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Decision No. 13,278

Appeal of the BOARD OF EDUCATION OF THE BEACON CITY SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law '3020-a concerning disciplinary charges brought against Ann H. Wolfson, a tenured teacher.

Decision No. 13,278

(October 26, 1994)

Shaw and Silveira, Esqs., attorneys for petitioner, David S. Shaw and Jay M. Siegel, Esqs., of counsel

Janet Axelrod, Esq., attorney for respondent, Harold G. Beyer, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a, which found Ann H. Wolfson, a tenured teacher ("respondent"), guilty of incompetence and recommended her suspension from March 28, 1994 to the first day of the 1995-96 school year. Petitioner seeks an order authorizing respondent's dismissal. Respondent cross-appeals the panel's determination, alleging that the penalty imposed is too severe. Both the appeal and the cross-appeal must be dismissed.

Respondent is a tenured teacher who has taught at petitioner's schools for approximately 24 years. On or about May 24, 1993, petitioner found probable cause to prefer three charges against respondent. The third charge was subsequently amended. Charge I alleged that respondent was guilty of "incompetence and/or neglect of duty and/or conduct unbecoming a teacher" in that during the 1990-91 school year, respondent was absent 47.5 days, comprised of 7.5 sick leave days and 40 workers' compensation leave days. Charge II alleged that during the 1991-92 school year, respondent was absent 51 days, comprised of 8 sick leave days and 43 workers' compensation leave days. Amended charge III alleged that during the 1992-93 school year, respondent was absent 104 days. No breakdown was provided between sick leave and workers' compensation leave days for that school year.

On August 5, 1993, respondent was examined by her doctor who informed her that she could return to work in September. In a letter dated August 13, 1993, the doctor wrote petitioner stating that respondent was able to return to work. That letter was never received by petitioner. Just prior to the 1993-94 school year, petitioner informed respondent that she was suspended with pay.

A hearing was conducted on November 17, 1993. In a decision issued on or about April 15, 1994, the panel found respondent guilty of incompetence as a result of cumulative absences of 201.5 days in school years 1990-91, 1991-92 and 1992-93. The panel recommended that respondent be suspended until "the first day that teachers are required to be in school [for] 1995-96 in the Beacon City School District."

The main issue in this case is the appropriateness of the penalty. The Commissioner of Education is authorized to impose a proper penalty and is not bound by the actions of the hearing panel (Shurgin v. Ambach, 83 AD2d 665; Matter of McNamara v. Commissioner, 80 AD2d 660). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974). While the parties disagree as to the number of days respondent was absent and why she was absent, there is agreement that during the time in question, respondent was absent approximately 200 days. Moreover, the vast majority of such absences were workers' compensation leave days. Petitioner contends that respondent's excessive absences require her termination. Respondent contends that the penalty imposed by the panel is excessive.

An employee whose physical condition results in absences which are so numerous as to seriously impair his or her effectiveness as a teacher is subject to a charge of incompetence (Appeal of Bd. of Ed. of West Babylon UFSD, 27 Ed Dept Rep 415; Appeal of Bd. of Ed. of the Plainview-Old Bethpage CSD, 26 id. 555; Appeal of Community School Bd. No. 4, 26 id. 258; Matter of Three Village CSD, 19 id. 74, aff'd subnom.Matter of Bd. of Ed. v. Ambach, 84 AD2d 55, rev'd on other grnds 56 NY2d 792). One of the underlying purposes of such a disciplinary charge is to ensure that pupils are not adversely affected by educational disruption resulting from such absences (Appeal of Bd. of Ed. of West Babylon UFSD, supra; Matter of Bd. of Ed. of NYC, 23 Ed Dept Rep 318). In addition to the number of absences, an important consideration in an excessive absence case is the impact of the absences on students. The record indicates that because of respondent's excessive absences, petitioner had to employ a large number of substitute teachers at considerable expense (11 during the 1991-92 school year and 11 during the 1992-93 school year). Many of those substitutes were not appropriately certified. The lack of continuity resulting from many different teachers and the use of uncertified teachers has a detrimental impact on students (Appeal of Bd. of Ed. of West Babylon UFSD, supra; Appeal of Bd. of Ed. of Plainview-Old Bethpage CSD, supra).

Turning to the issue of the appropriateness of the penalty, petitioner contends that dismissal is the only appropriate penalty to be imposed for excessive absences. I reject that contention. A penalty other than dismissal may be imposed for excessive absences caused by temporary illness in the absence of deliberate or willful misconduct by the teacher (Appeal of Bd. of Ed. of West Babylon UFSD, supra). There is no indication in the record that respondent was guilty of malingering. Moreover, the record indicates that respondent

tried to some extent to reduce the number of her absences and assist some of the substitute teachers hired to replace her.

Respondent contends that such factors dictate that she not receive any penalty. However, as stated by the panel:

On the other hand, it is noted that in March of 1993 Ms. Wolfson refused to consider and accept an extended paid leave of absence from her duties so that the School District might hire a replacement for the remainder of the school year. Although this refusal was apparently predicated on her possible return to work in May of 1993, given the extent of her injury and the slow recovery, this decision was not in the best interest of the children. We also note while there was testimony that Ms. Wolfson was to have another medical examination in April to determine whether or not she could return to work there was no testimony that she ever informed the School District of the results of that examination. Finally, in spite of the fact of having been served by charges against her in May of 1993, Ms. Wolfson made no direct attempt to convey to the District her intent to return to work in September and her medical clearance to do so. Rather, she relied on the representation of [her doctor] that he would certify her medically able to return to work and would so indicate in writing to the District.

Based on the foregoing, I conclude that the penalty imposed is neither too lenient nor excessive.

Respondent also argues that disciplinary action taken against her because of her injury violates Workers' Compensation Law '120, which precludes an employer from discharging or in any other manner discriminating against an employee as to his or her employment because such employee has claimed or attempted to claim compensation under the Workers' Compensation Law. Respondent's contention is without merit. Only the Workers' Compensation Board may enforce the provisions of '120. The record indicates that respondent has filed a complaint on this issue with the Workers' Compensation Board. Moreover, there is no evidence in the record to support the claim that charges were brought against respondent in retaliation for filing a claim with the Workers' Compensation Board. I must also note that the Court of Appeals has held that '120 does not preclude the dismissal of a worker who cannot function effectively (Duncan v. NYS Developmental Center, 63 NY2d 128).

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL AND CROSS-APPEAL ARE DISMISSED.

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