Black v. School Committee of Malden

• Decision Date: 26 April 1974
• Citation: 310 N.E.2d 330,365 Mass. 197
• Parties: , 8 Fair Empl.Prac.Cas. (BNA) 132, 8 Empl. Prac. Dec. P 9659 Francine E. BLACK v. SCHOOL COMMITTEE OF MALDEN et al. (and a companion case) 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 330

310 N.E.2d 330

365 Mass. 197, 8 Fair Empl.Prac.Cas. (BNA) 132,

8 Empl. Prac. Dec. P 9659

Francine E. BLACK

v.

SCHOOL COMMITTEE OF MALDEN et al. (and a companion case)¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 9, 1974.

Decided April 26, 1974.

Leo P. DeMarco, Boston City Solicitor, for the School Committee of malden.

Robert I. Deutsch, Boston (Paul H. Rothschild, Boston, with him), for Francine Black.

Gerald B. Gallagher, Malden (Robert D. Smith with him), for Kathleen M. Lane.

Jeffrey M. Freedman, Boston, for Massachusetts Teachers Assn., amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

The school committee and superintendent of schools of Malden, defendants, appeal from a final decree against them in declaratory suits brought by two teachers in the Malden public schools. The questions relate to so called 'maternity leave' and our task has been lightened by recent decisions of the Supreme Court of the United States on the constitutional aspects of that subject. See Cleveland Bd. of Educ. v. LaFleur, and the companion case Cohen v. Chesterfield County Sch. Bd., 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). ²

The facts of the present appeals are set our mainly in statements of agreed facts and stipulations of the parties. The plaintiffs, Mrs. Francine Black and Mrs. Kathleen M. Lane, were engaged as teachers by the Malden school department in September, 1964, and after September, 1967, they qualified under the provisions of G.L. c. 71, § 41, as teachers serving 'at discretion,' i.e., with tenure. It can be surmised that their pregnancies occurred in late June or early July, 1968. Early in November, 1968, they severally informed the Superintendent of schools that they were pregnant and requested leaves of absence on that account to commence on January 2, 1969.

In purported response to these requests the school committee voted at its meeting on November 12, 1968, to accept the plaintiffs' 'resignations' effective December 31, 1968, 'in view of the fact'--as the superintendent wrote--that 'leaves of absence are not granted for maternity reasons.' Although the letters did not refer expressly to any rules of the school committee, they were a reflection of c. IV, § 15, of those rules, providing that a married teacher must resign her position at the end of the fourth month of pregnancy, and, further, that she was then not eligible for reinstatement until six months after the birth of her child. The text of § 15 is reproduced in the margin. ³

The plaintiffs answered the committee promptly, denying that they had ever offered to 'resign' or that the school committee had any authority to accept their 'resignations.' They said they were withdrawing their requests for leaves and intended to continue to carry out their teaching duties. Early in December, 1968, the plaintiffs filed complaints with the Massachusetts Commission Against Discrimination (MCAD) alleging that the school committee had discriminated against them on the ground of sex, but they continued to teach through January 31, 1969, after which they absented themselves. They received paychecks through March 10, 1969, which evidently included sick pay for thirteen consecutive teaching days after January 31 on which they were absent (plus pay for other benefits). These March checks were the last they received, and they have not taught in the Malden schools since.

Rather inconsistently with the attitude shown in the vote of November 12, 1968, the superintendent of schools wrote to the plaintiffs on March 11, 1969, quoting from the school committee's rules as to sick leave ⁴ and requesting a physician's certificate of disability with respect to their absence. The plaintiffs complied with the request by furnishing letters from their physicians stating that they were under doctors' care and unable to work at the time. But on March 21, 1969, the superintendent wrote to the plaintiffs advising them that sick leave benefits did not extend to pregnancy and 'terminating' their employment as of that date. ⁵ Mrs. Black's child was born on April 4; Mrs. Lane's on March 30.

On April 7, 1969, MCAD's investigating commissioner notified the superintendent of schools that he had made a finding of probable cause in respect to the complaints and he suggested terms of conciliation which included a revocation of the termination order of March 21, 1969, a six months' maternity leave retroactive to January 31, 1969, with a right to return by July 31, 1969, with benefits, if the teachers manifested acceptance by that date, and payment of $250 to each of them for expenses and inconveience incurred. The commissioner asked for a response from the Malden authorities by April 16, 1969. The school committee, however, took no action until July 1, 1969, when it voted to accept the MCAD terms and so informed the plaintiffs and the commission. The plaintiffs did not concur. The retroactive six month leave would have required them to repay the money received for the period following January 31, 1969 (more than $900 in each case), meaning in effect that they would not receive any sick pay during the period of the proposed maternity leave.

There were no further proceedings before the MCAD. In the impasse the teachers commenced in the Superior Court actions of mandamus later amended by leave of court into petitions for declaratory and consequential relief. The suits eventuated in the final decree under review (covering both cases) declaring the dismissals of the plaintiffs from employment to be illegal and a nullity, ordering reinstatement of the plaintiffs at the pay scale and with the seniority and other benefits they would otherwise have attained, and awarding Mrs. Black a total of $41,144 for unpaid salary to the time of decree and interest thereon and expenses of suit[365 Mass. 202] --see g.l. C. 71, § 43b ⁶--ANd making a like award to Mrs. Lane of $45,939.49. ⁷

1. In their argument in this court the defendants suggest that the present actions are barred because of the institution of the MCAD proceedings. General Laws c. 151B sets out an administrative procedure for enforcement of the anti-discrimination statutes of the Commonwealth. See our recent decision in EAST CHOP TENNIS CLUB V. MASSACHUSETTS COMMN. AGAINST DISCRIMINATION, --- MASS. ---, 305 N.E.2D 507 (1973)^A. The sense of c. 151B, § 9, is that recourse to judicial remedy for an alleged unlawful practice within the statute (see § 4) is precluded when MCAD proceedings are pending covering the same grievance. But the MCAD complaints, filed more than three months before the termination letters of March 21, 1969, concerned only the failure of the school committee to grant the plaintiffs leaves of absence for pregnancy and the committee's attempted acceptance of the plaintiffs' nontendered resignations. In contrast, the plaintiffs' suits complained of the March 21 dismissals and looked to reinstatement with back pay. The investigating Commissioner's conciliation proposal was an effort to resolve the entire controversy which had become significantly enlarged since the filing of the MCAD complaints. It may be questioned whether the Commissioner could thus on his own motion extend the matters which had been confided to the commission and by that means foreclose, the plaintiffs' recourse to judicial remedies. In all events the administrative proceedings ceased when the conciliation proposal failed of acceptance. At that point it was up to the commission, under c. 151B, § 5, to issue its own notice calling for a hearing (or commence a suit in equity in the Superior Court). The commission did not act, and no further steps have been taken over a period of more than four years. In fact it appears that all concerned viewed the resort to MCAD as moot or abandoned after negotiations broke down and the plaintiffs had presented to the court the basic issue of the legality of the Malden rules with its constitutional implications. As § 9 is not applicable on these facts, we need not inquire whether, having omitted to raise in the court below, as a ground for abating the present suits, the issue of the plaintiffs' failure to pursue the administrative process, the school committee may be heard to make that contention for the first time in this court. Cf. Westland Housing Corp. v. Commissioner of Ins. 346 Mass. 556, 557, 194 N.E.2d 714 (1963); Massachusetts Mut. Life Ins. Co. v. Massachusetts Life Ins. Co., 351 Mass. 283, 285, 289, 218 N.E.2d 564 (1966).

2. By its letters of March 21, 1969, the school committee unilaterally 'terminated' the plaintiffs' employment. The plaintiffs argue that the terminations were acts of 'dismissal' of tenured teachers within G.L. c. 71 § 42, ⁸ and illegal because they were not preceded by notice and hearing and accompanied by the other procedural safeguards envisaged by this fundamental statutory provision. ⁹ It is agreed that the defendants did not purport to comply with that statute, but they maintain that what was involved in each case was a 'forced resignation' (as they call it) under the rule as to pregnancy quoted in n. 3 above, and so § 42 did not apply.

The letters of March 21 were abrupt and flat, susceptible of the meaning that the plaintiffs were absolutely terminated without any chance of reinstatement, possibly because of their refusal to resign and quit work as required by the rule. The plaintiffs point out that the school committee has never affirmatively invited them to return. All this looks like 'dismissal.' But we think the letters are rather to be construed as a final though belated decision by the school committee, after internal deliberations, to enforce their rule, especially as to reinstatement. Indeed, in the case of the plaintiff Lane the statement of agreed facts makes it explicit that the termination was in accordance with the rule requiring the pregnant teacher to...