New York State School Boards Association

After maternity leave, teacher gained tenure by estoppel, court rules

by Jeffrey Mongelli

On Board Online • August 10, 2015

By Jeffrey Mongelli
Senior Staff Attorney

If a probationary teacher takes an unpaid leave, such as a maternity leave, how does that affect the teacher's probationary term? The unpaid leave may be excluded from the computation of the probationary period by using a "workday-to-calendar" calculation, according to the Appellate Division of State Supreme Court, Second Department, in Matter of Brown v. Board of Educ. of Mahopac CSD.

In other words, for each workday missed due to an unpaid leave, the probationary period is to be extended by the corresponding number of consecutive calendar days, including weekends, school break periods and holidays. According to the Second Department, it is not correct for a district to increase the probationary period by using either a "workday-to-workday" or calendar day-to-calendar day methodology.

A teacher acquires tenure by estoppel when a probationary period has been completed and the school board has not taken action to grant or deny tenure. In this case, the court determined that Brown had worked beyond the end of her probationary period and had gained tenure by estoppel.

The court also ruled that the district violated an agreement in which the superintendent had agreed to expunge certain records from the teacher's personnel file and the teacher and the teacher's union had agreed to withdraw certain grievances they had filed.

The school district claimed that it was not obligated to abide by the terms of the agreement because it was not approved by the school board. But the court ruled that the agreement was binding upon the district and noted generally that, pursuant to the Taylor Law, agreements negotiated between a public employer, by its chief executive officer, and a union are enforceable upon the public employer to the extent that the provisions thereof do not require legislative approval (see article). To the extent the agreement pertained only to the maintenance of the teacher's personnel file and did not require legislative action by the board, the superintendent, as chief executive officer, was authorized to enter into the agreement without board approval.


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