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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.
