Schwein v. Board of Education of the Riverview Community School District et al

Filing 25

OPINION AND ORDER Granting Defendant's Motion to Dismiss 17 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JENNIFER SCHWEIN,
Plaintiff,

CASE NO. 17-13288
HON. DENISE PAGE HOOD

v.
BOARD OF EDUCATION of the
RIVERVIEW COMMUNITY
SCHOOL DISTRICT, et al.,
Defendants.
_________________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS [#17]
I.

BACKGROUND
A. Procedural Background
On October 6, 2017, this action was brought by Plaintiff Jennifer Schwein

(“Schwein”) against the Board of Education of the Riverview Community School
District (the “Riverview Board”) and Riverview Community School District
(“RCSD”) (collectively, “Defendants”), alleging that, as applied to her, Section 1248
and Section 1249 of the Revised School Code (Mich. Comp. Laws §§ 380.1248 and
380.1249) violate the Contracts Clause of the U.S. Constitution and the Michigan
Constitution, and was relied upon by Defendants in violating her contract rights
under Michigan’s Teacher Tenure Act (“TTA”) (Mich. Comp. Laws § 38.91) (Count
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I). Schwein also alleges that Defendants violated due process rights afforded to her
under the TTA (Count II). (Doc # 1) On January 19, 2018, a Stipulated Order was
entered allowing the Michigan Department of Attorney General (the “Michigan
AG”) to intervene as a Defendant. (Doc # 10) On March 20, 2018, Schwein filed
an Amended Complaint adding claims against Defendants for Breach of
Employment Contract (Count III), Improper Layoff (Count IV), and Failure to
Recall or Rehire (Count V). (Doc # 14) Schwein seeks to be reinstated to her prior
teaching position, injunctive and declaratory relief, and compensatory and punitive
damages, among other things. (Id.)
This matter is before the Court on the Michigan AG’s Motion to Dismiss
Count I of the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), filed on
April 3, 2018. (Doc # 17) Schwein filed a response on May 15, 2018. (Doc # 21)
The Michigan AG filed a Reply on June 1, 2018. (Doc # 22) The Michigan AG
argues that Schwein’s claim that Mich. Comp. Laws §§ 380.1248 and 380.1249
violate the Contracts Clause of the U.S Constitution and the Michigan Constitution
(Count I) is improper, untimely, and barred by res judicata.
For the reasons that follow, the Michigan AG’s Motion to Dismiss Count I is
GRANTED.

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B. Factual Background
Schwein, a fifty-one year old woman, was hired by the Riverview Board as a
teacher in 2001. Schwein is certified to teach elementary education, all subjects K5, and all subjects K-8 in a self-contained classroom, as well as early childhood
education. Schwein’s position with RCSD is part of a bargaining unit represented
by the Riverview Education Association, MEA/NEA (hereinafter “Association”).
Schwein taught Kindergarten during her time with RCSD. Schwein entered an
individual employment contract with RCSD and the Riverview Board on August 14,
2001. After her four year probationary period, Schwein was granted tenure.
The Riverview Community School District’s rubric for evaluating teachers
sets forth categories for which teachers are given individual numeric scores. The
numeric scores are then totaled and combined with additional scores for “average
student attendance,” “personal growth rating,” “classroom observation rating,” and
“student assessment data.” The combined score ranges from 0–100, which is divided
into the following designations: a score from 0–69 is considered “Ineffective;” a
score form 70–79 is considered “Minimally Effective;” a score from 80–89 is
considered “Effective;” and 90–100 is considered “Highly Effective.”
Schwein obtained scores that were “Effective” (or “satisfactory” under the
prior RCSD evaluation system) or higher for every RCSD evaluation she received
for teaching her Kindergarten class. Schwein alleges that “Effective” was the
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highest designation achieved within RCSD because the Superintendent instructed
the Principals in RCSD to not give “Highly Effective” ratings. Schwein received an
“Effective” performance evaluation from RCSD at the end of the 2014–2015 school
year, with an individual score of 86.7 for teaching her Kindergarten class. Schwein
alleges that there were several teachers employed by the Riverview Board who were
given lower numeric evaluation scores than her, and several of those teachers taught
in positions that Schwein is certified to hold.
On July 1, 2015, RCSD Superintendent Russell Pickell (“Pickell”) sent
Schwein a letter informing her that she would be laid off effective that day due to
“the District’s budget, staff performance, and the needs of its students.” Schwein
alleges that only one of the teachers that received a lower evaluation than Schwein
was also laid off. The teachers that were not laid off continued to be actively
employed by the Riverview Board.
On or about August 6, 2015, Pickell and the members of the Riverview Board
were notified by teacher Susan Mesler (“Mesler”) that she would be on leave from
the District until at least January 2016. Schwein is certified to teach the full-time
teaching position Mesler held. Schwein was not recalled to teach Mesler’s position.
On September 1, 2015, Pickell sent Schwein an email entitled “Part Time
position,” in which he offered to recall her to a “part time specials schedule” for the
elementary schools. The part time position equated to a seventy-percent
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Kindergarten teaching position. Pickell also offered Schwein “the RTI slots,” or
Response to Intervention, which was to equate to a thirty percent position. The RTI
work would be paid at “the para[professional] hourly rate.” That would have been
a significant reduction in Schwein’s salary.
Pickell stated that the position was offered only until Mesler returned from
leave, at which time “we would reevaluate district needs and you would most likely
be back on lay-off.” Schwein responded to Pickell on September 2, 2015, asking
questions about the positions, and requesting twenty-four hours to consider whether
to accept the position. Pickell responded on the next morning, stating “I don’t have
24 hours to give you,” and requested that Schwein give him an answer by 9:00 a.m.
on September 3, 2015. Schwein declined the position. The position that was offered
to Schwein was filled by a new teacher on September 9, 2015. Neither Pickell nor
the Riverview Board offered to recall Schwein into any other positions.
On November 3, 2015, Schwein exercised her right pursuant to the BullardPlawecki Employee Right to Know Act, MCL 423.505 and placed a rebuttal letter
regarding a previously-issued disciplinary letter in her personnel RCSD employee
file. The letter was emailed to Pickell. Within a week of Schwein’s submission of
her rebuttal letter, on or before November 3, 2015, Pickell terminated Schwein’s
access to RCSD’s email system, or caused her access to be terminated. The email
system is the venue through which employees are notified of open positions within
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RCSD. When reminded of the fact that an employee on layoff status needed access
to their email for this and other reasons, Pickell stated that the Association could
provide Schwein with information regarding open positions within RCSD. On
December 18, 2015, the Association filed a grievance over the termination of
Schwein’s access to RCSD email. In response to the grievance, Pickell emailed the
Association leadership Merriam-Webster’s definition of “employee.” Later, it was
determined that Mesler would not return from her leave. Schwein was not offered
Mesler’s full-time teaching position.
Prior to the beginning of the 2016–2017 school year, RCSD posted a vacant
elementary technology position within RCSD that Schwein was certified to teach.
The Association Grievance Chair, Aaron Robinson (“Robinson”), contacted Pickell
to discuss the Association’s position that the elementary technology teaching
position should be given Schwein, who was still on layoff status. Pickell responded
by stating that Schwein would not be recalled to the position, but that she could apply
for the position. Pickell noted that he believed that Schwein might not be qualified
for the position because it involved technology.
There was also a vacant 3rd grade teaching positon that could have been filled
by Schwein, but the Pickell did not inform the Association about that position.
Schwein applied for the vacant elementary technology teaching position. Schwein
was never informed about the vacant 3rd grade teaching position.
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After the interview for the elementary technology teaching position, Pickell,
who did not sit in on Schwein’s interview, told Robinson that he believed Schwein
had been “coached” for the interview. Schwein was not placed in either of the two
vacant positions.

The Riverview Board hired a first year teacher to fill the

elementary technology teaching position, and hired a female teacher who had never
worked within RCSD to fill the 3rd grade teaching position. Schwein alleges that
the woman is the sister of one of the RCSD administrators.
On or about September 30, 2016, Pickell attempted to have the Association
sign a “Memo of Understanding” which states, “Jennifer Schwein has no rights to
recall with the Riverview Community School District in regards to Michigan law
and the Collective Bargaining Agreement.” The “memo” lays out eight (8) bullet
points of training Schwein would be required to take under the contract, and then
states: “Upon completion of the named Professional Development, Jennifer Schwein
will be eligible for placement in a district position within her certification.” The
“memo” also sets out additional requirements that Schwein would need to meet upon
being placed in a teaching position, and concludes that “[f]ailure to comply with any
of the conditions outlined in this agreement will result in termination of
employment.” The “Memo of Understanding” was not signed by the Association.
In or around June 2017, RCSD posted a vacant early elementary teacher
position Schwein was certified to teach. On July 10, 2017, the Association informed
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Pickell that Schwein should be recalled to the position. Pickell responded on July
10, 2017, refusing to recall Schwein to the position. Pickell did, however, invite
Schwein to interview for any of the openings within RCSD. Schwein applied and
was interviewed for the position, but was not offered the position. Schwein alleges
that she had not received feedback from the interview.
Schwein continues to apply and interview for positions within RCSD. In
September 2017, Schwein applied and interviewed for a fifth grade position at Forest
Elementary School. Schwein was not offered the position. Also in fall of 2017,
there was a third grade vacancy at Memorial Elementary School within RCSD.
Schwein alleges that the position vacancy was never posted. Schwein was not
offered the position. Schwein alleges that the position was offered to former
paraprofessional Vanessa Rosecrans. To date, Schwein remains on layoff status
with the Riverview Board.
In 2011, the Michigan Legislature amended the Revised School Code, Mich.
Comp. Laws §§ 380.1, et seq., by adding Mich. Comp. Laws §§ 380.1248 and
380.1249. These statutes were part of a package of laws that changed the way in
which school boards and school districts made personnel decisions that resulted in
teacher layoffs. Prior to 2011, layoffs and recall were proper subjects of collective
bargaining, so the collective bargaining agreements controlled.

Under the

amendments, teacher layoff and recall are no longer subject to collective bargaining
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but must be based instead on teacher effectiveness. See Mich. Comp. Laws §§
380.1248 and 380.1249. The amendments did not affect any existing collective
bargaining agreement. Mich. Comp. Laws §§ 380.1248(2) & 380.1249(4). The
Michigan legislature also amended the TTA in 2011. Prior to 2011 amendments to
the statute, layoff and recall were also governed by the TTA, which stated a
minimum number of years that a school district must keep a tenured teacher on the
list of teachers eligible for recall. Mich. Comp. Laws § 38.105 (repealed 2011). The
relevant collective bargaining agreement (“CBA”) terminated on August 31, 2011
and the TTA no longer governs the layoff and recall of teachers.
II.

ANALYSIS
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion

to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6). This type of motion tests the legal sufficiency of the plaintiff’s
complaint. Davey v. Tomlinson, 627 F. Supp. 1458, 1463 (E.D. Mich. 1986). When
reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff.” Directv Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007). A court, however, need not accept as true legal
conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby
Cnty., 220 F.3d 443, 446 (6th Cir. 2000)). “[L]egal conclusions masquerading as
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factual allegations will not suffice.” Edison v. State of Tenn. Dep’t of Children’s
Servs., 510 F.3d 631, 634 (6th Cir. 2007).
As the Supreme Court has explained, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level… .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see
LULAC v. Bresdesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive dismissal, the
plaintiff must offer sufficient factual allegations to make the asserted claim plausible
on its face. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
A. Contracts Clause Claim
The Federal Contracts Clause states, “No state shall . . . pass any . . . Law
impairing the Obligations of Contracts.” U.S. Const. art. II, § 10, cl. Similarly, the
Michigan Contracts Clause states, “No . . . law impairing the obligation of contract
shall be enacted.” Const. 1963, art. I, § 10. The analysis that follows focuses on the
U.S. Constitution, but applies equally to the Michigan Constitution. See AFT
Michigan v. State of Michigan, 497 Mich. 197, 233 (2015) (“This Court has often
interpreted these provisions coextensively, and because plaintiffs have not argued
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that the Michigan Constitution affords additional protection, we will not seek to
ascertain otherwise.”).

To state a Contracts Clause claim, “a plaintiff must

demonstrate that a change in state law has operated as a substantial impairment of a
contractual relationship.” Mascio v. Pub. Employees Ret. Sys. of Ohio, 160 F.3d
310, 313 (6th Cir. 1998) (internal citations and quotations omitted). In assessing the
validity of such a claim, a court must ask whether “(1) a contract exists, (2) [there
was] a change in law impairs that contract, and (3) the impairment is substantial.”
Id. (citing Linton v. Comm’r of Health & Environment, 65 F.3d 508, 518 (6th
Cir.1995)).

If a contractual obligation has been substantially impaired by a

subsequent change in law, the court must determine whether the adjustment of “the
rights to the parties to the contractual relationship was reasonable and appropriate in
the service of a legitimate and important public purpose.” Id.
Defendant argues that in Baumgartner v. Perry Pub. Sch., 309 Mich. App.
507, 510–11, 513–15 (2015), the Michigan Court of Appeals recognized that CBAs,
and not Michigan state law, governed issues related to layoffs, teacher retention, and
recall before 2011. Schwein argues that the TTA also governed layoff and recall
rights, Baumgartner did not state that the TTA never governed teacher layoff and
recall, and Schwein is not arguing that she had a contract right concerning layoff,
only that her contract right is to “continuous employment.” (Doc # 21, Pg. 25)

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The Court agrees with Schwein. First, the issue in Baumgartner was whether
the State Tenure Commission had jurisdiction over questions related to layoff and
recall, not whether the TTA governed teacher layoff and recall.

Second,

Baumgartner is not relevant to determining whether Schwein’s right to continuous
employment has been impaired by Defendants’ reliance on the state policies in
question. Third, even if teacher layoff and recall were governed solely by the CBA,
as the Michigan AG would have it, several articles in the CBA, including Article
XVI, Section 5 entitled “Dismissals,” state that the policies prescribed in the
agreement shall be followed “in accordance with” the TTA. (see Doc # 17-2, art.
XVI) The teacher personnel decisions were governed by the CBA and the TTA prior
to 2011.
The Michigan AG is correct in asserting that constitutional prohibitions
against impairing contract obligations do not prevent state legislatures from setting
the legal parameters for future contracts. It is well settled that contracts existing at
the time of a challenged law’s passage are protected from contrary law. Edwards v.
Kearzey, 96 U.S. 595, 603, 24 L. Ed. 793 (U.S. 1877) (“The inhibition of the
Constitution is wholly prospective. The States may legislate as to contracts thereafter
made, as they may see fit. It is only those in existence when the hostile law is passed
that are protected from its effect.”). The Michigan AG is also correct that § 1248
and § 1249 did not impair any right held by a teacher under any then-binding CBA.
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See Mich. Comp. Laws § 380.1248(2); Mich. Comp. Laws § 380.1249(4). Those
arguments, however, do not address Schwein’s contention that her contract right to
“continuous employment” arises directly under the TTA.
In response, the Michigan AG argues: (1) the TTA does not contain any
contract-creating language; (2) Michigan courts interpret the TTA as a regulation,
not a contract; (3) Schwein does not have right to prevent the Legislature from
amending statutes; (4) Michigan courts have recognized that, before 2011, collective
bargaining agreements were the sole source of contract rights concerning layoffs;
and (5) even if Schwein establishes a contract right, Schwein has no claim under the
Contracts Clause because the alleged contract right is a remedy for layoff violations.
Schwein argues that the TTA creates a contract right, collective bargaining
agreements were not the sole source of contract rights concerning layoffs and recalls,
and the impairment of the contractual right in the TTA is not an alteration of a
remedy.
1. Whether the TTA Contains Contract-Creating Language
The United States Supreme Court has “maintained that absent some clear
indication that the legislature intends to bind itself contractually, the presumption is
that ‘a law is not intended to create private contractual or vested rights but merely
declares a policy to be pursued until the legislature shall ordain otherwise.’” Nat’l
R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465–
13 

66 (1985) (quoting Dodge v. Bd. of Ed., 302 U.S. 74, 79 (1937)). In determining
whether a state statue gives rise to a contractual relationship, “it is of first importance
to examine the language of the statute.” Dodge, 302, U.S. at 78. See also Indiana
ex rel. Anderson v. Brand, 303 U.S. 97, 104 (1938) (“Where the claim is that the
State’s policy embodied in a statute is to bind its instrumentalities by contract, the
cardinal inquiry is as to the terms of the statute supposed to create such a contract”).
“If it provides for the execution of a written contract on behalf of the state the case
for an obligation binding upon the state is clear.” Dodge, 302 U.S., at 78 (emphasis
added). Absent “an adequate expression of an actual intent” by the State to contract,
courts should avoid construing a public regulation to also be “a private contract to
which the State is a party.” Nat’l R.R. Passenger Corp., 470 U.S., at 467 (quoting
Wisconsin & Michigan R. Co. v. Powers, 191 U.S. 379, 386–387 (1903)).
The Michigan AG argues that the TTA does not contain any language creating
a contract binding the State to employ teachers continuously. In support of this
position, the Michigan AG highlights three provisions to the TTA (§§ 38.83, 38.92,
and 38.172) that specifically refer to teacher contracts and agreements with local
school boards. In addition, the Michigan AG notes that the title of the TTA states
that it is “AN ACT . . . to regulate discharges or demotions . . . .” Mich. Comp.
Laws. Ch. 38, Act 4 Note. The Michigan AG contends that the aforementioned
provisions and language within TTA indicates that the statute was meant to regulate
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teachers’ contracts with local school boards. In response, Schwein argues that
teacher contracts are regulated by separate statutes, such as Mich. Comp. Laws §
380.1231, mandating individual employment contracts for teachers, and Mich.
Comp. Laws § 423.201, et seq., which regulates collective bargaining agreements
for teachers.
Schwein also relies heavily on Elliott v. Bd. of Sch. Trustees of Madison
Consol. Schs., 876 F.3d 926, (7th Cir. 2017), arguing that this Court should follow
the analysis applied by the Seventh Circuit in finding that the Indiana teacher tenure
statute created a contract right for tenured teachers in addition to them having
individual contracts. While Schwein is correct that the Indiana teacher tenure statue
and the Michigan TTA are substantially similar in many respects, Schwein’s
argument is unpersuasive for several reasons.
The holding in Elliott is partially reliant upon the Supreme Court’s decision
in Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 107 (1938). In Anderson, the
Supreme Court held that the 1927 Indiana Teachers’ Tenure Act contained language
that indicated the Indiana Legislature intended to create contractually binding
relationships with teachers employed by local school districts. Id. at 105–06. The
Anderson Court noted that Section 1 of the Indiana Techers’ Tenure Act expressly
stated that after a teacher served under a teaching contract for five years, the teacher
became a “permanent teacher” upon entering into another teaching contract with the
15 

teaching district, that the new contract would continue for an indefinite period, and
would be known as an “indefinite contract.” Id. at 102. The Court also noted that
the title of the Indiana statute was “couched in terms of contract. [Speaking] of the
making and cancelling of indefinite contracts.” Id. at 105. Finally, the Court relied
on a number of Indiana Supreme Court cases establishing that Indiana’s teacher
tenure statute granted contract rights. Id. at 105–109.
This Court does not adopt the rationale applied by the Seventh Circuit in
Elliott because (1) Anderson does not apply to Michigan’s TTA, (2) the Michigan
TTA does not contain language creating “indefinite contracts” between teachers and
local school boards, and the language of the Michigan TTA does not evidence an
express intention of granting tenured teachers a contract right. Michigan’s TTA
states that “a teacher on continuing tenure shall be employed continuously by the
controlling board under which the probationary period has been completed and shall
not be dismissed or demoted except as specified in this act.” M.C.L. § 38.91(1).
The Court agrees with the Michigan AG, and finds that the language of § 38.91 as a
whole, and the title, evidences an intent for the TTA to serve as a regulation.
The Court finds that the Michigan TTA does not grant teachers a contract
right. Schwein’s Contracts Clause claim fails. Because Schwein has failed to state
a claim under the Contracts Clause, the Michigan Department of Attorney General’s
Motion to Dismiss Count I is GRANTED.
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2. Michigan AG’s Other Arguments
Although the Court need not continue because Michigan’s TTA does not
expressly grant teachers a contract right, the Court notes that (1) Michigan Supreme
Court law has never held that the TTA creates a binding contract right for teachers
nor has it held that the TTA is exclusively a regulation; (2) Schwein does not have a
right to prevent the Michigan Legislature from amending the TTA; (3) as stated
above, the TTA did partially govern layoffs prior to 2011; (4) the Michigan AG’s
argument for modification of a remedy is not relevant to Schwein’s claim and the
claim is not barred by the statute of limitations.
B. Res Judicata
The Court agrees with Schwein that Count I is not barred by res judicata.
III.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Intervening Defendant the Michigan

Department of Attorney General’s Motion to Dismiss Count I of Plaintiff Jennifer
Schwein’s Amended Complaint (Doc # 17) is GRANTED.
Count I of the Amended Complaint (Doc # 14) is DISMISSED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 17, 2018
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I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 17, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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