Michigan Labor & Employment Law Blog

In Summer v. Southfield Board of Education, et al., a unanimous Court of Appeals panel ruled that Meredith Summer had reason to challenge her layoff under Section 1248 of the Revised School Code, because the school district didn’t adopt and implement a performance evaluation system in compliance with Section 1249.

As a background, Section 1248’s purpose is “to regulate the policies and criteria governing ‘personnel decisions … resulting in the elimination of a position …,’” and requires a school district to adopt a policy “that provides that all personnel decisions when conducting a staffing or program reduction ... are based on retaining effective teachers.”

Summer argued that, despite the district’s claims of having “developed a system to effectuate standards for placements, layoffs, and recalls”— which, per Section 1249, “was supposed to be based on teacher effectiveness and be rigorous, transparent and fair” — her layoff was “arbitrary, capricious, and in bad faith.” She claimed the school district’s actions leading up to her layoff were retaliatory after she brought a harassment complaint against another employee but never got any response about it.

This decision is an important reminder for school districts on why having an evaluation process, and regularly following through with it, is crucial.

A cause of action clarified

In its ruling, the Court of Appeals clarified that a Section 1248 violation provides a private cause of action based on an alleged Section 1249 violation.

Shortly after a previous Court of Appeals panel affirmed summary disposition for the school district, the Michigan Legislature enacted 2015 PA 173, which amended Section 1249 to “not affect the operation or applicability of section 1248.”

Summer amended her complaint, in that the Court could no longer hold that: “[A] plaintiff may not raise a claim under § 1248 based on a violation of an evaluation system under § 1249 unless he or she is specifically alleging that a school district’s failure to comply with § 1249 resulted in a performance evaluation that was not actually based on his or her effectiveness and, most importantly, that a personnel decision was made based on that noncompliant performance evaluation.”

Further, Summer contended that her performance evaluation did not comply with Section 1249 “because it was instead based on a personal bias, which was not related to any of the factors listed in § 1249.”

How school districts can comply

School districts should ensure that their teachers are evaluated at least once per year, and that the evaluation is fair and transparent. The teachers should be allowed to review the results of the evaluation and be given the opportunity to improve.

Although Summer was evaluated via classroom observation, she said she was not allowed to know anything about how she fared, which, the Court said, “cannot be viewed as a transparent or fair evaluation system, much less one that provided plaintiff with ‘timely and constructive feedback,’” per Section 1249.

Section 1249 also requires that teachers “are given ample opportunities for improvement,” but Summer argued she was “never given prior warning of any purported shortcomings or an opportunity to cure those shortcomings… .”

If a teacher’s performance is poor or substandard, the school should document all efforts to advise him or her, including any coaching or suggestions for improvement via an individualized development plan. Before taking any employment action against a teacher, make sure the teacher actually had an opportunity to make those improvements.

If an employer has questions about whether their evaluation process complies with the Revised School Code, please contact Pamela Dausman at 517.371.8163 or pdausman@fosterswift.com. Pamela also has experience conducting investigations of internal employee complaints.