In the Matter of SATANYA TRIANA, Appellant, v BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK et al., Respondents.
Supreme Court, Appellate Division, First Department, New York
(January 31, 2008)
[849 NYS2d 569]
Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), entered June 6, 2006, denying the petition and dismissing the proceeding brought pursuant to
Petitioner Satanya Triana was initially appointed as a regular substitute teacher of social studies in September 1986. From that date until September 9, 2005, a period of almost 20 years, she served as either a regular substitute teacher of social studies or a probationary teacher of “common branches,” which are subjects generally taught to elementary school children. As specifically relevant to this appeal, petitioner was appointed as a probationary teacher of common branches on August 25, 2003, with a three-year probationary period. Immediately prior to such appointment, she had served in the capacity of a regular substitute teacher of social studies for eight years.
One year into her probationary period, petitioner began having problems with attendance and punctuality. Previously, she had received a written attendance policy from the school principal, and, in a letter dated October 20, 2004, she was notified by the principal that her excessive lateness for the first two months of the 2004 school year was unacceptable. The letter noted that petitioner had been late five times and absent four times during September and October 2004, and warned that a failure to improve could lead to an “Unsatisfactory” rating.
Between October 2004 and March 2005, petitioner was warned at least six additional times and had two meetings with her principal and union representative, during which she alleged that her lateness was the result of child care problems arising from the fact that the school bus was often late in picking up her children. By March 2005, petitioner had been late 24 times and absent on 13 days, within a seven month period. On June 28, 2005, petitioner received an unsatisfactory rating for the 2004-2005 school year on the basis of her poor attendance record.
By letter dated July 1, 2005, the community superintendent of the New York City Department of Education (DOE) informed petitioner that “on August 5, 2005, I will review and consider whether your services as a probationer [will] be discontinued and your license terminated as of the close of business August 5, 2005.” Petitioner was further advised that she could submit a written response by July 29, 2005. After this letter was returned to DOE as unclaimed, the community superintendent sent a
By letter dated September 8, 2005, the community superintendent informed petitioner that she “affirm[ed] your Discontinuance of Probationary Service and license termination effective close of business September 9, 2005.” The letter further noted that petitioner had “the right to appeal this decision” within 15 days of this letter.
Petitioner filed an administrative appeal in September 2005, and filed the instant
Petitioner‘s argument for tenure was based on the doctrine of “tenure by estoppel,” which may be invoked “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” (Matter of McManus v Board of Educ. of Hempstead Union Free School Dist., 87 NY2d 183, 187 [1995]). Petitioner alleges that she acquired tenure by estoppel because she was neither granted nor denied tenure prior to the expiration of her probationary period on June 30, 2004. She asserts that, although her three-year probationary period was initially set to expire on August 25, 2006, such period was reduced by two years pursuant to
In its answer, DOE argued that the proceeding was time barred because it was commenced more than four months after DOE‘s determination, and that petitioner was not entitled to Jarema credit for her prior service as a substitute teacher.
The
Petitioner argues that the
Here, petitioner was informed in a September 8, 2005 letter from DOE that her employment was terminated as of September 9, 2005. Thus, her commencement of this
Nor is the proceeding subject to dismissal on the ground of laches. The court‘s analysis hinged on its treatment of the petition as seeking mandamus to compel relief, which requires a demand and refusal by the respondent to perform a duty enjoined by law (see Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430, 442 [1959]). However, in our view, the gravamen of the petition is a challenge to DOE‘s determination to terminate petitioner‘s employment, which is more in the nature of certiorari to review. For purposes of this case, however, the distinction is immaterial because, even if the petition were properly characterized as seeking mandamus relief, the law recognizes that the petition and respondents’ answer can be
We now consider the tenure-by-estoppel claim for the first time, and conclude that petitioner has established her status as a tenured teacher. “The
DOE, however, asserts an additional requirement for obtaining Jarema credit. It claims that the service as a regular substitute teacher must be in the same tenure area as that for which the teacher ultimately received a probationary appointment. Thus, DOE argues, petitioner‘s substitute service did not meet this test because it was in the tenure area of social studies, not common branches. DOE cites no case law discussing this requirement, but relies on the statutory language of
DOE asserts that the above-quoted language requires that the “regular substitute” service must be in “the same subject” as the probationary appointment in order to qualify the teacher for Jarema credit. In our view, this reading of the statutory language is debatable, since it could just as easily be argued that the requirement of teaching the same subject applies only
Assuming, without deciding, that a requirement of service in the same subject exists with respect to regular substitute teachers, we reject DOE‘s argument that petitioner‘s service as a sixth-grade teacher of social studies is outside the common branches tenure area. In support of its position, DOE notes that the State Board of Regents Rules do not include social studies in the definition of common branch subjects: “any or all of the subjects usually included in the daily program of an elementary school classroom such as arithmetic, civics, visual arts, elementary science, English language, geography, history, hygiene, physical activities, practical arts, reading, music, writing, and such other similar subjects” (
Although it is true that this section of the regulations does not expressly list social studies as one of the common branch subjects, DOE fails to discuss the catchall provision at the end. From this clause, it is clear that the list of common branch subjects in this section is not intended to be exclusive, and, in our view, social studies could easily qualify as one “such other similar subject[ ].”
In addition,
The case law in the area of tenure further supports the conclusion that petitioner‘s service as a regular substitute teacher qualifies her for Jarema credit. Indeed, the Court of Appeals has consistently made clear that “tenure rules should be read broadly in favor of the teacher and that function rather than label should control when a probationary period commences” (Speichler, 90 NY2d at 117). For instance, in Speichler, the petitioner teacher sought Jarema credit for 11 months of service as a “per diem” substitute teacher in order to establish her
Similarly, in McManus (87 NY2d at 187-188), the Court held that a school district‘s label “acting” principal did not negate the fact that the petitioner was performing probationary service as a principal, for which she was entitled to credit. Although McManus did not involve Jarema credit, which is available only to teachers, the Court found that the governing tenure principle was the same, namely, that the district was improperly denying the petitioner credit toward her probationary period by relying on a temporary label, instead of on her actual work functions.
Likewise, in Ricca v Board of Educ. of City School Dist. of City of N.Y. (47 NY2d 385, 391 [1979]), the Court held that “[a] school district may not avoid strict application of the statutory scheme for granting tenure to qualified and experienced teachers by the stratagem of unduly delaying formal appointment of a teacher to a position which that teacher is in fact already filling.” Significantly, the Ricca Court further stated that, even if some of the teacher‘s probationary service was outside of the subject area of his appointment, it was irrelevant “because the decision of a probationary teacher to accept a temporary assignment out of position in order to accommodate the needs of the school district does not serve to disrupt that teacher‘s probationary period, nor may it lead to an increase in the length of that probationary period” (id. at 394).
We also point to additional evidence that tenure areas in this State‘s educational system are divided primarily by grade area, and not specific subjects, at least at the elementary school level. As noted, state rules provide that teachers of common branch subjects in grades one through six will generally be deemed to serve in the elementary tenure area (
The facts here show that petitioner had consistently taught social studies to sixth graders for approximately 17 years prior to this probationary appointment in common branches. Moreover, she had previously been appointed as a probationary teacher of common branches for a six-year period (1989-1995), even though DOE actually assigned her to teach social studies to sixth graders during the entire time. Thus, the distinction now drawn by DOE with respect to tenure areas is one that DOE itself has not followed in the past.
Accordingly, we conclude that petitioner‘s service as a regular substitute teacher of sixth grade social studies qualifies her for Jarema credit, thereby bringing the expiration date of her probationary period as a teacher of common branches to June 30, 2004. Since DOE failed to grant or deny petitioner tenure before that date, she has acquired tenure by estoppel. As a tenured teacher, petitioner could not be terminated without first being subject to formal disciplinary proceedings (see
Given this holding, it is unnecessary to consider petitioner‘s alternative claims for pay. We take no position on whether petitioner‘s termination as a tenured teacher would be justified based on the allegations of poor attendance. Concur—Lippman, P.J., Marlow, Williams and Gonzalez, JJ.