Opinion
CASE No. 1:21-cv-831
2023-03-20
Erin KOSCH, Plaintiff, v. TRAVERSE CITY AREA PUBLIC SCHOOLS, et al., Defendants.
Mandel I. Allweil, Hurlburt Tsiros & Allweil PC, Saginaw, MI, for Plaintiff. Jacob G. Lyday, Gregory W. Mair, O'Neill Wallace & Doyle PC, Saginaw, MI, for Defendants.
Mandel I. Allweil, Hurlburt Tsiros & Allweil PC, Saginaw, MI, for Plaintiff. Jacob G. Lyday, Gregory W. Mair, O'Neill Wallace & Doyle PC, Saginaw, MI, for Defendants. OPINION AND ORDER ROBERT J. JONKER, UNITED STATES DISTRICT JUDGE
INTRODUCTION
In the fall of 2020 Traverse City Area Public Schools ("TCAPS"), like many schools in Michigan, shuttered their classrooms due to the COVID-19 pandemic. Teachers at TCAPS taught their classes remotely using online classrooms. One of those teachers was Erin Kosch.
One day, Ms. Kosch had a conversation with her husband about one of her students. She vented her frustrations and described a conversation she had with her school's vice principal about the student. Unbeknownst to her at the time, Ms. Kosch had logged on to her online classroom with a live microphone, and her conversation was recorded by a student who entered the online classroom before the start of class. The recorded video was widely distributed in the school and within the community. Following a suspension with pay and a meeting with TCAPS' Human Resources Director, Ms. Kosch decided to resign. She sent an email reporting her decision and confirmed it with a follow up letter.
Ms. Kosch came to regret her decision to resign. She brought this lawsuit alleging that TCAPS, and its Human Resources Director Cindy Berck, violated her 14th Amendment Procedural Due Process rights through a constructive discharge. In hindsight it may not have made much sense for Ms. Kosch to resign her position, considering the contractual and statutory tenure protections she enjoyed. But if Ms. Kosch panicked in making her decision, it was not because of anything the defendants did or failed to do. She made the decision and announced it from the privacy of her own home. Nothing defendants did or failed to do prevented her from consulting with anyone and everyone she wished before making and announcing the decision. The defense is entitled to summary judgment dismissing this case.
FACTUAL BACKGROUND
Erin Kosch began working for TCAPS in September 2002. (Kosch Dep. 10, ECF No. 28-2, PageID.615). She had previous experience, and at the time of her separation in October 2020, she was somewhere around two or three years shy from having thirty years of service. The record is not precisely clear as to what grade or grades Ms. Kosch taught, but it appears she taught history classes to students of high school age. In 2020, under the law in Michigan at the time, Ms. Kosch was not a dues-paying member of the teacher's union, but she enjoyed the protection of a collective bargaining agreement and Michigan state tenure law. (Kosch Dep. at 54, ECF No. 28-2, PageID.626).
The thirty-year mark is the point where Ms. Kosch's potential pension payout was maximized.
1. The Simmering Dispute Between Teachers
The events of this lawsuit took place in October and November of 2020, but as Ms. Kosch frames it, the real story starts several years earlier. Ms. Kosch contends that she had a long-running dispute with another teacher at TCAPS named Joyce Battle. Ms. Battle had school-age children in TCAPS. For fifteen years Ms. Battle harassed the teachers and administrators who taught her children. (Kosch Dep. 32-33, ECF No. 28-2, PageID.620). In their depositions, TCAPS' Principal, Jessie Houghton, and Vice Principal, Ben Berger, agreed that Ms. Battle and her husband were "difficult parents." (Houghton Dep. 43, ECF No. 28-2, PageID.654); (Berger Dep. 11, ECF No. 28-2, PageID.666). During the events at issue in this case one of Ms. Battle's children, M.B., was a student in Ms. Kosch's classroom.
2. M.B. Makes Inappropriate Remarks in Ms. Kosch's Online Classroom
In the fall of 2020, TCAPS engaged in virtual learning due to the COVID-19 pandemic. For at least some classes, Ms. Kosch taught from her home and students would log in for synchronous learning. At some point before October 22, 2020, Ms. Kosch observed M.B. make inappropriate, homophobic remarks in the chat bar of one of the online classrooms. It is unclear what, if anything, Ms. Kosch did to address the behavior, but there does not appear to have been any formal discipline imposed, or a permanent record in M.B.'s file about the incident.
There is some suggestion within the defense exhibits that M.B. was trying to stop the inappropriate behavior, rather than instigating it. For purposes of deciding this motion, the Court accepts Ms. Kosch's version of the facts.
Ms. Kosch later spoke with the assistant principal, Ben Berger, about M.B.'s behavior.
3. Ms. Kosch's Conversation with her Husband about M.B. is Recorded and Distributed
On October 22, 2020, one of Ms. Kosch's students, L.H., signed on early to her online 6th hour history class. L.H. testified she saw Ms. Kosch on the screen and said "hello," but she received no response, and L.H. muted herself. (L.H. Dep. 15, ECF No. 28-3, PageID.778). L.H. then heard Ms. Kosch make a remark concerning "little assholes," which led her to take out her phone and record Ms. Kosch. (L.H. Dep. 13, ECF No. 28-3, PageID.777). What followed was a conversation between Ms. Kosch and her husband at their home that was broadcast over the open online classroom meeting.
The video of the incident is included in the record. A transcript is also provided in Ms. Kosch's brief. (ECF No. 28-1, PageID.572). The recorded conversation reflects Ms. Kosch's recounting to her husband of the discussion she had with Ben Berger. Ms. Kosch told her husband that in describing the earlier incident, she told Ben Berger, "just so you know, one of the culprits is M.B." (ECF No. 28-2, PageID.618). Ms. Kosch and Mr. Berger then proceeded to reference the historical issues with Ms. Battle, and Mr. Berger commented "good luck with that one" and Ms. Kosch replied "trust me I know." Ms. Kosch also commented that someone should "shut her [that is Ms. Battle] shit down." Ms. Kosch's husband agreed, and Ms. Kosch proceeded to refer to Ms. Battle's "fucking little kid" that is, M.B.
On the recording, the full name of the student is used. For purposes of deciding this motion, the Court uses the initials of the minor students.
At that point Ms. Kosch realized that she was broadcasting the conversation, and the video ended.
4. TCAPS Becomes Aware of the Recorded Conversation and Suspends Ms. Kosch With Pay
The recorded video found its way to M.B. and to M.B.'s parents. An edited version of the video also circulated widely within the TCAPS' community. Ms. Battle sent the video to Principal Houghton to complain. Principal Houghton responded that she would look into it. (Joyce Battle Dep. 36-37, ECF No. 24-5, PageID.183). Ms. Battle's husband, John, also complained to Shaina Biller, TCAPS' Associate Superintendent, via email, about the video. (ECF No. 24-7).
The parties vigorously dispute who is responsible for publishing the video to the wider community. TCAPS says that L.H. sent the video to M.B. and others, and says L.H. does not know who sent the video around after that. Ms. Kosch says it's clear from L.H.'s testimony and other exhibits that M.B. is solely responsible for publishing the video. L.H. testified, for example, that M.B. cropped L.H.'s face out of the video that was distributed. Whether it was L.H. or M.B. or some combined effort, there is no suggestion the defendants had anything to do with it.
On Monday, October 26, 2020, Principal Houghton informed TCAPS' H.R. Director, Defendant Cindy Berck, about the complaint and video. (Berck Dep. 33, ECF No. 24-8, PageID.260). Ms. Berck said the complaint alleged serious misconduct that needed to be investigated. (Berck Dep. 33-34, ECF No. 24-8, PageID.260-261). She told Principal Houghton to suspend Ms. Kosch. (Id.). Principal Houghton then called Ms. Kosch to inform her of the suspension based on the direction she received both from Ms. Berck and Ms. Biller. (Houghton Dep. 51, ECF No. 28-2, PageID.656). Ms. Berck also sent a written memo to Ms. Kosch on October 26, 2020, stating that Ms. Kosch was "suspended with pay" pending the outcome of an investigation into the allegations. (ECF No. 28-3, PageID.803). Ms. Berck wrote that she would contact Ms. Kosch on October 27, 2020, to arrange a meeting time to discuss things; in the meantime, Ms. Kosch was not to contact any TCAPs' staff, students, or parents.
5. October 27, 2020, Meeting
Ms. Berck arranged a pre-deprivation meeting for October 27, 2020. She told Ms. Kosch that it was a "due process meeting" in response to a complaint TCAPS had received and that the investigation could result in disciplinary action. (Berck Dep. 34, ECF No. 24-8, PageID.262; Kosch Dep. 57, ECF No. 28-2, PageID.626). Ms. Kosch was also told she could have a union representative attend the meeting. (Id.).
Ms. Kosch was not opposed to having a union representative at the meeting, but she did not think the representative would stand for her interests since she was not a dues-paying member of the union. Ms. Kosch wanted a lawyer at the meeting as well. (Kosch Dep. 85, ECF No. 28-2, PageID.633). Ms. Berck denied the request for a lawyer at the meeting, though nothing Ms. Berck said or did prevented Ms. Kosch from consulting with counsel of her choice before or after the meeting. Ms. Berck called the union representative, Ms. McBride, to represent Kosch at the meeting. (McBride Dep. 37, ECF No. 28-4, PageID.826).
During the October 27th meeting, Ms. Berck told Ms. Kosch that she was being investigated for potential violations of FERPA and TCAPS' policies. Ms. Berck kept notes of the meeting. (ECF No. 28-4, PageID.857-860). The notes reflect that at least two options for moving forward were discussed: 1) resignation, with insurance continuing through the end of January; and 2) a recommendation that tenure charges be filed with the Board of Education for violating FERPA and TCAPS policies. If the latter route were pursued, the notes indicate that the board's vote would be public, and so Ms. Kosch's name would be made public.
Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
Ms. Kosch says that she understood from these options that she could either resign in good standing, with the possibility of getting other work that would let her complete her thirty years of service; or she could take her case to the school board and carry the risk that she would be fired and placed in a position where no one would hire her. There was no real choice to be made, she says. In her mind, she only had one option if she wanted to maximize her pension: resign. Even though this was the conclusion she drew, she does not allege that anyone from TCAPS said this to her directly, or that she told anyone from TCAPS this was her conclusion at the end of the meeting.
6. Resignation
After the meeting, but still on the day of the meeting, Ms. Kosch received an email from an out of district student about the video. She realized that the video had gone viral. (Kosch Dep. 71-72, ECF No. 28-2, PageID.630). That evening, Ms. Kosch emailed Ms. Berck to tender her resignation. (ECF No. 24-18, PageID.483). She followed up with a formal notice, a copy of which appears at ECF No. 24-19.
Ms. Kosch testified that as she processed her decision to resign over the following months, she grew to regret her decision. But she felt that TCAPS gave her no other option but to resign. She felt that of the options she had, resigning best protected her pension. (Kosch Dep. 64, ECF No. 28-2, PageID.628). She ultimately filed this lawsuit.
PROCEDURAL HISTORY
Ms. Kosch, through counsel, filed a three-count lawsuit in State Court on July 12, 2021, against TCAPS and Ms. Berck. (ECF No. 1-1, PageID.8). Counts I and II raised state law claims for breach of contract and intentional infliction of emotional distress. Count III raised a claim of a procedural due process violation under both federal and state law. Defendants removed the action to this Court on September 24, 2021. (ECF No. 1).
At the Rule 16 scheduling conference, the Court declined to exercise supplemental jurisdiction and dismissed Counts I and II and the state law portion of Count III. (ECF No. 7). Following discovery, the defense filed the instant motion for summary judgment on December 6, 2022. (ECF No. 24). The matter has been fully briefed, and the Court heard argument on the motion March 2, 2023. The matter is ready for decision.
LEGAL STANDARDS
Summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the Court views the evidence and draws all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
DISCUSSION
The Fourteenth Amendment prohibits state actors from depriving an individual of life, liberty, or property due process of law. U.S. CONST. amend. XIV, § 1. "[T]o establish a procedural due process claim, a plaintiff must show that (1) [s]he had a life, liberty, or property interest protected by the Due Process Clause; (2) [s]he was deprived of this protected interest; and (3) the state did not afford h[er] adequate procedural rights prior to depriving h[er] of the property interest." Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). Ms. Kosch has met the first element, but there is no genuine issue of material fact but that she has not established the second or third elements. Accordingly, the defense is entitled to summary judgment on this claim.
I. Elements of a Due Process Claim
A. Property Interest
"[I]n a § 1983 due process claim for deprivation of a property interest, a plaintiff must first show a protected property interest. Only after meeting this requirement can the plaintiff prevail by showing that such interest was abridged without due process." Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir. 1997) (internal quotation marks and citation omitted). The defense brief concedes Ms. Kosch can meet this first element based on the "continued tenure" interest provided under Michigan Teacher's Tenure Act (MTTA) MICH. COMP. LAWS § 38.71. Accordingly, Ms. Kosch has met this element of a procedural due process claim.
B. Deprivation
1. Ms. Kosch Was Not Deprived of a Property Interest under the MTTA
Ms. Kosch's claim, however, fails at the second step. Ms. Kosch was not deprived of any property interest under the formalities of the MTTA. She was not demoted because her suspension pending investigation was with pay. See MICH. COMP. LAWS § 38.74 (defining "demote" in the MTTA as "suspend[ing] without pay for 15 or more consecutive days;" a reduction in pay for a school year equivalent to loss of 30 days' compensation; or transfer to a position carrying lower salary."). Nor was she formally discharged under the framework of the MTTA. Dismissal is governed by the MTTA under MICH. COMP. LAWS § 38.101 et seq. Section 101 provides that "discharge or demotion of a teacher may be made only for a reason that is not arbitrary or capricious and only as provided in this act." The process involves, as a minimum, written charges, a hearing before the board and an ultimate decision by the State Tenure Commission. In this case, things never got to the disciplinary stage because Ms. Kosch resigned after the pre-deprivation investigatory meeting. Thus, Ms. Kosch was not demoted, dismissed, discharged or otherwise deprived of any protected interest under the MTTA.
2. Constructive Discharge
Ms. Kosch does not really dispute this, but contends instead that her resignation was involuntary and constitutes a constructive discharge. "A constructive discharge may constitute a deprivation of property within the meaning of the Fourteenth Amendment." Nunn v. Lynch, 113 F. App'x 55, 59 (6th Cir. 2004) (collecting cases). "There are two circumstances in which an employee's resignation will be deemed involuntary for due process purposes: 1) when the employer forces the resignation or retirement by coercion or duress, or 2) when the employer obtains the resignation or retirement by deceiving or misrepresenting a material fact to the employee." Nunn, 113 F. App'x at 60 (citing Leheny v. City of Pittsburgh, 183 F.3d 220, 228 (3d Cir. 1999)). The Sixth Circuit Court of Appeals has also laid out several nonexclusive factors to assess whether there has been a constructive discharge:
A Fourteenth Amendment due process claim is, of course, governed by federal law. But the protected interest at issue is often defined and limited by state law. So it is relevant to consider whether Michigan even recognizes constructive discharge as a viable theory in the teacher tenure context. It appears to do so. C.f. LeGalley v. Bronson Community Schools, 127 Mich. App. 482, 339 N.W.2d 223 (1983) (affirming state circuit court's conclusion that the plaintiff who sued for deprivation of procedural rights under the MTTA failed to demonstrate he was constructively discharged).
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status.Logan v. Denny's, Inc., 259 F.3d 558, 569 (6th Cir. 2001) (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)). Ms. Kosch has not raised a triable issue of constructive discharge.
Michigan law includes similar concepts in defining what amounts to constructive discharge. Constructive discharge occurs only where an employer "deliberately makes an employee's working conditions so intolerable that the employee is forced into involuntary resignation." Vagts v. Perry Drug Stores, Inc., 204 Mich. App. 481, 487, 516 N.W.2d 102 (1994). To maintain a claim for constructive discharge, the employee's reactions to the employer's conduct must be objectively reasonable. See Champion v. Nationwide Security, Inc., 450 Mich. 702, 710, 545 N.W.2d 596 (1996).
Ms. Kosch cites five factors to support her constructive discharge claim, none of which are on the Sixth Circuit's Logan list: (1) Ms. Berck's denial of the request for legal counsel to attend the meeting; (2) Ms. Berck's statement at the meeting that resigning was the best way for Ms. Kosch to maximize her pension; (3) that there was no basis in fact for the charge that she had violated FERPA and TCAPS' policy; (4) her suspension was based on a recording that was made in violation of Michigan State law and thus constituted a felony; and (5) she had union representation that was not there to represent her interests and was conflicted in any event. Even accepting all these factors at face value, they would be insufficient to create a triable issue of whether Ms. Kosch voluntarily resigned, or whether defendants forced her into it. Moreover, at least some of the factors—notably the claim that L.H. committed a felony by taping the conversation—are debatable at best.
Ms. Kosch's lead claim is that Ms. Berck misrepresented TCAPS' policy with respect to attorney representation at pre-deprivation hearings and instead provided Ms. Kosch with only a union representative. But even accepting this at face value, it does not transform Ms. Kosch's resignation into a forced decision. To the contrary, Ms. Kosch made no decision—whether to resign or otherwise—during the TCAPS meeting. She did not do that until she returned home and decided to send an email resignation that night. Nothing prevented her from consulting with anyone she wished—counsel or otherwise—before making that decision. So, any policy TCAPS had or did not have about the presence of counsel is largely beside the point when it comes to assessing whether Ms. Kosch made a voluntary decision she later came to regret, or whether defendants forced her into it.
There is good reason to doubt the claim that TCAPS violated any policy in deciding to conduct the pre-deprivation meeting without legal counsel present, or with only union representation present. Ms. Berck testified that TCAPS has a specific policy that calls for opportunities to have union representatives present. (Berck Dep. 35, ECF No. 24-8, PageID.263). Ms. Berck further testified there wasn't a written policy one way or the other with respect to an attorney at these preliminary meetings. (Id.). She stated it was past practice not to have an attorney at the preliminary meetings, but admitted it wasn't written down anywhere. (Id.). However, Ms. Kosch cites to the testimony of a fellow teacher, the union representative, and the Assistant Superintendent to argue that the policy (if there was one) was not consistently enforced. (See Markey Dep. 15, 17, ECF No. 28-5, PageID.889-890; McBride Dep. 29, 36, ECF No. 28-4, PageID.824, 826; Biller Dep. 23, ECF No. 28-3, PageID.701-702). Indeed, Superintendent Biller testified that all staff members are permitted representation during these proceedings. (Biller Dep. 26, ECF No. 28-3, PageID.702). When asked to clarify whether this was union representation, Biller responded "any representation." (Biller Dep. 54, ECF No. 28-3, PageID.709). Even putting the best spin on this evidence for Ms. Kosch, it does not transform the decision she made from the privacy of her own home well after the meeting and after the opportunity to consult with anyone she chose into one forced on her by defendants.
Ms. Kosch adds that in her case the union representative was particularly inadequate because Ms. Kosch is not a dues-paying member of the union, and Ms. Battles is, creating an impossible conflict for the union representative. Once again, even accepting Ms. Kosch's spin at face value, it cannot create a triable issue of constructive discharge. There is no evidence that the union representative gave Ms. Kosch incorrect information or otherwise deceived or misrepresented a material fact. Ms. Kosch does not claim that Ms. McBride (or anyone else) coerced or forced her resignation. And as already noted, Ms. Kosch did not resign at the meeting, and could have met with a lawyer before tendering her decision to resign or before the Board of Education met to accept the resignation. The Court does not see a triable issue of constructive discharge here even assuming the strongest inferences in favor of Ms. Kosch.
The evidence supporting the conflict claim is weak at best. It appears that at some point Ms. Battle—who was a dues-paying member—contacted Ms. McBride. Ms. McBride could not recall if it was before or after the meeting with Ms. Kosch. (McBride Dep. 57, ECF No. 28-4, PageID.831). In any event, Ms. McBride did not advise Ms. Kosch that Ms. Battle had reached out to her. (Id.). Ms. McBride did not believe there was a conflict, given the short time that she had been working with Ms. Kosch. (McBride Dep. 58, ECF No. 28-4, PageID.832). The day after the October 27th due process meeting, Ms. McBride sent a message to Ms. Berck alerting her that she would be filing a grievance for a hostile work environment on behalf of Ms. Battle. (ECF No. 28-4, PageID.852). At best this shows a union representative representing Ms. Kosch on one day, and then representing Ms. Battles the following day—after Ms. Kosch decided to resign. Union representatives are not lawyers or bound by the same conflict rules as lawyers. And ultimately it is clear on this record that Ms. Kosch didn't trust the union representative anyway.
Ms. Kosch's other arguments in support of constructive discharge are also unavailing. At some points in the briefing, Ms. Kosch seems to suggest that Ms. Berck misrepresented what might happen to Ms. Kosch's pension if she proceeded with a disciplinary hearing and was terminated. According to the plaintiff's brief, Ms. Berck allegedly told Ms. Kosch she might lose the entirety of her pension. But there is no evidentiary basis for this argument in the record. To the contrary, in her deposition Ms. Kosch testified that she understood that her pension to that point was vested and not in jeopardy. The conversation that they had was about how to maximize her pension--that is, accumulate 30 years of service--and how the two options (resignation or possible termination) might bear on her ability to maximize her pension. (Kosch Dep. 64-65, ECF No. 28-2, PageID.628). Thus, there was no misrepresentation here based on the evidentiary record, and no way this helps her claim of constructive discharge.
Ms. Kosch also suggests that the fact of the video recording itself amounts to constructive discharge because the original recording by L.H., later disseminated by others, amounts to felonious conduct. This is unconvincing as a matter of fact and law. As a matter of fact, there is no evidence that the defendants were instrumental in either the original recording or its later dissemination. Once apprised of its existence, the school reasonably needed to investigate regardless of how it was originally made. And as a matter of law, there is nothing so well-established about whether taping a "hot mic" moment where both the original taper (L.H.) and the speaker were lawfully present in the same virtual environment violates the Michigan eavesdropping statute that the Court is prepared to characterize the conduct as felonious. There is no allegation that the school or any one of its administrators was responsible for making or disseminating the video. After receiving the complaint from Mr. and Ms. Battle, it was eminently reasonable for TCAPS to investigate the allegations. Nothing about this amounts to coercion, duress, or any other indica of constructive discharge.
Ms. Kosch argues that the school should have known the tape was made in violation of the Michigan law on eavesdropping. Counsel said at oral argument this is no different than a person secreting himself in the bushes outside the home and then taping a private conversation inside. That is not even close to the situation here. Ms. Kosch opened a virtual connection between her home and the electronic classroom. A student arrived in the electronic classroom early, just as students sometimes arrived in a physical classroom before the start of class. Ms. Kosch may not have realized the student was there, or that her mic was hot, but she knew a class would begin shortly; that she was the teacher; and that students would be "arriving" virtually. No one likes getting caught on a hot mic they think is muted. But that's far different than someone surreptitiously waiting in the hedge with a video camera.
Finally, Ms. Kosch says there was no factual basis to determine that she had violated FERPA or TCAPS policy. But there was no determination at that point by anyone that she had. It was simply a complaint under investigation. Ms. Kosch preempted that process by choosing to resign. There's no indication the union representative, the defendants or anyone associated with TCAPS placed any pressure on her to resign. And Ms. Kosch herself testified that Ms. Berck did not advocate for either option that was presented to her at the October 27th meeting either. (Kosch Dep. 61, ECF No. 28-2, PageID.627). Ms. Kosch did not even come to regret her decision to resign until a few months after the fact. (Kosch Dep. 63-64, ECF No. 28-2, PageID.628).
In sum, there is no issue for trial on constructive discharge. And without demonstrating a constructive discharge, Ms. Kosch has not demonstrated the deprivation of a property right in violation of the Fourteenth Amendment Due Process Clause.
C. Adequate Process
Even if Ms. Kosch could demonstrate constructive discharge, she must also show that the deprivation was accomplished without the process that was due under the law. She has not done so here.
Due process is a flexible principle whose requirements depend on the facts of the individual case. See Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991). When a plaintiff has a protected property interest, a pre-deprivation hearing of some sort is generally required to satisfy the dictates of due process. See Leary v. Daeschner, 228 F.3d 729, 742 (6th Cir. 2000) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). "The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement." Loudermill, 470 U.S. at 546, 105 S.Ct. 1487.
There is no question of material fact but that Ms. Kosch was provided the essential elements of due process by being given a pre-deprivation hearing. She was given notice of the hearing from the principal. And Ms. Kosch was given an opportunity to respond during the meeting. She was suspended with her full pay. Ms. Kosch's main issue is that she was not given written notice of the charge, and that she was not allowed to bring counsel to the meeting. It appears that Ms. Kosch confuses the initial investigatory steps as set out in TCAPS' policy (which provides that oral notice is enough) (See TCAPS Policy Manual § 3139 A, ECF No. 28-4, PageID.877) with the requirements of the MTTA. The MTTA was not implicated because things had not progressed to that point at the time that Ms. Kosch resigned. "[W]hen deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply 'impracticable' since the state cannot know when such deprivations will occur." Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). And with respect to Ms. Kosch's contention that she was not allowed an attorney, she simply has not pointed to anything by which the Court can conclude that this was required for due process at that early stage. In the circumstances of this particular case, the pre-deprivation hearing ultimately provided by TCAPS was sufficient to satisfy the dictates of due process.
Ms. Kosch, furthermore, has not demonstrated that she was ever denied the procedural protections in place for post-deprivation hearings. As the defense points out, and Ms. Kosch does not dispute, she could have, but did not, seek to rescind her resignation from the Board of Education before her resignation was accepted. This would also indicate that Kosch was afforded adequate process. See Leary v. Daeschner, 228 F.3d 729, 743 (6th Cir. 2000).
For all these reasons, Ms. Kosch cannot meet the second or third elements of a procedural due process claim, and accordingly the defense is entitled to summary judgment in its favor.
II. Exhaustion
Considering the Court's conclusion on the merits, it is not essential to reach the alternative defense argument that the case should be dismissed for lack of exhaustion. The Court does, however, find this to be an independent basis for granting the defense motion. "[T]o state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate." Fralin v. County of Bucks, 296 F. Supp. 2d 609, 614 (E.D. Pa. 2003) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)); see also Roman v. United States Postal Service, 821 F.2d 382 (7th Cir. 1987) (postal worker asserting procedural due process claim based on constructive discharge required to exhaust contractual remedies). "If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants." Fralin, 296 F. Supp. 2d at 614.
Ms. Kosch does not dispute that she was covered by the CBA, including its grievance process. And courts to have examined similar arguments from non-dues paying union members have looked to the CBAs to determine whether an individual--even a non-dues paying member--is covered by the agreement, including the grievance procedures. See, e.g., Saunders v. Amoco Pipeline Co., 927 F.2d 1154 (10th Cir. 1991) (plaintiff argued that because he was not a member of the union, the CBA did not apply to him. The Tenth Circuit concluded that "[u]nion membership . . . is irrelevant to the applicability of a collective bargaining agreement. Rather, an individual employed in a craft governed by a collective bargaining agreement is bound by the terms of the agreement regardless of union membership."). Instead, Ms. Kosch claims that she should be excused from exhausting because, as a non-dues paying member of the union, the union was hostile to her. Exhaustion, she says, would have been futile. Ms. Kosch likens her case to that of Ricciotti v. Warwick Sch. Comm., 319 F. Supp. 1006, 1008 (D.R.I. 1970), in which the plaintiff, a non-union member, with a contract for a position as department head, lost out on the position after another individual, who was a union member, grieved the decision. For purposes of Rule 12, the district court permitted the case to go forward notwithstanding the defense's exhaustion arguments.
Riccotti was at a different procedural point than this case, and is distinguishable on that basis alone. Here, Ms. Kosch has adduced no evidence other than her conclusory assertion that it would be futile to exhaust her administrative remedies. The record evidence is that the union representative would represent the contract for everyone regardless of union status. (McBride Dep. 12, ECF No. 28-4, PageID.820). Thus Ms. Kosch has not demonstrated that it would be futile to exhaust, and she was required to pursue her administrative remedies under the CBA.
CONCLUSION
On October 27, 2020, Ms. Kosch met with Ms. Berck and went over her options. TCAPS perhaps could have conducted the meeting differently and let Ms. Kosch bring an attorney. But Ms. Kosch was not coerced or placed under duress. She was not misinformed about her options. She was not forced to resign. Following the meeting, and after reading her email, she came to decision that resigning was the best option for her. That may not have been the best decision, and Ms. Kosch might regret it now, but her decision to resign was clearly voluntary. Accordingly, she cannot demonstrate that she was constructively discharged and cannot demonstrate a procedural due process violation. Even if Ms. Kosch was constructively discharged, the defense is entitled to summary judgment in its favor because Ms. Kosch was required to exhaust her remedies under the CBA.
ACCORDINGLY, IT IS ORDERED that the defense motion for summary judgment (ECF No. 24) is GRANTED and this case is DISMISSED.
IT IS FURTHER ORDERED that the proposed stipulation to adjourn trial (ECF No. 33) is DENIED AS MOOT.