subsequent failure to hire her was also discriminatory. Finally, she claims that her assignment in District 8 was inappropriate given her background, and discriminatory because she was given neither classroom supplies nor materials on her first day at the job. Petitioner seeks an appointment to District 28.

Respondents assert that the appeal should be dismissed as against Districts 8 and 28 for failure to serve them as necessary parties. They further contend that the petition is conclusory and does not support petitioner's charge of discrimination.

Concerning the joinder of Districts 8 and 28, an individual or entity whose rights may be affected by a determination of an appeal must be joined as a party (Appeal of Basile, 32 Ed Dept Rep 330; Appeal of Lauterback, 30 id. 223; Appeal of Cooper, 26 id. 370). Community school districts are not only separate entities from the New York City Board of Education, but are responsible for appointing teachers (Education Law '2590-j(4)(c); Matter of Grassel, 17 Ed Dept Rep 467). Petitioner failed to name District 28 altogether and did not serve either district with the petition. Petitioner seeks to have me grant her a position at District 28. She also seeks a declaration that she has not abandoned her position at District 8, thereby necessitating her reinstatement. Because the relief petitioner seeks could clearly affect both districts, they are necessary parties. Petitioner's failure to join them requires dismissal.

Even if I did not dismiss the petition on procedural grounds, I would dismiss it on the merits. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR '275.10; Appeal of Mitzner, 32 Ed Dept Rep 339; Appeal of Bach, 32 id. 273; Application of Verity, 31 id. 485). Education Law '2590-j(4)(c) gives the community school board the power to appoint persons on an eligible list to teach in the schools of a community school district (Matter of Grassel, supra). Moreover, Education Law '2573(10) provides that recommendations for teaching appointments be made from among the first three persons on the appropriate eligible list. A teacher may not compel an appointment to a position unless there is a clear showing that there are vacancies (Eisenberg v. Board of Education of City of New York, 264 App. Div. 318). In this case, petitioner has not established that another teacher was hired in her stead when District 28 refused to hire her, or that vacancies currently exist. Furthermore, petitioner provides no evidence whatsoever to support her claims that either District 28's failure to hire her or District 8's failure to provide her with classroom materials on her first day was discriminatory. Instead, the petition contains unsubstantiated and conclusory statements which do not establish the facts upon which petitioner seeks relief, and the appeal must be dismissed (8 NYCRR '275.10; Appeal of Mitzner, supra; Applications of a Child with a Handicapping Condition, 31 Ed Dept Rep 33; Appeal of Pickreign, 28 id. 163).

Moreover, petitioner's reliance on Education Law ''2510 and 2503(7) is misplaced. Education Law '2510 establishes procedures in relation to the abolition of a position. Petitioner's position, however, was not abolished. Education Law '2503(7) relates to the purchase of supplies. It does not, as petitioner asserts, enable teachers to hold a school district accountable for failing to supply them with any specific documents or supplies.

THE APPEAL IS DISMISSED.

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