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Teacher Entitled to Tenure by Estoppel—Proper Way to Calculate Probationary Period Which Included Unpaid Maternity Leave Explained

The Second Department determined a teacher was entitled to tenure by estoppel.  The number of days the teacher was on unpaid, approved maternity leave was excluded from the probationary period. Properly calculated (the proper method was explained), the teacher worked beyond the three-year probationary period and was therefore entitled to tenure by estoppel:

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” … . A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits … .

Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher’s three-year probationary period … . Contrary to the appellants’ contention in this proceeding, such an extension of a teacher’s probationary period is to be performed utilizing a workday-to-calendar day methodology. That is, for each workday missed as a result of a teacher’s unpaid leave, the three-year probationary period is to be extended by the corresponding number of calendar days … . Such a methodology is consistent with both Education Law § 3012(3), which provides that “no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights,” and the purpose of the three-year probationary period in affording a school district an opportunity to evaluate an individual’s performance as a teacher prior to granting tenure … .

Applying the foregoing principles to this proceeding, we conclude that the petitioner worked past her extended probationary period end date. Accordingly, the Supreme Court properly determined that she acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, i.e., January 21, 2011. Matter of Brown v Board of Educ. of Mahopac Cent. Sch. Dist., 2015 NY Slip Op 05471, 2nd Dept 6-24-15

 

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