Rotterdam-Mohanasen Central School District v. State Division of Human Rights

— Proceeding instituted in this court pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, dated August 1, 1978, which affirmed an order of the State Division of Human Rights finding petitioner guilty of an unlawful discriminatory practice based on sex and awarding the employee her accrued sick leave pay. Complainant, a school teacher, informed the principal of Mohanasen High School in May, 1974 that she was pregnant and requested maternity leave to commence "at the termination of the disability period” and to conclude on August 31, 1975. Following various communications between the superintendent of petitioner school district and complainant, the superintendent, by letter, informed complainant that she had the option of taking either unpaid maternity leave for a period of time up to 15 months in length or of taking sick leave for the period of disability caused by pregnancy and childbirth. Complainant thereafter applied for maternity leave for the period of September, 1974 *728until September 1, 1975 and also stated that she would apply for sick leave from September through October, 1974 on the ground that her doctor certified that she should not work during that period. On October 12, 1974 complainant delivered her baby. Due to her delivery, she was certified by her doctor as disabled for the period of October 12, 1974 to November 26, 1974. Petitioner refused to pay complainant for her accrued sick leave during the period of her actual disability. Due to such refusal complainant filed a complaint with the State Division of Human Rights. After a hearing, the division found no evidence in the record to show that the option given by petitioner to pregnant teachers regarding sick leave was also applicable to absences caused by nonpregnancy-related disabilities. The division concluded that petitioner discriminated against the complainant because of her sex and awarded her an amount equal to her accrued sick leave for the period October 12, 1974 through November 26, 1974, plus interest. The order of the division was affirmed by the State Human Rights Appeal Board and the present proceeding was instituted. Initially, we would note that the burden was on complainant to prove by substantial evidence the truth of her allegations of unlawful discrimination (Matter of McGrath v New York State Div. of Human Rights, 52 AD2d 1027). Upon a review of the entire record, we find no sufficient proof as to the petitioner’s comparable policies concerning nonpregnancy-related disabilities. Complainant failed in her burden of demonstrating petitioner’s dissimilar treatment of other employees in regard to sick leave entitlement. Accordingly, there is not sufficient evidence on the record as a whole to support the board’s decision and the order must be annulled (see Matter of State Div. of Human Rights v Board of Educ., 40 NY2d 1021). Order annulled, without costs, and petition granted. Greenblott, J. P., Sweeney, Main and Herlihy, JJ., concur.