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Southfield Education Association v. Board of Education of Southfield Public Schools

Court of Appeals of Michigan

July 11, 2017

SOUTHFIELD EDUCATION ASSOCIATION and VELMA SMITH, Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF THE SOUTHFIELD PUBLIC SCHOOLS and SOUTHFIELD PUBLIC SCHOOLS, Defendants-Appellees.

         Oakland Circuit Court LC No. 2015-146751-CL

          Before: O'Brien, P.J., and Jansen and Stephens, JJ.

          Per Curiam.

         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 MCL 380.1248) of plaintiffs' five-count complaint and granting summary disposition in favor of defendants, Board of Education of the Southfield Public Schools and Southfield Public Schools, pursuant to MCR 2.116(I)(2) (judgment for opposing party). The trial court had previously granted summary disposition of Count II (violation of MCL 380.1249), Count III (violation of the Teachers' Tenure Act (TTA), MCL 38.71 et seq.), Count IV (due process), and Count V (mandamus) in favor of defendants pursuant to MCR 2.116(C)(4) (lack of subject matter jurisdiction) and MCR 2.116(C)(8) (failure to state a claim). We affirm.

         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 external candidate "whose effectiveness was unknown to her former employer."

         Plaintiffs brought a five-count complaint in the circuit court, alleging (1) that defendants violated MCL 380.1248 of the Revised School Code (RSC), MCL 380.1 et seq., by failing and/or refusing to recall Smith, (2) that defendants violated MCL 380.1249 when they failed to comply with their own personnel policies requiring Smith's recall, (3) that defendants violated the TTA when they effectively discontinued Smith's continuous employment as a tenured teacher, (4) that defendants violated Smith's due process right to retain her teaching position and tenure status, and (5) that Smith was entitled to a writ of mandamus ordering defendants to reinstate Smith to a full-time technology teaching position. In lieu of filing a responsive pleading, defendants moved for summary disposition under MCR 2.116(C)(4) (subject matter jurisdiction)[1] and (C)(8). Relying in part on this Court's decision in Summer v Southfield Bd of Ed, 310 Mich.App. 660; 874 N.W.2d 150 (2015), defendants argued that plaintiffs' claims were facially untenable "because, among other reasons, they are premised on a non-existent legal right. Since 2011, there has been no right to recall for tenured teachers under Michigan law." Defendants also argued that plaintiffs had no private right of action under § 1249. Therefore, plaintiffs had failed to state a claim upon which relief could be granted in Counts I, II, III, IV, and V. With respect to Count III, defendants also noted that plaintiff had failed to exhaust her administrative remedies under the TTA when she failed to appeal to the State Tenure Commission (STC), and the trial court therefore lacked subject matter jurisdiction over the claim.

         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 MCR 2.116(C)(10) (no genuine issue of material fact). Plaintiffs maintained that

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 MCR 2.116(I)(2), defendants again argued that the Legislature's elimination of recall rights for tenured teachers barred plaintiffs' claim as a matter of law. They also argued, for the first time, that even if the Legislature had not eliminated the statutory basis for plaintiffs' claim, plaintiffs' claim was factually unsupported because (1) Smith was not evaluated as "effective or better when she taught" in the technology position at Birney in the 2010-2011 school year, and (2) the position is different than the one for which Smith was rated "highly effective" during the 2012-2013 and 2013-2014 school years.

         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 MCR 2.116(I)(2).

         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 MCL 380.1248, which required defendants to adopt, implement, maintain, and comply with a policy prioritizing retention of effective teachers when recalling a teacher after a layoff or hiring a teacher after a layoff, and plaintiffs were therefore entitled to judgment as a matter of law. We agree in part and disagree in part.

         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 N.W.2d 386 (2004). A motion under MCR 2.116(C)(10) "tests the factual support of a plaintiff's claim." Walsh v Taylor, 263 Mich.App. 618, 621; 689 N.W.2d 506 (2004). Summary disposition is warranted under this rule "if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). This Court must consider "the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh, 263 Mich.App. at 621. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich. at 183. MCR 2.116(I)(2) provides that "[i]f the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay." However, the trial court may not contravene a party's due process rights when granting summary disposition under this provision. Al-Maliki v LaGrant, 286 Mich.App. 483, 489; 781 N.W.2d 853 (2009).

         Resolution of this issue requires that the Court engage in statutory interpretation, an issue of law that is also reviewed de novo. Cruz v State Farm Mut Ins Co, 466 Mich. 588, 594; 648 N.W.2d 591 (2002). The goal of statutory construction is "to discern and give effect to the Legislature's intent." DiBenedetto v W Shore Hosp, 461 Mich. 394, 402; 605 N.W.2d 300 (2000). Courts begin by examining the plain language of the statute. Id. When the language is unambiguous, it is presumed "that the Legislature intended the meaning clearly expressed-no further judicial construction is required or permitted, and the statute must be enforced as written." Id.

         MCL 380.1249 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. Specifically, § 1249 requires that any performance evaluation system must rate its teachers as falling within one of four classes: (1) "highly effective"; (2) "effective"; (3) "minimally effective"; or (4) "ineffective." MCL 380.1249(1)(c).

         MCL 380.1248 requires that school districts focus on retaining effective teachers when making personnel decisions, including decisions on personnel reductions and staffing after a staff reduction, including recalling personnel and hiring personnel. In pertinent part, MCL 380.1248 provides:

(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 ...

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