Sch. Comm. of Lexington v. Zagaeski

• Decision Date: 14 July 2014
• Docket Number: SJC–11536.
• Citation: 12 N.E.3d 384,469 Mass. 104
• Parties: SCHOOL COMMITTEE OF LEXINGTON v. Mark ZAGAESKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 104
12 N.E.3d 384

SCHOOL COMMITTEE OF LEXINGTON
v.
Mark ZAGAESKI.

SJC–11536.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted March 4, 2014.
Decided July 14, 2014.

12 N.E.3d 386

Geoffrey R. Bok (Colby C. Brunt with him), Boston, for the plaintiff.

Daniel S. O'Connor, Wrentham, (Laura Elkayam, Boston, with him) for the defendant.

Stephen J. Finnegan, Boston, & Michael J. Long, for Massachusetts Association of School Committees, Inc. & another, amici curiae, submitted a brief.

Ira Fader for Massachusetts Teachers Association, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & LENK, JJ.

Opinion

SPINA, J.

In this case, the plaintiff, the school committee of Lexington (school committee), appealed a decision by a Superior Court judge confirming an arbitrator's award reinstating a teacher, Mark Zagaeski, after the school district superintendent had terminated his employment for conduct unbecoming a teacher. We granted the plaintiff's application for direct appellate review. This case presents an issue left unresolved by this court in School Dist. of Beverly v. Geller, 435 Mass. 223, 755 N.E.2d 1241 (2001) (Geller ). We must determine the scope of authority granted to an arbitrator by G.L. c. 71, § 42 (teacher dismissal statute), to reinstate a teacher who was dismissed for conduct that the arbitrator found constituted, at least nominally, a valid basis for dismissal.¹

We conclude that in light of the stated purposes of the Massachusetts Education Reform Act of 1993 (Reform Act or Act), of which the teacher dismissal statute is a part, the arbitrator exceeded the scope of his authority by awarding reinstatement of Zagaeski on the basis of the “best interests of the pupils” in the district, despite having found that the school district carried its burden to show facts amounting to conduct unbecoming a teacher. See G.L. c. 69, § 1, as appearing in St.1993, c. 71, § 27; G.L. c. 71, § 42. We reverse the decision of the Superior Court judge and vacate the arbitration award.²

1. Background. a. Facts.³ Zagaeski's dismissal from his position at the

12 N.E.3d 387

Lexington public schools arose from a series of incidents that took place prior to the spring of 2011.⁴ By that time,

Zagaeski had been employed by the Lexington school district (school district) since 2000 as a physics teacher.⁵ Until 2011, Zagaeski's teaching evaluations had been uniformly positive, and he had never been disciplined by the district. He was commended by classroom observers for creating a classroom environment in which students felt comfortable asking questions and were engaged in the learning process.

At Lexington High School, Zagaeski taught an integrated math and physics class for students who tended to be at-risk academically and had struggled in math and science classes in the past. Many of these students also faced behavioral issues and some had been diagnosed with attention deficit disorder and other learning challenges. In order to engage this student population, Zagaeski developed a teaching style that was less hierarchical. He encouraged collaboration and a more relaxed classroom atmosphere. The arbitrator found that, as a result, “the students had a more familiar relationship with Dr. Zagaeski than they would have with a teacher following a more traditional teaching style” and that “[Zagaeski] was more flexible with boundaries than another teacher might have been.” However, Zagaeski's nontraditional boundaries eventually caused problems.

In April, 2011, a seventeen year old female student in Zagaeski's class was disappointed with the grade she was then receiving and asked Zagaeski, in front of her classmates, whether there was any way she could “pay ... for a better grade.” A male student in the class asked, “You mean short of sexual favors?” Rather than correcting the male student for making a comment encouraging the trade of sex for grades, Zagaeski chose to engage in the dialogue himself. “Yes, that is the only thing that would be accepted,” he stated. Students in the classroom laughed, and Zagaeski continued by saying, “Don't be ridiculous” and told the female student that the only way to raise her grade would be better work. He then encouraged her to come after school for extra help if she had questions.

Two days later, the female student did go to Zagaeski's classroom after school for extra help. Zagaeski was in his classroom

assisting a second female student in setting up equipment for laboratory work that she would be doing that afternoon. The first female student again asked Zagaeski, “[C]an't I just pay you for a better grade?” Zagaeski responded, “Well, no ... you know that the only thing that I would accept is a sexual favor.” The second female student exclaimed, “Dr. Z!” and laughed. However, the first female student made a complaint to her guidance counsellor about Zagaeski's comments, which the arbitrator determined was a result of the student feeling troubled by the comments.

12 N.E.3d 388

Following the student's complaint, the school principal commenced an investigation, which was then taken up by the central administration. Zagaeski was provided with written notice that an investigation had commenced into allegations of sexual harassment against him, and he was placed on administrative leave. The assistant superintendent then interviewed a number of staff members and students. He also arranged for an investigative interview of Zagaeski, which was attended by the assistant superintendent, counsel for the school district, union counsel for Zagaeski, and the president of the teacher's union.

Following the interview, Zagaeski came to understand that the allegations against him were quite serious. He then wrote a letter to the assistant superintendent expressing remorse and an intent to improve his classroom approach. In the letter he admitted to “the weakness of an appropriate boundary between myself and my students” and the “need to create much clearer guidelines, not only for the students in my classroom, but for my own behavior towards students as well.” He also stated, “Allowing ... sexually inappropriate comments in the class to go unchallenged, and even to take part in that banter myself is completely out of line....”

Subsequently, the district superintendent reviewed Zagaeski's letter and his personnel file and was briefed by the assistant superintendent regarding the investigative interview and other interviews that the assistant superintendent had conducted with students and staff. The superintendent thereafter provided Zagaeski with formal notice of the district's intent to dismiss him from employment and of his right to meet with the superintendent to provide additional information on his own behalf. Zagaeski requested such a meeting, which he attended with counsel. Also present at the meeting were the superintendent and assistant superintendent, counsel for the school district, a representative from the Massachusetts Teachers Association and the president of the teacher's union.

Soon thereafter, the superintendent informed Zagaeski in writing that he was dismissed from his position. The dismissal was based on six separate instances of conduct found to constitute conduct unbecoming a teacher. The dismissal letter also stated that any one of the instances alone would have been sufficient to justify his dismissal.

b. Arbitration award. Pursuant to his rights under the teacher dismissal statute, Zagaeski timely filed an appeal from the school district's dismissal decision, which, as mandated by the statute, resulted in arbitration proceedings. See G.L. c. 71, § 42, fourth par. Based on undisputed evidence and Zagaeski's testimony at the arbitration hearing, the arbitrator concluded that the school district had carried its burden to establish only one of its six bases for dismissal of Zagaeski, specifically Zagaeski's admission that, “in response to a female student's inquiry as to whether she ‘could just pay ... for a higher grade’ [he] responded, ‘No. The only thing I would accept is a sexual favor.’ ”

Regarding this conduct, the arbitrator found that although it was intended only as a joke, it rose to the level of sexual harassment as defined in the school committee's “Policy Prohibiting Harassment.”⁶

12 N.E.3d 389

The arbitrator further found that even though the comments by Zagaeski were not intended to be taken in earnest, objectively they were inappropriate comments for a teacher to make to a student. Furthermore, the comments had the subjective effect of offending the student or making her sufficiently uncomfortable to lodge a complaint with her guidance counsellor. Therefore, the arbitrator found that these comments created a hostile or offensive educational environment for the female student.

Nevertheless, the arbitrator went on to find that this instance of sexual harassment was “relatively less egregious” and that the two comments regarding the trade of sex for grades, separated by

two days, could be viewed as “one isolated instance” of sexual harassment. Thus the arbitrator concluded that...