State Div. of Human Rights on Complaint of Mossler v. Westmoreland Cent. School Dist.

• Decision Date: 25 February 1977
• Citation: 56 A.D.2d 205,392 N.Y.S.2d 149
• Parties: , 19 Fair Empl.Prac.Cas. (BNA) 666 STATE DIVISION OF HUMAN RIGHTS on the complaint of Rita MOSSLER, Respondent, v. WESTMORELAND CENTRAL SCHOOL DISTRICT, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 149

392 N.Y.S.2d 149

56 A.D.2d 205, 19 Fair Empl.Prac.Cas. (BNA) 666

STATE DIVISION OF HUMAN RIGHTS on the complaint of Rita MOSSLER, Respondent, v. WESTMORELAND CENTRAL SCHOOL DISTRICT, Petitioner.

Supreme Court, Appellate Division, Fourth Department.

Feb. 25, 1977.

Michael De Santis, Utica, for petitioner.

Beverly Gross, New York City, for State Division of Human Rights (Ann Thacher Anderson, of counsel).

Rita Mossler, pro se.

Before MOULE, J.P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

OPINION

WITMER, Justice.

Petitioner, Westmoreland Central School District, seeks review and annulment, under section 298 of the Executive Law, of a determination by respondent State Human Rights Appeal Board (Board) which modified and, as modified, affirmed a determination by respondent State Division of Human Rights (Division) finding that petitioner had discriminated against complainant Rita Mossler because of her sex.

Complainant had been employed by petitioner as a teacher since 1965. In February, 1972 she informed her school principal that she was pregnant and expected her child in August. She requested sick leave, but was instructed to ask for maternity leave and did so. In April she was advised by petitioner by letter that she was granted unpaid maternity leave, effective June 1, 1972 until three months after the birth of her child. She commenced her maternity leave on June 1, but by letter of August 2 she requested that she be allowed to return to work as soon as possible after the birth of her child. She gave birth on August 31, 1972, and on September 12, 1972 she informed her principal that she was ready and able to return to work at once, but he refused to permit her to return until October 2, 1972.

By letter of April 9, 1973 complainant requested that her salary for the months of June and September, 1972 be paid because her teaching duties had been terminated by petitioner without legal cause. With respect to the month of September she asked for sick leave pay for the first eleven days and for regular back pay for the rest of the month. She produced a letter from her doctor certifying that she could have worked throughout the month of June and from September 12 through September 30. On June 7, 1973 petitioner rejected complainant's request for back pay or sick leave pay. On July 24, 1973 complainant filed with the Division a complaint for sick leave and back pay, later amended, and it is that complaint as amended that petitioner seeks to have dismissed.

Complainant had over eighty days of sick leave credit, and the Division ordered petitioner to pay her sick leave pay for the first eleven days of September and back pay for the rest of the month of September. The Division determined, however, that because complainant filed her claim for pay for the month of June, 1972 on July 24, 1973, more than a year after the payment was due, it was barred by the one year statute of limitations contained in subdivision 5, section 297 of the Executive Law. Petitioner appealed this determination to the Appeal Board, and it affirmed the awards for the month of September but reversed the denial of back pay for the month of June and ordered petitioner also to make that payment to complainant. The Board relied upon Culpepper v. Reynolds Metals Co., 5 Cir., 421 F.2d 888, which held that an effort made by the complainant to settle the claim before the statute of limitations had run tolled the statute.

Petitioner contends (1) that the State Division of Human Rights has no jurisdiction over this matter and (2) that the Statute of Limitations barred the claim for back pay for June, 1972.

The lack of jurisdiction argument is that no claim is stated under section 296 of the Executive Law, for the claim is based only upon the denial of due process resulting from the enforcement of petitioner's maternity leave policy and not upon unlawful discrimination. Petitioner relies upon Cleveland Board of Educ. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52, which held that mandatory provisions for unpaid maternity leave violate the due process clause of the Fourteenth Amendment. This argument by petitioner is shown to be without merit by the opinion of Mr. Justice James D. Hopkins in Bd. of Educ. of Union Free School v. Div. of Human Rights, 42 A.D.2d 49, 345 N.Y.S.2d 93, affd. on that opn., 35 N.Y.2d 673, 360 N.Y.S.2d 887, 319 N.E.2d 202 and by Union Sch. Dist. v. Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859. In the latter case, in reliance upon the former, the Court of Appeals wrote p. 375, 362 N.Y.S.2d p. 141, 320 N.E.2d p. 860, 'We have held that a personnel policy which singles out pregnancy, among all other physical conditions to which a teacher may be subject, as a category for special treatment in determining when leave from duty shall begin is prohibited by the proscriptions of our State's Human Rights Law'. We have heretofore reached the same conclusion (Camillus Cent. Sch. Dist. No. 1 v. State Div. of Human Rights, 44 A.D.2d 774, 354 N.Y.S.2d 901).

Subdivision 5 of section 297 of the Executive Law provides that, '(a)ny complaint filed pursuant to this section must be so filed within one year after the alleged unlawful discriminatory practice'. This time limitation is mandatory; it is in the nature of a condition upon the substantive right conferred by the Human Rights Law (Romano v. Romano, 19 N.Y.2d 444, 448--449, 280 N.Y.S.2d 570, 573--575, 227 N.E.2d 389, 391--393; State Div. of Human Rights v. University of Rochester, 53 A.D.2d 1020, 386 N.Y.S.2d 147; Matter of Queensborough Community Coll. of City Univ. of N.Y. v. State Human Rights Appeal Bd., State Div. of Human Rights, 49 A.D.2d 766, 372 N.Y.S.2d 722; Lanzer v. Fairchild Pub. Inc., 46 A.D.2d 644, 360 N.Y.S.2d 431). In our view the Appeal Board's reliance on Culpepper v....