Eggers v. Moore , 257 F. App'x 993 ( 2007 )

File Name: 07a0864n.06
Filed: December 19, 2007
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 06-2207
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARILYN EGGERS,
Plaintiff-Appellant,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
MARCIA MOORE; VERNA ANIBLE; COURT FOR THE EASTERN
RAYMOND BIHUN; SHARON HILL; JIM DISTRICT OF MICHIGAN
RYAN; PLYMOUTH-CANTON SCHOOL
DISTRICT,
Defendants-Appellees.
/
Before: KENNEDY, MARTIN, and CLAY, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Marilyn Eggers, a grade school teacher, appeals
the grant of a summary judgment motion dismissing her breach of contract and due process claims.
Because we find no error in the well-reasoned decision of the district court, we AFFIRM.
I
Eggers began teaching full-time in the Plymouth-Canton School District in 1986. She taught
second and third grade at Field Elementary school, and achieved tenure in 1988. Eggers took
medical leave during the 1999-2000 and 2000-2001 school years. She returned in the fall of 2001
and was assigned to a different elementary school, Allen Elementary. There, Principal Marcia
No. 06-2207
Eggers v. Moore
Page 2
Moore decided to postpone the standard triennial evaluation of Eggers from the fall of 2001 to the
following year. During the fall, a number of parents complained about Eggers, and some children
were removed from her classroom. Moore then began an out-of-sequence evaluation, a procedure
rarely used and not as clearly defined as a standard review. Eggers and Moore had meetings in
February about the evaluation process, Moore observed Eggers in the spring twice, and a further
meeting was held in June of 2002. During each meeting a union representative was present.
Apparently in response to another student incident, Eggers was handed a note on the morning
of September 5th from Moore that stated: “I am directing you to meet with me in my office
immediately after the staff meeting today to discuss the incidents that occurred in your classroom
on August 29th and September 3rd. Your classroom will be covered by a substitute during this
meeting.” A union representative was present at the meeting. The meeting pertained to an alleged
threat Eggers made to a student. Given the gravity of the charge, Eggers requested the presence of
her attorney before answering questions. Moore refused to postpone the meeting, and demanded that
Eggers respond to her questions. Eggers refused, and Moore immediately put her on administrative
leave and escorted her from the building. Administrative leave includes full pay and benefits.
Around September 9th, the school again requested a meeting with Eggers, but she refused
for medical reasons (she had begun seeking psychological treatment). Because of her inability to
attend any meetings due to medical reasons, her leave was changed to medical leave. She has
remained on medical leave ever since at the advice of her doctor.
In September of 2004, Eggers filed suit against Moore, the school district, and others alleging
(1) a breach of contract arising from the out-of-sequence evaluation, (2) a violation of her rights
No. 06-2207
Eggers v. Moore
Page 3
under the Due Process Clause of the United States Constitution, and (3) intentional infliction of
emotional distress. The district court dismissed all of the claims on summary judgment, and Eggers
appealed the breach of contract and due process claims.
II
This Court reviews a district court’s grant of summary judgment de novo. Johnson v. Karnes,
398 F.3d 868, 873 (6th Cir. 2005).
A. Motion to Strike the Brief
The parties have filed briefs relating to a request to strike the brief of Eggers for improper
references to the record. Because we do not find that these references alter the outcome of this case,
we do not need to reach this issue.
B. Breach of Contract
While an employee may sue an employer for breach of a collective bargaining agreement,
she must ordinarily first exhaust any grievance or arbitration remedies provided by that agreement.
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163-64 (1983). Eggers never filed a grievance
and therefore would generally be precluded by the collective bargaining agreement from suing her
employer directly. An exception exists when the union breaches its duty of fair representation. If
an employee can show that the union has breached its duty of fair representation in the grievance
process, she can proceed with a suit against her employer for breach of the collective bargaining
agreement. Id. at 165; Knoke v. E. Jackson Pub. Sch. Dist., 506 N.W.2d 878, 880 (Mich. App.
1993). The “duty of fair representation is comprised of three distinct responsibilities: (1) to serve
the interests of all members without hostility or discrimination toward any, (2) to exercise its
No. 06-2207
Eggers v. Moore
Page 4
discretion with complete good faith and honesty, and (3) to avoid arbitrary conduct.” Goolsby v. City
of Detroit, 358 N.W.2d 856, 862 (Mich. 1984) (internal quotations omitted) (quoting Vaca v. Sipes,
386 U.S. 171, 177 (1967)). However, “a union has considerable discretion to decide which
grievances shall be pressed to arbitration and which shall be settled, and must be permitted to assess
each grievance with a view to individual merit.” Knoke, 506 N.W.2d at 881.
The district court correctly held that since Eggers had not availed herself of any of the union’s
mechanisms for making a complaint against her employer (in this case by filing a grievance), she
could not prove that the union failed in its duty of fair representation, and therefore could not sue her
employer in court. The only evidence of a failure of the union to meet its duty is that the union
indicated it did not believe her claim had merit. Because this is well within the discretion of the
union in this case, she cannot make out a claim of failure of a duty of fair representation, and
therefore the district court appropriately granted summary judgment to the defendants.
C. Due Process
Eggers complains that she did not receive sufficient process prior to her forced administrative
leave on September 5th following her refusal to answer questions without a lawyer. The Fourteenth
Amendment says that no state may “deprive any person of life, liberty, or property, without due
process of law.” U.S. CONST . amend. XIV. Due process is therefore triggered by some deprivation
of life, liberty or property. The district court correctly found that Eggers has not suffered any
deprivation since she “has not been terminated or been disciplined in any way.” Eggers points to her
contentious September 5th meeting and subsequent placement on administrative leave as an adverse
action triggering due process. However, this Court has held that paid leave is not an adverse
No. 06-2207
Eggers v. Moore
Page 5
employment action. Peltier v. United States, 388 F.3d 984, 988 (6th Cir. 2004). Therefore we find
that no process was due prior to placing Eggers on administrative leave.
Eggers also claims to have been constructively discharged. Due process may be triggered
by a constructive discharge. See Parker v. Bd. of Regents of Tulsa Junior College, 981 F.2d 1159,
1162 (10th Cir. 1992). Eggers therefore claims that by denying her a hearing in the presence of her
lawyer prior to her constructive discharge, the school district denied her due process.
Even assuming she was constructively discharged, no process was denied her. Under her
own interpretation of constructive discharge, she cannot be said to have been constructively
discharged until she was placed on unpaid medical leave. White v. Honeywell, Inc., 141 F.3d 1270,
1279 (8th Cir. 1998) (holding that a person “who has suffered a forced unpaid medical leave of
absence” may be considered constructively discharged). Ever since the September 5, 2002 meeting,
prior to being placed on medical leave, the school has been willing to meet with her to discuss the
accusations, and has never indicated that Eggers could not bring counsel. The school offered a
rescheduled meeting as early as September 9th. Yet, as conceded at oral argument, Eggers has no
pending request for such a meeting. In fact, she has stated that since September 5, 2002 she has been
medically unable to meet with school officials at all to discuss the accusations. Eggers cannot be
heard to complain that she was denied process that she has not asked for and that her own condition
precludes. Thus we find that the school has not failed to provide her with process.
III
We find that the well-reasoned decision of the district court was without error, and therefore
AFFIRM.