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Decision No. 12,582

Appeal of ELAINE CUOCO from a determination rendered by a hearing panel pursuant to Education Law "3020-a concerning charges brought against her by the Board of Education of Community School District No. 22 of the City School District of the City of New York.

Decision No. 12,582

(September 19, 1991)

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Susan K. Fuller, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel finding her guilty of charges preferred pursuant to Education Law "3020-a. The appeal must be sustained in part.

In March 1988, petitioner was a tenured teacher employed by respondent Community School District No. 22 (the district). On March 15, 1988, petitioner claimed a line of duty injury after allegedly inhaling paint fumes in the workplace. Following her alleged injury, petitioner's attendance for the remainder of the school year, and for the 1988-89 school year, became exceedingly sporadic. On April 12, 1989, respondent preferred disciplinary charges pursuant to Education Law "3020-a, arising in part from petitioner's 101 absences between September 1988 and April 1989. Respondent also charged petitioner with five instances of unauthorized early departures from work and with refusal, on one occasion, to supervise a detention class. Respondent claimed that petitioner's behavior constituted neglect of duty, incompetent and inefficient service, conduct unbecoming her position and conduct prejudicial to good order, efficiency and discipline.

At petitioner's request, a hearing panel was convened to review the charges. The hearing was conducted over 13 days between September 6, 1989 and March 30, 1990. On June 29, 1990, the hearing panel rendered a unanimous decision recommending that petitioner be found guilty of the charges and terminated from her position. This appeal ensued.

Before reaching the merits of this appeal, I must address one procedural matter. The Education Law provides that charges pursuant to Education Law "3020-a may not be preferred against tenured employees of the community school districts in New York City more than six months after the occurrence or discovery of the alleged misconduct (Education Law "25903[7][c]). Petitioner, who represented herself at the hearing, objected on the record that the specifications herein included absences that occurred more than six months before respondent preferred the charges (i.e., April 12, 1989). The record reveals that petitioner was charged with 18 absences between September 9, 1988 and October 11, 1988. Respondent does not deny that those absences occurred more than six months before April 12, 1989. Respondent contends, however, that petitioner waived her statute of limitations defense by appearing and presenting evidence regarding those charges. I disagree.

Respondent correctly notes that timeliness is a statutory requirement affecting personal jurisdiction (Matter of Maida, 97 AD2d 572, 467 NYS2d 985). Contrary to respondent's contention, however, petitioner did not waive this defense merely by answering the charges and requesting a hearing. As indicated, petitioner properly preserved her objection on the record before presenting any evidence. Matter of Maida (id.) does not compel a contrary conclusion. In that case, a tenured teacher was found to have waived his statute of limitations defense because he affirmatively misled the board of education regarding the date of his receipt of the charges against him. There are no such allegations in this case, and I find no other basis for concluding that petitioner has waived the statute of limitations defense. Consequently, insofar as the specifications charge petitioner with absences prior to October 12, 1988, they must be dismissed.

Petitioner's attendance records, along with testimony of the school payroll secretary, confirm that petitioner departed from school early, without authorization, on September 8, November 15, November 17, November 22 and November 23, 1988, and that she was absent on 82 occasions between October 12, 1988 and April 6, 1989. Petitioner does not dispute this evidence. She contends, however, that her absences and early departures were justified because of her alleged injury and respondent's failure to take adequate measures to accommodate her physical condition. The record does not support petitioner's claims.

Although the testimony of one witness suggests that the painting of petitioner's school had not begun as of March 15, 1988, the weight of the evidence supports petitioner's contention that the school was being painted on that date. However, the record does not support a finding that painting the school building caused petitioner to suffer an injury, much less an injury justifying 82 absences from school. The record does indicate that petitioner had a preexisting allergy condition at the time the school was being painted. Medical testimony confirms, however, that neither petitioner's condition nor the effects of the paint, if any, was sufficiently severe to justify her absences from school.

For a variety of reasons (including petitioner's failure to submit the required paperwork), respondent was unable to have petitioner examined by a board of education doctor for several weeks following her alleged injury. Consequently, petitioner was given the benefit of the doubt, and approved for line of duty absence between the date of the incident (March 15, 1988) and April 26, 1988, the date of the board's medical examination. On April 26, however, the board of education doctor found that petitioner was fit for duty. Consistent with district procedure, petitioner then requested an independent evaluation by a medical arbitrator. In July 1988, the arbitrator upheld the board's determination finding petitioner fit for work. The record indicates that petitioner initiated a subsequent appeal of the arbitrator's decision, which was denied by the courts.

Notwithstanding these determinations, petitioner continued to claim line of duty absences stemming from the March 15, 1988 incident. On at least one occasion, moreover, petitioner asserted this excuse when, as the record demonstrates, she was absent for dental work. In light of her continued absences, district physicians examined petitioner in November 1988, and again in April 1989. In both cases, she was found fit for duty.

Notwithstanding the overwhelming evidence that petitioner had not incurred a line of duty injury, it appears that respondent nonetheless made numerous attempts to accommodate petitioner's concerns, including offering to reassign her to a different school. Petitioner rejected all of respondent's proffered accommodations, however, demonstrating uncooperative behavior at virtually every juncture. In light of the foregoing, I find that petitioner's guilt of excessive absence and unauthorized early departure was properly established by a preponderance of the credible evidence (See, Matter of Martin v. Ambach, 67 NY2d 975, 502 NYS2d 991; Matter of Friedland v. Ambach, 135 AD2d 960, 522 NYS2d 696, appeal dismissed 71 NY2d 992, 529 NYS2d 274; seealso, Appeal of City School Dist. of City of Elmira, 30 Ed Dept Rep 68).

On November 22, 1988, petitioner was assigned to supervise a detention class from 12:30 P.M. to 12:55 P.M. Without notifying her supervisors, petitioner failed to appear for this assignment. In response to a letter from the assistant principal reprimanding her for this incident, petitioner explained that she was simply unable to supervise the students. Indeed, testimony at the hearing revealed that petitioner had exhibited an inability to control the detention class on several prior occasions. Notwithstanding her apparent difficulties with this assignment, however, abandoning the class was clearly improper and unprofessional. Petitioner's behavior, moreover, demonstrates a shocking indifference to the educator's well-established duty to protect the safety and well-being of pupils (Appeal of City School Dist. of City of Elmira, supra, at 73). I find that petitioner's guilt on this charge was properly established by a preponderance of the credible evidence.

I turn now to the issue of penalty. The hearing panel unanimously recommended that petitioner be terminated from her employment. I find that the panel's recommendation should be upheld. The record before me is replete with examples of petitioner's bad faith and unprofessional conduct, and I find virtually no support for her contention that she was physically unable to report for work on the dates of her absences. Considering the educational disruption that her conduct has occasioned for her students, petitioner's behavior constitutes neglect of duty, incompetent service and conduct unbecoming a teacher, justifying the termination of her services (Appeal of Board of Educ. of Plainview-Old Bethpage Central School Dist., 26 Ed Dept Rep 555). It is clear, moreover, that a teacher's repeated or continuing absence--even if such absence is due to a legitimate physical condition--may warrant dismissal (Appeal of Kontogeorge, 27 Ed Dept Rep 195; Appeal of Board of Educ. of West Babylon Union Free School Dist., 27 Ed Dept Rep 415).

In order to impose the penalty of dismissal, charges pursuant to Education Law "3020-a must be both substantial and substantiated (Appeal of Community School Dist. No. 21 of the Board of Educ. of the City School Dist. of the City of New York, 29 Ed Dept Rep 299, 301). On the record before me, I find that this standard has been satisfied.

Finally, petitioner contends that the hearing panel's determination should be annulled because the panelist chosen by the district was allegedly appointed in violation of the Regulations of the Commissioner of Education. The regulation in question provides that no person may serve simultaneously on more than one "3020-a panel, except with the consent of the Commissioner (8 NYCRR 82.5[d]). Petitioner alleges that the panelist selected by the district served in a "3020-a hearing concerning charges against another teacher while petitioner's hearing was in progress.

On appeal from the hearing panel's decision in his case, the other teacher also raised this issue. In that appeal, I held that a violation of "82.5(d) would not be a basis for annulling the hearing panel's decision (Appeal of Board of Educ. of Community School Dist. No. 22 of the City School Dist. of the City of New York, 30 Ed Dept Rep 238). As in the other teacher's case, the panel decision in the instant matter was unanimous. Consequently, there can be no allegation that the appointment of the district's panelist adversely affected petitioner's rights in the "3020-a hearing. Respondent is admonished, however, to comply with "82.5(d) in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel be and the same hereby is annulled insofar as it found petitioner guilty of absences prior to October 12, 1988; and

IT IS FURTHER ORDERED that the determination of the hearing panel be and the same hereby is upheld in all other respects.

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