NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
15-P-906 Appeals Court
PLYMOUTH PUBLIC SCHOOLS vs. EDUCATION ASSOCIATION OF PLYMOUTH
& CARVER & another.1
No. 15-P-906.
Plymouth. April 11, 2016. - June 30, 2016.
Present: Cypher, Katzmann, & Massing, JJ.
School and School Committee, Professional teacher status,
Maternity leave, Arbitration, Termination of employment.
Arbitration, Arbitrable question, School committee. Public
Employment, Paid leave, Termination. Family & Medical
Leave Act.
Civil action commenced in the Superior Court Department on
February 18, 2014.
The case was heard by Frank M. Gaziano, J., on motions for
summary judgment.
Matthew D. Jones (Ashley F. Call with him) for the
defendants.
Michael J. Long for the plaintiff.
MASSING, J. Defendant Kristen Bilbo taught in the
plaintiff Plymouth Public Schools (district) over the course of
1
Kristen Bilbo.
2
five consecutive school years. She took maternity leave during
two of them. The district tendered a notice of nonrenewal at
the end of the fifth year. Bilbo asserts that her service,
interrupted only by her leave permitted under the Family and
Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA), entitles
her to professional teacher status,2 giving her rights including
arbitration of her dismissal.3 The district contends that Bilbo
is not entitled professional teacher status or arbitration
because she did not serve three consecutive full years. We
conclude that whether Bilbo has attained professional teacher
status is for the arbitrator to decide.
Background.4 Bilbo worked full-time as a special education
teacher at Plymouth North High School starting on March 10,
2008, through the end of the school year in June, 2013. She
2
"[A] teacher, school librarian, school adjustment
counselor, school nurse, school social worker or school
psychologist who has served in the public schools of a school
district for the three previous consecutive school years shall
be considered a teacher, and shall be entitled to professional
teacher status as provided in section forty-two." G. L. c. 71,
§ 41, as amended through St. 2006, c. 267.
3
"A teacher with professional teacher status may seek
review of a dismissal decision within thirty days after
receiving notice of his dismissal by filing a petition for
arbitration with the [C]ommissioner [of Elementary and Secondary
Education]." G. L. c. 71, § 42, as appearing in St. 1993,
c. 71, § 44.
4
We draw our statement of facts from the parties' joint
statement of uncontested facts and exhibits submitted with their
cross motions for summary judgment.
3
took maternity leave during her first and fourth full years as a
teacher, for sixty days in 2009 and for fifty-six days in 2012.
Bilbo's leave was authorized under the FMLA. She was paid
during both absences using accumulated sick time and a sick-
leave bank available under the governing collective bargaining
agreement. Toward the end of her fifth year of teaching, by
letter dated May 31, 2013, the district provided Bilbo with
notice that she would not be reappointed to a teaching position
for the next school year.5 The letter explained, "You are not
being appointed to a teaching position based upon the
recommendations of your supervising principal and program
manager and the concerns about continuity of instruction and the
education of our students."
Asserting that she possessed professional teacher status by
virtue of her five consecutive school years of service,6 Bilbo,
5
The letter cited G. L. c. 71, § 41, a portion of which
provides, "A teacher without professional teacher status shall
be notified in writing on or before June fifteenth whenever such
person is not to be employed for the following school year.
Unless such notice is given as herein provided, a teacher
without such status shall be deemed to be appointed for the
following school year." Id., as appearing in St. 1993, c. 71,
§ 43.
6
Bilbo has not asserted the alternative means of obtaining
professional teacher status: "The superintendent of [a]
district, upon the recommendation of the principal, may award
such status to any teacher who has served in the principal's
school for not less than one year or to a teacher who has
obtained such status in any other public school district in the
4
through the defendant Education Association of Plymouth and
Carver (union), timely petitioned the Commissioner of Elementary
and Secondary Education (commissioner) for arbitration of her
status. The district opposed her request, arguing that she
lacked professional teacher status and was therefore ineligible
for arbitration. The commissioner on January 9, 2014, forwarded
Bilbo's petition to the American Arbitration Association, noting
that "before addressing the merits of the dispute, the
arbitrator should first address the question of arbitrability
raised by the [district]."
On February 18, 2014, the district filed the instant
complaint in the Superior Court against Bilbo and the union,7
together with a motion for a preliminary injunction seeking to
stay the arbitration. After a hearing, a judge denied the
preliminary injunction motion on March 4, 2014, reasoning that
G. L. c. 71, § 42, and our decision in Turner v. School Comm. of
Dedham, 41 Mass. App. Ct. 354 (1996), mandated "that arbitration
be the sole method used to resolve disputes concerning teacher
termination in this Commonwealth, including disputes in which a
teacher's status as a professional teacher is questioned."
commonwealth." G. L. c. 71, § 41, as amended by St. 1996,
c. 450, § 127.
7
The complaint's three counts sought a stay of the
arbitration, a declaration that Bilbo did not have professional
teacher status, and a declaration that Bilbo's nonrenewal by the
district was proper.
5
Bilbo and the union next moved to dismiss the complaint.
While the motion to dismiss was pending, the parties proceeded
to arbitration, submitting the matter to the arbitrator in the
form of a joint statement of facts and legal memoranda in lieu
of a formal hearing. Before the arbitrator issued a decision,
however, a second judge denied the defendants' motion to
dismiss, reasoning that the question of Bilbo's professional
teacher status was for the court and not the arbitrator to
decide. The arbitrator agreed not to issue his decision pending
final resolution of the litigation.8
On December 17, 2014, the parties simultaneously filed
cross motions for summary judgment. After a hearing, a third
judge allowed the district's motion and denied Bilbo's and the
union's motion. Judgment entered for the district, declaring
that Bilbo did not have professional teacher status at the time
the district notified her of nonrenewal and that the nonrenewal
did not violate the FMLA or the Massachusetts parental leave
statute, G. L. c. 149, § 105D. The judgment also ordered a
permanent stay of the arbitration. Bilbo and the union timely
appealed from the judgment.
8
Bilbo and the union then filed an answer and a
counterclaim in three counts: to compel arbitration, to confirm
any award issued by the arbitrator, and for a declaration that
arbitration is the exclusive forum for determining Bilbo's
professional teacher status.
6
Arbitration of professional teacher status. The first
issue before us -- and the only issue we reach -- is whether the
question of Bilbo's professional teacher status is for an
arbitrator or a judge to decide. As the judge who denied the
district's motion to preliminarily enjoin arbitration aptly
noted, there is a "chicken and the egg nature" to this question.
A teacher who teaches for three consecutive school years in
a public school district of the Commonwealth and is not tendered
written notice of nonrenewal by June 15 of the third year is
entitled to "professional teacher status" under G. L. c. 71,
§ 41. Professional teacher status confers certain rights,
including a degree of protection from dismissal,9 the right to
seek review of a dismissal decision through arbitration, and, in
the case of layoffs, the right to "bump" teachers without such
status. See G. L. c. 71, § 42.
If Bilbo's five school years of service, interrupted only
by maternity leave in year one and year four, entitled her to
professional teacher status, then the district's action amounted
9
"A teacher with professional teacher status . . . shall
not be dismissed except for inefficiency, incompetency,
incapacity, conduct unbecoming a teacher, insubordination or
failure on the part of the teacher to satisfy teacher
performance standards developed pursuant to section thirty-eight
of this chapter or other just cause." G. L. c. 71, § 42, as
appearing in St. 1993, c. 71, § 44. Moreover, school principals
"must follow strict procedural and substantive provisions before
firing a teacher with professional status." School Comm. of
Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 761
(2003).
7
to a "dismissal" under § 42, triggering the procedural and
substantive rights that accompany professional teacher status --
including arbitration. If not, then the district's action was
simply a "nonrenewal" under § 41. See note 5, supra. "A
dismissal is not the same as a nonrenewal of a contract."
Laurano v. Superintendent of Schs. of Saugus, 459 Mass. 1008,
1009 (2011), quoting from Downing v. Lowell, 50 Mass. App. Ct.
779, 782 (2001). If Bilbo "was not dismissed from her
position," then "she was not entitled to the safeguards provided
in G. L. c. 71, § 42," Laurano, supra -- including arbitration.
Thus, the threshold question whether Bilbo has professional
teacher status is determinative of whether she is entitled to
arbitration of any dismissal.
We have previously held that this question is within the
scope of the arbitrator's authority. The appeal in Turner v.
School Comm. of Dedham, 41 Mass. App. Ct. 354 (1996), presented
nearly the mirror image of the case now before us. After
receiving notice that she was being laid off by the Dedham
school where she taught, Pauline Turner filed a complaint in
Superior Court seeking a declaration that she had professional
teacher status and requesting an order that the school reinstate
her and "bump" another teacher. Id. at 355. The school
defendants filed a motion to dismiss, arguing that Turner's sole
8
remedy to challenge her dismissal was through arbitration under
G. L. c. 71, § 42. Turner, supra.
This court agreed, stating that the Education Reform Act of
1993, see St. 1993, c. 71, "t[ook] away the right of teachers to
challenge their dismissal by filing an action in the Superior
Court," and instead "establish[ed] arbitration as the sole
remedy for all dismissals." Turner, supra at 357-358. Much
like the district argues now, Turner argued then that the
Legislature's requirement of arbitration of dismissals did not
prevent, as a threshold matter, "filing a complaint in the
Superior Court seeking a declaration that he or she has attained
professional teacher status." Id. at 358. We rejected that
argument:
"We disagree with Turner's argument because such an action
would result in a Superior Court judge having to first make
a declaration as to the status of the dismissed teacher,
and then, if the judge declares that the teacher has
acquired that status, the matter being remanded for
arbitration as to his or her 'bumping rights.' We do not
think that the Legislature intended to establish two
successive forms of review in two different forums for
dismissed teachers with professional status."
Ibid.
Here, too, treating the question of Bilbo's status
separately from the propriety of her dismissal presents the risk
of two successive forms of review in two different forums. The
district makes a futile attempt to distinguish Turner by arguing
that the concern with two successive forms of review is not
9
present here because the only question to be determined is
whether Bilbo enjoys professional teacher status. While it is
true that a judicial determination that Bilbo does not have
professional teacher status would be the end of the matter --
she would not be entitled to arbitration of the grounds for her
dismissal -- the same was true in Turner. A judicial
determination that Turner did not have professional teacher
status would not have required a remand to determine her bumping
rights. However, if a judge were to declare that Bilbo did have
professional status, the merits of any dismissal decision would
be for an arbitrator to review.
The decision in Lyons v. School Comm. of Dedham, 440 Mass.
74 (2003), reinforces our decision in Turner. After this court
affirmed the dismissal of Turner's complaint, she and another
Dedham teacher, Anne Lyons, had separate arbitration proceedings
to determine their professional teacher status. Id. at 76. The
arbitrators issued a joint decision, concluding that Turner and
Lyons were not "teachers" within the meaning of G. L. c. 71,
§§ 41 and 42, because their employment status as "Chapter I
teachers" -- hired under a federally funded program providing
supplemental instruction to designated students in reading and
mathematics -- did not equate with the qualifications and
characteristics of classroom teachers in the "Unit A" collective
bargaining unit. Id. at 75-77. Lyons and Turner (again) filed
10
a complaint in Superior Court, seeking to vacate the
arbitrators' decision and for a declaration that they were
"teachers" within the meaning of the statute. Id. at 77. A
judge of the Superior Court vacated the arbitration award,
ibid., which the Supreme Judicial Court reinstated. Id. at 82-
83.
The court rejected the argument that the determination of
professional teacher status under G. L. c. 71, § 42, was outside
the jurisdiction of the arbitrators and reserved for the courts.
Id. at 79-82. Relying on School Dist. of Beverly v. Geller, 435
Mass. 223, 230 (2001) (Cordy, J., concurring) ("[T]he
responsibility for interpreting the meaning of G. L. c. 71,
§ 42, and the scope of the arbitrator's authority thereunder
remains with the court"), Turner and Lyons argued that "the
judiciary is responsible for independently determining whether
[they] are teachers under G. L. c. 71, §§ 41 and 42." Lyons,
supra at 81. The court disagreed, observing that G. L. c. 71
"does not define 'teacher' in the context of delineating who is
eligible for 'professional teacher status,'" ibid., and
concluding that "the arbitrators had the authority to determine
whether Lyons and Turner were teachers," id. at 82.
As an arbitrator has the authority to determine whether a
person "shall be considered a teacher" within the meaning of
G. L. c. 71, § 41, we perceive no reason why an arbitrator does
11
not equally have the authority to determine whether a person
"has served in the public schools of a school district for the
three previous consecutive school years" within the meaning of
the same sentence of the same statute. See note 2, supra.
In addition, we have held that an arbitrator may properly
consider a similar question: whether a lengthy break in service
deprives a teacher of professional teacher status. In Goncalo
v. School Comm. of Fall River, 55 Mass. App. Ct. 7, 7-8 (2002),
a tenured teacher10 stopped teaching after a dispute with school
officials, which, she alleged, was related to her union
activities. Nine years later, the school sent her a letter
formally dismissing her as a teacher. Id. at 8. The teacher
sought to arbitrate her dismissal, but the arbitrator declined
to consider whether the school's refusal to offer her a contract
during those nine years was in continuing retaliation for her
union activities, deciding instead that she was not entitled to
arbitration because her break in service caused her to lose her
professional teacher status. Id. at 8-9. We confirmed the
arbitrator's decision, concluding that the arbitrator did not
exceed his authority. Id. at 10-11.
Given "the strong public policy favoring arbitration,"
Lyons, 440 Mass. at 77, quoting from Plymouth-Carver Regional
10
The plaintiff had achieved tenure under G. L. c. 71,
§ 41, as it read before passage of the Education Reform Act in
1993. Goncalo, 55 Mass. App. Ct. at 9.
12
Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), the
preference for arbitration expressed in the Education Reform Act
of 1993, and our prior decisions, we hold that the issue whether
Bilbo has professional teacher status must be decided by an
arbitrator.
Additional considerations. Both parties contend that
important public policy considerations require a determination
in their favor on the issue of professional teacher status.
Bilbo and the union contend that the FMLA forbids penalizing
pregnant employees, or any other employee who takes FMLA-
qualifying leave, by putting them in a worse position than if
they had not taken leave. The district maintains that service
time can be measured only in full-year increments, and that
three uninterrupted years of review are necessary for schools to
properly evaluate teachers and make staffing decisions for the
next year. See G. L. c. 71, § 41 ("A teacher without
professional teacher status shall be notified in writing on or
before June fifteenth whenever such person is not to be employed
for the following school year" [emphasis supplied]).11
11
A case interpreting the tenure statute prior to amendment
by the Education Reform Act of 1993 held that "[t]he time spent
on maternity leave [under G. L. c. 149, § 105D,] may not be
counted towards the amount of time required for tenure," but at
the same time, that maternity leave "does not interrupt the
consecutiveness of [the teacher's] service except as to the
period of time consumed by the leave." Solomon v. School Comm.
of Boston, 395 Mass. 12, 18-19 (1985). The court left open "the
13
"An arbitration award that offends public policy 'is beyond
the arbitrator's powers and is therefore subject to vacation
under G. L. c. 150C, § 11(a)(3)." Lyons, 440 Mass. at 79,
quoting from Massachusetts Hy. Dept. v. American Fedn. of State,
County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995).
However, "because the public policy 'doctrine allows courts to
by-pass the normal heavy deference accorded to arbitration
awards and potentially to "judicialize" the arbitration process,
the judiciary must be cautious about overruling an arbitration
award on the ground that it conflicts with public policy.'"
Bureau of Special Investigations v. Coalition of Pub. Safety,
430 Mass. 601, 604 (2000), quoting from E.I. DuPont de Nemours &
Co. v. Grasselli Employees Indep. Assn. of E. Chicago, 790 F.2d
611, 615 (7th Cir.), cert. denied, 479 U.S. 853 (1986). Because
of the view we take on the threshold question of arbitration, we
decline to address the parties' public policy arguments, which
are in any event unripe at this juncture.
Conclusion. The defendant Bilbo is entitled to arbitration
of her professional teacher status and, if the arbitrator
determines that she enjoys such status, ultimately of the merits
of any dismissal. The judgment of the Superior Court is
question whether such teacher must serve an entire additional
year to compensate for the incomplete school year," id. at 19, a
question that appears to have remained open these thirty years.
14
reversed and a new judgment shall enter on all counts of the
complaint and counterclaim consistent with this opinion.
So ordered.