December 23, 2010

Extension of the probationary period

Extension of the probationary periodMaras v Schenectady CSD, 275 AD2d 551

The Schenectady City School District told probationary school psychologist Roberta J. Maras, that she was not to be granted tenure and terminated her employment effective November 15, 1998. Maras sued, seeking a court order annulling her termination on the theory that she had acquired tenure by estoppel.

Maras was serving a three-year probationary period due to end on September 1, 1998. The district, however, had unilaterally extended Maras’ probationary period through November 16, 1998 because, it said, she had been absent for 11 days in excess of her contractually allotted sick days during her three-year probationary period. On October 16, 1998 the district wrote Maras advising her that she would not be recommended for tenure and, consequently, her employment would terminate on November 15, 1998.

Did Maras attain tenure by estoppel? The Appellate Division said she had, ruling that the district improperly extended Maras’ probationary period beyond September 12, 1998. According to the court, Schenectady could lawfully have extended Maras’ probationary term for the period of time [Maras] was absent from school in excess of her contractually allotted sick days – i.e., an “11-day extension”.

Although Schenectady had the authority to exclude from the computation of Maras’ three-year probationary period any noncontractual absences, it did not have any authority to exclude Maras’ absences provided for by contract. According to the ruling, the district excluded Maras’ 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days.

The Appellate Division, in support of its ruling, cited England v Commissioner of Education, 169 AD2d 868.

The court also observed that Section 2509.7 of the Education Law expressly prohibits extension of an employee’s probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.

Section 2509.7 provides that ... no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights.

The court’s conclusion: Maras attained tenure by estoppel because (1) the district failed to take action to grant or deny petitioner tenure prior to September 12, 1998; and (2) the record indicated that the district was aware of Maras’ continuing service in its employ beyond September 12, 1998.

Maras was an employee in the Unclassified Service [see Civil Service Law Section 35]. The general rule is different with respect to extensions of the probationary period for employees in the Classified Service [see Civil Service Law Section 40]. In the event a probationary employee in the Classified Service is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974].

For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”

Some jurisdictions allow the appointing authority to waive some of time a probationer was absent during his or her probationary period, thereby reducing the time the individual actually serves in the probationary period.

The New York State Civil Service Commission's Rules for the Classified Service, for example, provide that "any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary period ... may, in the discretion of the appointing authority, be considered as time served in the probationary term."

Such extensions of the probationary period may be applicable in other situations as well.

For example, in the event an employee injured on the job is given a "light duty assignment," the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes [Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601]. In such cases the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."
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