MARINA VYRROS v. CITY OF BOSTON & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1160

MARINA VYRROS

vs.

CITY OF BOSTON & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Marina Vyrros began working at the East Boston High School

as an "English as a second language" teacher during the 2012-

2013 school year. After a series of events led to the end of

her employment in 2016, Vyrros filed a lawsuit alleging

discrimination in violation of G. L. c. 151B, § 4 (16);

retaliation in violation of G. L. c. 151B, § 4 (4), and G. L.

c. 152, § 75B; and violations of procedural due process. Some

of those claims, including as relevant here Vyrros's allegation

that the defendants violated her right to due process (count

three of the first amended complaint), were resolved in favor of

the defendants on cross motions for summary judgment. Other

1 Phillip R. Brangiforte.
claims were tried to a jury, which returned verdicts in favor of

the defendants. After a final judgment entered, Vyrros

appealed. The sole issue on appeal concerns the entry of

summary judgment for the defendants on Vyrros's due process

claim. We agree with Vyrros that summary judgment should not

have entered for the defendants on count three of the first

amended complaint, and accordingly we vacate that portion of the

judgment.

Background. We summarize the uncontested facts as follows,

based on the summary judgment record. After working as a

teacher in the district for the two previous school years,

Vyrros applied for a long-term leave of absence on March 23,

2015. While waiting for approval, Vyrros used her available

paid sick time. Her request for long-term leave was granted for

the period between March 23, 2015, and June 30, 2015.2

Vyrros returned to work for the 2015-2016 school year. On

November 2, 2015, the head of her department conducted an

unannounced observation of one of her classes. The next day,

the head of her department, along with members of the

administrative team, returned to observe Vyrros's class. On

November 4, 2015, Vyrros met with Phillip Brangiforte, the

2 Vyrros did not return to work during the 2014-2015 school
year.

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school's headmaster, and others3 to discuss their observations.

Vyrros left the meeting crying, left work early, and went to

Boston Medical Center for treatment. Vyrros then applied for

workers' compensation benefits. The intake form described her

as suffering from anxiety, depression, and posttraumatic stress

disorder (PTSD) triggered by the observations of her teaching by

school administrators and the follow-up meeting.

On November 9, 2015, Vyrros sent an occupational injury

report to Brangiforte which stated that Vyrros had suffered an

occupational injury. She asked Brangiforte to sign the form and

submit it to the workers' compensation office. Brangiforte did

not sign the form and, consequently, Vyrros's claim was denied

on November 12, 2015. Vyrros, who had not been to work since

the November 4, 2015 meeting, continued to remain out of work

and did not return to work after her workers' compensation claim

was denied. On December 10, 2015, having exhausted her paid

sick time, Vyrros sent an email message to the director of human

capital operations for the Boston public schools, describing

herself as "a teacher on medical leave" and asking if she was

eligible to apply for benefits under the paid sick leave bank.

Initially, she was told that she should be eligible, but later

was told that she was ineligible because she was required to "be

3 Vyrros's "peer assistant" and union representative were
also present.

3
on an approved leave of absence in order to apply for [the] sick

bank."

On January 11, 2016, Brangiforte sent Vyrros a letter

stating that she had been absent without leave since November 6,

2015, and that if she did not report to work or receive a grant

of a leave of absence by January 5, 2016, her failure to report

to work would operate as a resignation. After Brangiforte was

informed by another school administrator that the January 5,

2016, date for Vyrros to either return to work or be granted a

leave of absence was incorrect, he sent a second letter to

Vyrros, identical to the first in all respects except that it

gave the date of January 26, 2016, by which Vyrros had to report

to work or be granted a leave of absence.4

On January 14, 2016, before Vyrros received the second

letter, she sent an email message to Brangiforte expressing

confusion over the return-to-work date contained in the original

letter and advising Brangiforte that she had filed a workers'

compensation claim and her intention was to return to work in a

modified position. She expressed concern about filing a leave

of absence request where the city's lawyers and her workers'

compensation lawyer were close to reaching an agreement that

4 Although the second letter was also dated January 11,
2016, it obviously was sent at some point on or after January
13, 2016, the date Brangiforte was informed that the listed
January 5, 2016, date was incorrect.

4
would allow her to return to work with some accommodations.

That same day, Brangiforte sent an email message to Vyrros that

her claim for workers' compensation did not excuse her from the

normal leave of absence process and that she would need to

correct the situation prior to January 26, 2016, by applying for

leave and providing the necessary documentation signed by her

treating physician. Vyrros applied for leave the next day but

did not submit the required form from her physician by January

26, 2016. On January 22, 2016, the defendants sent Vyrros an

email message reminding her to submit the appropriate

documentation. On January 27, 2016, Brangiforte filed a

"Personnel Action Request Form." The action taken was specified

by a check mark in the box titled "TERMINATION/RETIREMENT." The

reason for the action also was specified by a check mark, in the

box for absence without leave (AWOL). The effective date of the

termination was shown by a handwritten notation "1/26/16."

Although the defendants claim that Brangiforte notified Vyrros

of her AWOL status and the effective date of her resignation on

January 27, 2016, nothing in the record supports an inference

that Vyrros received any notice from the defendants regarding

her employment status at any point after she received the email

message on January 22, 2016.

On January 29, 2016, Vyrros sent an email message to the

defendants containing a doctor's note dated November 5, 2015,

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and which stated that Vyrros would be "unable to work for the

remainder of the trimester, and should be able to return after

the Holidays." On February 29, 2016, Vyrros visited her doctor,

who described her as being extremely stressed.

Discussion. "Our review of a decision on a motion for

summary judgment is de novo." Berry v. Commerce Ins. Co., 488

Mass. 633, 636 (2021). "[I]f the 'pleadings, depositions,

answers to interrogatories, and responses to requests for

admission under [Mass. R. Civ. P. 36, 365 Mass. 795 (1974)],

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law,' then summary

judgment shall be rendered forthwith." Jenkins v. Bakst, 95

Mass. App. Ct. 654, 656 (2019), quoting Mass. R. Civ. P. 56 (c),

as amended, 436 Mass. 1404 (2002). "Summary judgment, when

appropriate, may be rendered against the moving party." Mass.

R. Civ. P. 56 (c).

Vyrros contends that the defendants violated her State

constitutional right to due process by terminating her

employment without proper notice and by failing to follow their

own AWOL policies. The parties agree that when a teacher

voluntarily resigns from employment, no due process is required.

The parties also agree that when the defendants terminate the

employment of a public schoolteacher who served in the district

6
for the three previous consecutive school years -- a teacher

with "professional teacher status," G. L. c. 71, § 41, -- they

are required to follow the procedures outlined in G. L. c. 71,

§ 42 (section 42).

Those procedures are that a teacher employed for at least

ninety days must be given written notice by the school

administrators of an intent to dismiss, along with an

explanation of the grounds for dismissal and documents relating

to those grounds. G. L. c. 71, § 42, second par.5 A teacher

"may [then] seek review of a dismissal decision within thirty

days after receiving notice of [their] dismissal by filing a

petition for arbitration with the commissioner." Id. at fourth

par. "At [any subsequent] arbitral hearing, the teacher and the

school district may be represented by an attorney or other

representative, present evidence, and call witnesses and the

school district shall have the burden of proof"; in deciding

whether the district met its burden, "the arbitrator shall

consider the best interests of the pupils in the district and

the need for elevation of performance standards." Id. at fifth

par.

A teacher like Vyrros, with professional status, "shall
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not be dismissed except for inefficiency, incompetency,
incapacity, conduct unbecoming a teacher, insubordination or
failure . . . to satisfy teacher performance standards . . . or
other just cause." G. L. c. 71, § 42, third par. See School
Dist. of Beverly v. Geller, 435 Mass. 223, 227 (2001).

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Here, the judge denied Vyrros's motion for partial summary

judgment on the defendants' liability under G. L. c. 152, § 75B,

after concluding that there was a material issue of fact as to

whether Vyrros resigned or was terminated. He then allowed in

part the defendants' cross motion for summary judgment on all

claims. As the judge explained, even if Vyrros was terminated,

that decision was subject to arbitration within the statutory

time frame of thirty days, and Vyrros failed to file a petition

for arbitration within that time frame. As a result, the judge

reasoned, the due process claim was time barred, and the

defendants were entitled to summary judgment on count three of

Vyrros's first amended complaint.

When reviewing the defendants' motion for summary judgment,

we must view the facts in the light most favorable to Vyrros.

See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005).

We accordingly assume that Vyrros was terminated and did not

resign from her position. Similarly, we also assume for the

limited purpose of discussing the defendants' motion for summary

judgment that Vyrros did not receive proper notice of such

action. Without sufficient notice, Vyrros argues she had no

opportunity to file a timely petition for arbitration. Put

another way, the thirty-day clock was not triggered.

Based on our review of the record, there is no evidence

that the defendants gave Vyrros any warning that they intended

8
to dismiss her, as required under section 42. Instead, the

letters sent by the defendants stated only that they intended to

treat her failures, namely her failure to report to work if she

had not received an approved leave of absence, as a resignation.

Under section 42 the defendants were required to furnish Vyrros

with "written notice of [their] intent to dismiss and with an

explanation of the grounds for the dismissal in sufficient

detail to permit the teacher to respond and documents relating

to the grounds for dismissal" (emphasis added). G. L. c. 71,

§ 42, second par. Because they did not, Vyrros had no

opportunity to respond or put the defendants to their burden of

proving "inefficiency, incompetency, incapacity, conduct

unbecoming a teacher, insubordination or failure . . . to

satisfy teacher performance standards . . . or other just

cause." G. L. c. 71, § 42, third par. Thus, we agree with

Vyrros that her procedural due process rights were violated as a

matter of law and she is entitled to judgment in her favor on

count three of the first amended complaint.

The defendants argue that summary judgment for Vyrros on

count three of the first amended complaint is not warranted

because of the existence of disputed issues of material fact

relating to whether Vyrros's failure to return to work can be

considered a voluntary resignation. In support of their

position, they rely only on their own policies and procedures

9
that Vyrros's failure to report to work (if she had not received

an approved leave of absence) was, in their interpretation, the

equivalent of a resignation. Specifically, the defendants rely

on a document called the "Superintendent's Circular" for the

school year of 2015-2016, which described an employee's

obligations when seeking an extension of approved leave:

"The employee must request an extension from the Office of
Human Capital prior to the expiration of the approved
leave, this will include submission of medical
documentation and the proper application. If the employee
does not return from the leave of absence and does not
request an extension, the employee will be deemed AWOL.
AWOL employees may be deemed to have voluntarily resigned
from their position or may be subject to termination."
The defendants' position fails for several reasons. First,

even if this circular was somehow binding on teachers, an issue

we need not address, the defendants have failed to show that

this policy applied to Vyrros. Vyrros was not seeking to extend

an approved leave, because as Brangiforte and the director of

human capital operations explicitly told her, she was not on an

approved leave at any point between the first day she failed to

show up to work (November 5, 2015) and the final day when the

defendants determined that she was AWOL. The policy also did

not apply to Vyrros given the undisputed facts that she returned

to work in the 2015-2016 school year and was not on an approved

leave of absence when she failed to return to work on November

5, 2015.

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Second, the defendants' claim that they can unilaterally

determine that a teacher's lack of action is a communication

tantamount to a resignation is without support in the case law

or statutes. We are not persuaded by the cases cited by the

defendants as they do not address the issue before us: whether

a teacher's failure to perform essential duties, such as

reporting to work, can constitute a resignation without the

teacher communicating their intent to resign. Here, the record

contains no support for the defendants' contention that Vyrros

either explicitly or implicitly manifested her intent to resign.

See Monahan v. Romney, 625 F.3d 42, 47 (1st Cir. 2010), cert.

denied, 563 U.S. 976 (2011) (describing evidence that plaintiff

voluntarily resigned). To the contrary, after Vyrros received a

letter from the defendants that said they would consider her

absence as a resignation, Vyrros immediately communicated

directly with the defendants that it was her intent to return to

work in a modified capacity. Contrast Lyons v. Sullivan, 602

F.2d 7, 10 (1st Cir.), cert. denied, 444 U.S. 876 (1979)

(plaintiff took leave of absence then resigned). The failure to

provide the defendants with requested medical paperwork did not

demonstrate Vyrros's intent to resign, nor does it detract from

Vyrros's explicit communication that she intended on returning

to the school. Vyrros's lack of action alone simply did not

communicate an intent to resign; more was required for the

11
defendants to meet their summary judgment burden. Stone v.

University of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir.

1988) ("A public employer obviously cannot avoid its

constitutional obligation to provide due process by the simple

expedient of forcing involuntary 'resignations'").

To be clear, nothing in this decision limits the right of

the defendants, where otherwise permitted by law to do so, to

terminate a public schoolteacher's employment if they fail to

show up to work for a period of time. However, in order to do

so, they must comply with the requirements set forth in section

42. Had they done so in this case, Vyrros would have had thirty

days to file a petition seeking arbitration and, if she then

neglected to do so, we might reach a different result. Instead

the defendants deprived Vyrros of notice and the opportunity to

be heard, protected by the Massachusetts Declaration of Rights

and section 42, by unilaterally determining that she had

resigned.

For all these reasons the judgment in favor of the

defendants on count three of the first amended complaint is

vacated. That count is remanded for entry of a new judgment in

favor of Vyrros, and for a determination of remedy. In all

other respects, the judgment is affirmed.6

6Both parties requested that we tax the costs of the appeal
to the opposing party under Mass. R. A. P. 26 (a), as appearing

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So ordered.

By the Court (Vuono, Rubin &
Walsh, JJ.7),

Assistant Clerk

Entered: June 6, 2024.

in 481 Mass. 1655 (2019). Costs in this case are taxed only as
ordered by us because we are vacating only part of the judgment.
See id. at (a) (4). We hold that costs shall be taxed against
the defendants because we are vacating only the part of the
judgment that Vyrros requested. We decline to address Vyrros's
request for attorney's fees under 42 U.S.C. § 1988, because it
does not rise to the level of appellate argument under Mass. R.
A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

7 The panelists are listed in order of seniority.

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