COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Michael Cave,

Petitioner

v. Docket No. CR-07-1016

Massachusetts Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Daniel S. O'Connor, Esq.

Shaevel & Krems, LLP
141 Tremont Street
Boston, MA 02111

Appearance for Respondent:

James C. O'Leary, Esq.

Massachusetts Teachers'
Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G. L. c. 32, § 16(4), the Petitioner, Michael Cave, is appealing the October 26, 2007 decision of the Respondent, Massachusetts Teachers' Retirement System (MTRS), denying his request for creditable service under G. L. c. 32, § 3(4) for his work at the University of Connecticut (UConn) for three semesters during 1969 - May 1970. (Ex. 2) The appeal was timely filed. (Ex. 1)

A hearing was held January 9, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, § 4H. Various documents are in evidence. (Exs. 1 - 11. Exhibit 10 was filed post-hearing, and is comprised of UConn Employment Authorization forms for Dr. Cave's employment as a Graduate assistant. Exhibit 11 was filed post-hearing, and is a few letters of the UConn President to Dr. Cave informing him that the Board of Trustees had appointed him a Graduate assistant. Added to Exhibit 6 is a January 7, 2008 letter to the MTRS from James G. Henkel, Ph.D., of the UConn Research and Graduate Education Office and an Associate Dean of the UConn Graduate School, addressing policies in effect for Graduate assistants.) The parties entered into some stipulations of fact and filed pre-hearing memoranda. ("A") Dr. Cave sought an expedited hearing. ("B") One tape was used. Dr. Cave testified. Both parties filed briefs by February 26, 2008 when the record closed.

FINDINGS OF FACT

1. Michael Cave, d.o.b. 10/31/46, is a current member of the MTRS in his position as Department Supervisor in the Needham Public Schools. He has been with the Needham Public Schools since 2002. Dr. Cave became a member of the MTRS with his employment as a teacher in the Wellesley Public Schools from 1973-1980. He was a department head in the Acton Public Schools during the 1980-1981 school year. He became a K-12 advisor in the languages department of the Andover Public Schools during the 1981-1982 school year. He became a teacher in the Newton Public Schools the 1982-1983 school year. He taught in the Auburn Public Schools the 1983-1984 school year. He taught at a private school 1984-1989. He taught at the Nashoba Regional High School the 1989-1990 school year. He then left teaching to work in the insurance industry, but returned to teaching in a private school out of state for the 1991-1992 school year. He taught in the Medfield Public Schools for the 1992-1993 school year, and continued teaching there until he began working for the Needham Public Schools. (Testimony)

2. Dr. Cave received his B.A. degree in June 1968 from South Connecticut State College. He majored in Spanish and minored in Italian. He entered a graduate program in languages at UConn in September 1968 to get his M.A. in Spanish, and then his doctorate by June 1972. (Testimony)

3. Dr. Cave had the option to do a full academic program toward his graduate school degrees, or he could do a half academic program and half employment program as a graduate assistant, teaching introductory Spanish classes to UConn undergraduates. He decided to do the half academic/half employment program. He began this work for the semester that started in September 1968. He worked doing research, and supervising an undergraduate language laboratory. Starting with the Spring 1969 semester in February, Dr. Cave taught two introductory level undergraduate Spanish courses. The introductory courses were numbered 181, 182, 183, and 184. He worked at least half the time of a regular professor who typically taught three or four courses per semester. He worked independently and did not work under the direct supervision of a professor . He devised, administered, and graded tests and quizzes. He did not have his grading overseen or approved by a professor. He created and assigned homework. He provided office hours for the undergraduate students just like the professors did. He and the other graduate assistants determined what textbook and syllabus to use, but used the standard textbook the regular professors were using to teach the same courses. This textbook was written by one of the UConn professors. Dr. Cave taught the two classes during the day between 8:00 AM and 4:00 PM. (Exs. 5, 7, 8, 9, 10 & 11. Testimony.)

4. Dr. Cave was paid for his work as a graduate assistant from the regular UConn payroll and not from any special payroll. He was paid by the State of Connecticut. For most of the time he worked as a graduate assistant, he did not have social security deductions taken from his pay. At this time he does not qualify for a social security retirement allowance. He never received a federal tax form 1099 for his teaching work. Each academic year he was appointed a graduate assistant by the UConn Board of Trustees. He also had an employment authorization form each year he did this work like any UConn regular employee. He had to be a graduate student in good standing to be able to gain this annual employment. He did not receive a tuition break for working as a graduate assistant. He did not need to do this work to gain either the M.A. or Ph.D. degrees. The languages department assigned the courses the graduate assistants taught each year. Because they were teaching the same courses as some of the regular professors, the Graduate assistants were listed on the course schedule along with the regular faculty. The lecturer category at UConn was a part-time teaching slot which was paid at the same rate of pay as the graduate assistants. The Assistant professor category had to have a masters degree. The professor category had to have a doctorate degree. Dr. Cave's graduate assistant work did not count toward securing tenure. (Exs. 5, 7, 8, 9, 10 & 11. Testimony.)

5. Dr. Cave never had any formal evaluations done of his teaching work as a graduate assistant. At one point he requested a formal observation of his teaching work. He never saw a formal job description for graduate assistant in the languages department. (Ex. 6. Testimony.)

6. Dr. Cave taught two courses during the Spring 1969, Fall 1969, and Spring 1970 semesters. He taught all these courses at the main campus in Storrs, CT. (Exs. 5, 7, 8, 9, 10 & 11. Testimony.)

7. Once he received his M.A. degree in June 1970, Dr. Cave continued to be appointed a graduate assistant, but taught only one course, and received a grant to cover the other work he did while continuing to work toward his doctorate degree. (Exs. 10 & 11. Testimony.)

8. In October 2007 Dr. Cave sought to purchase for creditable service his graduate assistant teacher work at UConn for the Spring 1969, Fall 1970, and Spring 1970 semesters. He completed the MTRS form for purchasing out-of-state public school service, including securing information from his employer. He filed this form June 12, 2007. ("A". Exs. 3 & 4. Testimony.)

9. By letter of decision of October 26, 2007, the MTRS denied Dr. Cave's request. He filed a timely appeal, and sought an expedited appeal hearing. ("A" & "B". Exs. 1 & 2)

Conclusion

Dr. Cave has presented sufficient evidence to prove that he is entitled to do a purchase under G. L. c. 32, § 3(4) of his graduate assistant teaching work for UConn from February 1969 - May 1970 when he was teaching two Spanish courses during each of three semesters to undergraduate students. He is a current member of the MTRS who previously worked a job that was the equivalent of a professor teaching Spanish courses to undergraduates at UConn. He has shown he worked at least half time doing this teaching work.

G. L. c. 32, § 3(4) states in pertinent part:

Any member in service … who is employed in a teaching position or as a principal, supervisor or president in a school or college, … who had rendered service in any other state for any previous period as a teacher, principal, supervisor or superintendent in the public day schools or other day school under exclusive public control and supervision, or in a public academy, or as a teacher, principal, supervisor or president in a state normal school, state teachers college or like institution, or other college under exclusive public control and supervision, or in a public academy, … may, before the date any retirement allowance becomes effective for him, pay into the annuity savings fund of the system … an amount equal to that which would have been withheld as regular deductions from his regular compensation for such previous period, … had such service been rendered in a public school of the commonwealth and had he been a member of the teachers' retirement system during the period the service was rendered; …. [N]o credit shall be allowed and no payment shall be accepted for any service for which the member shall be entitled to receive a retirement allowance from any other state …. Such member shall furnish the board with such information as it shall require to determine the amount to be paid and the credit to be allowed under this subdivision ….

The issue in Dr. Cave's case was argued well by the parties in their briefs. While working as a graduate assistant, Dr. Cave had to do work equivalent to the work performed by one of the Section 3(4) listed positions. This means he could not be doing this teaching work for just academic credit, working as an assistant to a regular professor who guided him in doing his work, or doing work other than teaching work. His work at UConn during this time period has to satisfy the definition of teacher found in G. L. c. 32, § 1. Mackay and Manning v. Contributory Retirement Appeal Board (CRAB), 56 Mass. App. Ct. 924, 925 (2002). The Section 1 definition of teacher reads in pertinent part as follows:
… any person who is employed by one or more school committees or boards of trustees … on a basis of not less than half-time service as a teacher … in any public school as defined in this section ….

Public day school is defined in Section 1 as follows:

… any day school conducted in the commonwealth under the superintendence of a duly elected school committee ….

UConn is a public institution. Dr. Cave was appointed to his annual graduate assistant position by the Board of Trustees, and his wages were paid by the State of Connecticut. I found Dr. Cave's testimony to be credible that during this time period a regular professor carried a teaching load of three or four courses per semester so that teaching two courses per semester would be at least half time teaching. The issue the parties dispute is whether or not Dr. Cave was teaching independently or whether he was only an assistant to a professor or to a Department Head carrying out the teaching tasks the professor created, devised, and ultimately graded.

The MTRS relied on the information provided by James G. Henkel, Ph.D. who is currently the Associate Vice Provost of the Research and Graduate Education Office and an Associate Dean at the Graduate School of UConn. Dr. Henkel addressed the policies in effect when Dr. Cave was a graduate assistant. He acknowledged that Dr. Cave was at UConn before he came there in 1977, but believed the policies were the same then as now for graduate assistants. He stated they were not faculty members and only some worked with "a degree of independence," but that they all worked "under close supervision of faculty." He acknowledged there is no certification necessary to teach at UConn, and that to be a graduate assistant only involves being in good standing in the program. He stated most graduate assistants work in the laboratories or provide undergraduate students with discussion sessions, and only occasionally deliver lectures which is usually done to fill in for a faculty member. He stated they work about ten to twenty hours a week and are paid proportionately. He stated only "some submit grades as instructors of record," and that the grades they determine "are checked and approved by faculty." (Ex. 6) In providing this opinion, Dr. Henkel did not specifically address graduate assistants in the languages department, and did not state his opinion covered every graduate assistant's circumstances.

Dr. Cave testified in agreement with some of what Dr. Henkel stated, but differed with him by clearly explaining that he worked without any direct supervision, was paid a set amount of compensation each year, and taught the two courses each semester at issue. I conclude Dr. Henkel's opinion does not overcome the credible and detailed account of his work that Dr. Cave provided. I conclude Dr. Cave did work independently and not as an assistant to a Professor during those three semesters. I conclude he was not simply carrying out the syllabus, using the exams, and delivering the lectures that a supervising professor had already established. Rather, Dr. Cave created and devised his lesson plans, his exams, and lectures for his undergraduate Spanish courses, courses that were also taught by regular professors during the same time period. He was believable when he stated he did not have his grades reviewed by any professor before they were filed. The fact that the graduate assistants who were teaching the introductory Spanish classes decided as a group to use a UConn professor's textbook does not make Dr. Cave's teaching work not independent. He credibly testified that all the regular professors who were also teaching these introductory Spanish classes used this same textbook.

The Section 3(4) standard to apply is not the job title of the prior out-of-state public teaching service, but the function previously performed. In Lachance v. Contributory Retirement Appeal Board (CRAB), 62 Mass. App. Ct. 1118 (2005), the Appeals Court held that the work previously performed had to be the equivalent of the work of a Section 1 teacher, or the equivalent of one of the listed positions in order to be able to purchase that prior service for creditable service. Mr. Lachance worked as a geographical research assistant at University of Rhode Island after securing his undergraduate degree there. At the time he lacked a graduate degree and he did not hold any teacher certifications. He worked under the direction of an associate professor who held a doctorate. He worked full time. He taught the laboratory sessions that were part of the associate professor's courses. He helped the associate professor with his research, and was listed as a coauthor on some academic articles. He also took over some of the assistant professor's lectures. The Appeals Court did not find this work to be the equivalent work of a professor or Section 1 teacher; and Mr. Lachance was unable to purchase this out-of-state service under Section 3(4). Dr. Cave's circumstances were not like those of Mr. Lachance.

A different outcome is found in the case of Wheeler v. MTRS, CR-99-555 (DALA, 8/25/00) (No CRAB Dec.) where this same Section 3(4) standard was employed. Ms. Wheeler worked in Arizona as a school psychologist, but did that work along with an internship because she was working toward her doctorate. She was paid less than a regular school psychologist, but she fully performed and was fully qualified to do all the essential duties of a school psychologist in this Arizona public school. The internship aspect of her job was viewed as an extra component, and not one that altered her work as a school psychologist. These facts were sufficient to allow Ms. Wheeler to purchase this out-of-state service for creditable service under Section 3(4).

In Squeglia v. CRAB and MTRS, Suffolk Superior Court Civil Action No. 00-2416 (King, J.) (5/2/01), the job title was not found to be a controlling factor on entitlement to creditable service through Section 3(4). Ms. Squeglia worked in Ohio as a learning disability tutor. She was paid by the hour and did not have her own classroom. In contrast, the leaning disability teachers had their own classrooms and were paid a yearly amount on a regular basis. But, Ms. Squeglia was required to have and did have, her teacher certification. She was also allowed membership in the Ohio contributory retirement system for teachers. She ended up working over half time as a learning disability tutor. Since the nature of the work she performed was the same as the work performed by a learning disability teacher, Ms. Squeglia was permitted to purchase this out-of-state service for creditable service through Section 3(4). The job title of tutor does not appear in the Section 1 definition of teacher. This decision shows that Dr. Cave's title of graduate assistant does not prevent him from utilizing the benefit of Section 3(4).

The MTRS relies on the case of Bevelander v. MTRS, CR-95-749 (DALA, 9/13/96) (CRAB, 2/5/97), arguing Dr. Cave cannot prevail in his request. Dr. Bevelander worked as a teaching assistant while working toward a graduate degree at the University of Illinois. He taught undergraduate Spanish courses. The grades he gave had to first be reviewed by a professor assigned to review the work of all the teaching assistants. Dr. Bevelander, on these facts, was not able to utilize Section 3(4) to purchase this out-of-state prior service for creditable service. Dr. Cave's circumstances are different in significant ways since he had the same degree of independence in terms of teaching his Spanish classes as a regular UConn professor had in teaching the same class. He also did not have the grades he gave out first reviewed by a supervising professor. No findings showed Dr. Bevelander functioned as the equivalent of a regular professor.

For these reasons, the decision of the MTRS is reversed, and Dr. Cave is able to purchase for creditable service through Section 3(4), his UConn graduate assistant teaching work done for three semesters between February 1969 and May 1970.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: April 30, 2008


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