                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-1063
                                   A16-1064

                  In re Resolutions Relating to the Termination and
                      Non-Renewal of the Teaching Contracts of
           Carol Grzybowski and Heather Mignone, Probationary Teachers.

                                 Filed February 21, 2017
                                        Affirmed
                                    Bjorkman, Judge

                         Independent School District No. 276


Justin Cummins, Brendan D. Cummins, Cummins & Cummins, LLP, Minneapolis,
Minnesota (for relators Carol Grzybowski and Heather Mignone)

Gregory S. Madsen, Adam C. Wattenbarger, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent Independent School District No. 276)

      Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

BJORKMAN, Judge

      By certiorari appeal, relators challenge respondent’s decisions to not renew their

teaching contracts. We affirm.

                                        FACTS

      Respondent Independent School District No. 276 hired relators Carol Grzybowski

and Heather Mignone as probationary teachers for the 2014-15 school year. Grzybowski
worked as a guidance counselor at Minnetonka High School and Mignone was a special

education teacher at Minnewashta Elementary School. Relators previously worked for

more than three years in other districts and achieved continuing-contract status.1 Before

the end of the school year, relators’ respective principals inquired whether they were

willing to continue their probationary contracts for the 2015-16 school year.            Both

Grzybowski and Mignone responded affirmatively, and confirmed their agreements in

April 2015 via e-mails to their principals.         The Minnetonka Teacher’s Association

president and a school district representative signed agreements extending relators’

probationary periods for a second year.

         At its May 5, 2016 meeting, the school board passed a resolution to terminate and

not renew the contracts of relators and three other probationary teachers. Prior to the

meeting, counsel for relators provided written argument and copies of relators’ e-mail

communications in opposition to the school board’s proposed action. On May 6, the school

district informed Grzybowski and Mignone of the board’s action. Relators each appealed,

and this court consolidated their appeals.

                                        DECISION

         We review school-board teacher non-renewal decisions by writ of certiorari.

Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 673-74 (Minn. 1990). Under this

deferential review, we will only reverse a school board’s determination if “it is fraudulent,

arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or



1
    In Independent School District No. 276, continuing-contract status is equivalent to tenure.

                                                2
based on an error of law.” Id. at 675. “Substantial evidence is: 1. Such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion; 2. More than a

scintilla of evidence; 3. More than some evidence; 4. More than any evidence; and 5.

Evidence considered in its entirety.” Kelly v. Indep. Sch. Dist. No. 623, 380 N.W.2d 833,

836 (Minn. App. 1986) (quotation omitted). Determination of a teacher’s employment

status under the applicable statutes is a question of law that we review de novo. Flaherty

v. Indep. Sch. Dist. No. 2144, 577 N.W.2d 229, 233 (Minn. App. 1998), review denied

(Minn. June 17, 1998).

       Minn. Stat. § 122A.40 (2016) governs the terms and conditions of teaching

contracts. The first three consecutive years of a teacher’s first teaching position (or the

first year of a teacher’s subsequent employment) is a probationary period of employment.

Minn. Stat. § 122A.40, subd. 5(a). During this period, a school board has discretion to

renew or not renew the teacher’s annual contract. Id. But a “teacher who has completed a

probationary period in any district, and who has not been discharged or advised of a refusal

to renew the teacher’s contract under subdivision 5” is entitled to a continuing contract.

Minn. Stat. § 122A.40, subd. 7(a). A teacher may waive her right to a continuing contract

so long as the waiver is intentional and voluntary. Lucio v. Sch. Bd. of Indep. Sch. Dist.

No. 625, 574 N.W.2d 737, 742 (Minn. App. 1998), review denied (Minn. Apr. 30, 1998).

Intent need not be express; it may be inferred from conduct. Flaherty, 577 N.W.2d at 232.

       Relators argue that they did not waive their rights to continuing contracts by asking

the principals to extend their probationary status and that the school district’s 2016

nonrenewal decision violated section 122A.40. We address each argument in turn.


                                             3
I.     Relators waived their rights to continuing contracts by asking their principals
       to extend their probationary status for a second year.

       Relators first argue that their written requests to extend their probationary period for

the 2015-16 school year do not evince the intent to waive their rights to continuing

contracts. We are not persuaded. Grzybowski’s e-mail to her principal stated, “I would

like to ask for a second year of probationary status for the 2015-16 school year to continue

my growth.”       The subject line of the e-mail—“Tenure status”—demonstrates

Grzybowski’s knowledge that her request would impact her right to a continuing contract.

Mignone’s initial e-mail communication did not mention her probationary status. But, at

human resources’ request, Mignone sent a second e-mail clarifying that she wished “to

extend [her] probation for an additional year.”         As experienced teachers who had

previously achieved continuing-contract status in other school districts, relators understood

that their actions would extend their probationary contracts for another year.2 And neither

questioned why she was treated as a probationary teacher in evaluations throughout the

2015-16 school year. Substantial evidence in the record demonstrates that Grzybowski and

Mignone intended to waive their anticipated continuing-contract rights when they

requested a second year of probationary status.

       Next, relators contend that their requests for second probationary contracts were not

voluntary because their alternative was losing their employment with the district altogether.

We disagree. Because relators had not, in April 2015, completed their probationary period,



2
  Relators acknowledge that teachers and school districts may agree to extend a
probationary contract without violating section 122A.40.

                                              4
the school district was not required to renew their teaching contracts.           Minn. Stat.

§ 122A.40, subd. 5(a). The fact that the school district offered relators a chance for another

year of probation, rather than not renewing their contracts, does not evidence coercion or

compromise the purpose behind the statute. This case is not like Perry v. Indep. Sch. Dist.

No. 696, 297 Minn. 197, 207, 210 N.W.2d 283, 290 (1973), on which relators rely. Perry

agreed to teach on a substitute basis for a second year until the school district found a more

“suitable” candidate. The school district told Perry that it did not offer regular contracts to

married women. The supreme court declined to construe Perry’s agreement as a valid

waiver of her continuing-contract right, stating that the district “appears to have utilized

this device solely to avoid giving tenure to married women in circumvention of Minn. St.

125.12.” Perry, 297 Minn. at 207, 210 N.W.2d at 290. While relators may not have liked

the choice with which they were presented—teach under a second probationary contract or

leave the district—it does not follow that the school district coerced their agreement. And,

as noted above, agreements to extend a probationary term do not violate section 122A.40.

On this record, we conclude that ample evidence establishes that relators voluntarily

waived their rights to continuing contracts.

II.    The school district did not violate Minn. Stat. § 122A.40.

       On May 5, 2016, the school board elected to not renew relators’ contracts. At that

point in time, relators had not completed their second probationary period. The school

district had discretion to renew or not renew relators’ contracts. Minn. Stat. § 122A.40,

subd. 5(a). Accordingly, the school district’s nonrenewal decisions did not violate section

122A.40.


                                               5
       In summary, substantial evidence supports the school district’s implicit finding that

relators were probationary teachers in May 2016.            Because relators did not have

continuing-contract rights, the school district did not err or act in an arbitrary fashion when

it declined to renew their contracts.

       Affirmed.




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