NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0053n.06

Case No. 16-1896

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MICHAEL POTTS, Plaintiff-Appellant,

v.

GOBLES PUBLIC SCHOOL DISTRICT and its BOARD OF EDUCATION; JEFF REHLANDER individually and in his ca pacity as Superintendent for Gobles Public Schools; TERRY DOYLE, individually and in his capacity as a Board of Education Member of Gobles Public Schools; BRIAN BEAM, individually and in his capacity as a Board of Education Member of Gobles Public Schools; DANIEL WAHM HOFF, individually and in his capacity as a Board of Education Member of Gobles Public Schools; BONNIE MILLER, individually and in her capacity as a Board of Education Memb er of Gobles Public Schools; and MITCH SMITH, individually and in his capacity as a Board of Education Member of Gobles Public Schools, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

O P I N I O N

BEFORE: SUHRHEINRICH, SUTTON, and McKEAGUE, Circuit Judges. McKEAGUE, Circuit Judge. Michael Potts, a teacher employed by Gobles Public School District, was suspended for ten days without pay after alle gedly slapping a student on theCase No. 16-1896 Michael Potts v. Gobles Pub lic School District, et al.

- 2 - arm. He now brings this 42 U.S.C. § 1983 action alleging he was denied constitutionally adequate due process in violati on of the Fourteenth Amendment. Potts claims he has a property interest in continuing tenure, as created by Michigan’s Teachers ’ Tenure Act, Mi ch. Comp. Laws §§ 38.71–38.191, and that the ten-day suspension tempor arily deprived him of that interest without due process. Because any property inte rest created by the act was not implicated by Potts’ suspension, we affirm the distri ct court’s dismissal of his claims.

I Factual Background : Michael Potts has been an empl oyee of Gobles Public Schools since 1966. Since then, he has taught various gr ades at the middle and high school level and served as a basketball coach. Throughout his career, Potts has received commendations and generally positive evaluations. Then, on November 11, 2013, a student complained that Potts “slapped” her arm. Potts met with Superintendent Rehlander twice that day to discuss the allegation. In the first meeting, Potts denied inappropriately touching the stude nt. In the second meeting, which also included the mother of the student who was allegedly slappe d, Rehlander reportedly told Potts that he was

not going to be disciplined because any contact wa s done in a joking fashion with no intent to harm. But, a day later, Potts was placed on ad ministrative leave by the school district. And, about a month after that, he was given a writte n reprimand, suspended wi thout pay for ten days, and advised that the “slap” was unprofessional misconduct. Other repercussions flowed from this disciplin e. For one thing, Potts was relieved of his duties as basketball coach. For another, the conduct became part of Potts’ permanent public record. Additionally, should Potts seek another teaching job in the state of Michigan, Gobles will need to report the Novemb er 11, 2013 misconduct to any prospective employer. Potts alsoCase No. 16-1896 Michael Potts v. Gobles Pub lic School District, et al.

- 3 - alleges that his poor performance evaluation th at year—in which he was rated “minimally effective”—was arbitrarily based on the slap. Further, that relatively low performance rating subjected him to a personal improvement plan for the 2014–2015 school ye ar and increases the chance of his losing his job should the dist rict implement a reduction in force. Subsequently, Potts filed a grie vance protesting the discipline which was presented on his behalf at a March 5, 2014 Gobles Board of Education meeting. The Board refused to hear the grievance and dismissed it for “jurisdictional” reasons. By all accounts, Potts remains a teacher

in Gobles Public Schools. Procedural History : Faced with these circumstances , Potts filed a complaint in the Western District of Michigan. He brought suit against Gobles Public Schools, the Board of Education, Superintendent Rehlander, and th e Board of Education members individually. 1 In the complaint, he alleges one count against all defendants, under 42 U.S.C. § 1983, asserting that his unpaid, ten-day suspension deprived him of a propert y interest without due process of law. In response, defendants submitted a motion to dismi ss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The di strict court granted the motion, finding that the property interest created by Michigan law was not implicated by Potts’ ten-day suspension. (R. 37, Dist. Ct. Op., PID 389.). This appeal followed.

II We review the district court’s dismissal of Potts’ complaint de novo. Ctr. for Bio-Ethical Reform, Inc. v. Napolitano , 648 F.3d 365, 369 (6th Cir. 2011). In order to survive a Rule 12(b)(6) motion to dismiss, the complaint must contain a claim that is “plausible on its face.” Id.

1 Those Board members are Terry Doyle, Brian Beam, Daniel Wahmhoff, Bonnie Miller, and Mitch Smith

.Case No. 16-1896 Michael Potts v. Gobles Pub lic School District, et al.

- 4 - In reviewing the complaint, we accept its factual a llegations as true, but n eed not accept its legal

conclusions. Ashcroft v. Iqbal , 556 U.S. 662, 677–78 (2009). Potts claims he was deprived of a property inte rest without adequate pr ocess. In order to establish a claim under the Due Process Clause, Potts “must show that (1) he had a life, liberty, or property interest protected by the Due Process Clause; (2) he was deprived of this protected interest; and (3) the state did not afford him adeq uate procedural rights prior to depriving him of

the interest.” Women’s Med. Prof’l Corp. v. Baird , 438 F.3d 595, 611 (6th Cir. 2006). We begin by determining whethe r there was a property interest at stake. Such property interests are not created by the Constitution itself. Bd. of Regents v. Roth , 408 U.S. 564, 577 (1972). Rather, “they are crea ted and their dimensions are defined by existing rules or understandings that stem from an inde pendent source such as state law.” Id. It is not in dispute that Michigan’s Teachers’ Tenure Act, Mi ch. Comp. Laws §§ 38.71–38.191, creates a property

interest. See Tomiak v. Hamtramck Sch. Dist. , 397 N.W.2d 770, 780 (Mic h. 1986) (finding that tenured teachers have protected “t enure rights” under Mi chigan’s Teacher Tenure Act). Rather, the disagreement lies in just how broadl y we are to construe that interest. The act’s language—the source of the pr operty interest—pr ovides the scope. See Roth , 408 U.S. at 577–78. Here, the property interest granted by the Teacher Tenure Act is one in “continuing tenure.” See Mich. Comp. Laws § 38.91(1); Tomiak , 397 N.W.2d at 778–81. Continuing tenure is provided as follows: After the satisfactory completion of the probationary pe riod, a teacher is considered to be on continuing tenure under this act. 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.Case No. 16-1896 Michael Potts v. Gobles Pub lic School District, et al.

- 5 - Mich. Comp. Laws § 38.91(1) (emp hasis added). Section 38.74 of the act defines “demote,” in relevant part, as suspension without pay fo r fifteen or more consecutive days. Potts argues that “shall be employed cont inuously” in § 38.91 mean s that continuing

tenure is a broad interest such that anything more than a de minimis suspension from employment requires constitutionally adequate due process. Defendants argue that the continuing tenure interest is narrower, providing teachers with an employment interest in not being “dismissed or demoted” except as provided for in the act. To begin with, Potts’ reading of “employed continuously by” fails as a matter of plain meaning. The ordinary meaning of “employed” is binary: either you have a job or you don’t. And the phrase “employed by” comes loaded with the inference that th ere is someone employing you—it speaks to a relationship with an employer. Thus, to be “employed continuously by” an employer would ordinarily mean that there is no point where you are not employed by that particular employer. See also Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 539 (1985) (public employees’ termination implicated property rights in “continued employment”). Therefore, a teacher “employed continuously by the controlling board” remains at all times an employee of that board. It does not mean (as Potts contends) he can never be temporarily suspended or demoted by that board. The reason why should be obvious: in either circumstance,

a teacher remains employed by the board—as Potts did here. Moreover, Potts’ construction uproots the ph rase “employed continuously” from its surrounding language. We do not read words or phrases in isolation. See Deal v. United States , 508 U.S. 129, 132 (1993). And what Potts fails to not e is that, immediately after the statute says

a tenured teacher is to be employed continuously by a particular board, it goes on— in that very

same sentence —to say “and shall not be dismissed or demo ted except as specified in this act.”Case No. 16-1896 Michael Potts v. Gobles Pub lic School District, et al.

- 6 - Mich. Comp. Laws § 38.91(1). Accordingly, the scope of the interest in “continuing tenure” cannot be understood without gi ving effect to the full senten ce that provides its meaning. 2 That includes the sentence’s second half, which limits the employing board’s discretion in dismissing

or demoting tenured teachers. See also id. § 38.101 (“discharge or de motion of a teacher on continuing tenure may be made only for a reason th at is not arbitrary or capricious”). It is precisely this statutory lim it on a board’s discretion to dismiss or demote a tenured teacher that establishes the scope of the property interest established by the state law. See Loudermill , 470 U.S. at 538–39; Med Corp. v. City of Lima , 296 F.3d 404, 409–10 (6th Cir. 2002) (“in order to assert a property interest . . . [plaintiff] must point to some policy, law, or mutually explicit understanding that both conf ers the benefit and limits the discreti on . . . to rescind the benefit.”). Thus, the interest in “continuing tenure” provided by the Teacher Tenure Act is an ongoing employment relationship between a particular board and a tenured teacher such that the board cannot “demote” or “discharge” the teacher absent constitutionally adequate procedures.

See Mich. Comp. Laws § 38.91(1); Kramer v. Van Dyke Pub. Sch. , 351 N.W.2d 572, 575 (Mich. Ct. App. 1984) (“It is clear to this Court, that when a teacher, su ch as Plaintiff, alleges that a

school board’s action amounted to a ‘discharge or demotion’. . . sh e is entitled to [Due Process requirements].”); see generally O’Donnell v. NICE , PDO 12-23 (Mich. Tenure Commission 2012) (finding a five-day suspension did not implic ate due process property rights because it was not a “demotion” under Teacher Tenure Act). Po tts does not claim he was either dismissed or

demoted as it is defined in the act. See Mich. Comp. Laws § 38.74 (d efining “demote,” in

2 Tellingly, in his briefs, Potts never provides the full sentence.Case No. 16-1896 Michael Potts v. Gobles Pub lic School District, et al.

- 7 - relevant part, as a suspension of fifteen days or longer). Thus, no property interest was implicated by his ten-day, without-pay suspension. 3 Moreover, assuming arguendo that the suspension did implicate a property interest, Potts was not denied adequate process. Potts met with Superintendent Rehlande r twice before he was suspended. In those meetings, he was made awar e of the student’s allega tion about the slap and given the opportunity to present hi s side of the story. In the ci rcumstances of this short-term suspension, Due Process requires nothing more. See Loudermill , 470 U.S. at 546 (holding that, prior to termination , “[t]he tenured employee is entitled to oral or written notice of the charges against him, an explanation of the employee’s evidence, and an oppor tunity to present his side of the story”). Thus—even if we were to find the suspension imp licated a property interest—Potts has failed to allege a Due Process violation. The district court properly dismissed his complaint.

III For the foregoing reasons, the ruling of the district court is AFFIRMED.

3 And Potts fails to show (and does not argue on appeal) that the suspension’s ramifications, including Potts’ lost coaching job and any reputational damage he ma y have suffered, constitute independent deprivations of any other property or liberty interests protected by the Fourteenth Amendment.