Is a teacher, whose probationary term expired while sitting in the rubber room, entitled to a 3020-a hearing before being terminated?

Yes. Petitioner, a special education teacher from 2011 through June 2016  was reassigned to a “rubber room” pending an investigation in March 2015. She claims that although some of the allegations against her were substantiated, she was placed back in a teaching position on March 7, 2016 and went on leave until the end of the school year in April 2016. She was terminated from employment, without a hearing, on June 15, 2016.

The DOE argued that although her extension of probation had lapsed she was still on probation since she was not preforming teaching duties in the rubber room.

The Court rejected the DOE’s argument holding that tenure by estoppel applied and the petitioner could not be dismissed without a 3020-a hearing. While the Court ordered that the petitioner be restored to her position with back pay it noted that there were serious allegations against the petitioner and her ruling should not be misinterpreted to be seen as protecting an allegedly incompetent teacher.

In the Matter of the Application of CHERYL WILSON, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent. Docket No. 158592/2017, Motion Seq. No. 001.2017 NY Slip Op 31273(U), Supreme Court, New York County. June 12, 2017.

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