Petition of Dunlap

• Decision Date: 31 July 1991
• Docket Number: No. 89-561,89-561
• Citation: 604 A.2d 945,134 N.H. 533
• Parties: , 73 Ed. Law Rep. 993, 2 NDLR P 52 Petition of Kenneth R. DUNLAP, Jr. (New Hampshire State Board of Education).
• Court: New Hampshire Supreme Court

Page 945

604 A.2d 945

134 N.H. 533, 73 Ed. Law Rep. 993, 2 NDLR P 52

Petition of Kenneth R. DUNLAP, Jr. (New Hampshire State Board of Education).

No. 89-561.

Supreme Court of New Hampshire.

July 31, 1991.

Rehearing Denied April 21, 1992.

James F. Allmendinger, Concord, Staff Atty., NEA-New Hampshire, by brief and orally, for petitioner.

Kidder & Lawson, Laconia (Bradley F. Kidder, orally and on brief and Edward E. Lawson on the brief), for Laconia School Bd.

John P. Arnold, Atty. Gen. (David S. Peck, Sr. Asst. Atty. Gen., on the brief and orally), for the State Bd. of Educ., on the issue of transcription costs.

HORTON, Justice.

As the result of numerous absences due to the effects of chronic asthma, Kenneth R. Dunlap, Jr., was informed by the Laconia Superintendent of Schools in February of 1989 that the Laconia School District (the "district") would not renew his contract as a high school Spanish teacher. This decision not to renew was affirmed after a hearing before the Laconia School Board (the "school board") and, after administrative appeal, to the State Board of Education's Board of Review (the "State Board"). Pursuant to Supreme Court Rule 10, he filed a petition for writ of certiorari with this court, arguing three points. First, he asserts that the State Board erred in upholding a discriminatory nonrenewal decision which violated RSA 354-A:8 (1984 and Supp.1990) and the similar proscriptions of § 504 of the Federal Rehabilitation Act of 1973, codified at 29 U.S.C. § 794, as well as 42 U.S.C. § 1983 and the equal protection clauses of the Federal and New Hampshire Constitutions. Second, he contends that the State Board also erred in declining to hear the testimony of an expert medical witness. Finally, he asks this court to find that the procedure employed in seeking review of the nonrenewal decision has not foreclosed his prosecution of a discrimination complaint before the New Hampshire Commission for Human Rights under RSA 354-A:9 (1984 and Supp.1990).

After we accepted the petition, an additional controversy arose concerning the costs of transcribing the record. We ordered separate briefing and have heard oral argument on the question whether, in a certiorari proceeding challenging the decision of a State agency, the transcription cost is regulated by RSA 541-A:16, VII (Supp.1990), providing that a requesting party must pay the reasonable cost of transcription, or by RSA 541:11, which specifies the maximum charge to the requesting party.

For the reasons set forth below, we reverse the decision of the State Board and order the petitioner reinstated. We also determine that he may continue to prosecute his complaint before the commission for human rights. As to the issue of transcription costs, we hold that payment of the full, reasonable costs, in the first instance, is the obligation of the petitioner.

The petitioner, who at the time the present dispute arose was in his twenty-third year of teaching in the Laconia School District, suffers from chronic asthma. Principally because of this condition and the asthma-related aggravation of influenza and colds, he was absent from his teaching duties a substantial, and increasing, number of school days. The record cites an average absence record of twenty-two school days per year over the six years preceding his nonrenewal, with this average rising to over thirty-three days per year in the two years immediately preceding nonrenewal. He was the only full-time Spanish teacher in the district, and none of the available substitute teachers in the district were qualified to teach Spanish classes. As a result, little, if any, meaningful Spanish language instruction occurred during his absences. By letter dated February 28, 1989, the superintendent of schools notified him that he would not be renewed in his teaching position for the following year.

Although the petitioner had received medical treatment for his asthma in the past, upon receipt of the superintendent's letter he contacted a specialist in respiratory disorders, one Dr. George A. Vraney. Dr. Vraney prescribed a new course of treatment which, the doctor asserted in an affidavit, would control the petitioner's lung function sufficiently to prevent the recurrence of the asthma-associated respiratory problems which had plagued him over the past few years. This affidavit from Dr. Vraney stated that the petitioner had a "very treatable form of asthma that should not continue to impair [the petitioner's] ability to function and should not result in significant absenteeism in the future." There was also a consultation with another specialist in respiratory disorders, Dr. Harold Friedman. Dr. Friedman stated in an affidavit that it was "likely that [the petitioner's] symptoms could be significantly improved.... I believe that with careful monitoring of his asthma, [the petitioner] could substantially decrease lost time from work in the future."

Pursuant to RSA 189:14-a, the petitioner contested the district's nonrenewal by requesting a "just cause" hearing before the school board, which was held on April 6, 1989. At this hearing, testimony and exhibits demonstrated that the petitioner suffered from asthma and that he was not deficient in his teaching skills. Rather, the cited reason for nonrenewal, and the focus of the hearing, was the deleterious effect of the petitioner's numerous absences. The petitioner's primary defense at this hearing was that his prognosis had vastly improved and that his asthma-related absences would abate. He testified that the previous under-treatment of his asthma was the result of confusion concerning his symptoms: he had come to associate asthma with wheezing and shortness of breath, not with the coughing attacks experienced in recent years and which he mistakenly ascribed to the effects of influenza. The petitioner also entered into evidence the two medical affidavits mentioned above, and he offered that he had suffered no absences whatsoever since the start of the new medical regimen. In support of his discriminatory treatment claims, the petitioner sought to introduce evidence that several school district employees had had extended to them unearned sick leave covering at least as much time as the absences incurred by the petitioner, whereas his own request for such additional leave was rejected by the superintendent.

Testifying for the school district, the school principal stated that the petitioner had told him "on a number of occasions he thought [his symptoms] were getting better much [sic]. He thought he was improving. He thought his health was better.... [He] felt that he had this thing licked...." The superintendent of schools offered the following testimony:

"Q: If the prognosis were for improved attendance on the part of Mr. Dunlap, would that change your recommendation?

A: I see no reason why there should be that prognosis given the past history....

Q: If the prognosis were for improvement, would that change your recommendation?

A: I don't think so."

The superintendent also stated that he had no firsthand knowledge of the petitioner's teaching abilities. The testimony of a teacher who had substituted for the petitioner during one of his recent bouts of illness buttressed the school district's contention that the quality of classroom instruction suffered because of the petitioner's frequent absences.

On April 11, 1989, the school board voted to sustain the school superintendent's decision not to renew the petitioner's contract. The school board's decision cited the petitioner's absentee record as adequate justification for the superintendent's nonrenewal decision, stating that "in the case of all other teachers [with excessive absence records] except those suffering from terminal illness or permanent disability, the long range prognosis was that the teacher would eventually return to the classroom and carry on as before.... [; in] the petitioner's case, the lesson of his ten-year history is that his absenteeism will not improve." The petitioner then requested a hearing before the review board of the State Board of Education, arguing that the local school board's decision discriminated against him in violation of handicap and equal protection laws. This hearing was held on August 8, 1989, with further oral argument heard on August 30, 1989. At the August 8 hearing, the State Board denied the petitioner's request to have Dr. Vraney testify, stating that it did so because Dr. Vraney had not testified at the April 6, 1989 school board hearing and that his previous affidavit was already part of the record received into evidence.

Throughout these proceedings before the State Board, the petitioner continued to focus on his improved prognosis, noting that he did not suffer any further absences during the remainder of the school year since starting the new treatment. On August 30, 1989, the State Board voted to uphold the decision of the school board. In stating its reasons, it said that the petitioner's "record of excessive absences was sufficient for the Laconia School board to conclude he was not able to perform his responsibilities--and had not done so over a period of several years. (35 days in 1988-89)." Addressing the issue of Dr. Vraney's affidavit, the State Board ruled that "[t]he Laconia School Board ... was ... entitled to give whatever weight it deemed appropriate to Mr. Dunlap's prognosis given by Dr. Vraney." A motion for rehearing, arguing that the State Board should have allowed Dr. Vraney to testify in order to refute the lay opinions presented by the principal touching upon the medical prognosis, was denied.

The petitioner then filed a petition for writ of certiorari with this court on December 13, 1989. After our acceptance of the petition, a conflict arose between the Office of the Attorney General, which argued that RSA 541-A:16, VII governed the allocation of transcription costs, and the petitioner, who argued that RSA 541:11...