STATE OF MICHIGAN
COURT OF APPEALS
SOUTHFIELD EDUCATION ASSOCIATION FOR PUBLICATION
and VELMA SMITH, July 11, 2017
9:10 a.m.
Plaintiffs-Appellants,
v No. 331087
Oakland Circuit Court
BOARD OF EDUCATION OF THE LC No. 2015-146751-CL
SOUTHFIELD PUBLIC SCHOOLS and
SOUTHFIELD PUBLIC SCHOOLS,
Defendants-Appellees.
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
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“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 NW2d 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.
1
The motion under MCR 2.116(C)(4) pertained to plaintiffs’ claim under the TTA (Count III).
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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
2
In the complaint, plaintiffs also alleged violations of MCL 380.1248 for defendants’ failure to
hire Smith for a full-time technology position at Thompson Academy, another K through 8
school in defendants’ district. However, there is no evidence that Smith ever applied for that
position, and plaintiffs conceded in the lower court that Smith lacked the required endorsements
to qualify for the Thompson position.
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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 NW2d 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 NW2d 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 NW2d 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 NW2d 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
NW2d 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 NW2d 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
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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.
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(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, MCL 380.1248 requires that the school district’s decisions reflect the
policy goal of maintaining the employment of teachers with a performance rating of effective.
Plaintiffs’ argument rests on the mandate in MCL 380.1248(1)(b) that all “policies regarding
personnel decisions. . . are based on retaining effective teachers.” Plaintiffs contend that the
Legislature’s use of the word “retain” reveals an intent to limit a school district’s staffing
decisions following a reduction in staffing in order to satisfy the goal of retaining effective
teachers. Thus, plaintiffs claim that defendants violated MCL 380.1248 by hiring an external
candidate for the Birney position, whose effectiveness rating was unknown, instead of retaining
Smith, who was rated highly effective.
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), MCL 423.201 et seq., to add layoff and recall policies to the prohibited
subjects of collective bargaining, and the amendment of the RSC to provide two post-layoff
alternatives—recall or hire—evinced a clear legislative intent to make recalls nonactionable
under MCL 380.1248. Defendants contend that plaintiffs’ proposed construction of the phrase
“retaining effective teachers,” creating a statutory right to be recalled, would “require one to
ignore the plain right given to districts to hire after layoffs, and the other statutory amendments
eviscerating recall rights.”
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 MCL 38.105 of the TTA, which had provided,
“For a period of 3 years after the effective date of the termination of the teacher’s services, a
teacher on continuing tenure whose services are terminated because of a necessary reduction in
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personnel shall be appointed to the first vacancy in the school district for which the teacher is
certified and qualified.” 2011 PA 103, among other things, amended PERA to remove layoffs
from the collective bargaining process and emphasize that the RSC, not PERA or the TTA,
governs teacher layoffs. Baumgartner, 309 Mich App at 525.
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 and MCL 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.]
Under the clear language of § 1248 and the interpretation of the 2011 amendments set
forth in Baumgartner, all policies regarding personnel decisions when conducting a recall from a
staffing or program reduction, or in hiring after a staffing or program reduction, 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. See MCL
380.1248(1)(b)(i) through (iii). Similar to the Court’s pronouncement in Baumgartner with
respect to layoffs, the statutory mandate anticipates that talented and more effective teachers will
be recalled or hired, while ineffective teachers will not. A school district must consider the
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relative effectiveness ratings of candidates for open teaching positions, whether as part of a recall
or a new hire after a staffing or program reduction.
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 show that Smith had obtained an effectiveness rating triggering the school district’s
obligation under § 1248 to engage in a comparison. Summary disposition in favor of defendants
was therefore appropriate. See Libralter Plastics, Inc v Chubb Group of Ins Companies, 199
Mich App 482, 486; 502 NW2d 742 (1993) (“[P]arties opposing a motion for summary
disposition must present more than conjecture and speculation to meet their burden of providing
evidentiary proof establishing a genuine issue of material fact.”).
The trial court did not err in granting summary disposition under MCR 2.116(I)(2) in
favor of defendants because no genuine issue of material fact exists and, with respect to
plaintiffs’ claimed violation of § 1248, defendants are entitled to judgment as a matter of law.
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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 MCL 380.1249. We
disagree.
With respect to Count II of plaintiffs’ complaint, the trial court granted summary
disposition in favor of defendants pursuant to MCR 2.116(C)(8). “A motion brought under
(C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings.” Dalley v
Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010). Summary disposition under
MCR 2.116(C)(8) is appropriate when “[t]he opposing party has failed to state a claim on which
relief can be granted.”
MCL 380.1249(1) requires the board of a public school district to “adopt and implement
for all teachers and school administrators a rigorous, transparent, and fair performance evaluation
system.” MCL 380.1249(1)(d) requires that the evaluations be used, at a minimum, to inform
decisions regarding (1) the effectiveness of teachers and school administrators, ensuring that they
are given ample opportunities for improvement, and (2) promotion, retention, and development
of teachers and school administrators, including providing relevant coaching, instruction support,
or professional development. MCL 380.1249(1)(d)(i) and (ii). Plaintiffs conceded in their
complaint that defendants’ performance evaluation system complies with MCL 380.1249. They
also conceded that they were not challenging defendants’ decision to lay off Smith when her
position was eliminated. However, they argue that defendants violated § 1249(1)’s mandate that
their “performance evaluation system [be used] to retain effective teachers such as Plaintiff
Smith.”
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 that MCL 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
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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 in MCL 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. MCR 7.215(J)(1). Summary disposition of Count II under MCR 2.116(C)(8)
was therefore proper.
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 MCR 2.116(C)(4).
Defendants argued that the STC had jurisdiction over claims arising under the TTA, and
plaintiffs were required to exhaust their administrative remedies before they could pursue them
in the circuit court. The trial court seems to have agreed with defendants’ argument that the STC
had exclusive jurisdiction over plaintiffs’ claim. Explaining its decision to grant defendants’
motion for summary disposition of Counts II through V at the first summary disposition hearing,
the trial court stated: “(C)(4) pertains only to one count, I think. And it’s granted for that
reason.”
“We review a trial court’s decision on a motion for summary disposition based on MCR
2.116(C)(4) de novo to determine if the moving party was entitled to judgment as a matter of
law, or if affidavits or other proofs demonstrate there is an issue of material fact.” Harris v
Vernier, 242 Mich App 306, 309; 617 NW2d 764 (2000). Summary disposition is appropriate
under MCR 2.116(C)(4) when “[t]he court lacks jurisdiction of the subject matter.” Whether a
court has subject-matter jurisdiction to decide a case is a question of law that this Court also
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reviews de novo. Trostel, Ltd v Dep’t of Treasury, 269 Mich App 433, 440; 713 NW2d 279
(2006).
To the extent the trial court relied on MCR 2.116(C)(4) as its basis for summary
disposition, we find that it erred. Plaintiffs allege that Smith, as a tenured teacher, possessed the
right to “continuous employment” under MCL 38.91 and that defendant violated the TTA by
“failing and/or refusing to recall her to positions for which she is certified and qualified to
teach.” However, the essence of plaintiffs’ argument is that defendants “fail[ed] to comply with
sections 1248 and 1249 of the [RSC] to retain or continue the employment of a highly effective
teacher.” In Baumgartner, 309 Mich App at 521, this Court stated that:
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 MCR
2.116(C)(8).
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 MCL 38.91(1), which
provides:
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 simply because the statutory right to recall has been eliminated.”
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
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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 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 to plaintiffs’
claims under MCL 380.1248, MCL 380.1249, and the TTA in its motion for summary
disposition, and again with respect to MCL 380.1248 in their answer in opposition to plaintiffs’
motion for summary disposition. However, defendants did not bring a motion for summary
disposition under MCR 2.116(C)(5) (“The party asserting the claim lacks the legal capacity to
sue.”). Further, there is no evidence in the record that the trial court dismissed the union as a
party for lack of standing. Thus, there is no adverse action from which plaintiffs are aggrieved.
3
Although Tomiak concerned the repealed MCL 38.105, the statute addressed layoffs because of
a necessary reduction in personnel and, therefore, is analogous to the present case.
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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 MCL 380.1248 and
MCL 380.1249, and suggest that this Court should decide the issue because it “involves a
straightforward legal issue.” Defendants could have raised this issue on cross-appeal, MCR
7.207, but failed to do so. Accordingly, the issue of standing is not properly before this Court.
Shipman v Fontaine Truck Equip Co, 184 Mich App 706, 714; 459 NW2d 30 (1990).
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 sought Smith’s
reinstatement to a technology teaching position in the school district pursuant to MCL
380.1248(3). The trial court did not abuse its discretion by denying plaintiffs’ request for a writ
of mandamus.
Affirmed.
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/s/ Colleen A. O’Brien
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens
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