SOUTHFIELD EDUCATION ASSOCIATION and VELMA SMITH v. BOARD OF EDUCATION OF THE SOUTHFIELD PUBLIC SCHOOLS and SOUTHFIELD PUBLIC SCHOOLS
No. 331087
STATE OF MICHIGAN COURT OF APPEALS
July 11, 2017
FOR PUBLICATION; Oakland Circuit Court LC No. 2015-146751-CL
Before: O‘BRIEN, P.J., and JANSEN and STEPHENS, JJ.
Plaintiffs, Southfield Education Association (“the union“) and Velma Smith, appeal as of right an order denying plaintiffs’ motion for summary disposition on Count I (violation of
Defendants employed Smith for 19 years as a tenured technology teacher. Smith is certified and qualified to teach technology, and holds endorsements to teach industrial technology in grades K through 12 and educational technology in grades 6 through 12. Smith taught “PLATO,” an online remedial education course offered through the Southfield Regional Academic Campus (SRAC), an alternative high school within defendants’ district, during the 2012-2013 and 2013-2014 school years. For both years, defendants rated Smith‘s performance as “highly effective.” At the end of the 2013-2014 school year, defendants eliminated the SRAC position and Smith was laid off.
In July 2014, defendants posted a part-time technology position at Birney School, a K through 8 school in defendants’ district. Defendants admit that Smith was qualified for the position. In fact, she had held the position during the 2010-2011 school year. However, her “effectiveness” was not evaluated under the performance review system implemented before the 2012-2013 school year. Smith applied for the Birney position, but defendants hired an external candidate. That candidate resigned after one year. Defendants reposted the Birney position, claiming that it required endorsements for grades K through 6. On investigation, the union discovered that the class consisted only of students in grades 6 through 8, and Smith remained qualified for the position. Thereafter, defendants interviewed Smith again for the Birney position. Smith was not hired to fill the position. According to plaintiffs, the Birney position remained vacant until defendants hired an
Plaintiffs brought a five-count complaint in the circuit court, alleging (1) that defendants violated
Plaintiffs responded that their position was not that defendants were required to recall Smith, but rather that defendants were required to rehire Smith unless there were other candidates who “had an effectiveness rating equal or higher” than Smith‘s. Because the effectiveness rating of the person hired was unknown, plaintiffs claimed that defendants were required to hire Smith because “there were no other Southfield teachers who could teach that course.”
Defendants acknowledged that which applicants were considered for the Birney position would present a factual question, and the trial court denied defendants’ motion for summary disposition with respect to Count I. However, the trial court “adopt[ed] the defendants’ arguments” with respect to Counts II through V and granted defendants’ motion for summary disposition on those four counts.
After defendants filed an answer to plaintiff‘s complaint, plaintiffs brought a motion for summary disposition of Count I pursuant to
Section 1248(b)(1) is unambiguous about a school board‘s obligation to base its personnel decisions on teacher effectiveness, with the primary goal of retaining effective teachers following a staffing or program reduction. Southfield has not assigned Smith, a highly effective teacher, to any of the positions for which she is certified and highly qualified to teach that became available as soon as July 2014 and as recently as August 31, 2015.2
By its conduct, Southfield has failed to retain Smith, a highly effective teacher, in violation of Section 1248 of the Revised School Code. Because there is no genuine issue of material fact that Smith is a highly effective teacher and that Southfield failed to recall Smith to available positions for which she was qualified and certified, Smith is entitled to judgment as a matter of law. [Footnote added.]
In opposing plaintiffs’ motion, and requesting summary disposition under
After a second hearing, the trial court adopted defendants’ arguments and denied plaintiffs’ motion for summary disposition. Finding defendants entitled to judgment as a matter of law, the trial court granted summary disposition of Count I in favor of defendants under
I. VIOLATION OF MCL 380.1248
On appeal, plaintiffs argue that the trial court erred in granting summary disposition in favor of defendants on Count I of their complaint because defendants clearly violated
We review de novo a trial court‘s decision to grant or deny a motion for summary disposition. Adair v State, 470 Mich 105, 119; 680 NW2d 386 (2004). A motion under
Resolution of this issue requires that the Court engage in statutory interpretation, an issue of law that is also reviewed
(1) For teachers, as defined in . . .
MCL 38.71 , all of the following apply to policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position, or in hiring after a staffing or program reduction or any other personnel determination resulting in the elimination of a position by a school district or intermediate school district:* * *
(b) Subject to subdivision (c), the board of a school district or intermediate school district shall ensure that the school district or intermediate school district adopts, implements, maintains, and complies with a policy that provides that all personnel decisions . . . are based on retaining effective teachers. The policy shall ensure that a teacher who has been rated as ineffective under the performance evaluation system under section 1249 is not given any preference that would result in that teacher being retained over a teacher who is evaluated as minimally effective, effective, or highly effective under the performance evaluation system under section 1249. Effectiveness shall be measured by the performance evaluation system under section 1249, and the personnel decisions shall be made based on the following factors:
(i) Individual performance shall be the majority factor in making the decision, and shall consist of but is not limited to all of the following:
(A) Evidence of student growth, which shall be the predominant factor in assessing an employee‘s individual performance.
(B) The teacher‘s demonstrated pedagogical skills, including at least a special determination concerning the teacher‘s knowledge of his or her subject area and the ability to impart that knowledge through planning, delivering rigorous content, checking for and building higher-level understanding, differentiating, and managing a classroom;
and consistent preparation to maximize instructional time. (C) The teacher‘s management of the classroom, manner and efficacy of disciplining pupils, rapport with parents and other teachers, and ability to withstand the strain of teaching.
(D) The teacher‘s attendance and disciplinary record, if any.
(ii) Significant, relevant accomplishments and contributions. This factor shall be based on whether the individual contributes to the overall performance of the school by making clear, significant, relevant contributions above the normal expectations for an individual in his or her peer group and having demonstrated a record of exceptional performance.
(iii) Relevant special training. This factor shall be based on completion of relevant training other than the professional development or continuing education that is required by the employer or by state law, and integration of that training into instruction in a meaningful way.
(c) Except as otherwise provided in this subdivision, length of service or tenure status shall not be a factor in a personnel decision described in subdivision (a) or (b). However, if that personnel decision involves 2 or more employees and all other factors distinguishing those employees from each other are equal, then length of service or tenure status may be considered as a tiebreaker. [Emphasis added.]
On appeal, plaintiffs argue that if a school district recalls or hires teachers after implementing a layoff,
Defendants argue to the contrary, suggesting that the Legislature‘s 2011 repeal of the statutory basis for a right to recall under the TTA, the amendment of the Public Employee Relations Act (PERA),
In Baumgartner v Perry Pub Sch, 309 Mich App 507, 524-531; 872 NW2d 837 (2015), this Court considered the import of § 1248 within the context of teacher layoffs. Although the issue in Baumgartner involved jurisdiction, this Court summarized the 2011 legislative tie-barred amendments to the TTA, the RSC, and PERA, which caused a “dramatic shift in the law of teacher layoffs.” Id. at 512. The Baumgartner Court explained that the 2011 amendments
clearly outlined a teacher‘s rights and a school district‘s responsibilities in the event that a layoff became necessary. 2011 PAs 100, 101, 102, and 103 work in tandem to (1) bar teacher layoffs from being a subject of collective bargaining agreements, thus preventing teachers from challenging layoff decisions before [the Michigan Employment Relations Commission] as an unfair labor practice under PERA, (2) require that layoff decisions be based on teacher effectiveness, not seniority, and (3) make clear that only the courts—not any administrative agency, including the STC—have jurisdiction over layoff-related claims. [Id. at 524.]
2011 PA 101, effective July 19, 2011, repealed
2011 PA 102 amended the RSC. “Among other things,” Baumgartner noted, the RSC “governs ‘the regulation of school teachers and certain other school employees’ and emphasizes that local school authorities—not state officials—are primarily responsible for the governance of school districts.” Baumgartner, 309 Mich App at 526, quoting 1976 PA 451, title, as amended by 1995 PA 289 (emphasis by Baumgartner). The Court explained how 2011 PA 102 fit within the relevant legal framework:
2011 PA 102 is part of this broader legal framework and enacted a comprehensive revision of the Revised School Code‘s treatment of teacher layoffs through the addition of two new sections,
MCL 380.1248 andMCL 380.1249 . Section 1249 requires all Michigan school districts and intermediate school districts and the boards of directors of public school academies to adopt a “performance evaluation system” that assesses teacher effectiveness and performance and provides a detailed set of factors that any school district‘s performance evaluation system must include . . . .Section 1248 then mandates that all “policies regarding personnel decisions when conducting a staffing or program reduction“—i.e., layoffs—must be conducted on (1) the basis of the performance evaluation system the school district developed in compliance with § 1249; and (2) other specific factors listed in § 1248 . . . .
In other words, if layoffs become necessary, § 1248 requires school districts to base their decision of which teachers to lay off on the effectiveness of each teacher. So, after conducting a performance evaluation using the criteria outlined in § 1249, a school district must rank its teachers in order, based on their success (or lack thereof) in the performance evaluation. The teachers who received the lowest performance ranking (“ineffective“) will be laid off before those who received higher performance rankings. The statutory mandate anticipates that talented and more effective teachers will be retained, while mediocre and ineffective teachers will be laid off. [Baumgartner, 309 Mich App at 526-528.]
However, while we agree with plaintiffs’ interpretation of § 1248, we cannot agree with plaintiffs’ assertion that defendants violated § 1248 when they hired an external candidate for the Birney position. Smith simply could not claim an effectiveness rating related to the available position, and the school district was therefore not required to consider whether she would be relatively more or less effective than any other candidate for the position.
Nothing in the language of § 1248 suggests that a teacher‘s effectiveness evaluation in teaching one subject requires that teacher‘s recall or rehire to teach a different subject. Indeed, several of the factors on which personnel decisions “shall be based” are position specific. Further, to interpret § 1248 as requiring a school district to recall or rehire a teacher to a specific position, for which she may be qualified but has not been proven effective, is contrary to the purpose of the 2011 Legislative Amendments. Again, as we explained in Baumgartner, 309 Mich App at 526, the RSC “emphasizes that local school authorities—not state officials—are primarily responsible for the governance of school districts.” The Legislature has left school districts with the authority to ensure that each available position is matched with the most effective teacher for that particular position. It is not for this Court to place limits on the school district‘s authority that the Legislature has not.
Plaintiffs presented documentary evidence that Smith was certified and qualified for the Birney position. However, while plaintiffs claim that Smith received an effectiveness rating of “highly effective” on her 2012-2013 and 2013-2014 performance evaluations, plaintiffs have offered no evidence to rebut defendants’ assertion that Smiths’ effectiveness rating was received while teaching a class substantially different from the Birney position. Smith was rated “highly effective” during two school years in which she taught PLATO, an online remediation course requiring individualized, interactive instruction at an alternative high school for credit-deficient students and students at high risk of dropping out. The PLATO position was eliminated, and Smith sought a part-time teaching position at Birney Middle School. Smith was indisputably qualified for the Birney position, having taught the same class during the 2010-2011 school year. However, she did not receive an effectiveness evaluation pursuant to § 1249 for that school year. The Birney position is at a middle school, while the PLATO position required working with high school students. And unlike the PLATO position, the Birney position involves whole classroom instruction, rather than individualized instruction, on various subjects within the field of technology. Smith‘s effectiveness in that position is therefore a matter of speculation. Plaintiffs cannot
The trial court did not err in granting summary disposition under
II. VIOLATION OF MCL 380.1249
Next, plaintiffs argue that the trial court erred when it granted defendants’ motion for summary disposition of Count II of plaintiffs’ complaint because defendants failed to comply with their own policy of retaining highly effective teachers as required by
With respect to Count II of plaintiffs’ complaint, the trial court granted summary disposition in favor of defendants pursuant to
In Summer, 310 Mich App at 676, this Court explicitly held that there was no private cause of action under § 1249. Relying on Garden City Ed Ass‘n v Sch Dist of City of Garden City, 975 F Supp 2d 780 (ED Mich, 2013), the Court explained:
As observed by the Garden City court, it is evident that the Legislature provided a detailed enforcement scheme to ensure compliance with the Revised School Code, including compliance with § 1249. Notably, the plain language of § 1249 includes no reference to a private right of action. “[W]here a statute creates a new right or imposes a new duty unknown to the common law and provides a comprehensive administrative or other enforcement mechanism or otherwise entrusts the responsibility for upholding the law to a public officer, a private right of action will not be inferred.” Accordingly, given the extensive enforcement mechanisms already provided
in the Revised School Code, we decline to infer a private right of action in MCL 380.1249 and conclude that the trial court properly determined thatMCL 380.1249 does not establish a private cause of action under which plaintiff may bring the instant case. [Summer, 310 Mich App at 676 (citations omitted).]
This Court held, however, that this did not foreclose a teacher from challenging a school district‘s failure to adhere to the procedures set forth in § 1249 when that challenge was part of a claim brought under § 1248. Id. at 681. Reasoning that the Legislature specifically intended to allow teachers to challenge layoff decisions that were based on performance evaluations that did not comply with the requirements under § 1249, the Summer Court explained as follows:
[B]ased on the specific language of § 1248, the requirement that the school district must utilize a “performance evaluation system” in compliance with § 1249 as it evaluates teachers and makes layoff decisions is one of the requirements with regard to which a teacher may assert a private cause of action under § 1248(3). Accordingly, if a school district lays off a teacher because she is deemed ineffective, but the school district measured the teacher‘s effectiveness using a performance evaluation system that did not comply with § 1249 (e.g., if a school district failed to use a “rigorous, transparent, and fair performance evaluation system,”
MCL 380.1249(1) ), or made a personnel decision that was not based on the factors delineated inMCL 380.1248(1)(b)(i) -(iii), the teacher could assert a cause of action under § 1248(3) based on a violation of § 1248(1)(b) . . . . [Id. at 679-680 (citation footnote omitted).]
Pursuant to Summer, plaintiffs’ claim under § 1248 in Count I properly alleges a violation of § 1249. However, plaintiffs are not entitled to a separate cause of action under § 1249. We are bound by Summer.
III. VIOLATION OF THE TEACHERS’ TENURE ACT AND DUE PROCESS
Plaintiffs also argue that the trial court erred when it granted defendants’ motion for summary disposition of Count III of plaintiffs’ complaint because defendants violated the TTA by failing and/or refusing to recall Smith to positions for which she is certified and highly qualified. We disagree.
Although the trial court, in its written order, did not explicitly state its statutory basis for granting summary disposition in favor of defendants with respect to Count III of plaintiffs’ complaint, defendants requested summary disposition of this count under
“We review a trial court‘s decision on a motion for summary disposition based on
To the extent the trial court relied on
The STC‘s “jurisdiction and administrative expertise is limited to questions traditionally arising under the [TTA],” and it does not possess jurisdiction over disputes that arise under and are governed by separate legislative acts. [Citation omitted].
Therefore, the trial court erroneously determined that it did not have jurisdiction because plaintiffs had failed to exhaust their administrative remedies.
However, “[a] trial court‘s ruling may be upheld on appeal where the right result issued, albeit for the wrong reason.” Gleason v Michigan Dep‘t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003). We find reversal of the trial court‘s decision on Count III of plaintiffs’ complaint unnecessary because summary disposition of Count III was appropriate under
Plaintiffs argue that Smith was deprived of her vested property right to continuous employment without due process of law. Plaintiffs have not argued that defendants’ elimination of Smith‘s teaching position or defendants’ decision to layoff Smith was contrary to law or policy. And plaintiffs concede that Smith has no right to mandatory recall. However, plaintiffs suggest that Smith maintained a right to continuous employment under
After the satisfactory completion of the probationary period, a teacher is considered to be on continuing tenure under this act. A teacher on continuing tenure shall be employed continuously by the controlling board under which the probationary period has been completed and shall not be dismissed or demoted except as specified in this act. [Emphasis added.]
Because the Legislature left this section of the TTA unchanged when it implemented the July 2011 amendments and repealed the statutory right to recall, plaintiffs argue that the Legislature “clearly intended for an effective teacher to maintain her right to continuous employment.” Therefore, according to plaintiffs, defendants “cannot fail or refuse to recall Plaintiff Smith without due process of law
We are not persuaded by plaintiffs’ arguments here. Smith has no due process right to recall, and the right of continuous employment for tenured teachers simply does not apply in this case. A public employee that has received tenure through state law has a property interest as defined by state law. Cleveland Bd of Ed v Loudermill, 470 US 532, 542; 105 S Ct 1487; 84 L Ed 2d 494 (1985). However, a state law that grants a property interest may define the boundaries of that property interest. Bd of Regents v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972). In other words, a state law that creates the interest can define what the interest is, how it may be gained, and how it may be taken away. Considering the TTA, our Supreme Court has stated that “the very purpose of the act is to protect tenured teachers from being demoted or discharged unless the board can show just and reasonable cause, and only after written charges are filed and the teacher has been furnished with notice of the date of a hearing.” Tomiak v Hamtramck Sch Dist, 426 Mich 678, 688-689; 397 NW2d 770 (1986). Although the TTA initially provided a right to recall in tenured teachers, that right was removed with the recall of § 38.105 via 2011 PA 101. In Baumgartner, 309 Mich App at 530, we explained that following the repeal of § 38.105, “[t]he ‘general purpose’ of the TTA no longer includes teacher layoffs, which are now governed by the Revised School Code.”
A layoff because of a necessary reduction in personnel is not a discharge or demotion. Id. at 529 (noting that it is impossible to equate “discharge” under the TTA with “layoff,” because “the two terms are separate and distinct.“), citing Tomiak, 426 Mich at 688.3 “Thus, by definition, a school that lays off a teacher does not ‘demote’ that teacher in the context of the TTA.” Baumgartner, 309 Mich App at 529. With respect to layoffs, it has long been established under Michigan law that a tenured teacher is not given any protection of his or her employment from a bona fide reduction in personnel. Chester v Harper Woods Sch Dist, 87 Mich App 235, 243-244; 273 NW2d 916 (1978). Therefore, no process is due a tenured teacher who is laid off unless the reduction in force is not bona fide. Plaintiffs have not alleged or argued that the elimination of Smith‘s position was not bona fide, nor do they suggest that the layoff was a subterfuge to avoid the protections of the TTA. Therefore, plaintiffs have failed to state a claim for due process violations in this case.
IV. STANDING ISSUES
Next, plaintiffs argue that the trial court erred by “dismissing [the union] from the action on the ground that the union did not have standing” in this matter. Generally, this Court reviews questions of standing de novo. Barclae v Zarb, 300 Mich App 455, 467; 834 NW2d 100 (2013). However, we decline to consider the issue of standing here because it is not properly before this Court.
In the lower court, defendants challenged the union‘s standing with respect
In the absence of a ruling by the trial court, this Court has nothing to review. People v Buie, 491 Mich 294, 311; 817 NW2d 33 (2012).
On appeal, defendants acknowledge that the trial court did not squarely address defendants’ argument that the union lacked standing to assert claims under
V. WRIT OF MANDAMUS
Finally, plaintiffs contend that the trial court erred when it denied plaintiffs’ request for a writ of mandamus because plaintiffs pleaded the required elements in their complaint. We disagree.
A writ of mandamus is an extraordinary remedy that will only be issued if (1) the party seeking the writ has a clear legal right to the performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result. Barrow v Detroit Election Comm, 305 Mich App 649, 661-662; 854 NW2d 489 (2014). The burden of proving entitlement to a writ of mandamus is on the plaintiff. Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich App 487, 492; 688 NW2d 538 (2004).
This Court reviews a trial court‘s grant or denial of a writ of mandamus for an abuse of discretion. Wilcoxon v City of Detroit Election Comm, 301 Mich App 619, 630; 838 NW2d 183 (2013). “An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes.” Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d 40 (2006). However, whether the first two elements required for issuance of a writ of mandamus are present is a question of law, which this Court reviews de novo. Coal for a Safer Detroit v Detroit City Clerk, 295 Mich App 362, 367; 820 NW2d 208 (2012).
Plaintiffs’ argument with respect to this issue is cursory at best. Plaintiffs merely announce that they pleaded the elements of a mandamus action and assert that they had no other adequate remedy at law. “A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim.” Nat‘l Waterworks, Inc v Int‘l Fidelity & Surety, Ltd, 275 Mich App 256, 265; 739 NW2d 121 (2007). Where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by the Court. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). Further, plaintiffs have an adequate legal remedy as reflected in Count I of their complaint—plaintiffs
Affirmed.
/s/ Colleen A. O‘Brien
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens