JOHNSON SAMANTHA v CRESTWOOD 18-8 09/26/18

STATE OF MICHIGAN

MICHIGAN ADMINISTRATIVE HEARING SYSTEM

Issued and entered

 this 26^th day of September 2018

by: Eric J. Feldman

Administrative Law Judge

PRELIMINARY DECISION AND ORDER

GRANTING RESPONDENT’S MOTION FOR SUMMARY DISPOSITION

PROCEDURAL HISTORY

By letter dated June 15, 2018, Laurine Van Valkenburg, Ph.D., Superintendent of Schools for Crestwood School District (District/Respondent/Appellee), charged Samantha Johnson (Petitioner/Appellant), a tenured teacher, with unprofessional and inappropriate communication with students, and insubordination.  The charges are contained in seven numbered paragraphs, covering three pages.  The charges requested that Petitioner be discharged from her employment with Respondent.  On June 25, 2018, the Board of Education (Board) met and considered the charges.  The Board approved the charges and the request to terminate Petitioner’s employment.  The charges as well as the Board action on the charges were sent to Petitioner on June 26, 2018.  [Br. in Supp. of Resp’s Mot. for Summ. Disp., Exh. A.]  

On August 2, 2018, Petitioner, on her own behalf, filed a Claim of Appeal with the State Tenure Commission (Commission).  On August 2, 2018, Petitioner served a copy of her Claim of Appeal and notice of Claim of Appeal to the Board.  [Br. in Supp. of Resp’s Mot. for Summ. Disp., Exh. A.] 

On August 6, 2018, the undersigned Administrative Law Judge (ALJ), Eric J. Feldman, issued a Notice of Prehearing Conference by Telephone, which scheduled a prehearing conference for August 23, 2018.  At the time of the notice, the Michigan Administrative Hearing System (MAHS) believed that Petitioner had been represented by an attorney; therefore, the notice of the prehearing conference was not sent to Petitioner.  However, MAHS subsequently discovered that Petitioner was not represented by an attorney.  As a result, MAHS sent Petitioner an Amended Proof of Service on August 13, 2018, informing her of the prehearing conference scheduled for August 23, 2018. 

On August 8, 2018, Attorneys Gouri G. Sashital and Kathryn E. Jones filed their Appearance on behalf of Respondent. 

On August 13, 2018, Respondent’s Attorneys filed an Answer to Claim of Appeal and Affirmative Defenses. 

On August 21, 2018, Respondent’s Attorneys filed a Notice, a Request for a Hearing on Respondent’s Motion for Summary Disposition, Respondent’s Motion for Summary Disposition, and Brief in Support of Respondent’s Motion for Summary Disposition, which included Exhibits A and B. 

On August 23, 2018, a prehearing conference was convened by the undersigned ALJ via teleconference.  Petitioner appeared on her own behalf.  Attorneys Gouri G. Sashital and Kathryn E. Jones appeared on behalf of Respondent.  During the prehearing conference, the undersigned ALJ determined that an Oral Argument would be held to address Respondent’s Motion for Summary Disposition on September 7, 2018.    

On August 28, 2018, Respondent’s Attorneys filed a Notice, a Request for a Hearing on Respondent’s Second Motion for Summary Disposition, Respondent’s Second Motion for Summary Disposition, and Brief in Support of Respondent’s Second Motion for Summary Disposition, which included Exhibits A, B, and C. 

On August 29, 2018, the undersigned ALJ issued an Order Following Prehearing Conference, Scheduling Oral Argument on Motion, and Notice of Hearing.  The Order informed both parties that all responses to Respondent’s Motion for Summary Disposition must be filed by August 30, 2018, and that the Oral Argument to address this motion was scheduled for September 7, 2018.  Petitioner never filed a response to Respondent’s Motion for Summary Disposition. 

On September 6, 2018, the undersigned ALJ issued an Order Rescheduling Oral Argument on Motions.  In light of Respondent’s request for a Second Motion for Summary Disposition, the undersigned ALJ determined that each motion will be heard on the same day, resulting in the September 7, 2018, Oral Argument being rescheduled.  The Order informed both parties that all responses to Respondent’s Second Motion for Summary Disposition must be filed by September 7, 2018, and that the Oral Argument to address each motion was scheduled for September 14, 2018.  Petitioner never filed a response to Respondent’s Second Motion for Summary Disposition. 

On September 14, 2018, the oral argument was held.  Attorney Gouri G. Sashital appeared on behalf of Respondent.  Petitioner appeared on her own behalf.  It should be noted that a few hours prior to commencement of the hearing, Petitioner requested MAHS if the oral argument could be adjourned.  However, the undersigned ALJ denied Petitioner’s request for adjournment.   

On September 14, 2018, the oral argument was concluded.

DISCUSSION

In this case, Respondent/Appellee has filed two motions for summary disposition. 

Respondent’s first motion states that Petitioner’s Claim of Appeal alleges violations of Michigan’s Bullard-Plawecki Employment Right to Know Act, MCL 423.501 et seq. (Bullard-Plawecki Act), and Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq. (ELCRA), which therefore, Respondent argues are not within the jurisdiction of the Commission and that the Commission lacks jurisdiction over the subject matter of the appeal.  Respondent’s first motion further states that Petitioner has made no allegations that the alleged discrimination and claimed violations of the Bullard-Plawecki Act and ELCRA violated the Teachers’ Tenure Act, which therefore, Respondent argues that Petitioner has failed to state a claim upon which relief can be granted by the Commission.  [Br. in Supp. of Resp’s Mot. for Summ. Disp. pp. 1-5, Exh. A.] 

Respondent’s second motion states that upon the expiration of Petitioner’s teaching certification, she was no longer a teacher as defined by the Teachers’ Tenure Act, thus, she is not entitled to the protection of the Teacher’s Tenure Act.  Therefore, the Commission lacks jurisdiction over the subject matter of the appeal.  Respondent’s second motion further states that because Petitioner does not hold a valid teaching certification, she is without the protections of the Teacher’s Tenure Act for relief, which therefore, Respondent argues that Petitioner has failed to state a claim upon which relief can be granted by the Commission.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. pp. 1-5.] 

Moreover, Respondent asserts that its motions for summary disposition should be granted pursuant to Tenure Commission Rule 25, Mich Admin Code, R 38.155, which states 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:

(a)         The appellant has failed to state a claim upon which relief can be granted.

*  *  *

(d)    The commission lacks jurisdiction of the subject matter.

*  *  *

(2) Only the pleadings may be considered when the motion for summary disposition is based on subrule (1) (a) or (b) of this rule. A motion based upon subrule (1) (c) of this rule shall be supported by affidavits and shall specifically identify the issues as to which the moving party believes there is no genuine issue of material fact. The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, shall be considered. If a motion is made under subrule (1) (c) of this rule and supported as provided in this rule, then an adverse party may not rest upon the mere allegation or denial of the pleading, but shall, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for hearing. If the adverse party does not respond, then summary disposition, if appropriate, shall be entered. Summary disposition shall be entered if the pleadings show that a party is entitled to summary disposition as a matter of law or if the affidavits or other proof shows that there is no genuine issue of fact.  If it appears that the opposing party, rather than the moving party, is entitled to summary disposition, the administrative law judge may render summary disposition in the opposing party's favor without a motion.

(3) The administrative law judge may order an immediate hearing on disputed questions of fact and enter a summary disposition if the proofs show that the moving party is entitled to summary disposition or the administrative law judge may postpone the hearing until the merits are heard.

(4) If the grounds asserted for summary disposition are based on subrule (1)(a),(b), or (c) of this rule, then the administrative law judge shall give the parties an opportunity to amend their pleadings, unless the evidence before the administrative law judge shows that amendment would not be justified.

Additionally, this tribunal looks to both state and federal court rules, including the Commission’s precedent.  In reviewing a motion for summary disposition, this tribunal must consider the pleadings, depositions, and all other documentary evidence submitted by the parties.  The tribunal must consider the record in the light most favorable to the non-moving party. 

Having reviewed Respondent’s Second Motion for Summary Disposition, the undersigned ALJ has determined that Respondent’s second motion is hereby GRANTED.  Because the undersigned ALJ has granted Respondent’s Second Motion for Summary Disposition, the undersigned has determined that Respondent’s original Motion for Summary Disposition is MOOT.  The undersigned ALJ addresses Respondent’s Second Motion for Summary Disposition below. 

The Commission lacks jurisdiction of the subject matter and Petitioner/Appellant has failed to state a claim upon which relief can be granted.

In this case, the District hired Petitioner on June 13, 2000, as a teacher.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 2, Exh. A.]  

On December 7, 2017, Laurine Van Valkenburg, Ph.D., Superintendent of Schools for the District, informed Petitioner that her professional teaching certificate would expire on June 30, 2018.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 2, Exh. B.]  Petitioner acknowledged receipt of this correspondence from Superintendent Van Valkenburg.  [Tr. Vol. I, p. 32.]     

On June 15, 2018, Superintendent Van Valkenburg charged Petitioner, a tenured teacher, with unprofessional and inappropriate communication with students, and insubordination.  The charges requested that Petitioner be discharged from her employment with Respondent.  On June 25, 2018, the Board met and considered the charges.  The Board approved the charges and the request to terminate Petitioner’s employment.  The charges as well as the Board action on the charges were sent to Petitioner on June 26, 2018.  [Br. in Supp. of Resp’s Mot. for Summ. Disp., Exh. A; Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 2.]  

On June 30, 2018, Petitioner’s teaching certificate expired.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 2, Exh. C.]  It was undisputed that Petitioner’s teaching certificate remained expired as of the day of the Oral Argument, September 14, 2018.  [Tr. Vol. I, pp. 29-30.] 

On August 2, 2018, Petitioner, on her own behalf, filed a Claim of Appeal with the Commission.  On August 2, 2018, Petitioner served a copy of her Claim of Appeal and notice of Claim of Appeal to the Board.  [Br. in Supp. of Resp’s Mot. for Summ. Disp., Exh. A; Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 2.]  And as shown above, on the date Petitioner filed her Claim of Appeal, her teaching certificate was still expired.

The Teachers’ Tenure Act, specifically, MCL 38.71, defines “teacher,” as follows:

Sec. 1.

(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.

(3) An individual employed as a teacher in a public school academy established under Act No. 451 of the Public Acts of 1976, being sections 380.1 to 380.1852 of the Michigan Compiled Laws, is not considered a teacher during that employment for the purpose of continuing tenure under article III. However, an individual described in section 1(4) of article III is a teacher for the purpose of retaining continuing tenure as described in that section.

(4) Teacher does not include an individual whose teaching certificate has expired or has been suspended or revoked. MCL 38.71(1)-(4) (emphasis added). 

Additionally, the Teachers’ Tenure Act, specifically, MCL 38.72, defines “certificated,” as follows:

Sec. 2.

The term “certificated” means holding a valid teaching certificate, as defined by the state board of education.  For the purpose of this section, an individual is considered to be holding a valid teaching certificate if the individual has on file with his or her employing school district either an appropriate teaching certificate issued by the state board of education or, if the individual's application for a teaching certificate has not been confirmed or rejected by the state board, written evidence from the individual's teacher education college that he or she meets the requirements described in section 1535 of the school code of 1976, Act No. 451 of the Public Acts of 1976, being section 380.1535 of the Michigan Compiled Laws.  MCL 38.72 (emphasis added). 

In the case of Cantu v. Bd of Ed of the Grand Rapids Pub Sch, 186 Mich App 488, 489; 464 NW2d 900, 901 (1990), the Michigan Court of Appeals addressed petitioner’s appeal of whether the Commission’s decision that it “did not have jurisdiction to review petitioner's discharge because she did not have a teaching certificate at the time of her discharge or at the time she filed her petition with the tenure commission.”  In the case Cantu, the Michigan Court of Appeals affirmed the Commission’s decision, stating the following:

In this case, the commission determined that it did not have jurisdiction to review petitioner's discharge because she was not certified and, therefore, was not a teacher on continuing tenure as defined by the act at the time she was discharged or at the time she filed her petition with the commission. We agree.  Id. at 491 (emphasis added). 

Furthermore, in Cole v. Fennville Public Schools (10-39), the Commission, citing the Cantu decision, found that petitioner’s certification both at the time of discharge and at the time of the appeal is required to invoke the Commission’s jurisdiction.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 3.]  Since the petitioner in Cole was not certified at the time of discharge and when she filed the claim of appeal, the Commission stated, “there are thus two independent reasons under MCL 38.72 why jurisdiction over appellant’s [petitioner’s] claim is lacking in this case.”  Id.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. pp. 3-4.] 

Pursuant to the above case law, Respondent asserts that the Commission lacks jurisdiction of the subject matter of the appeal because Petitioner’s teaching certificate expired on June 30, 2018, prior to filing her Claim of Appeal with the Commission.  Respondent further argues that she was not a teacher as defined in the Teachers’ Tenure Act at the time the appeal was filed, which results in Petitioner not possessing any tenure protections pursuant to the Teachers’ Tenure Act.  As such, Respondent argues that Petitioner’s Claim of Appeal must be dismissed pursuant to Mich Admin Code, R 38.155(1)(d) because the Commission lacks jurisdiction to hear Petitioner’s appeal.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 4.]  

Respondent further argues that Petitioner has failed to state a claim upon which relief can be granted by the Commission, pursuant to Mich Admin Code, R 38.155(1)(a).  Respondent argued that Petitioner’s teaching certificate expired on June 30, 2018, she does not hold a valid teaching certificate, and she is without the protection of the Teachers’ Tenure Act for relief.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. p. 4.]  Respondent cited Koppy v. Board of Education of the Plymouth-Canton Community Schools (13-49), which states the following:

We agree with the ALJ that appellant possessed tenure rights at the time of her discharge and when she filed her appeal, both of which were prior to her certificate suspension, and this Commission therefore has jurisdiction to entertain her appeal.  Cantu v Board of Education of the Grand Rapids Public Schools (87-27), aff’d 186 Mich App 488 (1990), lv den 437 Mich1006 (1991).  This Commission, however, cannot order a school district to reinstate an individual who does not hold a valid teaching certificate.  Upon the loss of her certificate, appellant was no longer a teacher as defined by the Tenure Act, MCL 38.71(4).  A school district cannot employ an individual to teach who does not hold a valid teaching certificate.  MCL 380.1231; MCL 380.1233; MCL 388.1763.

In Suhuba-Baruti v Baldwin Community Schools (90-17) (Decision and order, appellee’s motion for dismissal, April 13, 1992), this Commission considered the effect of the expiration of a teacher’s certificate during the pendency of the teacher’s appeal.  In that case, we held that the loss of certification precluded any award of reinstatement.  We further held that the only possible relief for a teacher who had lost his or her certification was an award of back pay for the period that ended when the certification expired.  The issue of back pay is not presented in this case because appellant makes no claim for an award of back pay.  Hence, there is no relief that this Commission can provide in this case.  Id. (emphasis added). 

Pursuant to above case law, Respondent argues that the expiration of Petitioner’s certificate precludes any award from the Commission of reinstatement.  As a result, Respondent argues that Petitioner has failed to establish a claim upon should the Commission can grant relief pursuant to the Teachers’ Tenure Act, and the appeal should be dismissed.  [Br. in Supp. of Resp’s Second Mot. for Summ. Disp. pp. 4-5.]  

In response, Petitioner does not dispute that she is not certified as of June 30, 2018.  [Tr. Vol. I, pp. 29-30.]  Petitioner also does not dispute that she received written notice dated December 7, 2017, from Superintendent Van Valkenburg, informing her that her teaching certificate would expire on June 30, 2018.  [Tr. Vol. I, p. 32.]  Of note, this letter provided Petitioner a six-month warning that she should renew her teaching certificate, but she failed to do so.  Petitioner provided additional arguments in response to Respondent’s motions, but ultimately, the undersigned ALJ did not find her arguments relevant nor persuasive.  In the end, it is Petitioner’s responsibility to renew her teaching certificate, and she failed to do so by the time of her Claim of Appeal, even with advanced notice by the District. 

Therefore, the undersigned agrees with Respondent’s argument that pursuant to the above case law, including the Commission’s case precedent, that it lacks jurisdiction of the subject matter and Petitioner has failed to state a claim upon which relief can be granted.  First, at the time Petitioner filed her Claim of Appeal on August 2, 2018, she was no longer certificated as defined by the Teachers’ Tenure Act, MCL 38.72; and she was no longer a teacher as defined by the Teachers’ Tenure Act, MCL 38.71.  As such, the Commission lacks the subject matter jurisdiction of the Claim of Appeal pursuant to Mich Admin Code, R 38.155(1)(d); Cantu, 186 Mich App at 491; and Cole v. Fennville Public Schools (10-39).  Second, because Petitioner does not hold a valid teaching certification, she has no protections of the Teachers’ Tenure Act for relief.  As such, Petitioner has failed to state a claim upon which relief can be granted by the Commission pursuant to Mich Admin Code, R 38.155(1)(a); Koppy v. Board of Education of the Plymouth-Canton Community Schools (13-49).   

Accordingly, Respondent’s Second Motion for Summary Disposition is GRANTED, pursuant to Tenure Commission Rule 25(1)(a) and (d), Mich Admin Code, R 38.155(1)(a) and (d).

ORDER

IT IS HEREBY ORDERED that:

1. Respondent's Second Motion for Summary Disposition is GRANTED.

2. Petitioner’s/Appellant’s Claim of Appeal is DISMISSED. 

3. The final prehearing conference scheduled for October 8, 2018, is CANCELLED.

4. The hearing scheduled for October 15, 16, 17, 18, and 19, 2018, is CANCELLED. 

5. Respondent’s original Motion for Summary Disposition is MOOT. 

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 Commission Rules.  The brief and statement of exceptions must be served upon each of the parties within the time limit for filing exceptions and brief. 

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. Commission Rules require that arguments in exceptions/cross-exceptions briefs must correspond to the order of exceptions/cross-exceptions and that the argument must be prefaced by the exception/cross-exception which it addresses. Commission Rule 46; 1998-2000 AC, R 38.176.

The deadline for filing exceptions and brief is October 17, 2018. Exceptions must be received by the Commission before the close of business on the last day of this time limit.  Exceptions can be electronically filed with the Commission at MDE-AdminLaw@michigan.gov.  Exceptions can also be sent to the following address:

Office of Administrative Law

608 West Allegan Street

P.O. Box 30008

Lansing, Michigan 48909.

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.

/S/

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.