Probationary employee challenges termination from employment without a hearing

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.

 

Establishing affirmative defenses to alleged pay-discrimination claims brought pursuant to Federal and New York State laws

In ANITA EISENHAUER v. CULINARY INSTITUTE OF AMERICA, [21-2919-cv], decided October 17, 2023, United States Circuit Court [Second Circuit] Judge JOSÉ A. CABRANES introduced the court's majority decision* as follows:

"This case presents the questions of what a defendant must prove to establish affirmative defenses to pay-discrimination claims under federal and state laws: the Equal Pay Act, 29 U.S.C. §206(d), and New York Labor Law §194(1). 

"Plaintiff Anita Eisenhauer alleges that defendant Culinary Institute of America violated these equal-pay laws by compensating her less than a male colleague. 

"The Culinary Institute responds that a 'factor other than sex' — its sex-neutral compensation plan, which incorporates a collective bargaining agreement — justifies the pay disparity. 

"Eisenhauer argues that the compensation plan cannot qualify as a 'factor other than sex' because it creates a pay disparity unconnected to differences between her job and her colleague’s job."

* CHIEF JUDGE DEBRA ANN LIVINGSTON concurred in the judgment in part and filed a separate opinion.

Click HERE to read more.

 

 

Determinations by certain other entities not binding on a retirement system's medical board if the medical board's decision is supported by substantial evidence

Supreme Court denied Plaintiff's petition to annul Medical Board's determination rejecting Petitioner's application for accidental disability retirement [ADR] benefits and dismissed the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

The Appellate Division opined "Petitioner has not shown that [the Medical Board's] determination to deny her application for ADR benefits was arbitrary and capricious or made in violation of lawful procedure", citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139.

The court explained the evidence submitted at the hearing included the Medical Board's physical examination of Petitioner and its exhaustive review of the conflicting medical evidence from examining physicians, as well as Petitioner's acknowledgment that she could, without assistance, "perform daily life activities such as bathing, dressing, and walking." The Appellate Division's decision also noted "the Medical Board concluded that [Petitioner] did not complain of pain in her back, neck, and extremities when she went to the emergency room immediately after the accident underlying her request for ADR benefits, and that her various orthopedic problems were part of a normal degenerative process in a middle-aged person."

The Appellate Division's opinion noted that the Medical Board's determination conflicted with the finding of the Social Security Administration that awarded Petitioner disability benefits and Petitioner acknowledged "the finding of the Social Security Administration is not binding on the Medical Board [see Matter of Fusco, 136 AD3d at 451]".

Similarly, public safety officers and firefighters who have been deemed as suffering an occupational injury or disease within the meaning of the Worker's Compensation Law are sometimes disappointed to find that decisions of the Workers' Compensation Board have no bearing on their eligibility for other benefits such as accidental retirement benefits or General Municipal Law §207-a or §207-c benefits. For example, in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals ruled that entitlement to benefits under the Workers' Compensation Law and General Municipal Law §207-c are discrete and entirely independent of one another. 

Click HERE to access the Appellate Division's decision posted on the Internet.

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Disability benefits for New York State and municipal employees

A 1098 page e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.

 

The "Pell doctrine" applied in judicial review of the penalty imposed on a public employee found guilty of disciplinary charges

The determination of appointing authority [Employer] terminating Petitioner's employment based on the report and recommendation of an Administrative Law Judge following a disciplinary hearing was unanimously confirmed by the Appellate Division.

The court noted that "Substantial evidence supports [the Employer's] determination that Petitioner violated Department directives and procedures concerning the retrieval of inmate property, engaged in undue familiarity with an inmate, failed to submit a required unusual incident report, used excessive force against an inmate, and made false and misleading statements."

Under the circumstances, the Appellate Division opined that "The penalty of termination of petitioner's employment does not shock one's sense of fairness", citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, among other decisions.

Click HERE to access the Appellate Division's decision posted on the Internet.

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A Reasonable Disciplinary Penalty - for information and access to a free excerpt of the material presented in this 442 page NYPPL e-book, click HERE.

 

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