Meyer v. Oakland Cmty. Coll. Bd. of Trs., No. 350234

• Decision Date: 22 October 2020
• Docket Number: No. 350234
• Parties: DR. TIMOTHY MEYER, Plaintiff-Appellant, v. OAKLAND COMMUNITY COLLEGE BOARD OF TRUSTEES, JOHN MCCULLOCH, SUSAN ANDERSON, SHIRLEY BRYANT, PAMELA DAVIS, and PANELA JACKSON, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

DR. TIMOTHY MEYER, Plaintiff-Appellant, v. OAKLAND COMMUNITY COLLEGE BOARD OF TRUSTEES,JOHN MCCULLOCH, SUSAN ANDERSON,SHIRLEY BRYANT, PAMELA DAVIS, and PANELA JACKSON, Defendants-Appellees.

No. 350234

STATE OF MICHIGAN COURT OF APPEALS

October 22, 2020

If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports.

UNPUBLISHED

Oakland Circuit Court

LC No. 2019-172649-CZ

Before: GADOLA, P.J., and RONAYNE KRAUSE and O'BRIEN, JJ.

PER CURIAM.

Plaintiff, Dr. Timothy Meyer, appeals by right the trial court's order granting summary disposition, pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(10), in favor of defendants the Oakland Community College Board of Trustees (the Board) and the individual members of the Board. This matter arises out of the Board's termination of Dr. Meyer's position as chancellor of Oakland Community College (OCC). This is the second lawsuit Dr. Meyer has filed against defendants arising out of the same termination. Meyer v Oakland Comm Col Bd of Trustees ["Meyer I"], unpublished per curiam opinion of the Court of Appeals, issued January 7, 2020 (Docket No. 345738).¹ The trial court concluded that plaintiff's instant breach of contract claim (1) was barred by res judicata based on the resolution of the Meyer I action at the circuit court level, and (2) was independently barred by plaintiff's own conduct that constituted a waiver of the benefits he seeks. We agree with both conclusions, and we therefore affirm.

I. BACKGROUND

This Court previously set forth a concise summary of the background to this matter, which is consistent with both parties' recitation of the facts:

Defendants are comprised of the Oakland Community College Board of Trustees (the Board), and the specifically named board members acting in their official capacities as board members. Plaintiff is the former chancellor of Oakland Community College (OCC). He was hired as the chancellor pursuant to a January 1, 2012 contract which provided that it was effective for an initial three-year period, then automatically renewed unless terminated or converted to a fixed three-year term on or after January 1, 2017. The contract also contained specific provisions regarding requirements to terminate plaintiff.

On May 16, 2017, the Board met held a meeting. After an open session, the Board adjourned into a closed session. When it returned to open session, the Board approved "the plan" presented in the closed session. After the session ended, plaintiff was verbally informed that his contract was being terminated by the Board. He thereafter received a letter informing him that he was being placed on paid administrative leave pending further notification of the Board. Plaintiff was sent a letter on May 22, 2017, indicating that his termination would be effective as of July 6, 2017. [Meyer I, unpub op at pp 1-2 (footnote omitted).]

The May 22, 2017, letter included the following paragraph:

Provided termination of the Contract remains without just cause, and as a pre-condition for receipt of severance, you and the Board shall execute (and you shall not revoke) a mutual release of claims which can be waived by law. This release is required pursuant to paragraph 8.D. of the Contract.[²] We will be preparing and sending you a copy of such a release shortly.

On June 28, 2017, counsel for defendants emailed a proposed mutual release to counsel for plaintiff.

Instead of signing the release, plaintiff's counsel sent defendants' counsel a counter-proposal for a mutual release that eliminated "a good bit of surplusage" and had been trimmed down to "only the release and a few boiler plate provisions that we are comfortable with." Defendants' counsel responded that the proposal would be reviewed, but pointed out that plaintiffhad removed matters that are required by law, rendering the release ineffective. Defendants' counsel opined that it was "concerning" that plaintiff "would risk and now delay the consideration at stake by referring to language required by law as 'surplusage.' " The parties' emails suggest that they were also discussing or negotiating other matters at the time.

On July 5, 2017, defendants' counsel sent plaintiff's counsel the following email:

Your client's employment as Chancellor ends effective tomorrow and severance is conditioned upon a release. What you took out of the release we tendered rendered it ineffective as a release of an older worker's claim (both the legally required reference to the relevant statute and the consideration and revocation periods were removed and there would have been ample time for their effectuation before the 6^th had they been left in based upon the date of our tender of the proper release to you). There is still time for your client to execute the release we tendered. These facts will be front and center should you follow through with your threat of litigation.

Plaintiff's counsel responded,

The older workers claim language was deleted by mistake. We are willing to put it back in. But, as already stated we will not agree to language that was in your draft and went far beyond what was agreed upon by the parties in the employment agreement.

In addition, we are aware of what we consider to be serious mis behavior connected to the effort to terminate our client's employment agreement. Therefore, we intend to challenge the legality of that action and associated wrong doing.

As always, our preference is to resolve differences informally, if possible.

To which defendants' counsel responded,

Your refusal to sign a release in order to preserve the right to litigate a claim that would otherwise be released by it is your or your client's decision but severance is conditioned upon a mutual release. You can't have it both ways.

We have found nothing in the record or the briefs explaining what, exactly, plaintiff found objectionable about defendants' proposed release.

On July 7, 2017, defendants tendered to plaintiff a first payment of severance, and in a letter explained that it was doing so "without waiver of the release precondition and solely in mitigation of" any possible exposure to liability. The letter further stated that any further payments would also be "in accordance with the need to mitigate or the terms of the Employment Contract, none of which are hereby waived." The letter indicated that plaintiff had not complied with other terms in the employment contract pertaining to employment opportunities. The letter indicated that

In addition, this severance is being tendered in accordance with at least the release Dr. Meyer agreed he would sign as indicated in your email to me on Friday, June30, 2017, without waiver of the College's right to a full release, and in full reliance on your representation that the removal of the mandatory language necessary for a release of a [sic] older worker's claim was a "mistake".

Finally, the letter reiterated that defendants were not waiving the terms of the employment contract. Defendants' counsel also sent plaintiff's counsel an email alerting counsel to the payment and letter.

On July 19, 2017, OCC made a second severance payment to plaintiff, and defendants' counsel contemporaneously sent plaintiff's counsel the following email:

This is to advise you that my client has mailed a second severance payment to your client subject to the same terms and conditions accompanying the first payment and which were communicated to you by me. Copies of each of those payments are attached hereto. In addition and unless a release is executed as per the terms of the contract, my client may decide to withhold future payment of the portions of its severance payment obligations that are payable to your client. I am happy to discuss any draft release you tender in response to the one we tendered to you weeks ago once it includes the language you claim was removed by mistake that is legally necessary to release an older worker claim. In addition, I am also happy to discuss alternatives to my client's severance and other obligations pursuant to the contract should that be of interest to your client.

Attached to the email were what appears to be two checks, in the amount of $5,801.36 and $5,948.52.

On August 2, 2017, defendants' counsel sent another email to plaintiff's counsel:

As per our numerous, previous warnings and notices, please be advised that the College will be withholding the net portion of severance payments which would otherwise have been payable and sent to your client had the contractual contingencies for same been fulfilled. Given your client's apparent refusal to execute a release compliant with the referenced contract and despite tender of same by the College to you, your client is not entitled to the severance provided in the referenced contract and my client is under no obligation to mitigate the consequences of your client's choice.

Please also be reminded that we still have not received an official transcript from you for your client. On our last call, you agreed that an official transcript is a necessary document to assess your client's eligibility for a faculty position should he decide to avail himself of that opportunity in accordance with the contract. You have been repeatedly notified that the College does not have an official transcript for your client. The College can only assume that your client's failure to proceed in this regard and in accordance with the contract means that he has no interest in being considered.

No direct response to the above email appears to be included in the record. Defendants apparently made a conclusive determination on August 10, 2017, that plaintiff had waived his faculty appointment option.

On August 22, 2017, defendants' counsel sent plaintiff's counsel an emailed "reminder" that plaintiff's sons were ineligible for a tuition waiver until the release was signed and that they would be deregistered on August 29 unless tuition was paid. It is not clear if plaintiff responded to that...