Tenure by estoppel

Tenure by estoppel
Matter of Andrews v Board of Educ. of the City School Dist. of the City of N.Y., 2010 NY Slip Op 32963(U), October 15, 2010, Supreme Court, New York County. Judge Joan A. Madden [Not selected for publication in the Official Reports]

Dana Andrews sought a court order declaring that she had attained tenure by estoppel as a result of her being continued in service after the end of her probationary period and direct the New York City Board of Education to reinstate her to her former position with back salary.*

Although a newly appointed teacher is required to serve a three-year probationary period, because Andrews was entitled to two years of so-called “Jarema credit toward the completion of her probationary period.** Accordingly, Andrews’ probationary period was to end August 30, 2008.

When Andrews was advised that she would not be given tenure at the end of her probationary period, she requested, and was granted, “another chance to improve and perform satisfactorily,” and Andrews signed an agreement extending her probationary period for one year, i.e., through August 30, 2009. The agreement provided that Andrews would either be granted tenure, if she satisfactorily completed the additional year of probation, or she could be terminated on or before that date.

On or about June 18, 2009 Andrews was sent a letter advising her that her overall rating as a probationary teacher was “unsatisfactory.”

On September 8, 2009, the first day of the 2009-2010 school year, Andrews reported for duty. Her principal advised her that she should not be there because she had been terminated. Andrews replied that she had “never received written notice of her termination and left the school, only to return later that day, indicating that her union representative had told her that she should remain at the school for that day.

Andrews’ union representatives subsequently met with school officials. The union's representatives asserted that Andrews’ principal had stated that she had "messed up" by failing to provide Andrews with timely written notice that she was to be discontinued.

The Board of Education, contending that Andrews had not attained tenure by estoppel, withdrew its argument that she was not entitled to back pay, conceding that she had not been be provided with a written notice of her discontinuance more than 60 days before her probationary period expired.

Noting that a teacher can acquire tenure either through appointment or by acquiescence and estoppel. Typically tenure by estoppel is acquired when a school board “accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term.”

An individual claiming tenure by estoppel has the burden of demonstrating that his or her “post-probationary” services were performed with the knowledge and consent of the responsible board of education. However, said Judge Madden, “The mere failure to provide a teacher with the required amount of notice of an intention not to recommend tenure does not confer tenure," citing Matter of Brunecz v City of Dunkirk Bd. of Educ., 23 AD3d 1126.

Noting that the Board of Education terminated Andrews on or about September 11, 2009, the court said that in Educ. of Cohoes City School Dist., 59 AD2d at 807, the Appellate Division held that a teacher who taught for a few days after his probationary period ended had not attain tenure by estoppel “where prompt action was taken to discharge the teacher as soon as his presence was discovered.”***

Accordingly, Judge Madden dismissed Andrews’ petition seeking a judgment that she had attained tenure by estoppel but commented that her request for alternative relief – back pay for failure to provide the statutory notice that she was not to be given tenure at the end of her probationary period -- was not in dispute and would be provided by the Board of Education.

* In the alternative, she contended that she was entitled to 60 days of back pay because she was not given the requisite pre-termination notice as to he failure to satisfactorily complete her probationary period.

** Section 2509.1(a) [the "Jarema Act"] provides that the statutory three-year probationary period for teachers may be reduced by up to two years if the teacher rendered service as a "regular substitute" for a full term or more prior to the teacher's probationary appointment by the school district. In determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the district may extended the probationary period for a period of time equal to the absence.

*** Similarly, as the Appellate Division held in Mendez v Valenti, 101 AD2d 612, as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period. Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before close of business on the last day of his or her probationary period.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32963.pdf
NYPPL