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

Third Circuit finds lower level public sector supervisor responsible for FMLA violations

Third Circuit finds lower level public sector supervisor responsible for FMLA violations

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

The Third Circuit in Haybarger v. Lawrence, No. 10-3916 (3d Cir. Jan. 31, 2012) held that individual supervisor in the public sector, like their private sector counterparts, could be individually liable for violations of the FMLA separate from, and in addition to, the employer.

Debra Haybarger was employed as an office manager for the Lawrence County Adult Probation and Parole agency, a department in the County Court system.  She reported to William Mancino, the Department Director.  Haybarger suffered from Type II diabetes, heart disease, and kidney problems, which forced her to miss work frequently for medical attention.  Notwithstanding her known medical condition, Mancino repeatedly noted in her annual performance evaluations that she needed to cut down on her absences due to illness.  He also repeatedly questioned why she needed to visit the doctor so often.  Mancino disciplined Haybarger and placed her on probation for six months for conduct demonstrating a lack of leadership.   After securing proper authorization, Mancino subsequently fired Haybarger when, in his opinion, her performance did not improve.

Haybarger sued Lawrence County, the Probation Department, and Mancino for violation of the FMLA.   The federal district court dismissed Haybarger's FMLA claim against Mancino in his individual capacity on the merits after finding that Mancino did not have sufficient authority and control over Haybarger to be considered an "employer" subject to liability within the meaning of the FMLA.  Haybarger appealed the decision of the district court to the Third Circuit.  

To determine whether the district court erred in holding that Mancino was not Haybarger's "employer" for FMLA purposes, the Third Circuit, in a case of first impression, opined that it first had to consider whether the FMLA permits individual liability against supervisors in public agencies.   Because liability for FMLA violations is limited to an "employer" as defined by the Act, the Court began its analysis with the FMLA definition of "employer"in 29 U.S.C. Sec. 2611(4)(A)(i)-(iii):

In general.  The term "employer"

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii)  includes--

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer;

(III) includes any "public agency"  as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).*

The Court also noted that individual supervisor liability for FMLA violations is codified in the U.S. Department of Labor FMLA implementing regulations, 29 CFR 825.104(a), (d).  As additional support, the Court referenced the fact that the FMLA definition of "employer" is materially identical to the FLSA definition, and that the Third Circuit has found individual liability for FLSA violations, including liability for lower level supervisors.

The Third Circuit found not reason to distinguish between public agencies and private sector employers under the FMLA insofar as individual liability is concerned.  After recognizing a split in the Circuits on the issue, the Third Circuit joined the Fifth and Eighth Circuit to find individual public sector liability for FMLA violations.  In so doing, the Third Circuit rejected decisions of the Sixth and Eleventh Circuit finding no individual public sector supervisor liability for FMLA violations.  The split in the circuits rest on highly technical interpretations of the structure of the FMLA's "employer" definition.   The Third Circuit found that, because the definition of "employer" includes "public agencies," and Congress provided that an "employer" may include individuals, "it plainly follows that an individual supervisor at a public agency may be subject to liability."   

The Court went on to find that Mancino was Haybarger's "employer" under the FMLA.  Here again, the FMLA defines an "employer" as "any person who acts, directly or indirectly, in the interest of an employer to any of the employee's of such employer."  Citing FLSA case law as support, the Court opined this meant that an individual is subject to FMLA liability when he or she exercises "supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest.  Applying the "economic reality" test, whether a person functions as an employer depends on the totality of the circumstances rather than on "technical concepts of the employment relationship," including: (1) whether the individual had the power to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.

Here, the Court found that Mancino exercised sufficient control over Haybarger's employment on behalf of Lawrence County to be her employer.  The fact that Mancino lacked final authority to terminate Haybarger did not alter the situation where, as here, he served has her immediate supervisor, he conducted performance reviews, issued discipline, and recommended her ultimate termination. 

Mr. Bosland Comment:     In the private sector, courts have consistently found that individual managers and supervisor acting on behalf of their employer may be individually liable for violating an employee's FMLA rights.  The federal circuit courts have split on the issue in the public sector based on highly technical textual and contextual interpretations of the FMLA's definition of "employer."  The split in the circuits on the issue will likely be resolved one day by clarification by Congress or a decision by the U.S. Supreme Court. 

Where it applies, an individual supervisor may be liable even though they are not a very high level official or have final authority over the employee, provided they exercised some control over the employee and was at least partially responsible for the violation.  To be liable, it is not required that the manager or supervisor intend to violate the employee's FMLA rights.  A manager or supervisor may be personally liable for even inadvertent FMLA violations.   

Supervisors and managers with FMLA responsibilities would be well-advised to ask their employers to provide them with periodic FMLA training to ensure legal compliance.  Employee's should also inquire whether the employer's insurance policies cover the considerable legal costs of defending an FMLA lawsuit, including the cost of any settlement or adverse judgment.  If not, you should either demand coverage (in writing), secure it on your own, or rethink your continued employment as a manager or supervisor with that organization.  The legal defense of an FMLA lawsuit alone could cost in excess of $100,000 dollars, let alone the increased costs of any settlement or adverse judgment.  Such costs would bankrupt most supervisors. 

To avoid FMLA lawsuits and retain good managers and supervisors, FMLA-covered employers should provide periodic FMLA training and secure insurance to cover the defense and resolution of FMLA claims filed against individual supervisors.   

  

* NYPPL comments: In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) [64 LW 4167], the Supreme Court observed that Congress cannot nullify the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. The Supreme Court then said that the Indian Commerce Clause was indistinguishable from the Interstate Commerce Clause. The Supreme Court indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided." As the FMLA, as was the FLSA, was enacted under color of the Interstate Commerce Clause [29 USC 216(b)], presumably its provisions are not controlling absent the State’s "waiving its immunity" and thereby consenting to its being sued by its employees in a federal court. 

The opinion of the Third Circuit is available at the following link:  http://www.ca3.uscourts.gov/opinarch/103916p.pdf

The Third Circuit covers New Jersey, Delaware, Pennsylvania, and the U.S. Virgin Islands. 

Commissioner of Education does not have jurisdiction to consider classified service employee’s claims of alleged out-of-title work assignments

Commissioner of Education does not have jurisdiction to consider classified service employee’s claim of alleged out-of-title work assignments

Appeal of Robert Troeller from action of the New York City Department of Education regarding out-of-title work, Decisions of the Commissioner of Education, Decision #16,326

The New York City Department of Education [DOE] assigned school plant managers to supervise private sector contract employees. Robert Troeller, a plant manager, appealed, contending that requiring plant managers to directly supervise private sector contract employees constituted out-of-title work in violation of Civil Service Law §61(2). Troeller asked the Commissioner to direct the DOE to discontinue the practice.

The Commissioner dismissed Troeller’s appeal “for lack of subject matter jurisdiction.”

The Commissioner pointed out that Civil Service Law §17 vests jurisdiction to administer the provisions of the Civil Service Law with respect to the offices and employments in the Classified Service* of a political subdivision of the State in the responsible civil service commission, personnel officer or other form of civil service administration.** In the case of the City of New York, the City is empowered to administer the Civil Service Law through whatever form of administration it chooses to prescribe in its City Charter.

Under Civil Service Law §35(g), the Commissioner of Education has jurisdiction over the qualifications for appointment and duties and responsibilities of individuals employed in titles involving teaching and the supervising staff of school districts; i.e., individuals employed in positions in the Unclassified Service.

As the plant managers involved were not serving in positions that had been certified by the Commissioner of Education as being in the Unclassified Service pursuant to §35(g) of the Civil Service Law or otherwise so jurisdictionally by law, such positions were position in the Classified Service and the Commissioner did not have jurisdiction to consider the out-of-title claims advanced by the incumbents of those positions.

The Commissioner declined to exercise jurisdiction to review the matter pursuant to §310 of the Education Law and dismissed Troeller's appeal.”

* N.B. All positions in the classified service are in the competitive class unless placed in a different jurisdictional class by the responsible civil service commission or by statute. The Classified Service consists of four jurisdiction classes: the competitive class [CSL §44], the noncompetitive class [CSL §42], the exempt class [CSL §41] and the labor class [CSL §43].

** See, in particular, Civil Service Law §22.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16326.html

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Appeal of Brian M. Kelty seeking the removal of district clerk Concetta Carr, Decisions of the Commissioner of Education, Decision #16,325

Alleging numerous irregularities in the conduct of the election of various candidates seeking to become members of the school board, Candidate Brian M. Kelty claimed that any discrepancy in the recording of votes was due to district clerk’s incompetence and/or the mechanical failure of the voting machines.*  

The Commissioner dismissed the appeal, noting that Kelty had failed to join necessary parties; i.e., any  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.

In this instance the annulment of the election results as demanded by Kelty would affect the four winning candidates. Accordingly, they are necessary parties to the appeal.

Also, said the Commissioner, “although Carr was served with the petition in her capacity as respondent’s district clerk, she was not named as a respondent in either the notice of petition or the petition itself.” The Commissioner explained:

1. Mere service of the petition does not accomplish joinder of the respondent. 

2. The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office.

3. A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

In light of this, said the Commissioner, “I need not consider the parties’ remaining contentions” and dismissed Kelty’s appeal.

* Kelty also challenged “the impartiality” of the district clerk and several trustees on the board because their names appeared on another candidate's petition and alleging that this constituted “improper electioneering.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume51/d16325.html