Perron v. Board of Educ. of Royal Oak School Dist.

• Decision Date: 20 February 1987
• Docket Number: Docket No. 85859
• Citation: 155 Mich.App. 759,400 N.W.2d 709
• Parties: , 37 Ed. Law Rep. 697 Margaret A. PERRON, Petitioner-Appellee, v. BOARD OF EDUCATION OF ROYAL OAK SCHOOL DISTRICT, Respondent-Appellant, and State Tenure Commission, Respondent.
• Court: Court of Appeal of Michigan — District of US

Page 709

400 N.W.2d 709

155 Mich.App. 759, 37 Ed. Law Rep. 697

Margaret A. PERRON, Petitioner-Appellee, v. BOARD OF EDUCATION OF ROYAL OAK SCHOOL DISTRICT, Respondent-Appellant and State Tenure Commission, Respondent.

Docket No. 85859.

Court of Appeals of Michigan.

Submitted July 8, 1986.

Decided Nov. 3, 1986.

Released for Publication Feb. 20, 1987.

Levin, Levin, Garvett & Dill by Harvey I. Wax and Glen M. Bis, Southfield, for petitioner-appellee.

Thrun, Maatsch & Nordberg, P.C. by Philip J. Goodman, Farmington Hills, for respondent-appellant.

Before CYNAR, P.J., and T.M. BURNS and KOBZA, ^* JJ.

PER CURIAM.

The Board of Education of the Royal Oak School District (hereafter respondent) appeals from an order of the circuit court which reversed the State Tenure Commission's affirmance of the respondent's discharge of Margaret Perron (hereafter petitioner).

Respondent claims that the trial court erred (1) because the court was without power to reverse the State Tenure Commission's determination that petitioner could properly be discharged while on a leave of absence, (2) because the court made findings of fact independent of the State Tenure Commission, and (3) because the State Tenure Commission's decision was authorized by law, and supported by competent, material and substantial evidence on the whole record. ¹ We are not persuaded by respondent's claims of error and we affirm.

I

The record shows that petitioner had taught twelve years prior to the 1978-1979 school year, the year the district brought charges that petitioner was unfit to teach.

At the conclusion of the previous, 1977-1978, school year, petitioner's principal met with petitioner to discuss her performance for that year. On August 31, 1978, at the commencement of the new school year, her principal prepared a document listing five job targets, areas of petitioner's performance in which she needed improvement based on the principal's perception during observation of petitioner the previous school year. These areas were (1) classroom atmosphere and control, (2) varied instructional techniques, (3) reading instruction, (4) mathematics instruction, and (5) social studies and science instruction. The targets were discussed thoroughly, and petitioner was informed by a memorandum that she would be evaluated on December 1, February 1, and April 15 of the 1978-1979 school year to determine her progress with regard to the targets. By memorandum placed in petitioner's personnel file the same date, the principal stated, "it is my expectation that you will be able to meet the agreed-upon targets and that you and your students will have a successful year."

Petitioner's principal and the principal of a third school, Mr. Wiggins, observed petitioner's classroom during November of 1978. Both found problem areas to be classroom atmosphere and control, and lack of efficient instructional techniques. Petitioner's principal concluded that petitioner had improved by January of 1979 only in the area of social studies and science instruction. Otherwise, there was little or no improvement in the other target areas.

In the fall of 1978, petitioner's performance was reviewed by the Teacher Fitness Advisory Committee, a creature of the teachers' association and school district's collective bargaining agreement, composed of representatives of both the association and the district, which gives advice as to teacher performance problems, particularly in the area of health concerns. During her presentation to the committee, petitioner maintained that her teaching difficulties were due to stress. The committee recommended that petitioner take health leave and obtain physical and psychiatric examinations. Petitioner eventually accepted the recommendation and requested leave, which was granted as of January 29, 1979.

On April 9, 1979, petitioner's principal filed tenure charges against petitioner and sought her discharge. Respondent found reasonable and just cause for discharge ² and dismissed petitioner.

Petitioner appealed to the State Tenure Commission. Initially, petitioner filed a motion for summary judgment alleging that respondent's grant of petitioner's request for leave of absence estopped the district from filing teacher tenure charges against petitioner. An evidentiary hearing was ordered limited to the issue of whether the granting of petitioner's leave of absence estopped the respondent from discharging petitioner.

Following the hearing, the commission determined that the district had never held out that the leave of absence was disciplinary or was granted in lieu of filing teacher tenure charges against petitioner. Rather, the commission found that any detrimental reliance by petitioner was founded only in the statements of union representatives who advised petitioner to take the leave of absence based upon their subjective belief that her failure to do so would result in the filing of teacher tenure charges. Accordingly, her motion for summary judgment was denied.

Pursuant to M.C.L. Sec. 600.631; M.S.A. Sec. 27A.631 petitioner appealed that ruling to the Oakland Circuit Court, which affirmed, relying on the same testimony relied upon by the commission. Upon remand, testimony was taken on the issue of whether there was just and reasonable cause for petitioner's discharge. By a four to one vote, the Commission affirmed petitioner's discharge.

The State Tenure Commission majority was troubled by petitioner's claim that she was not afforded enough time to improve her performance since she was effectively given only until January 29, 1979, to improve her performance, as opposed to the entire school year as held out in the "job targets" document. However, the commission ultimately concluded:

"The timing of the leave of absence and the bringing of charges is troubling in this case. While the leave was granted at appellant's request, we believe that in future instances the ambiguity created by such a sequence of events should be avoided. Nevertheless, we must agree with appellee that its actions comported with the minimum requirements of the Tenure Act and that, therefore, the district cannot be held responsible for the resulting reduction in the improvement time set out in the 'job targets'. In addition, we note that the job targets were not the first attempt to improve appellant's performance. The process had begun nearly two years prior to the creation of the job targets. For these reasons, we must conclude that appellant was afforded adequate time to improve."

The lone dissenter opined:

"The 'job targets' established by appellant's building principal set out the time period in which appellant was to achieve the needed improvements. The third and final evaluation of appellant's performance was to occur in April of 1979.... This evaluation was never undertaken, however, because appellant began her leave of absence on January 29, 1979. My colleagues dispose of the difficulty posed by the intervention of the leave by relying on the notion that appellee's actions did not contravene the express provisions of the Act. This finding cannot end the inquiry, however. While appellee may have complied with the letter of the law, its actions cannot be said to have left the Act's spirit untrammeled. Thus, the relevant question is: Was appellee's course of conduct toward appellant just or reasonable in light of all the surrounding circumstances? Based on my review of the record, I find that the answer to this question must be 'No'.

"First appellee's agents initially represented to appellant that she would have until April to improve her performance ... When appellant 'requested' the leave in January, she was implicitly complying with the Teacher's Fitness Advisory Committee's and the district's wishes. Clearly, if appellee had not wanted appellant to take the leave, it would not have been granted. Appellee was, therefore, an active participant in the events which removed any possibility that appellant would be allowed all the improvement time specified in the 'job targets' during the 1978-79 school year.

* * *

* * *

"While on leave, appellant was expected to, and did, seek a solution to the psychological problems which she felt were impairing her performance. Appellee did not permit her to complete this second means of remediation either before discharge proceedings were commenced. In view of the fact that appellant had nine years of successful teaching prior to the instant difficulties, at least one of these means of improvement should have been pursued to completion. Thus, I find that, at a minimum, appellee's conduct obliged it to allow appellant to return following the leave so that the success of the treatment could be evaluated in the classroom setting. I conclude that appellee failed to fulfill its obligation to afford appellant an adequate opportunity to improve her performance. Accordingly, I hold that appellee failed to establish just and reasonable cause for appellant's discharge."

Petitioner appealed to the Ingham Circuit Court. Over respondent's contentions that the court was precluded by the law of the case doctrine from deciding whether the district could have filed tenure charges against petitioner during her leave of absence, the trial court held that once the district held out that petitioner would have the entire year to improve, it could not deny petitioner that improvement by discharging her during a leave of absence granted by the respondent before the period had expired. The trial court stated: "Application of the 'law of the case' doctrine is not appropriate in this case since [Oakland Circuit Court] Judge Kuhn's order, issued as it was...