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Decision No. 12,705

Appeal of GAIL C. TOMA from action of the Board of Education of the Lindenhurst Union Free School District relating to the denial of tenure.

Decision No. 12,705

(May 26, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from an action of the Board of Education of Lindenhurst Union Free School District denying her tenure. The appeal must be dismissed.

Petitioner was granted a probationary appointment to teach art in respondent's school district beginning September 1987. On or about May 7, 1990, the superintendent informed petitioner that she would not be recommended for tenure at the board's meeting to be held on June 6, 1990. The reason given was petitioner's alleged excessive use of sick and personal days, specifically a pattern of absences occurring on days surrounding weekends and holidays. By letter dated May 18, 1990, petitioner indicated to the superintendent that she had never exceeded the contractual allowance for absences and that her record as a teacher with the district had been exemplary. On June 27, 1990 respondent board voted to dismiss petitioner.

Petitioner seeks an order setting aside respondent board's determination, claiming that her performance as a teacher has been outstanding, her evaluations by respondent have all been exemplary, and her work as an art teacher in the district has been recognized by both the community and respondent when it recommended her for a national teacher award for which she, along with 99 other teachers, was chosen. She also alleges that respondent's policy pertaining to absences has been discriminatorily enforced and offers the name of another teacher who allegedly had more absences and inferior qualifications, yet received tenure at the same time petitioner was denied tenure.

Respondent alleges that petitioner's absences formed a pattern and that she was frequently absent on days surrounding weekends and holidays. Respondent further alleges that all teachers had notice that this conduct was considered excessive absenteeism and in violation of respondent's stated attendance policy. Respondent denies that petitioner is an exemplary teacher and alleges that any evidence regarding her performance is not relevant. Respondent further contends that the petition must be dismissed because petitioner failed to join a necessary party, respondent's superintendent.

I requested and received from respondent extensive attendance records for teachers who were both awarded tenure and who were denied tenure. Based upon my review of the records, it does not appear that respondent is enforcing its attendance policy in an arbitrary or discriminatory manner. A superintendent is given wide discretion in deciding whether or not to recommend a teacher for tenure (Appeal of Clancy, 29 Ed Dept Rep 28; Matter of Yanoff, 15 id. 282; Albaum v. Carey, 310 F.Supp. 594; Matter of Porteous, 50 St Dept Rep 20; Matter of Payne, 42 id. 382; Matter of District 15, Alexandria, 78 id.). Excessive use of sick time has been upheld as a valid reason to deny tenure, even if such use does not exceed the contractual allowance (Mugavin v. Nyquist, 48 AD2d 727, 367 NYS2d 604 aff'd 39 NY2d 1003, 387 NYS2d 241). In the instant matter, respondent's superintendent was within his authority to recommend that tenure be denied to petitioner based upon her pattern of absences. The fact that petitioner had received above average evaluations, while relevant, is not dispositive on the issue of whether to recommend her for tenure. Accordingly, I find no basis for setting aside the decision of respondent board dismissing petitioner.

I have considered the remaining contentions of the parties and consider them to be without merit.