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Decision No. 13,716

Appeal of MARYALICE CARR, from action of the Board of Education of the Wilson Central School District regarding a teacher salary deduction.

Decision No. 13,716

(December 19, 1996)

James R. Sandner, Esq. attorney for petitioner, Terrence F. Nieman, Esq., of counsel

F. Warren Kahn, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the salary deduction imposed by the Board of Education of the Wilson Central School District ("respondent") upon petitioner's return from maternity leave. The appeal must be sustained.

Petitioner is a teacher in respondent's district. On October 13, 1995, petitioner wrote to respondent's superintendent requesting an 18 month leave of absence beginning on February 26, 1996 due to the birth of her first child. By letter dated November 16, 1995, the superintendent informed petitioner that respondent had approved her request for an 18 month unpaid leave of absence for child care reasons. By letter dated February 26, 1996, petitioner wrote to the superintendent requesting to return to work on March 25, 1996. That letter was sent through interschool mail and was not received by the superintendent until March 1, 1996. By letter dated March 7, 1996, the superintendent notified respondent that he had not received her request for reinstatement until March 1, 1996, and that the collective bargaining agreement concerning her position contained the following requirement:

"The teacher, with written approval of her physician, may return to work at any time following the termination of the pregnancy providing that the teacher gives the Superintendent at least thirty (30) days written notice together with her physician's statement authorizing reinstatement.

In that letter, the superintendent notified petitioner that since the notice was not timely received and was not accompanied by a physician's certificate, she could return to work on April 15, 1996, provided that the physician's release was received no later than March 15, 1996.

On March 13, 1996, the superintendent notified petitioner that respondent board had approved her return to full-time teaching following an unpaid leave of absence, effective April 15, 1996. Petitioner reported to work on April 15 and rendered services on each of the twelve working days that teachers were required to work during the month of April: April 15-19, 22-26, and 29-30. On or about April 26, 1996, petitioner received a salary payment of $1609.76, which reflects a deduction of $1770 for ten days' pay from April 1 through April 12, 1996. Petitioner objected to this deduction and demanded her full salary for the month of April. Respondent refused to pay her full monthly salary for April 1996. This appeal ensued.

Petitioner alleges that she is entitled to her full salary for the month of April, and seeks an order compelling respondent to pay her $1348.60, which represents the net amount that she alleges was improperly withheld. She contends that she worked all that she was required to work in April, because the schools were in recess from April 1 to April 12. Respondent contends that petitioner did not have the required documentation to return to work until April 15 and that its computation of her salary was correct. Respondent requests dismissal of the petition.

Education Law '3101(3) provides in pertinent part:

Except in a city having a population of one million or more, "salary" shall mean the amount of compensation that is to be paid to a teacher for services rendered during the full ten months period that the public schools of the district are required by law to be in session during any school year. For purposes of prorating the salary of a teacher not rendering all the service required of teachers during such period, the monthly rate for the services rendered shall be at least one tenth of the salary and the daily rate at least one two-hundredth of the salary.

Petitioner also cites several cases interpreting Education Law '3101(3) and standing for the proposition that no deduction should be made from salary when a teacher performs all the services required of teachers in the district during the month (Matter of Swaim, et al., 9 Ed Dept Rep 23; Matter of Segall, 10 id. 222; Matter of Leake, 11 id. 179; Matter of Plant, 19 id. 175; Matter of Hilferty, 23 id. 53).

Respondent argues that petitioner did not comply with the notice provisions of the collective bargaining agreement which required thirty days' written notice and the submission of a physician's statement. However, the record indicates that petitioner's request to return to work was received by respondent on March 1, 1996, and her physician's note was received by March 8, 1996. Therefore, pursuant to the terms of the collective bargaining agreement petitioner was entitled to resume work on April 8, 1996.

Regardless of whether the actual date of petitioner's reinstatement was April 15th or April 8th, petitioner is entitled to payment for the month of April as a matter of law. The cases cited by petitioner show a clear entitlement to salary for that month in which a teacher has rendered services for all days in which the teacher was required to work. In an appeal involving the effective date of a teacher's resignation, the Commissioner rejected the board of education's argument that the teacher's resignation should be effective at the beginning of the recess and stated the following:

Respondent also argues that petitioner should not be compensated in accordance with the formula set forth in Swaim because, in effect, she would be compensated for each day of the spring recess which occurred subsequent to her resignation from the district. It must be noted that respondent would not have received any more service from petitioner if petitioner's resignation had been effective as of the last day of the recess than if her resignation were effective as of the first day of such recess. In effect, petitioner had performed all of the services required of any teacher in the district through the end of such recess. Therefore, there is no basis to limit petitioner's compensation in the manner sought by respondent (Matter of Plant, 19 Ed Dept Rep at 177).

Likewise in this case, respondent would not have received any more service from petitioner had she been reinstated on April 1st, since the record indicates that teachers in respondent's school district were required to work on only twelve days during the month of April--April 15 to 19, April 22 to 26 and April 29 to 30, 1996 and were in recess from April 1 to April 12, 1996. Therefore, petitioner is entitled to payment for the entire month of April since she performed competent services for the district.


IT IS ORDERED that respondent Board of Education of the Wilson Central School District pay petitioner the sum of $1348.60 representing the underpayment of her salary for the month of April 1996.