MASSING, J.
Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of 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
Background.
Asserting that she possessed professional teacher status by
On February 18, 2014, the district filed the instant complaint in the Superior Court against Bilbo and the union,
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.
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,
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 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
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 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:
Ibid.
Here, too, treating the question of Bilbo's status separately from the propriety of her dismissal presents the risk of two
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 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
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 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 teacher
Given "the strong public policy favoring arbitration," Lyons, 440 Mass. at 77, quoting from Plymouth-Carver Regional 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
"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 reversed, and a new judgment shall enter on all counts of the complaint and counterclaim consistent with this opinion.
So ordered.