MACHADO v. SCHOOL COMMITTEE OF METHUEN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, George Machado, appeals from a summary judgment entered in favor of the defendant, the school committee of Methuen (school committee), on a breach of contract claim arising from his termination from a position as a Junior Reserve Officers' Training Corps (JROTC) instructor at Methuen High School.³ Concluding that, on this record, the school committee established that Machado would be unable to demonstrate that the school committee breached its contract with him, we affirm the judgment in the school committee's favor.

Background. We summarize the relevant facts in the light most favorable to Machado, reserving certain of them for later discussion. See Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass. App. Ct. 216, 218 (2018) (on cross motions for summary judgment, appellate court views “the evidence ․ in the light most favorable to the party against whom judgment is to enter” [quotation omitted]).

Machado was hired as a JROTC instructor at Methuen High School in November, 2008; he continued working in that capacity until his termination in 2013. In December, 2008, Machado signed a written employment contract for the 2008-2009 school year. Although he did not sign a new contract for the next or any subsequent year, the high school principal provided Machado annually with letters informing him of his “assignment” for the following school year.

On February 14, 2013, Machado was terminated from his employment after a JROTC student reported that Machado had permitted the in-class display of a YouTube video titled “The Amazing Racist” (video).⁴ In opposing the school committee's motion for summary judgment, Machado did not seriously dispute that he was present in the JROTC class when the video was played,⁵ or that the video was inappropriate for class presentation,⁶ and he does not do so on appeal. For present purposes we accept Machado's testimony that he was not the instructor responsible for the class in which the video was played, and that he was unaware of the video playing in front of where he sat. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 689 (2016) (court does not assess credibility in deciding motion for summary judgment).

Discussion. We review a decision on summary judgment de novo, based on the record presented to the motion judge. Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116 (2017). “Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). Where the opposing party has the burden of proof, the moving party must demonstrate that the opposing party “has no reasonable expectation of proving an essential element of that party's case” (quotation omitted). Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 (2003).

On his breach of contract claim against the school committee, Machado had the burden of proving “that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his ․ part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result.” Bulwer, 473 Mass. at 690, citing Singarella v. Boston, 342 Mass. 385, 387 (1961). The record here was sufficient to establish, for summary judgment purposes, that Machado had an employment contract with the school committee at the time of his termination. See, e.g., Goldhor v. Hampshire College, 25 Mass. App. Ct. 716, 718 & n.4 (1988). The only other element of Machado's claim in dispute is the existence of a breach of the contract; accordingly, we focus on that question.

The parties both frame their arguments on the understanding that if Machado had an employment contract with the school committee in 2013, he could be terminated only for “just cause.” Thus, although neither the contract that Machado signed in 2008 nor any of the subsequent assignment letters explicitly required “just cause” for termination, we assume without deciding that the just cause standard governs. Under this standard, Machado could be terminated if, at the time of his firing, there

“existed (1) a reasonable basis for employer dissatisfaction with a[n] ․ employee, entertained in good faith, for reasons such as lack of capacity or diligence, failure to conform to usual standards of conduct, or other culpable or inappropriate behavior, or (2) grounds for discharge reasonably related, in the employer's honest judgment, to the needs of his business. Discharge for a ‘just cause’ is to be contrasted with discharge on unreasonable grounds or arbitrarily, capriciously, or in bad faith” (emphasis omitted).

Goldhor, 25 Mass. App. Ct. at 723, quoting Klein v. President & Fellows of Harvard College, 25 Mass. App. Ct. 204, 208 (1987).

Although we agree with Machado that, viewed in the light most favorable to him, the record does not establish that he presented the video to the class, or that he was necessarily aware that the video was being played, that does not end our analysis. As the Supreme Judicial Court has observed in the context of employment arbitration appeals, “[p]ublic school teachers hold a position of special public trust”⁷ that requires more than the communication of particular skills, and extends to the maintenance of an appropriate school environment. School Comm. of Lexington v. Zagaeski, 469 Mass. 104, 118 (2014) (Zagaeski), citing Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 349 (1983). See Garney v. Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 391 (2014). “[Students] must be able to rely on their teachers ․ to exercise sound judgment and maintain appropriate boundaries, even when they themselves may be unable to do so” (quotation omitted). Zagaeski, supra. With these considerations in mind, we conclude that there is no genuine issue that Machado's failure to recognize the inappropriate content being presented to the JROTC class in session around him was a lapse in judgment that amounted to good cause for his termination, even if he were not the instructor assigned to that class at the time the video was played. Put another way, it is no defense for Machado to assert that he was unaware that the inappropriate video was being shown; as a teacher present in the classroom it was his responsibility to be sufficiently aware of the activities and conditions in the classroom to recognize that an inappropriate video was being shown to the class. Cf. id. (where teacher's joke in response to students' in-class discussion arguably could have been understood as promoting or condoning sexual harassment, and where school district's termination decision was not shown to be pretextual, arbitrator exceeded authority in ordering terminated teacher's reinstatement).

Machado's remaining arguments require little discussion. We are not persuaded by Machado's argument that if Judith A. Scannell, Methuen's superintendent of schools in 2013, lacked the statutorily-required certification for employment as superintendent,⁸ her act in terminating him was invalid as a result. See G. L. c. 71, §§ 38G (establishing certification requirements for teaching and administrative positions), 41 (permitting school committee to contract for superintendent of schools). We find no legal support for Machado's argument that a lack of certification alone would have invalidated the actions Scannell took while employed as superintendent of schools. Cf. Commonwealth v. Vaidulas, 433 Mass. 247, 252-253 (2001) (“A de facto officer is one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public ․ So far as the validity of their action is concerned there is no difference between an officer de facto and an officer de jure” [quotations omitted]); Varga v. Board of Registration of Chiropractors, 411 Mass. 302, 303-304 (1991) (collateral attacks, those which challenge right and title of members to hold office in proceeding meant to challenge their actions, are not permitted). Further, Machado fails to articulate any valid basis on which Scannell's lack of statutory certification would have amounted to a breach of Machado's employment contract.

We also reject Machado's contention that he was protected by the terms of the collective bargaining agreement (CBA) between the Methuen public schools and the Methuen Education Association (union). Machado concedes that he was not a member of the union to which the CBA related and he has failed to rebut the school committee's evidence that he was not a part of any nonunion bargaining unit for the purposes of the CBA. Further, nothing in Machado's written contract for the 2008-2009 school year or in the annual assignment letters signed by the Methuen High School principal for each successive year that he worked at the school explicitly incorporated the CBA into Machado's employment agreement. See NSTAR Elec. Co. v. Department of Pub. Utils., 462 Mass. 381, 394 (2012), quoting Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1345 (Fed. Cir. 2008) (“the language used in a contract to incorporate extrinsic material by reference ․ must clearly communicate that the purpose of the reference is to incorporate the referenced material into the contract [rather than merely to acknowledge that the referenced material is relevant to the contract, e.g., as background law or negotiating history]”). When pressed on the point in his deposition, Machado testified that he “just assumed that” he was entitled to the protections of the CBA. We conclude that there is no genuine issue that the CBA was not incorporated into Machado's contract.

To the extent we have not specifically addressed any of the parties' arguments, we have considered them and found them to be without merit. We decline the school committee's request for appellate attorney's fees.

Judgment affirmed.

FOOTNOTES

3.   Machado's verified complaint included additional claims seeking declaratory judgment against the school committee and another defendant, Dr. Chester. A panel of this court affirmed the dismissal of those claims, but vacated the dismissal of the breach of contract claim against the school committee and remanded it to the Superior Court. See Machado v. Commissioner of the Dep't of Elementary & Secondary Educ., 91 Mass. App. Ct. 1111 (2017).

4.   Methuen's superintendent of schools, Judith A. Scannell, signed the letter informing Machado of his termination. Scannell's letter identified an additional consideration that went into the decision to terminate Machado's employment -- a failure to follow instructions given by the school superintendent during the investigation into the student's complaint about the in-class video. Because, as we discuss, infra, we conclude that Machado's failure to prevent or discontinue the play of the video, without more, provided just cause for his termination, we do not consider the effect of this additional concern.

5.   Although at the motion hearing Machado's counsel argued that the record failed to establish that the incident happened, her argument was not consistent with the record. Prominently, in Machado's deposition, he identified himself in a photograph showing him seated in front of the screen on which the video was playing. Machado also confirmed the accuracy of an account of his being in the class while the video was played.

6.   Machado testified that had he seen the video being played, even if he were not the instructor assigned to the class, he would have “said something about it,” and would have “told them to shut it down.”

7.   Acknowledging that, so far as the record reveals, Machado was an “instructor” and not a “teacher” at the times relevant to this appeal, we consider the public trust principles applicable to Machado's role as an instructor in the Methuen public schools.

8.   Machado has failed to present competent evidence to support this contention.