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Decision No. 12,976

Appeal of ISRAEL M. GROSSBERG from action of the Board of Education of the City School District of the City of New York relating to a medical examination.

Decision No. 12,976

(August 2, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Felicia Dunn-Jones, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from his removal from the classroom pending further examination by its medical bureau. The appeal must be sustained in part.

Petitioner, a tenured teacher appointed by the board of education ("respondent") in 1967, is licensed to teach social studies. In December 1992, petitioner's behavior toward colleagues, school personnel and parents caused the principal concern with petitioner's mental health. Consequently, the superintendent directed petitioner to submit to a medical examination pursuant to Education Law '2568. Following an initial examination on February 1, 1993, the physician advised that she needed additional information before she could make a final determination regarding petitioner's fitness to teach. Pending further examination, she also recommended that petitioner not return to the classroom. Petitioner was informed that he would be notified by mail of the date and time of his next appointment. Thereafter, petitioner was suspended from the classroom and told that, pending the medical bureau's final determination, he could use his cumulative annual reserve ("CAR") days and borrow additional CAR days as necessary. While waiting for his second appointment to be scheduled, petitioner exhausted his CAR days and began borrowing additional days. He also commenced this appeal. A second medical examination was scheduled for April 1, 1993, subsequent to the filing of this appeal.

Petitioner contends, in essence, that by suspending him from the classroom, respondent failed to comply with Education Law '2568. Further, he asserts that respondent failed to comply with the collective bargaining agreement which required the board to send to his physician, upon his request, a copy of the report, within 25 days of the examination. Petitioner seeks an order restoring all the CAR days used and credit for those borrowed.

Respondent asserts full compliance with Education Law '2568, alleging that by using or borrowing CAR days, petitioner was paid and, therefore, was not suspended. Respondent asserts that petitioner elected to use his CAR days, rejecting its offer to take a leave without pay. Further, respondent contends that since the examination was not final, it was under no obligation pursuant to its collective bargaining agreement to send a report of its examination, but sent a copy of the doctor's notes, nonetheless. In addition, due to the delay in scheduling the second examination, respondent agreed to credit petitioner's CAR days for March 1993.

Education Law '2568 authorizes the City board to require a teacher to submit to a psychiatric examination to determine his mental capacity to perform his duties (Appeal of Casid, 30 Ed Dept Rep 332). However, the statute does not authorize a teacher's suspension pending the outcome. Instead, Education Law '2568 provides that:

The findings upon such examination shall be reported to the superintendent of schools and may be referred to and considered for the evaluation of service of the person examined or for disability retirement. (emphasis added)

Education Law '913 is an analogous statute applicable to school districts other than city school districts of one million or more. It authorizes a board of education to require submission to a medical examination, and, if refused, it allows charges of insubordination to be preferred against the teacher pursuant to Education Law '3020-a (Appeal of Almeter, 30 Ed Dept Rep 439). If a teacher fails to submit to a medical examination pursuant to Education Law '913, he may be suspended without pay (Kurzius v. Board of Education, 81 AD 2d 827; Appeal of El-Araby, 28 Ed Dept Rep 524). In interpreting '913, however, the Commissioner has concluded that a school board lacked the authority to suspend a teacher without pay pending a determination regarding fitness (Appeal of Almeter, supra). Given its parallel language, Education Law '2568 must be read as similarly restricting the authority of the City Board to suspend a teacher pending an examination to determine a teacher's fitness.

Although respondent argues that petitioner was not suspended, it is undisputed that he was removed from the classroom and told that he could either take leave without pay or use his CAR days. Despite respondent's characterizations to the contrary, its recommendation that petitioner take leave without pay was tantamount to suspension. Furthermore, requiring that petitioner use his leave accruals to continue to receive his salary was also mere subterfuge for a suspension without pay. If petitioner refused to use his accruals, he would be effectively on leave without pay. Since respondent could not suspend petitioner without pay pending its completion of a medical examination, respondent could not force petitioner to use his leave accruals to avoid it. This is not a case involving a teacher who refused to submit to a medical examination which the Commissioner has recognized as a legitimate basis for suspension without pay or charges of insubordination pursuant to Education Law '3020-a (Appeal of Almeter, id.; Appeal of El-Araby, 28 Ed Dept Rep 524). Consequently, respondent lacked authority to suspend petitioner without pay.

As to petitioner's charge that respondent failed to comply with Article 21, 'H4(a) of the collective bargaining agreement, the agreement provides that the report be sent to one's physician, upon request within 25 days of an examination. Since the examination was not complete at the time petitioner made his request, respondent incurred no obligation. Therefore, no violation occurred. In any case, the record indicates that respondent did send a copy of the physician's notes from the first examination.

Since respondent does not indicate whether petitioner would have to resume use of his CAR days subsequent to March 31st and the record does not reveal the date or disposition of the petitioner's medical examination, this appeal is not moot despite respondent's representation to credit petitioner with any CAR days used as of March 31st.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent credit petitioner for any CAR days used or borrowed, not already credited, and resume payment of his full salary without debiting his CAR days, to enable petitioner to remain on paid status pending its final determination pursuant to Education Law '2568.

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