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STATE OF MICHIGAN
COURT OF APPEALS


JOSEPH KLOBERDANZ, Next Friend of JEFFREY KLOBERDANZ, a Minor, Plaintiff-Appellant, v SWAN VALLEY SCHOOL DISTRICT, Defendant-Appellee.

UNPUBLISHED January 31, 2006

No. 256208 Saginaw Circuit Court LC No. 03-047994-CZ

Before: Kelly, P.J., and Meter and Davis, JJ. PER CURIAM. Plaintiff appeals as of right from the trial court's order granting summary disposition to defendant under MCR 2.116(C)(10). This case arises out of defendant's decision to issue a short-term suspension to plaintiff's son, Jeffrey Kloberdanz,1 based on a gesture he made at his high school. We affirm. On the day of the incident underlying this case, the high school counselor was giving a presentation to plaintiff's Language Arts class. According to plaintiff, while the counselor was addressing a question from another student, plaintiff looked at his friend and, to indicate his boredom, made a gesture as if he were shooting himself in the mouth. However, the counselor perceived the gesture differently and believed that plaintiff was making a sexual gesture about her. Plaintiff was subsequently suspended for the remainder of the school week. Plaintiff alleges that defendant lacked competent, material, and substantial evidence to support its finding that plaintiff made a sexual gesture that referred to the counselor. We first note, because the briefs indicate some confusion on this issue, that whether there was competent, material, and substantial evidence supporting defendant's decision is not a question of fact reserved for a jury or other factfinder. Indeed, the factual findings in this case were already made by defendant, and the courts of this state are not permitted to make new factual findings. See Birdsey v Grand Blanc Community Schools, 130 Mich App 718, 723-724; 344 NW2d 342

1

Because Jeffrey is the real plaintiff in interest, we will hereafter refer to him as plaintiff.

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(1983). Instead, we must only determine the legal question of whether defendant's factual findings were supported by competent, material, and substantial evidence. Id. Competent and material evidence is evidence that is admissible and relevant. McBride v Pontiac School Dist (On Remand), 218 Mich App 113, 122; 553 NW2d 646 (1996). Judicial review for "substantial evidence" requires review of the whole record, and while this review is not de novo, "it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency." Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). While conducting this qualitative and quantitative evaluation, a reviewing court must "not invade the province of exclusive administrative fact-finding by displacing an agency's choice between two reasonably differing views." Id. (emphasis added). Moreover, this court gives deference to an agency when reviewing that agency's decision for substantial evidence: `[S]ubstantial evidence' is that which a reasonable mind would accept as adequate to support a decision. Substantial evidence is more than a mere scintilla but less than a preponderance of evidence. Under this test, it does not matter that the contrary position is supported by more evidence, that is, which way the evidence preponderates, but only whether the position adopted by the agency is supported by evidence from which legitimate and supportable inferences were drawn. [McBride, supra at 123 (internal citations omitted).] In this case, the district superintendent, as the final arbiter of the facts underlying plaintiff's suspension, determined that plaintiff made a sexual gesture concerning the counselor. He conducted individual interviews with all who saw the gesture: plaintiff, the counselor, and plaintiff's friend. Faced with conflicting accounts of the gesture from plaintiff and his friend, on one hand, and the counselor, on the other hand, the superintendent testified that he based his conclusion on the counselor's perception of the gesture, apparently deciding that the counselor was more reliable than plaintiff and his friend. Based on the record, we have no reason to doubt the superintendent's view of the counselor's reliability. In the counselor's written report and subsequent deposition, she described the sexual gesture in detail.2 While there was evidence

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