COMMONWEALTH OF MASSACHUSETTS


DIVISION OF ADMINISTRATIVE LAW APPEALS


Suffolk, ss.

Docket No. CR-05-1273

 

ELAINE-NAN GELLER,

Petitioner

v.

MASSACHUSETTS TEACHERS' RETIREMENT SYSTEM,

Respondent

 

Appearance for the Petitioner:

Susan Lee Weissinger, Esq.

Massachusetts Teachers' Association, Division of Legal Services
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

James C. O'Leary, Esq.

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


Administrative Magistrate:

Mark L. Silverstein, Esq.

 

Summary of Decision

Respondent's decision denying a former public school teacher's application for a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2) is reversed. The teacher, who met the age and creditable service requirements of the statute, demonstrated that she was removed or discharged from her teaching position, without moral turpitude on her part, on grounds for terminating a teacher with professional teaching status that are specified by M.G.L. c. 71, § 42, and there is no evidence that her dismissal or removal was "for violation of the laws, rules and regulations applicable to [her] office or position" or was brought about by "collusion or conspiracy," see M.G.L. c. 32, § 10(2)(c).


DECISION


Petitioner Elaine Geller, a retired sixth grade special education teacher, appeals, pursuant to M.G.L. c. 32, § 16(4), from the October 6, 2005 decision of respondent Massachusetts Teachers' Retirement System (MTRS) denying her application for a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2). MTRS based its denial upon Ms. Geller's failure to show that her termination as a teacher by the Chicopee Public Schools was involuntary. Its decision leaves Ms. Geller with a superannuation retirement benefit allowance of $18,168.60 annually. Ms. Geller claims that her termination was indeed involuntary and that she is therefore entitled to a termination retirement benefit allowance of $25,073.40 annually. The Chicopee Public Schools, she contends, made a non-negotiable decision to terminate her employment for cause during the spring of 2003, but exercised forbearance and delayed her actual termination while she was on medical leave from June 2003 through June 2004, by which time she had used up her accrued sick leave. MTRS counters that Ms. Geller negotiated her termination over a one-year period beginning in the spring of 2003 in order to assure that she could retire with at least 20 years of creditable service and qualify, thus, for regular superannuation retirement benefits, and that she agreed to a voluntary termination as of June 30, 2004 pursuant to a settlement agreement that she signed, as did her union (the Massachusetts Teachers Association) and the Chicopee School Committee. Characterizing this as an exercise of control by Ms. Geller over the timing and means of her separation from employment, MTRS argues that her separation from employment as a Chicopee public school teacher was therefore voluntary and rendered her ineligible for termination retirement benefits under M.G.L. c. 32, § 10(2).

Ms. Geller's appeal, dated October 14, 2005, was timely filed within the 15-day appeal period prescribed by M.G.L. c. 32, § 16(4). I conducted a hearing on November 12, 2008 at the Division of Administrative Law Appeals at 98 North Washington Street in Boston. [fn. 1] I admitted various documents into evidence (Exhs. 1-28) and marked, as exhibits for identification, MTRS's prehearing memorandum (Exh. A), Ms. Geller's prehearing memorandum (Exh. B), and an appendix of decisions that Ms. Geller filed at the hearing (Exh. C). Ms. Geller presented the testimony of Frederick M. Doherty, a representative of the Massachusetts Teachers Association. She did not herself testify. MTRS presented the testimony of Charles E. Tetrault, who served as the Chicopee Public Schools' Assistant Superintendent for Personnel in 2003 and 2004, and Shirley Alvira, who served as the principal of the Edward Bellamy Middle School in Chicopee, the public school at which Ms. Geller was last employed. Both parties made opening and closing statements at the hearing. The hearing was recorded on two cassette tapes.


Findings of Fact

I make the following findings of fact based upon the testimony and documentary evidence in the record before me.

1. Elaine-Nan Geller, d.o.b. March 16, 1948, commenced employment as a teacher in the Chicopee Public School system in April 1987, and over the course of her employment held the positions of specialist for hearing-impaired students, speech and language pathologist, and special needs/self-contained-classroom teacher. (Exh. 25, at Attachment C; Exh. 28.) As of March 2003, Ms. Geller was employed at the Bellamy Middle School in Chicopee as an inclusion sixth grade special education (SPED) teacher. (Exh. 19.)

2. In late 2001 and early 2002, Ms. Geller received teacher performance evaluations from the Bellamy Middle School's Principal, Shirley Alvira, in which she was rated "commendable"-the highest rating available on the evaluation form-as to all aspects of her professional work, including curriculum development and instruction, effectiveness in managing the classroom environment, effectiveness of instruction, promotion of high standards and expectations for student achievement, and fulfillment of professional responsibilities including interactions with parents. (Exh. 26.)

3. Beginning in the Fall of 2002 and continuing into March 2003, Bellamy Middle School staff began noting behavior on Ms. Geller's part that they regarded as disruptive or unusual. The record offers several examples of this conduct that the school's sixth grade guidance counselor, adjustment counselor and other teachers reported to Principal Alvira. Ms. Geller "habitually escorted" students to the school's sixth grade guidance counselor "during the middle of a regular class period to complain about their behavior or list a series of concerns that she had about these students, and in addition she yelled at students in her study skills class, and made them sit on the floor or verbally embarrassed and humiliated them in front of other students. One teacher had observed Ms. Geller insisting that papers be set at a certain angle on a student's desk and moving papers to this angle when the students moved them into a different position, moving books on a student's desk from one side to the other during the school day, turning out lights and requiring that students put their heads down on their desks, and rummaging through students' desks after the school day, reorganizing some of the material she found in the desks and disposing of other items, including students' papers and assignments for the next day. The vice-principal and school janitor reported that at the end of the 2002-03 school year, Ms. Geller had directed the custodial staff to move the contents of her room to her new room for the forthcoming school year, including all student and teacher chairs and desks, the blackboard and whiteboard, trash cans, and a soap dispenser she had ripped off the wall. Ms. Geller had pried into the private lives of her students and of other faculty members "beyond her need to know," had urged other teachers to take time off so she could cover their classes, and had responded to concerns by snitching and lying. She telephoned the school adjustment counselor at her home on a Saturday afternoon to discuss an incident at school even though the counselor had not given Ms. Geller her home phone number or encouraged such calls. An inclusion homeroom teacher reported that Ms. Geller disrupted her class by walking around the room and tattling on students she believed were not sitting correctly in their chairs or preparing their work correctly. Ms. Geller also expressed her unwillingness to team-teach. (Exh. 27.)

4. On March 13, 2003, Ms. Geller was asked to attend a meeting with the school's principal, Shirley Alvira, and the school's vice principal, John Such, regarding an allegation that she had grabbed a girl in a classroom by the right arm and taken her out of the room to an area where the lockers were located. With a representative of her union (the Chicopee Education Association) present, Ms. Geller was told by Ms. Alvira during this meeting that she could not touch students and was not to deal with discipline problems. In addition, Ms. Alvira handed Ms. Geller a letter stating that she was being placed on an administrative leave of absence with pay pending an investigation into the alleged incident, effective March 13, 2003, and that this was not a disciplinary action. (Exhs. 3, 4.)

5. Later on March 13, 2003, Ms. Alvira telephoned Massachusetts Teachers Association representative Frederick M. Doherty to advise him of the action she had taken against Ms. Geller and why she did so. During this conversation, Ms. Alvira also told Mr. Doherty that reinstatement and suspension "were not options" for Ms. Geller. Mr. Doherty understood this to mean that Ms. Geller would be terminated involuntarily, and in view of the incidents in question and the complaints of both school colleagues and parents about her conduct, he was convinced that although Ms. Geller could challenge the involuntary termination, it would be difficult for her to prevail and have this termination set aside. He was concerned as well because Ms. Geller had not sounded coherent during a prior telephone conversation he had with her. Mr. Doherty called Ms. Geller to discuss her situation, and advised her to consult with her primary care physician and with a psychiatrist. (Doherty testimony.)

6. In view of medical problems that became apparent shortly after she was placed on administrative leave, and in view of the unused sick leave she had accumulated, Ms. Geller and her union determined that she would request medical leave from her position. (Doherty testimony.) On March 31, 2003, Ms. Geller gave written notice to Chicopee Public Schools Assistant Superintendent for Personnel Charles Tetrault that she would be taking an extended sick leave with pay beginning that day and ending on the last workday of June 2003. (Exh. 5.)

7. Chicopee Public Schools Superintendent Basan Nembirkow treated this notice as a request for an extended sick leave with pay from March 31, 2003 to June 30, 2003 and approved it on April 1, 2003 pursuant to Article XVII, Section C of the collective bargaining agreement between the Chicopee Education Association and the City of Chicopee. (Exh. 6; Tetrault testimony.)

8. On April 4, 2003, Assistant Superintendent Tetrault notified Ms. Geller that, based upon her use of sick time, he was placing her under Family Medical Leave Act status as of that date. This notice also stated that (a) Ms. Geller's leave would be charged against her accrued sick time and personal time, (b) she was required to provide periodic reports of her status and intent to return to work, (c) she would have to furnish a certificate of fitness for duty in order to return to work, and failure to do so could delay this return, and (d) upon returning to work, she had the right to be restored to the same position she held when her leave commenced, or to a substantially equivalent position. (Exh. 8.)

9. On April 29, 2003, Assistant Superintendent Tetrault notified Ms. Geller that the Chicopee Public Schools were in the process of planning its staff organization for the school year 2003-04, and that by May 9, 2003 she was to indicate her intentions for that school year by checking off, on the Assistant Superintendent's April 4, 2003 letter, whether she was requesting reinstatement, whether she would resign, or whether she had other plans, and also by submitting a letter explaining her intentions. (Exh. 9.)

10. Ms. Geller responded by checking off "I request reinstatement" on the Assistant Superintendent's letter and returning it to the Assistant Superintendent, together with a letter dated May 8, 2003 stating that she wished to be reinstated. (Exhs. 9, 10.)

11. By letter dated June 25, 2003, Assistant Superintendent Tetrault notified Ms. Geller that "[a]s per G.L. c. 71, Sec. 41, your services will no longer be needed as a Special Education teacher for the 2003-04 school year." (Exh. 11.) The Assistant Superintendent testified that he intended this letter to be a notice of termination, effective June 25, 2003, and that his intent was "to get rid of" Ms. Geller. (Exh. 23; Tetrault testimony on cross and recross examination, and upon questions by the Administrative Magistrate.)

12. By letter dated June 30, 2003, Massachusetts Teachers Association consultant Frederick M. Doherty notified Assistant Superintendent Tetrault that because (a) the Massachusetts Teachers Retirement Board had concluded that Ms. Geller had 19.6 years of employment creditable toward retirement, and (b) termination retirement required a minimum of 20 creditable years, Ms. Geller could not agree to a proposed "Memorandum of Settlement," although Mr. Doherty expressed hope that "we can continue to work on a mutually satisfactory resolution to Ms. Geller's employment situation." (Exh. 12.) The "Memorandum of Settlement" to which Mr. Doherty's June 30, 2003 letter referred was not offered by either party as an exhibit and is not part of the record.

13. Nearly a year later, Assistant Superintendent Tetrault notified Ms. Geller in writing on June 4, 2004 that her employment as a Chicopee Public School Teacher would be terminated at the end of the day on June 30, 2004. (Exh. 14.) Although this letter did not state the reasons for terminating Ms. Geller, both Principal Alvira and Assistant Superintendent Tetrault gave, as the reasons for terminating her, inappropriate conduct toward a student and failure to follow the principal's directives (Tetrault direct testimony; Alvira direct testimony; see also Exh.19, Principal Alvira's explanatory memorandum to Assistant Superintendent Tetrault summarizing why she requested that Ms. Geller be terminated, and Exh. 20, the Assistant Superintendent's response to the Teachers' Retirement Board dated September 15, 2004 which had requested background information regarding the allegations of inappropriate behavior toward a student and failure to follow the principal's directives (Exh. 18) ).

14. Also on June 4, 2004, Ms. Geller, the Chicopee School Committee and the Chicopee Education Association signed a Memorandum of Settlement post-dated June 30, 2004. (Exh. 25.) Among other things, the Memorandum of Settlement provided that:

(a) The Chicopee Public Schools would notify Ms. Geller that her employment was terminated as of June 30, 2004. As to this provision, the Memorandum of Settlement referred to, and included as Exhibit A, Assistant Superintendent Tetrault's June 4, 2004 letter notifying Ms. Geller of her termination (Exh. 14; see above, at Finding 13);

(b) Ms. Geller would notify the Chicopee Public Schools of her intent to retire as of July 1, 2004. As to this provision, the Memorandum of Settlement referred to, and included as Exhibit B, a letter by Ms. Geller to Assistant Superintendent Tetrault, post-dated June 9, 2004, stating that she would retire on July 1, 2004. (Exh. 15; see above, at Finding 12);

(c) Ms. Geller's personnel file would be expunged of all documents except for evaluations that were required by the collective bargaining agreement;

(d) Ms. Geller would be "entitled to payment of her unused sick days and personal days as cited in the 2003-2004 Unit A contract's Article XVII Sick Leave, Section F (p.26) and Article XVIII Temporary Leave of Absence, New Section A-1 (p.27).", as the collective bargaining agreement between her union and the Chicopee Public Schools required;

(e) Ms. Geller would be eligible for the City of Chicopee's health and dental insurance plan as a retiree;

(f) Ms. Geller and the Chicopee Education Association released the Chicopee School Committee from any claims arising during her employment as a Chicopee Public Schools Teacher; and

(g) Ms. Geller released her employer from all claims, including federal civil rights claims, disability and age discrimination claims, and tort and contract claims.

15. By letter dated June 15, 2004, Ms. Geller notified Assistant Superintendent Tetrault that she would retire on June 30, 2004. (Exh. 15.) This was in substance the same retirement letter that was attached as Exhibit B to the Memorandum of Settlement. (See above, at Finding 14(b).)

16. School Superintendent Basan Nembirkow notified Ms. Geller in writing on June 22, 2004 that he had received and accepted her letter. (Exh. 16.)

17. On June 22, 2004, the Massachusetts Teachers' Retirement Board notified Superintendent Nembirkow that it had received an application by Ms. Geller for a termination retirement allowance pursuant to M.G.L. c. 32, § 10, and requested that the Superintendent file with the Board an employer's certification regarding Ms. Geller's eligibility for this type of retirement allowance. (Exh. 24.)

18. In an employer's certification that he filed with the Massachusetts Teachers' Retirement Board on July 1, 2004, Superintendent Nembirkow stated (by checking off "yes" next to pre-printed responses listed on the form) that Ms. Geller had been "terminated" from her position of employment, that she had been "removed or discharged from this position without moral turpitude" on her part, that she had not been offered another position at the same salary and in which she was certified, and that "this termination [was] completely involuntary." (Exh. 24, p. 2.)

19. After Ms. Geller's employment with the Chicopee Public Schools ended on June 30, 2004, the Massachusetts Teachers' Retirement Board considered whether she was entitled to receive a superannuation retirement allowance or a termination retirement allowance. To this end, the Retirement Board requested, on July 28, 2004, that Superintendent Nembirkow provide it with additional information about the allegedly inappropriate behavior toward a student and failure to follow the school principal's directions for which she was placed on administrative leave with pay pending an investigation, and about the investigation's outcome. (Exh. 18.)

20. In his September 15, 2004 response to the Retirement Board, Superintendent Nembirkow stated that the Bellamy Middle School's principal had requested that Ms. Geller be terminated because (a) many staff members, students and parents had complained about her treatment of students, including touching, reporting discipline problems that had never occurred, interrupting counseling sessions and disrupting classes, (b) she had left her classroom without authorization many times, leaving students unsupervised, (c) she had engaged in arguments with students and embarrassed them-for example, by making them sit on the floor-and had also argued with adults in front of students, and (d) school staff members had complained that Ms. Geller had gone through their personal belongings, called their homes to inquire about their personal lives, and showed up without invitation to hairdressing salons and restaurants when the staff members and their families were present. (Exh. 20.)

21. By letter dated March 28, 2005, the Massachusetts Teachers Association notified the Massachusetts Teachers' Retirement Board that Ms. Geller was requesting a superannuation retirement allowance effective June 30, 2004 "with the understanding that she is entitled to finalize her prior request to purchase additional creditable service," and that her receipt of a superannuation retirement allowance would not waive her application for a termination retirement allowance or her right to appeal from a decision of the Retirement Board denying that request. (Exh. 22.)

22. By letter dated October 6, 2005, the Massachusetts Teachers' Retirement Board notified Ms. Geller that it had denied her application for a termination retirement allowance "because it was not proven that [her] departure from the employment of the Chicopee Public Schools was involuntary . . . ." (Exh. 1.)

23. The Board's decision left Ms. Geller with a superannuation retirement benefit allowance of $18,168.60 annually. In contrast, if Ms. Geller was eligible to receive a termination retirement benefit, her annual retirement benefit allowance would be $25,073.40. (Exh. 28.)

24. Ms. Geller filed an appeal challenging this decision with the Division of Administrative Law Appeals on October 14, 2005.

25. The parties have stipulated that Ms. Geller's separation from employment with the Chicopee Public Schools was without moral turpitude on her part. (Stipulation of the Parties dated November 13, 2008.)


Discussion

To qualify for a termination retirement benefit allowance pursuant to M.G.L. c. 32, § 10(2), Ms. Geller, who was a member of the Massachusetts Teachers' Retirement System (one of the retirement systems specified at M.G.L. c. 32, § 1), needed to have (1) completed at least twenty years of creditable service when her employment as a teacher in the Chicopee Public School system was terminated on June 30, 2004, and (2) "fail[ed] of reappointment," or had to have been "removed or discharged" from her position without moral turpitude on her part, see M.G.L. c. 32, § 10(2)(a), and in addition, (3) her removal or discharge cannot have been the result of "collusion or conspiracy." See M.G.L. c. 32, § 10(2)(c).

MTRS contends that Ms. Geller does not meet an additional requirement that her termination have been entirely involuntary. However, M.G.L. c. 32, § 10(2) recites no such requirement. The only decision addressing a similar argument (raised, as here, by MTRS, in the context of a teacher who was allegedly dismissed, rather than allowed to resign based upon incapacity, in order to qualify him for a termination retirement allowance) rejected it as legally irrelevant, because the ground for terminating the teacher from his position (incapacity) was recognized by M.G.L. c. 71, § 42 as a ground for dismissing a teacher with professional status, and the teacher's incapacity and inability to perform the essential functions of his job were undisputed, as were his completion of 20 or more years of creditable service and his removal or discharge without moral turpitude on his part. Dunlevy v. Contributory Retirement Appeal Board, C.A. No. 06-04-02, Memorandum Decision and Order on Motions for Judgment on the Pleadings (Mass. Super. Ct., Suffolk Cty., Apr. 5, 2007). Similarly, Ms. Geller had completed 20 years of creditable service when, on June 30, 2004, she was removed or discharged as a Chicopee Public School teacher on June 30, 2004 on grounds for terminating a public school teacher specified by M.G.L. c. 71, § 42 (conduct unbecoming a teacher and insubordination) without moral turpitude on her part, and there is no evidence that this removal or discharge was "brought about by collusion or conspiracy. . . ."

Accordingly, I conclude that Ms. Geller qualifies for a termination retirement benefit allowance under M.G.L. c. 32, § 10(2).

1. Termination retirement allowance: applicable law


a. The explicit statutory requirements

Three types of retirement benefits are generally available to a member of a retirement system specified at M.G.L. c. 32, § 1, including a member of the teachers' retirement system-disability retirement benefits, see M.G.L. c. 32, § 6, regular retirement benefits, also known as superannuation benefits, see M.G.L. c. 32, § 10(1), and termination retirement benefits, see M.G.L. c. 32, § 10(2). At issue here is whether Ms. Geller is eligible for termination retirement benefits, which would increase her annual retirement benefits from $18,168.60 (her superannuation benefits) to $25,073.40 annually.

A retirement system member is eligible for "superannuation retirement benefits" when after completing twenty or more years of creditable service, [fn. 2] the member:

resigns or voluntarily terminates his service, or fails of nomination or re-election, or fails of reappointment, or whose office or position is abolished, or is removed or discharged from his office or position without moral turpitude on his part, or any member who, after having attained age fifty-five, resigns, or fails of nomination or re-election, or fails to become a candidate for nomination or re-election, or fails of reappointment or is removed or discharged from his office or position without moral turpitude on his part, or any such member whose office or position is abolished. . . .

M.G.L. c. 32, § 10(1). A member with 20 or more years of creditable service who is removed or discharged from her position without moral turpitude on her part is entitled to receive a higher termination retirement allowance pursuant to M.G.L. c. 32, § 10(2), which provides in pertinent part that:

(a) Any member who retires under the provisions of this section, who has completed twenty or more years of creditable service and who fails of nomination or re-election, or fails of reappointment, or whose office or position is abolished, or is removed or discharged from his office or position without moral turpitude on his part, or who has completed thirty or more years of creditable service and whose resignation becomes effective before he attains age fifty-five, shall receive a normal yearly amount of retirement allowance which shall not be less than the sum of his annuity, which shall be the actuarial equivalent of his accumulated regular deductions at his attained age on the date the allowance becomes effective, and a pension equal to a sum of not less than one-third of his average annual rate of regular compensation received during any period of three consecutive years of creditable service for which such rate of compensation was the highest; . . . The retirement board shall require the employer of any employee applying for a termination retirement allowance to certify in writing, under the pains and penalties of perjury, that one of the following circumstances applies: (1) that the employee has failed of nomination or re-election, (2) that the employee has failed of reappointment, (3) that the employee's office or position has been abolished, or (4) that the employee has been removed or discharged from his position without moral turpitude on his part.

M.G.L. c. 32, § 10(2)(a).


b. Is involuntary termination an implicit prerequisite for Section 10(2) benefits?


i. Statutory language

One difference between the requirements for superannuation and termination retirement benefits is immediately apparent: Section 10(1) specifically makes a superannuation retirement allowance available to a member with at least 20 years of creditable service who "resigns or voluntarily terminates his service," while section 10(2) includes no such provision relative to a termination retirement benefit allowance. Considered alone, this omission could be viewed as evidence of legislative intent to deny termination retirement benefits to a retirement system member whose termination was voluntary in any respect.

There are, however, other omissions from the express language of section 10(2) that may be legally significant as well. Section 10(2) recites no requirement that removal or discharge be "involuntary" to qualify the member for a termination retirement allowance. Nor does it state that the member is disqualified from receiving such an allowance if her removal or discharge is wholly or partially "voluntary." In contrast, section 10(2) provides specifically that a member "who is removed or discharged for violation of the laws, rules and regulations applicable to his office or position, or any member whose removal or discharge was brought about by collusion or conspiracy, shall not be entitled to the termination retirement allowance . . . ." M.G.L. c. 32, § 10(2)(c). [fn. 3]

All of this may be considered evidence of legislative intent to confine both the eligibility requirements for termination retirement benefits, and the disqualifying factors as well, to those that section 10(2) recites specifically. The legislature unquestionably knew how to specify voluntary termination as factor material to retirement benefits qualification when it intended to do so-at M.G.L. c. 32, § 10(1), it is specified as a factor qualifying a retirement system member with at least 20 years of creditable service for superannuation retirement benefits. The legislature also clearly knew how to specify a factor disqualifying a member from a termination retirement allowance-M.G.L. c. 32, § 10(2)(c) specifies "removal or discharge . . . brought about by collusion or conspiracy" as such a disqualifying factor. If the legislature had intended to require that a termination be involuntary in order to qualify a member for termination retirement benefits, it could have stated so plainly by listing it at M.G.L. c. 32, § 10(2)(a) as a qualifying requirement and as one of the circumstances that the employer must certify to the retirement board. Similarly, if the legislature had intended to make a termination's voluntariness a factor disqualifying a member from eligibility to receive a termination retirement allowance, it could have stated so plainly at M.G.L. c. 32, § 10(2)(c), or to make a termination's voluntariness disqualifying, it could have stated so plainly at M.G.L. c. 32, § 10(2). See Warcewicz v. Dep't of Environmental Protection, 410 Mass. 548, 574 N.E.2d 364, 366 (1991) ("where specific language is used in one paragraph of a statute but not in another, the language should not be implied where it is not present," citing Beeler v. Downey, 387 Mass. 609, 442 N.E.2d 19, 23 (1982)).

Whether M.G.L. c. 32, § 10(2)(a) requires involuntary termination or disqualifies anything less from termination retirement benefits eligibility is an issue that has generated a scant two published court decisions, one of them by the Appeals Court, Martell v. Teachers' Retirement Board, 20 Mass. App. Ct. 188, 479 N.E.2d 191 (1985), and the other by the Suffolk Superior Court. Dunlevy v. Contributory Retirement Appeal Board, C.A. No. 06-04-02, Memorandum Decision and Order on Motions for Judgment on the Pleadings (Mass. Super. Ct., Suffolk Cty., Apr. 5, 2007). I review these decisions next.


ii. The Appeals Court's Martell decision


In Martell, a public school teacher was denied termination benefits based upon a "recall provision" in a collective bargaining agreement that allegedly rendered the teacher's termination something other than involuntary. The Appeals Court did not determine whether there had been an involuntary termination, however. Reversing a declaratory judgment sustaining the denial of termination benefits, the court held that the collective bargaining agreement's recall provision did not supersede the teacher's rights under section 10(2)(a).

The terminated employee in Martell was a tenured public school teacher under age 55 with 20 years of public employment creditable toward retirement benefits. He was released by a municipal school department from his teaching position for budgetary reasons. As the collective bargaining agreement between the school committee and the teacher's union required, the teacher was then placed on an involuntary leave of absence for a 15-month "recall period" during which he could have been recalled to work unless he requested a dismissal, which he did not do. Without awaiting the end of this recall period, the teacher applied to the Teachers' Retirement Board for benefits under M.G.L. c. 32, § 10(2)(a). The board concluded that his employment would not be deemed to have ended until the leave of absence mandated by the collective bargaining agreement ended (because it left open the possibility that the teacher would be recalled to work). It concluded, as well, that the teacher was not eligible for higher retirement benefits under M.G.L. c. 32, § 10(2)(a) at any rate because, under the collective bargaining agreement, his termination was not involuntary.

The teacher challenged the board's decision by seeking a declaratory judgment that he was entitled to retirement benefits under M.G.L. c. 32, § 10(2)(a). The Superior Court sustained the board's determination, and the teacher appealed to the Appeals Court, which reversed and ordered that judgment be entered declaring that the teacher was entitled to these benefits.

Rejecting, first, the board's conclusion that retirement benefits under M.G.L. c. 32, § 10(2)(a) were unavailable to the terminated teacher until the 15-month recall period ended, the court stated:

As it is undisputed that the plaintiff meets the eligibility criteria set forth in § 10(2)(a), the only impediment to his receipt of benefits is the board's determination that the plaintiff is not entitled to benefits prior to the end of the involuntary leave of absence imposed by the collective bargaining agreement. In effect, this would mean that the recall provision of the collective bargaining agreement supersedes the plaintiff's § 10(2)(a) rights. This is not possible, however, as G.L. c. 32, § 10(2)(a) is not among the statutes listed in G.L. c. 150E, § 7(d). (citation omitted). Insofar as the board perceives a conflict between the terms of the recall provision and the plaintiff's entitlement under § 10(2)(a), the conflict must result in the grant of the statutory rights, as the terms of the [collective bargaining] agreement cannot "override" the provisions of § 10(2)(a).

479 N.E.2d at 192-93. [fn. 4]

The Appeals Court also rejected the board's argument that the collective bargaining agreement's recall provision made the teacher's loss of his position "something other than an involuntary termination." Id., at 193. Characterizing this argument as "a further attempt [by the board] to avoid its § 10(2)(a) obligation," the court held that:

[T]he collective bargaining agreement's "recall provision" cannot affect the plaintiff's entitlement to benefits under G.L. c. 32, § 10(2)(a) (citation omitted). The plaintiff meets all the qualifications under the statute and is presently entitled to his claimed retirement benefits.

Id.

In so holding, did the Martell court mean "all the qualifications under the statute" to include an involuntary termination that the collective bargaining agreement's recall provision could not transform into a voluntary one? If it did, then it had to have read an involuntary termination requirement into the language of M.G.L. c. 32, § 10(2)(a). Or did the court decline to decide whether the teacher's termination was involuntary because (1) the issue arose only under the recall provision, but (2) because the collective bargaining agreement could not supersede the teacher's M.G.L. c. 32, § 10(2)(a) rights in any regard, the issue was academic?

It is not clear that Martell determined section 10(2)(a) to require an involuntary termination. The decision neither quoted the statute nor identified involuntary termination as a statutory requirement for termination benefits. The Appeals Court addressed the requirements of section 10(2)(a) only briefly in relating the matter's background and procedural history; having reached the point at which the teacher applied to the board for termination retirement benefits, the court described M.G.L. c. 32, § 10(2)(a) "as amended through St. 1967, c. 826, § 19" as having increased the superannuation retirement benefits made available under M.G.L. c. 32, § 5 "for those whose employment is involuntarily terminated or whose 'position is abolished' or who 'fail[ ] of reappointment.' " 479 N.E.2d at 192 (emphasis added).

This description did not enclose the phrase involuntarily terminated within quotation marks; in contrast, the other types of termination it mentioned as qualifying for benefits under section 1
0(2)(a) ("position is abolished" and "fails of reappointment") were quoted directly from the statutory language. This was not through inadvertence; there was no involuntary termination language to quote, either from section 10(2)(a) as it appeared when Martell was decided (in 1985) or in the amending 1967 session law that the court cited. [fn. 5] The court's description of section 10(2)(a) as making increased superannuation benefits available to members who are involuntarily terminated is therefore read properly not as a phrase appearing in a previous version of the statute (as no such phrase ever appeared) or as a holding that the statute makes involuntary termination a qualification for receiving termination retirement benefits, but, instead, as no more than a shorthand description of the statute-as an instance of literary license, thus, rather than as an instance of statutory construction.

It is also possible that the Martell court simply declined to entertain any argument against paying section 10(2)(a) benefits that was based upon provisions of the collective bargaining agreement because the collective bargaining agreement could not prevail over M.G.L. § 10(2)(a) in any respect. This explanation is plausible because the board relied upon the collective bargaining agreement in arguing that the teacher's loss of position was "something other than an involuntary termination" and the court rejected it because the collective bargaining agreement's recall provision "could not affect" the teacher's entitlement to section 10(2)(a) benefits.

Whether this was why the court ruled as it did in Martell remains unclear. Whatever the explanation, there remained no court-generated caselaw resolving whether section 10(2)(a) required
an involuntary removal or discharge when the issue came before Superior Court Justice Patrick F. Brady in Dunlevy.


iii. The Superior Court's Dunlevy decision


In Dunlevy, the Contributory Retirement Appeals Board had sustained the denial of section 10(2)(a) benefits to a teacher because, among other things, he "effectively resigned before he was terminated." A justice of the Superior Court overturned this decision, but in doing so he declined to decide whether the termination was involuntary because the teacher was discharged for incapacity and was therefore eligible for section 10(2)(a) benefits. Brian Dunlevy began work as an art teacher in the Worcester Public School system in 1978. In late 1999, he underwent cervical disk surgery with fusion. A motor vehicle accident in July 2001 left him suffering from neck and back pain, including sciatica, and as a result he was unable to stand, bend, carry books and supplies, walk or write on blackboards-all essential duties that an art teacher was expected to perform-without experiencing back pain, poor balance and lower extremity weakness. He was unable to continue working even with accommodations, such as being assigned to tutor students, and he ceased working in March 2002. After exhausting his remaining sick leave a month later, and with no assignments involving light work available for him to perform, he was placed on unpaid medical leave.

In October 2002, Dunlevy applied for ordinary disability benefits pursuant to M.G.L. c. 32, § 6. In May 2003, a Medical Panel found that he was totally and permanently disabled. His attorney suggested to the school system shortly afterward that, having accumulated with 20 years of creditable service, Dunlevy could be terminated based upon his inability to perform the essential duties of his position pursuant to M.G.L. c. 71, § 42, [fn. 6] which would allow the teacher to collect higher retirement benefits under M.G.L. c. 32, § 10(2)(a) then he could if he obtained an ordinary disability retirement benefits allowance under M.G.L. c. 32, § 6. In early June, 2003, Dunlevy requested that the Teachers' Retirement Board defer deciding his ordinary disability retirement claim based upon his "potential receipt" of a termination retirement allowance. On June 18, 2003, the Worcester Public Schools Superintendent terminated Dunlevy pursuant to M.G.L. c. 71, § 42, but there was no reference in the Superintendent's termination letter to any agreement regarding this type of termination. Dunlevy did not challenge the termination and filed, instead, an application to retire and sought termination retirement benefits. The Superintendent certified to the Teachers' Retirement Board that Dunlevy had been terminated from his position without moral turpitude on his part, and that he had not been offered another position.

The Board, apparently convinced that Dunlevy had negotiated the nature and timing of his termination, denied his request for section 10(2)(a) benefits and awarded him ordinary disability benefits instead. On appeal of the Board's termination retirement benefits denial, Division of Administrative Law Appeals Magistrate Sarah H. Luick reversed the board's decision and determined that Dunlevy was entitled to receive a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2). Dunlevy v. Teachers' Retirement Board, Docket No. CR-03-1030 (Mass. Div. of Admin. Law. App., Mar. 9, 2005). Magistrate Luick concluded that the decision to terminate Dunlevy was made by the Superintendent alone and that he had full authority to do so pursuant to M.G.L. c. 71, § 42. There was no evidence that Dunlevy had procured his termination by force or deception, or that he had entered into an agreement with the school system "to use G.L. c. 71 s. 42 to suit his particular retirement plans." His attorney's suggestion of termination under that statute was nothing more than that. There was no basis in the record for assuming that the school system would never have terminated Dunlevy but for the attorney's suggestion that it do so. Because Dunlevy had the right to seek a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2)(a), and section 10(2) did not prohibit him from seeking termination benefits because he had already applied for ordinary disability benefits. His request that the retirement board defer acting on his application for ordinary disability benefits did not amount to an attempt to manipulate the retirement laws, and he made this request before the board voted on his termination retirement benefits application.

The Teachers' Retirement Board appealed Magistrate Luick's decision to the Contributory Retirement Appeals Board (CRAB), which reversed and reinstated the board's decision denying Dunlevy a termination retirement allowance under M.G.L. c. 32, § 10(2). Dunlevy v. Teachers' Retirement Board, Docket No. CR-03-1030 (Mass. Contrib. Ret. App. Bd., Dec. 29, 2005). CRAB framed the issue as "whether a member who has informed his employer that he cannot or will not perform the essential duties of his position can then force the employer to terminate him for cause and then still claim benefits under s. 10(2) of Chapter 32," suggesting strongly that CRAB viewed Dunlevy's termination as having been the result of something other than the Superintendent's independent decisionmaking. CRAB concluded that he was limited to an ordinary disability allowance under M.G.L. c. 32, § 6, [fn. 7] for two reasons. First, Dunlevy had "effectively resigned voluntarily before he was terminated," as he informed his employer that he could not perform the essential duties of his position and then stopped work in March 2002, went on medical leave, was determined by a medical panel to be totally and permanently disabled, and filed for ordinary disability benefits. Second, as a matter of law "an employee who is terminated because he is unwilling or unable to perform the essential duties of his job is not entitled to a termination allowance under section 10(2). . ." CRAB reasoned that "[t]o hold otherwise would make [Chapter 32 section] 6 superfluous and would foster fraud on the retirement system," because this would allow a retirement system member who could or would not perform his position's essential duties to "simply refuse to come to work and wait for his employer to terminate him for cause and then, as in this case, claim [section] 10(2) benefits."

Dunlevy appealed to the Superior Court, which held that he was entitled to termination retirement benefits. Dunlevy v. Contributory Retirement Appeal Board, C.A. No. 06-04-02, Memorandum Decision and Order on Motions for Judgment on the Pleadings (Mass. Super. Ct., Suffolk Cty., Apr. 5, 2007). Justice Patrick F. Brady acknowledged the competing arguments before it as to whether or not Dunlevy was removed from his position involuntarily-Dunlevy contended that "CRAB based its decision on the erroneous legal conclusion that he was not dismissed from his job, but resigned voluntarily," and that "he did not choose to retire, but was forced to leave because of his disability"; CRAB and the Teachers' Retirement Board argued that the right to retirement benefits under section 10(2) was "limited to circumstances where an employee is removed involuntarily, and Dunlevy was not removed involuntarily."

Justice Brady found it to be undisputed that Dunlevy had more than 20 years of creditable service and that he was discharged from his position without moral turpitude on his part; in addition, he was terminated under M.G.L. c. 71, § 42, which allows the dismissal of a teacher for incapacity, and it was "undisputed that Dunlevy was indeed incapacitated and unable to perform the essential functions of his job." As a result, Dunlevy was entitled to termination retirement benefits under section 10(2), and there was no need to determine whether or not his dismissal was involuntary. Justice Brady held that:

This conclusion is consistent with G.L. c. 32 as a whole. Nothing in G.L. c. 32 indicates that an employee's eligibility for [ordinary disability retirement] benefits under section 6 precludes him or her from dismissal for incapacity under G.L. c. 71, § 42 (thus allowing the employee to obtain retirement benefits under Section 10(2) ). Sections 6 and 10(2) have distinct eligibility requirements, and the fact that Dunlevy met the requirements for both does not in itself render either section superfluous. He was entitled to retire under the section that provided the most favorable benefits. Therefore, the fact that [the Worcester Public Schools] dismissed Dunlevy at his attorney's suggestion is irrelevant, and the court need not address the parties' arguments regarding the voluntariness of dismissal. Dunlevy; Memorandum Decision and Order on Motions for Judgment on the Pleadings, at 4-5.


iv. Other DALA and CRAB decisions


As was true of their respective decisions in Dunlevy, DALA and CRAB decisions addressing termination benefits eligibility have construed "termination" to mean, in the context of M.G.L. c. 32, § 10(2), an involuntary removal or discharge-one that was "forced," rather than one that was a matter of personal choice, as it would be, for example, if one chose to resign rather than be dismissed. Several decisions are illustrative.

In O'Malley v. Teachers' Retirement Board, No. CR-06-259 (Mass. Div. of Admin. Law App., Feb. 1, 2008), the principal of a public middle school was dissatisfied with the petitioner assistant principal's performance, especially regarding the school's compliance with special needs education-related requirements, and he had the right to terminate the petitioner within the first 90 days of his employment based upon this ground, but instead he gave the petitioner the choice to resign or be dismissed. The petitioner believed that the principal had also been unhappy about his appointment, and had given him neither sufficient training regarding special education requirements and their implementation nor enough time on the job to learn how to perform it well. However, he hoped to secure a permanent position in the school system, and believed it would be best not to have to explain a dismissal on his record. Accordingly, the petitioner submitted a letter of resignation that the school superintendent accepted. Administrative Magistrate Sarah H. Luick affirmed the denial of termination retirement benefits to the petitioner: "[T]aking the initiative to avoid having a dismissal on his career record and resign instead" made the petitioner's resignation from his position as assistant principal a personal choice rather than a removal or a discharge, and neither the fact that the principal had grounds to discharge him had he chosen to do so, nor the principal's failure to provide sufficient training did not "make his decision to resign a forced one or an involuntary dismissal."

In Megiel-Rollo v. Teachers' Retirement System, No. CR-02-1099 (Mass. Div. of Admin. Law App., Feb. 22, 2007), a teacher at a public agricultural high school entered into a settlement agreement with the school in October 2001 to resolve a discrimination complaint she had filed more than seven years earlier with the Massachusetts Commission Against Discrimination (MCAD), as to which MCAD had found probable cause but taken no action. The teacher had also served for several years as grievance chairperson, handling approximately 300 grievances against the school, and as president of her union. She had received a satisfactory performance evaluation for the 2000-01 school year, and prior to the negotiations leading to the settlement agreement, the school administration had never notified or advised her that she was going to be terminated. The settlement agreement provided, among other things, that the teacher would (1) be placed immediately upon a paid leave of absence until June 30, 2002, (2) have the right to receive, during her paid leave, health insurance benefits and contractually-accrued sick leave benefits, (3) leave the school and never enter its building or grounds again, (4) receive a termination notice from the school on or about June 30, 2002, and (5) be paid $54,760.49 after the termination became effective. Both parties acknowledged entering into the settlement agreement voluntarily. Following her termination per the agreement, the teacher applied in July 2002 for a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2). The Teachers' Retirement System denied her application and granted her a superannuation retirement allowance instead. Upon appeal by the teacher, DALA affirmed the denial of her application for a termination retirement allowance. Magistrate Joan Freiman Fink concluded that although Ms. Megeiel-Rollo met the age and creditable service requirements of section 10(2), she had not been "removed or discharged" from her position as a teacher at the agricultural high school because, by signing the settlement agreement, she had chosen voluntarily to leave her position. In reaching this conclusion (and in rejecting Ms. Megiel-Rollo's claim of constructive discharge as well), Magistrate Fink emphasized that:

(1) the school administration had never discussed termination with the teacher before the settlement agreement was negotiated, and had given her a satisfactory performance evaluation for the preceding school year;

(2) no termination hearing was held to determine whether there existed just cause to remove the teacher from her position;

(3) by negotiating her eligibility for health insurance and sick leave benefits during her paid leave prior to termination and a $54,760.49 lump sum payment following her termination, the teacher had exercised "a measure of control concerning the terms of her departure from her teaching position";

(4) instead of signing the settlement agreement, the teacher could have awaited the outcome of the MCAD proceedings; and

(5) there was no evidence that the teacher would have suffered "negative consequences concerning her continued employment" at the school if the outcome of the MCAD proceedings were adverse to her.

For similar reasons, DALA sustained the denial of a teacher's termination retirement allowance in Bataitis v. Massachusetts Teachers' Retirement Board, No. CR-00-721 (Mass. Div. of Admin. Law App., Dec. 1, 2000). Ms. Bataitis, an elementary school teacher who began teaching in September 1978, had received positive job performance evaluations until she returned from a medical leave of absence taken during the 1996-97 school year. She began receiving unsatisfactory job performance ratings after she returned to work in March 1997, and in October 1998, the superintendent of schools sent the teacher a letter warning her that she would be terminated if her job performance did not improve. In April 1999, a parent complained that the teacher had inappropriately touched his child, a second grade pupil. Following a brief investigation, the school principal referred the matter to the superintendent, who convened a meeting to discuss the incident in late April, 1999 that the principal, Ms. Bataitis, the president of the local teachers' union, and a union representative attended. The principal discussed alternative courses of action, including filing a report of possible child abuse pursuant to with the Department of Social Services pursuant to M.G.L. c. 119, § 51A, termination of employment, suspension, or an agreement by Ms. Bataitis to retire, although he had not made up his mind regarding any of these alternatives. With the recommendation of the union representatives, Ms. Bataitis agreed to a settlement under which she become a permanent substitute teacher in September 1999, received her normal step raise at the appropriate time, remained employed until her fiftieth birthday in February 2000, and then received "an early retirement incentive worth approximately $18,000 as well as a sick leave buy back."

The Teachers' Retirement Board thereafter denied her application for a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2). The denial was sustained on appeal to the Division of Administrative Law Appeals. Magistrate Joan Freiman Fink concluded that although Ms. Bataitis met the age and creditable service requirements of section 10(2), her departure from her position as a teacher was voluntary and, as a result, she was not "removed or discharged" as section 10(2) required. In reaching this conclusion (and in rejecting the teacher's claim of constructive discharge as well), Magistrate Fink emphasized that:

(1) the school administration had never discussed termination with Ms. Batatis before the settlement agreement was negotiated, and had given her a satisfactory performance evaluation for the preceding school year;

(2) no termination hearing was held to determine whether there existed just cause to remove Bataitis from her position;

(3) Bataitis negotiated the date of her last date of teaching as well as a financial settlement that included a retirement incentive payment and a sick leave buyback, and in doing so she exercised "a measure of control concerning the terms of her departure from her teaching position";

(4) it was not certain that Bataitis would have been terminated from her teaching position if had she declined to sign the settlement agreement, since the principal had not yet decided which course of action he would take; and

(5) Instead of signing the agreement, Bataitis could have instead filed a grievance challenging her suspension if the superintendent determined to proceed in that manner, or she could have awaited a Department of Social Services investigation, if the superintendent had elected to file a report of potential child abuse, before deciding what course of action to pursue regarding her employment.


DALA reversed a termination retirement allowance denial in Rost v. State Board of Retirement, No. CR-00-024 (Mass. Div. of Admin. Law App., Nov. 20, 2000). Mr. Rost had been employed at the Department of Public Health (DPH) in the position of "Chemist I" since April 1977, working as a laboratory assistant and then as head of the Massachusetts Biological Laboratory making childhood vaccines until legislation transferred this laboratory to the University of Massachusetts effective January 1, 1997. Prior to that transfer, DPH's Assistant Commissioner offered to place Mr. Rost on a leave of absence from DPH in order to protect his civil service status. Mr. Rost agreed, and in mid-December 1996 he requested an indefinite leave of absence as Chemist I with DPH effective January 1, 1997. Meanwhile, he continued his employment with the laboratory at the University of Massachusetts Medical Center in Worcester starting on January 13, 1997.

A new management team determined subsequently that the laboratory would not continue manufacturing childhood vaccines, and as a result Mr. Rost was informed at the end of October 1999 that his position would be terminated and his expertise in childhood vaccines was no longer needed. He was instructed to sign a "settlement agreement" prepared by the University if he wanted to receive any benefits. The agreement directed him to submit a letter of resignation effective November 13, 1999, in return for which the University would pay him 14 weeks of severance pay, his accumulated vacation pay and 20 percent of his accrued sick leave. The agreement also provided that Mr. Rost would not seek payment for sick leave accrued while he was employed at any agency of the Commonwealth. Mr. Rost signed the agreement, submitted the required letter of resignation, and then requested that DPH restore him to his former civil service position as a chemist, from which he was on indefinite leave of absence. Although DPH informed him that he would be restored to his position the next day, he received, instead, a letter advising him, on November 15, 1999, that his position as Chemist I was being abolished because the state laboratory at which he had worked was no longer manufacturing vaccines and serums. In December 1999, Mr. Rost applied to the State Board of Retirement for termination retirement benefits under M.G.L. c. 32, § 10(2), and the University confirmed to the Board that he had been terminated due to the laboratory's reorganization.

The Board denied Mr. Rost's application, and he appealed to DALA. Magistrate Joan Freiman Fink rejected the Board's argument that because Mr. Rost had signed the settlement agreement and submitted a letter of resignation, he had left his position voluntarily and was therefore not eligible for a section 10(2) termination retirement allowance, and she concluded that Mr. Rost had been terminated from his positions with both DPH and the University of Massachusetts Medical Center. In reversing the Board's denial and finding that Mr. Rost was entitled to termination retirement benefits under section 10(2), Magistrate Fink emphasized that his position was abolished and that he was directed to sign the settlement agreement if he wanted to receive any benefits, which left him with no discretion as to whether he could submit the resignation letter. In addition, his departure from his position as a state chemist was based solely upon a change in the laboratory's function (the decision to cease manufacturing childhood vaccines) and not on his desire to end his employment with the University of Massachusetts Medical Center or with DPH.

 

2. Entitlement to a termination retirement allowance

a. Scope of analysis


The parties cited no decisions from the Supreme Judicial Court or from the Appeals Court resolving whether section 10(2)(a) requires an involuntary removal or discharge, and I have found none. The Appeals Court neither addressed nor resolved the issue in Martell. The only decision on point is the Superior Court's 2007 Dunlevy decision.

It is not clear that construing M.G.L. c. 32, § 10(2) to require involuntary discharge or removal-one that was "forced," rather than one that was a matter of personal choice-in order to qualify a retirement system member for a termination retirement allowance can be reconciled with Dunlevy. That point is academic, however, unless Dunlevy is (as Ms. Geller asserted) preclusive here, or at least persuasive that section 10(2) does not require discharge or removal to be involuntary. The Massachusetts Teachers' Retirement System did not agree, contending that because Dunlevy was
the decision of but one of many Superior Court Justices, it was neither preclusive nor persuasive on this point.

I have found no Massachusetts state court decision supporting the proposition that a Superior Court decision has little, if any, precedential value and, as the pronouncement of one of many judges of coordinate jurisdiction, has little, if any, value in predicting how the law would be applied in any other dispute. In contrast, the United States District Court for the District of Massachusetts has held that where neither the Massachusetts Supreme Judicial Court nor the Appeals Court has addressed a question directly, "it is appropriate to look to the Massachusetts Superior Court, 'the great trial court of the Commonwealth,' as declarative of Massachusetts law." Roy v. Bolens Corp., 629 F. Supp, 1070, 1072 (D. Mass. 1986) (in the absence of Supreme Judicial Court or Appeals Court decisions addressing the issue of whether a purchasing corporation assumes the tort liability of its predecessor, the U.S. District Court relied upon Massachusetts Superior Court decisions as declarative of Massachusetts law that there is no recovery against a successor corporation where the predecessor corporation remains in existence and can answer in tort for its alleged negligence and breach of warranty); see also Andrew Robinson International, Inc. v. Hartford Fire Insurance Co., 547 F.3d 48, 51-52 (1st Cir. 2008) (in determining the preclusive effect of a prior state court judgment, a federal court must apply state law; in doing so, it looks first to pronouncements of the state's highest court and, if that court has not spoken directly on the issue, "the federal court must make an informed prophecy as to the state court's likely stance" by examining other authorities, starting with decisions of the state's lower courts).

Absent any authority for doing otherwise, I follow the federal court approach here. With no higher court decisions or other Superior Court decisions to the contrary, Dunlevy is declarative that
once a teacher is determined to have been removed or discharged on grounds recognized by M.G.L. c. 71, § 42, she is eligible for a termination retirement if she qualifies otherwise, and M.G.L. c. 32, § 10(2) therefore requires no determination as to whether the discharge or removal was involuntary. On all other points, however, Dunlevy effected no change in the traditional section 10(2) analysis. The analysis begins with an acknowledgment that Ms. Geller meets the age and creditable service requirements of M.G.L. c. 32, § 10(2), and that she was terminated as a Chicopee Public School teacher without moral turpitude on her part. The analysis then proceeds to consider whether Ms. Geller was removed or discharged from her position or whether she resigned. Dunlevy did not consider this question, and it remains relevant to the section 10(2) analysis as a consequence. It also remains relevant whether, per M.G.L. c. 32, § 10(2)(c), Ms. Geller was removed or discharged "for violation of the laws, rules and regulations applicable to [her] office or position," or whether her removal or discharge "was brought about by collusion or conspiracy," as either of these circumstances would disqualify her from receiving a termination retirement allowance.

Assuming that none of these circumstances were present, and that Ms. Geller was discharged or removed on grounds for terminating public school teachers specified by M.G.L. c. 71, § 42, the analysis would then cease per Dunlevy, and Ms. Geller would be found eligible for a termination retirement allowance under M.G.L. c. 32, § 10(2). That is the case here.


b. Discharge or removal


The parties dispute vigorously whether Ms. Geller was discharged or removed from her position as a Chicopee Public School teacher, as she contends, or whether she resigned from her position, as the MTRS contends. Before resolving this dispute, I review the cirecumstances under which Ms. Geller came to be separated from her employment as a Chicopee Public School teacher.

First, before the Assistant Superintendent notified her that she was being terminated as a Special Education teacher as of June 25, 2003, pursuant to M.G.L. c. 71, sec. 42, Ms. Geller was placed on administrative leave and then, for medical reasons that are not disputed, she was placed on extended medical leave to be charged against her accumulated sick leave. Although her principal was adamant that her reinstatement was not an option, the Assistant Superintendent left open the possibility that she could return to work as a teacher within the Chicopee Public School system until he sent her a notice of termination on June 24, 2003. (Findings 4-10.) [fn. 8] Without question, then, the arrangement by which Ms. Geller would utilize her accumulated sick leave began before she was terminated.

Second, after she was terminated per the Assistant Superintendent's June 24, 2003 notice, Ms. Geller's union representative (Mr. Doherty) declined, in a letter to the Assistant Superintendent dated June 30, 2003, to sign a "memorandum of settlement" with the Chicopee Public Schools because she had less than the 20 years of creditable service needed for a termination retirement allowance. (Finding 12.) Mr. Doherty's letter expressed hope that Ms. Geller's "employment situation" could be resolved in a "mutually satisfactory" manner (id.), but there is no evidence that the Assistant Superintendent had withdrawn his June 24, 2003 termination notice or modified, in any way, his intent to terminate Ms. Geller's employment. There is also no evidence that Ms. Geller's termination was actually being negotiated when Mr. Doherty sent his June 30, 2003 letter to the Assistant Superintendent. Although Mr. Doherty's letter notes that Ms. Geller did not have the 20 years of creditable service needed to qualify for a termination retirement allowance, it does not state that there was any proposed agreement, whether in the memorandum of settlement or elsewhere, to defer the date of Ms. Geller's termination and allow her to use her accumulated sick leave to obtain additional creditable service. As the memorandum of settlement to which Mr. Doherty's letter refers is not in the record, it is unclear whether it included any provision regarding the deferment of Ms. Geller's termination date. Without any of this explanatory evidence, the Doherty letter suggests another possible scenario: Ms. Geller had simply been terminated without resolving anything else, including her use of sick leave to obtain additional creditable service, or other matters that would be resolved by agreement a year later-what her personnel file would show, whether she would be eligible as a retiree to participate in the Chicopee's health and dental insurance plan, and whether Ms. Geller might remain free to pursue any claims she might have against the Chicopee Public Schools arising out of her termination (See Finding 19.)

Third, a settlement agreement signed a year later by Ms. Geller, her union and the Chicopee School Committee on June 4, 2004 restructured Ms. Geller's termination.

On June 4, 2004, the Assistant Superintendent notified Ms. Geller that her employment as a Chicopee Public School teacher would end on June 30, 2004. (Finding 13.) This letter did not mention M.G.L. c. 71, § 42, as had the Assistant Superintendent's June 24, 2003 termination notice, and it also did not recite the grounds for terminating Ms. Geller's employment. However, both Principal Alvira and the Assistant Superintendent testified that Ms. Geller was terminated for inappropriate conduct and failure to follow the principal's directives (id.), which fall within the scope of public school teacher dismissal grounds recognized by M.G.L. c. 71, § 42, including "conduct unbecoming a teacher" and "insubordination."

On the same day (June 4, 2004), Ms. Geller, the Chicopee School Committee and the Chicopee Education Association signed a Memorandum Of Settlement post-dated June 30, 2004. Its terms included these:

(a) The Chicopee Public Schools would notify Ms. Geller that her employment was terminated as of June 30, 2004. As to this provision, the Memorandum of Settlement referred to, and included as Exhibit A, Assistant Superintendent Tetrault's June 4, 2004 letter notifying Ms. Geller of her termination;

(b) Ms. Geller would notify the Chicopee Public Schools of her intent to retire as of July 1, 2004;

(c) Ms. Geller's personnel file would be expunged of all documents except for evaluations that were required by the collective bargaining agreement;

(d) Ms. Geller would be entitled to payment of her unused sick and personal days, as the collective bargaining agreement between her union and the Chicopee Public Schools required;

(e) Ms. Geller would be eligible for the City of Chicopee's health and dental insurance plan as a retiree;

(f) Ms. Geller and the Chicopee Education Association released the Chicopee School Committee from any claims arising during her employment as a Chicopee Public Schools Teacher; and

(g) Ms. Geller released her employer from all claims, including federal civil rights claims, disability and age discrimination claims, and tort and contract claims.

(Finding 14.)

Ms. Geller submitted, on June 15, 2004, a notice of her intent to retire on June 30, 2004, as the settlement agreement required her to do. (Finding 15.) However, as she had already been terminated at least once and possibly twice, it is difficult to discern how Ms. Geller could have effectively resigned, or how the Superintendent's acceptance of her resignation letter on June 22, 2004 (Finding 16) made it any more effective, particularly since he did not revoke Ms. Geller's earlier termination. Neither the exhibits nor the testimony explained why the Memorandum of Settlement provided for Ms. Geller's employment to end by both termination and retirement. Neither party appeared to recognize that the Memorandum of Settlement contradicted itself in this manner. [fn. 9]

It is true that the parties now proffer profoundly contrasting views of how Ms. Geller ended her employment as a teacher, with MTRS emphasizing her agreement to retire (at paragraph 2 of the Memorandum of Settlement) and Ms, Geller emphasizing her termination by the Chicopee School System (per paragraph 1). However, the evidence suggests strongly that there were no such conflicting views when the Memorandum of Settlement was signed, and that Ms. Geller, her union, and the Chicopee Public Schools understood that Ms. Geller had indeed been removed or discharged from her position and had not resigned. Consistent with that understanding, Ms. Geller applied for a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2) at about the same time she submitted her June 22, 2004 notice of her intent to retire (see Finding 17). The contradiction between this application and the retirement notice provision in the Memorandum of Settlement appears to have prompted the Massachusetts Teachers' Retirement Board to request that Superintendent Nembirkow clarify the circumstances surrounding Ms. Geller's separation from her teaching position. (Finding 19.) The Superintendent responded to the Board's clarification request in early July 2004 by certifying that Ms. Geller had been "terminated" from her position of employment, that she had been "removed or discharged from this position without moral turpitude" on her part, that she had not been offered another position at the same salary and in which she was certified, and that "this termination [was] completely involuntary" (Finding 18.) The certification shows that the Superintendent, too, understood that Ms. Geller had been removed or discharged and had not retired voluntarily.

The conclusion that Ms. Geller was indeed removed or discharged from her position as a Chicopee Public School teacher is butressed by comparing the circumstances present here with those in O'Malley, Megiel-Rollo and Bataitis, where no removal or discharge was found to have occurred.

(1) In O'Malley, an assistant principal who knew that the principal was dissatisfied with his performance, and who was given the choice of resigning or being dismissed, sought to avoid having a dismissal on his career record and therefore chose to resign instead, making his separation from employment a matter of choice rather than one that was forced. Here, Ms. Geller faced not merely dissatisfaction with her performance (for which she had earlier received the highest possible reviews) but more serious allegations of inappropriate conduct toward a student and, in addition, she and her union understood (at least after the assistant principal sent her a termination notice pursuant to M.G.L. c. 71, § 42 on June 24, 2003) that the school principal and the assistant superintendent wanted her removed not merely from the Middle School where she was employed but from the school system as well. She was given no choice of resigning, and there was never any question on her part or on the school system's part that her separation from her position as a Chicopee Public School teacher was by removal or discharge rather than by voluntary resignation, and the assistant superintendent so certified to the Massachusetts Teachers' Retirement Board in early July 2004, within days after Ms. Geller was terminated (or re-terminated). In addition, although the Memorandum of Settlement provided that Ms. Geller's record would be expunged of all documents except for evaluations that were required by the collective bargaining agreement, this outcome did not spare her from having a dismissal noted on her career record; in contrast, Mr. O'Malley's resignation spared him from having a record showing a dismissal. The June 2004 Memorandum redacted from Ms. Geller's record, instead, information relating to her mental health that could cause her embarrassment, and, as well, information that might embarrass others, including the special needs students, parents and their teachers mentioned in the letters that Principal Alvira received in early 2003 regarding Ms. Geller's conduct.

(2) In Megiel-Rollo, a teacher signed a settlement agreement that resolved not only her employment (by termination following a leave of absence with pay and health-insurance benefits) but also a long-pending discrimination complaint arising out of her employment that she had filed with the Massachusetts Commission Against Discrimination. The teacher also received, per the agreement, a $54,760.49 lump sum payment following her termination. In contrast, the Memorandum of Settlement that Ms. Geller signed made no provision for any lump-sum payment to her after she was terminated, and resolved no pending proceeding arising out of her employment, whether discrimination-based or otherwise. Indeed, the Memorandum of Settlement required that Ms. Geller release her employer from all claims she might have against it, including federal civil rights claims, disability and age discrimination claims, and tort and contract claims, without any monetary consideration and, clearly, with no option to obtain any in the future based upon any such claim she might otherwise have asserted. In this respect, the Memorandum of Settlement that Mrs. Geller signed can be said to have imposed a financial penalty upon Ms. Geller as a consequence of termination, while in Megiel-Rollo the teacher received a not-insubstantial monetary payment in exchange for agreeing to her termination.

As was true of the payment that Ms. Megiel-Rollo obtained under the settlement agreement with her employer, the health insurance and sick leave benefits eligibility she maintained during her paid leave prior to termination was the result of negotiation evidencing "a measure of control concerning the terms of her departure from her teaching position." Here, although the Memorandum of Settlement provided that Ms. Geller was entitled to payment of her unused sick and personal days, it also noted that this payment was pursuant to the collective bargaining agreement between her union and the Chicopee Public Schools. In contrast with Megiel-Rollo, then, these benefits were the product of collective bargaining between Ms. Geller's union and the Chicopee School Committee rather than of negotiation between Ms. Geller and her employer. They were not the result, thus, of any control she exercised over the terms of her departure from the Chicopee Public School system.

(3) In Bataitis, the teacher faced, as did Ms. Geller here, an allegation that she had inappropriately touched a pupil, and she was summoned to a meeting with the school principal, but there the similarities with this matter end. Ms. Bataitis's principal had not decided at that time whether to terminate or suspend her, or whether an agreement by Ms. Bataitis to retire would be more appropriate. In contrast, Principal Alvira had already decided that termination was the only option when she met with Ms. Geller and her union representatives regarding the alleged incident of inappropriate touching. In Bataitis, the meeting with the principal was followed on the same day by a settlement agreement under which the teacher would become a permanent substitute, receive her normal step raise, remain employed until she turned 50, and then receive both an early retirement incentive worth approximately $18,000 and a sick leave buyback. Ms. Geller, in contrast, did not negotiate in the last day of her employment in advance of being placed on paid medical leave, and instead remained on a medical leave that began before she was terminated on June 25, 2003. While Mr. Doherty, her union representative, advised the Assistant Superintendent that Ms. Geller could not sign a settlement agreement as she had less than 20 years of creditable service need to qualify for a termination retirement allowance, and expressed hope that a resolution could be reached, there is no evidence that Ms. Geller negotiated a continuation of her medical leave through the following June, charged against her accumulated sick leave, so that she could accrue additional creditable service. Although she accrued more than 20 years of creditable service as a result, this was incidental to a sick leave use right she had under the collective bargaining agreement rather than an additional benefit for which she bargained after the meeting with Principal Alvira on March 13, 2003, over which she exercised any degree of control, or that she obtained in consideration for separating from her teaching position.

The evidence also suggests strongly that Ms. Geller was allowed to remain on payroll as a teacher through June 2004 as a result of forbearance on the Chicopee Public School system's part, and not because Ms. Geller negotiated a deferment of her termination date. Although the record includes no contemporaneously-documented decision to defer Ms. Geller's removal from the school system, it includes email exchanges between Assistant Superintendent Tetrault and the Massachusetts Teachers' Retirement Board in 2005 evidencing Mr. Tetrault's recollection that "[t]ermination proceedings were held in abeyance while Ms. Geller was out on the documented medical leave" (Exh. 21) and that this was done pursuant to an informal policy that the school system would not "kick someone when they are down." (Exh. 23.)

This furnishes yet another contrast with Bataitis, where the school administration had held no termination hearing to determine whether there existed just cause to remove the teacher from her position, another factor supporting the conclusion that the teacher was neither "removed or discharged" as section 10(2) required. There was no termination hearing in Bataitis, however, because there was no time and no need to do so; a settlement was negotiated and signed within hours after the principal met with the teacher and his union representatives. In addition, as the principal had not decided to terminate the teacher when he held the meeting, there was no termination decision in place that could have prompted a hearing if Ms. Bataitis had declined to sign the settlement agreement.

Here, in contrast, Principal Alvira had decided that termination was the only option when she met with Ms. Geller and her union representatives on March 13, 2003, and even the formal notice of termination that followed on June 24, 2003 was issued a year before the parties signed a settlement agreement. If the school system had not decided to dispense outright with a termination hearing in June 2003, its own forbearance from removing Ms. Geller from the payroll until a year later explains why no termination hearing was ever held. In further contrast with Bataitis, it is certain here that Ms. Geller would have been terminated had she not signed the Memorandum of Agreement in June 2004; she had already been terminated (in June, 2003) when she declined to sign a settlement agreement in September 2003, and, per the new termination notice that the Assistant Superintendent issued on June 4, 2004, Ms. Geller's employment was scheduled to end on June 30, 2004 whether she signed the Memorandum of Agreement or not.

Rost would have been helpful to the analysis here if Ms. Geller had been compelled to sign the Memorandum of Agreement in order to receive any benefits. That was not the case, however, particularly as to payment for unused sick leave benefits; as to those benefits, the Memorandum gave Ms. Geller what she was already entitled to receive under the collective bargaining agreement, and she had already exercised this right by using her accumulated sick leave to remain in her position through June 2004. In one other respect, Ms. Geller might have done better if she had declined to sign the Memorandum of Agreement, because she would have retained the right to pursue claims she gave up by signing, including federal civil rights claims, disability and age discrimination claims, and tort and contract claims.

There is no need to belabor any analogy between this matter and Rost, however. The evidence is convincing that Ms. Geller was "removed or discharged" from her teaching position as M.G.L. c. 32, § 10(2) requires, and on grounds specified by M.G.L. c. 71, § 42 for terminating a teacher with professional status.


c. Absence of disqualifying circumstances under M.G.L. c. 32, § 10(2)(c)


M.G.L. c. 32, § 10(2)(c) provides that a member "who is removed or discharged for violation of the laws, rules and regulations applicable to his office or position, or any member whose removal or discharge was brought about by collusion or conspiracy, shall not be entitled to the termination retirement allowance . . . ." M.G.L. c. 32, § 10(2)(c). Removal or discharge under either circumstance would have made Ms. Geller ineligible for termination retirement benefits. There is, however, no evidence that she was discharged or removed from her teaching position under either of these circumstances.


i. Violation of law, rules and regulations applicable to office or position


An employee's dismissal based specifically upon his violation of workplace rules falls well within the bounds of removal or discharge "for violation of the laws, rules and regulations applicable to" the employee's office or position-the first circumstance specified by M.G.L. c. 32, § 10(2)(c) as disqualifying a retirement system member from receiving termination retirement benefits. See Alexander v. State Board of Retirement, No. CR-99-831 (Mass. Div. of Admin. Law App., Sept.. 22, 2000)(no CRAB dec.) (a state agency manager abrogated her considerable responsibility, and violated her employer's rules, when she failed to report back to work following a vacation without notifying her supervisor or receiving the supervisor's approval, and this disqualified her from receiving a section 10(2) retirement allowance pursuant to M.G.L. c. 32, § 10(2)). So, too, does dismissal for violating an agreement that required the employee to comply with job-related duties and workplace rules and provided for immediate termination if the employee failed to do so. Hansen v. State Board of Retirement, No. CR-07-442 (Mass. Div. of Admin. Law App., Mar. 12, 2009)(no CRAB dec.)( in lieu discharging an employee for leaving the scene of an automobile accident in which he was involved, in violation of agency policy, a state agency allowed the employee to sign a "last chance agreement" that required him to perform satisfactorily all of his job-related duties, including compliance with all agency policies, procedures and work rules, and provided for his immediate termination of he failed to comply with the agreement's requirements for a three-year period; several months later, the employee did not report to work for an additional week or document sufficiently the reasons he gave for this absence, prompting the agency to discharge him for an unauthorized absence in violation of the last chance agreement; noting that M.G.L. c. 32, § 10(2) c) makes no distinction between major and minor violations of workplace rules, Administrative Magistrate Kenneth J. Forton rejected the employee's argument that his violation was too minor to disqualify him from a termination retirement allowance, and, having found that the unauthorized absence clearly violated the last chance agreement, held that the employee had also violated the rules applicable to his position and was therefore disqualified from receiving a section 10(2) termination retirement allowance).

In contrast, there is no evidence here that Ms. Geller's termination was based upon her violation of a specific workplace rule such as the unexcused absence rules that were violated directly in Alexander or as a result of breaching an agreement not to violate such rules as in Hansen. Instead, the Assistant Superintendent notified Ms. Geller on June 25, 2003, pursuant to M.G.L. c. 71, § 41, that her services as a Special Education teacher were no longer needed. (Finding 11.) The specification of M.G.L. c. 71, § 42 was significant, as it indicated that Ms. Geller was being terminated on a general ground for dismissing a teacher with professional status that this statute recognized (incapacity, at that point in time; see above, at 31-32), rather than for violating a specific law, rule or regulation applicable to her position as a Chicopee public school teacher or as a teacher at the Bellamy Middle School. The Assistant Superintendent's subsequent termination letter, on June 4, 2004, specified no ground for ending her employment, whether one based upon a workplace rule violation or otherwise. (See Finding 13.) Principal Alvira and the Assistant Superintendent testified that Ms. Geller was terminated for inappropriate conduct and failure to follow the principal's directives. Id. These, too, fell within the scope of general grounds for dismissing a teacher with professional status recognized by M.G.L. c. 71, § 42 ("conduct unbecoming a teacher" and "insubordination"). However, neither witness testified that Ms. Geller violated a law, rule or regulation applicable to her teaching position or that she was terminated for having done so, and there is no documentary evidence in the record showing that any such violation occurred or was the basis for Ms. Geller's termination.

I find no evidence, consequently, that Ms. Geller was "removed or discharged for violation of the laws, rules and regulations applicable to [her] office or position," and for this reason I cannot conclude that she is disqualified on this ground from receiving a termination retirement allowance per M.G.L. c. 32, § 10(2)(c).

 

ii. Collusion or conspiracy

The second circumstance disqualifying a member from receiving termination retirement benefits under M.G.L. c. 32, § 10(2)(c) is "removal or discharge . . . brought about by collusion or conspiracy . . . ." This disqualifying ground, too, does not apply here.

"Collusion or conspiracy" is not defined at section 10(2)(c) or anywhere else in Chapter 32. Accordingly, what constitutes removal or discharge brought about by "collusion or conspiracy" is determined from the common or ordinary meaning of these words such as dictionary definitions supply, provided that this determination is consistent with the plain language and purpose of the statute and regulations. See T.B.I., Inc. v. Board of Health of North Andover, 431 Mass. 9, 725 N.E.2d 188 (2000). Dictionary definitions equate "collusion" and "conspiracy" with fraudulent or illegal conduct. See, e.g., The American Heritage Dictionary, 2d ed. 1991 (defining "collusion" as "[a] secret agreement between two or more persons for a deceitful or fraudulent purpose," and defining "conspiracy" as "[a]n agreement to perform together an illegal, treacherous or evil act.") These definitions do not diverge from Chapter 32's plain language or purpose.

The definitions of "collusion" and "conspiracy" hint that while both describe fraudulent conduct, they are not entirely the same thing. Indeed, proof of each is different in a civil context such as this one, where a monetary entitlement is at stake. To state a claim of civil conspiracy in Massachusetts, the plaintiff must allege, with sufficient supporting facts, that the defendants "acting in unison, had 'some peculiar power of coercion'" over him that they would not have had if acting independently." Carroll v. Xerox Corp., 294 F.3d 231, 243 (1st Cir. 2002), quoting Fleming v. Dane, 304 Mass. 46, 22 N.E.2d 609, 611 (1939). Joint action with resulting coercive effect (or, as Fleming described it, "a commanding influence," 22 N.E.2d at 612) are hallmark characteristics of conspiracy, consequently. Absent contrary statutory language or authority, "conspiracy" as M.G.L. c. 32, § 10(2)(s) uses this term, is read reasonably as meaning joint action by the employer and employee to convert a voluntary separation from employment into a discharge or removal that could not have occurred if the employer or employee had acted individually.

Although joint action is a hallmark of collusion as well, collusion does not necessarily imply coercion, whether by "commanding influence" or otherwise. Cooperation or agreement to do something, or to refrain from doing something, may suffice even if no coercive conduct occurred. See, e.g., Fireman's Insurance Co. of Newark, New Jersey v. Todesca Equipment Co., Inc., 310 F.3d 32 (1 Cir., 2002) (in an action by a surety against defendant construction companies and individuals seeking indemnification for payments it made on performance and payment bonds guaranteeing payment to subcontractors and suppliers, defendants alleged that the surety had unreasonably delayed payment to a subcontractor by several years, and that by failing to file an answer to the subcontractor's complaint seeking recovery, oppose the subcontractor's summary judgment motion, or attempt to settle the subcontractor's claim, the surety had allowed the subcontractor to obtain an excessive judgment and, in paying the judgment, had therefore paid an excessive amount under the bonds; in affirming summary judgment against the defendants, however, the First Circuit described these allegations as merely implying "fraud or collusion" on the surety's part without supporting facts showing that the surety's conduct had been either fraudulent or the result of collusion with the subcontractor). As M.G.L. c. 32, § 10(2)(s) uses the term, then, "collusion" is read reasonably as meaning joint action to transform a separation from employment into a discharge or removal, whether or not coercion or "commanding influence" was employed to do so.

Chapter 32 does not treat voluntary retirement or an agreement to retire or be terminated as nefarious or illegal conduct; to the contrary, M.G.L. c. 32, § 10(1) provides that a member with at least 20 years of creditable service may voluntarily terminate his service and qualify for a superannuation retirement allowance. Removal or discharge by "collusion or conspiracy" therefore does not subsume per se a termination to which an employee agrees. The fact that an agreement resulting ultimately in discharge or removal leaves the former employee eligible for a higher termination retirement allowance is itself insufficient to make the discharge or removal intrinsically collusive (meaning the product of a secret agreement for a deceitful or fraudulent purpose) or conspiratorial (meaning the product of an agreement to perform an illegal, treacherous or evil act). Rost is an effective reminder, for example, that a termination agreement may be coerced rather than collaborative, in which case the employee's termination is the product of unilateral action by the employer rather than joint action with the employee-not the result of collusion or conspiracy, in other words.

Applying these principles to the record here, I find no evidence that Ms. Geller and the school system agreed to transform a voluntary retirement into a removal or discharge so as to qualify her for a termination retirement allowance under M.G.L. c. 32, § 10(2).

The steps taken to place Ms. Geller on paid medical leave and to terminate her in June 2003 were undertaken unilaterally by the school system, and there is no evidence of any agreement linking these measures. Principal Alvira had already made up her mind to terminate Ms. Geller by the time she met with her on March 13, 2003 without consulting Ms. Geller or her union, and on that date she advised the union representative that reassignment or suspension were not options. (Findings 4, 5.) Assistant Superintendent Tetrault confirmed this decision formally on June 24, 2003, when he gave Ms. Geller written notice of termination under M.G.L. c. 71, § 42 (Finding 11), a decision that the statute allowed him to make on his own, and there is no evidence that he did so pursuant to an agreement with Ms. Geller or with her union. That Ms. Geller was allowed to remain on medical leave utilizing her accumulated paid sick leave was a decision that the school system had made well before the decision to terminate her was confirmed and a termination notice was issued. Indeed, after Mrs. Geller's administrative leave was converted on April 4, 2003 to medical leave charged against her accumulated sick leave, the Assistant Superintendent had left open the possibility of reinstatement and Ms. Geller had requested that she be reinstated (Findings 8-10).

None of this conduct shows any joint action by Mrs. Geller and the school system to arrange a removal or discharge that would qualify her for a termination retirement allowance. Nor does it show any agreement by Ms. Geller that she would separate voluntarily from her position as a teacher or would be required to do so. The evidence suggests, instead, that Mrs. Geller was counting on ending her medical leave (and her use of accrued sick time) and on returning to the classroom when, on June 24, 2003, the Assistant Superintendent notified her that she was being terminated. These disparate expectations hardly suggest, let alone prove, that Ms. Geller and the school system had reached any agreement regarding her employment status or how it would end.

The June 2004 Memorandum of Settlement by which Ms. Geller was separated from her position as a Chicopee Public School teacher evinces no joint action to convert this separation into a discharge and removal. If there is even the hint of nefarious conduct here, it is that Ms. Geller's separation from her teaching position was deferred long enough for her to accrue at least 20 years of creditable service and qualify, as a result, for a termination retirement allowance. However, the Assistant Superintendent recalled that Ms. Geller was allowed to remain on the payroll after June 2003 and through June 2004 using accumulated paid sick leave because it was the school system's informal policy not to "kick someone when they are down" (see above, at 38-39). This shows unilateral action on the school system's part rather than action pursuant to a joint agreement with Ms. Geller.

The 2004 Memorandum of Agreement also confirms that Ms. Geller's use of paid sick leave was not a benefit she obtained in consideration for agreeing to be terminated but was, instead, a benefit made available to her under the collective bargaining agreement. Ms. Geller accrued at least 20 years of creditable service as a result, but this, too, was a consequence attributable to the collective bargaining agreement rather than to any coercive, nefarious action she undertook jointly with the school system.

I conclude that Ms. Geller's discharge and removal from her teaching position on grounds recognized by M.G.L. c. 71, § 42 was not the result of collusion or conspiracy, and as a result there is no basis for finding her disqualified from receiving a termination retirement allowance under the "collusion or conspiracy" clause of M.G.L. c. 32, § 10(2)(c).


Disposition


For the reasons stated above, I reverse the decision of the Massachusetts Teachers' Retirement System denying petitioner Elaine-Nan Geller's application for a termination retirement allowance, and direct that Ms. Geller be awarded forthwith a termination retirement allowance pursuant to M.G.L. c. 32, § 10(2).


SO ORDERED.

 

DIVISION OF ADMINISTRATIVE LAW APPEALS

 

 


 

Mark L. Silverstein
Administrative Magistrate

 

Dated: October 16, 2009


Footnotes

1/ DALA scheduled a hearing in this appeal for April 11. 2007, but the hearing was continued upon motion by Ms. Geller.

2/ "Creditable service" is "all membership service, prior service and other service for which credit is allowable to any member" of a retirement system covered by Chapter 32, including the Teachers' Retirement System, in determining eligibility to receive retirement benefits and allowances. See M.G.L. c. 32, § 1. In computing creditable service, a member is (subject to exceptions and limitations that are not material here) "credited with all service rendered by him as an employee in any governmental unit after becoming a member of the system pertaining thereto . . .," M.G.L. c. 32, § 10(4)(1)(a), as well as with other service and service-equivalents specified in section 10(4). The Massachusetts Teachers' Retirement System informs its members that creditable service:

is time that you have worked as a teacher, administrator or other Massachusetts public employee, and for which you have paid or transferred retirement contributions to the MTRS. Creditable service also includes certain military service. You may be able to purchase credit for prior substitute teaching, teaching in an out-of-state public school, certain nonpublic school teaching, vocational work experience, other Massachusetts public service, Peace Corps service and active military service. . .

Massachusetts Teachers' Retirement System Official Website, online information for members regarding creditable service: http://www.mass.gov/mtrs/2members/20active/20credserv.htm

3/ Removal or discharge "brought about by collusion or conspiracy" does not subsume "voluntary" termination. M.G.L. c. 32 defines neither "removal or discharge brought about by collusion or conspiracy" nor "voluntary" or "involuntary" termination, removal or discharge; indeed, the statute does not define "removal," "discharge" or "termination." Accordingly, what constitutes removal or discharge brought about by "collusion or conspiracy" or as a result of "voluntary" or "involuntary" termination is determined from the common or ordinary meaning of these words such as dictionary definitions supply, provided that this determination is consistent with the plain language and purpose of the statute and regulations. See T.B.I., Inc. v. Board of Health of North Andover, 431 Mass. 9, 725 N.E.2d 188 (2000). Dictionary definitions equate "collusion" and "conspiracy" with nefarious or illegal conduct. See, e.g., The American Heritage Dictionary, 2d ed. 1991 (defining "collusion" as "[a] secret agreement between two or more persons for a deceitful or fraudulent purpose," and defining "conspiracy" as "[a]n agreement to perform together an illegal, treacherous or evil act." M.G.L. c. 32, § 10 nowhere makes "removal or discharge brought about by collusion or conspiracy" a circumstance qualifying a retirement system member for retirement benefits, and nor can any of its provisions be read reasonably as encouraging such conduct. In contrast, the statute does not treat voluntary retirement as nefarious or illegal conduct and, instead, M.G.L. c. 32, § 10(1) provides specifically that a member with at least 20 years of creditable service may voluntarily terminate his service and qualify for a superannuation retirement allowance.

4/ M.G.L. c. 150E, § 7D, which the Martell court cited, lists statutes over which the terms of a collective bargaining agreement in the public sector prevail in the event they conflict with each other.

5/ St. 1967, c. 826, § 19 amended M.G.L. c. 32, § 10(2)(a) by adding a group of employees ("Group 4," which consists of public safety officers, officials and employees, such as police officers, firefighters and certain types of correction officers; see M.G.L. c. 32, § 3(g) ) entitled to claim benefits under the statute. It stated in its entirety:

The second sentence of paragraph (a) of subdivision (2) of said section 10 of said chapter 32, added by section 1 of chapter 516 of the acts of 1962, is hereby amended by inserting after the words "Group 2", in line 1, the words: - or Group 4.

The prerequisites for termination retirement benefits are recited in the first sentence of section 10(2)(a), however, and not in the second sentence that St. 1967, c. 826, § 19 amended. Neither the second sentence of section 10(a)(2) nor the session law that added it originally, St. 1962, c. 516, § 1, recites prerequisites for termination retirement benefits. Both address, instead, the additional allowance made available to veterans who qualify for a termination retirement allowance.

6/ M.G.L. c. 71, § 42 provides in pertinent part that:

A principal may dismiss or demote any teacher or other person assigned full-time to the school, subject to the review and approval of the superintendent; and subject to the provisions of this section, the superintendent may dismiss any employee of the school district . . .

A teacher with professional teacher status, pursuant to section forty-one, 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.

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 commissioner. . . .

7/ M.G.L. c. 32, § 6, entitled "Ordinary Disability Retirement," provides in pertinent part (at para. 1) that:

Any member in service who is unable to perform the essential duties of his job and that such inability is likely to be permanent after completing fifteen or more years of creditable service . . .
upon his written application on a prescribed form filed with the board and with his respective employer . . .shall be retired for ordinary disability . . . For the purposes of this section, the state teachers' and state employees' retirement systems shall be deemed to have accepted the provisions of this section. No such retirement shall be allowed unless the board, after a review of the evidence it deems appropriate, and after review by the commission pursuant to the provisions of section twenty-one, and including in any event on examination by the regional medical panel provided for in subdivision (3) of section six and including a certification of such incapacity by a majority of the physicians on such medical panel, shall find that such member is unable to perform the essential duties of his job and that such inability is likely to be permanent, and that he should be so retired.


8/ / The sequence of events through and including the Assistant Superintendent's June 24, 2003 termination notice were these:

(a) On March 13, 2003, Ms. Geller attended a meeting with her school principal regarding an alleged inappropriate touching of a student, and was placed on administrative leave with pay pending an investigation, although the principal told her this was not a disciplinary action (Finding 4);

(b) Later on the same day, the principal told the union representative, Mr. Doherty that reinstatement and suspension "were not options" for Ms. Geller, and Mr. Doherty understood this to mean that Ms. Geller would be terminated involuntarily. He was convinced that Ms. Geller would not succeed in challenging her termination in view of the history of incidents in which she had been involved during the 2002-03 school year and complaints against her regarding her conduct by parents and school staff, and he was also concerned because Ms. Geller had sounded incoherent during a telephone conversation he had with her, and he had advised her to consult with her primary care physician and with a psychiatrist (Finding 5);

(c) In view of medical problems that became apparent she was placed on administrative leave, Ms. Geller notified the Assistant Superintendent on March 31, 2003 that she would be taking an extended sick leave with pay starting that day and continuing until June 2003. (Finding 6.) She was still on administrative leave, and had not received notice of termination, when she gave this notice. The Superintendent approved her extended sick leave with pay on April 1, 2003 (Finding 7), and the Assistant Superintendent placed her under Family Medical Leave Act status on April 4, 2003, and his notification to Ms. Geller of this action left open the possibility that she might return to work (Finding 8);

(d) The Assistant Superintendent again left open the possibility that Ms. Geller might return to work and be reinstated when, on April 29, 2003, he requested that she state her intentions for the 2003-04 school year (Finding 9), and Ms. Geller responded by requesting reinstatement on May 8, 2003 (Finding 10); and

(e) On June 24, 2003, the Assistant Superintendent notified Ms. Geller that "[a]s per G.L. c. 71, Sec. 41, your services will no longer be needed as a Special Education teacher for the 2003-04 school year." This was intended to be a notice to Ms. Geller of her termination, effective June 25, 2003 (Finding 11).


9/ Although it is tempting to conclude that the retirement notice was built into the Memorandum of Settlement to preserve Ms. Geller's right to receive higher superannuation retirement benefits under M.G.L. c. 32, § 10(1), the Memorandum does not state this intent, and there is no other evidence that the retirement notice requirement was included for this purpose. It is equally plausible that this requirement was intended to transform Ms. Geller's discharge and removal into a voluntary retirement disqualifying her from receiving a termination retirement allowance under M.G.L. c. 32, § 10(2), but this explanation, too, finds no support in the Memorandum's plain language or in the remainder of the evidence before me.