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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of CHEEKTOWAGA CENTRAL SCHOOL DISTRICT, Petitioner, v. Kathryn A.O. GRAZIADEI and New York State Division of Human Rights, Respondents.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, WISNER, SCUDDER and BALIO, JJ. Frank P. McGarry, Buffalo, for petitioner. Elaine A. Smith, for respondent New York State Division of Human Rights.

The determination of respondent New York State Division of Human Rights that petitioner unlawfully discriminated against respondent Kathryn A.O. Graziadei (complainant) on the basis of sex and a pregnancy-related disability is not supported by substantial evidence.   Complainant, a guidance counselor employed by petitioner, depleted her accrued sick leave four weeks and two days after the birth of her child.   In order to extend her paid leave, she applied for three days from the sick leave bank established pursuant to the collective bargaining agreement between petitioner and the Cheektowaga Central School Teachers' Association.   Petitioner denied the application on the ground that complainant failed to demonstrate that she was incapacitated by severe sickness or injury.

 Complainant was entitled to take advantage of the sick leave bank to the same extent as employees who are incapacitated by a medical condition other than pregnancy and recovery from childbirth (see, Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York Human Rights Appeal Bd., 35 N.Y.2d 371, 376, 362 N.Y.S.2d 139, 320 N.E.2d 859, rearg. denied 36 N.Y.2d 807, 369 N.Y.S.2d 1026, 330 N.E.2d 657).   Pursuant to the collective bargaining agreement, however, sick leave bank time is available only to employees “incapacitated by severe sickness or injury.”   Complainant presented no proof that she was incapacitated by severe sickness or injury (see, Wunning v. Johnson, 114 A.D.2d 269, 272, 499 N.Y.S.2d 272, lv. denied 68 N.Y.2d 601, 505 N.Y.S.2d 1025, 496 N.E.2d 238) or that her application for sick leave bank time was treated in a manner less liberal than those applications from employees with conditions unrelated to pregnancy and recovery from childbirth (see, West Hempstead Union Free School Dist. v. State Div. of Human Rights, 116 A.D.2d 642, 643, 497 N.Y.S.2d 721;  Matter of Jericho Union Free School Dist. v. New York State Human Rights Appeal Bd., 97 A.D.2d 762, 764, 468 N.Y.S.2d 393).

In view of our decision, we do not address petitioner's remaining contentions.

Determination unanimously annulled on the law without costs and petition granted.


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