The petitioner [Educator] in this CPLR Article 78 action contended that
her termination by the school district [District] without a hearing prior to the end of her probationary period was in violation of §3020-a of the Education Law.
Educator had been appointed as a permanent substitute teacher by the District for the 2015-2016 school year and in September 2016, commenced a four-year probationary period* as a bilingual elementary teacher within the District. Based on the recommendation of the District's superintendent, the District summarily terminated Educator's probationary employment effective August 2, 2020.
Educator challenged the District's action, contending that her substitute teaching experience during the 2015-2016 school year, combined with her probationary service for the 2016-2017 through 2019-2020 school years, satisfied her four-year probationary requirement, and thus she had acquired tenure in her position by estoppel prior to the District's terminating her employment in August 2020.
Supreme Court granted the District's motion to dismiss Educator's Article 78 proceeding. Educator appealed the Supreme Court's ruling.
The Appellate Division sustained Supreme Court decision, explaining:
1. "The Education Law distinguishes between probationary teachers and tenured teachers" and teachers in certain school districts must serve a probationary period of four years;
2. "The employment of a probationary teacher can be terminated at any time during the probationary period, without any reason** and without a hearing, whereas the employment of a tenured teacher can be terminated only after formal disciplinary proceedings;
3. "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'; and
4. "Service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher" although "a teacher's probationary term may be reduced through 'Jarema' credit for prior service as a 'regular substitute' teacher'. (See Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110)."
Here, opined the Appellate Division, Educator's petition "alleged [she] was employed as a permanent substitute during the 2015-2016 school year, and the evidentiary submissions conclusively established that the [Educator] taught, as a substitute teacher, several different classes over the 2015-2016 school year and that the longest period that she substituted for the same teacher was 26 days. Under these circumstances, the petition does not support a cause of action alleging tenure by estoppel because, contrary to the [Educator's] contention, her service as a substitute teacher did not constitute probationary service."
Further, said the court, evidence established that Educator "did not serve as a 'regular substitute' during the 2015-2016 school year and, therefore, she is not entitled to Jarema credit".
Accordingly, the Appellate Division held that Supreme Court properly granted the District's motion to dismiss the petition and dismissed the proceeding.
* See Education Law §3012(1)(a).
** N.B. Except as otherwise provided by law or the terms or conditions of a collective bargaining agreement, the employment of a probationary employee may be terminated without a hearing and without a statement of reasons after the completion of the probationer's minimum probationary period, if any, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible reason or an illegal purpose, or in violation of statutory or decisional law. See Matter of Yonkers Firefighters v City of Yonkers, 165 AD3d 816.
Click HERE to access the Appellate Division's decision posted on the Internet.