Tenure by estoppel

Tenure by estoppel

Andrews v Board of Educ. of the City School Dist. of the City of New York, 2012 NY Slip Op 00845, Appellate Division, First Department

Education Law §§2573(1)(a) and 3012(2) requires that a probationary employee whose employment will not be continued be given the 60-day written notice that he or she was not recommended for tenure.

Although Dana Andrews was not given the required written notice and claimed to have taught for one day after the expiration of her probationary term, the Appellate Division ruled that Andrews had not acquired tenure by estoppel.

The court said that the record shows that the New York City Department of Education [DOE] “did not, ‘with full knowledge and consent,’ permit her to continue to teach after her probationary term expired.” According to the decision, it was undisputed that Andrews was informed in May 2009 that her employment would be discontinued, “and when she reported for duty on September 8, 2009, she was told immediately that she had been terminated, and was given no further assignments.”

Explaining that Andrews was not paid for working on September 8, 2009 and the DOE’s actions "speak loudly against any supposition that [DOE] meant to perpetuate [Andrews's] employment" the Appellate Division affirmed Supreme Court’s denial of her petition seeking a court order declaring that she had attained tenure by estoppel.

Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term," [Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 18].

However, in Tucker v Board of Education, 189 AD2d 704, the Appellate Division held that Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory 60 days of notice.

The Court of Appeals affirmed the Appellate Division’s determination [see 82 N.Y.2d 274]. The court noted that while the law does not specially provide for a remedy in the event the notice requirement is not met, the courts and the Commissioner of Education have consistently held that in cases involving intentional delay or as a result of oversight, teachers are to be awarded one day of pay for each day that the notice was late.

The Court of Appeals explained that the purpose of the statute's 60-day notice requirement is to afford probationary teachers a reasonable period of time, before the end of their probationary period, to make plans for the upcoming school year and is a rule founded on reasons of practicality and fairness to probationary teachers. It said that there was nothing in the statute or its legislative history indicating that there should be an exception to law's broader purpose of providing probationary teachers with minimal notice of tenure denials to enable them to seek other employment.

The Andrews decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00845.htm

Refusal to work that results in the loss of employment does not constitute disqualifying misconduct if the employee’s refusal is attributable to a substantiated health problems

Refusal to work that results in the loss of employment does not constitute disqualifying misconduct if the employee’s refusal is attributable to a substantiated health problems

Matter of Lewis (County of Livingston--Commissioner of Labor), 2012 NY Slip Op 00876, Appellate Division, Third Department

After Cindy L. Lewis, a certified nursing assistant employed by a county-owned nursing home, refused to work mandated overtime* shifts on two occasions Lewis County terminated her employment was terminated. Ultimately the Unemployment Insurance Appeals Board ruled that Lewis was entitled to unemployment insurance benefits.

Lewis County appealed but the Appellate Division sustained the Board’s determination.

The court explained that whether an employee's failure to work the required hours rises to the level of disqualifying misconduct is a factual issue for the Board to resolve and its determination will not be disturbed when supported by substantial evidence.

The critical factors were that Lewis’ doctor issued notes that indicated that she was medically restricted with regard to the amount of overtime she could work during the relevant period, and the record indicated that the employer had been notified of those restrictions.

Noting that it has been held that the loss of employment attributable to substantiated health problems will not constitute disqualifying misconduct, the Appellate Division said that it declined to disturb the Board's decision.

* An agreement between the employer and Lewis’ union provided that the employer could mandate that staff work overtime, a procedure known as "mandation."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00876.htm

The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination

The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination

Kahn v New York City Dept. of Educ., 2012 NY Slip Op 01098, Court of Appeals [Decided with Nash, v New York City Dept. of Educ.]

In Kahn v New York City Department of Education 79 AD3d 52, the Appellate Division held that the statute of limitations for initiating a lawsuit is not tolled by the individual’s pursuing his or her opportunity to seek an administrative review of the determination.

Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to an administrative review under the relevant collective bargaining agreement. Kahn filed an "administrative appeal." An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging that determination.

The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.

To avoid such a result, where there is an administrative appeal available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition. 

In this instance the Department of Education was obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment. However, the Court of Appeals decided that such reviews "stem solely from the [CBA]" and constitute ‘an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, . . . which is final and which, when made, in all respects terminates the employment of a probationer under Education Law §2573(1)(a)’ … they are not administrative remedies that [Kahn was] required to exhaust before litigating the termination of [her] probationary employment.”

As DOE’s decisions to discontinue the employment of Kahn and Nash were "final and binding" within the meaning of CPLR §217 (1) as of the dates when Kahn's and Nash's probationary service ended, January 25, 2008 and July 15, 2005, respectively, the fact that they awaited the outcome of the internal reviews provided for under the CBA and DOE's bylaws before commencing suit proved fatal to their filing a timely petition challenging those decisions. As they had, respectively, filed their respective petitions more than four months after the dates when their probationary service ended, such challengers were held time-barred.

The court explained that "The law is well established that a decision to terminate the employment of a probationary [employee] is final and binding on the date the termination becomes effective, and this is true even in circumstances where administrative review is available," citing Triana v Board of Education, 47 AD3 554.

In addition, the Court of Appeals said that the Appellate Division noted although Kahn’s notice of termination was procedurally defective because she was not given the 60 days' prior notice required by Education Law §2573(1)(a), "that defect [did] not invalidate the discontinuance [of her employment] or render the statute of limitations inapplicable; at best, it would have entitled [Kahn] to additional back pay had she served a notice of claim and sought money damages."

As to Nash, the Appellate Division [see 82 AD3d 470] held that to the extent that Nash disputed the loss of her job at DOE, her claim was time-barred under CPLR §217(1) because "a petition to challenge the termination of probationary employment must be brought within four months of the effective date of termination, during which time the termination is deemed to become final and binding, and a petitioner's pursuit of administrative remedies does not toll the four-month statute of limitations."  

The Court of Appeals affirmed the Appellate Divisions’ rulings in both Kahn and Nash.

The lesson here is that should an aggrieved individual await the final “administrative determination” rather then file an otherwise timely petition seeking judicial review, he or she may find that his or her subsequent filing of such a petition is untimely.

The decision in Kahn, decided with Nash, is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01098.htm

Employer did not breach a “contract of employment” when it restored a probationary employee to the employee's former position

Employer did not breach a “contract of employment” when it restored a probationary employee to the employee's former position
Miller v Theodore-Tassy, 2012 NY Slip Op 00940, Appellate Division, Second Department

Margaret Theodore-Tassy’s motion for summary judgment dismissing Nancy Miller’s complaint insofar as asserted against her for alleged “tortious interference with contract“ was denied by Supreme Court. Theodre-Tassy appealed and the Appellate Division reversed Supreme Court’s ruling.

Miller was serving as a probationary assistant principal at a New York City elementary school. Following an alleged incident at the school Miller was discontinued as a probationary assistant principal, and reinstated to her teaching position. The New York City Department of Education [DOE]  then preferred charges against Miller pursuant to Education Law §3020-a. Ultimately Miller was found guilty of certain of the charges and the hearing officer imposed a $10,000 fine.

As to the law involved, the Appellate Division said that “To prevail on a cause of action alleging tortious interference with contract, a plaintiff must establish ‘the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.’"

Here, said the Appellate Division, Theordre-Tassy made a prima facie showing of her entitlement to judgment as a matter of law by submitting evidence demonstrating that DOE did not breach a contract of employment with Miller when it discontinued Miller from her probationary assistant principal position. Further, noted the court, Miller failed to raise a triable issue of fact as to whether the DOE breached an employment contract with her.

It is well settled that "A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law" [see Barry v City of New York, 21 AD3d 551]. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00940.htm