Widdoes v. Detroit Public Schools

• Decision Date: 31 October 2000
• Docket Number: Docket No. 213153.
• Parties: Paul WIDDOES, Petitioner-Appellee, v. DETROIT PUBLIC SCHOOLS, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

619 N.W.2d 12

242 Mich. App. 403

Paul WIDDOES, Petitioner-Appellee, v. DETROIT PUBLIC SCHOOLS, Respondent-Appellant.

Docket No. 213153.

Court of Appeals of Michigan.

Submitted July 5, 2000, at Detroit.

Decided September 1, 2000, at 9:00 a.m.

Released for Publication October 31, 2000.

Skupin & Lucas, P.C. (by Joseph F. Lucas), Detroit, for the petitioner.

Lynne M. Metty, Detroit, for the respondent.

Before: WHITE, P.J., and DOCTOROFF and O'CONNELL, JJ.

O'CONNELL, J.

In Widdoes v. Detroit Public Schools, 218 Mich.App. 282, 287, 553 N.W.2d 688 (1996), a panel of this Court affirmed a circuit court's determination that petitioner did not violate the corporal punishment prohibition of the Revised School Code, M.C.L. § 380.1312; MSA 15.41312. This Court nevertheless remanded to the State Tenure Commission for a determination whether petitioner violated any policy of respondent prohibiting the use of excessive force. Id. at 288, 553 N.W.2d 688. The present appeal arises from the commission's determination that petitioner did act contrary to an excessive force policy that respondent had in effect during the relevant period. The circuit court reversed, finding that petitioner's actions did not constitute excessive force. We agree with the circuit court's ruling and affirm.

We adopt the facts as set forth in this Court's earlier opinion:

The incident at issue occurred in February 1990. An eighth grade student, who helped clean the gymnasium after it was used as a lunchroom, played dodgeball with several other students. A custodian had told them they could play, although the student knew that he should not be playing in the gym at that time. Petitioner entered the gym and told the students to leave. The student attempted to retrieve his shirt. Petitioner grabbed him by the arm and pulled him toward the door, telling him that he had to leave. The student tried to get away, called petitioner a "white bitch," threatened to hit him, and made an obscene gesture. The student later apologized to petitioner and testified that petitioner did not use "real bad force" or "hurt him in any way."[¹]

In June 1990, petitioner received written charges of using excessive force that stated in pertinent part:

"On February 23, 1990, you used inappropriate and excessive force on a student....

"This is at least the second incident in which you have used force on a student in an unprofessional manner.

"These charges, if proven, constitute just and reasonable cause for disciplinary action. Therefore, accordingly, I am recommending that you be suspended without pay for three (3) weeks."

At the December 4, 1990, hearing regarding these charges, respondent's counsel requested termination. In a December 18, 1990, unanimous decision, the Detroit Board of Education stated that it found sufficient evidence to support the charge of excessive use of force and immediately terminated petitioner's employment.

Petitioner then appealed to the State Tenure Commission. The commission denied the petition [in July 1993] by a three to two majority. It held:

"Here the great weight of the evidence established that [petitioner] did... unlawfully inflict corporal punishment on [the student] in violation of M.C.L. § 380.1312 [MSA 15.41312]. [Petitioner's] response was totally out of proportion to [the student's] action, which consisted merely of walking across the gym to get his shirt instead of leaving the gym immediately as [petitioner] commanded.... As a teacher, [petitioner] was charged with the responsibility of controlling his temper and using appropriate methods of discipline. His use of corporal punishment violated not only the state statute but also the policy of [respondent] which was based on the statute." [Widdoes, supra at 283-285, 553 N.W.2d 688.²]

Petitioner appealed to the circuit court, which reversed the commission's decision, citing the lack of competent, material, and substantial evidence to support the commission's decision. Id. at 285, 553 N.W.2d 688. This Court agreed, after concluding that respondent failed to establish the "infliction of physical pain" element of M.C.L. § 380.1312; MSA 15.41312, but nevertheless remanded to the commission for consideration whether petitioner violated any policy of respondent that prohibited the use of excessive force. Id. at 287-288, 553 N.W.2d 688. The panel also recommended that the commission review certain other issues that petitioner raised below, but which the commission did not address. Petitioner had argued that respondent increased its initial recommendation from a three-week suspension to outright termination in an effort to unconstitutionally chill his right to a hearing. Id. at 288, n. 1, 553 N.W.2d 688. Petitioner had also contended that respondent did not comply with the time requirements set forth in M.C.L. § 38.102; MSA 15.2002 for filing such charges. Id. Finally, this Court reversed the circuit court's order requiring respondent to pay petitioner's attorney fees. Id. at 290, 553 N.W.2d 688.

On remand to the State Tenure Commission, respondent argued that it had a policy forbidding the use of excessive force and that, unlike the corporal punishment statute, the policy did not require respondent to show that petitioner deliberately inflicted pain on the student. The commission agreed and determined that petitioner violated the excessive force policy during the February 1990 incident. Regarding petitioner's argument that respondent violated his due process rights when it failed to notify him before the hearing that it sought his dismissal, the commission concluded that petitioner was not legally entitled to notice of the proposed penalty. The commission also found no evidence that respondent increased its recommended penalty in retaliation for petitioner's request for a hearing.³

Petitioner again appealed to the circuit court, and the court again reversed, citing the lack of competent, material, and substantial evidence that petitioner used excessive force on the student. The court also concluded that respondent violated petitioner's due process rights when it increased its original recommendation for a three-week suspension to dismissal without notifying him. The court ordered respondent to reinstate petitioner as a tenured teacher and awarded him "all back salary and the value of all employment benefits accrued since the termination of his employment in January, 1991."

This Court granted respondent's application for leave to appeal. Respondent now argues that the circuit court erred in two respects. First, respondent asserts that competent, material, and substantial evidence did support the State Tenure Commission's finding that petitioner violated respondent's excessive force policy. Second, respondent urges us to conclude that the circuit court committed legal error when it ruled that respondent violated petitioner's due process rights. We conclude that the circuit court did not err with respect to the first issue. Because respondent's first issue is dispositive of this appeal, we do not address the due process issue.⁴

On appeal from the State Tenure Commission, the function of the reviewing court is to determine whether the record contained competent, material, and substantial evidence to support the commission's findings. Ferrario v. Escanaba Bd. of Ed., 426 Mich. 353, 367, 395 N.W.2d 195 (1986). "Substantial evidence is that which a reasonable mind would accept as adequate to support a decision; it is more than a scintilla but may be substantially less than a preponderance." Parker v. Byron Center Public Schools Bd. of Ed., 229 Mich.App. 565, 578, 582 N.W.2d 859 (1998). Further, although "deference must be given to the commission's determination of the credibility of witnesses who appeared before it," courts must "conduct an independent assessment of whether the commission's determination of the credibility of the parties is supported by the evidence." Id. Our review is not de novo; however, it does involve a degree of qualitative and quantitative evaluation of all the evidence that the commission considered, rather than just those portions of the record supporting the commission's decision. Ferrario, supra at 367, 395 N.W.2d 195; MERC v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 124, 223 N.W.2d 283 (1974).

At the commission hearing, respondent relied on a provision addressing the subject of discipline contained in the collective bargaining agreement (CBA) between respondent and the Detroit Federation of Teachers, effective July 1, 1987, to June 30, 1990. Paragraph M of the discipline section provided:

It is general policy to expect that teachers will maintain discipline by means other than the use of corporal punishment. Therefore, use of corporal punishment as a routine measure is not contemplated. This policy does not prohibit corporal punishment (as provided by [the School Code]) but does restrict its use to those cases in which there is no adequate substitute treatment. However, a distinction must be made between physical restraint, which is occasionally necessary to keep a young person from injuring himself/herself or others, and punishment, which is utilized to discourage repetition of misbehavior.

Punishment which, in the judgment of the Superintendent is more severe than that which might be administered by a reasonable parent; which is cruel or excessive; which is more severe than indicated by the gravity of the offense, or the apparent motive and disposition of the offender; which is excessive with respect to the sex, size, or physical strength of the pupil; which results in lasting pain or injury; or which is administered wantonly or from malice or passion, is prohibited in the Detroit schools.

Petitioner argued before the commission that these provisions were a mere reiteration of the corporal punishment statute. The State Tenure Commission disagreed. It interpreted the quoted language as expressing a policy against the use of excessive force,...