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February 19, 2019

Tenure may be acquired by estoppel

Tenure by estoppel 
Wilson v Department of Educ. of the City of N.Y., 2019 NY Slip Op 01161, Appellate Division, First Department

An employee may attain tenure by estoppel as the result of the appointing authority's failing to provide the individual with timely notice that his or her services will not be continued beyond his or her probationary period.*

Citing McManus v Board of Educ. of Hempstead Union Free School District, 87 NY2d 183, the Appellate Division affirmed a Supreme Court's ruling that annulled New York City Department of Education's [DOE] discontinuing Petitioner's employment and directed the educator's reinstatement to her former position as a tenured teacher with back salary.**

DOE had appointed Petitioner as a teacher in 2011 and her initial 3-year probationary period was set to expire in 2014. Prior to the date on which Petitioner probationary period was to expire, she and DOE entered into a written agreement extending her probation through September 8, 2015

In March 2015, DOE temporarily reassigned Petitioner to perform certain clerical duties. Significantly, DOE did not advise Petitioner concerning its decision regarding her status as a probationary teacher upon her reassignment. In March 2016, DOE discontinued Petitioner's clerical assignment and  directed her to resume performing her teaching duties. The Appellate Division's decision reports that after resuming her teaching duties Petitioner was involved in an incident with her school principal and she "took an unapproved leave of absence." On June 15, 2016, DOE notified Petitioner that "it was discontinuing her probationary service as of July 15, 2016."

The Appellate Division explained that a probationary teacher typically acquires tenure by estoppel when a school board fails to take the action required by law to either [1] grant or deny tenure to the individual prior to the expiration of the teacher's probationary term and [2] accepts the continued services of an educator in his or her position. Here, said the Appellate Division, Petitioner obtained tenure by estoppel at the end of her extended probationary period as the result of DOE's failure to deliver the notice of it's decision to terminate her on or before September 8, 2015.

In addition, the court noted that DOE failed to advise Petitioner that the temporary assignment to perform clerical duties would not count toward her satisfying her probationary term of service. Accordingly, Petitioner's decision to accept the temporary reassignment did not "serve to disrupt" Petitioner's  probationary period nor did it result in an automatic extension  of her probationary term for a period equal in length to the period of her service in a clerical capacity.

Having attained tenure in her position as an educator by estoppel, which is sometimes referred to as tenure by acquiescence or tenure by default, Petitioner could only be removed from her position for cause, after notice and hearing.

In contrast, for the purposes of determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the appointing authority may take appropriate action to extend the probationary period for a period of time equal to such absence.

The same is true with respect to absence during the probationary period of employees in the classified service.*** However, with respect to employees in the classified service, the appointing authorities may be given discretion to waive a limited period of such absence pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the employee are extended by the number of workdays of such absences not counted as time served in the probationary term” [see, for example, 4 NYCRR 4.5(g), “Absence during probationary term”].

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 68 NY2d 60].

* If the notice of termination of the employee's service is timely given, the last day of service need not coincide with the last day of his or her probationary period. If the termination date of service of the individual is made effective within a reasonable time of the last day of his or her probationary period, such as to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel as the result of the “carryover” [see Mendez v Valenti, 101 AD2d 612].

** The Supreme Court's ruling was subsequently amended to provide that amount earned by the Plaintiff from a specified date to a later specified date would be deducted from the amount of back pay owed to Plaintiff by the Department of Education.

*** The positions of teachers and school administrators are typically in the Unclassified Service [see Civil Service Law §35, subdivisions g through and including k].

The decision is posted on the Internet at:

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