Ziel v. Romeo Community Schools et al

Filing 13

ORDER Denying Plaintiff's #5 Motion for Entry of a Temporary Restraining Order and Preliminary Injunction and Staying Action. Signed by District Judge Stephanie Dawkins Davis. (HMon)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 21-11929

SUSAN ZIEL,

Stephanie Dawkins Davis
United States District Judge

Plaintiff,
v.
ROMEO COMMUNITY SCHOOLS, et al.,
Defendants.
___________________________ /

ORDER DENYING PLAINTIFF’S MOTION FOR ENTRY OF
TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION (ECF NO. 5) AND STAYING ACTION
I.

INTRODUCTION
On August 19, 2021, plaintiff, Susan Ziel, filed a Complaint alleging First

Amendment retaliation based on her freedom of speech (Count I) and freedom of
association (Count II) against Romeo Community Schools (RCS), the RCS Board
of Education, the RCS superintendent, Todd Robinson, Julia Butler, the RCS
Director of Employee Services, and the individual members of the RCS Board of
Education. (ECF No. 1). That same day, she also filed an ex parte motion for a
temporary restraining order. (ECF No. 5). The court held a telephonic status
conference on August 20, 2021 during which it set a briefing schedule and hearing

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date for Ziel’s motion for injunctive relief. (ECF No. 6).1 In her motion, Ziel asks
this court for a temporary restraining order preventing the Board from adopting
draft tenure charges terminating her employment and for a preliminary injunction
requiring defendants to restore her to her position as a teacher at Romeo Middle
School during the pendency of these proceedings. (Id. at PageID.70). For the
reasons set forth in this opinion, the court has determined that it must abstain
pursuant to Younger v. Harris, 401 U.S. 37 (1971) and stay proceedings in this
matter while the administrative process under the Michigan Tenure Act is pending.
II.

FACTUAL BACKGROUND
Ziel has taught middle school for RCS for over twenty-five years. She is a

union member and President of the Romeo Education Association, a local
teachers’ union (“Union”). (ECF No. 1, Compl. ¶¶ 45-47). During the COVID-19
Pandemic, Ziel learned that an organization, known as Moms for Liberty (“M4L”)
had attended multiple school board meetings throughout school districts in
Macomb County. M4L used disruption and rowdiness to protest issues, such as

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Plaintiff sought an ex parte temporary restraining order. As explained at the telephonic
conference, Ziel’s motion did not comply with Federal Rule of Civil Procedure 65(b), which
requires the movant’s attorney to certify in writing any efforts made to give notice and why
notice should be not required, and which also requires the motion to be supported by specific
facts showing that irreparable injury will be sustained, set forth in an affidavit or verified
complaint. Here, plaintiff’s attorney certified that he provided copies of the subject filings to
defense counsel and “certified” that irreparable harm would result if an order is not issued. But
the rule requires that the factual support for such harm be set forth in a verified complaint or
affidavit – neither of which were filed in this case. As such, issuance of an order without notice
would not have been proper.
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COVID-19 vaccines, mask requirements, and critical race theory, at public school
board meetings. Ziel was aware that M4L frequently blames teachers’ unions for
school districts’ mask mandates, vaccine requirements, and “progressive”
curriculums. Around May 12, 2021, Ziel learned that M4L members had attended
the Board’s May 10, 2021 meeting. (ECF No. 1, Compl. ¶¶ 52-53).
During the May 10, 2021 Board meeting, members of the public shouted at
Board members, and accused the Board of failing students and being evil. These
individuals publicly commented to the Board that COVID-19 was not a virus and
that masks do not prevent the spread of COVID-19. (ECF No. 1, Compl. ¶ 54).
Ziel is the administrator of a private Facebook page, named “Romeo EA.” Only
Union members have access to the Facebook page. There are approximately 200
members who have requested and have access to the Romeo EA Facebook page.
(ECF No. 1, Compl. ¶ 55). On May 12, 2021, in response to the public comments
made at the May 10, 2021 Board meeting, Ziel authored and posted the following
on the Romeo EA’s Facebook page:
This is how I picture the next board meeting between the
Board & the idiots that turned the meeting into a [cartoon
emoji/pile of poo] show. A group called ‘Moms of
liberty’ showed up to stir up trouble. Apparently they
were rude and mistook the meeting for a Jerry Springer
show. Anti mask (sic) & anti vaccine (sic) & anti testing
(sic) for sports. The trifecta of stink’n think’n. They are a
virus themselves.
(ECF No. 1, Compl. ¶ 56; ECF No. 5-1).
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On May 16, 2021, defendants, through defendant Robinson and defendant
Julia Butler, suspended Ziel pending an investigation. Butler advised Ziel that the
reasons for the suspension were (1) her May 12, 2021 Facebook post on the Romeo
EA page, and (2) because she spoke to the Associated Press, and her name
appeared in the May 12, 2021 article. (ECF No. 1, Compl. ¶¶ 59-60).
On June 23, 2021, defendants, through their attorneys, conducted an
investigatory interview with Ziel which covered the Facebook posting as well as a
number of other topics. (ECF No. 1, Compl. ¶¶ 61-63). On July 26, 2021, at a
Special Meeting, the Board authorized Robinson to pursue Ziel’s termination
through tenure charges. (ECF No. 1, Compl. ¶ 65). On August 3, 2021,
defendants, through their attorney, notified Ziel that the Board would proceed with
Ziel’s termination by filing a tenure charge under Michigan’s Teacher Tenure Act,
Mich. Comp. Laws § 38.71, et. seq. (ECF No. 1, Compl. ¶ 66). Defendants
advised Ziel that the Board would vote on her termination at the next Board
meeting. Defendants provided Ziel with a copy of the tenure charge. In the tenure
charge, defendants, through Robinson, told Ziel he “recommend[s] that the Board
take action to dismiss [her] for unprofessional conduct in using abusive and
insulting language in a social media post.” The tenure charge identifies Ziel’s May
12, 2021 Facebook post as the sole basis for recommending her termination. On
August 5, 2021, defendants barred Ziel from entering RCS property. (ECF No. 1,

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Compl. ¶¶ 66-71; ECF No. 5-3, Defendants’ Tenure Charge). On August 10,
2021, defendants, through their attorney, advised Ziel that they would terminate
her through the approval of the tenure charge against her at its next meeting on
August 23, 2021.2 (ECF No. 1, Compl. ¶ 72).
III.

DISCUSSION
Among other things, defendants argue that this court should abstain from

issuing injunctive relief under Younger v. Harris, 401 U.S. 37 (1971).3 The court
agrees. Under Younger, federal courts decline to interfere with pending state
proceedings unless extraordinary circumstances are present. Id. at 45. “Younger
abstention derives from a desire to prevent federal courts from interfering with the
functions of state criminal prosecutions and to preserve equity and comity.”
Tobias v. State of Mich., 2018 WL 3434344, at *4 (E.D. Mich. July 17, 2018)
(quoting Doe v. Univ. of Ky., 860 F.3d 365, 368 (6th Cir. 2017) (citing Younger,
401 U.S. at 44)). Although Younger addressed state criminal proceedings, the
Supreme Court “has also approved application of Younger abstention to situations
involving state administrative proceedings.” Watts v. Burkhart, 854 F.2d 839, 845
(6th Cir. 1988) (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n,
2

Defendants agreed to reschedule the Board meeting for September 13, 2021, so the
court could conduct the hearing and resolve the motion before the meeting was held.
3

To the extent that either party addresses whether exhaustion of administrative remedies
is required, this consideration is not a part of the calculus for purposes of Younger abstention,
where the focus of the inquiry is the ongoing nature of the state proceedings, as discussed below.
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457 U.S. 423 (1982)). There is little dispute that a disciplinary proceeding under
the Michigan Tenure Act is a civil enforcement proceeding akin to a criminal
proceeding. See e.g., Doe v. University of Kentucky, 860 F.3d 365 (6th Cir. 2017)
(University student disciplinary proceeding found to be “akin to a criminal
prosecution” for purposes of Younger abstention even though it lacked the
formalities of a trial where the plaintiff could submit questions to the hearing
officer and counsel could be present.). The Michigan Tenure Act provides that if a
school board decides to proceed with the charges against a teacher, the teacher may
file a claim of appeal with the tenure commission. An administrative law judge
then conducts a hearing on the appeal at which both the teacher and the board may
be represented by counsel under the Michigan Administrative Procedures Act. The
teacher has the option to make the hearing public or private. Additionally,
testimony will be taken under oath and the administrative law judge must subpoena
witnesses and documentary evidence at the request of the board or the teacher. If a
witness fails to appear, the party requesting the witness can petition the state circuit
court for an order requiring compliance, and a witness’s failure to obey such an
order is punishable by the court as contempt. After hearing the evidence presented,
the ALJ then issues a preliminary decision, to which either side may file
exceptions. The tenure commission reviews the record and exceptions and may
adopt, modify, or reverse the preliminary decision, and then issues a final decision.

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Finally, a party aggrieved by the final decision of the tenure commission may
appeal to the Michigan Court of Appeals. Mich. Comp. Laws § 38.104. Based on
the foregoing procedures, the proceeding under the Michigan Tenure Act is “akin
to a criminal proceeding” and thus, Younger abstention may be applicable.
“A district court may abstain under the Younger doctrine if three conditions
exist: there are state proceedings that are (1) currently pending; (2) involve an
important state interest; and (3) will provide the federal plaintiff with an adequate
opportunity to raise his or her constitutional claims.” Nimer v. Litchfeld Twp. Bd.
of Tr., 707 F.3d 699, 701 (6th Cir. 2013). “[A]bsent ‘bad faith, harassment or any
other unusual circumstance,’ federal-court abstention is appropriate where a
plaintiff invokes federal jurisdiction as a basis for obtaining injunctive relief
against state-court criminal proceedings.” Squire v. Coughlan, 469 F.3d 551, 555
(6th Cir. 2006) (quoting Younger, 401 U.S. at 53-54).4
Ziel argues that Younger abstention does not apply because there are not
state proceedings currently pending and thus, the first prong is not satisfied. Ziel
also suggests that because no such proceeding is pending, she has not had the
opportunity to raise her constitutional issues before the state administrative tribunal

4

Ziel does not argue that bad faith, harassment, or other unusual circumstances are
applicable here.
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and thus, the third prong is not satisfied. Ziel offers no argument to dispute that
the second prong – the involvement of an important state interest – is satisfied.
More specifically, as to the first prong of Younger, Ziel argues that the
tenure proceeding has not begun because the Board has not yet decided to move
forward with the charges. In other words, Ziel maintains that the issuance of the
charges does not commence the tenure proceeding, though she has provided no
authority supporting this conclusion. For Younger abstention purposes, state law
controls the determination of when the state proceedings began. James v.
Hampton, 513 Fed. Appx. 471, 474 (6th Cir. 2013) (citing O’Neill v. Coughlan,
511 F.3d 638, 643 (6th Cir. 2008)). The court was unable to find any Michigan
cases discussing this precise issue under the Tenure Act. Yet, the charges required
by Mich. Comp. Laws § 38.102 have been issued and, under Michigan law, such
charges are a mandatory part of the process, which suggests that the charges are the
event that commences the tenure act proceeding. For example, in Simon v.
Gibralter School District, 52 Mich. App. 642 (1974), the Michigan Court of
Appeals rejected a claim that the plaintiff was denied due process because the
board did not independently decide to proceed on the charges. Rather, because the
teacher received a copy of the written charges, which were signed by the
superintendent, filed with the secretary, and served on the board, as required by
statute, she was given notice and an opportunity to be heard. This is so because the

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statute does not limit the board’s discretion with respect to the decision to proceed
informally. Id. at 646-647. That the board may act informally in deciding to
proceed on the charges, suggests to this court that the tenure proceeding is
commenced by the more formal and statutorily required filing of the charges.
Indeed, the Michigan Court of Appeals has emphasized the mandatory nature of
the filing of written charges, sustaining the conclusion of the tenure commission
that a teacher was improperly suspended and discharged based on defective
charges, which were not signed by the party asserting the charges and which
contained general and conclusory allegations, insufficient to provide the notice
intended by the statutory provision. Lawson v. Wayne Community School District,
63 Mich. App. 57, 59-60 (1975). The mandatory nature of the charge requirement,
along with the strict compliance necessary to even sustain any action taken on a
charge, stands in stark contrast to the informality that may accompany the board’s
decision to proceed on the charges. This suggests to the court that the
“proceeding” contemplated by the Michigan Tenure Act begins with the filing of
formal charges and not the board’s decision to proceed on such charges.
This conclusion is supported by decisions made in analogous contexts. For
example, in James v. Hampton, the court decided that a proceeding commenced for
purposes of Younger abstention when the Judicial Tenure Commission filed a
formal complaint against the judge, and not when the hearing on the merits of the

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complaint began. Id. at 474-475. Thus, the court found that the state proceeding
was “ongoing” when the federal court complaint was filed, even though the
hearing had not yet commenced, because the charges had been filed. Here, there is
no dispute the charges were filed under the Tenure Act before this lawsuit was
filed. Accordingly, the court concludes that the tenure proceeding was “ongoing”
when Ziel filed her complaint in this court and the first prong of the Younger
abstention doctrine is satisfied.
As to the third prong, the court is not persuaded that because it remains to be
seen whether Ziel will assert her constitutional claims in the administrative
proceeding, she does not have the opportunity to so raise those claims, which is all
that is required by Younger. An opportunity to raise constitutional claims means
that, “[u]nless state law clearly bars the imposition of the constitutional claim,”
abstention is appropriate. James v. Hampton, 513 Fed. Appx. at 475 (quoting
Moore v. Sims, 442 U.S. 415, 425 (1979)). Ziel has not cited any case law or
statutory provision suggesting that she is barred from seeking redress on her
constitutional claims during the tenure proceeding, which is her burden. Id. at 475
(citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987)). “[W]hen a litigant has
not attempted to present his federal claims in related state-court proceedings, a
federal court should assume that state procedures will afford an adequate remedy,
in the absence of unambiguous authority to the contrary.” Pennzoil Co., 481 U.S.

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at 15. “Thus the relevant question is not whether [the plaintiff] raised her claims in
the state proceeding, but whether state law clearly foreclosed her from so doing at
the time she filed this lawsuit.” James v. Hampton, 513 Fed. Appx. at 475. Ziel
has not come forward with any authority suggesting she is prohibited from doing
so and accordingly, the third prong of Younger is satisfied.
As a result, this court concludes that all three prongs of Younger are satisfied
and it will abstain from interfering with Ziel’s pending state administrative
proceeding.
IV.

CONCLUSION
For the reasons set forth above, plaintiff’s motion for injunctive relief is

DENIED and this matter is STAYED,5 pending resolution of plaintiff’s claims in
the state proceedings.
IT IS SO ORDERED.
Date: September 9, 2021

s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States District Judge

5

As explained in James v. Hampton, the court does not have discretion to abstain from
exercising jurisdiction over an action at law pursuant to Younger. That is, dismissal based on
Younger abstention is only appropriate when a plaintiff seeks only injunctive relief. Gray v.
Bush, 628 F.3d 779, 785 (6th Cir. 2010) (“In the context of a complaint seeking ‘both equitable
[relief] and money damages,’ as in this case, ‘a federal court’s discretion to abstain from
exercising jurisdiction does not extend so far as to permit a court to dismiss or remand, as
opposed to stay, an action at law.’”). Here, Ziel’s complaint seeks money damages and
accordingly“[t]he District Court should stay [the] federal lawsuit to protect against the possibility
that [Appellant] could be deprived of the opportunity to present the merits of her damages claims
in state court.” Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075-76 (6th Cir. 1998).
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 9, 2021, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
in the absence of T. Hallwood
[phone]

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