Wrongful Termination Cases

Carole J. Zaniboni vs. Massachusetts Trial Court. No. 10-P-1115. Suffolk. September 20, 2011. January 30, 2012. Present: Mills, Brown, & Wolohojian, JJ. Further appellate review granted, 462 Mass. 1101 (2012). Anti-Discrimination Law, Age, Employment, Prima facie case, Burden of proof. Employment, Discrimination. At the trial of a civil action alleging age discrimination in violation of G. L. c. 151B arising from the defendant employer’s failure to promote the plaintiff, the judge erred in denying the defendant’s motion for judgment notwithstanding the verdict, where, although the plaintiff established a prima facie case, the defendant countered with a legitimate nondiscriminatory reason for its employment decision (i.e., the far superior qualifications of the promoted candidate), and the plaintiff failed to offer evidence, other than unsubstantial anecdotal and generalized statements about the defendant’s general practice of promoting young employees, from which a reasonable jury could conclude that the defendant’s reason was a pretext. [218-222] Civil action commenced in the Superior Court Department on July 16, 2001. The case was tried before Stephen E. Neel, J., and a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was heard by him. Paul R. Chomko (Donald J. Bertrand with him) for the plaintiff. Daniel G. Cromack, Assistant Attorney General, for the defendant. Brown, J. Carole J. Zaniboni (plaintiff) brought suit against the Massachusetts Trial Court (Trial Court) alleging age discrimination in violation of G. L. c. 151B based upon the Trial Court’s (1) rescinding her promotion as head administrative assistant (HAA), and (2) failing to promote her as deputy assistant register (DAR). On January 31, 2006, a jury returned a verdict in favor of the plaintiff on the HAA claim and in favor of the defendant on the DAR claim. The jury awarded the plaintiff monetary damages. The defendant moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial judge allowed the motion for new trial, from which the plaintiff now appeals. The defendant cross-appeals from the denial of its motion for judgment notwithstanding the verdict. Background. In 1998, the Trial Court advertised two level fifteen HAA positions at the Plymouth Division of the Probate and Family Court Department (Plymouth court). Among the applicants vying for those HAA positions were Laurie Devitt, Juanita Gomes, and the plaintiff. The plaintiff and Gomes were offered the positions. Devitt filed a grievance, and an arbitration hearing was scheduled for December 2, 1999. Concerned whether the interviews were conducted properly, counsel for the Trial Court offered to redo the selection process for the HAA positions. Only the three candidates mentioned above were reinterviewed. The new hiring panel consisted of two individuals unconnected to the Plymouth court and Benjamin Harley, first assistant register at the Plymouth court. Following these interviews, Gomes and Devitt were offered the HAA positions, whereas the plaintiff was demoted. She subsequently sued the Trial Court, alleging age discrimination in its (1) demotion of her from the HAA position and (2) failure to designate her as a DAR. The question in reviewing a denial of a motion for judgment notwithstanding the verdict is whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). See Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89-90 (1987). The verdict must be sustained if the plaintiff offered any evidence from which the jury could have reasonably reached their verdict. Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005). When considering a motion for judgment notwithstanding the verdict, the judge must disregard evidence favorable to the defendant. Ibid. Upon the review of the briefs and record appendix, we conclude that denial of the defendant’s motion for judgment notwithstanding the verdict was error. While the plaintiff established a prima facie case for age discrimination, the defendant countered with a legitimate nondiscriminatory reason for its employment decision. The plaintiff did not offer evidence from which a reasonable jury could conclude that the defendant’s reason was pretextual. Discussion. 1. Prima facie case. “The prima facie case ‘eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,’ which are lack of competence and lack of job availability, and thereby creates a presumption of discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). A claim by a plaintiff who fails to establish a prima facie case for age discrimination cannot survive dismissal. See Knight v. Avon Prods., Inc., 438 Mass. 413, 422 (2003). Whether the plaintiff meets this burden is a question of law. Ibid. In employment discrimination cases, Massachusetts courts apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), paradigm. See Knight v. Avon Prods., Inc., supra at 420. See also Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130,134-137 (1976). To prove age discrimination, the plaintiff must show, by a preponderance of the evidence, that (1) the plaintiff was a member of the class protected by G. L. c. 151B (over forty years old); (2) the plaintiff was qualified for the job; (3) despite the plaintiff’s job qualifications, she was not hired for the job; (4) a person with similar or inferior qualifications was hired; and (5) the person hired was at least five years younger. Somers v. Converged Access, Inc., 454 Mass. 582, 595 (2009). Mitchell v. TAC Tech. Servs., Inc., 50 Mass. App. Ct. 90, 92 (2000). Neither party disputes that the plaintiff satisfies the first three elements of age discrimination. The question then becomes whether the plaintiff provided sufficient evidence to prove that Devitt had “similar or inferior qualifications.” Somers v. Converged Access, Inc., supra. “Direct evidence of those elements (discriminatory animus and causation) rarely exists, and a plaintiff may therefore establish one or both by indirect or circumstantial evidence” (citation omitted). Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005). See Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 665 (2000). Within the plaintiff’s application for the HAA position, she provided a summary list of all of her experience including, but not limited to, supervisory roles, preparing statistical and budget reports, filing quarterly and yearly payroll tax forms, and knowledge of the Probate and Family Court’s system and its governing statutes. While both the plaintiff and Devitt held different positions in different departments, many of Devitt’s responsibilities were similar to the plaintiff’s. As previously noted, case law only requires the plaintiff to show that a person with “similar or inferior qualifications was hired.” Somers v. Converged Access, Inc., supra. As the judge below found that there was sufficient evidence to indicate that the plaintiff adequately performed her duties as an HAA for two years, a reasonable inference could have been made that the plaintiff, at the very least, was similarly qualified to handle the position of an HAA. 2. Pretext. At the second stage, the employer can rebut the presumption created by the prima facie case of age discrimination by articulating “a lawful reason or reasons for its employment decision [and] producing] credible evidence to show that the reason or reasons advanced were the real reasons.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 442, quoting from Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass, at 138. If the employer meets its burden of production at stage two, the analysis advances to the third stage. Id. at 442-443. Here, the defendant produced overwhelming evidence to demonstrate that Devitt was a far superior candidate. Devitt had worked for the Plymouth court for over eighteen years when she applied for the HAA position. She was considered a level thirteen employee and had worked within numerous departments. On the other hand, the plaintiff had worked for the Plymouth court for fourteen years, was a level ten employee, and had worked in one department during her tenure. While both individuals had supervisory roles, Devitt managed more employees. It is reasonable for an employer to choose the candidate with more seniority and experience over another. In short, the defendant easily met its burden of showing that there was a legitimate, nondiscriminatory reason for promoting Devitt over the plaintiff. See Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 301 (1991), quoting from Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (employer must demonstrate that “its legitimate reason, standing alone, would have induced it to make the same decision”). “At the third stage the employee must show that the basis of the employer’s decision was unlawful discrimination,” which “may be accomplished by showing that the reasons advanced by the employer for making the adverse decision are not true.” Abramian v. President & Fellows of Harvard College, 432 Mass, at 117. Whether the plaintiff presented sufficient evidence to rebut defendant’s reasons is the pivotal question here. The plaintiff asserted that there was an atmosphere of age discrimination that could have tainted the reinterviewing process. However, she provided only unsubstantiated anecdotal and generalized statements about the defendant’s general practice of promoting younger employees. See Wooster v. Abdow Corp., 46 Mass. App. Ct. 665, 672 (1999). The plaintiff relied only on the testimony of witnesses (including her own speculation) without submitting any concrete statistical data to support her assertion. Compare Sullivan v. Liberty Mutual Ins. Co., 444 Mass, at 55 (statistics offered at third stage have “limited probative value” and do not counter employer’s legitimate nondiscriminatory explanations); Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 414-415 (1998). Contrast Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 662 (1997) (weight of former employee’s testimony and potential bias of employer based on romantic connection enough to overcome third stage). In addition, the collective bargaining agreement covering both the plaintiff and Devitt favored promoting the employee with more seniority. The plaintiff failed to present any evidence to prove that age discrimination was the driving force behind the defendant’s decision to promote Devitt. Nor did the plaintiff produce any evidence to rebut the employer’s position that Devitt was more qualified. Moreover, similar to Somers v. Converged Access, Inc., 454 Mass, at 596-597, there is nothing in the record to suggest that the plaintiff was more qualified than Devitt. Compare Sullivan v. Liberty Mutual Ins. Co., 444 Mass, at 52-53 (employer able to produce evidence that other employees were better qualified than plaintiff). In short, the plaintiff was unable to refute the defendant’s legitimate nondiscriminatory claim that Devitt was more qualified for the HAA position. The plaintiff had been promoted and worked in the HAA position for a little under two years. Due to the initial breakdown (or an apparent lack of uniformity) in the process for interviewing the HAA applicants, the need to reinterview these three candidates arose. Understandably, the plaintiff may feel victimized or unfairly treated; however, there is no indication that age discrimination was present. The order denying the defendant’s motion for judgment notwithstanding the verdict is reversed, and a new order shall enter allowing the motion. The order allowing the defendant’s motion for a new trial is hereby vacated. So ordered. The Appeals Court rejected an earlier appeal, as it was an interlocutory appeal not permitted by G. L. c. 231, § 118. Subsequently, a judge in the Superior Court allowed the parties’ joint motion to report the case. Deciding as we do, we have no need to discuss the DAR claim. On reinterview, the hiring panel asked each candidate the same six questions and recorded detailed notes based on the candidates’ responses. In this case, the Trial Court properly preserved its motion for a judgment notwithstanding the verdict by moving for a directed verdict. See Mass. R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998); Cormier v. Pezrow New England, Inc., 437 Mass. 302, 311 (2002). The standard of review for a motion for judgment notwithstanding the verdict is the same as a motion for directed verdict. D’Annolfo v. Stoneham Hous. Authy., 375 Mass. 650, 657 (1978). General Laws c. 151B, § 4(1C), inserted by St. 1984, c. 266, § 6, reads in relevant part, “It shall be an unlawful practice . . . [f]or the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law.” At the outset, both plaintiff and defendant agreed that Gomes should have been awarded one of the HAA positions. At issue was whether Devitt was promoted over the plaintiff because of age discrimination. One court official merely surmised, i.e., guessed, that between February, 1998 and January, 2000, five employees who had been promoted were in their late thirties. While the plaintiff asserts that there was an atmosphere of age discrimination that could have tainted the reinterviewing process, the plaintiff could not produce any competent evidence to support that claim. As already mentioned, two members of the HAA hiring panel were not affiliated with the Plymouth court. In light of our decision, discussion of the plaintiff’s appeal of the grant of a new trial is not necessary.

Maria Serrazina vs. Springfield Public Schools. No. 10-P-1429. Hampden. April 7, 2011. - October 12, 2011. Present: Wolohojian, Milkey, & Hanlon, JJ. Further appellate review granted, 461 Mass. 1105 (2012). School and School Committee, Arbitration, Suspension from employment, Termination of employment, Compensation of personnel, Professional teacher status. Arbitration, School committee, Confirmation of award. Damages, Back pay. Labor, Arbitration. A teacher (plaintiff) suspended from employment under G. L. c. 268A, § 25, which provides for suspension of employees who are under indictment, did not waive her claim for back pay during the period of her suspension by choosing not to raise the issue in arbitration arising from her subsequent termination [621-623]; however, the plaintiff was not entitled to back pay for the period between her termination from employment and her subsequent reinstatement following the dismissal of the indictments against her, where she declined to ask the arbitrator for posttermination back pay, despite the availability of such relief under the termination statute, G. L. c. 71, § 42 [623], There was no merit to the argument that a teacher (plaintiff) suspended from employment under G. L. c. 268A, § 25, which provides for suspension of employees who are under indictment, was not substantively entitled to back pay under that statute following the dismissals of the charges against the plaintiff pursuant to an agreement with the Federal government, where such a dismissal was not itself a finding or verdict of guilty or equivalent to a finding or verdict of guilty, as required by the statute. [623-625] Civil action commenced in the Superior Court Department on October 24, 2008. The case was heard by Peter A. Velis, J. Timothy J. Ryan for the plaintiff. Maurice M. Cahillane for the defendant. Wolohojian, J. The plaintiff, a teacher in the Springfield public school system (school), was suspended without pay and subsequently terminated because she was the subject (together with her parents and siblings) of Federal indictments charging corruption at the Springfield Housing Authority (SHA). After the charges against the plaintiff were dismissed pursuant to an agreement with the Federal government, the plaintiff sought reinstatement and back pay. The defendant denied those requests and terminated the plaintiff’s employment. The plaintiff filed a grievance challenging her termination, and an arbitrator subsequently issued an award ordering the plaintiff’s reinstatement. The plaintiff then filed a complaint in the Superior Court, seeking confirmation of the award and back pay for the period from her suspension to her reinstatement. On cross motions for summary judgment, a Superior Court judge affirmed the award, but ruled that the plaintiff was not entitled to back pay. The plaintiff appeals from that judgment, challenging the denial of her request for back pay. We affirm with respect to the period between the plaintiff’s termination and her reinstatement, but reverse with respect to the period of her suspension. Background. Broadly summarized, Federal indictments charged members of the plaintiff’s family with exploiting the SHA for personal gain through a long-running scheme of bribery, embezzlement, and fraud. The plaintiff herself was charged, among other things, with conspiring to receive gratuities and receipt of gratuities, 18 U.S.C. §§ 201, 371 (2006), and conspiracy to commit theft against the United States, 18 U.S.C. §§ 371, 641 (2006). The plaintiff does not dispute that she received a number of items for which she did not pay, including paint, wallpaper, an alarm system, a refrigerator, and the construction services of SHA employees who performed repairs on her home. She also does not dispute that Federal agents found a suitcase containing $237,000 in cash in the attic of her home. Citing the indictment, and acting pursuant to G. L. c. 268A, § 25 (suspension statute), the school’s superintendent suspended the plaintiff from her job as a school adjustment counselor. The suspension statute, G. L. c. 268A, § 25, inserted by St. 1972, c. 257, provides, in pertinent part: “An . . . employee of a . . . regional school district[] . . . may, during any period such . . . employee is under indictment for misconduct in such office or employment or for misconduct in any elective or appointive public office, trust or employment at any time held by him, be suspended by the appointing authority .... “Any person so suspended shall not receive any compensation or salary during the period of suspension, nor shall the period of his suspension be counted in computing his sick leave or vacation benefits or seniority rights .... “If the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension, and the time of his suspension shall count in determining sick leave, vacation, seniority and other rights, and shall be counted as creditable service for purposes of retirement.” Approximately two years after her suspension, the plaintiff entered into a pretrial diversion agreement with Federal prosecutors. Under the terms of the agreement, the plaintiff “acknowledge[d] responsibility for her conduct” and “accepted and [took] responsibility for accepting” a number of goods and services from her father for which she did not pay. The plaintiff agreed that she “now understood]” that those goods and services were improperly provided by and through the SHA. The plaintiff further agreed to pay $20,000 in restitution to resolve “any potential claims” involving SHA resources, and to “waive any claim she might have” to the cash seized from her home and certain real property on Cape Cod. For their part, the Federal prosecutors agreed to seek a dismissal of the plaintiff’s indictment at the end of an eighteen-month diversion period. As the end of the diversion period approached, the plaintiff informed the defendant that her indictment would soon be dismissed and that she wished to return to work. In response, the defendant terminated her employment effective October 22, 2007, pursuant to G. L. c. 71, § 42 (termination statute), citing “conduct unbecoming a teacher.” Approximately six months later, the Federal charges against the plaintiff were dismissed with prejudice in accordance with the terms of the diversion agreement. The plaintiff, pursuant to the termination statute, challenged her termination through arbitration. Although that statute permits an arbitrator to award back pay, the plaintiff did not request it, stating that she would seek that particular remedy “elsewhere.” Accordingly, although the arbitrator ordered the plaintiff’s reinstatement, he ruled: “Ms. Serrazina in this arbitration makes no claim for back pay, having indicated that she will pursue that remedy elsewhere. Therefore none is ordered, so long as reinstatement in accordance with this award occurs prior to the 2008-09 school year.” After the arbitrator issued his decision, the plaintiff filed the underlying action seeking confirmation of the arbitration award, and back pay pursuant to the suspension statute. A Superior Court judge allowed the school’s motion for summary judgment, reasoning that the plaintiff waived her claim for compensation before the arbitrator and could not now seek “duplicate” remedies under the suspension statute. As an alternate ground for his decision, the judge reasoned that the plaintiff was barred from collecting under the suspension statute because her pretrial diversion agreement amounted to a “finding or verdict of guilt[]” within the meaning of that statute. Discussion. We deal here with the operation of two distinct statutes: the suspension statute, G. L. c. 268A, § 25, and the termination statute, G. L. c. 71, § 42. The suspension statute permits the suspension of county and municipal employees while they are under indictment for misconduct in office. However, in the event that “the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension . . . .” G. L. c. 268A, § 25, fifth par. (emphasis supplied). The “period of suspension” may be longer than the period the employee is under indictment. See Brittle v. Boston, 439 Mass. 580, 584 & n.10 (2003) (removal of suspension is not automatic upon termination of criminal proceedings; suspension remains in effect until employee is notified that suspension is removed). The termination statute governs the termination of tenured teachers. The statute “outlines an extensive and exclusive arbitration procedure for . . . performance-based dismissals.” School Comm. of Westport v. Coelho, 44 Mass. App. Ct. 614, 618 (1998). If a tenured teacher is improperly terminated, the statute permits — but does not require — the arbitrator to award “back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof.” G. L. c. 71, § 42, sixth par. The arbitrator is not permitted to “award punitive, consequential, or nominal damages, or compensatory damages other than back pay, benefits or reinstatement.” Ibid. With the exception of any “other remedies provided by statute,” the termination statute’s remedies are “the exclusive remedies available to teachers for wrongful termination.” Ibid. In summary, the suspension statute applies to certain public employees who are suspended because they are under indictment. By contrast, the termination statute applies to teachers who are terminated for the performance reasons enumerated in that statute. The two statutory schemes do not overlap. One can be suspended or one can be terminated, but one cannot be understood to be both suspended and terminated at the same time.- “[T]he plain language of [the suspension statute] means that a suspension is effective only as long as the person affected holds the office from which he was suspended.” Brown v. Taunton, 16 Mass. App. Ct. 614, 619 (1983). Cf. Caples v. Secretary of the Commonwealth, 350 Mass. 638, 640-641 (1966) (resignation terminates suspension); Massachusetts Bay Transp. Authy. v. Massachusetts Bay Transp. Authy. Retirement Bd., 397 Mass. 734, 738 n.7 (1986) (discharge from employment terminates suspension). We see nothing in either statute that would have required the plaintiff to seek, via arbitration, back pay for the period of her suspension. Arbitration is not required under the suspension statute, and appeals from suspensions made under that statute are ordinarily brought in the Superior Court. See Brittle v. Boston, 439 Mass. 580, 583 (2003); Brown, supra at 616-617. Although the termination statute requires arbitration, it does so only in cases of wrongful termination. The statute does not once mention the word “suspension” or any variant of it, and we are loath to extend its reach beyond what the Legislature has expressed. See Carmel Credit Union v. Bondeson, 55 Mass. App. Ct. 557, 560 (2002) (we interpret a statute according to its plain words and will “not add words to a statute that the Legislature did not put there”). Consequently, we conclude that the plaintiff did not waive her claim for back pay during the period of her suspension by choosing not to raise it in the arbitration brought pursuant to the termination statute. We reach a different conclusion, however, with respect to her claim for posttermination back pay. The termination statute contains an express Legislative directive that teachers’ claims of wrongful termination be arbitrated and that the remedies for such termination be determined by the arbitrator: “With the exception of other remedies provided by statute, the remedies provided hereunder shall be the exclusive remedies available to teachers for wrongful termination.” G. L. c. 71, § 42, sixth par. Because the plaintiff declined to ask the arbitrator for posttermination back pay, despite the availability of such relief under the termination statute (under which she invoked arbitration), her claim for posttermination back pay has been waived. The remaining question is whether the plaintiff is substantively entitled to back pay under the suspension statute. The statute provides that a suspended employee “shall receive all compensation or salary due him for the period of his suspension,” if the criminal proceedings against the employee are “terminated without a finding or verdict of guilty.” The defendant argues that the disposition of the plaintiff’s criminal case was “in substance a guilty plea” and constituted “a finding or verdict of guilty.” We do not agree. The Federal pretrial diversion agreement was not itself a “finding or verdict of guilty,” nor was it equivalent to a “finding or verdict of guilty.” The plaintiff did not admit to the facts alleged in the indictment, nor did she admit to knowing at the time she accepted the goods and services that they came from the SHA. The plaintiff admitted only to accepting goods and services from her father, which she later learned came from the SHA. That the plaintiff agreed to pay restitution and waive claims to certain property certainly implies culpability on her part (or, at the very least, unjust enrichment), but the statute requires more: “a finding or verdict of guilty.” The defendant in essence asks us to depart from the plain text of the suspension statute. The statute stresses that its purpose is to compensate the suspended employee when “no misconduct by him is established,” Brittle, 439 Mass. at 586, and “upon his vindication,” Bessette v. Commissioner of Pub. Works, 348 Mass. 605, 608 (1965). We are not unsympathetic to the defendant’s argument, but we are bound by the plain language of the statute. See Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 539 (1996), quoting from Rosenbloom v. Kokofsky, 373 Mass. 778, 781 (1977) (“We cannot interpret a statute so as to avoid injustice or hardship if its language is clear and unambiguous and requires a different construction”). We recognize that the result here is that the plaintiff will receive back pay from the public fisc for the period when she was rightfully suspended because she was the subject of Federal indictment. This, though, is the consequence of explicit and plain language used by the Legislature — from which we cannot deviate, and which we are bound to apply. Conclusion. The plaintiff is entitled to back pay, under G. L. c. 268A, § 25, for the period of her suspension beginning on August 10, 2004, and ending on October 22, 2007. The plaintiff is not entitled to back pay or lost benefits for any other period. The judgment of the Superior Court is reversed insofar as it denies the plaintiff compensation for the period of her suspension, the judgment is otherwise affirmed. The case is remanded for calculation of back pay. So ordered. The plaintiff was employed by the defendant as a school adjustment counselor and held “professional teacher status” pursuant to G. L. c. 71, § 41. The plaintiff’s father, Raymond Asselin, Sr., served as executive director of the SHA from 1969 until his resignation in 2003. The defendant did not oppose confirmation of the arbitration award. That ruling is not before us on appeal. The school did not invoke the statute generally applicable to employee suspensions, G. L. c. 71, § 42D, presumably because that statute limits the period of involuntary suspension to one month. We observe that G. L. c. 71, § 42D, unlike G. L. c. 268A, § 25, incorporates the review procedures set forth in G. L. c. 71, § 42. The termination statute, G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44, provides, in pertinent part: “[S]ubject to the provisions of this section, the superintendent may dismiss any employee of the school district. . . . “A teacher with professional teacher status. . . shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause. “A teacher with professional teacher status may seek review of a dismissal decision within thirty days after receiving notice of his dismissal by filing a petition for arbitration with the commissioner. . . . “Upon a finding that the dismissal was improper under the standards set forth in this section, the arbitrator may award back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof. Under no circumstances shall the arbitrator award punitive, consequential, or nominal damages, or compensatory damages other than back pay, benefits or reinstatement. In the event the teacher is reinstated, the period between the dismissal and reinstatement shall be considered to be time served for purposes of employment. . . . With the exception of other remedies provided by statute, the remedies provided hereunder shall be the exclusive remedies available to teachers for wrongful termination.” The arbitrator concluded that the plaintiff, in entering the pretrial diversion agreement, had not admitted to facts establishing conduct unbecoming a teacher. According to the arbitrator, the school improperly sought to “base a termination decision upon a claim that [the plaintiff] failed to proclaim her innocence with sufficient clarity and with sufficient precision and forcefulness as to meet the superintendent’s liking.” Although the plaintiff’s complaint states that she also is seeking other lost benefits, the plaintiff has now confined herself to a claim for back pay. (In her brief, she states: “Make no mistake, this case is a dispute only about the back pay suspension benefits.”) In cases involving teachers, the suspension statute has been interpreted to reach a significant range of off-duty misconduct. See Dupree v. School Comm. of Boston, 15 Mass. App. Ct. 535, 537-539 (1983); Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 349-351 (1983). “Except for cases involving teachers and police officers, [the statutory requirement of “misconduct in . . . office”] has been interpreted generally to exclude an employee’s off-duty conduct.” Brittle v. Boston, 439 Mass. 580, 594 (2003) (emphasis in original). We reject, for this reason, the plaintiff’s illogical argument that her suspension continued even after she was terminated and that, as a result, she is entitled to back pay under the suspension statute for the time period from the date of her termination until the date she returned to work. The plaintiff’s suspension ended on October 22, 2007, the date of her termination. We reject the defendant’s equally illogical argument that the plaintiff could only seek remedies under the suspension statute while she was currently suspended. The suspension statute presumes that a remedy-seeking employee will have already had her suspension removed and the charges against her dropped. Indeed, until the suspension is removed, compensation “for the period of . . . suspension” cannot be fully measured. Indeed, United States Department of Justice policies indicate that Federally indicted defendants enter into such agreements precisely to avoid findings of guilt. See U.S. Dept, of Justice, United States Attorneys’ Manual, Title 9, Criminal Resource Manual § 712(F) (1997) (“The diversion period begins upon execution of a Pretrial Diversion Agreement. The Agreement. . . outlines the terms and conditions of supervision and is signed by the offender, his/her attorney, the prosecutor, and either the Chief Pretrial Services Officer or the Chief Probation Officer. The offender must acknowledge