Pounder v. Harper Woods Bd. of Ed.

• Decision Date: 09 December 1976
• Docket Number: Docket No. 26364
• Citation: 72 Mich.App. 717,250 N.W.2d 504
• Parties: Dorothy POUNDER, Plaintiff-Appellant, Cross-Appellee, v. HARPER WOODS BOARD OF EDUCATION, Defendant-Appellee, Cross-Appellant. 72 Mich.App. 717, 250 N.W.2d 504
• Court: Court of Appeal of Michigan — District of US

Page 504

250 N.W.2d 504

Dorothy POUNDER, Plaintiff-Appellant, Cross-Appellee, v. HARPER WOODS BOARD OF EDUCATION, Defendant-Appellee Cross-Appellant.

Docket No. 26364.

72 Mich.App. 717, 250 N.W.2d 504

Court of Appeals of Michigan.

Dec. 9, 1976.

Rehearing Denied Jan. 17, 1977.

Released for Publication Feb. 28, 1977.

[72 MICHAPP 718] Fieger, Golden & Cousens by Joseph A. Golden, Southfield, for appellant.

[72 MICHAPP 719] Lawrence P. Zatkoff, Roseville, for appellee.

Before MAHER, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

Plaintiff was suspended from her position as a physical education instructor in the employ of defendant board of education. After a hearing conducted by the defendant board of education, plaintiff was discharged. Plaintiff then appealed to the Michigan Teachers' Tenure Commission. On October 28, 1974, the commission reversed the school board and held that plaintiff was entitled to an award of all salary lost. The rationale for the commission's decision was that the board's refusal to honor plaintiff's request to subpoena a doctor, who at the request and direction of the defendant board had examined plaintiff, constituted a denial of due process and violation of M.C.L.A. § 38.104(g); M.S.A. § 15.2004(g). The commission's determination was appealed to the Wayne County Circuit Court. The court upheld the commission's decision that Mrs. Pounder had been denied due process. The court, however, remanded the case back to the controlling board to take testimony from the doctor. Mrs. Pounder was also denied reinstatement and back pay. From this decision, Mrs. Pounder appeals and the school board cross-appeals.

At the time of this controversy, plaintiff was a tenured teacher with over 20 years experience in the Harper Woods School District. Her primary position was as a secondary school girls' physical education instructor. No one seriously contended that plaintiff was not a qualified teacher and any question concerning her qualification is not before us. In 1973 she experienced some sort of an ongoing illness. She continued to teach but also sought [72 MICHAPP 720] medical treatment. She was unable to obtain any diagnosis for her illness. Plaintiff felt that her condition was deteriorating and she began to have difficulty with her employment. She requested a leave to obtain an elementary teaching certificate. Apparently she had no intention to acquire such a certificate, but because there was no sick leave provision in the collective bargaining agreement, she felt this was the only way to get time off without jeopardizing her employment. This leave was denied. Thereafter, plaintiff was absent from her job for 22 consecutive days during the fall of 1973.

Sometime during this period of absence, plaintiff was notified by the school superintendent either to report back to work or supply medical documentation to verify that she was unable to work. Because she failed to do either, she was suspended by the board for insubordination on November 26, 1973. Plaintiff contends she did not receive this letter and, furthermore, that she was in contact by phone every week with the school and had reported on her condition.

At the request of the school board, Mrs. Pounder then went into a hospital in December of 1973 and was examined by a board-appointed physician, Dr. Rival. The doctor submitted a written evaluation to the board on December 19, 1973. Mrs. Pounder saw the doctor on December 19th and was told she was suffering extreme anemia. The doctor prescribed medication and, according to Mrs. Pounder suggested she be hospitalized for tests. This information was not included in the letter submitted to the superintendent of schools.

On February 5, 1974, the board of education held a hearing to consider the charges against Mrs. Pounder. Prior to the hearing, Mrs. Pounder [72 MICHAPP 721] had requested that the school board subpoena her records and reports from the hospital. This request was honored by the board. However, the attending physician, Dr. Rival, did not appear at the hearing. At the hearing, the board admitted into evidence, over an objection, the letter report from Dr. Rival to the board. The board refused an oral request to subpoena the doctor which was made by plaintiff at that time. This hearing was concluded the following week. The school board then voted to discharge Mrs. Pounder and on February 14, 1974, issued its written decision.

The instant case has many of the attributes of most typical civil disputes between two parties, where neither party was completely at fault and neither party free of blame. It certainly appears that Mrs. Pounder had a genuine belief that she was quite ill and that something was seriously wrong with her. Nevertheless, she failed to fully cooperate with the school board's request to return to work or supply medical documentation of her illness. She failed to open a registered letter addressed to her from the board which contained this request. Fortunately, medical treatment from various sources has apparently improved her health.

The board, on the other hand, has a school system to run and is entrusted with supervising the education of hundreds of children. This is a tremendous responsibility. Plaintiff's failure to fully cooperate with the school board certainly caused difficulty in administering a physical education program in the school. Nevertheless, the board took an extremely strict approach to her problem. They did not allow sympathy or compassion to obscure their decision with regard to Mrs. Pounder. It appears that the board and the school administration could have been a little more sympathetic[72 MICHAPP 722] and could have given Mrs. Pounder more assistance. In spite of these factual issues, however, our decision will involve the resolution of legal issues. These factual problems remain to be resolved at a future hearing. The greatest problem facing us is the difficulty of determining the appropriate remedy herein.

Both the teachers tenure commission and the circuit court held that it was error for defendant board to refuse plaintiff's request to subpoena the physician selected by the board to examine Mrs. Pounder. This witness was a key witness in the instant case. Although the question involved was whether plaintiff committed acts of 'insubordination' the trial court accurately recognized that 'the critical issue and, indeed, the only issue in this case is: Was the appellee too ill to work?'. We also agree with the trial court that the record clearly indicates that the doctor's report was considered by the board in rendering their decision. ¹ We also agree that admission of this report, and denial of plaintiff's request to subpoena the doctor in order to cross-examine him as to the contents of the report was error. We do feel that the ultimate issue which should decide this case is the state of defendant's health. That question is not before us, however.

The provision of the Teachers Tenure Act which we are most concerned with is M.C.L.A. § 38.104(g); M.S.A. § 15.2004(g), which provides:

'The controlling board shall have the power to subpoena[72 MICHAPP 723] witnesses and documentary evidence, and shall do so on its own motion or at the request of the teacher against whom charges have been made. If any person shall refuse to appear and testify in answer to any subpoena issued by the controlling board, such controlling board may petition the circuit court of the county setting forth the facts which court shall thereupon issue its subpoena commanding such person to appear before the controlling board there to testify as to the matters being inquired into. Any failure to obey such order of the court may be punished by such court as contempt thereof.'

To properly consider this section, we must keep in mind the purpose of the Teachers Tenure Act. This Act was designed to eliminate capricious employment practices by school boards and to protect teachers from arbitrary and unreasonable dismissals. Wilson v. Flint Board of Education, 361 Mich. 691, 106 N.W.2d 136 (1960). See also Caddell v. Ecorse Board of Education, 17 Mich.App. 632, 170 N.W.2d 277 (1969), Freiberg v. Board of Education of Big Bay De Noc School Dist., 61 Mich.App. 404, 232 N.W.2d 718 (1975). The act does not provide for discovery and accordingly requests for subpoenas to enable a teacher to present his case should be liberally granted. We agree with the following statement by the tenure commission in this case:

'M.C.L.A. § 38.104(g) (M.S.A. § 15.2004(g)) grants the controlling board the power to subpoena witnesses on its own motion or at the request of the charged teacher. Here the board received a request to subpoena a key witness, the examining physician. The tenure law does not permit the teacher to compel attendance of witnesses needed to present an appropriate defense to file charges in a manner other than to request the board to issue such subpoena.

'Clearly, if the board of education is permitted to exercise discretion as to whom the tenure teacher is to [72 MICHAPP 724] call as a witness, then such board may deny the teacher a full defense. Due process necessarily requires that the teacher be reasonably unrestricted in subpoenaing witnesses as part of the defense of the charges. We think that the...