Cerra v. East Stroudsburg Area School Dist.

• Decision Date: 30 March 1972
• Citation: 285 A.2d 206,3 Pa.Cmwlth. 665
• Parties: , 4 Fair Empl.Prac.Cas. (BNA) 79, 4 Empl. Prac. Dec. P 7607 Cheryl CERRA, Appellant, v. EAST STROUDSBURG AREA SCHOOL DISTRICT, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 206

285 A.2d 206

3 Pa.Cmwlth. 665, 4 Fair Empl.Prac.Cas. (BNA) 79,

4 Empl. Prac. Dec. P 7607

Cheryl CERRA, Appellant, v. EAST STROUDSBURG AREA SCHOOL DISTRICT, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 7, 1971.

Decided Dec. 21, 1971.

Petition for Allowance of Appeal Granted March 30, 1972.

Peter J. O'Brien, Mt. Pocono, for appellant.

Alex L. Bensinger, Bensinger & Pentz, P.A., Stroudsburg, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER and ROGERS, Judges.

OPINION

WILKINSON, Judge.

Appellant, a tenured teacher in appellee school system, was dismissed because she failed to resign her position when she passed the end of her fifth month of pregnancy. Such resignation was required by a regulation of appellee. Appellant challenged the dismissal and had a hearing before the Board. The dismissal was sustained by the Board and appellant filed a Petition for Appeal with the Secretary of Education. With the exception of a brief stipulation, the case was submitted to the Secretary of Education on the record of the hearing before the Board. The Secretary of Education sustained the dismissal on the grounds that the regulation requiring resignation at the end of the fifth month of pregnancy was not unreasonable and, therefore, was valid under Section 510 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, 24 P.S. § 5--510.

Appellant filed a Petition for Appeal to the Court of Common Pleas of Monroe County and again relied on the testimony of the hearing before the Board. After a well-reasoned opinion which dealt in detail with all the arguments of the appellant, the court below affirmed the decision of the Secretary of Education. This court must do the same.

The Board, the Secretary of Education, and the court below, relying on the testimony offered at the Board hearing and an analysis of the decided cases, as well as the School Code, all found that the regulation of the Board requiring resignation after the end of the fifth month of pregnancy was reasonable. We concur. Indeed, in the record before this Court there is no evidence to the contrary. Appellant relies on the argument that pregnancy is an illness, the same as any other illness, and it is, therefore, discriminatory to classify it otherwise. However, appellant's own medical expert testified exactly to the contrary:

'A. Well, the current thinking is that pregnancy is a physiological condition and not an illness, and we encourage patients to carry on their normal activities throughout the entire pregnancy.

Q. Is this your personal view point?

A. This is not only my view point, but the viewpoint in the field of Obstetrics and Gynecology in general.' Record at 66a.

The factual basis used by the Board to support a separate regulation for pregnancy was the testimony of its Elementary Principal and its School Superintendent. Both testified that their experience granting maternity leaves in the case of pregnancy was unsatisfactory. Indeed, in one year when appellee expected four teachers who had been on maternity leave to return, all four decided, within a week before school opened, not to return, thereby creating a critical shortage of teachers. Appellant offered no testimony to contradict this evidence, nor did she offer any evidence that good management called for treatment other than this regulation.

Appellant has not directed our attention to any Pennsylvania decisions requiring pregnancy to be treated as any other illness and we have found none. On the other hand, appellee, the Secretary, and the court below relied on the decision of our Supreme Court, affirming the Superior Court's reversal of the lower court and the Superintendent of Public Instruction, in Brown Case, 347 Pa. 418, 32 A.2d 565 (1943), squarely holding that a teacher who is incapacitated by virtue of pregnancy is not entitled to a sick leave and may be required to resign. See also Ambridge Borough School District's Board of School Directors v. Snyder, 346 Pa. 103, 29 A.2d 34 (1942), where the court affirmed the dismissal of a teacher for refusing to abide by a Board regulation that all pregnant teachers take a maternity leave even though the pregnant teacher there involved was on a year's sabbatical leave of absence and, therefore, no question of competency was involved.

Our attention has been drawn to two conflicting U.S. District Court cases, one holding that a pregnant teacher could not be required to take a maternity leave, Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (D.C.E.D.Va.1971), and another holding to the contrary, La Fleur v. Cleveland Board of Education, 326 F.Supp. 1208 (D.C.N.D.Ohio 1971). In view of the decisions of our Supreme Court, neither of these cases is persuasive.

It is interesting that in this case, where the appellant would have the school administrators make an individual judgment on the physical capacity and competence of each pregnant teacher, her physician admitted in his testimony at the hearing before the Board that he had Knowingly submitted a false statement as to the term of her pregnancy in order to persuade the school administrators to keep her on.

In view of our conclusion that the regulation is reasonable, it is not necessary to consider the question of whether the fact of six months' pregnancy in itself is sufficient to constitute incompetency, i.e., physical incapacity to perform properly all the duties incumbent on a teacher.

The very able Secretary of Education, with many years of distinguished service in the administration of the Department of Education, a great institution of higher learning, and state government in general, after a thorough discussion of the testimony, very properly did not express his opinion on the wisdom of the regulation, but decided it was a reasonable one and within the Board's authority. He concluded his discussion with the following statement:

'In view of the number of appeals received by the Secretary of Education based on discharge because of violation of maternity and other regulations, the following general observation is made. We note the lack of uniformity in the regulations as adopted by the many school boards. We do not suggest or urge the adoption of uniform school regulations throughout the Commonwealth, because we realize that each board adopts rules based on the problems peculiar to its own district. We suggest, however, conferences between boards that might produce a meeting of the minds. Such meetings could effectuate uniform changes and amendments for all the boards functioning in any one of the new intermediate units that will be created in the near future. We have heard argument presented on the concept of equality of the sexes, the policies of the Human Relations Commission relevant thereto, and the new Women's Liberation Movement. These are worthy of consideration in the deliberations of the school boards as hereinbefore recommended. Our comments are not to be considered as a criticism of existing regulations, but merely a desire, as we see it, for the need for some degree of uniformity, with due consideration for present day concepts.' Record at 156a.

Affirmed.

CRUMLISH, Jr., J., concurs in result only.

KRAMER, Judge (dissenting).

I join in the dissenting opinion by Judge Mencer and add the following comments as additional reasons for my dissent.

Section 1 of the Fourteenth Amendment to the United States Constitution reads:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of any citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; Nor deny to any person within its jurisdiction the equal protection of the laws.' (Emphasis added.)

On July 17, 1967, the Appellee School District adopted the following resolution:

'Resolved that henceforth maternity leaves of absence shall not be granted to employees of this school district; that any employee who becomes pregnant shall resign effective not later than the end of the fifth (5th) month of the pregnancy; . . .'

As I view the above regulation, and applying it to the facts of this case, I am of the opinion that the appellant's constitutional rights under the Fourteenth Amendment have been violated in that she was denied equal protection of the law.

It has been stated repeatedly that the guarantee of the equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances. See Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112 (1923).

The Equal Protection Clause of the Fourteenth Amendment is a restriction upon the state governments and operates exclusively upon them and their agencies. The limitations created by the Fourteenth Amendment extend to all the departments of state government and to all instrumentalities by which and through which the state acts, including a school district. This constitutional right relates to all individuals, the least deserving as well as the most virtuous, and its protective scope forbids the government to select any person or class of persons for the imposition of unreasonable reasonable or unlawful discrimination.

It is well settled, of course, that the state or its instrumentalities may validly classify persons and objects for the purpose of legislation, but if that classification is fanciful, capricious, arbitrary or unnatural, it must be held to be invalid. Whether or not the differences created by legislative classification are arbitrary, capricious and consequently illegal is a judicial question to be determined by the courts and not by the very governmental...