Will the claim that a teacher had child care issues and her principal evidenced bias cause a probation termination to be reversed?

No. Although she had a prior satisfactory teaching history before she went off payroll, the appellant in this matter was placed on probation. While on probation she had observation and attendance issues. The teacher claimed that her own child care issues and her principal’s animus toward her, due to the child care issues, were the source of her poor observations. She also sought to withdraw her previous resignation which she found out before her termination that she did not need to be on probation.

The court below found that the court challenge to the teacher’s attempt to withdraw her previous resignation was untimely. Additionally the DOE’s termination was not based on any prejudice or bias and was not made in bad faith as the need of the orderly running of the school outweighed her child care issue.

The Appellate Division, First Department, affirmed.

This case must be seen in the context of the procedural position it occured. While discrimination can and is often the basis of bad faith in this instance the requirement that a teacher not be excessively absent will not be lessened, necessarily, due to child care issues. Had the teacher filed her proceeding challenging her prior resignation she might not have been terminated as she would have her tenure where termination is legally more difficult. Tenure restoration after resignation can generally be restored within 5 years. See Chancellor’s Regulation C-205.

In the Matter of Bababunmi Adelana, Appellant, v. New York City Department of Education et al., Respondents. 194 A.D.3d 463 (2021)143 N.Y.S.3d 5402021 NY Slip Op 02976, Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2021.

Will a teacher who maintains that her probationary period begins upon her appointment and not the date she receives her professional license prevail?

Yes. Carolina Castro began her appointment to teach science at DeWitt Clinton High School on September 3, 2003. From 2003 until 2009 she received satisfactory reviews and obtained her professional certification on September 1, 2009.

The DOE maintained that her probation began in 2009 and she received tenure effective September 1, 2013. Castro maintained that her seniority rights would be affected if the later date was used for her tenure date and she filed an Article 78 in Supreme Court.

The DOE moved to dismiss as the issue was moot since she had obtained tenure.

Justice Eileen A. Rakower granted the petition finding that the DOE action had no rational basis. Rakower did not deal with the mootness issue even though it does not appear that tenure is in any way affected by seniority.

Castro v. DOE (Decided 9/11/13)