State Division of Human Rights on Complaint of Schwabenbauer v. Board of Ed., Olean Public Schools

• Decision Date: 28 January 1975
• Citation: 363 N.Y.S.2d 370,46 A.D.2d 483
• Parties: , 25 Fair Empl.Prac.Cas. (BNA) 764, 9 Empl. Prac. Dec. P 10,070 STATE DIVISION OF HUMAN RIGHTS on Complaint of Rose M. SCHWABENBAUER, Petitioner, v. BOARD OF EDUCATION, OLEAN PUBLIC SCHOOLS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 370

363 N.Y.S.2d 370

46 A.D.2d 483, 25 Fair Empl.Prac.Cas. (BNA) 764,

9 Empl. Prac. Dec. P 10,070

STATE DIVISION OF HUMAN RIGHTS on Complaint of Rose M.

SCHWABENBAUER, Petitioner, v. BOARD OF EDUCATION, OLEAN PUBLIC SCHOOLS, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 28, 1975.

Bernard F. Ashe, Albany, N.Y. (Emanuel Tabachnick, Buffalo, of counsel), for petitioner.

Hodgson, Russ, Andrews, Wood & Goodyear, Buffalo (H. Kenneth Schroeder, Jr., Buffalo, of counsel), for respondent.

Before MARSH, P.J., and WITMER, CARDAMONE, SIMONS and GOLDMAN, JJ.

OPINION

GOLDMAN, Justice:

In this proceeding pursuant to Executive Law, § 298 petitioner seeks review of an order of the Human Rights Appeal Board which affirmed by a two to two vote an order of the State Division holding that a pregnant probationary school teacher was not discriminated against by reason of sex. This decision upheld the Board of Education's (Board) refusal to credit complainant with the time she spent on a maternity leave of absence toward the fulfillment of her probationary period as a teacher in the same manner as the Board had allegedly credited sick leave time for non-pregnancy illnesses. This, petitioner asserts, is in violation of the Human Rights Law involving conditions and privileges of employment (Executive Law, art. 15, § 296(1)(a)).

The chronology of complainant's hiring by the Board is significant. She was appointed an elementary teacher on April 16, 1968 and commenced teaching at the opening of the school year in September, 1968. At the date of her appointment she was required to serve in a probationary status for a term 'not to exceed three years' (Education Law, § 2509(1)). Complainant was granted a maternity leave of absence by the respondent Board on February 1, 1970 for a period of up to two years. She gave birth to her child on February 7, 1970, one month earlier than the normal and expected period of gestation. Because of health complications, and upon the advice of her physician, complainant was unable to return to her position until June, 1970. During that month she requested that her maternity leave be terminated and that she be permitted to resume teaching. At a special meeting on June 30, 1970 the Board approved the termination of her maternity leave as of the opening of the school year on September 1, 1970. Complainant resumed her teaching duties without incident until May 15, 1971 when the Board notified her that her 'services in the Olean School District be terminated as of June 30, 1972'.

Complainant contends that since she served more than three years in the same tenure area she had achieved tenure by estoppel and that she could not be dismissed without a hearing pursuant to section 3020--a of the Education Law. She advanced her contention by commencing a grievance proceeding through the established grievance machinery by her representative, the Olean Teachers' Association. However, she withdrew her grievance before it reached the arbitration stage and proceeded to contest her termination by filing a notice of petition and petition with the State Commissioner of Education. The Commissioner on January 2, 1973, by written decision and findings, upheld the action of the Board. Immediately upon receipt of the Commissioner's determination complainant instituted the instant proceeding claiming unlawful discrimination based upon sex.

Before considering the merits of complainant's position we direct our attention to the statutory provisions concerning tenure and probationary status. The probationary period had been three years until it was increased to five years by the Legislature by Chapter 116 of the Laws of 1971, effective May 9, 1971. However, in the same year the Legislature, in Chapter 1102, deferred the effective date to October 1, 1971. In 1972 the Legislature amended Chapter 116 by the adoption of Chapter 953 of the Laws of 1972. This change provided that the probationary term of a teacher who had been appointed prior to May 9, 1971 and which term would expire after that date, but on or before June 30, 1972, was deemed to terminate on June 30, 1972. Notice of tenure decisions for teachers who fell into this group was permitted to be made until July 31, 1972. The provisions of Chapter 953 were made retroactive and were 'deemed to have been in full force and effect on May ninth, nineteen hundred seventy-one' (1972 McKinney's Session Laws, ch. 953, § 8, p. 3058). Section 7 of Chapter 953 provided that '(t)his act shall not apply to any school district employee holding tenure in a position on October first, nineteen hundred and seventy-one during such employee's continued service in that position'. Finally, in 1974 the Legislature again amended the sections of the Education Law with which we are concerned by the adoption of Chapter 735 of the Laws of 1974 (effective October 1, 1974) and reduced the probationary period from five years to three years, thus coming full circle with respect to the length of time to be served as a probationary teacher prior to being considered for tenure.

Inasmuch as Chapter 1102 of the Laws of 1971 deferred the effective date from May 9, 1971 to October 1, 1971, the lengthening of the probationary period to five years does not affect complainant's position. It is agreed that if complainant had taken no leave of absence, she would have completed her three years of service prior to October 1, 1972. Furthermore, in her petition complainant 'has conceded the validity of that termination If the time spent in maternity leave is not to be credited'. (Emphasis supplied.) Thus, the question we must resolve is simply whether the maternity leave time which complainant took should have been credited to her in computing the length of time she spent in service as a probationary teacher. It is on this issue that complainant contends that the failure of the Board to credit her with this maternity leave time denied her equal protection of the law and, more specifically, violated the Human Rights Law prohibition against discrimination in employment based on sex.

Respondent Board at the outset asserts a threshold objection to jurisdiction claiming that the Division of Human Rights has no authority to act in this matter. It contends that under the Education Law the Commissioner of Education has exclusive jurisdiction over questions of probationary status and tenure. We cannot agree with this position. In Bd. of Educ. v. State Div. of Human Rights (38 A.D.2d 245, 249, 328 N.Y.S.2d 732, 735) we explicitly held that '(a) party dissatisfied with the determination of the Commissioner may appeal to the State Human Rights Appeal Board'. (See, also, Bd. of Educ. v. Div. of Human Rights, 42 A.D.2d 49, 345 N.Y.S.2d 93).

This brings us to the central question: whether as a matter of law it can be determined that no probable cause exists to believe the allegations in the complaint that complainant was discriminated against on account of sex by the Board's refusal to credit her with the time spent on her maternity leave toward the completion of her three year probationary term. The Division made its determination without a hearing and such action, complainant argues, was arbitrary and capricious. In Mayo v. Hopeman Lbr. & Mfg. Co. (33 A.D.2d 310, 313, 307 N.Y.S.2d 691, 695) we stated that '(f)or the Division to dismiss his complaint under such circumstances (without a hearing) it must appear virtually that as a matter of law the complaint lacks merit'. In the instant proceeding no opportunity was given complainant to present her case in a formal manner and she further objects to the way in which the Division made its field investigation following which it made its finding of no probable cause. She claims that she was never interviewed by the investigator and was not advised of any evidence adverse to her complaint. She complains that as a part of the investigation complainant should have been given an opportunity to meet with the Board to advance her point of view. To dismiss her complaint in this summary fashion, complainant asserts, is tantamount to a determination that there was no merit whatsoever to her complaint and that it should be dismissed as a matter of law. This action, she contends, is arbitrary and capricious. With this we agree, and it requires an annulment of the Appeal Board's determination.

Within the last few years there have been several cases dealing with the question of sex discrimination with respect to maternity leave. None, however, has presented the fact situation which we have here. Courts...