ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

November 10, 2016

Terminating a teacher during his or her probationary period


Terminating a teacher during his or her probationary period
Zarinfar v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 07269, Appellate Division, First Department

As the Court of Appeals held in Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, a probationary teacher is subject to remvcal from his or her position at any time for any reason, or for no reason, without a hearing. Further, a terminated probationary teacher challenging his or her termination has the burden of showing that the termination was in violation of law or for a discriminatory reason or purpose.

Majid Zarinfar, a probationary teacher, was terminated from his position with the New York City Board of Education. Zarinfar, alleging that had attained tenure by estoppel based on his service in the same subject area at a different school under a different license,* filed an Article 78 petition seeking a court order annulling the Board of Education’s decision to terminated his probationary employment and declaring that he had attained tenure by estoppel by reason of his service in another New York City school.

Supreme Court denied his petition, finding that Zarinfar was not entitled “tenure by estoppel” because:

1. Zarinfar’s probationary service under his technology license was found unsatisfactory and was terminated from that position; and

2. Zarinfar had commenced a new probationary period under his mathematics license after his service as a probationary teacher was terminated under his technology license.

The Appellate Division affirmed the lower court’s ruling, noting that “[as Zarinfar] never received tenure, he was subject to termination at any time for any reason without a [pretermination] hearing.”

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

With respect to positions in the Classified Service, where the probationary period is set terms of completing a minimum or a maximum period of probation, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual "is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position" 

N.B. Education Law §3031(a) addresses procedures to be followed when  tenure will  not be  granted to a teacher at conclusion of the  probationary period. The procedure requires that a probationary teacher receive notice of the recommendation that his or her services are to be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered and further provides that the teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be provided with a written statement giving the reasons for such recommendation. The teacher may file a written response to the statement of reasons with the district clerk not later than seven days prior to the date of the board meeting. In some instances a probationary teacher may be offered an "extension of employment as a probationary teacher" in lieu of termination.

* See Education Law §2573[1][a], which, in pertinent part, provides … in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a or section three thousand twenty-b of this chapter, the probationary period shall not exceed two years;

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_07269.htm
 

______________


The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html


______________
 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com