* Subsequent History: Matter of Board of Educ. of Uniondale Union Free School Dist. v Mills; Supreme Court, Albany County, Special Term (Kavanagh, J.); Judgment dismissed petition and vacated stay; December 7, 2004; motion for order discharging surety bond granted; May 22, 2007. *

Appeal of MARY CANNIE from action of the Board of Education of the Uniondale Union Free School District and William Lloyd regarding her termination as Superintendent of Schools.

Decision No. 15,056

(May 28, 2004)

Girvin & Ferlazzo, P.C., attorneys for petitioner, Kristine Amodeo Lanchantin and Kathy Ann Wolverton, Esqs., of counsel

Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges her dismissal as Superintendent of Schools by the Board of Education of the Uniondale Union Free School District (“respondent”).  The appeal must be sustained.

Petitioner and respondent entered into an employment agreement (“agreement”) dated December 31, 2001 governing her appointment as Superintendent of Schools from July 1, 2001 to June 30, 2004.  The agreement provides that petitioner can only be discharged for “good and just cause” and only after the service of written charges and a fair hearing.  The agreement also provides for sick leave accruals and a disability insurance policy.

On or about September 30, 2003, petitioner requested a medical leave of absence from September 29, 2003 through the remainder of the 2003-04 school year with full pay and benefits.  Petitioner attached a letter from her physician indicating that she was being evaluated and was advised to rest until her evaluation was complete.

On October 1, 2003, respondent’s president wrote to petitioner’s physician that the board had granted petitioner a temporary leave of absence for medical reasons, but needed a diagnosis and prognosis before it could consider her request for extended medical leave.  By letter dated October 17, 2003, respondent’s president urged petitioner to expedite the medical information and informed her that her absences would be charged against sick leave accruals until the necessary information was received.  By letter dated October 23, 2003, respondent’s president notified petitioner that unless the board received the appropriate medical documentation with five business days of her receipt of the letter, it would consider further absences unauthorized.

By memorandum dated October 31, 2003 to respondent’s attorney, petitioner’s attorney proposed a settlement and early termination of the agreement.  Petitioner’s attorney also included an October 28, 2003 letter from petitioner’s physician stating that petitioner was being treated for various ailments, that she had been referred to a neurologist on October 27 for further evaluation and that she could not return to work until the evaluation was completed.  On November 7, 2003, respondent’s attorney replied that petitioner was not on medical leave of absence and urged her to comply with the request for medical information so respondent could consider her request for medical leave.

By letter dated November 18, 2003, respondent’s president informed petitioner that she had “abandoned [her] position as Superintendent of Schools by [her] failure to report for duty and [her] unwillingness or inability to establish a medical basis for a claim of disability” and that all salary and benefits would terminate as of that date.

By letter dated November 21, 2003, petitioner’s attorney advised respondent’s attorney that petitioner would report to work on November 26, 2003.  Respondent’s president replied on November 25 advising petitioner that she would not be permitted to return to her position absent an order from the Commissioner of Education.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 31, 2003.  Respondent appointed William Lloyd as Interim Superintendent of Schools.

Petitioner denies abandoning her position.  She contends that respondent failed to comply with the due process procedures outlined in the agreement, and thus her termination is invalid.  Petitioner alleges that respondent’s November 18, 2003 action was arbitrary and capricious, since her physician notified respondent of her condition on multiple occasions, indicating that testing was ongoing and that there was no diagnosis at that time.  Petitioner asks that I nullify respondent’s termination action, reinstate her with back pay and benefits, and determine that her employment agreement is in full force and effect through June 30, 2004.

Respondent maintains that petitioner abandoned her position by failing to report for duty and her “unwillingness or inability” to establish a medical basis for her leave.  According to respondent, “[p]etitioner’s absences from not later than five (5) days of receipt of [the board president’s] letter of October 23, 2003 were clearly unauthorized and constitute neglect of duty and abandonment of contract rights,” which petitioner could not “unilaterally cure” by offering to return to work.

The sole issue on appeal is whether petitioner abandoned her contract.  Abandonment would have eliminated petitioner’s contractual right to a hearing prior to her termination.  If petitioner did not abandon her contract, she could only have been discharged for “good and just cause” after the service of written charges and a fair hearing.

“[T]he burden of proving abandonment is upon the school district and must be established by clear and convincing evidence that the petitioner, by a voluntary and deliberate act, intended to relinquish her...position....” (Rowland v. Oswego City School Dist., 97 Misc 2d 42, 45).  In Rowland, a teacher was absent without leave from September 20 until December 6 and had been attending law school in Florida as a full-time student since September 26, when the board concluded that she had abandoned her position.  The court, however, found that the teacher provided a reasonable explanation for her absence -- that she was physically unable to perform the duties of a teacher -- and that she should have been granted a hearing.  The court warned that under such circumstances, a “school district [proceeds] at its own risk in its interpretation of not only that evidence which was clearly before it, but also in respect to evidence the petitioner could have produced at a hearing had one been held” (id.).

Respondent relies upon cases in which employees have been found to have abandoned their positions after failing to provide adequate medical documentation.  These cases are distinguishable, because they either involve situations in which a leave was denied (Matter of Fink, 11 Ed Dept Rep 67, Decision No. 8343) or in which leaves had expired, with no extension requested (Matter of Thomas v. Bd. of Educ. of the Oceanside Union Free School Dist., 58 AD2d 584; Matter of West v. Bd. of Trustees of Eggertsville Common School Dist., 89 AD2d 796).  In the instant case, petitioner requested a medical leave which was still pending at the time of her dismissal.

Respondent also relies on Matter of McKnight v. Dormitory Authority of the State of New York (267 AD2d 708) where the court found that an employee “was consistently advised by her employer that if she failed to submit adequate medical documentation, her position would be deemed abandoned after her leave credits were depleted....” The instant case is also distinguishable from McKnight.  Here, it was not until the board president’s October 23, 2003 letter that the board informed petitioner that unless the board received appropriate medical documentation within five business days from her receipt of that letter, further absence would be considered “unauthorized.”  Petitioner’s attorney responded, apparently in a timely manner, enclosing a statement from petitioner’s physician, albeit not to respondent’s satisfaction.  The next communication from respondent was the November 7, 2003 letter from respondent’s attorney which indicated that the documentation was still inadequate, but that respondent had not yet made a decision on her request for a medical leave of absence.  It is also significant that in McKnight the public contract for the employee’s job title did not include termination protections.

In this case, petitioner requested a medical leave of absence, provided two statements from her physician which indicated that her medical evaluation had not been completed, and through her attorney proposed an early termination of the agreement.  These acts do not indicate that petitioner intended to relinquish her position.

Respondent’s actions are also inconsistent with its claim that petitioner abandoned her position.  There is no indication that respondent ever acted on petitioner’s request for a leave of absence.  On October 1, respondent’s president informed petitioner’s physician that petitioner was on a temporary medical leave of absence.  On October 17, respondent’s president indicated to petitioner that her time would be charged against her sick leave accruals.  On October 23, respondent’s president indicated that if the board did not receive appropriate documentation, her leave would be considered unauthorized (to which petitioner’s attorney responded).  And as late as November 7, respondent’s attorney indicated that her request for medical leave was still under consideration.  Respondent’s actions are also inconsistent with its position that petitioner was on notice that her failure to provide medical documentation to respondent’s satisfaction would be considered abandonment.

Therefore, I do not find that petitioner, by clear and convincing evidence, voluntarily and deliberately intended to relinquish her position.  Consequently, respondent should have afforded her an opportunity to be heard, as guaranteed by the agreement.

Respondent also argues that petitioner has unclean hands.  Respondent acknowledges that its relationship with petitioner has been strained and that she submitted her resignation in April 2003, which was later rescinded.  At its September 23, 2003 meeting, respondent adopted a certain resolution to which, respondent alleges, petitioner was strongly opposed.  Respondent states that petitioner did not attend the meeting and did not return to work after the resolution was adopted.  Respondent’s implied connection between the resolution and petitioner’s absence is merely an unsupported allegation.  If respondent in fact had due and just cause to dismiss petitioner, it could have done so within the parameters of her contract.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent’s action of November 18, 2003 terminating petitioner is hereby annulled; and

IT IS FURTHER ORDERED that respondent board reinstate petitioner as its superintendent of schools with full pay and benefits effective November 18, 2003; and

IT IS FUTHER ORDERED that the back salary and benefits ordered to be paid to petitioner under the previous paragraph be proportionately reduced by the salary and benefits she may have earned from other employment from the date of termination of her employment with respondent board; and

IT IS FURTHER ORDERED that petitioner’s employment agreement is in full force and effect through June 30, 2004.

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