Appeal from the Order of the Secretary of Education in case of Appeal of Cheryl Y. Rossetti, a professional employe, Teacher Tenure Appeal No. 300, dated December 27, 1976.
Hayes C. Stover, with him Janice H. Anderson, and Kirkpatrick, Lockhart, Johnson & Hutchison, for petitioner.
Daniel R. Delaney, Special Counsel, with him Ronald N. Watzman, Regional Counsel, for respondent.
Michael I. Levin, with him William Fearen, and Cleckner & Fearen, for amicus curiae, Pennsylvania School Boards Association.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge DiSalle. Dissenting Opinion by Judge Mencer. President Judge Bowman and Judge Wilkinson, Jr. join in this dissent.
[ 36 Pa. Commw. Page 107]
This is an appeal from a decision of the Secretary of Education (Secretary) who ordered that the respondent, Cheryl Y. Rossetti, be reinstated to her teaching position with the Fox Chapel Area School District (District). The petitioner, the Board of School Directors of the District (Board), had dismissed the respondent upon her failure to return to her teaching job following the expiration of her maternity leave.
On July 17, 1975, respondent requested in writing that she be granted a maternity leave of absence effective on the first in-service day in August. The requested leave was granted. The collective bargaining agreement between the District and the Fox Chapel Educators Association provided that a teacher on maternity leave could remain off work following termination of the pregnancy for an initial period of up to eight weeks. Thereafter she could extend her leave at 30 day intervals so long as she provided the
[ 36 Pa. Commw. Page 108]
District with a physician's certificate that the extension was needed for her recovery.
Respondent was due to return to work in the middle of December, a son having been born to her on October 18, 1975. Respondent, however, furnished the elementary school's supervisor with a letter from her obstetrician, dated December 10, 1975, indicating that a four week extension of the maternity leave was necessary. This extension was granted, and respondent was scheduled to return to work on January 13, 1976. On January 5, 1976, respondent sent a letter to the District's Superintendent, which stated that although her obstetrician was of the opinion that she had recovered from childbirth and that a further extension of her maternity leave was unnecessary, she nevertheless desired a leave of absence for the remainder of the school year, because it was necessary that she breastfeed her child.
By letter dated January 8, 1976, the Superintendent informed respondent that there were no provisions in the collective bargaining agreement either for an extension of maternity leave beyond that already given to her, or for a child rearing leave. The respondent then appeared at the January 12, 1976 school board meeting accompanied by a representative of the Pennsylvania State Education Association. He requested that the Board grant the respondent a discretionary leave, as opposed to a maternity leave, and explained that his request was based on an allergy condition suffered by the respondent, and on the special care needs of the child. The Board, by a six to one vote, with one ...