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Thursday, October 29, 2015

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period


An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period
Slutsky-Nava v Yonkers City School Dist. Bd. of Educ., 2015 NY Slip Op 07670, Appellate Division, Second Department

A teacher may attain tenure by estoppel* when a school board accepts the continued services of a teacher 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.

In this CPLR Article 78 action a teacher [Teacher] asked to court to review a determination of the Yonkers City School District Board of Education [Yonkers] terminating Teacher’s employment as an elementary school teacher. Supreme Court granted Yonkers’ motion to dismiss Teacher’s petition and Teacher appealed.

According to the decision, Teacher was appointed by Yonkers as an elementary school teacher subject to Teacher’s satisfactorily completing a three-year probationary period which was to run through September 2, 2011. Teacher, however, was laid off from her position, effective June 31, 2011. In August 2012, she was again offered a position as an elementary school teacher, starting September 1, 2012.**

Upon her reemployment Teacher was told that, as a result of having been laid off, her probationary period was being extended to November 4, 2012. She signed the offer of employment, which clearly stated that her "expected date of tenure [would] be on November 4, 2012." The petitioner's employment was terminated on October 17, 2012, after she received an unsatisfactory rating.

The Appellate Division said that Teacher’s “probationary period was properly extended to November 4, 2012 since she signed an offer of employment which specified that she would not become eligible for tenure until November 4, 2012.” As Yonkers terminated the Teacher’s employment prior to the expiration of her probationary period and she did not perform the duties of a teacher after November 4, 2012, Supreme Court properly determined that, even accepting the allegations in the Teacher’s petition as true, she could not have acquired tenure by estoppel.

The court also rejected Teacher’s claim that Education Law §2573(15),***which, among other things, describes certain factors to be considered in calculating service for the purposes of determining a teacher's probationary period, holding that §2573(15) did not apply to the facts of this case.

The Appellate Division then held that “[s]ince the allegations of the petition were insufficient to state a cause of action to review [Yonkers’] determination based on the theory of tenure by estoppel, the Supreme Court properly granted [its] motion to dismiss the petition and, in effect, dismissed the proceeding.” 

* Also sometimes referred to as tenure by acquisition, tenure by default or tenure by inaction.

** Presumably [1] Yonkers abolished a position in the elementary tenure area, [2] Teacher was the least senior employee in that tenure area and her name was placed on a preferred list and [3] Teacher was subsequently appointed from the preferred list.

*** §2573(15), which applies to city school districts of cities with one hundred twenty-five thousand inhabitants or more, provides as follows: “15. Notwithstanding any other provision of this section [2573] 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 of any of the persons hereinabove described.”

The decision is posted on the Internet at:
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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