Shiffer v. Board of Ed. of Gibraltar School Dist.

• Decision Date: 19 December 1974
• Docket Number: No. 4,4
• Citation: 393 Mich. 190,224 N.W.2d 255
• Parties: George SHIFFER, Plaintiff-Appellee, v. BOARD OF EDUCATION OF GIBRALTAR SCHOOL DISTRICT, Defendant-Appellant. 393 Mich. 190, 224 N.W.2d 255
• Court: Michigan Supreme Court

Page 255

224 N.W.2d 255

George SHIFFER, Plaintiff-Appellee, v. BOARD OF EDUCATION OF GIBRALTAR SCHOOL DISTRICT Defendant-Appellant.

No. 4.

393 Mich. 190, 224 N.W.2d 255

Supreme Court of Michigan.

Dec. 19, 1974.

Fieger, Golden & Cousens, Bernard J. Fieger, Southfield, for plaintiff-appellee.

Logan & Huchla, Riverview, for defendant-appellant, Gibralter School Dist.

Before the Entire Bench.

LEVIN, Justice.

The Board of Education of Gibraltar School District appeals a decision of the Teachers' Tenure Commission reinstating George Shiffer as a tenured teacher and directing that he be paid 'all lost wages.'

The principal question is whether in determining the amount of 'salary (Shiffer) lost as a result of such suspension,' there should be deducted amounts he earned or could have earned from other employment.

Justice Williams states that the statutory language, 'all salary lost,' is 'plain and unambiguous in its terms' and that the legislative purpose in enacting the Teachers' Tenure Act was to 'preserve the integrity of the teacher's tenure.' He reasons from these premises that to 'introduce the common law breach of contract theory of mitigation of damages,' a 'commercial doctrine,' into the Teachers' Tenure Act would be 'alien to (and would) certainly (do) nothing for legislation dedicated to taking teachers out from under the thumb of arbitrary action by school boards.'

This case, like many which raise issues of statutory construction, can be decided either way. What is 'plain and unambiguous' often depends on one's frame of reference.

If one assumes that whenever a teacher prevails on appeal to the Tenure Commission and the courts the school board's action in suspending or discharging him was 'arbitrary,' then it may appear 'plain' that the Legislature intended to impose a financial penalty on the school board for failing to justify its disciplinary action.

If, on the other hand, one, while recognizing that some school boards sometimes act arbitrarily, does not regard a teacher's success before the Tenure Commission and the courts as determinative of whether the school board acted in good faith in disciplining or discharging him, then what the Legislature intended--if it had any intention in this regard at all--may not appear so 'plain and unambiguous.'

It has been said that '(i)n many instances, expressions of the plan meaning rule may be a kind of verbal table thumping to express or reinforce confidence in an interpretation arrived at on other grounds instead of a reason for it.' ¹ Similarly, Professor Corbin wrote that statements about 'plain and clear' meaning of a writing 'assume a uniformity and certainty in the meaning of language that do not in fact exist.' ²

In the context of an affort to determine the amount of a back-pay award, the words 'all salary lost as a result of such suspension' are not free of ambiguity.

We agree with our colleagues that it is possible to regard the words as meaning all salary wrongfully denied the teacher by the school board during the period of his suspension. The plausibility of this one reading does not, however, negate all other possible constructions and free the words of any or all ambiguity.

Equally maintainable is a construction which regards 'all salary lost' as a 'net loss' concept. Under this view, wages a teacher actually earns or could have earned during his period of suspension are deducted from the suspended teacher's 'salary' in arriving at the net or actual amount of 'salary lost.'

Courts in other jurisdictions which have enacted similar legislation have considered whether the mitigation doctrine is applicable in determining the amount of a backpay award to a wrongfully discharged teacher.

The language of these statutes is similar to Michigan's. A New Hampshire statute provides for back pay 'to the extent of the full salary for the period for which such teacher was engaged.' A California provision requires that a wrongfully discharged teacher be paid his 'full salary . . . for the period of his suspension.' Similarly, the Pennsylvania Teachers' Tenure Act provides that in the event of reinstatement and a back-pay award 'there shall be no abatement of salary or compensation.' (See Part IV for statutory references.) If one is inclined to view the similar Michigan language ('all salary lost as a result of such suspension') as 'plain and unambiguous in its terms,' then one would expect a uniform rejection of the mitigation doctrine by the courts of these states.

However, none of these courts have construed their statutes in the manner which our colleagues regard as the only possible construction. Each has construed its statute as meaning the teacher's 'net loss' and applied general mitigation principles in determining back-pay awards. (See Part IV for citations of decisions.)

Our reference to opinions of other state courts construing similar statutory language is not, as our colleagues suggest, to imply that these opinions 'accurately reflect the intention of the Michigan Legislature.' These cases are cited to illustrate the fallacy of attaching the label 'plain meaning' to the words 'all salary lost.'

It is frequently instructive to examine the reasoning and attempt to understand the practice in other jurisdictions. 'Countless avenues and forms of communication and interaction among the jurisdictions lead to so much parallelism among the laws of different states as the result of emulation, adaptation, and outright copying that common patterns and standard modes of dealing with common problems become evident. Where that is the case, the phraseology and language of similar legislation in other jurisdictions is deserving of special consideration not only in the interests of uniformity, but also for the purpose of determining the general policy and objectives of a particular course of legislation.' ³

On its face and in its operation, Michigan's Teachers' Tenure Act closely resembles other remedial legislation such as the National Labor Relations Act, the Michigan Employment Relations Act and civil rights statutes designed to protect workers from certain discriminatory practices in hiring promotions, and firing. The usual statutory remedy for wrongful suspension or discharge is reinstatement with back pay and, in determining the amount of the back-pay award, general principles of mitigation are Uniformly applied. ⁴

The mitigation doctrine has been applied by the United States Supreme Court in construing the words 'back pay,' ⁵ by other federal courts in administering like remedial legislation, and by state courts construing teacher tenure legislation.

The principle of mitigation is a thread permeating the entire jurisprudence. It is not solely a 'breach of contract' or 'commercial' doctrine; it is part of the much broader principle of 'avoidable consequences.'

Professor McCormick's statement of the general principle of avoidable consequences is unqualified in its application: 'Where one person has committed a Tort, breach of contract, or other Legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could thus have been avoided.' (Emphasis added.) ⁶

The rights protected by the mitigation doctrine are not just those of contracting parties, commercial litigants, tort victims or tort-feasors but, rather, the rights of all society: 'Legal rules and doctrines are designed not only to prevent and repair individual loss and injustice, but to protect and conserve the economic welfare and prosperity of the whole community.' ⁷

Mitigation of damages is, thus, the 'machinery by which the law seeks to encourage the avoidance of loss.' ⁸

Our colleagues' exclusion of the mitigation doctrine from the administration of the Teachers' Tenure Act represents an unprecedented anomaly.

The doctrine of avoidable consequences/mitigation of damages takes into account the unique problem facing teachers in obtaining substitute employment. The common law does not 'burden' them 'with the task of scrounging around for other employment while challenging an unjust suspension.' The common law recognizes that besides the difficulty of obtaining mid-year employment, for many teachers their former employer is the only employer in town. The common law recognizes these problems and imposes no duty on teachers to accept employment outside of the teaching profession, or to accept a teaching position in another community, or at a lower status. See Edgecomb v. Traverse City School District, 341 Mich. 106, 67 N.W.2d 87 (1954).

Practically speaking, the minimal duty imposed by the common law on teachers to seek substitute employment combined with today's depressed market for teachers means that few, if any, discharged teachers will be required to take undesired employment.

In most instances economic necessity will force a discharged teacher to seek alternative employment. The backlog of cases pending before the Tenure Commission and the unfortunately slow appellate process means that it will often be years before teachers who ultimately prevail are reinstated. Shiffer, for example, was reinstated four years after his suspension. The teacher in Rumph v. Board of Education of Wayne Community School District, 31 Mich.App. 555, 188 N.W.2d 71 (1971) (held in abeyance pending decision in this case) was suspended eight years ago.

Applying the mitigation doctrine in teacher tenure controversies will not require teachers to scrounge around; rather, it will conform the economic damages awarded to the economic damages suffered.

The amounts involved are not inconsiderable. In Shiffer's case, the amount potentially involved is four years' salary; in Rumph's, eight years'.

Having in mind the pattern of like remedial legislation and the uniform construction placed on such legislation by other courts, we cannot...