Wrongful Termination Cases

Mary Ellen Wessell vs. Mink Brook Associates, Inc., & another. No. 14-P-1120. Worcester. April 7, 2015. August 5, 2015. Present: Kafker, C.J., Kantrowitz, & Hanlon, JJ. Massachusetts Wage Act. Attorney at Law, Disqualification, Attorney-client relationship, Conflict of interest. Employment, Retaliation, Termination. Damages, Wrongful discharge of employee, Back pay. Practice, Civil, Instructions to jury, Damages. In a civil action in which the plaintiff asserted claims for lost wages and retaliatory discharge against the defendants (her former employers), a Superior Court judge properly denied the defendants’ motion to disqualify the plaintiffs attorney, where, although the attorney previously had advised the plaintiff on certain topics in the plaintiffs capacity as an employee of the defendants, those matters were not substantially related to the plaintiff’s complaint, given that there was no overlap or similarity; where the attorney never gained confidential information in those prior matters; and where the motion was a dilatory tactic, in that it was filed on the eve of trial, one and one-half years after the complaint was filed. [751-753] At the trial of a civil complaint in which the plaintiff asserted claims for lost wages and retaliatory discharge against the defendants (the plaintiff’s former employers), the judge correctly instructed the jury that if they found that the defendants had fired the plaintiff in retaliation for asserting a wage right, under G. L. c. 149, § 148A, the jury could award her damages based on her earnings from the date of her termination until the date of the jury’s decision [753-755], Civil action commenced in the Superior Court Department on June 19, 2012. A motion to disqualify the plaintiff’s attorney was heard by David Ricciardone, J., and the case was tried before him. Gregg S. Haladyna for the defendants. Steven D. Weatherhead (John F. Welsh with him) for the plaintiff. Robert C. Stone. Kantrowitz, J. This case involves a dispute between an employee and her former employer regarding unpaid wages. The plaintiff, Mary Ellen Wessell, successfully sued Mink Brook Associates, Inc. (Mink Brook), and owner Robert C. Stone under the Wage Act for lost wages and retaliatory discharge after Stone refused to issue her a paycheck, she complained, and she was fired. In this appeal, the defendants argue that the trial judge improperly denied their pretrial motion to disqualify opposing counsel because Wessell’s attorney, who was her long-time personal friend, had previously provided informal legal advice to her on certain topics in Wessell’s capacity as an employee of Mink Brook. The defendants also contend that the judge improperly instructed the jury on compensatory damages on the retaliation claim. We affirm. Background,. Mink Brook was incorporated in 1993 as a franchisee of Paul Davis Restoration, a national company that performed restoration work on houses to mitigate damage from flooding, fire, mold, or other problems. Stone was Mink Brook’s owner and president. In 2007, Stone contacted Wessell to discuss hiring her to work on the company’s financial matters and record-keeping. She joined Mink Brook in its Worcester office as a subcontractor at an hourly rate, and in 2008 she became the company’s “business manager” at an annual salary of $50,000. Wessell’s duties included managing accounts, human resources, payroll, bookkeeping, insurance policies, vehicle registration, and licenses. She would occasionally work from home on a laptop computer that Stone purchased. Wessell also performed unpaid work duties during her vacations or at times outside of her business hours. Employees received paychecks every two weeks. Wessell testified that she worked about fifty hours per week. During Wessell’s employment at Mink Brook, she occasionally sought informal legal advice from a close friend, Attorney John Welsh, whom she had known for many years. In 2008 and 2009, Wessell consulted with Attorney Welsh on a former employee’s breach of postemployment covenants, and Welsh drafted a cease- and-desist letter. In 2010, on matters involving another former employee, Wessell exchanged electronic mail messages (e-mails) with Welsh, and he reviewed correspondence that Mink Brook sent to the Attorney General’s office. Sometime in 2010, Welsh notified Wessell that he would no longer provide legal advice to Mink Brook. However, on June 15, 2011, Wessell again contacted Welsh, who agreed as a “friend” to provide advice on an issue involving building access by a Mink Brook job applicant who had a physical disability. Wessell testified that as of late 2011, she observed numerous problems or irregularities with the company’s finances and operations. She informed Stone of some of her observations, including her belief that an employee was “stealing from him.” Stone said “[bjasically nothing” in response to this information. Shortly thereafter, in early January, 2012, Stone called Wessell into a meeting in which the accused employee was present. At this meeting, Stone accused Wessell of lying about her reporting of work hours since her automobile accident (see note 3, supra). He demanded financial reports that were impossible for her to provide, and he ultimately demoted her from business manager, placed the accused employee in that role, and required Wessell to report to that employee. On March 28, 2012, during a meeting with several employees including Wessell, Stone addressed their financial concerns about Mink Brook and informed them that the company was not closing but was experiencing “just a little bump in the road.” Stone then named several employees who would still receive their upcoming paychecks, but he did not name Wessell. When she inquired about her paycheck, he stated that she would not receive it. Wessell responded that this was unfair and that she wanted to meet privately with Stone after the group meeting. One hour later, Wessell and Stone met privately in her office. Wessell demanded to be paid, and Stone replied that she “could afford not to get paid.” The next day, March 29, 2012, Wessell again met with Stone and the accused employee. Stone stated that Wessell was stealing money and reimbursing herself without authorization, which Wessell denied. Stone then fired her. Wessell formally retained Welsh who, on June 19, 2012, filed the instant complaint against Mink Brook and Stone, alleging claims of nonpayment of wages and retaliatory firing in violation of the Wage Act, G. L. c. 149, §§ 148, 148A. On January 2, 2014, nearly one and one-half years after the litigation began and eleven days before trial, the defendants filed a motion to disqualify Welsh, claiming a conflict of interest given Welsh’s attorney-client relationship with them. One week later the trial judge, after a hearing, denied the motion. The judge ruled that Welsh’s advice to Wessell, given when she worked for Mink Brook, was informal, free, and unrelated to the issues in her complaint. The judge concluded that although Welsh’s personal relationship with Wessell gave Mink Brook a “valuable contact,” Mink Brook and Welsh never established an attorney-client relationship. On January 14, 2014, the jury found for the plaintiff and awarded damages for lost wages and unused vacation time, up to the date of her firing, of $3,750. The jury also awarded lost compensation from the date of firing up to the date of the verdict, minus earnings from Wessell’s subsequent employment elsewhere, of $54,880.90. On January 24, 2014, the court entered an amended judgment that trebled the amount, as required under G. L. c. 149, § 150, and added interest, for an award of $187,111.38. This appeal followed. Motion to disqualify. Denial of a motion to disqualify an attorney is reviewed for abuse of discretion. Steinert v. Steinert, 73 Mass. App. Ct. 287, 288 (2008). A moving party must show, first, that the current representation is adverse to the interests of the former client, and second that the matters of the two representations are substantially related. Slade v. Ormsby, 69 Mass. App. Ct. 542, 546 (2007), citing Adoption of Erica, 426 Mass. 55, 61 (1997). See Mass.R.Prof.C. 1.9, 426 Mass. 1342 (1998). An attorney-client relationship “may be, but need not be, express; the relationship can be implied from the conduct of the parties.” Page v. Frazier, 388 Mass. 55, 62 (1983). For an implied attorney-client relationship, (1) a party must seek advice from an attorney, (2) the advice sought must be within the attorney’s professional competence, and (3) the attorney agrees to give, or actually gives, the advice. DeVaux v. American Home Assur. Co., 387 Mass. 814, 818 (1983). Additionally, “the question whether there was an attorney-client relationship depends on the reasonableness of the [complaining party’s] reliance.” Id. at 819. For matters to be “substantially related,” courts have consistently found that counsel must possess confidential information that could be used against the former client in the current representation. See Masiello v. Perini Corp., 394 Mass. 842, 847-850 (1985); Adoption of Erica, 426 Mass, at 63. When determining whether matters are substantially related, a judge should make a factual determination by comparing “the overlap and similarity” between the former and current representations. Slade v. Ormsby, 69 Mass. App. Ct. at 547. Courts discourage “eleventh hour maneuvers” to disqualify opposing counsel where the moving party has advance notice of the representation by opposing counsel but waits to raise the issue until the eve of trial. Masiello v. Perini Corp., 394 Mass, at 850. Such tactics “are disruptive to the efficient administration of justice and are costly.” Ibid. “Court resources are sorely taxed by the ... use of disqualification motions as harassment and dilatory tactics.” Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 250 n.7 (1985). Here, even if an attorney-client relationship existed between Welsh and the defendants, the judge properly denied the motion to disqualify because Welsh’s services, including his advice on handicap accessibility and review of certain letters, never involved matters “substantially related” to Wessell’s Wage Act dispute. See Slade v. Ormsby, 69 Mass. App. Ct. at 546. Although Welsh advised Wessell on specific Mink Brook employee matters, those matters were not substantially related to Wessell’s complaint because there was no overlap or similarity. See id. at 547. Also, Welsh never gained confidential information in the prior matters that disadvantaged Mink Brook at trial here. See Masiello v. Perini Corp., 394 Mass, at 847-850; Adoption of Erica, 426 Mass, at 63. Lastly, as the judge noted before trial, the defendants’ motion had all the indications of being an “eleventh hour maneuver[ ]” to disqualify opposing counsel despite numerous opportunities before trial to raise the objection. Masiello v. Perini Corp., 394 Mass, at 850. The defendants filed their motion on the eve of trial, about one and one-half years after Wessell’s complaint. Without a sufficient explanation for the extraordinary delay, the motion was properly denied not only as without merit but also as a dilatory tactic. Damages under Wage Act. The defendants argue that the judge erred when he instructed the jury that they could award the plaintiff compensatory damages (“back pay”) for a violation of the Wage Act, specifically for a retaliatory firing prohibited under G. L. c. 149, § 148A. They maintain that one who violates § 148A “shall be punished or shall be subject to a civil citation or order as provided in [G. L. c. 149, §] 27C,” only, and that § 148A does not enable a private individual to obtain compensatory damages because the criminal and civil penalties in § 27C are the exclusive remedy, enforceable by the Attorney General only, for § 148A violations. The Wage Act has interrelated mechanisms to ensure that employees are timely paid and protected when that right is asserted. Under G. L. c. 149, § 148, as amended by St. 1992, c. 133, § 502, an employer “shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week . . . .” The first paragraph of G. L. c. 149, § 148A, inserted by St. 1977, c. 590, mandates that “[n]o employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” Completing the circle, G. L. c. 149, § 150, authorizes an employee faced with a violation of § 148 or § 148A to bring a civil action “for any damages incurred, and for any lost wages and other benefits.” See Fernandes v. Attleboro Hous. Authy., 470 Mass. 117, 126-127 (2014). The defendants’ view, that the remedy under § 148A is limited to criminal and civil penalties and not damages from the date of retaliation up to the date of judgment, is overly restrictive, essentially ignores G. L. c. 149, § 150, and leaves those aggrieved with no option other than a complaint to, and action by, the Attorney General. The Wage Act, when read as a whole to ensure payment and to protect employees who assert that right, does not support the defendants’ assertion that the § 27C language is exclusive and only allows actions by the Attorney General. In so arguing, the defendants ignore the authorization in § 150 for a private cause of action for retaliation prohibited by the first paragraph of § 148A. In sum, read in totality, for wage claims under § 148, an employee may recover earned wages that an employer has withheld. For retaliation claims under § 148A, an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination. Damages for retaliation may include earnings from the date of termination up to trial. See Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004) (“An award of back pay compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment”). Here, the defendants’ retaliatory firing of Wessell violated § 148A, which triggered Wessell’s § 150 remedy for recovery of “any damages incurred, and . . . any lost wages and other benefits.” The judge correctly instructed the jury that if they found that the defendants fired Wessell in retaliation, the jury could award her damages based on her earnings from the date of her termination until the date of the jury’s decision. See Fernandes v. Attleboro Hous. Authy., 470 Mass, at 130 & n.ll. Amended judgment affirmed. Our recitation includes both evidence put before the judge on the defendants’ pretrial motion to disqualify Wessell’s counsel and evidence put before the jury at trial. The latter we generally present in the light most favorable to Wessell. Much was undisputed, but where there was a relevant conflict, or a finding by the judge, we will so note. In April, 2011, Wessell was involved in a car accident, which required approximately eight weeks of recuperation and lost work. When Stone protested the lost time, Wessell worked part-time from home. She was paid at an hourly rate. Attomey Welsh stated in an affidavit that “I have known Ms. Wessell for over 35 years. She has been my sister’s best friend since grade school.” He further stated that “Ms. Wessell would call me intermittently (once every 12-18 months) for advice concerning personnel issues she was handling on behalf of the company.” Welsh stated in his affidavit that he stopped providing legal advice to Mink Brook because he found Stone’s treatment of Wessell to be unacceptable. Additionally, he had a billing and stolen property dispute with Mink Brook regarding work performed on his home. The defendants dispute receiving notice that Welsh’s legal advice stopped in 2010. The defendants also alleged that Welsh helped Wessell prepare an employee handbook for Mink Brook. Regarding Mink Brook’s finances, Wessell testified that sales were low and customers were complaining. On at least one occasion, Wessell had to delay issuing paychecks to herself and other employees. Wessell testified that Stone charged personal expenses to company credit cards and used company money to pay his son large amounts of money for cleaning the bathrooms, to provide his wife with a salary, to make payments on his home mortgage, and to purchase several items that were unrelated to the company’s home restoration business. Wessell testified that she later received a check for a portion of the money that Mink Brook owed her for wages. Wessell’s complaint stated that she received a right-to-sue letter from the Attorney General; this letter is not included in the record appendix, but the defendants raise no issue on this subject. Wessell’s complaint also included a quantum meruit claim that was eventually dismissed by stipulation of the parties. The matter of representation by Welsh was apparently considered by the defendants when they were defaulted in late 2012. Counsel for the defendants told the trial judge on January 9,2014, at the hearing on the motion to disqualify, that the default occurred because Stone considered the complaint “just an intimidation tactic,” and believed that Welsh could not bring the complaint because of his prior legal assistance to Mink Brook. The judge found: “There’s a very de minimis interaction between Ms. Wessell and Mr. Welsh in terms of some of this informal advice and education on legal topics such as handicap accessibility and what to do with a competing former employee and things of that nature. These contexts to me arise out of the personal relationship between the two. I think he was representing Mink Brook in only the most technical sense, and certainly by going ahead and representing Ms. Wessell in this case I don’t think that there is any basis for an abuse of confidential information regarding Mink Brook that he learned in the course of any of this advice. The advice Mr. Welsh gave on these few exchanges over the course of several years were on clearly unrelated matters . . . .” The statute states, in pertinent part, “An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” G. L. c. 149, § 150, as amended by St. 2008, c. 80, § 5. On April 8, 2014, the court further ordered an award of Wessell’s costs and attorney’s fees, which together totaled about $40,000. The defendants did not file an appeal from that order, and its correctness is not before us. Rule 1.9(a) states, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” The Massachusetts Rules of Professional Conduct “specifically incorporate” the substantial relationship test. Adoption of Erica, 426 Mass, at 61. One can envision a scenario where matters are substantially related despite a lack of confidential information. Such is not the case here. “[T]he exact parameters” of when two matters are substantially related has not been delineated in the case law. Slade v. Ormsby, 69 Mass. App. Ct. at 547 n.11, citing Adoption of Erica, 426 Mass, at 62. Regarding the employee handbook that Welsh was alleged to have helped to create for Mink Brook, the judge found the defendants’ contention to be an “overstatement.” While Welsh infrequently gave uncompensated legal advice to Wessell, the defendants and Welsh never expressly created any formal representation agreement. See Page v. Frazier, 388 Mass, at 62. Additionally, while a closer question, they never formed an implied

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