The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY SEBALD, UNPUBLISHED
June 10, 2021
Plaintiff-Appellant,
v No. 353219
Ionia Circuit Court
BELDING AREA SCHOOLS and BELDING AREA LC No. 2019-033850-CL
SCHOOLS BOARD OF EDUCATION,
Defendants-Appellees.
Before: K.F. KELLY, P.J., and SERVITTO and LETICA, JJ.
PER CURIAM.
In this teacher-tenure case, plaintiff, Timothy Sebald, appeals as of right the trial court’s
order granting defendants Belding Area Schools and Belding Area Schools Board of Education’s
motion for summary disposition under MCR 2.116(C)(10) and denying plaintiff’s motion for
summary disposition. We affirm.
Plaintiff was hired by Belding area schools in 1999 and taught various subjects throughout
his tenured employment. Prior to the 2016-2017 school year, Belding schools adopted a teacher
evaluation model, as it was required to do, that differed from the prior model used. During the
2016-2017 school year, plaintiff primarily taught alternative education at Belding High School.
The high school principal, Michael Ostrander, observed plaintiff’s teaching four times throughout
the school year and provided written observations and feedback to plaintiff, indicating areas he
felt plaintiff needed to improve upon. At the conclusion of that school year, plaintiff received an
evaluation of “minimally effective.” Also at the conclusion of the school year, it was determined
that layoffs were necessary due to declining student enrollment and budget constraints. Plaintiff
was one of several teachers laid off by the Belding school district. Plaintiff was kept on a recall
list for two years.
There were no positions available for plaintiff to teach during the 2017-2018 school year
and, when two positions for which plaintiff was qualified to teach opened up for the 2018-2019
school year, plaintiff applied for the positions. He was not hired to fill those positions. Two more
position for which plaintiff was qualified to teach opened for the 2019-2020 school year and the
-1-
Belding school district again hired persons other than plaintiff to fill the positions. Plaintiff
thereafter filed the instant complaint, asserting that defendants’ failure to reinstate him into the
open teaching positions violated the Revised School Code.
Defendants moved for summary disposition under MCR 2.116(C)(10), asserting that
plaintiff’s 2016-2017 evaluation was properly performed under the Revised School Code and that
they were not required to recall plaintiff rather than hiring new teachers. Plaintiff filed a counter-
motion for summary disposition under MCR 2.116(C)(9) and (10) contending that the Revised
School Code provides that he, with a “minimally effective” performance rating, is entitled to
recall/hiring over persons who had no prior performance rating under the revised School Code.
Plaintiff also asserted that defendant’s performance evaluation system did not comply with the
Revised School Code. The trial court agreed with defendants and granted their motion for
summary disposition, while denying plaintiff’s motion for summary disposition. This appeal
followed.
I. Standard of Review
We review de novo a trial court’s ruling on a motion for summary disposition. El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion brought under
MCR 2.116(C)(10), tests the factual sufficiency of a claim. Id. at 160.
When considering such a motion, a trial court must consider all evidence submitted
by the parties in the light most favorable to the party opposing the motion. A motion
under MCR 2.116(C)(10) may only be granted when there is no genuine issue of
material fact. A genuine issue of material fact exists when the record leaves open
an issue upon which reasonable minds might differ. [Id. (internal citations and
quotation marks omitted)]
Matters of statutory interpretation are issues of law that are also reviewed de novo.
Southfield Ed Ass’n v Bd of Ed of the Southfield Pub Sch, 320 Mich App 353, 362; 909 NW2d 1
(2017).
The goal of statutory construction is to discern and give effect to the Legislature’s
intent. Courts begin by examining the plain language of the statute. When the
language is unambiguous, it is presumed that the Legislature intended the meaning
clearly expressed—no further judicial construction is required or permitted, and the
statute must be enforced as written. [ (quotation marks and citations omitted).]
II. Issues on appeal
On appeal, plaintiff contends that defendants violated his statutory rights under the Revised
School Code, specifically MCL 380.1248 and MCL 380.1249. According to defendant,
performance evaluations of teachers must comply with those sections and that defendants’
performance evaluation system and its recall/hiring decisions, as applied to plaintiff, violated the
basic requirements set by statute. We address plaintiff’s arguments with respect to each statutory
provision, beginning with MCL 380.1249.
-2-
A. MCL 380.1249
MCL 380.1249 governs teacher evaluation systems. A school district must evaluate its
teachers “at least annually while providing timely and constructive feedback.” MCL
380.1249(1)(a). MCL 380.1249(2)(d) provides that “[t]he performance evaluation system must
include a midyear progress report for a teacher who is in the first year of the probationary period .
. . , or who received a rating of minimally effective or ineffective in his or her most recent annual
year-end evaluation.” Section 1249(2)(e) provides, in relevant part, that evaluators must review a
teacher’s lessons plans before each observation and that school administrators must provide
feedback to the teacher within 30 days of the observation. And § 1249(2)(f) requires that,
beginning in the 2016-2017 school year, each district must have adopted and implemented a
teacher evaluation system included in a list of approved systems compiled by the Department of
Education. See also MCL 380.1249(5).
Plaintiff argues that his 2016-2017 evaluation did not comply with MCL 380.1249 in four
ways: (1) he was not afforded a vigorous, transparent, and fair evaluation process; (2) he was not
given ample opportunities to improve; (3) Belding high school principal Ostrander did not review
his lesson plans; and (4) he did not receive a midyear progress report. Each argument lacks merit.
First, defendants presented evidence that their evaluation of plaintiff was rigorous,
transparent, and fair. As to rigor, there is no evidence, and plaintiff does not contest, that the
evaluation system defendants used beginning in the 2016-2017 school year was not approved by
the Department of Education or that it was not rigorous. To support their assertion that plaintiff’s
evaluation was transparent and fair, defendants provided evidence that plaintiff and Ostrander were
trained on the evaluation model and that plaintiff had the opportunity to ask questions concerning
the model. Defendants also demonstrated that Ostrander observed plaintiff in his classroom on
four occasions during the 2016-2017 school year. Ostrander completed forms during and after his
observations that detailed specific matters observed, areas of focus, and feedback concerning goals
and areas that need work. The feedback detailed in the first two observation forms included
encouragement by Ostrander for plaintiff to increase interaction and relationship building with
students, engaging the students more, creating a positive atmosphere for success, and
eliminating/reducing distractions. Defendants presented an improvement plan, developed by
plaintiff and Ostrander on March 1, 2017, and signed by both the same day, which specified four
goals that plaintiff was to work toward. The goals centered around teacher-student relationships,
classroom management, and quality assessments. The goals were clearly set forth and provided
plaintiff with the opportunity to respond to specific observations and feedback. The evaluation
system appears to be fair and transparent.
Plaintiff places significant emphasis on his second argument: that defendants did not give
him ample opportunities to improve, in violation of § 1249(1)(d)(i). Specifically, plaintiff
highlights that the improvement plan was signed on March 1 and that Ostrander’s next observation
occurred on March 13, two weeks later. Plaintiff also highlights that he not was advised during
the observation process that he was tracking toward a rating of minimally effective. However,
Ostrander averred and testified that it would have been against the design of the evaluation model
to tell plaintiff which rating he was tracking toward. Ostrander also swore in an affidavit that “the
goals were not new.” He swore that they reflected the targets and directives that he gave plaintiff
in fall 2016. And he swore that plaintiff should have been able to make progress on the goals
-3-
immediately. In fact, he swore that “[t]he goals were designed such that it would not take a
substantial amount of time to demonstrate improvement.” For example, according to Ostrander,
plaintiff could have made immediate changes to his classroom management system to maximize
instructional time. Instead, plaintiff regressed from the goals.
Plaintiff testified in his deposition that he was aware that he was given directives arising
from the first three observations, which also involved classroom management, student-teacher
relationship, and academic integrity issues. In other words, plaintiff had ample opportunities to
improve. The record is clear that plaintiff knew for months what he needed to improve and that
he himself participated in crafting goals for which he could immediately show progress toward.
Plaintiff’s third argument concerning how his 2016-2017 evaluation did not comply with
MCL 380.1249 (that Ostrander failed to review his lesson plans before his observations, as he was
required to do by § 1249(2)(e)(i)) is directly refuted by Ostrander’s deposition testimony that he
reviewed all teachers’ lessons plans on an ongoing basis. Plaintiff points to no evidence to support
his position or contradict Ostrander’s testimony.
Plaintiff’s last challenge concerning his 2016-2017 evaluation’s statutory compliance is
that he received inadequate feedback and should have been provided a midyear progress report
and face-to-face meetings. As to feedback, defendants presented Ostrander’s notes from his four
observations of plaintiff’s classroom during the 2016-2017 school year. Each shows the date that
the report was completed. And each reflects that plaintiff responded, sometimes at length, to
Ostrander’s questions and observations. The reports reflect that Ostrander provided additional,
optional feedback for two of the four evaluations. Plaintiff does not establish that the provided
feedback was insufficient. Moreover, section 1249(2)(e)(v) specifically mandates only that
districts provide teachers with feedback within 30 days of classroom observations. Plaintiff does
not argue that defendants failed to do this, and the record is clear that they did.
Concerning a midyear progress report, MCL 380.1249(2)(d) mandates that districts must
provide a midyear progress report only for a teacher in their first year and for teachers “who
received a rating of minimally effective or ineffective in his or her most recent annual year-end
evaluation.” As plaintiff highlights and the evidence demonstrates, plaintiff did not have a
minimally effective or ineffective rating in his most recent annual year-end evaluation. In 2015-
2016, he was rated as “effective.” There was thus no requirement for a midyear progress report.
Lastly, plaintiff has provided no authority suggesting that face-to-face meetings are
statutorily required. In MCL 380.1249(5), the Legislature specifically delegated the promulgation
of a list of approved evaluation models to the Department of Education. MCL 380.1249(5).
Section 1249(2) specifies several specific requirements for teacher performance evaluation
systems, but it says nothing about face-to-face meetings. The Legislature appears to have
delegated many details of what constitutes a proper evaluation system to the Department of
Education and local school districts.
B. MCL 380.1248
MCL 380.1248 governs personnel decisions involving the elimination of teacher positions,
the recall of teachers, and the hiring of teachers after a staffing reduction. It mandates that, in
-4-
making these decisions, a school district cannot make length of service the primary or determining
factor. MCL 380.1248(1)(a). Section 1248(1)(b) requires districts to implement a policy for such
decisions that makes individual teacher performance the majority factor. It provides that teachers
rated “ineffective” under the performance evaluation system created under § 1249 must not be
given preference over teachers rated minimally effective, effective, or highly effective under that
system. MCL 380.1248(1)(b). The same subsection provides a list of additional factors that shall
be included in a teacher’s individual performance:
(i) Individual performance shall be the majority factor in making the
decision, and shall consist of but is not limited to all of the following:
(A) Evidence of student growth, which shall be the predominant factor in
assessing an employee’s individual performance.
(B) The teacher’s demonstrated pedagogical skills, including at least a
special determination concerning the teacher’s knowledge of his or her subject area
and the ability to impart that knowledge through planning, delivering rigorous
content, checking for and building higher-level understanding, differentiating, and
managing a classroom; and consistent preparation to maximize instructional time.
(C) The teacher’s management of the classroom, manner and efficacy of
disciplining pupils, rapport with parents and other teachers, and ability to withstand
the strain of teaching.
(D) The teacher’s attendance and disciplinary record, if any.
(ii) Significant, relevant accomplishments and contributions. This factor
shall be based on whether the individual contributes to the overall performance of
the school by making clear, significant, relevant contributions above the normal
expectations for an individual in his or her peer group and having demonstrated a
record of exceptional performance.
(iii) Relevant special training. This factor shall be based on completion of
relevant training other than the professional development or continuing education
that is required by the employer or by state law, and integration of that training into
instruction in a meaningful way. [MCL 380.1248(1)(b).]
Section 1248(3) provides that:
If a teacher brings an action against a school district or intermediate school
district based on this section, the teacher’s sole and exclusive remedy shall be an
order of reinstatement commencing 30 days after a decision by a court of competent
jurisdiction. The remedy in an action brought by a teacher based on this section
shall not include lost wages, lost benefits, or any other economic damages.
Plaintiff does not, on appeal, advance any argument in regard to his discipline record, his
contributions, or any of the other enumerated factors in § 1248(1)(b). Instead, plaintiff’s argument
under this section rests on this Court’s decision in Southfield, 320 Mich App at 353. In Southfield,
-5-
320 Mich App at 357, the defendants had employed the plaintiff teacher for 19 years as a tenured
technology teacher. The plaintiff (Smith) was certified to teach technology. Id. She taught an
online remedial education course in a high school alternative education program.1 Id. After Smith
was rated highly effective for two years, at the end of the 2013-2014 school year, the defendants
eliminated her position. Id. The following school year, the defendants posted a part-time middle
school technology teaching position. Smith had held that position during the 2010-2011 school
year. Id. “However, her ‘effectiveness’ was not evaluated under the performance review system
implemented before the 2012-2013 school year.” Id. at 357-358. Although Smith applied for the
new position, the defendants hired an external candidate. Id. at 358. Smith sued, alleging that the
defendants violated § 1248. Id.
This Court held that the defendants did not violate § 1248 when they hired an external
candidate instead of recalling Smith. Id. at 369. Smith “simply could not claim an effectiveness
rating related to the available position, and the school district was therefore not required to consider
whether she would be relatively more or less effective than any other candidate for the position.”
Id. This Court explained:
Nothing in the language of § 1248 suggests that a teacher’s effectiveness evaluation
for teaching one subject requires that teacher’s recall or rehire to teach a different
subject. Indeed, several of the factors on which personnel decisions “shall be
based” are position specific. Further, to interpret § 1248 as requiring a school
district to recall or rehire a teacher to a specific position for which she may be
qualified but has not been proven effective is contrary to the purpose of the 2011
legislative amendments. Again, as we explained in Baumgartner[ v Perry Pub
Sch], 309 Mich App [507,] 526[; 872 NW2d 837 (2015)], the RSC “emphasizes
that local authorities—not state officials—are primarily responsible for the
governance of school districts.” The Legislature has left school districts with the
authority to ensure that each available position is matched with the most effective
teacher for that particular position. It is not for this Court to place limits on the
school district’s authority that the Legislature has not. [Id. at 368.]
This Court continued:
Plaintiffs presented documentary evidence that Smith was certified and
qualified for the Birney position.[2] However, while plaintiffs claim that Smith
received an effectiveness rating of “highly effective” on her 2012-2013 and 2013-
2014 performance evaluations, plaintiffs have offered no evidence to rebut
defendants’ assertion that Smith’s effectiveness rating was received while teaching
a class substantially different from the class to be taught in the Birney position.
Smith was rated “highly effective” during two school years in which she taught
PLATO, an online remediation course requiring individualized, interactive
1
It appears that the plaintiff taught alternative education classes very similar to plaintiff in this
case, using a different online instructional system. See Southfield, 320 Mich App at 357.
2
The middle school technology position.
-6-
instruction at an alternative high school for credit-deficient students and students at
high risk of dropping out. The PLATO position was eliminated, and Smith sought
a part-time teaching position at Birney Middle School. Smith was indisputably
qualified for the Birney position, having taught the same class during the 2010-
2011 school year. However, she did not receive an effectiveness evaluation
pursuant to § 1249 for that school year. The Birney position is at a middle school,
while the PLATO position required working with high school students. And unlike
the PLATO position, the Birney position involved whole classroom instruction,
rather than individualized instruction, on various subjects within the field of
technology. Smith’s effectiveness in that position was therefore a matter of
speculation. Plaintiffs cannot show that Smith had obtained an effectiveness rating
triggering the school district’s obligation under § 1248 to engage in a comparison.
Summary disposition in favor of defendants was therefore appropriate. [Id. at 368-
369.]
Notably, the Southfield plaintiff and plaintiff here brought forth very similar teaching
histories, each teaching classes that involved an online, student-specific curriculum that involved
little direct or whole class instruction. And both sought positions that were instructor-driven.
While plaintiff taught one Social Studies class in the 2016-2017 school year and Ostrander’s fourth
observation of plaintiff occurred in this class, plaintiff primarily taught alternative education
classes during the 2016-2017 school year.
In addition, both the Southfield plaintiff (Smith) and plaintiff here did not have an
effectiveness rating under a model compliant with § 1249 in the subject that they sought to be
recalled to. Thus, plaintiff’s evaluations from school years before 2016-2017 are only minimally
relevant because they were conducted under a different model that was not compliant with § 1249.
Also of note, although Smith presented evidence that she was previously rated highly effective;
plaintiff presented evidence that he was previously rated effective. There is no indication that
Smith was ever rated minimally effective, as plaintiff was, under a compliant evaluation model,
yet the Court still found no violation of § 1248 in Southfield.
Plaintiff is correct that § 1248(1)(b) provides that, as to a staffing decision, an ineffective
teacher shall not be given preference over a minimally effective, effective, or highly effective
teacher. See MCL 380.1248(1)(b). Plaintiff also submitted evidence that he was rated “effective”
in the years before to 2016-2017. However, as this Court discussed in Southfield, 320 Mich App
at 368-369, the Legislature’s intent in regard to § 1248 (and § 1249) was to grant local school
districts wide latitude in making certain personnel decisions, like recalling teachers.
Section 1248(1)(b) provides that effectiveness shall be measured by the performance
evaluation system under § 1249. It also expressly mandates that ineffective teachers shall not be
given preference over more effective teachers, but leaves additional details up to the individual
school district. There is no stated requirement that minimally effective teachers shall be given
preference over previously unevaluated teachers. Notably, however, there is a requirement that
districts implement a staffing policy ensuring that personnel decisions “are based on retaining
effective teachers.” MCL 380.1248(1)(b) (emphasis added). Reading these two sentences of §
1248(1)(b) together, it appears that the Legislature mandated that local districts implement specific
staffing polices on some topics, including the fate of “ineffective” teachers. But at the same time,
-7-
it intended for the remainder of the details of staffing policies to be left to local officials. In other
words, there is a gray area in the statute. And plaintiff does not present an argument as to why this
Court should seek to fill in the blanks that the Legislature appears to have intentionally left to be
filled in by local officials. Accordingly, plaintiff is not entitled to reinstatement under § 1248(3).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
/s/ Anica Letica
-8-