HASANAJ KOLA v DETROIT 16-12 02/19/19

Issued and entered

 this 19^th day of February 2019

by: Christopher S. Saunders

Administrative Law Judge

PRELIMINARY DECISION AND ORDER

PROCEDURAL HISTORY

On October 12, 2016, Petitioner/Appellant filed his claim of appeal with the State Tenure Commission.  The claim of appeal was forwarded to the Michigan Administrative Hearing System (MAHS) on October 14, 2016.  On October 18, 2016, Respondent/Appellee filed a Motion to Dismiss Untimely Appeal.

On October 20, 2016, the undersigned issued an Order Scheduling Prehearing Conference wherein Petitioner/Appellant was advised that a response to Respondent/Appellee’s motion would be due by October 28, 2016 and that oral argument thereon would be held on November 2, 2016.

On October 28, 2016, Petitioner/Appellant filed a response to the Motion to Dismiss Untimely Appeal.  A prehearing conference was convened on November 2, 2016 and oral argument on the Motion to Dismiss Untimely Appeal was taken.

On December 1, 2016, the undersigned issued a Preliminary Decision and Order (PDO) granting Respondent/Appellee’s Motion for Summary Disposition.  Exceptions to the PDO were filed and the decision was reversed and remanded by the State Tenure Commission (the Commission) for further findings specific to if Petitioner/Appellant was in fact a tenured teacher, and if Respondent/Appellee strictly complied with the provisions of the Act by providing Petitioner/Appellant a copy of the Tenure Charges prior to the presentation of such to the Board (in this matter the Emergency Manager).

After the matter was remanded, a prehearing conference was held on May 11, 2017.  At the prehearing, dates were selected for the hearing, the exchange of witness and exhibit lists, and the submission of dispositive motions. 

On June 12, 2017, Petitioner filed a Dispositive Motion.  On June 28, 2017, the undersigned issued an Order Denying Petitioner’s Motion for Summary Disposition.  Therefore, the hearing was set to proceed as scheduled on August 14, 15, and 16, 2017.  On August 2, 2017, Petitioner/Appellant requested an adjournment of the scheduled hearing dates.  The request was granted, and the hearing was scheduled for October 9-11, 2017.  The hearing proceeded as scheduled on October 9, 10, and 11, 2017.  Attorney Shanta Driver appeared on behalf of Kola Hasanaj, Petitioner/Appellant.  Attorney Marquita Sylvia appeared on behalf of Detroit Public Schools Community District (DPSCD), Respondent/Appellee.  The hearing concluded on October 11, 2017.  Prior to the conclusion of the hearing, dates for the submission of post-hearing briefs and replies thereto were discussed with the parties, with mutually agreed upon dates for said submissions being reached.

On October 24, 2017, an Order Regarding Briefing Schedule was issued, setting the deadline for the submission of post-hearing briefs to be November 20, 2017.  The deadline for the submission of reply briefs was set as November 30, 2017.  Both parties submitted post-hearing and reply briefs, but neither parties’ post-hearing briefs were submitted within the timelines agreed to by the parties and outlined in the October 24, 2017 Order Regarding Briefing Schedule.  Therefore, as the briefs were not submitted within the ordered time frames, none of the briefs submitted have been considered.

On February 7, 2018, a Preliminary Decision and Order was issued.  On April 13, 2018, the Commission remanded the matter for further findings.  Prior to the commencement of the hearing, the parties had stipulated that Petitioner/Appellant had achieved tenure status.  The commission remanded the matter in part to make factual findings as to Petitioner/Appellant’s achievement of tenure status.  The Commission further remanded the matter for findings as to Respondent/Appellee’s compliance with the requirements of the Act, specifically MCL 38.102.

On May 23, 2018, a prehearing conference was conducted with the parties attending.  The prehearing was continued to July 27, 2018 wherein it was determined that additional testimony was necessary to comply with the order of the Commission.  The additional hearing was scheduled for September 28, 2018.  The additional hearing was held as scheduled on September 28, 2018.  Attorney Shanta Driver appeared on behalf of Petitioner/Appellant.  Attorney Marquita Sylvia appeared on behalf of Respondent/Appellee.  A briefing schedule was discussed after the conclusion of the hearing.  Both parties submitted post-hearing and reply briefs.

EXHIBITS AND WITNESSES

The following exhibits were offered by Petitioner/Appellant and admitted into evidence, not offered by Petitioner/Appellant, or offered and not admitted into evidence based on objection^[1]:

1. Petitioner/Appellant’s Exhibit 1 is a letter sent to Petitioner/Appellant by Respondent/Appellee, dated October 7, 2016.

2. Petitioner/Appellant’s Exhibit 2 was not offered into evidence.

3. Petitioner/Appellant’s Exhibit 3 was not offered into evidence.

4. Petitioner/Appellant’s Exhibit 4 was not offered into evidence.

5. Petitioner/Appellant’s Exhibit 5 was not offered into evidence.

6. Petitioner/Appellant’s Exhibit 6 was not offered into evidence.

7. Petitioner/Appellant’s Exhibit 7 was not offered into evidence.

8. Petitioner/Appellant’s Exhibit 8 contains two letters sent to Petitioner/Appellant by Respondent/Appellee, dated September 16, 2013 and August 25, 2015 respectively and an excerpt of 2012 AACS R 390.1105.

9. Petitioner/Appellant’s Exhibit 9 was not offered into evidence.

10. Petitioner/Appellant’s Exhibit 10 was not offered into evidence.

11. Petitioner/Appellant’s Exhibit 11 is a copy of Petitioner/Appellant’s credentials, including his State of Michigan Professional Education Certificate Renewal, his School Administrator Certificate, his MA in Education, and his Education Specialist Certificate from Wayne State University.

12. Petitioner/Appellant’s Exhibit 12 was not offered into evidence.

13. Petitioner/Appellant’s Exhibit 13 was not offered into evidence.

14. Petitioner/Appellant’s Exhibit 14 was not offered into evidence.

15. Petitioner/Appellant’s Exhibit 15 was not offered into evidence.

16. Petitioner/Appellant’s Exhibit 16 contains copies of screen shots taken by Petitioner/Appellant.

17. Petitioner/Appellant’s Exhibit 17 was not offered into evidence.

18. Petitioner/Appellant’s Exhibit 18 was not offered into evidence.

19. Petitioner/Appellant’s Exhibit 19 was not offered into evidence.

20. Petitioner/Appellant’s Exhibit 20 was not offered into evidence.

21. Petitioner/Appellant’s Exhibit 21 is a copy of an envelope addressed to Petitioner/Appellant, sent by Respondent/Appellee, and postmarked August 16, 2016.

22. Petitioner/Appellant’s Exhibit 22 is a copy of an envelope addressed to Petitioner/Appellant, sent by Respondent/Appellee, and postmarked September 13, 2016.

23. Petitioner/Appellant’s Exhibit 23 is a copy of an envelope addressed to Petitioner/Appellant, sent by Respondent/Appellee, and post marked October 12, 2016.

The following exhibits were offered by Petitioner/Appellant at the hearing on September 28, 2018 and admitted into evidence, not offered by Petitioner/Appellant, or offered and not admitted into evidence based on objection:

1. Petitioner/Appellant’s Exhibit A contains paycheck earnings information pertaining to Petitioner/Appellant.

2. Petitioner/Appellant’s Exhibit B was not offered into evidence.

3. Petitioner/Appellant’s Exhibit C contains Petitioner/Appellant’s earnings records from Respondent/Appellee.

4. Petitioner/Appellant’s Exhibit D is a letter from Respondent/Appellee to Petitioner/Appellant, dated November 17, 2011.

5. Petitioner/Appellant’s Exhibit E is a letter from Respondent/Appellee to Petitioner/Appellant, dated September 3, 2013.

6. Petitioner/Appellant’s Exhibit F is a letter from Respondent/Appellee to Petitioner/Appellant, dated September 16, 2013.

7. Petitioner/Appellant’s Exhibit G is a letter from Respondent/Appellee to Petitioner/Appellant, dated March 30, 2015.

8. Petitioner/Appellant’s Exhibit H is a letter from Respondent/Appellee to Petitioner/Appellant, dated August 28, 2015.

9. Petitioner/Appellant’s Exhibit I was not offered into evidence.

10. Petitioner/Appellant’s Exhibit J contains a copy of the collective bargaining agreement between the School District for the City of Detroit and the Detroit Federation of Teachers, dated July 1, 2012.

11. Petitioner/Appellant’s Exhibit K contains a document showing changes to the collective bargaining agreement for the 2006 through 2009 school years.

12. Petitioner/Appellant’s Exhibit L contains a contract between the Detroit City School District and the Detroit Federation of Teachers.

13. Petitioner/Appellant’s Exhibit M was not offered into evidence.

14. Petitioner/Appellant’s Exhibit N is a Western International High School Walk-Through Feedback form, dated July 6, 2009.

15. Petitioner/Appellant’s Exhibit O is a Stipulation for Dismissal and a Stipulated Order for Dismissal regarding a case between the Detroit Federation of Teachers and the School District for the City of Detroit.

16. Petitioner/Appellant’s Exhibit P contains a packet from the Office of Academic Affairs Department of Curriculum and Instruction titled Summer Credit Recovery 2011 English I Semester I.

The following exhibits were offered by Respondent/Appellee at the hearing on September 28, 2018 and admitted into evidence, not offered by Respondent/Appellee, or offered and not admitted into evidence based on objection:

1. Respondent/Appellee’s Exhibit 1 is a copy of the December 1, 2016 Preliminary Decision and Order.

2. Respondent/Appellee’s Exhibit 2 is a copy of the February 7, 2018 Preliminary Decision and Order.

3. Respondent/Appellee’s Exhibit 3 is an assignment letter from Respondent/Appellee to Petitioner/Appellant, dated August 22, 2016.

4. Respondent/Appellee’s Exhibit 4 is a request for personnel action form.

5. Respondent/Appellee’s Exhibit 5 is a request for personnel action form, dated September 15, 2018.

6. Respondent/Appellee’s Exhibit 6 is a letter from Respondent/Appellee to Petitioner/Appellant, dated June 14, 2010.

7. Respondent/Appellee’s Exhibit 7 is a letter from Respondent/Appellee to Petitioner/Appellant, dated August 17, 2010.

8. Respondent/Appellee’s Exhibit 8 is a letter from Respondent/Appellee to Petitioner/Appellant, dated October 2, 2010.

9. Respondent/Appellee’s Exhibit 9 was not offered into evidence.

10. Respondent/Appellee’s Exhibit 10 is a key code for numeric values contained on employee’s history of earnings reports.

11. Respondent/Appellee’s Exhibit 11 is a personnel action history pertaining to Petitioner/Appellant.

12. Respondent/Appellee’s Exhibit 12 is a copy of a Settlement and Release Agreement between Petitioner/Appellant and Respondent/Appellee.

13. Respondent/Appellee’s Exhibit 13 is a letter from Respondent/Appellee to Petitioner/Appellant, dated October 7, 2016.

14. Respondent/Appellee’s Exhibit 14 is a copy of Petitioner/Appellant’s certification status from the Michigan Department of Education.

15. Respondent/Appellee’s Exhibit 15 was not offered into evidence.

16. Respondent/Appellee’s Exhibit 16 was not offered into evidence.

17. Respondent/Appellee’s Exhibit 17 was not offered into evidence.

18. Respondent/Appellee’s Exhibit 18 was not offered into evidence.

19. Respondent/Appellee’s Exhibit 19 is a request for personnel action form, dated August 15, 2006.

20. Respondent/Appellee’s Exhibit 20 is a personnel action for pertaining to Petitioner/Appellant.

21. Respondent/Appellee’s Exhibit 21 is a personnel action form pertaining to Petitioner/Appellant.

22. Respondent/Appellee’s Exhibit 22 was not offered into evidence.

23. Respondent/Appellee’s Exhibit 23 is a Teacher’s Probationary Contract.

24. Respondent/Appellee’s Exhibit 24 is a personnel action form pertaining to Petitioner/Appellant.

25. Respondent/Appellee’s Exhibit 25 is a personnel action form pertaining to Petitioner/Appellant.

The following exhibits were offered by Respondent/Appellee and admitted into evidence, not offered by Respondent/Appellee, or offered and not admitted into evidence based on objection:

1. Respondent/Appellee’s Exhibit A is a copy of a Detroit Public Schools Order Adopting a Teacher Staffing and Reduction Policy.

2. Respondent/Appellee’s Exhibit B is a copy of the Detroit Educator Evaluation Process.

3. Respondent/Appellee’s Exhibit C is a copy of a letter addressed to Petitioner/Appellant on August 16, 2016 and a corresponding envelope.

4. Respondent/Appellee’s Exhibit D contains a letter dated September 6, 2016 which contains the tenure charges against Petitioner/Appellant. 

5. Respondent/Appellee’s Exhibit E contains a letter dated September 12, 2016 which contains the decision to proceed on the charges, a copy of the September 6, 2016 letter, and copy of the relevant portions of the Tenure Act.

6. Respondent/Appellee’s Exhibit F was not offered into evidence.

7. Respondent/Appellee’s Exhibit G is a teacher observation rubric, with an observation date of September 27, 2013.

8. Respondent/Appellee’s Exhibit H was not offered into evidence.

9. Respondent/Appellee’s Exhibit I is a 2013-2014 End of Year Teacher Evaluation for Petitioner/Appellant, completed May 28, 2014.

10.         Respondent/Appellee’s Exhibit J is a teacher observation rubric, with an observation date of October 6, 2014.

11.         Respondent/Appellee’s Exhibit K is a teacher observation rubric, with an observation date of December 12, 2014.

12.         Respondent/Appellee’s Exhibit L is a teacher observation rubric, with an observation date of December 15, 2014.

13.         Respondent/Appellee’s Exhibit M is a teacher observation rubric, with an observation date of March 11, 2015.

14.         Respondent/Appellee’s Exhibit N is a teacher observation rubric, with an observation date of May 21, 2015.

15.         Respondent/Appellee’s Exhibit O is a teacher observation rubric, with an observation date of April 16, 2015.

16.         Respondent/Appellee’s Exhibit P is a 2014-2015 End of Year Teacher Evaluation for Petitioner/Appellant, completed May 26, 2015.

17.         Respondent/Appellee’s Exhibit Q is a teacher classroom observation form, dated September 15, 2015.

18.         Respondent/Appellee’s Exhibit R is a teacher classroom observation form for the 2015-2016 school year.

19.         Respondent/Appellee’s Exhibit S is a teacher observation walk through form, dated September 28, 2015.

20.         Respondent/Appellee’s Exhibit T is a teacher observation walk through form, dated October 5, 2015.

21.         Respondent/Appellee’s Exhibit U was not offered into evidence.

22.         Respondent/Appellee’s Exhibit V was not offered into evidence.

23.         Respondent/Appellee’s Exhibit W was not offered into evidence.

24.         Respondent/Appellee’s Exhibit X was not offered into evidence.

25.         Respondent/Appellee’s Exhibit Y is a teacher observation rubric, with an observation date of December 2, 2015.

26.         Respondent/Appellee’s Exhibit Z is a letter addressed to Petitioner/Appellant, dated January 5, 2016.

27.         Respondent/Appellee’s Exhibit AA is a classroom items checklist, dated January 29, 2016.

28.         Respondent/Appellee’s Exhibit BB is a 2015-2016 End of Year Teacher Evaluation for Petitioner/Appellant, completed May 13, 2016.

29.         Respondent/Appellee’s Exhibit CC contains screenshots from the Michigan Online Educator Certification System pertaining to Petitioner/Appellant.

30.         Respondent/Appellee’s Exhibit DD contains an email chain from August 25, 2016 through August 30, 2016.

31.         Respondent/Appellee’s Exhibit EE is a letter addressed to Petitioner/Appellant, dated July 25, 2014.

32.         Respondent/Appellee’s Exhibit FF is a letter addressed to Petitioner/Appellant, dated July 23, 2015.

33.         Respondent/Appellee’s Exhibit GG is a letter addressed to Petitioner/Appellant, dated July 29, 2016.

34.         Respondent/Appellee’s Exhibit HH was not offered into evidence.

35.         Respondent/Appellee’s Exhibit II is a copy of the Detroit Public Schools End of Year Teacher Evaluation Form Scoring.

36.         Respondent/Appellee’s Exhibit JJ is a Request for Assistance and Support Form signed by Brenda Carethers, dated October 4, 2013.

37.         Respondent/Appellee’s Exhibit KK is a letter addressed to Petitioner/Appellant, dated October 1, 2013.

The following individuals testified in this matter^[2]:

1. Lauri Washington: Executive Director, Office of Employee Relations, DPSCD

2. Julie Pita: Director of Professional Development, DPSCD

3. Jewel Dillard: Assistant Principal, Emerson School, DPSCD

4. Frederick Cannon: Principal, Spain Elementary, DPSCD

5. Cindy Lang: Principal, Bunch Elementary School, DPSCD

6. Brenda Carethers: Principal, Emerson School, DPSCD

7. Cassandra Washington: Executive Director of Human Resources, DPSCD

8. Harry Coakley: Former Principal at Fisher Upper, DPSCD (Retired)

9. Kola Hassanaj:  Petitioner/Appellant

The following individuals testified at the September 28, 2018 hearing:

1. Kola Hassanaj:  Petitioner/Appellant

2. Barbara Moten:  DPSCD Human Resources

ISSUE AND APPLICABLE LAW

Under the Teachers’ Tenure Act, a teacher may be discharged or demoted only for a reason that is not arbitrary or capricious.  MCL 38.101.  When the Legislature amended the Teachers’ Tenure Act, it was well aware that in the event that the teacher contested the charges against him or her that the district would be required to prove the charges by a preponderance of the evidence. Luther v Board of Education of Alpena Public Schools, 62 Mich App 32 (1975). 

The Legislature did not change which party bears the burden of proof or the quantum of proof required to meet the threshold to discharge or demote a teacher.  Craig v Larson, 432 Mich 346, 352 (1989).    Based on the 2011 amendments^[3] to the Teachers’ Tenure Act the Commission held as follows: 

…a controlling board bears the burden of proving tenure charges by a preponderance of the evidence and that it further bears the burden of proving by a preponderance of the evidence that its decision to demote or discharge a tenured teacher is based on an appropriate (i.e., not arbitrary or capricious) reason. Cona v Avondale School District    (11-61).

Therefore, the district bears the burden of proof to establish its case by a preponderance of the evidence.

The "preponderance" means that evidence which, when weighed with that opposed to it, has more convincing force resulting in a greater probability that the alleged misconduct occurred.  See Thomas v Miller, 202 Mich 43 (1918); Giddings v Saginaw Township Community Schools Board of Education (92-1).  

There are two issues to be addressed in the instant matter.  The first being the findings required upon remand by the Commission; specifically, if Petitioner/Appellant is a tenured teacher within the meaning of the Act, and if Respondent/Appellee strictly complied with the provisions of the Act specifically by providing Petitioner/Appellant notice of the tenure charges against him prior to the meeting of the Board/Emergency Manager to decide whether or not to proceed on the charges.  Based on the findings pertaining to those issues, the Commission further instructed the undersigned to determine if the original decision to dismiss the matter for a lack of jurisdiction based on an untimely appeal was proper. 

If it is found that the dismissal was improper and the hearing then proceeds to a decision on the merits, the issue in relation to the tenure charges, is whether the district has established that Petitioner/Appellant was properly discharged for allegedly receiving three consecutive ineffective evaluations and was in turn discharged for reasons that are not arbitrary or capricious. 

Respondent continues to assert that its Motion to Dismiss was properly granted for lack of jurisdiction pursuant to Tenure Commission Rules 25(1)(e), ACR 38.155(1)(e), which state in pertinent part as follows:

R 38.155 Motion for summary disposition.

Rule 25. (1) A party seeking to recover upon a claim of appeal, or a party against whom a claim of appeal is asserted, may move for summary disposition on all or any part of the claim at any time. The motion shall state that the moving party is entitled to summary disposition on 1 or more of the following grounds and shall specify the grounds on which the motion is based:

***

(e) The claim of appeal is barred because it is untimely.

In relation to the steps to follow to effectuate tenure charges being filed against a tenured teacher, MCL 38.102 states as follows:

38.102 Charges against teacher; filing with controlling board; decision to proceed upon charges; written statement of charges and teacher's rights.

Sec. 2.

All charges against a teacher shall be made in writing, signed by the person making the charges, and filed with the secretary, clerk, or other designated officer of the controlling board, and a copy of the charges shall be provided to the teacher. The charges shall specify a proposed outcome of either discharge or a specific demotion of the teacher. The controlling board shall decide whether or not to proceed upon the charges, or may modify the charges and decide to proceed upon the charges as modified, not later than 10 days after the charges are filed with the controlling board. A decision to proceed upon the charges shall not be made except by a majority vote of the controlling board and shall be reduced to writing. The controlling board, if it decides to proceed upon the charges, shall furnish the teacher not later than 5 days after deciding to proceed upon the charges with the written decision to proceed upon the charges, a written statement of the charges and a statement of the teacher's rights under this article.

It is well settled that claims of appeal must be filed within the prescribed timelines to vest jurisdiction with the Commission.  The Teacher Tenure Act as codified in MCL 38.104(1) states as follows:

38.104 Decision to proceed upon charges; appeal with tenure commission; filing; notice; conduct of hearing; dismissal of appeal or denial of discharge or demotion; appeal to court of appeals.

Sec. 4.

(1) A teacher on continuing tenure may contest the controlling board's decision to proceed upon the charges against the teacher by filing a claim of appeal with the tenure commission and serving a copy of the claim of appeal on the controlling board not later than 20 days after receipt of the controlling board's decision. The controlling board shall file its answer with the tenure commission and serve a copy of the answer on the teacher not later than 10 days after service of the claim of appeal. If the teacher does not contest the controlling board's decision in the time and manner specified in this subsection, the discharge or demotion specified in the charges takes effect and the teacher shall be considered to have waived any right to contest the discharge or demotion under this act.

The statutory timelines for filing an appeal are jurisdictional and when not complied therewith, operate to deprive the Commission of jurisdiction over an untimely claim of appeal.  See Curry v Huron Valley Schools (73-59) and Halliburton v Detroit Board of Education (79-1).  Therefore, if a claim of appeal is found to be filed untimely, the Commission lacks jurisdiction over the claim of appeal and summary disposition is appropriate.

MCL 38.104(1) states that a claim of appeal must be filed with the Commission and served upon the controlling board.  Rule 38.144 states that a controlling board must be served by having the documents delivered thereto.  In Almon v Detroit Board of Education (97-33), the Commission held that in order for a claim of appeal to be filed with the Commission, that claim of appeal must be delivered and received by the Commission.  Therefore, in order for a document to be properly filed with the Commission, it must be both delivered and received. 

Additionally, on the second remand, the Commission ordered that specific findings be made as to if Petitioner/Appellant had achieved tenure and would therefore be entitled to the protections of the Act.  In relation to achieving tenure, the Act states as follows:

(1)    The term “teacher” as used in this act means a certificated individual employed for a full school year by any board of education or controlling board.

(2)    An individual who is not certificated but is employed for a full school year pursuant to section 1233b of the revised school code, Act No. 451 of the Public Acts of 1976, being section 380.1233b of the Michigan Compiled Laws, or is employed pursuant to an annual vocational authorization or a temporary approval, as defined in state board rule, is considered to be a teacher for the purpose of serving the probationary period under article II, but such an individual is not considered a teacher for the purpose of continuing tenure under article III until he or she becomes certificated.  MCL 38.71

The term “certificated” means holding a valid teaching certificate, as defined by the state board of education.  MCL 38.72

(1)  Subject to subsections (2) and (3) and section 3b of this article, a teacher is in a probationary period during his or her first 5 full school years of employment.

(2)  Subject to section 3b of this article, a teacher under contract but not on continuing tenure as of the effective date of the 2011 amendatory act that amended this subsection is in a probationary period during his or her first 4 full school years of employment.

(3)  A teacher on continuing tenure as of the effective date of the 2011 amendatory act that amended this subsection continues to be on continuing tenure even if the teacher has not served for at least 5 full school years of employment.  MCL 38.81

(1)  Before the end of each school year, the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his or her work has been effective. Subject to subsection (2), a probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 15 days before the end of the school year that his or her services will be discontinued.

(2)  A teacher who is in a probationary period may be dismissed from his or her employment by the controlling board at any time.

     MCL 38.83

(1)  Except as otherwise provided in subsection (2), a teacher shall not be considered to have successfully completed the probationary period unless the teacher has been rated as effective or highly effective on his or her 3 most recent annual year-end performance evaluations under section 1249 of the revised school code, 1976 PA 451, MCL 380.1249, and has completed at least 5 full school years of employment in a probationary period.

(2)  If a teacher has been rated as highly effective on 3 consecutive annual year-end performance evaluations under section 1249 of the revised school code, 1976 PA 451, MCL 380.1249, and has completed at least 4 full school years of employment in a probationary period, the teacher shall be considered to have successfully completed the probationary period.

     MCL 38.83b

Articles 4, 5 and 6^[4] shall not apply to any teacher deemed to be in a period of probation.  MCL 38.84

A teacher who has achieved continuing tenure status may appeal to the tenure commission any decision of a controlling board under this act, other than a decision governed by article IV on discharge or demotion of a teacher on continuing tenure, within 20 days from the date of the decision.  …

MCL 38.121

FINDINGS OF FACT^[5]

Petitioner/Appellant moved to the United States in 1996 and began taking classes at Wayne State University.  He began substitute teaching for Detroit Public Schools in 1998.  In October 2006, Petitioner/Appellant obtained a teaching certificate in the State of Michigan.  (Tr. Vol. III, pages 446-458).  Petitioner/Appellant is certified in the areas of Bilingual and English, both 6-12.  (Pet. Exhibit 11).

On September 27, 2013, Jewel Dillard, Assistant Principal, conducted an in-class observation of Petitioner/Appellant.  Ms. Dillard prepared a written Teacher Observation Rubric based on her observation.  The rubric contains Ms. Dillard’s notes from the observation as well as effectiveness ratings for 5 Core Elements.  For the first core element, demonstrated pedagogical skills, Petitioner/Appellant was found to be minimally effective.  (Resp. Exhibit G).  Ms. Dillard explained that Petitioner/Appellant did not have prepared lesson plans and appeared to be struggling with classroom management.  (Tr. Vol. II, pages 213-219).

The second core element of student growth as a predominant factor had yet to be observed.  For the third core element of classroom management, Petitioner/Appellant was found to be minimally effective.  For the fourth core element of relevant special training, the rubric states that Petitioner/Appellant is to maintain a portfolio of his professional learning and growth to discuss with the principal at the final conference.  For the fifth core element of educator responsibilities, Petitioner/Appellant was found to be minimally effective.  (Resp. Exhibit G).  On October 7, 2013, a Professional Learning Plan was created with Petitioner/Appellant and signed by himself and Principal Brenda Carethers on October 7, 2013.  (Resp. Exhibit H).  On October 1, 2013, Assistant Principal Jewel Dillard wrote Petitioner/Appellant a letter wherein she required that Petitioner/Appellant submit lesson plans to her no later than October 4, 2013.  (Resp. Exhibit KK).  On October 4, 2013, Brenda Carethers completed a request for assistance support form for Petitioner/Appellant, requesting support to be provided to Petitioner/Appellant.  (Resp. Exhibit JJ).

Brenda Carethers was the principal at Emerson during the 2013-2014 school year.  Ms. Carethers testified that when she would walk past Petitioner/Appellant’s classroom she noticed how loud it was and that it appeared to be chaotic.  (Tr. Vol. II, pages 345-348).  Ms. Carethers testified that there was an incident in Petitioner/Appellant’s classroom in early October where one child was chasing another around the room with a broom and the child being chased fell, hit her head on a desk, and received stitches.  As a result of this incident, Ms. Carethers contacted employee relations and a hearing was held in relation to the incident.  A few days after this incident (again in early October 2013), Petitioner/Appellant submitted Family Medical Leave Act (FMLA) paperwork and went out on such for the remainder of the school year.  Petitioner/Appellant did not return to Emerson for the remainder of the year.  (Tr. Vol. II, pages 350-353). 

On May 28, 2014, Ms. Carethers completed an end of year teacher evaluation for Petitioner/Appellant.  For the first core element, demonstrated pedagogical skills, Petitioner/Appellant was found to be ineffective.  For the second core element of student growth as a predominant factor, Petitioner/Appellant was found to be ineffective.  For the third core element of classroom management, Petitioner/Appellant was found to be ineffective.  For the fourth core element of relevant special training, Petitioner/Appellant was found to be ineffective.  For the fifth core element of educator responsibilities, Petitioner/Appellant was found to be ineffective.  Petitioner/Appellant was found to be ineffective for the 2013-2014 school year.  (Resp. Exhibit I). 

On July 25, 2014, Petitioner/Appellant was sent a letter informing him of his overall rating of ineffective for the 2013-2014 school year.  (Resp. Exhibit EE).  Petitioner/Appellant did not protest the ineffective rating.

For the 2014-2015 school year, Petitioner/Appellant was placed at Fisher Magnet Upper School, located with the DPSCD.  He was assigned to teach sixth grade ELA.  During the 2014-2015 school year, Harry Coakley was the principal at Fisher Magnet Upper School.  On September 29, 2014, Mr. Coakley conducted an informal observation of Petitioner/Appellant and created a teacher observation rubric as a result.  For the first core element of demonstrated pedagogical skills, Petitioner/Appellant was given a rating of ineffective for all sub-areas.  For the second core element of student growth as a predominant factor, no rating was assigned to Petitioner/Appellant.  For the third core element of classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas but one; for the sub-area of creating and facilitating a learning space, Petitioner/Appellant was given a rating of minimally effective.  For the fourth and fifth core elements of relevant special training and educator responsibilities respectively, no rating was assigned to Petitioner/Appellant.  (Resp. Exhibit J).

Assistant Principal Selina Wilkins also conducted an observation of Petitioner/Appellant.  No ratings were given for core elements I, II, IV, and V.  For core element III, classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas but one; for the sub-area of creating and facilitating a learning space, Petitioner/Appellant was given a rating of minimally effective.  (Resp. Exhibit K).

On December 12, 2014, Mr. Coakley conducted another observation of Petitioner/Appellant.  For the first core element of demonstrated pedagogical skills, Petitioner/Appellant was given a rating of minimally effective for all sub-areas.  For the second core element of student growth as a predominant factor, no rating was assigned to Petitioner/Appellant.  For the third core element of classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas.  For the fourth and fifth core elements of relevant special training and educator responsibilities respectively, no rating was assigned to Petitioner/Appellant.  (Resp. Exhibit L).  Mr. Coakley testified that during this observation, a Title I teacher was assigned to assist Petitioner/Appellant in the classroom and that she was assisting him on the day the observation took place.  (Tr. Vol. III, pages 421-423).

On March 5, 2015, Mr. Coakley conducted another observation of Petitioner/Appellant.  The observation rubric provided by Respondent/Appellee as Exhibit M is incomplete and does not show the results or complete effectiveness ratings for all areas.  (Resp. Exhibit M).  On April 16, 2015, Assistant Principal Selina Wilkins conducted an observation of Petitioner/Appellant.  No ratings were given for core elements I, II, IV, and V.  For core element III, classroom management, Petitioner/Appellant was given a rating of ineffective for the sub-areas of managing instructional time and creating an atmosphere of mutual respect.  In the sub-area of creating and facilitating a learning space, Petitioner/Appellant was given a rating of effective.  In the sub-area of managing student behavior, Petitioner/Appellant was given a rating of minimally effective.  (Resp. Exhibit O).

On May 14, 2015, Mr. Coakley conducted another observation of Petitioner/Appellant.  No ratings were given for core elements I, II, IV, and V.  For core element III, classroom management, Petitioner/Appellant was given a rating of ineffective for all sub-areas.  (Resp. Exhibit N). 

On May 26, 2015, Mr. Coakley completed an end of year teacher evaluation for Petitioner/Appellant.  For Core Element I, demonstrated pedagogical skills, there are three sub-areas.  For the sub-area of knowledge of subject, Petitioner/Appellant was rated as minimally effective.  For the sub-area of planning for instruction, Petitioner/Appellant was rated as ineffective.  For the sub-area of delivery of instruction, Petitioner/Appellant was rated as ineffective.  For Core Element II, student growth as a predominant factor, there are four sub-areas.  For the sub-area of designing assessments, Petitioner/Appellant was rated as ineffective.  For the sub-area of utilizing assessments in instruction, Petitioner/Appellant was rated as minimally effective.  For the sub-area of demonstrating student growth, Petitioner/Appellant was rated as ineffective.  For the sub-area of uses a variety of techniques to communicate progress in a timely manner, Petitioner/Appellant was rated as minimally effective.  For Core Element III, classroom management, there are five sub-areas.  For the sub-area of managing instructional time, Petitioner/Appellant was rated as ineffective.  For the sub-area of managing student behavior, Petitioner/Appellant was rated as ineffective.  For the sub-area of creating an atmosphere of mutual respect and building rapport, Petitioner/Appellant was rated as minimally effective.  For the sub-area of creating and facilitating a learning space and stimulating learning environment, Petitioner/Appellant was rated as ineffective.  For the sub-area of maintains accurate grade books, lesson plans, and student records, Petitioner/Appellant was rated as minimally effective.  For Core Element IV, relevant special training, Petitioner/Appellant was rated as effective.  For Core Element V, significant relevant accomplishments and contributions, Petitioner/Appellant was rated as ineffective.  (Resp. Exhibit P).

Petitioner/Appellant’s overall rating for the 2014-2015 school year was ineffective.  On July 23, 2015, Respondent/Appellee sent Petitioner/Appellant a letter informing him of his overall rating of ineffective for the 2014-2015 school year.  (Resp. Exhibit FF).  Petitioner/Appellant did not challenge this overall rating.

During the 2015-2016 school year, Petitioner/Appellant was placed at Bunche Elementary/Middle school, located with the DPSCD.  During the 2015-2016 school year, Cindy Lang was the principal at Bunche.  (Tr. Vol. II, pages 276-277).  At the beginning of the school year, Petitioner/Appellant was placed in a classroom teaching science.  Petitioner/Appellant is not certified in science.  Ms. Lang testified that she was told by human resources to keep Petitioner/Appellant at Bunche until a placement for him could be found.  (Tr. Vol. II, pages 282-292).  It was the understanding of both Petitioner/Appellant and Ms. Lang that Petitioner/Appellant would be moved to a different placement by human resources once a placement was found.  In the meantime, Petitioner/Appellant was to stay at his then-current placement at Bunche.

On September 15, 2015, Ms. Lang did a walk-through of Petitioner/Appellant’s class and noted that he had no lesson plans and that he was in need of support.  (Resp. Exhibit Q).  Ms. Lang did an additional walk-through on September 17, 2015 and noted again that Petitioner/Appellant had no lesson plans and needed support.  (Resp. Exhibit R).  Ms. Lang testified that Petitioner/Appellant was provided support in the classroom subsequent to September 17, 2015.  (Tt. Vol. II, pages 288-290).

On September 28, 2015, Ms. Lang did another walk-through of Petitioner/Appellant’s classroom.  She noted that there was no student engagement, no classroom management, and no lesson plans.  (Resp. Exhibit S).  Petitioner/Appellant was then moved to a physical education (PE) class.  Petitioner/Appellant is not certified in PE.  On October 5, 2015, Ms. Lang preformed a walk-through of Petitioner/Appellant’s PE class.  She noted that Petitioner/Appellant did have a well written lesson plan, but that it was not followed.  She also noted that there was no classroom engagement and no classroom management.  (Resp. Exhibit T). 

On January 5, 2016, Frederick Cannon, AEA, sent a letter to Petitioner/Appellant stating that he was in violation of a work rule and that the letter would serve as a written reprimand.  The letter states that Petitioner/Appellant is in violation of work rule 10; employees must perform all work assigned by an administrator in charge.  The letter indicates that Petitioner/Appellant was instructed that his PE class needed to be structured and that a lesson plan needed to be followed but that it was not.  The letter requests Petitioner/Appellant’s presence at a January 7, 2016 meeting to which he was informed that he could bring union representation.  (Resp. Exhibit Z).

On February 1, 2016, Petitioner/Appellant left on FMLA.  He did not return for the remainder of the school year.  (Tr. Vol. II, pages 281-282).  On May 13, 2016, Ms. Lang completed an end of year teacher evaluation for Petitioner/Appellant.  For Core Element I, demonstrated pedagogical skills, Petitioner/Appellant was rated as ineffective in every sub-area.  For Core Element II, student growth as a predominant factor, Petitioner/Appellant was rated as ineffective in every sub-area.  For Core Element III, classroom management, Petitioner/Appellant was rated as ineffective for the sub-areas of managing instructional time, managing student behavior, and maintaining accurate grade books, lesson plans, and student records.  For the sub-areas of creating an atmosphere of mutual respect and building rapport, and creating and facilitating a learning space and stimulating learning environment, Petitioner/Appellant was rated as minimally effective.  For Core Element IV, relevant special training, Petitioner/Appellant was rated as ineffective.  For Core Element V, significant relevant accomplishments and contributions, Petitioner/Appellant was rated as ineffective.  (Resp. Exhibit BB).

On July 29, 2016, Petitioner/Appellant was sent a letter informing him that his overall rating for the 2015-2016 school year was ineffective.  (Resp. Exhibit GG).  On August 16, 2016, Respondent/Appellee sent Petitioner/Appellant a letter informing him that he had been rated as ineffective on his year-end evaluations for the past three years.  The letter informs him that, pending the outcome of the review, he is being placed on administrative leave effective August 29, 2016.  (Resp. Exhibit C).

On September 6, 2016, a letter was drafted informing Petitioner/Appellant that tenure charges were being filed against him due to his teaching performance for the years of 2013-2014, 2014-2015, and 2015-2016.  The letter states in the subject line “Notice of Charge of Termination Due to Ineffective Classroom Teaching Performance.”  (Resp. Exhibit D).  The title of the document clearly establishes a proposed outcome; that of termination.  The letter was created by Lauri Washington, Deputy Executive Director of the Office of Employee Relations.  Ms. Washington testified that the September 6, 2016 letter, which is a copy of the charges filed against Petitioner/Appellant was drafted and sent to Petitioner/Appellant on September 6, 2016.  She testified that the practice of the office is to send out letters the same day they are drafted.  She testified that she drafted the September 6, 2016 letter and sent the same to Petitioner/Appellant.  (Tr. Vol. I, pages 40-85). 

On September 12, 2016, the Transition Manager decided to proceed on the charges against Petitioner/Appellant.  On September 12, 2016, Respondent/Appellee sent a letter to Petitioner/Appellant informing him that the Transition Manager had authorized the Division of Talent to proceed on the tenure charges filed against him.  The decision to proceed on the charges was made on September 12, 2016, the letter sent to Petitioner/Appellant was sent out on September 12, 2016.  The letter informing Petitioner/Appellant of the decision to proceed on the charges was issued within five days of the decision to proceed.  The letter informs Petitioner/Appellant of his appeal rights, informs him of the time within which he must file his appeal, gives the address to where his appeal must be sent (for both the Tenure Commission and the District), provides a copy of the charges, and a copy of the relevant portions of the Act.  (Resp. Exhibit E). 

Petitioner/Appellant testified that he did not receive a copy of the September 6, 2016 letter which informs him of the charges filed against him.  Petitioner/Appellant testified that he moved at the end of August or beginning of September of 2016.  He testified that he did not inform Respondent/Appellee of his new address and that he was continuing to get mail at his old address.  Petitioner/Appellant testified that he knew he was continuing to get mail at his old address because the people who moved into his old residence were always getting mail for him there.  He told them he used to live there and asked that they bring any mail they got to him.  Petitioner/Appellant also testified that he had two addresses that he would receive mail at, his physical residence and a PO Box.  He testified that he did receive the September 12, 2016 letter informing him of the decision to proceed on the tenure charges.  Petitioner/Appellant testified that he received that letter 3 or 4 days after September 13, 2016.  (Tr. Vol. III, pages 492-505).  In his notarized Declaration, dated October 27, 2016, Petitioner/Appellant stated that he received the September 12, 2016 letter on September 16, 2016.  (Exhibit A attached to Petitioner/Appellant’s response to Respondent/Appellee’s Motion to Dismiss). 

Petitioner/Appellant filed his claim of appeal with the Tenure Commission on October 12, 2016.  Petitioner/Appellant’s Claim of Appeal was not filed within 20 days of the receipt of the decision to proceed on the tenure charges. 

Petitioner/Appellant became a certified teacher in the State of Michigan on October 10, 2006.  Petitioner/Appellant was assigned to Chadsey High School in the DPSCD on August 26, 2006.  He was released from his assignment at Chadsey High School on June 23, 2007.  (Sept. 28, 2018 Tr., Vol. I, pages 12-14).

Petitioner/Appellant was assigned to Chadsey High School as a long-term substitute teacher.  He was assigned to teach special education/learning disability.  (Sept. 18 Resp. Exhibit 3).  Petitioner/Appellant testified that he taught ELA to special education students and that he taught no other subjects.  He testified that he participated in preparing individualized education programs (IEP’s) for the students, that he tested the students, graded the students, and that he participated in parent/teacher conferences.  He further testified that he was evaluated at the end of the 2006-2007 school year and that he received satisfactory evaluations.  (Sept. 28, 2018 Tr., Vol. I, pages 35-39).  Petitioner is not certified in the area of special education or learning disabled.  All of the students he taught during the 2006-2007 school year were special education students who had IEP’s (Sept. 28, 2018 Tr., Vol., I, pages 66-67, 77-78).

I am taking judicial notice that the 2006-2007 school year for Chadsey High School began on September 14, 2006 and ended on June 22, 2007.  There were 174 total days in the school year.  Petitioner/Appellant worked 158 days as a long-term substitute teacher.

On September 6, 2007, Petitioner/Appellant was assigned to Schulze Elementary/Middle School located in the DPSCD.  Petitioner/Appellant was assigned as a building substitute.  A building substitute is a substitute teacher who is not assigned to a particular classroom or age group, but to the building itself as a substitute.  A building substitute may teach any age group or subject matter depending on the need for a substitute on the day in question.  Petitioner/Appellant was released from this assignment on June 14, 2008.  (Sept. 28, 2018 Tr., Vol. I, pages 14, 24-25).

On September 2, 2008, Petitioner/Appellant was assigned to Boynton Elementary/Middle School located in the DPSCD.  Petitioner/Appellant was assigned as a building substitute.  He was released from his assignment at Boynton on June 13, 2009.  (Sept. 28, 2018 Tr., Vol., I, pages 14-15).

On September 8, 2009, Petitioner/Appellant was assigned to Western International High School located in the DPSCD.  On September 11, 2009, Petitioner/Appellant was assigned to Southeastern High School located in the DPSCD.  He was released from his assignment at Southeastern High on June 19, 2010.  (Sept. 28, 2018 Tr., Vol., I, pages 15-16).  While assigned to Southeastern High, Petitioner/Appellant taught ELA (an area for which he is certified).  While at Southeastern during the 2009-2010 school year, Petitioner/Appellant was classified as a long-term substitute teacher.  Based on this classification, Petitioner/Appellant filed a grievance to be treated as a contract teacher which resulted in a settlement wherein Petitioner/Appellant was reimbursed to be compensated as a contract teacher as opposed to a long-term substitute.  (Sept. 18 Resp. Exhibit 12, Sept. 28, 2018 Tr., Vol., I, pages 40-43).  While at Southeastern High for the 2009-2010 school year, Petitioner/Appellant created lesson plans, tested the students, attended parent/teacher conferences, and participated in professional development.  Petitioner/Appellant received an evaluation for the 2009-2010 school year.  He testified that he received a very good evaluation.  (Sept. 28, 2018 Tr., Vol., I, pages 40-47).

I am taking judicial notice that the 2009-2010 school year for Southeastern High School began on September 8, 2009 and ended on June 17, 2010.  There were 174 total days in the school year.  Petitioner/Appellant worked 171 days as a contract teacher in his area of certification.

On October 6, 2010, Petitioner/Appellant was assigned to Southwestern High School located within the DPSCD.  On July 30, 2011, Petitioner/Appellant was laid off for economic necessity.  (Sept. 28, 2018 Tr., Vol., I, pages 16-17).  During this assignment at Southwestern High School, Petitioner/Appellant was assigned as a probationary contract teacher.  (Sept. 28, 2018 Tr., Vol. I, pages 28-29; Sept. 18 Pet. Exhibit 8).  While assigned to Southwestern High School during this time period, Petitioner/Appellant taught the subject of English Language Arts (an area for which he was certified).  Petitioner/Appellant made lesson plans, graded students, tested students, held parent/teacher conferences, and attended professional development.  Petitioner/Appellant also testified that he was evaluated during this assignment at Southwestern High.  (Sept. 28, 2018 Tr., Vol., I, pages 54-56).

I am taking judicial notice that the 2010-2011 school year for Southwestern High School began on September 7, 2010 and ended on June 16, 2011.  There were 174 total days in the school year.  Petitioner/Appellant worked 154 days as a certified teacher in his area of certification. 

On November 11, 2011, Petitioner/Appellant was assigned to Frederick Douglas High School located within the DPSCD.  He was released from his assignment at Frederick Douglas High School on August 25, 2012.  (Sept. 28, 2018 Tr., Vol., I, pages 16-17).  During his assignment at Frederick Douglas High School, Petitioner/Appellant was a full-time contract teacher teaching in the area of his certification (English).  (Sept. 28, 2018 Tr., Vol., I, pages 30-31).

I am taking judicial notice that the 2011-2012 school year for Frederick Douglas High School began on September 6, 2011 and ended on June 14, 2012.  There were 174 days in the school year.  Petitioner/Appellant worked 120 days as a certified teacher in his area of certification.

Based on a lawsuit filed against Respondent/Appellee, a settlement was reached wherein teacher evaluations for the 2011-2012 school year were expunged.  (Sept. 18 Resp. Exhibit O).

Petitioner/Appellant was not employed by Respondent/Appellant during the 2012-2013 school year.  (Sept. 28, 2018 Tr., Vol., I, pages17-18).

On September 17, 2013, Petitioner/Appellant was assigned to Emerson Elementary School.  Petitioner/Appellant taught sixth grade English Language Arts at Emerson Elementary/Middle School, located with the DPSCD.  (Pet. Exhibit 8).  He taught block classes consisting of math and English language arts (ELA).  Petitioner taught one block of ELA and two blocks of math.  (Tr. Vol. II, pages 213-214).  Petitioner/Appellant is not certified in the subject matter of math.  Less than half of Petitioner/Appellant’s day at Emerson Elementary School during the 2013-2014 school year was spent teaching an area for which he was certified to teach.

On October 28, 2013, Petitioner/Appellant was placed on administrative leave for the incident mentioned above.  He remained on leave until January 6, 2014.  (Sept. 28, 2018 Tr., Vol., I, pages 21-23).  On January 8, 2014, Petitioner/Appellant went out on illness leave, which was a paid leave of absence.  He remained on this paid leave of absence through June 24, 2014.  (Sept. 28, 2018 Tr., Vol., I, pages 18-19).

I am taking judicial notice that the 2013-2014 school year for Emerson Elementary/Middle School began on September 3, 2013 and ended on June 12, 2014.  There were 174 days in the school year.  Petitioner/Appellant preformed the duties of a teacher for 30 days during the 2013-2014 school year.  Of those 30 days, Petitioner/Appellant spent 1/3 of his time teaching in an area that he was certified to teach.  As stated above, Petitioner/Appellant received an ineffective evaluation for the 2013-2014 school year.

On August 23, 2014, Petitioner/Appellant was assigned to Fisher Magnet Upper School; a middle school located within the DPSCD.  (Sept. 28, 2018 Tr., Vol., I, pages 19-20).  As stated above, Petitioner/Appellant taught 6^th grade ELA at Fisher Magnet Upper School; an area for which he was certified to teach.

I am taking judicial notice that the 2014-2015 school year for Fisher Magnet Upper School began on September 2, 2014 and ended on June 11, 2015.  There were 175 days in the school year.  Petitioner/Appellant worked 175 days as a certified teacher in his area of certification.^[6]

Petitioner/Appellant was also assigned to teach summer school through DPSCD.  On June 13, 2009, Petitioner/Appellant was assigned to teach summer school at Western International High School located within the DPSCD.  His summer school assignment ended on July 25, 2009.  (Sept. 28, 2018 Tr., Vol. I, page 26).  Petitioner/Appellant taught ELA during his summer school assignment and was evaluated for his performance.  (Sept. 28, 2018 Tr., Vol., I, pages 56-57).

On June 19, 2010, Petitioner/Appellant was assigned to teach summer school at Southeastern High School.  His summer school assignment ended August 1, 2010.  (Sept. 28, 2018 Tr., Vol., I, page 27).  Petitioner/Appellant was provided curriculum for this summer school teaching assignment.  He recalled part of the curriculum as being a Shakespearian plan.  He also testified he was evaluated after summer school had ended.  (Sept. 28, 2018, Tr., Vol., I, pages 48-50).

On June 18, 2011, Petitioner/Appellant was assigned to teach summer school at Southwestern High School.  His summer school assignment ended July 2, 2011.  (Sept. 28, 2018 Tr., Vol., I, page 27).

DISCUSSION

Prior to the October 2017 hearing, the parties had stipulated that Petitioner/Appellant had obtained tenure status at Respondent/Appellee district.  The Commission remanded the matter in part to make factual findings pertaining to Petitioner/Appellant’s achievement of tenure.  After the matter was remanded, Respondent/Appellee stated that it now believed that Petitioner/Appellant had not in fact achieved tenure and that the Commission would therefore not have jurisdiction over Petitioner/Appellant’s claim of appeal.

The first issue to be addressed will therefore be to determine if Petitioner/Appellant achieved tenure at Respondent/Appellee district.  It is appellant’s (Petitioner’s) burden to prove that he or she achieved tenure.  Babcock v Board of Education of the Kent Intermediate School District (91-13).  If a teacher was not tenured, this Commission has no jurisdiction to consider the teacher’s claim of appeal.  Fryxell v Livonia Public Schools (09-48).

A probationary period is a period during which a teacher renders full services to a school district.  A probationary teacher on layoff is not employed for purposes of serving the probationary period.  Stakoe v Board of Education of the Mackinac Island Public Schools (81-65) (Decision and order, appellant’s motion for partial summary judgment, et al, June 30, 1982); Newcombe v Board of Education of the Flint Community Schools (10-35); Fryxell v Livonia Public Schools (09-48).  A teacher’s probationary period does not include the school days that the teacher did not render teaching services to the district because the teacher was on layoff.  Benson v Westwood, (14-17).

Respondent/Appellee argues that a teacher’s probationary period is either four or five years after they become a probationary contract teacher, and that if they have not worked four or five full school years within that period (and achieved effective ratings for the last 3 years) they cannot achieve tenure.  Respondent/Appellee’s position is therefore that Petitioner/Appellant’s “probationary period” ended in 2011.  Respondent/Appellee is misguided in its interpretation of the statute.

MCL 38.83b(2) notes in relevant part, “a teacher shall not be considered to have successfully completed the probationary period unless the teacher has been rated as effective or highly effective on his or her 3 most recent annual year-end performance evaluations … and has completed at least 5 full school years of employment in a probationary period.”  The legislature, in enacting MCL 38.83b(2) clearly intended that a probationary period could extend beyond five full school years.  To hold that a probationary period can only last either four or five years renders the words “at least” in MCL 38.83b(2) null.  The primary task in construing a statute is to discern and give effect to the intent of the Legislature which is done by giving effect to every word, phrase, and clause in the statute.  Shinholster v Annapolis Hosp, 471 Mich 540 (2004).  It is important to avoid a construction that would render any part of a statute surplusage or nugatory.  Bageris v Brandon Twp, 264 Mich App 156 (2004).  “A court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.’  Roberts (Lisa) v Mecosta Co Gen Hosp, 466 Mich 57 (2002).

The Teacher Tenure Commission, in an April 23, 2018 denial of Request for Declaratory Ruling (18-3) dealt with just this issue and found that “the Act provides that the probationary period must be “at least” five years; it can be longer than five years if the evaluation requirement is not satisfied.”  The Teacher Tenure Commission’s written statement of the legal reasons for the declaratory ruling denial and rationale for not issuing a declaratory ruling (that the statute directly addresses the issue) is persuasive and is adopted.

A teacher therefore obtains tenure status upon completion of the probationary period which consists of two distinct parts 1) at least four or five years and 2) completion of three consecutive effective or highly effective year end evaluations.  Whether it takes four, five, six, seven, or more years to complete a probationary period is irrelevant to the determination of if a teacher can obtain tenure.

It must therefore first be determined when Petitioner/Appellant completed four full school years of teaching within his area of certification.  Once it has been established that Petitioner/Appellant completed four full school years, then his most recent evaluations must be examined.  Petitioner/Appellant first became certified to teach ELA and Bilingual 6-12 on October 10, 2006.  Any work put in prior to obtaining his certification does not count towards his probationary period required for obtaining tenure.

Petitioner/Appellant argues that during the 2006-2007 school year he was teaching in his area of certification.  I disagree.  Although Petitioner/Appellant was teaching ELA as a long-term substitute, he was teaching in a special education classroom.  Petitioner/Appellant is not certified to teach special education.  Petitioner/Appellant testified that every student in his class during the 2006-2007 school year had an IEP (Sept. 28, 2018, Tr., Vol., I, page 78).  Additionally, Petitioner/Appellant’s assignment letter clearly states that he will be teaching special education/learning disabled (Sept. 18 Resp. Exhibit 3).  Therefore, he was not teaching any general education students and only special education.  The commission has held that in order for a "teacher" to acquire tenure under Article II of the Tenure Act, the teacher must 1) be employed in a position for which a teaching certificate is required, and 2) possess that specific certificate. Meade v Washtenaw Intermediate School District (88-36); Oates-Ulrich v Board of Education, Okemos Public Schools (82-24-R), aff'd 163 Mich App 587; 415 NW2d 213 (1987), lv den 430 Mich 859 (1988).  Gross v Southfield Board of Education (88-43).  As Petitioner/Appellant was not teaching in the area of his certification during the 2006-2007 school year, that time does not count toward his four years required to achieve tenure status.

During the next two school years; 2007-2008 and 2008-2009, Petitioner/Appellant served as a building substitute within the DPSCD.  As stated above, a building substitute is not assigned a particular classroom, rather they are assigned to whichever classroom may need a substitute on that particular day.  Therefore, Petitioner/Appellant could have been teaching ELA, math, gym, music, or whatever subject needed a substitute.  Additionally, there was no evidence presented to show that a building substitute is required to have a teaching certificate.  Furthermore, Petitioner/Appellant would not have been preforming the regular duties of a full-time teacher; he would not have been preparing lesson plans, testing or grading students, or holding parent/teacher conferences in this role.  Accordingly, the school years of 2007-2008 and 2008-2009 does not count towards his four years required to achieve tenure status.

Therefore, the first year that counts towards Petitioner/Appellant’s probationary period is the 2009-2010 school year.  During this year, Petitioner/Appellant was teaching in his area of certification as of September 11, 2009.  As stated above, Petitioner/Appellant worked 171 of 174 school days as a teacher in his area of certification during this school year.

The next year to count towards Petitioner/Appellant’s probationary period is the 2010-2011 school year.  During this year, Petitioner/Appellant began teaching in the area of his certification on October 6, 2010. He worked 154 of 174 school days as a teacher in his area of certification.

The next year to count towards Petitioner/Appellant’s probationary period is the 2011-2012 school year.  During this year, Petitioner/Appellant began teaching in the area of his certification on November 21, 2012.  He worked 120 of 174 school days as a teacher in his area of certification.

Petitioner/Appellant was not employed by Respondent/Appellee during the 2012-2013 school year.  He was next employed during the 2013-2014 school year, as he was teaching in his area of certification, this year counts towards his probationary period.  However, Petitioner/Appellant only worked 30 days out of 174 preforming the duties of a teacher during this year.  Additionally, during those 30 days, only one third of his day was teaching in an area of his certification.  Petitioner/Appellant received an ineffective evaluation during this year.

Petitioner/Appellant did not work the entire school year for the years which count towards his probationary period, as noted above.  However, even if Petitioner/Appellant were to be given credit for the entire school year for the school years of 2009-2010, 2010-2011, and 2011-2012, he still would not have completed four full years until the end of the 2014-2015 school year, as 30 days of providing services as a teacher during the 2013-2014 school year cannot be said to constitute a full school year.  Therefore, even assuming Petitioner/Appellant reached the end of his probationary period at the end of the 2014-2015 school year, he would not have achieved tenure as he had ineffective evaluations for both the 2013-2014 and 2014-2015 school years.  Accordingly, I do not find that Petitioner/Appellant has shown, by a preponderance of the evidence, that he achieved tenure with Respondent/Appellee.

The Teacher Tenure Commission lacks jurisdiction because Petitioner/Appellant did not achieve tenure status prior to his termination.  Pursuant to MCL 38.83, “A teacher who is in a probationary period may be dismissed from his or her employment by the controlling board at any time.”  Because Petitioner/Appellant did not achieve tenure status, the Commission does not have jurisdiction over his Claim of Appeal.

Even though I have determined that Petitioner/Appellant did not achieve tenure, I will still make a determination as to whether or not Respondent/Appellee’s Motion to Dismiss was properly determined based on the timing of the filing of Petitioner/Appellant’s Claim of Appeal.  The Commission specifically directed findings to be made as to if Petitioner/Appellant was a tenured teacher, and if Respondent/Appellee strictly complied with the Act by providing Petitioner/Appellant a copy of the tenure charges against him in accordance with MCL 38.102, that those charges stated a proposed outcome, and that Petitioner/Appellant was provided with a copy of the decision to proceed on the charges within five days of said decision. 

I find that the preponderance of the evidence shows that Respondent/Appellee did in fact provide Petitioner/Appellant with a copy of the charges.  On September 6, 2016, Lauri Washington prepared a letter informing Petitioner/Appellant of the charges being filed against him (see Resp. Exhibit D).  Ms. Washington provided credible testimony that she created and sent that letter to Petitioner/Appellant’s last known address.  Ms. Washington credibly testified that it is typical practice to create and send out letters the same day they are created. 

Petitioner/Appellant also credibly testified that he did not receive the September 6, 2016 letter until he received the September 12, 2016 letter informing him of the decision to proceed on the charges, which also contained a copy of the September 6, 2016 letter.  However, even though Petitioner/Appellant credibly testified that he did not receive that letter, his testimony sheds light on why he may not have received it.  Petitioner/Appellant testified that he moved at the end of August or beginning of September.  He also testified that he did not inform Respondent/Appellee of his new address.  He testified that he continued to get mail at his old address because he moved to the apartment next door and the people who moved into his old apartment were getting mail addressed to him and giving it to him.

I find that Respondent/Appellee acted appropriately in attempting to provide Petitioner/Appellant with a copy of the tenure charges.  A copy of those charges was sent to Petitioner/Appellant’s last known address on September 6, 2016.  That Petitioner/Appellant did not receive those charges is not the fault of Respondent/Appellee, but rather due to Petitioner/Appellant not providing the proper address and relying on his neighbors to provide him mail that was still arriving at his old address.  Therefore, I find that Respondent/Appellee did provide Petitioner/Appellant with a copy of the tenure charges prior to the decision to proceed thereon.

As stated above, the title of the September 6, 2016 letter states in the subject line “Notice of Charge of Termination Due to Ineffective Classroom Teaching Performance.”  Therefore, the proposed outcome was provided to Petitioner/Appellant.  Furthermore, the decision to proceed on the charges was made on September 12, 2016, the letter informing Petitioner/Appellant of the decision to proceed on the charges was sent out on September 12, 2016.  Accordingly, I find that Respondent/Appellee complied with the procedural requirements of the Act.

The 20-day time limit for filing a claim of appeal is a jurisdictional issue, and claims that are filed outside the 20-day timeline are barred.  Bush v Zeeland Public Schools (97-42).  Therefore, if a Claim of Appeal is filed outside the required 20-day time period, the Commission lacks jurisdiction to examine the factual allegations contained in the Claim of Appeal. 

Petitioner/Appellant’s testimony and declaration attached to his response to Respondent/Appellee’s Motion to Dismiss state that he received the September 12, 2016 letter advising him of the decision to proceed on the charges and the related documents on September 16, 2016.  Therefore, Petitioner/Appellant had to file his Claim of Appeal by October 6, 2016.  Petitioner/Appellant’s claim of appeal was filed with the Commission on October 12, 2016.  As Petitioner/Appellant did not file his Claim of Appeal within the mandated 20-day time period, the Commission lacks jurisdiction to hear the Claim of Appeal and the matter was properly dismissed.

CONCLUSIONS OF LAW

The Commission lacks jurisdiction over Petitioner/Appellant’s Claim of Appeal because he was not a tenured teacher and because his Claim of Appeal was not filed within the required 20-day time frame.  Therefore, dismissal of the Claim of Appeal is proper.

ORDER

NOW THEREFORE, IT IS HEREBY ORDERED that Petitioner/Appellant’s Claim of Appeal is DISMISSED for lack of jurisdiction.

EXCEPTIONS

A party may file a statement of exceptions to the decision and order or to any part of the record or proceedings including rulings on motions or objections, with the State Tenure Commission.  The statement of exceptions must be accompanied by a brief in support of the exceptions and filed in accordance with the rules of the Commission.  Rule 46 ; AC 38.176.  The brief and statement of exceptions must be served upon each of the parties within the time limit stated above.  A party may file a statement of cross-exceptions or a statement in support of the preliminary decision, accompanied by a brief, with the State Tenure Commission, not later than 10 days after being served with the other party's exceptions and brief.  MCL 38.71 et seq.  Rule 46(2) of the Commission's General Administrative Rules requires that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions.  The argument must be prefaced by the exception/cross-exception which it addresses.  [See Rule 46(4)(d)].

The deadline for filing exceptions is 20 days after the mailing of this judgment; therefore, exceptions must be filed by Tuesday, March 12, 2019.  Exceptions must be received by the Commission before the close of business on the last day of this time limit.  Exceptions should be sent to the Office of Administrative Law, 608 West Allegan Street, P.O. Box 30008, Lansing, Michigan 48909.  Exceptions can be electronically filed with the Commission at MDE-AdminLaw@michigan.gov. 

A matter not included in the statement of exceptions or statement of cross-exceptions is considered waived and cannot be heard before the Commission or on appeal to the Court of Appeals.

If exceptions are not timely filed, this decision and order becomes the State Tenure Commission's final decision and order.

Please note that this Decision and Order may be edited prior to publication on the Michigan Department of Education web site.  Readers are requested to promptly notify the Office of Administrative Law of any typographical or other non-substantive errors so that corrections can be made prior to publication.

PROOF OF SERVICE

I hereby state, to the best of my knowledge, information and belief, that a copy of the foregoing document was served upon all parties and/or attorneys of record in this matter by Inter-Departmental mail to those parties employed by the State of Michigan and by UPS/Next Day Air, facsimile, and/or by mailing same to them via first class mail and/or certified mail, return receipt requested, at their respective addresses as disclosed below this _______ day of February, 2019.

[1] For purposes of clarity, the list of exhibits offered by the parties shall be divided into exhibits offered at the October 2017 hearing and exhibits offered at the September 2018.  Any reference to exhibits offered at the September 2018 hearing throughout the body of this preliminary decision and order shall be denoted as exhibits from the September 2018 hearing (i.e.  Sept. 18 Pet. Exhibit A or Sept. 18 Resp. Exhibit 1).

[2] Unless otherwise specified, the individuals who testified in this matter are individuals who testified at the October 2017 hearing.  A separate section will be made to denote individuals who testified at the September 2018 hearing.

3. Public Act 100 of 2011 amended section 1 of article IV of the TTA, being MCL 38.101. This amendment changed the standard review a controlling board’s request to discharge or demote a tenured teacher from “reasonable and just cause” to “not arbitrary or capricious.”

[4] Articles 4, 5, and 6 of the Teacher Tenure Act are MCL 38.101 through 38.121 inclusive.

[5] Findings of Fact made after the September 28, 2018 hearing are incorporated into this section which also contains findings made at the October 2017 hearing.

[6] Please see above for findings in relation to Petitioner/Appellant’s employment with Respondent during the 2015-2016 school year.