Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 AD2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed “tenure by estoppel.” The Court of Appeals addressed the issue of an individual obtaining “tenure by estoppel” in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, “tenure by estoppel” is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley case demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and he held a tenured appointment. He also claimed that he was entitled to a “pretermination hearing” because he was an “exempt volunteer firefighter.”

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged. In the words of the court, Wamsley's “probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence.”*

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, “expired long before his employment was terminated.”

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service unless the individual is a veteran who served in time of war or is an “exempt volunteer firefighter.”

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75 because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court “for resolution of that factual issue.”

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision indicates that Wamsley “became permanent” after the expiration of his 26-week probationary term, “probationary employees” in fact hold permanent appointments as of the effective date of his or her appointment to the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation. 

Employee's refusal to produce medical records results in dismissal of lawsuit

Employee's refusal to produce medical records results in dismissal of lawsuit

Peters-Turnbull v NYC Board of Education, CA2, 7 Fed. Appx. 107

Sometimes a plaintiff refuses to cooperate in pre-trial discovery procedures. The Peters-Turnbull case illustrates the difficulties that such lack of cooperation may cause the plaintiff.

Gloria Peters-Turnbull filed a complaint in federal district court alleging that the New York City Board of Education failed to reasonably accommodate her disability in violation of the Americans with Disabilities Act of 1990, and New York State's Executive Law §296. She also charged that the Board retaliated against her when she began to complain.

The district court ultimately granted the Board's motion to dismiss her complaints because she failed to cooperate in discovery proceedings. Among other things, the Board complained that Peters-Turnbull (1) failed to comply with its request that she report for a physical examination and (2) that she that refused to provide authorization for the release of her medical records to the Board.

According to the ruling, on May 4, 1999, the court held a conference and ordered Peters-Turnbull to respond to the Board's requests by May 25, 1999. She did not comply with this order. The court then ordered Peters-Turnbull to show cause why her lawsuit should not be dismissed for failure to respond to the Board's discovery requests. Peters-Turnbull failed to respond to this order by the court. The court then instructed the Board to move for dismissal based on Peters-Turnbull's failures to produce the requested discovery.

Peters-Turnbull appealed the dismissal of her petition, contending that the District Court abused its discretion in dismissing her claims with prejudice for failure to comply with its discovery orders.

The Circuit Court said that “five factors are used to determine whether such a dismissal is warranted.” The five tests are:

1. The duration of the plaintiff's failure to comply with court orders;

2. Whether the plaintiff was on notice that failure to comply would result in dismissal;

3. Whether the defendant is likely to be prejudiced by further delay in the proceedings;

4. A balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and

5. Whether the judge has adequately considered a sanction less drastic than dismissal.

Applying each of the factors, the Circuit Court said that it was satisfied that the District Court acted within its discretion in dismissing Peters-Turnbull's action.

The Circuit Court's rationale for its holding:

1. Peters-Turnbull's failure to comply with repeated discovery requests and court orders has extended this lawsuit over five years.

2. Peters-Turnbull received ample notice that further delays would result in dismissal of her case.

3, The duty of due diligence imposed upon plaintiffs under the rules rests upon the crucial policy of encouraging prompt disposition of cases. Therefore, although the District Court did not identify any specific prejudice to the Board, “prejudice to defendants resulting from unreasonable delay may be presumed.”

Although the District Court made no explicit findings with regard to its balancing of the need to alleviate court calendar congestion with Peters-Turnbull's right to due process, Peters-Turnbull received sufficient notice and a fair opportunity to be heard before the case was dismissed.

Finally, under the circumstances, the District Court had no reason to believe that lesser sanctions would be effective. Peters-Turnbull had been warned repeatedly and the issues on which discovery had not been produced constituted the essence of the case.

The Circuit Court affirmed the district court's dismissal of Peters-Turnbull's complaint with prejudice.

Rescinding an appointment granting tenure by mistake held lawful

Rescinding an appointment granting tenure by mistake held lawful
Shaffer v Schenectady City School Dist., CA2, 245 F.3d 41

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection? This is the underlying issue in the Shaffer case.

Commenting that relevant provisions of “Education Law admits of multiple readings” and that there is no relevant case law concerning the issue, the U.S. Circuit Court of Appeals, Second Circuit, “certified the question” to the New York State Court of Appeals to determine whether a teacher granted tenure by a school board resolution that states it is to be effective at some future date is immediately entitled to the protections of Section 3020-a of the Education Law available to tenured personnel.

Special education teacher Sharon Shaffer was told by the Superintendent that she would not be recommended for tenure at the end of her probation period. On June 2, 1998 the School Board adopted the following resolution:

“In accordance with the recommendation of the Superintendent of Schools in his written report ... the person whose name is set forth below is hereby appointed on tenure effective on the date set forth below.”

A list consisting of thirty-three names, including Shaffer's, entitled “Recommendation For Tenure” was appended to the resolution. The “tenure list” indicated the respective tenure areas, and effective tenure dates of the persons listed. Shaffer's tenure date was listed as September 1, 1998.

Claiming that its June 2, 1998, resolution incorrectly included Shaffer's name, on June 17, 1998, the Board voted to rescinded her “tenure appointment.” Its theory: on June 17, 1998, Shaffer “was not yet a tenured teacher, but one with merely an expectation of becoming tenured on September 1.”

Shaffer sued the District claiming it violated her rights under 42 USC 1983 when it revoked her tenure and dismissed her from her position. The District, on the other hand, contends that Shaffer inclusion on the “tenure list” attached to its June 2, 1998 resolution “was merely the result of a clerical error when [her name] was mistakenly included on a list of teachers to whom tenure was to be granted” and it acted promptly to correct the error.

The critical issue to be determined: did Shaffer acquired tenure as a result of the Board's action on June 2, 1998, and, if so, was the subsequent revocation of that tenure was lawful?

Considering the Board's argument that it cannot be bound if its action was the result of an “error” and therefore Shaffer cannot claim any right to tenure, summarized below are two decisions concerning the impact of a mistake made in reporting or recording a personnel action:

1. The Commissioner of Education, in Longshore v Massena Board of Education, 32 CEd 12839, considered the status of a part-time teacher whose “personnel action sheet” described his appointment as “probationary from September 1, 1991 until September 1, 1992.” Finding that “[t]he record supports [the District's] contention that the references in the personnel action sheet and notification of appointment form were erroneous,” the Commissioner ruled that Willard M. Longshore “was not appointed to a probationary position.” Accordingly, the District was not required to meet the notice requirements in Education Law Sections 3031 and 3019-a in order to terminate his employment.

2. In Moore v Smithtown Central School District, 116 AD2d 273, a “layoff seniority” case, the Appellate Division held that the fact that the district had, in error, included a communications skills teacher -- Moore -- on the “reading seniority list” was not controlling thus would not be relevant in determining Moore's preferred list status and reinstatement rights.

In Schaffer, 96 N.Y.2d 271, the Court of Appeals concluded "that a teacher granted tenure effective on a future date is not entitled to the benefits of tenure until the effective date specified in the resolution" and so advised the U.S. Circuit Court of Appeals.

N.B. In Gould v Board of Education, 81 NY2d 446, the New York State Court of Appeals held that a “tenured teacher has a protected property

Terminating a probationer while he or she is on a leave of absence

Terminating a probationer while he or she is on a leave of absence
Johnston v City of New York, 281 AD2d 322

Elaine Johnston, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].

According to the decision, Johnston suffered a job-related injury while she was serving as a provisional Caseworker.

ACS permanently appointed Johnston to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. While still on leave, Johnston was terminated from her position before completing her probationary period.

The Appellate Division upheld Johnston's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional about her supervisors' communication skills.

The court said that there was “ample evidence of [Johnston's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them.”

However, there are some troublesome aspects to this case.

According to the ruling, Johnston never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her “performance as a provisional in making its decision to terminate her permanent appointment.

Typically, a probationary period is extended if the individual is absent during his or her probationary period.

As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e, as a temporary or provisional employee -- in Garcia v Bratton, 90 N.Y.2d 991, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.

Finally, 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 made in bad faith.

The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with “notice and hearing” if the appointing authority decides to terminate the individual during his or her minimum period of probation.

Early retirement pay plans

Early retirement pay plans
Opinion of the State Comptroller - Opinion 2000 - 4

Early retirement or similar incentives are sometimes offered to employees.

M. Cornelia Cahill, Esq., on behalf of the Hadley-Luzerne Central School District, wrote to the State Comptroller seeking his opinion concerning a district's termination pay program having the following elements:

1. The plan would be established in accordance with the terms of a collective bargaining agreement.

2. The plan would provide an incentive to certain employees to terminate their employment with the school district, i.e., any employee choosing to participate in the program would receive post-separation cash payments of $400 per month for 120 months.

3. Eligible employees electing the plan would be required to agree to separate from service with the school district, but would not be required to commence their retirement benefits or otherwise retire from active employment other than with the school district.

The Comptroller said that a school district could establish such a plan to implement the terms of a collective bargaining agreement where:

1. The program is to provide an incentive to certain employees to separate from service, irrespective of whether the employee begins receiving retirement benefits;

2. Payments are made to employees separating from service who are at a specified minimum salary level or who have a minimum number of years of service; and

3. Periodic payments, in the same fixed amount over the same fixed period of time, would be paid to each qualifying employee.

The Comptroller concluded that neither Section 201(4) of the Civil Service Law nor Sections 113 and 470 of the Retirement and Social Security Law prohibited the district from establishing a program providing for payments to an eligible employee to be made over a period of years rather than as a single lump-sum payment upon separation from service. 

The Comptroller said: There is ... no nexus between an employee's retirement and eligibility for these payments ... the amount and duration of these payments are not open-ended ... [and] although there are threshold years of service and minimum salary criteria, the payments to each qualifying employee who chooses to separate from service are the same, regardless of years of service or level of compensation beyond the threshold.