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Monday, July 06, 2015

Tenure by estoppel

Tenure by estoppel
2015 NY Slip Op 05471, Appellate Division, Second Department

In response to the School District’s denying the petitioner [Teacher] tenure and terminating her employment, Teacher filed an Article 78 seeking reinstatement to her former position, back salary and benefits and other relief.

Teacher’s notice of appointment stated that her probationary period was to run through June 30, 2010. From September 2, 2008, through January 21, 2009, Teacher was absent from work for 87 work days on an approved unpaid maternity leave.

Teacher was later placed on “contractual paid medical leave” due to complications with a second pregnancy. While on such leave, Teacher was served with a notice that she would not be recommended for tenure at the expiration of her three-year probationary period. She returned to work on January 13, 2011 only to her employment terminated effective January 21, 2011.

Teacher sued, contending that she had attained tenure by estoppel. Supreme Court granted Teacher’s petition, expressly rejecting the School District’s claim that Teacher’s maternity leave tolled the probationary period by the total sum of the calendar days of her leave, rather than by the number of days that school was actually in session.

Supreme Court directed the School District to recalculate Teacher’s probationary period end date, using an original end date of June 30, 2010, rejecting the School District’s recalculation of Teacher’s probationary period end date and declared that she acquired tenure by estoppel. The court also directed Teacher’s reinstatement effective January 21, 2011, with back pay, reimbursement of benefits, and an award of compensatory damages in an amount to be determined at a hearing.

In response to the School District’s appeal, the Appellate Division said:

1. The Education Law specifically distinguishes between probationary teachers and tenured teachers. Tenure by estoppel results "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."

2. A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits.

3. Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher's three-year probationary period.

4. An extension of a teacher's probationary period is to be performed utilizing a workday-to-calendar day methodology and not, as the School District argued, by the corresponding number of calendar days’*

Applying the foregoing principles to this proceeding, the Appellate Division conclude that Teacher had worked past her extended probationary period end date and that Supreme Court properly determined that Teacher acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, January 21, 2011.

Addressing a collateral issue, the removal of certain documents for Teacher’s personnel file the Appellate Division agreed with Supreme Court's determination that the School District was in breach of certain provisions set out in a Taylor Law (Civil Service Law Article 14) collective bargaining agreement.

Although it is well settled that a board of education will not be liable for the unauthorized acts of its agents, under the Taylor Law agreements that are negotiated between a public employer, by its chief executive officer, and a union and/or a unionized employee are enforceable and binding upon the public employer to the extent that the provisions thereof do not require approval by a legislative body.** The court noted that the chief executive officer of the School District, and pursuant to the powers and duties set forth in Education Law §1711(2)(e), was authorized to enter into the Taylor Law agreement insofar as it pertained to the maintenance of Teacher’s personnel file.

* Education Law § 3012(3) 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."

**§204-a of the Civil Service Law states that provisions in a written agreements between the employer and an employee organization are conditional to the extent that provisions set out in such agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval.

The decision is posted on the Internet at:

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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