Birmingham School Dist. v. Buck

• Decision Date: 21 March 1994
• Docket Number: Docket No. 140397
• Citation: 204 Mich.App. 286,514 N.W.2d 528
• Parties: , 90 Ed. Law Rep. 416 BIRMINGHAM SCHOOL DISTRICT, Plaintiff-Appellant, v. Robert BUCK, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 528

514 N.W.2d 528

204 Mich.App. 286, 90 Ed. Law Rep. 416

BIRMINGHAM SCHOOL DISTRICT, Plaintiff-Appellant, v. Robert BUCK, Defendant-Appellee.

Docket No. 140397.

Court of Appeals of Michigan.

Submitted Nov. 2, 1993, at Detroit.

Decided March 21, 1994, at 10:10 a.m.

Released for Publication April 27, 1994.

Hardy, Lewis, Pollard & Page, P.C. by William G. Albertson, Birmingham, for petitioner.

Jan C. Leventer, Detroit, for respondent.

Before CAVANAGH, P.J., and MARILYN J. KELLY and SCHWARTZ, ^* JJ.

MARILYN J. KELLY, Judge.

The Birmingham School District appeals as of right from an order of the Oakland County Circuit Court affirming a decision of the State Tenure Commission. The Commission reinstated Robert Buck, a tenured teacher at Groves High School whose employment the Birmingham School Board had terminated because of his sexual harassment of another teacher. We reverse and reinstate the decision of the Board.

FACTUAL BACKGROUND

The events which prompted Buck's dismissal are as follows:

In 1987, after the school year began, Leslie Thirjung, a teacher at Groves, began to find letters and gifts from Robert Buck in her school mailbox. Initially, she threw them away. Later, acting on the advice of coworkers, she saved them and over the next several months accumulated approximately sixty letters. Most were sexually explicit and of a highly personal nature. Buck continuously invited Thirjung to travel to New York City with him and to have an extramarital affair.

While Thirjung told her husband about the letters in late January, she did not promptly inform school administrators about them. She claimed to have been concerned about Buck's mental health, feeling she could handle the situation without help. Since she and Buck worked in the same building, she sought to maintain a cordial professional relationship. During the same period, Buck told people he was despondent and suicidal, made at least one suicide gesture and was under professional care for depression.

Between November, 1987 and May, 1988, while Buck waged his letter writing campaign, he and Thirjung also had a limited number of social contacts. They present wildly different versions of the contacts.

During a School Board hearing, Buck claimed that Thirjung kissed him in November at a faculty gathering. Thirjung denied it. Witnesses testified that Buck never approached or spoke to Thirjung at the gathering.

In January, 1988, at a social gathering, a group of teachers including Buck and Thirjung discussed traveling to New York together. Later, Buck claimed that at this event he and Thirjung discussed traveling together privately, prompting his letter inviting her to New York. Thirjung responded that they never had such a discussion. Witnesses testified that Buck and Thirjung never had a private conversation at the gathering.

Buck claimed they went out together on February 5, 1988. However, Thirjung testified that she met a woman friend for dinner that night. Her calendar contained a note of the meeting and her friend confirmed it.

On February 19, 1988, after finding a card in her mailbox, Thirjung interrupted Buck's class and asked him to her office. He claimed that she hugged him, thanked him for the gifts and they talked. According to Buck claimed that Thirjung invited him to meet after a school district-wide event. He claimed that they met and had a long personal conversation. According to Thirjung, while all school district faculty were invited to a restaurant following the event, only she and Buck attended from her school. She had a drink with him, discouraged his romantic overtures and listened to him talk about his marriage, his broken love affair and his depression. When they left, she gave him a friendly hug and told him she wanted a professional relationship.

Thirjung, she urged him to stop writing and giving her gifts.

Buck claimed that Thirjung invited him to have a drink after a staff meeting in March but then refused because of the lateness of the hour. According to Thirjung, Buck came to the restaurant uninvited and sat at the bar staring at her. Another faculty member, aware of the situation, walked Thirjung to her car to help her discourage additional overtures from Buck.

According to Thirjung, Buck's letters became more friendly and less romantic in March. Thirjung claimed that, to encourage this trend, she wrote a note of appreciation to him. In response, Buck's letters again became invitational and sexual. At about this time, Thirjung sought the advice of the athletic director on how to handle the situation, and claims to have attempted to follow his advice. The letters stopped fairly abruptly in April, 1988.

In May, 1988, another teacher told Thirjung that Buck was telling colleagues that Thirjung was pursuing him, forcing him continually to rebuff her. After learning of this, Thirjung finally reported Buck's conduct to the principal of Groves.

In June, 1988, Thirjung filed charges against Buck, alleging that he had sexually harassed her. Pursuant to the Teachers' Tenure Act, the School Board held a hearing regarding the charges and terminated Buck's employment. M.C.L. § 38.101 et seq.; M.S.A. § 15.2001 et seq.

At the School Board hearings, Thirjung claimed that she repeatedly and clearly discouraged Buck's attentions. She acknowledged that she wrote approximately five letters to him encouraging a friendly professional relationship. She did not keep copies of the letters. Buck retained the note sent in March, in which Thirjung stated that she was too busy to meet with him, but signed it "Love, Les."

Buck claimed that Thirjung never discouraged his advances. He claimed that she wrote at least fourteen or fifteen romantic notes to him, but that he threw all but the one away. Buck also admitted that he asked another teacher to falsely testify that he had read a romantic letter written by Thirjung. Buck abandoned the idea because the friend refused. Buck also admitted that, when he told another teacher Thirjung was pursuing him, he lied.

PROCEDURAL HISTORY

Based on the evidence, the Board discharged Buck, finding he had sexually harassed Thirjung by sending her over sixty letters seeking a sexual relationship, which she neither welcomed nor encouraged.

Buck appealed to the Tenure Commission. After a hearing, the Commission concluded that Buck was unaware that Thirjung did not want the attention and was not interested in pursuing an extramarital affair. The Commission wrote:

It is impossible to determine with certainty whether appellant's beliefs were based on Mrs. Thirjung's active encouragement or due to conflicting signals given by Mrs. Thirjung. This determination is not necessary to our findings, however, because we believe, under either circumstance, Mr. Buck's actions were not discouraged and his belief that they were welcome was reasonable under the circumstances.

We conclude that appellant's letter writing was not discouraged and his belief that it was encouraged was reasonable under the circumstances. Based on these findings, we cannot conclude that appellant's attention to Mrs. Thirjung was unwelcome.

The Commission concluded that the letters written by Buck substantiated his version of the events. It correlated the letters with Finally, the Commission concluded that Thirjung was not credible because 1) she claimed to have written three to five letters to respondent, yet did not save copies of the correspondence; 2) she waited three and a half months before going to the school administration; 3) although she maintained she wanted to protect Buck, she told other teachers and the head of the athletic department about the letters; and 4) the personal letters stopped around the time of the lost letter incident in April. Buck claimed that he received his first indication that Thirjung no longer wanted to receive his letters at that time.

                actual incidents and concluded that they were the best indicator of what occurred.   The Commission determined that Buck would not have pursued Thirjung if she had clearly rejected his solicitations.   It found that Thirjung had entrusted Buck with confidences and that he had done the same, reasoning that he would not have done so if he were continually rejected by Thirjung
                

The Commission found that Buck did not sexually harass Leslie Thirjung; he did not engage in unprofessional conduct by placing private letters in her mailbox proposing a sexual relationship where the letters were not unwelcome. It reinstated Buck.

The School Board appealed from the decision to the circuit court. The court denied the appeal. It found that Thirjung's admission that she attempted to maintain a platonic relationship with Buck, combined with her note to him, constituted competent, material and substantial evidence supporting the findings.

THE TENURE COMMISSION'S STANDARD OF REVIEW

On appeal to this Court, the School Board contests the standard of review used by the Tenure Commission. It asserts that the Legislature did not intend the Commission have de novo review of a local school board's decision to terminate a teacher under the Teachers' Tenure Act. M.C.L. § 38.71 et seq.; M.S.A. § 15.1971 et seq. We disagree.

M.C.L. § 38.139; M.S.A. § 15.2039 of the Teachers' Tenure Act provides that the Commission shall act as a board of review for all cases appealed from the decision of a controlling board. The Michigan Supreme Court and this Court have continuously held that appeal from a school board decision subjects all questions of fact and law to Commission review and determination de novo. Lakeshore Bd. of Ed. v. Grindstaff (After Second Rem.), 436 Mich. 339, 353-354, 461 N.W.2d 651 (1990); Long v. Royal Oak Twp. and Royal Oak Bd. of Ed., Dist. No. 1, Fractional, 350 Mich. 324, 326-327, 86 N.W.2d 275 (1957); Rehberg v. Melvindale Bd. of Ed., 345 Mich. 731, 737-739, 77 N.W.2d 131 (1956); Comstock Public Schools v. Wildfong, 92 Mich.App. 279, 284 N.W.2d 527 (1979). The...