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Plymouth Public Schools v. Education Association of Plymouth & Carver

Appeals Court of Massachusetts, Plymouth

June 30, 2016

Plymouth Public Schools
v.
Education Association of Plymouth & Carver & another. [1]

         Argued April 11, 2016

          Civil action commenced in the Superior Court Department on February 18, 2014.

         A motion to dismiss was heard by Robert J. Kane, J., and 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.

         Present: Cypher, Katzmann, & Massing, JJ.

          OPINION

          [53 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 only by

Page 644

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 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.[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

Page 645

virtue of her five consecutive school years of service,[6] 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]."

         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, 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."

         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 ...


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