United States District Court, E.D. Michigan, Northern Division
Magistrate Judge, Patricia T. Morris
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, AND DISMISSING PLAINTIFF'S COMPLAINT
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
March 3, 2017, Plaintiff Shawna Hartwell filed a complaint
against Defendants Houghton Lake Community Schools and
Collins Elementary School Principal Amy Peterson (in her
official capacity). ECF No. 1. Plaintiff was employed at
Collins Elementary as a kindergarten teacher from August 2014
until June 13, 2016. Her probationary teaching contract was
not renewed after that date. (referred to by the parties as
“non-renewal” or alternatively
“termination”). The complaint asserts two counts
under 42 U.S.C. § 1983 for violations of the first and
fourteenth amendments. Id. at 8, 10. Plaintiff
asserts that Defendants terminated her employment because of
her relationship with her husband and her stepchildren, in
violation of her first amendment right to intimate
association and her due process right to marry.
several months of discovery, Defendants moved for summary
judgment on September 19, 2017. ECF No. 23. Because
Defendant's did not produce court ordered discovery,
Plaintiff had not received complete discovery when her
response brief was due. Consequently, a substantial amount of
discovery was conducted after the motion for summary judgment
was briefed. Defendant Amy Peterson was deposed as well as
Susan Tyer, superintendent of Houghton Lake Community
Schools. Teacher evaluations were finally produced, well
after Defendants were directed to produce them. The document
production submitted by Defendants was missing two of the
five years of evaluations that were ordered to be produced.
Plaintiff also learned of the existence of additional
documentation they had timely sought, but that Defendants did
not produce. Once Defendants did produce these documents,
several months after the initial discovery deadline,
Plaintiff sought leave to supplement her response to the
motion for summary judgment to incorporate additional
information learned during discovery. ECF No. 38. In lieu of
granting that request, the briefing on the motion for summary
judgment was stricken in its entirety, the scheduling order
was adjourned, and a new dispositive motion deadline was set.
Defendants filed their new motion for summary judgment on
December 12, 2017. ECF No. 46. Plaintiff responded on January
2, and Defendants replied on January 11. ECF Nos. 49, 51.
Hartwell (“Plaintiff” or “Mrs.
Hartwell”) is married to Scott Hartwell (“Mr.
Hartwell”). Mr. Hartwell has two children, G.H. (age
13), and K.H. (age 10). Scott Hartwell's ex-wife, Neika
Hartwell-King (“Ms. King” or “Ms.
Hartwell-King”), is the mother of the two children. One
of the children was a student at Collins Elementary while
Plaintiff was employed there. Mr. Hartwell and Ms. King have
joint custody of G.H. and K.H. The children reside with Mr.
and Mrs. Hartwell part of the time, and with Ms. King part of
the time, pursuant to a state court order. Plaintiff also has
a son who lives with her and Mr. Hartwell.
Amy Ms. Peterson (“Ms. Peterson” or
“Defendant Peterson”) is the principal of Collins
Elementary. Ms. Peterson was close friends with
Plaintiff's mother. Hartwell Dep. at 14:19-20, ECF No.
46-3. Ms. Peterson approached Mrs. Hartwell regarding
employment and Collins Elementary, and Mrs. Hartwell was
hired. Id. at 16:10-13. Ms. Peterson knew the
Hartwells and was aware of Mr. Hartwell's divorce.
Id. at 14:19-15:24.
end of her second year of teaching, Mrs. Hartwell's
probationary contract was not renewed by Defendant Board of
Education. Principal Peterson sent Mrs. Hartwell a letter
notifying her that she was recommending against renewal based
on the following: “1. Failure to provide quality
instruction; 2. Failure to effectively provide classroom
management; 3. Inability or unwillingness to accept
constructive criticism or to follow directives when areas of
concern are brought to her attention. She becomes defensive
and fails to improve; 4. Failure to work cooperatively and
professionally with other teachers, mentor, and
administration.” ECF No. 46-9. Ms. Peterson sent a
letter to the board recommending against renewal of Mrs.
Hartwell “because her services have been minimally
effective. The rationale for this recommendation has been
included in the teacher's performance evaluations.”
ECF No. 46-11. The board adopted the recommendation. ECF No.
point during Mrs. Hartwell's employment at Collins
Elementary, Ms. King began contacting Ms. Peterson and
Superintendent Brent Cryderman (Cryderman) by phone and/or
email regarding Mrs. Hartwell. Peterson Dep. at 37. Ms. King
had concerns about her children, and specifically about Mrs.
Hartwell's contact with the children at school.
August 11, 2015, Ms. Peterson sent the following email to
I have been meaning to tell you . . . Neika Hartwell[King] .
. . called me a few times with concerns of Shawna Hartwell
(step mom) “harassing” the children during summer
enrichment. Apparently the children live with Neika and she
won't let Shawna and/or Scott (biological dad) see the
kids. I haven't witnessed any “harassing”,
but did speak to Shawna regarding the concern. Shawna told me
she received a letter from Neika's attorney, both of our
names were listed as being subpoenaed. I'm not sure what
we would have to offer? I know Neika contacted you last year,
just wanted to give you a warning.
ECF No. 49-4. Ms. Peterson had a conversation with Mrs.
Hartwell regarding Ms. King's complaints around August of
2015. Id. at 44-45. They discussed Mrs.
Hartwell's difficulty communicating with Ms. King outside
of school. Id. Ms. Peterson was aware that Mrs.
Hartwell may have been having conversations with her
step-children at lunch time or during break, but there was
nothing that came to light that seemed inappropriate.
September 9, 2015, Mrs. Hartwell sent the following email to
Good evening, I spoke with Amy [Ms. Peterson] earlier and she
informed me that Neika, my husband Scott's ex-wife, has
been in contact with you regarding me. Amy informed me today
she is worried that this is hurting my professional career. I
wanted to inform you while I am still a parent, this has not
affected my job. Professionally I am performing my duties as
a teacher for our district. I am unable to control what Neika
has or will say about me. If there is something being said
that you feel I need to be aware of please let me know. Sorry
there have been so many issues my husband is working on the
issue, it is not in my control.
ECF No. 49-6. Ms. Peterson denies ever making the statement
referenced in the email about Mrs. Hartwell's
professional career being hurt as a result of issues with Ms.
King. Peterson Dep. at 46. Mrs. Hartwell also testified that,
during this conversation, Ms. Peterson advised her she felt
it would be best if Mrs. Hartwell only spoke to the kids
during her husband's parenting time. Hartwell Dep. at 33.
Mrs. Hartwell understood this suggestion as a directive from
a superior. Id. at 36-37. Ms. Peterson testified
that she told Mrs. Hartwell not to contact the children while
she was teaching, which Ms. Peterson intended to be limited
to the school day. Peterson Dep. at 160.
September 10, 2015, Mrs. Hartwell sent the following email to
Hello Amy, I would like to see what memo is being added to my
records. I am very concerned about the statement made earlier
about this effecting my job. I spent maybe ten minutes on the
phone last week during one day of professional development.
And only about two minutes of that time was pd we were on a
break during the rest of that time. Also I made a phone call
during my prep time. Anything else I did was during my lunch
or after 3:30, and I was under the impression we were duty
free at that time. As I stated previously I am sorry this is
being made into a larger issue than it should but I cannot
control what Neika does or says, but I should have a right to
defend myself if this is going to effect me
“professionally.” I am very concerned about this
because I put a lot of time into the school after hours and
during school hours and I am unsure what I am doing wrong.
ECF No. 49-7.
Peterson denies that any memo was ever added to Mrs.
Hartwell's file concerning issues with Ms. King. Peterson
Dep. at 48. Ms. Peterson also offered testimony clarifying
the conversation Mrs. Hartwell was referring to in the email:
what she's referencing on the conversation about the
[professional development] is because she was screaming on
the phone and I didn't know at the time who she was
talking to. She was screaming on her cell phone to someone
with other colleagues around. So I believe when she and I had
that conversation about the professionalism and this it
wasn't due to the nature of the conversation, it was that
she was screaming at someone on her cell phone.
Dep. at 50.
about September 2, 2015, Ms. King came to Collins Elementary
and asked to have her daughter's records transferred to
Charlton Heston Academy. Hartwell Dep. at 37. Mrs. Hartwell
intervened and asked the secretary not to send the
transcripts because Mr. Hartwell and Ms. King were in the
middle of a custody dispute, the court had not yet decided
that the children could transfer schools, and Mr. Hartwell
had not signed paperwork consenting to a transfer.
Id. at 38.
September 10, 2015 an incident occurred after school hours.
Peterson Dep. at 53-54. Ms. King came to pick up her
daughter, K.H., at school. Id. at 55. While Mrs.
Hartwell was walking back to her classroom, Ms. King
approached Mrs. Hartwell and told her she needed to release
K.H. to her and that she was not leaving without K.H.
Hartwell Dep. at 39. Mrs. Hartwell felt threatened by the
encounter, as she was pregnant at the time. Id. She
went to room zero, where K.H. was, and called the police.
Id. at 40. Although the timeline of events is less
than clear, Ms. Peterson noticed Ms. King standing in the
“pick-up line” waiting for K.H. Peterson Dep. at
54. Ms. Peterson went to locate Mrs. Hartwell and told her
that Ms. King had arrived to pick up her daughter.
Id. Mrs. Hartwell informed her that it was her
husband's parenting time, not Ms. King's.
Id. Mrs. Hartwell did not allow K.H. to leave with
her mother despite Ms. Peterson directing her to do so.
Hartwell Dep. at 39. Ms. Peterson then called the police,
fearing that confrontation would ensue. Ms. Peterson Dep at
55. The police officer arrived and talked to Mrs. Hartwell,
Ms. King, and Ms. Peterson. He also spoke with Mr. Hartwell
on the phone as well as Jennifer Councilman from friend of
the court. Hartwell Dep. at 40. The police officer ultimately
directed Mrs. Hartwell to allow K.H. to leave with her
mother. Id. at 41.
September 11, 2015, Ms. Peterson issued Mrs. Hartwell a
written reprimand concerning these two
incidents. ECF No. 46-7. The reprimand notes:
“This memo is a written reprimand in regards to
maintaining your professional responsibilities during the
school day and not allowing your personal matters to
interfere with your teaching.” Id.
end of the '14-'15 school year (her first year of
teaching and prior to any of the incidents discussed above),
Mrs. Hartwell received a final evaluation score of 2.45
(“minimally effective”). Final Eval. ('15),
ECF No. 46-5. At the end of the '15-'16 school year,
she received a final evaluation score of 2.0
(“minimally effective”). Final Eval ('16),
ECF No. 49-11. Ms. Peterson was the evaluator during both
years. Id. Possible scores range from 1.0-4.0.
Id. A score of 1.0-1.49 corresponds to an
ineffective rating, 1.50-2.49 corresponds to a minimally
effective rating, 2.50-3.49 corresponds to an effective
rating, and 3.50-4.0 corresponds to a highly effective
evaluation score consists of two components. One is referred
to as “5D Teacher Evaluation Rubric, ” and is
worth 75% of the weighted total, and the other is referred to
as “NWEA DATA” and is worth 25% of the weighted
total. Final Eval. ('15), ECF No. 46-5. The 5D score is
calculated based on in class observations conducted by Ms.
Peterson, whereas NWEA refers to student growth data, which
is measured according to student performance on the
“NWA test.” Peterson Dep. at 12-13. There is no
set number of observations required, but the district's
goal is between two and six per teacher per year.
Id. at 12. Ms. Peterson would periodically observe
teachers during class, prepare a “scripting of the
observation, ” send it to the teacher at the end of the
session, and potentially schedule a follow up to discuss her
observations. Id. Observation reports are then
compiled into the 5D component of the final year end
the '14-'15 school year, Mrs. Hartwell was observed
on December 15, 2014 and March 3, 2015. Final Eval.
('15), ECF No. 46-5. The factual record does not contain
a report for either of those observations but does contain a
summary of the evaluation entitled: “Recommended Areas
of Focus/Goals For the Next School Year.” Final Eval.
('15), ECF No. 46-5; Peterson Dep. at 25:6-10. The
summary reads as follows:
Congratulations on completing your first year of teaching and
having perfect attendance! You are an extremely hard worker
and as you gain classroom management strategies and knowledge
of the curriculum, you will grow to be a great teacher.
Please continue to work with your mentor, attend family
nights and develop professionally by attending our district
and ISD professional development. I am excited for you to
have the summer to reflect and prepare for the fall. As
always, please let me know if I can be of any assistance to
Final Eval. (‘15), ECF No. 46-5.
Hartwell also received a mid-year review in January of 2015
which Ms. Peterson characterized as a positive review
“for a first year teacher, ” in which she noted
“I look forward to seeing continued growth and impact
on student achievement with improvements in classroom
management and student engagement.” Peterson Dep. at
20-21, Mrs. Hartwell received a 2 out of 4 (minimally
effective) for the 5D component of the year end evaluation,
accounting for 75% of the weighted total. Final Eval.
('15), ECF No. 46-5. For NWEA data (student performance),
Mrs. Hartwell received scores of 4 out of 4 (highly
effective) and 3 out of 4 (effective), accounting for 20% and
5% of the weighted total, respectively. Thus, her final
evaluation total for the '14-'15 year was 2.45
the '15-'16 school year (Mrs. Hartwell's second
year of teaching), Ms. Peterson conducted an in class
observation of Mrs. Hartwell on October 19, 2015, and another
on November 4, 2015. ECF No. 49-13. The observations lasted
32 minutes and 25 minutes, respectively. Id. During
the observations, Ms. Peterson would record contemporaneous
notes in a program called Pivot regarding what she observed.
She would also leave specific comments for the teacher in a
section entitled “Noticing/Wondering.” Teachers
would then log into the program later on, review the comments
Ms. Peterson made, and respond. Id. The comments and
responses for Mrs. Hartwell's October 19, 2015
observation were as follows:
Noticing/Wondering: I notice the learning target is posted,
but wasn't clearly stated in your lesson. I wondered if
you could review the learning target during the lesson?
Response: Yes, we start the lesson off with ‘what we
will do today.' I will add that to the middle of my
lesson as well. I thought that I said that when I said we
were going to work on writing the letter Rr. I will work on
Noticing/Wondering: I noticed the first worksheet was from
Saxon Phonics and I wondered if the other 2 were as well? I
also noticed students were sitting when I arrived at 8:50 and
still sitting 30 minutes later and wondered if this was too
long to sit?
Response: The other two are not from the Phonics program it
is just something that all of Kindergarten does extra.
Noticing/Wondering: Hi Shawna, I enjoyed observing your
phonics lesson today. Please respond to the wonderings by
Wednesday of this week. We can also meet to review. I would
also like to meet to answer your questions to the recent
response. Please let me know when you would like to meet.
These should be two separate meetings. Thanks!
Response: When would you like to meet regarding moving
Anthony's seat? Also no my MOBI is not working right now.
I do not think my pen was charging. I was going to try one
more time of charging it, then I was going to put a work
order in. It is plugged in and charging now.
comments and responses for the November observation were as
Noticing/Wondering: I noticed your math learning target is
posted and I wondered if you could use any other verbal or
visual strategies for student understanding of the target and
could you check for that understanding.
Response: I try to say the objective at the beginning of the
lesson, and then during the debrief and exit ticket I am
checking for understanding. Would you have some ideas for
verbally or visually showing the target?
Noticing/Wondering: I noticed you gave the students
directions to ‘put the towers in order' and I
wondered what your strategy is for checking their
understanding of knowing the directions. I wondered if maybe
this would be a good time to turn, talk and share, just to
clarify the directions.
Response: Okay, I did not think about that. I have them turn
and talk at the end, but yes to check for understanding
before the beginning would be very helpful for most.
Noticing/Wondering: Hi Shawna, Please respond to the
wonderings by the end of the week.
Response: If you have a chance we can meet and discuss some
ideas for the learning targets, as well as, my response to
Id. Ms. Peterson testified that she did not consider
Mrs. Hartwell's responses defensive, and the only
concerned she had was that she “didn't see the
change happen with the learning target” between the two
observations and she had to address it again. Peterson Dep.
Peterson followed up on the November evaluation with an email
that reads as follows:
Hi Shawna, You and your students are growing! (no pun
intended!) I have sent your observation to you, please
respond to the wonderings. Your directions are clear and
firm, your students are responding appropriately. Please be
careful with the “extra explanation” after the
directions. It's usually more effective to stick to the
clear, firm direction. Your have grown in this area, just be
careful about the extra words they may not hear. We can meet
for a few minutes and discuss your observations . . .
ECF No. 49-11
Peterson also gave Mrs. Hartwell a midyear review on January
29, 2016, which reads as follows:
You are receiving this mid-year review because of the
“minimally effective” rating you received in the
spring of 2015 as a first year teacher. Per our discussion on
the observation cycle, you are currently making progress
toward your goals of sharing your learning target and
communicating with parents. I do still have some concerns
about your professionalism outside of the classroom and
management within the classroom. I also have concerns of your
difficulty taking constructive feedback from ...