WILLIAM J. MARTIN vs. SCHOOL COMMITTEE OF NATICK & another [Note 1].

LIACOS, J. The plaintiff, William J. Martin, a former teacher in the Natick public schools, filed suit in the Superior Court in Middlesex County against the defendants, the Natick school committee (school committee) and the superintendent of schools for Natick (superintendent), alleging that the school committee's termination of his employment violated his contractual, statutory, and constitutional rights. The defendants filed a motion for summary judgment, accompanied by an affidavit of the superintendent. The plaintiff filed a counter-affidavit. Following a hearing and the submission of posthearing memoranda, the judge granted summary judgment for the defendants. Martin appealed. We transferred his appeal from the Appeals Court to this court on our own motion. We affirm the judgment.

The record appendix consists principally of the pleadings, the plaintiff's affidavit and appendices, and the defendant superintendent's affidavit and appendices. [Note 2] We apply the principle that "the inferences to be drawn from the underlying facts contained in [the materials provided us] must be viewed in the light most favorable to the party opposing the motion [the plaintiff]." Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974).

Martin was a tenured teacher in the Natick public school system for twenty-one years. Most of the time he taught grades five and six. For the 1979-1980 school year, his last year of teaching, he was assigned to teach the fourth grade. Martin received poor evaluations of his teaching for the 1977-1978, 1978-1979, and 1979-1980 school years. Evaluating his performance

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in 1977-1978, Martin's school principal for that year wrote, "Mr. Martin has taught fifth grade this year. It has not been a good year for Mr. Martin or the children. "The principal described four problem areas but concluded by commending Martin for the writing that the children did each week. In 1978-1979, when the school system began using a performance rating scale which ranged from outstanding to unsatisfactory, Martin received an over-all rating of "fair" from yet another school principal. He was one of three teachers in a total of approximately 150 teachers to receive a rating of "fair." None received a lower rating. For 1979-1980, Mr. Martin received a rating of "unsatisfactory" from A. John Crisafulli, a third principal. This 1979-1980 evaluation was prepared on March 1, 1980. [Note 3]

On January 21, 1980, Martin was suspended for five days for "unbecoming conduct and/or other good cause." After a hearing conducted on January 29-31, 1980, Martin was suspended for an additional thirty days for the same reasons. [Note 4]

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On January 31, 1980, the superintendent notified Martin that a hearing would be held by the school committee on March 11, 1980, to decide whether Martin should be dismissed for "inefficiency, incapacity and/or other good cause." There is no indication of such a hearing having taken place on March 11, 1980.

Previously, on December 13, 1979, the school committee had voted to reduce the number of elementary school teachers by ten because of a decline in student enrollment. On April 7, 1980, the superintendent wrote to Martin informing him of the superintendent's recommendation to the school committee that Martin be terminated "[a]s a result of the reduction in force [RIF] necessitated by declining enrollment. " The superintendent wrote to Martin on April 16, 1980, informing him again of the recommendation of termination, and that the school committee would vote on the recommendation on June 16, 1980. Martin requested, and June 19, 1980. On the latter date, the school committee voted to dismiss Martin for "other good cause" -- a reduction in force caused by declining enrollment. Martin was so informed by letter dated June 24, 1980. On October 9, 1980, the Teachers' Retirement Board (board) held a hearing to determine whether Martin's dismissal was justified. On March 31, 1981, the board issued its decision upholding Martin's dismissal as justified by the RIF. See G. L. c. 32, Sections 16 (2) and 20 (2) (1984 ed.). [Note 5]

Martin's principal contention before us is that he was entitled to a "meaningful hearing" under G. L. c. 71, Section 42, [Note 6] and under

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the due process clause of the Fourteenth Amendment to the Federal Constitution. [Note 7] We do not agree. In Milne v. School Comm. of Manchester, 381 Mass. 581, 582 (1980), we held that the notice and hearing provisions of G. L. c. 71, Section 42, do not apply to "any dismissal decision based solely on an actual decrease in the number of pupils in the schools of a municipality." We based this decision on the clear language of G. L. c. 71, Section 42, which states: "Neither this [Section 42] nor the preceding section [Section 41] shall affect the right of a committee to dismiss a teacher whenever an actual decrease in the number of pupils in the schools of the town renders such action advisable." We also held that a teacher who is dismissed solely because of decreasing enrollments had no procedural due process right to a hearing. This was because a teacher dismissed in such circumstances "had no statutory . . . right to expect continued employment in the face of declining enrollment." Milne at 583. By the terms of G. L. c. 71, Section 42, "a teacher has no legitimate claim of entitlement to continued employment" in the face of declining enrollments. Milne, supra. Because there is no legitimate expectation of continued employment under these circumstances, dismissal does not constitute a deprivation of a property interest, and thus no claim can be made that property has been taken without due process. Our

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decision in Milne applies squarely to the present case. See also Boston Teachers Local 66 v. School Comm. of Boston, 386 Mass. 197, 214-216 (1982); Lane v. School Comm. of Paxton, 378 Mass. 794 (1979).

Martin attempts to distinguish his case from Milne by arguing that the reason given for his dismissal was a fabrication, and that his firing was arbitrary and unreasonable. See Milne, supra at 583 n.3, where we stated that the plaintiff in that case raised "no claim that the reason given for his dismissal was a fabrication, that the school committee's action was arbitrary or unreasonable, or that the plaintiff's statutory or other rights in relation to other teachers, tenured or untenured, were denied," and that we did not need to consider whether a hearing would be required if the plaintiff had raised such claims. See also Boston Teachers Local 66, supra at 216 (General Laws c. 71, Section 42, does not require notice and hearing "when a tenured teacher is dismissed solely because of budgetary considerations provided, of course, that such reasons are not proffered by the school committee as a sham or subterfuge"). In essence, Martin argues that he was terminated because of the 1979-1980 evaluation in which he was rated "unsatisfactory" and that his termination as part of the RIF was "nothing more than a ruse or subterfuge to dismiss [him]." In so arguing, Martin misconceives the fabrication argument. He does not dispute that enrollments were declining, nor that there was a corresponding need for a RIF. Thus, he admits that there was a genuine need to dismiss some teachers -- and therefore that the need for the RIF was not fabricated. [Note 8]

The nub of Martin's argument seems to be that the school committee already had initiated a process to dismiss him for "inefficiency, incapacity and/or other good cause" when it switched tracks and dismissed him as part of the RIF. Thus, Martin argues that the facts show that the school committee actually wanted to fire him for inefficiency or incapacity as a

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teacher, but dismissed him as part of the RIF. In so doing, Martin argues, the school committee should not be allowed to circumvent the notice and hearing requirements which would apply if he actually had been dismissed for inefficiency or incapacity. Despite its intuitive appeal, we cannot agree with this argument. As quoted above, the statute flatly states: "Neither this [Section 42] nor the preceding section [Section 41] shall affect the right of a committee to dismiss a teacher whenever an actual decrease in the number of pupils in the schools of the town renders such action advisable." G. L. c. 71, Section 42. Thus, as long as there is an actual need for a RIF, the school committee is free to dismiss teachers without complying with the notice and hearing requirements of G. L. c. 71, Section 42. Martin does not argue that there was no real need for the RIF. [Note 9]

Martin makes a second argument to distinguish his case from Milne. In Milne there was no claim of a violation of the applicable collective bargaining agreement. Milne, supra at 582 n.2. Here, however, Martin directs our attention to the collective bargaining agreement which provides that, in the event of a RIF which affects tenured teachers, the school committee "shall retain . . . those teachers whom it determines are most qualified." [Note 10] We agree with Martin's implied argument

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that the collective bargaining agreement sets forth a process to be used by the school committee in a RIF, which process is valid, as not interfering with the exclusive managerial prerogatives of the school committee. See Boston Teachers Local 66, supra at 212-213.

In the present case, art. XV, Section 1(D), of the collective bargaining agreement, see supra note 10, described the factors which the school committee would use in the event of a RIF. Martin argues that summary judgment should not have been granted for the defendants because he has valid claims under the collective bargaining agreement about which there exist genuine issues of material fact. He alleges four separate breaches: Crisafulli's failure to follow the agreed procedures in writing the 1979-1980 evaluation; the superintendent's failure to notify Martin before April 15, 1980, of his proposed dismissal due to declining enrollments; a failure to honor Martin's seniority rights as allegedly required by the collective bargaining agreement; and a failure to withdraw the 1979-1980 evaluation from Martin's personnel file as allegedly promised.

1. The two claims pertaining to the 1979-1980 evaluation. The superintendent avers in his affidavit that neither Martin nor anyone on his behalf "pursued a grievance concerning the 1979-80 evaluation of Mr. Martin past step 4, submission to the school committee," and that the union had refused to take Martin's grievance to arbitration. [Note 11] Martin does not contradict these statements. Instead, he argues that he was not required to pursue the grievance procedure, and that he was entitled to

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elect to pursue his statutory remedy concerning his dismissal. For this proposition Martin relies on G. L. c. 150E, Section 8. [Note 12] Even if we accept Martin's interpretation of G. L. c. 150E, Section 8, it is unavailing. Martin claims that he was entitled to circumvent the grievance procedure and to pursue his statutory remedy directly. However, he pursued his statutory remedy after he had initiated the grievance procedure. Thus, he did not "elect" his statutory remedy, and the interpretation of G. L. c. 150, Section 8, which he urges does not apply to his case. The trial judge properly granted summary judgment for the defendants on Martin's contract claims pertaining to the 1979-1980 evaluation. [Note 13]

2. Late notification. Article XV, Section 3, of the collective bargaining agreement provides: "Except in unforeseen circumstances, teachers who are to be affected by a reduction in staff will be notified by April 15 of the school year preceding the school year in which the reduction is to take place." Martin argues that he was not notified until April 16, 1980, of the RIF recommendation. The record contains two letters from the superintendent to Martin informing Martin that his termination had been recommended due to the RIF. One letter is dated April 7, 1980, and the other is dated April 16, 1980. Even if Martin received only the April 16, 1980, letter (which he does

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not claim), he has not alleged that any harm flowed from the late notice, nor is any apparent from the record.

3. Seniority rights. In Martin's last contract claim, he alleges that the school committee disregarded his seniority rights under art. XV, Section 1(D), of the collective bargaining agreement. See note 10, supra. The record does not support this claim. The collective bargaining agreement provides in pertinent part: "If the Committee determines that qualifications within the disciplines set forth below are approximately equal then the teacher with the most seniority qualification shall be retained." Martin makes no allegations nor offers any evidence that the school committee determined his qualifications to be approximately equal to those of the other teachers in his discipline, nor that the school committee should have so determined. Thus there is no basis for his claim that his seniority rights were not honored. Summary judgment was granted properly for the defendants. [Note 14]

Judgment affirmed.