April 11, 2016
action commenced in the Superior Court Department on February
motion to dismiss was heard by Robert J. Kane, J., and The
case was heard by Frank M. Gaziano, J., on motions for
Matthew D. Jones ( Ashley F. Call with him) for the
Michael J. Long for the plaintiff.
Cypher, Katzmann, & Massing, JJ.
N.E.3d 685] 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
her leave permitted under the Family and Medical Leave Act,
29 U.S.C. § § 2601 et seq. (FMLA), entitles her to
professional teacher status, giving her rights
including arbitration of her dismissal. 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
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 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 [53 N.E.3d
686] 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. 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."
that she possessed professional teacher status by
virtue of her five consecutive school years of
service, Bilbo, 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]."
February 18, 2014, the district filed the instant complaint
in the Superior Court against Bilbo and the
union, 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, 670 N.E.2d 202 (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."
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 ...