SCHWARZ SARA ANN v FOREST AREA COMMUNITY SCHOOLS 18-12  01/04/19

STATE OF MICHIGAN

MICHIGAN ADMINISTRATIVE HEARING SYSTEM

___________________________________/

Issued and entered

 this 4^th day of January 2019

by: Eric J. Feldman

Administrative Law Judge

PRELIMINARY DECISION AND ORDER

GRANTING RESPONDENT’S MOTION FOR SUMMARY DISPOSITION

PROCEDURAL HISTORY

On November 8, 2018, Attorney Katherine Wolf Broaddus, on behalf of Forest Area Community Schools, (District/Respondent/Appellee), filed an Appearance, Respondent Forest Area Community Schools’ Answer to Petitioner’s Claim of Appeal (Respondent’s Answer), Respondent’s Motion for Summary Disposition (Respondent’s Motion to Dismiss), and Respondent’s Brief in Support of Motion for Summary Disposition (Respondent’s Brief in Support), which included Exhibits A through H. 

On November 9, 2018, the undersigned Administrative Law Judge (ALJ), Eric J. Feldman, issued a Notice of Prehearing Conference by Telephone, which scheduled a prehearing conference for November 15, 2018.

On November 15, 2018, a prehearing conference was convened by the undersigned via teleconference.  Attorney William S. Gregory appeared on behalf of Sara Ann Schwartz (Petitioner/Appellant).  Petitioner and her spouse, Charles William Schwartz, were also present for the prehearing conference.  Ms. Broaddus appeared on behalf of Respondent.  During the prehearing conference, the undersigned discovered that Petitioner would also be filing a motion for summary disposition.  As a result, the undersigned determined that an oral argument would be held to address both motions on December 12, 2018.  On November 19, 2018, the undersigned issued an Order Following Prehearing Conference, Scheduling Oral Argument on Motion, and Notice of Hearing.  The Order informed both parties that the oral argument was scheduled for December 12, 2018, and the tenure hearing was scheduled for January 16, 17, and 18, 2019. 

On November 21, 2018, Mr. Gregory, on behalf of Petitioner, filed Petitioner’s Response to Respondent’s Motion for Summary Disposition (Petitioner’s Response to Motion to Dismiss), which included Exhibits 1 through 6, Petitioner’s Sara Ann Schwartz’s Response to Respondent’s Answer to Petitioner’s Claim of Appeal (Petitioner’s Answer), and Petitioner’s Motion for Summary Judgement (Petitioner’s Motion to Dismiss), which included Exhibits 1 through 3.

On November 30, 2018, Ms. Broaddus, on behalf of Respondent, filed Respondent’s Response to Petitioner’s Motion for Summary Disposition (Respondent’s Response to Motion to Dismiss), and Respondent’s Brief in Response to Petitioner’s Motion for Summary Disposition (Respondent’s Brief in Support in Response to Petitioner), which included Exhibit A. 

On December 7, 2018, the undersigned issued an Order of Adjournment concerning the oral argument scheduled for December 12, 2018.  Due to a scheduling conflict, the oral argument was rescheduled for December 18, 2018. 

On December 12, 2018, Mr. Gregory, on behalf of Petitioner, sent the Michigan Administrative Hearing System (MAHS) a Motion/Order of Nolle Prosequi, dated December 11, 2018.[1] 

On December 13, 2018, Ms. Broaddus, on behalf of Respondent, filed an Objection to Petitioner’s Submission of Motion/Order of Nolle Prosequi (Respondent’s Objection). 

On December 17, 2018, the Commission sent Ms. Broaddus a letter addressing Respondent’s Objection. 

On December 18, 2018, oral argument was held.  Mr. Gregory appeared on behalf of Petitioner.  Petitioner and her spouse, Mr. Schwartz, were also present.  Ms. Broaddus appeared on behalf of Respondent.

DISCUSSION

In this case, both Petitioner and Respondent filed motions to dismiss, including responses to each other’s motions. 

Respondent’s Motion to Dismiss moves for summary disposition in accordance with Teacher Tenure Rule 25, Mich Admin Code, R. 38.155(1)(d), (e), and (f), because the Commission lacks jurisdiction, the claim of appeal is untimely, and fails to follow the form set forth in the Teacher Tenure Rules.  [Respt’s Mot. to Dismiss p. 1.] 

Petitioner’s Motion to Dismiss moves for summary disposition in accordance with Teacher Tenure Rule 25, Mich Admin Code, R. 38.155(1)(d), (e), and (f), because the Commission lacks jurisdiction, because the Board of Education of Forest Area Community Schools (Board) failed to follow the requirements of MCL 38.104(1) of the Teachers’ Tenure Act (Act).  [Pet’s Mot. to Dismiss pp. 1 and 4.]  In the alternative, Petitioner requests that this Tribunal rule that Petitioner’s claim of appeal was filed in a timely manner.  [Pet’s Mot. to Dismiss p. 4.]   

Teacher Tenure Rule 25, Mich Admin Code, R 38.155, states in pertinent part:

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:

*    *    *

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

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

(f)    The claim of appeal is barred because of some other disability of the appellant or other disposition of the claim.

(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 both motions, Respondent’s motion is hereby GRANTED, and Petitioner’s motion is DISMISSED.  The undersigned addresses Respondent’s Motion to Dismiss below

The Commission lacks jurisdiction of the subject matter and the claim of appeal is barred because it is untimely.

On September 27, 2018, Joshua Rothwell, Superintendent of the District, sent Petitioner a letter informing her of the charges being filed against her.  [Pet’s Resp. Mot. to Dismiss p. 1, Exh. 1.]  The letter indicated that it was sent “via regular and certified mail” and “return receipt requested.”  [Pet’s Resp. Mot. to Dismiss p. 1, Exh. 1.] 

On October 8, 2018, the Board voted to proceed upon tenure charges seeking Petitioner’s discharge for multiple counts of misconduct.  [Br. in Supp. of Respt’s Mot. to Dismiss p. 1, Exhibits A and G.]

On October 10, 2018, the Superintendent mailed Petitioner notice of the Board’s action to terminate Petitioner’s employment, which included a copy of the Act and notice of Petitioner’s rights under the Act.  [Br. in Supp. of Respt’s Mot. to Dismiss p. 1, Exhibits A and G.]  The letter indicated that it was sent via “overnight mail” and “return receipt requested.”  [Br. in Supp. of Respt’s Mot. to Dismiss, Exh. G.]    

On October 11, 2018, Respondent claims that Petitioner received the Board’s letter dated October 10, 2018 concerning the tenure charges, the Board’s resolution to proceed upon the tenure charges, and her rights under the Act.  [Br. in Supp. of Respt’s Mot. to Dismiss p. 1, Exhibits A and E.]

On October 31, 2018, Petitioner filed her claim of appeal with the Commission.  [Respt’s Resp. to Pet’s Mot. to Dismiss p. 2.]  Respondent argues that it had not received Petitioner’s claim of appeal by October 31, 2018.  [Br. in Supp. of Respt’s Mot. to Dismiss p. 5.]

On November 1, 2018, because Respondent had not received Petitioner’s claim of appeal within the 20-day timeline, the Superintendent notified Petitioner that her employment was terminated.  [Br. in Supp. of Respt’s Mot. to Dismiss p. 1, Exh. F.]  The letter indicated it was sent “via US Mail, return receipt requested” and “via Electronic Mail.”  [Br. in Supp. of Respt’s Mot. to Dismiss, Exh. F.]    

On November 1, 2018, Respondent received Petitioner’s claim of appeal, which it argues was 21-days after Petitioner received notification of the Board’s action and her tenure rights, via hand delivery to the Superintendent’s assistant.  [Respt’s Mot. to Dismiss p. 2, Exhibits B and C.]

The Act, specifically, MCL 38.104(1), states the following:

      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.  [Emphasis added.] 

Additionally, the Commission has addressed the appeal limitation period.  See Almon v Detroit Board of Education (97-33); Rogers v Board of Education of Fenton Area Public Schools (87-2); and Mullin v Crestwood School District (84-5). 

In Jones-Salaam v Baldwin Community Schools (14-54), the Commission stated the following:

The legislature clearly stated that a teacher may contest a discharge or demotion decision of a controlling board by filling a claim of appeal with this Commission and serving a copy of the claim of appeal on the controlling board not later than 20 days after receipt of the decision.  MCL 38.104(1).  The statute thus plainly identifies two steps that a teacher must take within the 20-day period in order to contest a controlling board’s decision to proceed on charges: 1) filing a claim of appeal with this Commission and 2) serving the controlling board with a copy of the claim of appeal.  The legislature further provided that, if a teacher does not contest a decision in the time and manner required by MCL 38.104(1), the discharge or demotion takes effect and the teacher shall be considered to have waived any right to contest the discharge or demotion under the Teachers’ Tenure Act.  Thus, the legislature defined the appeal of a controlling board’s discharge or demotion action as requiring both the timely filing and the timely service of a claim of appeal.  Absent those two actions, a teacher waives the right to contest a discharge or demotion.  The legislature could have easily limited the waiver consequence to instances when a teacher failed to file the claim of appeal in the time and manner specified.  It did not do so and it is not within the province of this Commission to ignore the plain statutory language to limit the waiver penalty in that fashion. 

The current version of MCL 38.104(1) was enacted in 1993, when the legislature made substantial changes to the Teachers’ Tenure Act in response to concerns about delays in the processing of tenure cases.  The overhaul of the tenure appeal process at that time included setting forth several time lines in addition to the one at issue in this case.  See MCL 38.104(1) (filing of answer), MCL 38.104(2) (hearing date), MCL 38.104(5)(g)-(k) and (m) (conclusion of hearing, submission of case for decision, service of PDO, filing of exceptions and cross-exceptions or statement in support of the PDO, issuance of final decision and order), and MCL 38.104(7) (appeal to the Court of Appeals).  The 20-day time line in MCL 38.104(1), as it relates to both the filing and the service of the claim of appeal, is thus part of a clearly expressed legislative scheme that ensures that tenure appeals are processed within a reasonable time frame.  [Emphasis added.]

Recent Tenure Commission decisions have continued to require filing an answer on the controlling board under the 2011 amendments to the Teacher Tenure Act.  In Haynes v Detroit Public Schools Community District (17-21), the Commission stated the following:

Thus, a tenured teacher may contest the decision of a controlling board to proceed on charges against the teacher only by doing both of the following not later than 20 days after receiving the board’s decision: 1) filing a claim of appeal with this Commission and 2) serving a copy of the claim of appeal on the board.  Absent compliance with both of these requirements, “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.”  MCL 38.104(1).

Pursuant to the above Act and the Commission’s case precedent, Respondent states a teacher may contest the controlling board’s decision by filing a claim of appeal with the 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.  [Respt’s Mot. to Dismiss p. 2; See MCL 38.104(1).]  Because Petitioner received the Board’s decision on October 11, 2018, Respondent argues she had to file her claim of appeal with the Commission and serve her claim of appeal on the Board by October 31, 2018 (20-days after receiving the Board’s decision).  [Br. in Supp. of Respt’s Mot. to Dismiss pp. 1-2.]  It was not disputed that Petitioner filed her claim of appeal with the Commission by the 20-day timeline, which was on October 31, 2018.  However, Respondent argues that Petitioner failed to serve her claim of appeal on the Board by the October 31, 2018 deadline, resulting in an untimely filing. 

Petitioner argues there was no proof showing that the Board’s letter dated October 10, 2018, was received by Petitioner on October 11, 2018.  Petitioner indicated that the October 10, 2018, letter indicated it was sent via “overnight mail” and “return receipt requested.”  [Pet’s Resp. Mot. to Dismiss p. 2.]  However, Petitioner argued that there was no document included that would have allowed Petitioner to comply with the “return receipt requested.”  [Pet’s Resp. Mot. to Dismiss p. 2.]  Petitioner argued there was nothing for Petitioner to sign that would have indicated when the letter was received.  [Pet’s Resp. Mot. to Dismiss p. 2.]  Petitioner appears to argue that the Act requires the Board to provide a teacher with a document to sign indicating the teacher was in “receipt” of the approved tenure charges.  [Pet’s Resp. Mot. to Dismiss pp. 1-3; See Respt’s Br. in Resp. to Pet’s Mot. to Dismiss p. 1.]  And because Respondent did not provide proof that Petitioner received notice as required by the Act, Petitioner is not bound by the time limits for filing a claim of appeal.  [Pet’s Mot. to Dismiss p. 4.]   

The statutory timelines for filing an appeal are jurisdictional; when the timelines are not met, they operate to deprive the Commission of jurisdiction over an untimely claim of appeal.  Curry v Huron Valley School District (73-59) and Halliburton v City of Detroit (79-1).  When a claim of appeal is found to be filed untimely, the Commission lacks jurisdiction over the claim of appeal and summary disposition is appropriate.

Here Respondent has established, and Petitioner has failed to rebut, that Petitioner failed to serve her claim of appeal with the Board within the 20-day limitation period.  Respondent presented an affidavit from the Superintendent and a United States Postal Service (USPS) Tracking document, which showed that Petitioner received the Board’s letter concerning her tenure charges on October 11, 2018.  [Br. in Supp. of Respt’s Mot. to Dismiss p. 1, Exhibits A and E.]  This meant Petitioner had until October 31, 2018, to file her claim of appeal with the commission and serve her claim of appeal to the Board.  It was not disputed that Petitioner filed her claim of appeal with the Commission by the 20-day timeline.  However, the Commission has ruled that a teacher must take two steps within the 20-day period in order to contest a controlling board’s decision to proceed on charges.  See Salaam v Baldwin Community Schools (14-54) (emphasis added).  Petitioner failed to complete the second step, which was to serve the controlling board with a copy of the claim of appeal by the 20-day period, which was by October 31, 2018.  Petitioner’s spouse did serve a copy of the claim of appeal on the Board in-person on November 1, 2018, but unfortunately, this was one-day too late.  There is no good cause exception in case law or the Act that allows the undersigned to grant a teacher an exception for filing a claim of appeal late, even if it is only one-day.    

Petitioner argued that there was no document included that would have allowed Petitioner to comply with the “return receipt requested” from the October 10, 2018 letter by the Board.  [Pet’s Resp. Mot. to Dismiss p. 2.]  In fact, Petitioner cited other documentation as an example for the correct procedure for acquiring proof of receipt.  [Pet’s Resp. Mot. to Dismiss p. 2, Exh. 6.]  However, the undersigned does not find this argument persuasive.  A review of the Act and Commission precedent finds no legal requirement that requires schools to include a document for a to-be-discharged teacher to sign indicating that they “received” notice of the controlling board’s action.  [Respt’s Br. in Supp. to Pet’s Mot. to Dismiss p. 3.]   

Moreover, Petitioner offered no credible evidence (i.e. an affidavit) that Petitioner did not receive notice of the Board’s action on October 11, 2018.  Respondent correctly cites that the Commission has recognized that a letter, when properly sent via US mail, is received unless the party can show it did not receive the letter (i.e., the mailbox rule).  See Keefer v Jackson County School District (66-6).  [Respt’s Br. in Supp. to Pet’s Mot. to Dismiss p. 4.]  The Commission has also applied the mailbox rule in similar cases.  In Jones v Detroit Public Schools (05-3), the Commission stated:

The ALJ's rationale and ruling conformed to the application of the mailbox rule and the ALJ clearly recognized that whether the presumption of receipt has been rebutted is a question of fact.  See Preliminary Decision and Order pp 4-6.  Clearly, if the presumption of receipt is not rebutted, then proper notice begins the running of the 20-day appeal period.  If the teacher then fails to file within the 20 days, the claim is waived.  MCL 38.104(1).  Laches, an equitable doctrine barring delayed litigation of a known claim, simply has no bearing where appellant missed the statutory deadline for presenting a claim.  [Emphasis added.] 

Respondent established that Petitioner received notice of the Board’s action on  October 11, 2018.  Petitioner failed to rebut the presumption of proper mailing.  Petitioner failed to offer any credible evidence showing that the Board’s action was not received by the Petitioner on October 11, 2018.  As such, the undersigned finds that Petitioner’s appeal to the Board was untimely and summary disposition is appropriately granted. 

Accordingly, Respondent’s Motion for Summary Disposition is granted pursuant to Tenure Commission Rule 25(1)(d) and (e), Mich Admin Code, R 38.155(1)(d) and (e).  The remainder of the Respondent’s argument is moot and therefore not addressed.

Because the Commission lacks jurisdiction to hear this matter, the Petitioner’s Motion is similarly moot and not addressed.

ORDER

IT IS HEREBY ORDERED that:

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

2. Petitioner’s Motion for Summary Judgement is DISMISSED. 

3. Petitioner’s Claim of Appeal is DISMISSED.

4. The hearing scheduled for January 16, 17, and 18, 2019, is CANCELLED.  

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 January 25, 2019.  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.

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 January, 2019.

[1] This documentation appeared not to be filed properly with the State Tenure Commission (Commission), pursuant to Teacher Tenure General Rule 15, Mich Admin Code, R 38.145.