Opinion
100196/2010.
Decided October 15, 2010.
In this Article 78 proceeding, petitioner, former probationary teacher Dana Andrews (Andrews), seeks a judgment declaring that she has acquired tenure by estoppel, and compelling respondents, the Board of Education of the City School District of the City of New York (Board of Education) and its Chancellor, Joel I. Klein, to reinstate her as a tenured teacher, with back pay, or alternatively, that she is entitled to 60 days of back pay because respondents failed to give her the requisite written notice that she was not recommended for tenure.
Background
Andrews was hired as a probationary eighth grade teacher for PS/MS 156Q (the school) in Laurelton, Queens for the 2007-2008 school year. Usually, a teacher's probationary period lasts for three years, but can be shortened where a teacher has obtained "Jarema credit." Since Andrews had obtained two years of "Jarema credit" before starting at PS/MS 156Q, her probationary period was scheduled to end on or about August 30, 2008. By Denial of Completion Letter, dated June 5, 2008, signed by the superintendent and the school's principal, Noreen Little (Little), and sent by regular and certified mail, return receipt requested, Andrews was informed that she would be denied completion of her probationary period. Because Little wanted to give Andrews another chance to improve and perform satisfactorily, an agreement (Agreement), dated June 20, 2008, was signed by Little, the superintendent, and Andrews, extending her probationary period for a year, which was to conclude on August 30, 2009.
Where satisfactory service is provided by a regular substitute teacher for two years, the probationary period is shortened to one year. Education Law § 2573 (1) (a); Matter of Triana v Board of Educ. of City School Dist. of City of NY , 47 AD3d 554, 558 (1st Dept 2008).
The Agreement provided that, no later than August 30, 2009, Andrews would either be granted tenure, if she satisfactorily completed the additional year, or be denied the completion of probation and/or be terminated before that date. The Agreement further provided that the decision of whether to grant Andrews tenure would be based on the evaluation of her probationary service before August 28, 2008, and an evaluation of her probationary service granted as a result of the Agreement.
The classroom observations and ratings of Andrews during the 2008-2009 school year were unsatisfactory or minimally satisfactory. It is conceded that, in or about April or early May 2009, Little orally advised Andrews, via telephone, that she would be discontinued. Andrews was on maternity leave from April 20, 2009 until June 1, 2009, and did not perform at expected levels on her return. According to Little's affidavit submitted as an exhibit to the respondents' original answer to this petition, Little signed a letter, dated June 1, 2009, advising Andrews that her Certificate of Completion of Probation was being denied and that her services would terminate at the close of business on August 1, 2009. Little had a specific recollection that her secretary had mailed that letter in June. Wanda Washington (Washington), the school's payroll secretary, was silent in her affidavit on the issue of that letter.
On June 18, 2009, Little issued an annual review and report (Report) on Andrews as a probationary teacher, giving her an overall unsatisfactory evaluation. Andrews acknowledged her receipt of the Report by signing the first page of that document, which consisted of two preprinted pages on a form. The copy of that form, which Andrews received, did not have the second page filled out. That page contained four boxes to be checked, as appropriate, by Little, as principal, as to her recommendation of whether Andrews's probationary service should be continued; a certification of the completion of probation should be issued; probationary service should be discontinued; and/or whether the certification of completion of probation should be denied. The second page also contained boxes for the superintendent to issue his or her recommendation, and for the probationary employee to acknowledge the receipt of the superintendent's recommendation. On June 26, 2009, Little allegedly checked off the box of her copy of the Report's second page, which recommended the discontinuance of Little's probationary service. Also, on that day, Andrews appealed her unsatisfactory rating to the Department of Education. That appeal was adjourned until the conclusion of the instant proceeding.
On September 8, 2009, the first day of the 2009-2010 school year for the staff and administration, Andrews reported for duty at the school. Little advised her that she should not be there because she had been terminated. Andrews informed Little that she had never received written notice of her termination, and left, but returned later that day, indicating that her union representative had told her that she should remain at the school for that day. Little had Washington call the New York City Education Department's human resources office (HR). Washington called the office of Robert Restivo (Restivo), HR's Deputy Director for the Queens Integrated Service Center (ISC), and spoke to Dorette Postelnik (Postelnik) about Andrews's discontinuance and presence at the school. Washington also allegedly told Postelnik that the school had received notification from the superintendent that Andrews had been discontinued.
The record is somewhat contradictory, and is unclear as to whether Postelnik advised Washington that day that she would research the matter and get back to her, or whether she advised Washington that day that, according to HR records, Andrews had not been terminated. However, by September 9, the first day of school for students, Postelnik had allegedly advised Washington that she could not find anyone in the HR system by the name of Andrews, and asked whether Andrews went by another name. Washington suggested that she search under Andrews's maiden name, Dana Whiting, since Andrews had only recently been married. Postelnik then allegedly advised Washington that she had found the records of a "D. Whiting," who worked at the school, but that she was not discontinued and was cleared to work. Based on HR's assurance that Andrews was cleared to work on September 9, she was assigned, allegedly for "that day," to cover a fifth grade class, whose teacher "did not report to work that day." Little aff. of 4/14/10, ¶ 10; Washington aff., ¶ 11.
Meanwhile, as a result of Andrews having contacted her union representatives, a meeting was held, evidently on September 8 or 9, among two United Federation of Teachers representatives, Andre Williams (Williams) and Joyce Schwartz (Schwartz), and Little. Both representatives assert in their affidavits that Little had informed them that she had "messed up" by failing to provide Andrews with timely written notice that she was to be discontinued. Schwartz aff., ¶ 4, Williams aff., ¶ 4. Little claims that she does not recall this. Little aff. of 4/14/10, ¶ 9. Williams and Schwartz further assert that, at the time of that meeting, Little had no documentary evidence to demonstrate that Andrews had been given written notice of her discontinuance, but that, a few days later, Little showed them the Report's second page, which had been executed by her. Andrews claims that she never received a copy of the Report's executed second page, and both Williams and Schwartz assert that it was their impression that when Little showed them the executed second page that that was the first time Andrews had seen it. Both representatives maintain that the Board of Education's customary practice is to send discontinuance notices by certified mail, return receipt requested. According to Schwartz, since by the time she met with Little, Andrews had already been assigned to teach a class where the teacher was on maternity leave, it was Schwartz's impression that Little was acknowledging that Andrews had received tenure by estoppel.
Andrews taught that class on September 9, 2009. Then, Restivo claims (aff., ¶ 12-13) that Washington called again on September 10, after Andrews reported for work that day, at which time Restivo allegedly checked the HR database, found Andrews's name, saw a "DPD" mark on her file, and realized that his office had made a mistake the day before. Restivo does not explain the meaning of "DPD." Washington, on the other hand, claims that, late on September 9, 2009, it "came to light" that Postelnik had confused two teachers, and thus had erroneously reported that Andrews was cleared for work (Washington aff., ¶ 12). Little asserts that HR had contacted the school and "informed us" that Andrews had been terminated and needed to report to ISC. Little aff. of 4/14/10, ¶ 11. Under all of these alleged scenarios there was another D. Whiting who had been cleared for work at the school, a teacher whose maiden name was Darlene Whiting, and was listed under that name in HR's records, but who was known to the school as Darlene Kemp, her married name. Restivo claims that HR's database lists names by the first initial of the first name and by the entire last name. Restivo aff., ¶ 8. Restivo then allegedly advised Washington that Andrews should not be permitted to work, and e-mailed his network leader as to the incident. No copy of that e-mail has been provided. Consequently, when Andrews reported for work on September 10, Little directed her to report to the ISC. Andrews claims that when she reported to the respondents' district offices on September 11, 2009, she was orally informed that she had been discontinued, and that, on or about the same day, she was first provided with unspecified documentation regarding her employment status (Amended Verified Reply, ¶ 6).
Andrews was not paid for working on September 9 because, according to Restivo, she was no longer on HR's payroll system. In this regard, the amended answer recites that Andrews was no longer on HR's payroll as of the end of August 2009, as allegedly reflected in a printout, dated "2/23" of an unspecified year, attached as exhibit "9" to the amended answer. That exhibit, which lists petitioner under her full name of "Dana Andrews," and provides her social security number and her file number, shows that she was paid twice a month, and that she was apparently last paid on "8/31/09," which date was listed twice, first as the "ERN DATE," and second as the "PY DATE."
The Instant Proceeding
Andrews commenced this CPLR Article 78 proceeding, in which she alleges that the Board of Education improperly terminated her "[o]n or about September 11, 2009," without complying with the procedures applicable to tenured teachers. Petition, ¶ 15. In this regard, she seeks a judgment declaring that she has acquired tenure by estoppel, effective August 30, 2009, when respondents "acquiesced and consented to her employment beyond that date" (Petition, ¶ 13), and that respondents acted in violation of the Education Law; enjoining the respondents' unlawful conduct and requiring their compliance with all laws applicable to her status as a tenured teacher; and directing that respondents reinstate her, nunc pro tunc, as a tenured teacher as of August 30, 2009, with full back pay, seniority and other emoluments of employment, with interest, costs, disbursements, and attorney's fees of this proceeding.
In the event that she is found not to have acquired tenure by estoppel, Andrews, who asserts that respondents, prior to the expiration of her probationary period, failed to provide her with the requisite 60 days' written notice from the superintendent that she was not recommended for tenure, seeks a judgment directing them to give her 60 days' pay ( see Petitioner's memo of law, Point II), benefits, and other emoluments of employment which she would have received had she not been unlawfully terminated, plus interest, costs, disbursements, and attorneys' fees of this proceeding.
Respondents initially served a verified answer in which they sought dismissal of the petition. They claimed that they did not "acknowledge, acquiesce or consent to" Andrews's continued service. Verified Answer, ¶ 63. Respondents further asserted that, as reflected in a computer printout from their Employee Information System, which was evidently printed out on "9/24" of an unspecified year, and which listed petitioner's name as "Andrews Dana," gave her social security and file numbers, and contained a notation "DPD" on the line with the date "08/24/09" (Verified Answer, ex. 10), Andrews had been terminated on that date. Additionally, respondents urged that, had it not been for Postelnik's mistake, which was based on a clerical error, Andrews would never have been permitted to work on September 9, 2009 (Little aff. of 3/15/10, ¶ 12; Washington aff., ¶ 15). Accordingly, respondents assert, as their first defense, that Andrews did not acquire tenure by estoppel. Respondents, in their original answer, maintained, as their second defense, that Andrews's request for alternative relief was unfounded because she had received written notice of her discontinuance more than 60 days before her probationary period ended, namely Little's June 1, 2009 letter.
Andrews served a reply in which she asserted that she had acquired tenure by estoppel, since the superintendent never gave her written notice that she would not be recommended for tenure and was terminated, and since she was given a teaching assignment when she reported to duty in September 2009, i.e., after her probationary period had concluded on August 30, 2009. Andrews also suggested that Little's June 1, 2009 termination of employment and denial of completion of probation letter, as well as the executed second page of the Report, were fabricated after the fact.
Respondents then served an amended answer, containing another affidavit from Little in which the allegation, contained in her first affidavit, that she recalled her secretary mailing Andrews Little's June 1, 2009 letter, was deleted. The June letter, which was attached to the original answer, was also absent from the amended answer. Respondents continued to urge in the amended answer that Andrews had not acquired tenure by estoppel, but deleted their second defense that Andrews was not entitled to back pay since she had received written notice of her discontinuance more than 60 days before her probationary period expired. Instead, respondents asserted as a second defense that Andrews's claim for back pay was moot because respondents had then agreed to give her 60 days of back pay covering the 60-day period before her probationary period was to expire, i.e., from July 1 through August 30, 2009, minus an amount for 17 cumulative absence reserve (C.A.R.) days, which she owed to the New York City Department of Education. The amended answer recites that the gross total amount of back pay due Andrews, before payroll deductions, such as taxes, is $8,818.14, and that the Education Department would issue a check to her on or about April 29, 2010. Respondents provided an April 14, 2010 New York City Department of Education printout of a Notice of Salary Adjustment to support that claim. That form document listed petitioner as Dana Andrews and gave her file number. The space for her social security number was left blank.
C.A.R. days are those days which a teacher uses over and above the allotted sick or absence leave days. Essentially the teacher borrows against future leave accruals, but if they leave service before they have accrued the necessary leave, they must pay it back.
Andrews then served amended reply papers in which she maintained that there was no clerical error which caused Little to give her a teaching assignment, because teachers are identified by social security number and by a file number, and that therefore, she acquired tenure by estoppel. Andrews did not specifically address the petition's alternate request for relief; deny that, in the event that she was not entitled to tenure, her claim for back pay was moot; or claim that respondents' calculation of back pay was erroneous.
The Law
Probationary periods are utilized "to determine if appointees are competent, efficient and satisfactory' for purposes of recommending tenure[.]" Matter of McManus v Board of Educ. of Hempstead Union Free School Dist., 87 NY2d 183, 188 (1995). The tenure system is based on the policy that
"the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors."
Ricca v Board of Educ. of City School Dist. of City of NY, 47 NY2d 385, 391 (1979); Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, 117 (1997). To that end, the tenure system is to be broadly construed in a teacher's favor, and even good-faith violations have been forbidden. Speichler, 90 NY2d at 117; Ricca, 47 NY2d at 391.
Under Education Law § 2573 (1) (a), a probationary teacher can be terminated "at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Matter of Frasier v Board of Educ. of City School Dist. of City of NY, 71 NY2d 763, 765 (1988). A tenured teacher, on the other hand, is entitled to retain his or her position if he or she properly behaves and renders efficient and proper service, and can be dismissed solely in accordance with the provisions of Education Law § 3020-a. Matter of Pascal v Board of Educ. of City School Dist. of City of NY, 100 AD2d 622, 623 (2d Dept 1984).
Under Education Law § 2573 (1) (a), "[e]ach person who is not to be recommended for appointment on tenure shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his probationary period." That section further provides that a probationary teacher's services "may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education." The power to terminate a probationary teacher lies with the board or its designee, and not with the principal. Matter of Frasier v Board of Educ. of City School Dist. of City of NY, 71 NY2d at 765, 768.
A teacher can acquire tenure either through appointment ( Matter of Matthews v Nyquist, 67 AD2d 790 [3d Dept 1979]), or by acquiescence and estoppel ( Matter of Mugavin v Nyquist, 48 AD2d 727 [3d Dept 1975], affd for reasons stated below 39 NY2d 1003). In general,
"estoppel' is a bar which precludes a party from denying a certain fact or state of facts exists to the detriment of another party who was entitled to rely on such facts and had acted accordingly. Tenure may be acquired by estoppel 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 [internal citations omitted]."
Matter of McManus v Board of Educ. of Hempstead Union Free School Dist., 87 NY2d at 186-187. To acquire tenure it is necessary that the board, which has failed to take the required action, "with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term [internal quotation marks and citation omitted]." Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 451 (1993); Matter of Walters v Amityville Union Free School Dist., 251 AD2d 590, 591 (2d Dept 1998); Matter of Hagen v Board of Educ. of Cohoes City School Dist., 59 AD2d 806 (3d Dept 1977). "The continued rendition of service by a teacher upon the expiration of a probationary term is but one element involved in establishing tenure by acquiescence and estoppel, for it must also be demonstrated that those services were performed with the knowledge and consent of the board of education [citations omitted]." Id. at 806-807. The petitioner has the burden of demonstrating that he or she has acquired tenure by acquiescence and estoppel. Matter of Dwyer v Board of Educ. of Cazenovia Cent. School Dist., 61 AD2d 859 (3d Dept 1978).
The knowledge that is needed by the board is not that the probationary period is over, but that the teacher is continuing to teach. See Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 118; Ricca v Board of Educ. of City School Dist. of City of NY, 47 NY2d at 385. 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 of employment. Ricca v Board of Educ. of City School Dist. of City of NY, 47 NY2d at 385; Matter of Walters v Amityville Union Free School Dist., 251 AD2d at 591.
The mere failure to provide a teacher with the required amount of notice of an intention not to recommend tenure does not confer tenure. Matter of Brunecz v City of Dunkirk Bd. of Educ. , 23 AD3d 1126 , 1127-1128 (4th Dept 2005). In that instance, the teacher is simply entitled to back pay, with interest from the date of termination( see Ricca v Board of Educ. of City School Dist. of City of NY, 62 AD2d 987, 988 [2d Dept 1978], revd on other grounds, 47 NY2d 385), for each day that the requisite amount of notice was not provided. Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, 276 (1993).
Discussion
Andrews does not claim to have acquired tenure by appointment. Thus, it must be determined whether she acquired it by estoppel. The record on this proceeding is rather troubling, and not only because of the withdrawal of the claim that Andrews received timely written notice of her termination, in the form of Little's June 1, 2009 letter, which allegedly terminated Andrews's services as of August 1, 2009. For example, there is no indication as to whether the Report giving Andrews an unsatisfactory rating was ever sent by Little to the superintendent, or whether the superintendent ever acted on it. No minutes from a Board of Education meeting or any affidavit from the superintendent, a board member or the chancellor has been provided as to any action taken, including whether action was taken to terminate Andrews prior to the expiration of her probationary period. Washington's claim that "the school" had received notification from the superintendent that Andrews had been discontinued ( see Washington aff., ¶ 8), is unhelpful in this regard, because Washington does not purport to have personal knowledge, and there is no information provided as to when the school was notified, what form the notification took, or when the discontinuance took effect.
It is further troubling that no affidavit has been provided from Postelnik, to support the claim that petitioner could not be found under the name "Andrews." This is especially so, since it is clear from the records provided by respondents that Andrews was, in fact, listed under that name. Additionally, Restivo's claim that teachers were listed in the Board of Education database using their first initial and last name, is undercut by the computer records presented by respondents.
The evidence surrounding respondents' counsel's claim that Andrews was terminated on August 24, 2009, based on a computer record which contains the notation "DPD," is unavailing since, aside from the fact that this record appears to have been generated after the fact, no one with knowledge, including Restivo, has explained the meaning of "DPD." Moreover, if Andrews was terminated on August 24, 2009, there is no explanation offered as to why the respondents' pay record listed her as having "ERN" and "PY" dates of August 31, 2009, a date which is not only later than August 24, but is one day after the expiration of Andrews's probationary period, or why she was paid exactly the same amount as for her prior pay period. Also, respondents' claim that Andrews was not paid for her teaching services on September 9, 2009, because she was no longer on the Board of Education's payroll, as allegedly reflected in its printout of February 23 of an unidentified year, is not dispositive because that record does not reveal that Andrews was removed from the payroll on any particular date, and because, at the time Restivo may have looked at the Board of Education's payroll records on September 9 or 10, 2009, Andrews, who was paid twice a month, would not have been entitled to have been paid until about September 15, 2009, assuming that she was still on the payroll.
Additionally, the court notes that respondents have provided contradictory evidence as to the circumstances of the contact between the school and ISC, after Andrews worked on September 9, 2009. If, in fact, Washington again called ISC on September 10, 2009, it is unclear why she would have done so when she had already been told the day before that Andrews had not been discontinued and was therefore cleared to work.
Notwithstanding the foregoing, Andrews has not met her burden of showing that she is entitled to tenure by estoppel. The fact remains that Andrews, who had admitted having been orally informed that she would be discontinued, and who signed the Agreement acknowledging that the determination of whether to grant her tenure would be based on her pre-August 28, 2008 evaluation, as well as on a post-Agreement evaluation, which latter unsatisfactory evaluation Andrews received, was promptly advised by Little, on September 8, 2009, that she should not be at school because she had been terminated. Andrews was then permitted to work solely because Washington was told, by Postelnik, that Andrews had not been discontinued. Even assuming, for argument's sake, that Andrews had not been discontinued in August 2009, she has the burden of establishing that her services were performed on September 9, 2009 with the knowledge and consent of the board, a burden which she has not met, as her only proof regarding the Board's knowledge and consent is the conclusory allegation in her petition. Moreover, even crediting Andrews's version, that the Board of Education terminated her on or about September 11, 2009 (Petition, ¶¶ 15-16), under the circumstances presented, that would not cause her to acquire tenure by estoppel. See Matter of Hagen v Board of Educ. of Cohoes City School Dist., 59 AD2d at 807 (no tenure by estoppel for teacher who taught for a few days after his probationary period ended, where prompt action was taken to discharge teacher as soon as his presence was discovered). Moreover, as indicated above, any failure to provide Andrews with notice is insufficient to confer tenure by estoppel. Matter of Brunecz v City of Dunkirk Bd. of Educ. , 23 AD3d 1126 , 1127-1128
Since Andrews does not dispute, in her amended reply, that her request for alternate relief for back pay is now moot and has not specifically demanded pay for working on September 9, 2009, and since no legal basis for her claimed entitlement to legal fees can be ascertained ( see e.g. Matter of Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist. , 14 NY3d 729 , 732), the instant proceeding must be dismissed.
According, it is
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements to respondents.