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Second Circuit Holds Extension of Probationary Employment Can Be Adverse Employment Action


Second Circuit Holds Extension of Probationary Employment Can Be Adverse Employment Action

July 23, 2015

In Tolbert v. Smith, No. 14-1012-cv, 2015 U.S. App. LEXIS 10656 (2d Cir. June 24, 2015), the Second Circuit issued a decision holding that extending a probationary term instead of granting a teacher tenure constitutes an adverse employment action sufficient to support a claim for race discrimination — the fact that the teacher is provided with another year of probationary employment notwithstanding. The court noted that offering a fourth year of probation is intertwined with a denial of tenure, which amounts to the “denial of a material improvement in the conditions of the plaintiff’s employment” — since the benefits of having received tenure are denied, including benefits such as termination only for cause. Accordingly, such a refusal of a material employment benefit for a discriminatory reason is violative of the civil rights statutes. 

The court also held that discriminatory remarks, when combined with departures from procedural regularity (such as failure to collect all available information in regard to the tenure analysis, and reliance on recent negative evaluations in isolation, while ignoring prior, positive evaluations), can provide sufficient evidence of discriminatory intent to make out a prima facie case of discrimination.   

For school districts, the significance of this ruling is that they cannot necessarily avoid civil rights claims by extending probationary employment — thereby keeping the possibility of tenure an option going forward — instead of granting a teacher tenure. Further, it is critical to apply consistent procedures in the course of engaging in the tenure review process.

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