MANTEI v. MICHIGAN PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM AND MICHIGAN PUBLIC SCHOOL EMPLOYEES RETIREMENT BOARD

McNEILL-MARKS v MIDMICHIGAN MEDICAL CENTER-GRATIOT Docket No. 326606. Submitted June 8, 2016, at Lansing. Decided June 16, 2016, at 9:00 a.m. Leave to appeal sought. Tammy McNeill-Marks brought an action in the Gratiot Circuit Court against MidMichigan Medical Center-Gratiot (MMCG), alleging that MMCG’s decision to terminate her employment violated both the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and Michigan public policy because MMCG terminated her for either reporting a violation of a personal protection order (PPO) to her attorney or for being about to report that violation to the circuit court. Plaintiff, a clinical manager at MMCG, had adopted three children. The children’s grandmother, Marcia Fields, had threatened to kill plaintiff, plaintiffs adopted children, and plaintiffs biological children during the adoption process. Plaintiff sought and was granted a series of PPOs against Fields. The PPO at issue ordered Fields, among other things, to refrain from stalking plaintiff as defined under MCL 750.411h and MCL 750.411Í. Plaintiff subsequently encountered Fields in a hallway at MMCG. Fields was in a wheelchair and said, “Hello, Tammy,” in a sing-song vocal tone that plaintiff described as “the cat that just ate the canary,” indicating to plaintiff that Fields knew she had “gotten away with something she’s not supposed to do.” Plaintiff informed her supervisor about the situation and then called her attorney to tell him that Fields had appeared at MMCG; however, at no time did plaintiff tell her attorney that Fields was a patient at MMCG. Later that evening, while Fields was still a patient at MMCG, a process server from the attorney’s law office served Fields with the PPO in her hospital room. Fields and her family reported the incident to MMCG as a suspected violation of the Health Insurance Portability and Accountability Act (HIPAA), 29 USC 1181 et seq.; 42 USC 300gg; 42 USC 1320d et seq. Plaintiff moved to have Fields held in contempt for violating the PPO, but plaintiff did not include her encounter with Fields in the hospital as an alleged violation. MMCG began an investigation into Fields’s HIPAA complaint, and plaintiff alleged that MMCG’s privacy officer threatened that plaintiff would be terminated if plaintiff testified regarding her interaction with Fields at MMCG at the hearing on plaintiffs motion to hold Fields in contempt for violating the PPO. Following the investigation, MMCG concluded that plaintiff violated both HIPAA and MMCG’s privacy policy, terminated plaintiffs employment, and gave plaintiff a “Corrective Action and Disciplinary Form” that cited plaintiffs telephone conversation with her attorney as a violation of HIPAA policy. Plaintiff then brought this action. MMCG moved for summary disposition, arguing that plaintiff had failed to establish a prima facie case under the WPA because plaintiff never reported the alleged violation to a “public body” as defined under the WPA and because plaintiff could not have reasonably suspected that Fields’s conduct violated the stalking prohibition in the PPO. Additionally, MMCG argued that the WPA claim preempted the public policy claim. The court, Randy L. Tahvonen, J., granted MMCG’s motion, concluding that plaintiffs telephone conversation with her attorney was not a communication to a public body, that Fields’s conduct did not violate the PPO, and that the hospital did not attempt to conceal a crime. Plaintiff appealed. The Court of Appeals held: 1. MCL 600.2950(l)(j) prohibits stalking, which MCL 750.411h(l)(d) defines as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. MCL 750.411h(l)(e) defines unconsented contact as any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued. MCL 750.411h(l)(d) requires a willful course of conduct; however, even if Fields’s initial encounter with plaintiff in the hallway at MMCG was not willful, and was instead accidental, Fields’s subsequent verbal communication with plaintiff constituted willful, unconsented contact under MCL 750.411h(l)(e). Even if Fields could not have planned her contact with plaintiff or avoided such contact, after she saw plaintiff, Fields made a deliberate choice to speak to her, and such deliberation made the communication willful, particularly in light of the tone in which Fields spoke—a tone indicating that she knew she had “gotten away with something she’s not supposed to do.” Fields’s conduct, in concert with her prior unconsented contacts with plaintiff, qualified as “stalking” in violation of the PPO. 2. MCL 15.362 provides, in relevant part, that an employer shall not discharge, threaten, or otherwise discriminate against an employee because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to the law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false. To establish a prima facie case under MCL 15.362, a plaintiff must show that (1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. “Protected activity” consists of (1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation. Under MCL 15.363(4), an employee asserting that he or she was “about to report” a violation must support that claim with clear and convincing evidence that he or she or a person acting on his or her behalf was about to report, verbally or in writing, a violation or a suspected violation to a public body. Reporting or being about to report a violation or a suspected violation to a public body is protected if the report is or is about to be made in good faith. Under MCL 15.361(d)(¿u), a “public body” includes any body that is created by state or local authority or that is primarily funded by or through state or local authority, or any member or employee of that body. Under MCL 600.904, the Supreme Court is empowered to provide for the organization, government, and membership of the State Bar of Michigan (SBM) and to adopt rules and regulations concerning the conduct and activities of the SBM and its members, which includes the schedule of membership dues. In this case, the trial court erred by concluding that, because Fields’s conduct did not violate the PPO, it was immaterial whether plaintiff made a report or was about to make a report regarding Fields’s conduct to a public body before she was terminated. Even assuming that Fields’s conduct did not actually violate the PPO, plaintiff was still afforded the protection of the WPA so long as she, in good faith, reported, or was about to report, Fields’s conduct to a public body as a suspected violation of the PPO. There was no evidence that plaintiff acted in bad faith, i.e., that she did not actually believe that Fields’s conduct violated the PPO. If plaintiff reported such conduct to a public body, or was about to do so, she was engaged in a protected activity under the WPA. Furthermore, it was undisputed that plaintiffs attorney was a licensed Michigan attorney and a member in good standing of the SBM when plaintiff called him and reported her contact with Fields. The attorney’s licensure and active membership in the SBM were both mandatory. Under the plain language of the WPA, specifically MCL 15.361(d)(¿u), plaintiff’s attorney qualified as a member of a public body for WPA purposes. As a practicing attorney and member of the SBM, plaintiffs attorney was a member of a body “created by” state authority, which, through the regulation of the Supreme Court, is also “primarily funded by or through” state authority. The trial court erred by holding that plaintiffs attorney was not a member of a public body for WPA purposes, and the trial court further erred by concluding that a report to a public body is a necessary prerequisite to establish a prima facie case under the WPA because a report to a public body is only one of three types of protected activity under the WPA. Plaintiff established a prima facie case under the WPA because (1) her report to her attorney was a report to a member of a public body and therefore a protected activity under the WPA, (2) plaintiff was discharged, and (3) plaintiff presented direct evidence of the causal connection between the discharge and the report to her attorney: the “Corrective Action and Disciplinary Form” that explicitly cited plaintiffs telephone conversation with her attorney as a factor that motivated MMCG’s discharge decision. Plaintiffs direct evidence was sufficient to survive summary disposition despite the legitimate reason that MMCG offered for its action—that it suspected plaintiff of violating HIPAA—because a reasonable fact-finder could still conclude that plaintiffs protected activity was a motivating factor for MMCG’s decision. The trial court erred by granting summary disposition in favor of MMCG. 3. When a plaintiff alleges discharge in retaliation for engaging in activity protected by the WPA, the WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public policy claims arising from the same activity. Plaintiffs public policy claim arose out of the same activity as the WPA claim for preemption purposes. Plaintiffs refusal to conceal Fields’s violation of the PPO was effectuated by plaintiffs report to her attorney, and there was no record evidence that plaintiff was instructed to conceal such activity before plaintiffs telephone conversation with her attorney. There was no logical distinction between the refusal to conceal and the report by which that refusal manifested itself. Summary disposition of the public policy claim was proper because the WPA claim preempted the public policy claim. Trial court ruling regarding plaintiffs public policy claim affirmed; summary dismissal of the WPA claim reversed; case remanded to the trial court for further proceedings. 1. Michigan Penal Code - Aggravated Stalking - Words and Phrases - “Unconsented Contact.” MCL 600.2950(l)(j) prohibits stalking, which MCL 750.411h(l)(d) defines as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested; MCL 750.411h(l)(e) defines unconsented contact as any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued; even if an initial encounter was not willful, a person’s subsequent verbal communication may constitute willful, unconsented contact under MCL 750.411h(l)(e). 2. Actions — Whistleblowers’ Protection Act — Words and Phrases — “Public Body.” MCL 15.362 provides that an employer shall not discharge, threaten, or otherwise discriminate against an employee because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to the law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false; under MCL 15.361(d)(¿u), a public body includes any body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body; a licensed Michigan attorney with active membership in the State Bar of Michigan qualifies as a member of a public body for purposes of the Whistleblowers’ Protection Act. The Mastromarco Firm (by Victor J. Mastromarco, Jr., and Russell C. Babcock) for Tammy McNeill-Marks. Miller Johnson (by Sarah K. Willey) for MidMichi-gan Medical Center-Gratiot. Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ. WILDER, J. In this employment matter, plaintiff, Tammy McNeill-Marks, appeals as of right the trial court’s order granting summary disposition to defendant, MidMichigan Medical Center-Gratiot (MMCG). We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. I. FACTUAL BACKGROUND This case arises out of plaintiffs discharge from her position at MMCG. In 1991, plaintiff was hired as a registered nurse at a different MidMichigan Medical Center, which is located in Midland. She subsequently transferred to the Gratiot location, where she began to serve as clinical manager of perioperative services and ambulatory care. Between 2006 and 2008, plaintiff adopted two children and had a third placed in her custody (collectively, the children). Each child has a different father, but the biological mother of all three is Sandi Lee Freeze, who is plaintiffs second cousin. Freeze’s mother—the children’s grandmother—is Marcia Fields. According to plaintiff, Fields suffers from several psychiatric disorders, including “paranoid schizophrenia, multiple personality disorder,” and “bipolar depression.” During the adoption process, Fields began to threaten plaintiff. She threatened to kill plaintiff, the children, and plaintiffs biological children. Such threats led plaintiff to seek a personal protection order (PPG) against Fields, which was eventually granted on an ex parte basis. It is unclear from the record precisely when the initial PPG was issued, but presumably because it had expired, on December 19, 2012, plaintiff, through her legal counsel, Richard Gay, filed a petition again seeking an ex parte PPO against Fields. That same day, a circuit court judge granted plaintiffs ex parte petition, entering a PPO that prohibited Fields from having any contact with the children and from “posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s.” After its entry, Fields allegedly violated the PPO on several occasions by sending electronic messages to plaintiff. When plaintiff contacted local police regarding Fields’s purported violations of the PPO and attempted to file a police report, the police “told [her] that [she] needed to contact [her] attorney, not [the police],” because the PPO had never been properly entered in the Law Enforcement Information Network (LEIN). On January 14, 2013, the circuit court entered an amended PPO, this time ordering Fields, among other things, to refrain from “stalking” plaintiff, as that term is “defined under MCL 750.411h and MCL 750.411Í, which includes but is not limited to” (1) “following or appearing within sight of’ plaintiff, (2) appearing at plaintiffs workplace or residence, and (3) “approaching or confronting [plaintiff] in a public place or on private property.” The amended PPO explicitly noted that it would “remainO in effect until 12/31/2013.” Ignoring the amended PPO, Fields continued to contact plaintiff. On December 27, 2013—four days before the expiration date of the amended PPO—plaintiff filed a motion, through Gay, to extend the amended PPO for another year. Later that day, the circuit court granted plaintiffs motion on an ex parte basis. The court entered a new PPO, which again ordered Fields to refrain from “stalking” plaintiff, as that term is “defined under MCL 750.411h and MCL 750.411Í,” and which specified that the order was “effective when signed, enforceable immediately,” and would “remain 0 in effect until 12/31/2014.” While at work roughly two weeks later, on January 13, 2014, plaintiff encountered Fields in a hallway at MMCG. At her deposition, plaintiff described the encounter as follows: Q. ... Okay. You were walking down the hallway? A. I came out of the operating room door .... I said “Hello” because you’re trained to always speak to people. I didn’t even realize who she [Fields] was .or who the transporter was that was transporting her. I got three steps down the hallway and [Fields] said, “Hello, Tammy,” in one of those little voices she does, and my stomach sank. Q. She was being transported, in the sense that she was not walking herself? A. Correct. She was in a wheelchair.. .. Q. Do you know what area of the hospital she had been admitted into? A. No, I do not. Nor did I at that time. Q. Did you understand that she was inpatient? A. No, I did not. Q. You didn’t know, or you understood something different than that? A. No, I had no way of knowing where [Fields] had came from [sic] in the hospital. Those transporters transport from ER, the tower, all outpatient services, she could have came from [sic] anywhere and be going anywhere. Q. After you had passed, [Fields] said, “Hello, Tammy”? A. Yes. Q. In whatever voice you had described? A. A little sing-songy voice she has when she feels she has passed something over on you like a little kid. It’s very specific.[] Q. Were any other words exchanged? A. No. I immediately went into another door. Q. Do you have any reason to think that she somehow planned that encounter with you, meaning that she knew that you were going to be coming down the hallway in the moment that she was getting wheeled to a procedure? [Plaintiffs counsel places an objection to foundation on the record, then instructs plaintiff to answer.] A. I believe on more than one occasion she has admitted herself in the hospital with the hopes that she could ... make contact with me, yes. Q. Well, I’m talking about with regard to this particular encounter, and then if you want we can expand on that; okay? A. Okay. Q. So with this particular encounter, the two of you passed each other in the hallway. A. I don’t believe that. . . that anybody could necessarily — that wouldn’t be a reasonable expectation, that she could plan to pass me in the hallway. Q. After that encounter in the hallway, did you see her again at [MMCG]? A. No, I did not. After encountering Fields, plaintiff immediately went into an employee break room. She was “visibly upset and shaking,” so much so that a coworker voiced concern, asking plaintiff what was wrong. Plaintiff was particularly upset that, through their encounter, Fields had learned “specifically where in the hospital” plaintiff worked. She feared that such knowledge would make Fields a danger to not only plaintiff but also her fellow employees. A short time later, plaintiff called her supervisor, Theresa Baily, who was already aware that plaintiff held a PPO against Fields, and informed Baily about what had transpired. After speaking with Baily, plaintiff called her attorney, Gay, and told him, “[Fields] showed up today at my workplace.” According to plaintiff, Gay never asked for further explanation about what plaintiff “meant” when she said that Fields “showed up” at MMCG. At no time did plaintiff inform Gay that Fields “was there in any form as a patient” or that Fields had been in a wheelchair. Likewise, plaintiff said nothing to Gay about the possibility of serving Fields with the latest PPO while Fields was at MMCG. Rather, questioning whether it was advisable to serve the PPO, plaintiff instructed Gay “not to serve [Fields] at all. . . .” Gay confirmed that

HILLENBRAND v CHRIST LUTHERAN CHURCH OF BIRCH RUN Docket No. 319127. Submitted March 11, 2015, at Lansing. Decided September 15, 2015, at 9:00 a.m. Richard P. Hillenbrand brought an action seeking declaratory and injunctive relief in the Saginaw Circuit Court, alleging that Christ Lutheran Church of Birch Run had wrongfully terminated his employment as a pastor in violation of the constitution and bylaws of the Lutheran Church' — -Missouri Synod (LCMS), of which defendant was a member. Plaintiff initially sought relief through the dispute resolution process set forth in the LCMS’s bylaws, but before a hearing could be held, defendant withdrew its membership from the LCMS and declined to participate. Nevertheless, an LCMS dispute resolution panel determined that it had the authority to act in the matter and ruled that defendant’s decision to terminate plaintiffs employment should be reviewed and revised, and further ruled that plaintiff was entitled to compensation from defendant. After plaintiff brought this court action seeking to be restored to his position, defendant moved for summary disposition, arguing that the ecclesiastical abstention doctrine prevented a court from determining whether a church had violated its own policies and procedures. The corut, Frederick L. Borchard, J., granted defendant’s motion under MCR 2.116(C)(4), ruling that because the relationship between defendant and the LCMS was congregational rather than hierarchical in nature, the court lacked subject-matter jurisdiction over the action. The court denied plaintiffs motion for reconsideration, and plaintiff appealed. The Court of Appeals held.'. 1. The trial court did not err by granting defendant’s motion for summary disposition. Under the ecclesiastical abstention doctrine, if the facts indicate that a denomination is hierarchical, a civil court may not redetermine the correctness of an interpretation of canonical text or some decision relating to the government of the religious polity, but must defer to the resolution of those issues by the highest court of a hierarchical church organization. When a denomination is determined to be hierarchical, trial coruts have jurisdiction to enter a judgment, but the judgment must resolve the matter consistent with any determinations already made by the denomination. Determining whether a denomination is hierarchical is a factual question. A church organization is congregational if it is self-governing and hierarchical if it is part of and governed by a larger organization. A plain reading of LCMS’s constitution indicated that the LCMS was only an advisory body and not a governing body. Therefore, the court did not clearly err by determining that LCMS was congregational in nature. Further, LCMS’s constitution provided that it controlled and superseded bylaws and all other rules and regulations, including a 1983 resolution indicating that the LCMS had hierarchical dimensions, and that LCMS’s resolutions were not binding on individual congregations if the individual congregations deemed them inexpedient. This statement clearly left individual congregations open to adopt or disregard LCMS’s resolutions. Because the plain language of LCMS’s constitution expressly indicated that it was not a governing body, the court was not required to accept the interpretation provided by the denomination. 2. The trial court erred by finding that defendant could withdraw from the LCMS because LCMS’s bylaws prohibited its members from terminating their membership in a manner that would render a decision of the dispute resolution panel inapplicable. Defendant informed the LCMS that it was withdrawing its membership because of the politics involved with the Michigan District of the Missouri Synod and because it wanted a pastor who cared about them, and further informed the LCMS that it would not be attending and did not agree to be bound by any dispute resolution hearing conducted by the LCMS. Because defendant was not permitted to render the dispute resolution hearing inapplicable in that manner, its doing so was improper. However, the trial court did not err by concluding that any decision from the dispute resolution panel would have been advisory and not binding on the parties. Affirmed. Davis Burket Savage Listman Brennan (by Robert C. Davis and William N. Listman) for plaintiff. Johnston, Sztykiel & Hunt, PC (by J. Steven Johnston and Joseph N. Fraser), for defendant. Amicus Curiae: Thompson Coburn LLP (by Todd A. Rowden) for the Lutheran Church — Missouri Synod. Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ. STEPHENS, J. Plaintiff appeals as of right the opinion and order of the trial court granting defendant’s motion for summary disposition under MCR 2.116(C)(4). We affirm. I. BACKGROUND Defendant is a Lutheran church. Plaintiff served as pastor at defendant church for seven years, from 2005 until his employment was terminated in 2012. In 2013, plaintiff filed a complaint against defendant that alleged defendant, as a member of the Lutheran Church — Missouri Synod (LCMS), wrongfully terminated plaintiffs employment in violation of LCMS’s constitution. Plaintiff requested that the trial court enjoin defendant’s termination of plaintiff as its pastor, order defendant to reinstate plaintiff as its pastor, order defendant to remove any reference to defendant’s termination of plaintiff as its pastor, and order the restoration of plaintiffs rights under his employment agreement with defendant. According to plaintiff, LCMS’s constitution required the employment dispute to be presented to an LCMS Dispute Resolution Panel. A hearing was held before such a panel on August 17, 2012, and August 18, 2012, but defendant had withdrawn its membership from LCMS on June 18, 2012, and stated that it would not participate in the hearing. The panel ruled that defendant’s decision to terminate plaintiffs employment as its pastor “should be reviewed and revised.” The panel further concluded that plaintiff was entitled to compensation from the date that defendant terminated plaintiffs employment as its pastor, March 11, 2012, “until said time when [plaintiff] receives and, if he so chooses, as led by the Holy Spirit, to accept a call to another congregation,” in the amount of $59,800 as an annual salary, as well as $12,500 for additional out-of-pocket expenses related to health insurance, retirement benefits, and costs related to the hearing. In lieu of filing an answer to plaintiffs complaint, defendant filed a motion for summary disposition under MCR 2.108(B), MCR 2.116(C)(4), and MCR 2.116(C)(7). Defendant asserted that it was entitled to summary disposition because the ecclesiastical abstention doctrine prevented a court from determining whether a church had violated its own policies and procedures. Defendant also argued that it was entitled to summary disposition because, under the common law governing arbitration, its agreement to be bound by a hearing before an LCMS panel was unilaterally revocable. Plaintiff filed a response to defendant’s motion, arguing that because LCMS was hierarchical, as opposed to congregational, the hearing before the panel was binding and should therefore be enforced. After a hearing, the trial court issued a written opinion and order granting defendant’s motion for summary disposition. The trial court found that LCMS was congregational and not hierarchical. The trial court found that the plain language of LCMS’s 1983 resolution created a hierarchical relationship only as to the “initial call to become a pastor and not for the decision to terminate a call.” The trial court further ruled that even if the 1983 resolution language applied to a pastor’s termination, the only remedy available would be to revoke defendant’s membership in LCMS. Lastly, the trial court ruled that LCMS did not have authority to bind defendant during the hearing because defendant was no longer an LCMS member and had withdrawn its consent before the hearing. Plaintiffs motion for reconsideration was denied. This appeal followed. LCMS was granted leave to file a brief amicus curiae. II. SUMMARY DISPOSITION Plaintiff maintains that the trial court’s grant of summary disposition to defendant was erroneous because LCMS is a hierarchical organization. We disagree. “[This Court] review[s] the trial court’s grant or denial of summary disposition de novo.” Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 574; 603 NW2d 816 (1999). Atrial court’s interpretation of an organization’s constitution and bylaws is also reviewed de novo. See Slatterly v Madiol, 257 Mich App 242, 250-251, 256; 668 NW2d 154 (2003). The Court reviews a trial court’s findings of fact for clear error. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008). “A trial court’s factual findings are clearly erroneous only when the reviewing court is left with the definite and firm conviction that a mistake has been made.” Id. (citation and quotation marks omitted). Summary disposition is appropriate under MCR 2.116(C)(4) when a court lacks jurisdiction over the subject matter of an action. When reviewing such a motion, this Court “must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact.” Manning v Amerman, 229 Mich App 608, 610; 582 NW2d 539 (1998). “[T]he First and Fourteenth Amendments to the United States Constitution protect freedom of religion by forbidding governmental establishment of religion and by prohibiting governmental interference with the free exercise of religion.” Bennison v Sharp, 121 Mich App 705, 712; 329 NW2d 466 (1982). “Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch v EEOC, 565 US 171, 181; 132 S Ct 694; 181L Ed 2d 650 (2012). The United States Supreme Court has confirmed “that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Id. at 185. Under the ecclesiastical abstention doctrine, “where the facts indicate that a denomination is hierarchical, ‘civil courts may not redetermine the correctness of an interpretation of canonical text or some decision relating to the government of the religious polity,’. . . but must defer to the resolution of those issues ‘by the highest court of a hierarchical church organization [.]’ ” Lamont Community Church v Lamont Christian Reformed Church, 285 Mich App 602, 616; 777 NW2d 15 (2009), quoting Smith v Calvary Christian Church, 462 Mich 679, 684; 614 NW2d 590 (2000); see also Bennison, 121 Mich App at 713. “[W]hen a denomination is determined to be hierarchical, trial courts have jurisdiction to enter a judgment, but the judgment must resolve the matter consistent with any determinations already made by the denomination.” Id. “The determination of whether a denomination is hierarchical is a factual question.” Id. at 615, citing Calvary Presbyterian Church v Presbytery of Lake Huron of the United Presbyterian Church, 148 Mich App 105, 113; 384 NW2d 92 (1986). A denomination is hierarchical if it “is but a subordinate part of a general church in which there are superior ecclesiastical tribunals with a more or less complete power of control...” Bennison, 121 Mich App at 720. “A denomination is organized in a hierarchical structure when it has a central governing body which has regularly acted within its powers while the looser ‘congregational’ structure generally has all governing powers and property ownership remaining in the individual churches.” Lamont, 285 Mich App at 618 (citation, brackets, and quotation marks omitted). Stated differently, a church organization is congregational if it is self-governing; a church organization is hierarchical if it is “part of and governed by a larger organization.” Little v First Baptist Church, Crestwood, 475 US 1148, 1148; 106 S Ct 1802; 90 L Ed 2d 347 (1986) (Marshall, J., dissenting) (emphasis added). The trial court found that it lacked jurisdiction over the subject matter of this lawsuit under MCR 2.116(C)(4) because LCMS was congregational. Our review of the trial court’s grant of summary disposition, therefore, begins with an examination of whether LCMS is hierarchical or congregational. According to defendant’s articles of association, its members “shall worship and labor together according to the discipline, rules and usage of [LCMS] in the United States of America as from time to time authorized and declared by the delegate convention.” Article VII of LCMS’s constitution, entitled “Relation of the Synod to Its Members,” states as follows: 1. In its relation to its members the Synod is not an ecclesiastical government exercising legislative or coercive powers, and with respect to the individual congregation’s right of self-government it is but an advisory body. Accordingly, no resolution of the Synod imposing anything upon the individual congregation is of binding force if it is not in accordance with the Word of God or if it appears to be inexpedient as far as the condition of a congregation is concerned. 2. Membership of a congregation in the Synod gives the Synod no equity in the property of the congregation. Article XIII, “Expulsion from the Synod,” ¶ 1, provides that “[m] embers who act contrary to the confession laid down in Article II and to the conditions of membership laid down in Article VI or persist in an offensive conduct shall, after previous futile admonition, be expelled from the Synod.” Article XTV grants LCMS the right to “adopt bylaws that are consistent with and do not contradict the Constitution of the Synod, which controls and supersedes such bylaws and all other rules and regulations of the Synod.” Under § 1.10.1.1 of LCMS’s bylaws, “[t]he use of the Synod’s conflict resolution procedures shall be the exclusive and final remedy for those who are in dispute.” Section 1.10.2 states, in part, as follows regarding the conflict resolution procedures: It shall be the exclusive remedy to resolve such disputes that involve theological, doctrinal, or ecclesiastical issues except those covered under Bylaw sections 2.14-2.17 and except as provided in Bylaw 1.10.3. It is applicable whether the dispute involves only a difference of opinion without personal animosity or is one that involves ill will and sin that requires repentance and forgiveness. No person or agency to whom or to which the provisions of this dispute resolution process are applicable because such person or agency is a member of the Synod may render these provisions inapplicable by terminating that membership. Section 1.10.3, however, indicates that “[t]his chapter provides evangelical procedures to remedy disputes only and does not set forth procedures for expulsion from membership [.]” It also indicates that “[w]hile Christians are encouraged to seek to resolve all their disputes without resorting to secular courts, this chapter does not provide an exclusive remedy for . . . [disputes arising under contractual arrangements of all kinds[.]” Under § 1.10.7.4, ¶ (d), the final decision of a dispute resolution hearing panel is “binding upon the parties.” LCMS’s 1983 resolution, entitled “To Reaffirm Essential Congregational Polity of the Synod,” states that “[t]he word ‘hierarchical’ is repugnant to Missouri Synod Lutherans because etymologically it refers to ‘rule by the priesthood’ ” and is defined differently by civil courts than it is in theology. The resolution further states that “[i]n past instances the Synod has utilized the legal nomenclature ‘hierarchical’ in legal proceedings in order to preserve to member congregations and others who associate together within the Synod the right to resolve disputes freely in accordance with established synodical procedures [.]” The LCMS resolution then states as follows: Resolved, That The Lutheran Church — Missouri Synod reaffirms that its synodical polity is essentially and principally congregational in nature and therefore is ordinarily referred to as a congregational polity; and be it further Resolved, That the Synod acknowledges that under the definition and application of the word “hierarchical” in civil law there are aspects in the relationships within the Synod between and among congregations (e.g. Article II, Confession; the calling of certified and endorsed pastors only; agreements to abide by adjudicatory procedures and their final determinations) which under civil law may imply, express, or evidence what the courts regard as hierarchical dimensions; and be it further Resolved, That, believing that Scripture (1 Cor. 6) requires that we make every effort to avoid disputes or to resolve them internally when they do arise, of the two constitutional methods for resolving church disputes by the civil courts, the Synod favors the “neutral principles of law” method whenever it can be applied, and that when neutral principles cannot be applied to resolve a particular controversy, the Synod declares that it is able and willing to resolve disputes internally; and be it further Resolved, That while we believe the courts should recognize that there are church polities other than “congregational” and “hierarchical,” unless and until courts do so, the present status of case law compels us to use certain legal terminology; and be it finally Resolved, That with the previously outlined explanation, the Synod declares itself as satisfied with the procedures heretofore followed by the Synod in instances involving these issues. Although its resolution and bylaws both apparently attempt to create an “exclusive,” “final,” and “binding” dispute resolution process, LCMS’s constitution unequivocally states that it “is not an ecclesiastical government exercising legislative or coercive powers, and with respect to the individual congregation’s right of self-government it is but an advisory body.” LCMS has made it clear through its constitution, bylaws, and resolution that individual congregations, including defendant, are self-governing. There is no question that at the time plaintiff was removed as defendant’s pastor, defendant was “part of’ LCMS; however, LCMS’s constitution, its controlling document, expressly indicates that defendant is not “governed by” LCMS. See Little, 475 US at 1148 (Marshall, J., dissenting). Under this plain reading of LCMS’s constitution, LCMS “is but an advisory body” and not a governing body. Therefore, LCMS is congregational in nature. Plaintiff and LCMS ask this Court to find LCMS to be a hybrid entity: generally congregational, but hierarchical in nature regarding confession, ministerial call, and its dispute resolution process. We decline to do so. We conclude that we are bound by LCMS’s unequivocal statement in its constitution that it “is not an ecclesiastical government exercising legislative or coercive powers, and with respect to the individual congregation’s right of self-government it is but an advisory body.” LCMS’s constitution provides that it “controls and supersedes such bylaws and all other rules and regulations of the Synod.” Therefore, even if the resolution indicates that LCMS has hierarchical dimensions, such an indication is in direct conflict with and superseded by the constitution’s statement that LCMS does not affect an individual congregation’s right of self-government. LCMS’s contention that its resolution is consistent with its constitution rests on the conclusory statement that its “Commission on Constitutional Matters” decided that it was. In short, LCMS’s own determination is not binding on this Court if this Court “ ‘could enforce [the documents] without engaging in a searching and therefore impermissible inquiry into church polity....’” Lamont, 285 Mich App at 617 (citation omitted). Further, LCMS’s constitution declares that “no resolutio

SUMMER v SOUTHFIELD BOARD OF EDUCATION Docket No. 320680. Submitted May 13, 2015, at Detroit. Decided June 2, 2015, at 9:05 a.m. Leave to appeal and leave to cross-appeal sought. Meredith Summer brought an action in the Oakland Circuit Court against the Southfield Board of Education and the Southfield Public Schools, alleging that she was laid off in violation of the Revised School Code, MCL 380.1 et seq. Defendants moved for summary disposition, asserting that the court lacked subject-matter jurisdiction and that plaintiff had failed to state a claim for which relief could be granted. The court, Denise Langford Morris, J., granted summary disposition in favor of defendants under MCR 2.116(C)(4) and (8). Plaintiff appealed. The Court of Appeals held-. 1. MCL 380.1248 of the Revised School Code concerns policies governing personnel decisions that will result in the elimination of a position, and MCL 380.1249 requires school districts to adopt and implement a performance evaluation system for teachers. Under MCL 380.1248(3), a teacher must seek redress for alleged violations of MCL 380.1248 and MCL 380.1249 in the courts. Accordingly, the trial court erred by concluding that it did not have jurisdiction over plaintiff’s claim that defendants violated her rights under §§ 1248 and 1249 of the Revised School Code. 2. The trial court correctly determined, however, that teachers cannot bring a private cause of action under MCL 380.1249. Instead, the code provides alternative enforcement mechanisms, including the fact that school funding is conditioned on compliance with MCL 380.1249. Nonetheless, a school district’s failure to follow the procedures established in MCL 380.1249 may provide the basis for a private cause of action brought under MCL 380.1248. MCL 380.1248(3) states that if a teacher brings an action against a school district based on § 1248, the teacher’s sole and exclusive remedy is an order of reinstatement commencing 30 days after a decision by a court of competent jurisdiction. MCL 380.1248 expressly incorporates the performance evaluation system delineated in § 1249. Specifically, § 1248(l)(b) requires school districts to adopt a policy that provides that all personnel decisions when conducting a staffing or program reduction are to he based on retaining effective teachers and that the determination of whether a teacher is effective is to be made under the evaluation system delineated in § 1249. Therefore, the requirement that a school district use a performance evaluation system in compliance with § 1249 as it evaluates teachers and makes layoff decisions is one of the requirements with regard to which a teacher may assert a private cause of action under MCL 380.1248(3). Accordingly, if a school district lays off a teacher because the teacher is deemed ineffective, but the school district measured the teacher’s effectiveness using a performance evaluation system that did not comply with § 1249, or made a personnel decision that was not based on the factors delineated in MCL 380.1248(l)(b)(i) through (Hi), the teacher could assert a cause of action under § 1248(3) based on a violation of § 1248(l)(b). Therefore, to the extent that plaintiff’s complaint alleged that she was laid off on the basis of considerations other than those permitted under MCL 380.1248, or was laid off following an evaluation that did not comply with MCL 380.1249, plaintiff may have stated a cause of action under MCL 380.1248 that was sufficient to survive summary disposition under MCR 2.116(C)(8). 3. Although the trial court stated that it was granting summary disposition under MCR 2.116(C)(4) and (8), the court’s ruling only addressed whether summary disposition under MCR 2.116(C)(4) was appropriate. Because the trial court did not specifically articulate grounds that would support a conclusion that plaintiff’s complaint failed to state a viable claim such that defendants’ motion for summary disposition under MCR 2.116(C)(8) should be granted, this aspect of the trial court’s order granting summary disposition in favor of defendants had to be vacated. Trial court determination that teachers cannot bring a private cause of action under MCL 380.1249 affirmed; trial court decision granting summary disposition in favor of defendants under MCR 2.116(C)(4) reversed; trial court decision granting summary disposition under MCR 2.116(C)(8) vacated; case remanded for further proceedings. 1. Education — Teachers — Performance Evaluation System — Enforcement. MCL 380.1249 of the Revised School Code requires school districts to adopt and implement a performance evaluation system for teachers; teachers may not bring a private cause of action under MCL 380.1249. 2. Education — Teachers — Layoffs — Use of Performance Evaluation System — Jurisdiction — Causes of Action. MCL 380.1248 of the Revised School Code concerns policies governing personnel decisions that will result in the elimination of a position and MCL 380.1249 of the code requires school districts to adopt and implement a performance evaluation system for teachers; under MCL 380.1248(3), a teacher must seek redress for alleged violations of MCL 380.1248 and MCL 380.1249 in the courts; a school district’s failure to follow the procedures established in MCL 380.1249 may provide the basis for a private cause of action brought under MCL 380.1248. White, Schneider, Young & Chiodini, PC (by Erika P Thorn), for plaintiff. The Allen Law Group, PC (by Kevin J. Campbell and Sean B. O’Brien), for defendants. Before: WILDER, P.J., and OWENS and M. J. KELLY, JJ. WILDER, P.J. Plaintiff, Meredith Summer, appeals as of right an order granting summary disposition in favor of defendants, Southfield Board of Education and Southfield Public Schools. We affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this opinion. I. FACTS This action arises out of a teacher layoff dispute. According to plaintiffs complaint, she began working as a teacher in the Southfield Public Schools in 1999. During the 2010-2011 school year, plaintiff was involved in an ongoing dispute with a colleague. The dispute ultimately led plaintiff to file an internal complaint in the spring of 2011, in which she claimed that the other employee had been harassing her. According to plaintiff, defendants failed to provide any information regarding the results of the investigation that followed plaintiffs complaint. At the beginning of the 2011-2012 school year, an administrator for defendants allegedly informed an employee that she “would not have to worry about [plaintiff]” after the 2011-2012 school year. According to plaintiff, defendants subsequently observed her performance in the classroom, but never shared with her the results of the observation. At the end of the school year, defendants concluded that plaintiffs teaching performance that year was “minimally effective,” but despite this evaluation rating, they did not provide a “plan of improvement” for plaintiff or otherwise give plaintiff an opportunity to improve the purported deficiencies in her performance. At the end of the 2011-2012 school year, plaintiff was laid off by defendants. According to plaintiff, she was the only teacher in the school to receive a “minimally effective” rating. Despite being laid off at the end of the 2011-2012 school year, plaintiff was subsequently hired to teach summer school during the summer of 2012. On August 30, 2013, plaintiff filed a complaint alleging that she was laid off in violation of the Revised School Code, MCL 380.1 et seq. Plaintiff asserted that while defendants had purportedly “developed a system to effectuate standards for placements, layoffs, and recalls,” which — under the requirements of MCL 380.1249 — “was supposed to be based on teacher effectiveness and be rigorous, transparent and fair,” nevertheless, defendants’ actions in laying off plaintiff “were arbitrary, capricious, and in bad faith” in the following ways: A. Defendants . . . retaliated against [plaintiff] by failing or refusing to share the results of her retaliation complaint [against another employee who had harassed plaintiff] despite the fact that she was the Complainant; B. Defendants ... prejudged her evaluation when it [sic] decided, and declared that at the end of the 2011-2012 school year, people “would not have to worry about [plaintiff];” C. Defendants .. . gave [plaintiff] a “Minimally Effective” evaluation based in part on Observations that were never even shared with [plaintiff] and for which no written feedback was given; D. Defendants ... also harbored ill will towards [plaintiff] based on incidents when she served as the union building representative [.] Plaintiff also alleged that defendants provided no plan of improvement and “no opportunity to cure any alleged performance shortcomings” after it rated plaintiff as minimally effective. Plaintiffs complaint requested a judgment (1) requiring defendants to recall her to her previous position, (2) requiring defendants to void and destroy her 2011-2012 school year evaluation, and (3) awarding money damages equaling her costs and attorney fees, and any other relief to which she was entitled. Defendants filed a motion for summary disposition under MCR 2.116(C)(4) (court lacks jurisdiction of the subject matter) and MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). Defendants argued that jurisdiction over plaintiffs claim that her layoff decision was “arbitrary and capricious” or was made in bad faith rested exclusively with the State Tenure Commission (STC), because plaintiffs allegations amount to nothing more than a claim that the layoff decision constituted a subterfuge. Likewise, defendants argued that the Michigan Employment Relations Commission (MERC) has exclusive jurisdiction over plaintiffs claim arising out of her union activity. Alternatively, defendants argued that plaintiffs complaint was not properly before the circuit court because she had failed to exhaust her administrative remedies. Defendants also presented four separate bases from which they argued the trial court should conclude that summary disposition for failure to state a claim was appropriate. First, defendants contended that plaintiff failed to set forth a cause of action under MCL 380.1248 because plaintiff admitted that she was laid off after being rated minimally effective, did not allege that the evaluation process failed to follow the procedure required under the statute, and failed to make any allegation that she was laid off on the basis of seniority or tenure status. Second, defendants argued that MCL 380.1249 does not establish a private cause of action for teachers against a school district, and, therefore, plaintiff failed to state a valid claim under MCL 380.1249. Third, defendants argued in the alternative that, even if plaintiff has a private cause of action under MCL 380.1249, plaintiffs allegation that defendants did not offer her a plan of improvement following her evaluation did not constitute a violation of MCL 380.1249, because the school district was not required by statute to provide minimally effective teachers with plans of improvement until the 2013-2014 school year. Finally, defendants contended that plaintiff’s allegation, that defendants denied her an opportunity to address shortcomings in her performance, failed to state a claim because plaintiff did not identify the particular statutory provision which they allegedly violated. In response, plaintiff argued that defendants’ motion for summary disposition should be denied. Plaintiff claimed that facts supporting her allegations, if taken as true, articulated a colorable claim under the Revised School Code that defendants laid off plaintiff in an arbitrary and capricious manner and failed to use an evaluation procedure that was fair, open, and transparent. Additionally, plaintiff argued that, if the trial court concluded that plaintiff had not stated an actionable claim, she should be allowed, at the very least, to amend her pleadings. Second, plaintiff argued that it was evident from the plain meaning of the phrase “court of competent jurisdiction” in MCL 380.1248(3) that the Legislature intended to allow teachers to bring claims for reinstatement in the circuit courts of this state. Plaintiff also argued that a private cause of action could be stated under MCL 380.1249. Finally, plaintiff contended that defendants had mistaken her claim as one arising under the public employee relations act (PERA), MCL 423.201 et seq., because she had alleged no cause of action related to her union status. In support of her position that she had stated a claim under MCL 380.1248 and MCL 380.1249, plaintiff also referred to the orders entered by Oakland Circuit Court Judge James Alexander in a similar case, which denied defendant Southfield Board of Education’s motions for summary disposition and held that, in that case, the plaintiffs had stated a cause of action under both MCL 380.1248 and MCL 380.1249. The trial court issued its opinion and order on February 12, 2014, granting defendants’ motion for summary disposition under MCR 2.116(C)(4) and (8). The opinion provided, in relevant part: Plaintiffs Complaint states that she was laid off after she was rated “Minimally Effective.” Plaintiff alleges that her rating was a subterfuge and that the real reason she was laid off was retaliation for an internal complaint about a co-worker. The Court finds that these allegations do not support a claim under MCL 380.1248, which requires the lay-off to be based on “teacher effectiveness.” The [STC] has jurisdiction over a claim that a teacher was laid off in bad faith and for a reason that is arbitrary and capricious. Because Plaintiff has failed to exhaust her administrative remedy by filing her claim with the [STC], summary disposition is appropriate. The Court finds that MCL 380.1249 does not create a cause of action under the facts presented. While this Court understands Plaintiffs desire for it to follow the ruling made by Judge Alexander, that decision is not relevant to this case because this Plaintiff was evaluated under the new system at the end of the 2011-2012 school year. Finally, the Court finds that Plaintiffs allegations regarding her status as a union representative must be brought before the [MERC]. II. STANDARDS OF REVIEW This Court reviews de novo a trial court’s decision on a motion for summary disposition. Williams v Enjoi Transp Solutions, 307 Mich App 182, 185; 858 NW2d 530 (2014). Whether a trial court has subject matter jurisdiction over a dispute is also a question reviewed de novo by this Court. Forest Hills Coop v City of Ann Arbor, 305 Mich App 572, 616; 854 NW2d 172 (2014). Summary disposition is appropriate under MCR 2.116(C)(4) when the trial court “lacks jurisdiction of the subject matter.” MCR 2.116(C)(4). See also Packowski v United Food & Commercial Workers Local 951, 289 Mich App 132, 138; 796 NW2d 94 (2010). “For jurisdictional questions under MCR 2.116(C)(4), this Court determine[s] whether the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate ... [a lack of] subject matter jurisdiction.” Packowski, 289 Mich App at 138-139 (quotation marks and citation omitted; alterations in original). “A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. Summary disposition under subrule (C)(8) is appropriate if no factual development could justify the plaintiffs claim for relief.” Stone v Auto-Owners Ins Co, 307 Mich App 169, 173; 858 NW2d 765 (2014) (quotation marks and citation omitted). III. THE 2011 AMENDMENTS TO THE REVISED SCHOOL CODE Before the enactment of the “tie-barred” 2011 amendments to the Revised School Code, the regulation of teacher layoffs was solely a matter of the collective-bargaining process and was subject to adjudication by MERC. Baumgartner v Perry Pub Sch, 309 Mich App 507, 510-512; _ NW2d _(2015). “As such, challenges to layoff decisions were regarded as unfair labor practices, which would be a violation of PERA adjudicated by MERC.” Id. at 522-523. However, the teacher tenure act, MCL 38.71 et seq., previously included two provisions that provided a basis for the STC to assert jurisdiction over some teacher layoff disputes. Under former MCL 38.105, repealed by 2011 PA 101, tenured teachers could be terminated only “because of a necessary reduction in personnel,” and they were entitled to be appointed to the first vacancy in any school district for which they were certified and qualified. See 1993 PA 59. Under MCL 38.121, any tenured teacher could “appeal to the tenure commission any decision of a controlling board under this act,” including claims arising under former MCL 38.105. See Freiberg v Bd of Ed of Big Bay De Noc Sch Dist, 61 Mich App 404, 411-414; 232 NW2d 718 (1975), superseded by statute as noted in Baumgartner, 309 Mich App at 513, 521-524. Accordingly, in a small number of cases, a plaintiff could assert a cause of action known as “subterfuge” — i.e., that an employment action was taken for ostensibly legal reasons, but was, in actuality, not done in “good faith as a ‘necessary reduction in personnel’ ” — over which the STC “ha[d] jurisdiction to determine, as a factual matter, whether the local school board took the action because of bona fide economic necessity.” Freiberg, 61 Mich App at 413-414; see also Baumgartner, 309 Mich App at 523. However, under the 2011 amendments of the Revised School Code, the Legislature (1) removed the subject of teacher layoffs from the collective-bargaining process, such that teachers could no longer raise challenges to layoff decisions with MERC as unfair labor practices in violation of PERA, (2) required that layoff decisions be based on teacher effectiveness, and (3) established that the courts, not the STC or any other administrative agency, have jurisdiction over layoff-related challenges. Baumgartner, 309 Mich App at 524. Correspondingly, under the provisions of the Revised School Code in place at all times relevant to these proceedings, school districts are required to adopt a “performance evaluation system” that meets the following pertinent requirements: Not later than September 1, 2011,... with the involvement of teachers and school administrators, the board of a school district or intermediate school district or board of directors of a public school academy shall adopt and implement for all teachers and school administrators a rigorous, transparent, and fair performance evaluation system that does all of the following: (a) Evaluates the teacher’s or school administrator’s job performance at least annually while providing timely and constructive feedback. * * (c) Evaluates a teacher’s or school administrator’s job performance, using multiple rating categories that take into account data on student growth as a significant factor.... If the performance evaluation system implemented by a school district, intermediate school district, or public school academy under this section does not already include the rating of teachers as highly effective, effective, minimally effective, and ineffective, then the school district, intermediate school district, or public school academy shall revise the performance evaluation system not later than September 19, 2011 to ensure that it rates teachers as highly effective, effective, minimally effective, or ineffective. (d) Uses the evaluations, at a minimum, to inform decisions regarding all of the following: (i) The effectiveness of teachers and school administrators, ensuring that they are given ample opportunities for improvement. (ii) Promotion, retention, and development of teachers and school administrators, including providing relevant coaching, instruction support, or professiona