School Law Summary 2019-2
This issue includes: Americans with Disabilities Act • Arbitration — Appeal • Back Pay • Breach of Contract • Civil Procedure • Community Reinvestment Agreements • Fair Share Fees • Governmental Immunity • Hostile Work Environment/Constructive Discharge • Individuals With Disabilities Act • Individuals With Disabilities • Liability • Public Records • Sunshine Law • Tax Sharing Agreements • Tort Liability-Sovereign Immunity • Transfer-Territory • Whistleblower Protection
AMERICANS WITH DISABILITIES ACT
District court concludes, although the crux of plaintiffs’ complaint is denial of FAPE, they do not have to exhaust IDEA remedies before filing other federal claims because exhaustion would be futile.
D.M. v. Bd. of Edn. Toledo Pub. Schools, N.D.Ohio No. 3:18CV1307, 2019 U.S. Dist. LEXIS 9252 (Jan. 18, 2019).
D.M. was a student at Robinson Achievement Center (Robinson), a school for students with disabilities in the Toledo Public School District, attending under an Individualized Education Program (IEP). On June 10, 2016, while D.M. was attending a summer reading program at Robinson, his legal guardian, Laura Manees, received a call asking her to pick him up because staff was unable to calm him. When Manees arrived at the school, she found D.M. on the floor being restrained by three staff members, David Manley, Valerie Powell, and Sonja Austin. The staff members released D.M. upon Manees’s arrival. D.M. sustained injuries including scratches and bruising on his neck, abrasions on his knee and elbow, and a hematoma over his left eye. He was treated in the emergency room for his injuries. D.M.’s IEP did not address whether staff could restrain him.
Manees filed a complaint with the Ohio Department of Education’s Office for Exceptional Children (OEC), which told her the matter was outside the scope of its responsibilities. She also filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR), which was pending when she filed this claim.
Manees and D.M. sued the board of education and Manley, Powell and Austin, alleging discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as well as claims that defendants violated D.M.’s rights under the Fourth and Fourteenth Amendments. Finally, Manees and D.M. brought state law claims against Manley, Powell and Austin for assault, battery and intentional infliction of emotional distress.
The defendants moved to dismiss on the bases that Manees and D.M. failed to state a claim against the board and individual defendants, and that the plaintiffs had not exhausted their administrative remedies before filing suit under ADA and the Rehabilitation Act.
The court dismissed the claims against the board because the complaint did not allege sufficiently that the board was liable for any committed constitutional violations. However, the court declined to dismiss the claims against Manley, Powell and Austin in their individual capacities.
Regarding exhaustion of remedies, the court concluded that, while the gravamen of D.M. and Manees’s complaint was a denial of a free appropriate public education (FAPE), the IDEA administrative remedies would be futile to address their harms. The court relied on the fact that Manees already had filed a complaint with OEC, which declined to investigate the complaint on the basis that it was outside the scope of its office. The court concluded that, because OEC declined to investigate once, a second attempt to pursue redress through that office would be futile.
Finally, the court dismissed Manees’ and D.M.’s state complaint for punitive damages because it asserted a standalone cause of action, for which Ohio has no legal basis.
Arbitrator did not exceed the scope of his authority in interpreting collectively bargained subcontracting limitations.
Greater Dayton Regional Transit Auth. V. Amalgamated Transit Union ALF CIO Local 1385, 2018-Ohio-5158.
https://cases.justia.com/ohio/second-district-court-of-appeals/2018-28086.pdf?ts=1545421082
Greater Dayton Regional Transit Authority (RTA) provides mass transit in the Dayton area. Amalgamated Transit Union, AFL-CIO Local 1385 (the Union) represents bus operators and maintenance employees, including line crew employees who provide routine maintenance to trolley wires, bus shelters and route signs. In 2015, RTA took steps to utilize technology to improve its riders’ experiences by providing real-time bus route information. In order to upgrade its system, RTA needed to engage in a process called “geocoding.” The process first required gathering exact latitude and longitude data for each bus stop, and then mapping that data and entering each stop’s GPS coordinates. Gathering, mapping and entering the data then allowed RTA to assign a code to each stop, which passengers could use to access bus locations and arrival times. The project required modification of the bottom portion of RTA’s route signs to include the code passengers would use to access the improved information.
In 2016, RTA requested bids from outside contractors for geocoding roughly 3,400 bus stops, upgrading the bus stop signs to include the new geocode information, and photographing bus stops to document any maintenance issues discovered during the process. RTA did not notify the Union in writing about the solicitation of bids from outside subcontractors to complete the project. Ultimately, RTA contracted with Sure Signs, Inc. to complete the project for $58,500. The contract specifically required Sure Signs to remove and replace the bottom portion of bus stop signs to include the new geocodes. Sure Signs completed the project by September 2016, and any required maintenance discovered during the project was completed by the RTA line crew.
On July 6, 2016, prior to Sure Signs’ completion of the project, the Union filed a grievance alleging that RTA violated the parties’ CBA, specifically Article IV – Subcontracting. That provision prohibited RTA from contracting out or otherwise engaging individuals who were not members of the bargaining unit to perform work normally and regularly performed by bargaining unit employees. The language also listed a number of areas where RTA was permitted to subcontract, which included “route maintenance,” but with the qualifier that, in doing so, RTA could not lay off any regular employees capable of doing such work with basic job familiarization. Finally, the provision included the requirement that RTA notify the Union in writing prior to subcontracting any work.
The parties were unable to resolve the grievance and the matter was submitted to arbitration. An arbitration hearing was held, and on May 11, 2017, the arbitrator issued his initial arbitration award finding that RTA violated CBA Article IV by subcontracting with Sure Signs for adjustments made to the signs and photographing the poles, and by failing to provide the Union written notice prior to subcontracting the work. In arriving at this conclusion, the arbitrator relied upon Union evidence that such services regularly were performed by line crew members as a part of their normal work duties. The arbitrator did, however, find that RTA did not violate the CBA by subcontracting the actual geocoding of bus stops to Sure Signs based on evidence provided during the hearing that geocoding would not be considered work normally performed by the line crew. In considering an award, the arbitrator found that it would be improper to award the entire $58,500 to the Union due to the exclusion of the geocoding work from the determination. As a result, the arbitrator asked the parties to determine an appropriate monetary remedy, and to notify him if they were unable to reach an agreement. The parties did not reach an agreement and instead submitted briefs to the arbitrator about the proposed economic remedy.
On Sept. 19, 2017, the arbitrator issued his final arbitration award, concluding that awarding the Union back pay for the 10-member line crew in the amount of $35,024, representing $3,502.40 per line crew member, was the appropriate remedy. On Oct. 30, 2017, RTA moved to vacate the arbitration award, arguing that the arbitrator exceeded his authority by imposing additional limitations on its right to subcontract route maintenance projects that were not expressly provided for in the CBA, and where no bargaining unit employees were laid off. On Nov. 29, 2017, the Union filed a memorandum in opposition to RTA’s motion to vacate, asking that the arbitrator’s award be confirmed. The trial court granted the Union’s request to confirm the arbitration award, finding that the arbitrator acted within his authority and applied the CBA provisions to determine an appropriate reward, thus creating a rational nexus between the CBA and the award. RTA appealed.
The appellate court considered RTA’s assignments of error, beginning first with its assertion that the arbitrator exceeded his authority when he imposed additional limitations on RTA’s right to subcontract route maintenance where no bargaining unit employees were laid off. The court noted that arbitrators’ authority comes from the express CBA terms, and that arbitrators act within their authority to craft awards “so long as the award ‘draws its essence’ from the contract.” This requires a rational nexus between the agreement and the award. The court went on to note that an award departs from the essence of an agreement when the award either conflicts with the agreement’s express terms, or there is no rational support for the award.
In making its determination, the court pointed to information the arbitrator included in his May 11, 2017, initial arbitration award. In that award, the arbitrator noted that the CBA language was not clear, as terms like “route maintenance” were not defined. Therefore, the arbitrator looked to historical practices of the parties to determine what would or would not be included in route maintenance to determine which subcontracted work was and was not permitted under Article IV. The appellate court held that the arbitrator simply interpreted the CBA language, and did not misconstrue the language or impose any additional limitations on the parties.
The court went on to note that, even if it had found that the arbitrator misinterpreted the CBA provision, it still would not substitute its own interpretation because it would be improper for the court to do so where the arbitrator acted within the scope of his power. Particularly because the parties agreed to give the arbitrator the power to interpret and construe their agreement. As a result, the appellate court affirmed the trial court’s decision and overruled RTA’s assignments of error.
Appeals court upholds magistrate’s denial of back pay to school employee because the recoverable amount was not established with certainty.
State ex rel. Stultz v. Columbus City School Dist. Bd. of Edn., 2019-Ohio-599.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2019/2019-Ohio-599.pdf
On Sept. 4, 2013, Steven Stultz was hired as a part-time employee of the Columbus City School District, working as a food service helper. Following a series of absences and failure to appear at two scheduled hearings about the absences, the district sent Stultz a letter in August 2015 offering him five options regarding his employment. On Oct. 20, 2015, Stultz was discharged from his employment for neglect of duty, nonfeasance, misfeasance, job abandonment and absence without leave.
Stultz appealed the discharge decision. The appeal was heard by the Columbus Civil Service Commission in December 2016. The commission concluded that, because Stultz attempted to submit paperwork to establish a leave of absence, which was one of the five options offered by the school district, his termination should be modified to a 30-day suspension.
Following this decision, Stultz filed a mandamus action asking the court to award him back pay in the amount of $13,091.76. To reach this amount, Stultz multiplied 386 work days (193 days in each of the 2015-16 and 2016-17 school years) by three hours per day (the number of hours he normally worked) by his hourly pay ($13.68) for an amount of $15,841.44. He then subtracted $2,749.68 (67 days, including the 30-day suspension and 37 days of work missed at the beginning of the 2015-16 school year, multiplied by three hours each day and the hourly rate of pay) to reach a final amount of $13,091.76.
The magistrate concluded that, because of reports submitted by Stultz’s doctors, he was unable to conclude with certainty that Stultz could have returned to work during the two school years in question. Further, the magistrate held that Stultz offered no evidence establishing that he mitigated damages by seeking other employment. The magistrate viewed Stultz’s statement, without support, that he had made a good faith effort to seek employment as self-serving and entitled to no weight. For these reasons, the magistrate concluded that Stultz was unable to recover back pay.
The appeals court reviewed the magistrate’s decision and determined that he had correctly determined that Stultz was not entitled to back pay. It adopted the magistrate’s factual findings and adopted his conclusion on the basis of lack of certainty. The appeals court also clarified that the magistrate had not needed to consider the issue of mitigation.
District court finds determination of whether administrator’s reassignment constitutes a breach of contract to be inappropriate for summary judgment.
Mayle v. Brunswick City School Dist. Bd. of Edn., N.D.Ohio No. 1:18CV475, 2019 U.S. Dist. LEXIS 5611 (Jan. 11, 2019).
On June 27, 2016, Lisa Mayle entered into an administrative employment contract with the Brunswick City School District Board of Education to serve as principal of Towslee Elementary School for three years. After a number of alleged complaints, the board undertook an investigation in September 2017, during which time Mayle was placed on administrative leave without pay. While on leave, Mayle was prohibited from entering school property and communicating with students, teachers, staff or administrators without prior permission. On Feb. 21, 2018, Michael Mayell, the district’s superintendent, sent Mayle a notice of reassignment to the position of principal of Pride Academy (an online high school) and grant writing specialist, effective March 6, 2018. The notice stated that the reassignment would be at the current rate of pay for the position of elementary principal. On Feb. 28, 2018, Mayle filed a complaint against the board of education, the board members as individuals, and several administrators, including Mayell. Her complaint alleged 10 causes of action, including breach of contract.
On April 13, 2018, Mayell sent Mayle a letter of reprimand. The board found that Mayle failed to properly implement the Ohio Teacher Evaluation System (OTES) requirements and caused reports to be filed that were either falsified, inaccurate and/or deficient. The board also cited the fact that cash was not deposited and was distributed to third parties without any accounting or record, subjecting the district to Auditor of State findings. The board also considered Mayle’s failure to follow policies and procedures for teacher absences and leaves to be insubordination. Additionally, the board cited that Mayle failed to assure that volunteers working with students in the school had undergone background checks. The board noted that, while more severe disciplinary action could have been taken, Mayell felt that the reassignment would provide Mayle “with an opportunity to succeed.”
In her claim, Mayle alleged that her reassignment to the position of district principal and grant writing specialist constituted a breach of the express terms of her three-year administrative contract with the board. Mayle did not consent to or approve of the unilateral reassignment. In her argument, she cited Ohio Revised Code (RC) 3319.02(C), which provides: “Except by mutual agreement of the parties thereto, no assistant superintendent, principal, assistant principal, or other administrator shall be transferred during the life a of contract to a position of lesser responsibility.” Mayle sought declaratory judgment and partial summary judgment requesting the court declare that a valid RC 3319.02(C) contract existed, that she performed her duties under that contract, that the board breached its duty to her by reassigning her to a position of lesser responsibility and that the board is prohibited from suspending her contract as Towslee Elementary School principal for the remainder of that contract.
Mayle argued that the reassignment was to a position of lesser responsibility, emphasizing that she was assigned to her home during the investigation. She also argued that the reassignment would cause her to spend 50% of her time as a principal of Pride Academy and the other 50% as a grant writing specialist. Mayle compared the number of students and staff members at Towslee to Pride, noting that Pride consisted of one and a half classrooms and fewer than 30 students and two staff members, while her position at Towslee included responsibility for over 400 students and 40 staff members.
The board argued that it did not breach the employment contract because the superintendent had the authority to assign duties to administrators and licensed employees. The board also pointed to the fact that the reassignment was carried out in accordance with board policy and argued that it did not violate RC 3319.02(C), pointing to the fact that Mayell advised Mayle that her predominant duties would remain as building principal for Pride Academy, and that she also would perform other related central office duties, including grant writing. The board noted that while the reassigned position had less emphasis on the skills the board identified Mayle as struggling with, for instance teacher evaluation and employee leave, the new position was not a position of lesser responsibility and would allow Mayle to focus her time on the skills at which she excelled.
The court noted that Mayell, as superintendent, had broad discretion over employment matters, and whether his sworn statement that he did not assign Mayle to a lesser position should be believed, was a question for a jury. As a result, the court denied Mayle’s motions for summary judgment and declaratory relief.
Ohio court of appeals upholds dismissal of breach of contract claim against district, holding that laches and law-of-the-case doctrine precludes it from review.
Struckman v. Teays Valley Local School Dist. Bd. of Edn., 2019-Ohio-115.
https://www.supremecourt.ohio.gov/rod/docs/pdf/4/2019/2019-Ohio-115.pdf
In May 2004, Michael Struckman and the Teays Valley Local School District executed a written purchase contract, wherein Teays Valley purchased approximately 70 acres of real estate from Struckman for $10,400. The contract between the parties indicated that Struckman would be able to continue to farm the property “until [the district] commences construction on any such portion of the Real Estate or otherwise must occupy said portion of the Real Estate in connection with its intended use thereof.”
In July 2015, the superintendent of Teays Valley Local School District wrote a letter to Struckman to confirm the district’s intent to begin occupying the property and that Struckman’s farming rights would terminate at the conclusion of the 2015 farming season. The superintendent also stated that the district’s plans included the construction of a small facility on the site in conjunction with its occupancy and use of the property for the district’s student FFA organization and other potential school-related or extracurricular functions.
In March 2016, Struckman filed a complaint against the district, alleging that he had only sold the property to the district on the condition that the property be used as a future school site. As a result, Struckman alleged that the district’s plans to use the property for purposes other than a school site were a breach of the parties’ purchase contract. The district filed a motion to dismiss, asserting that the purchase contract did not require Teays Valley to build a school.
On May 5, 2016, the trial court granted Teays Valley’s motion to dismiss. The court found that the purchase contract did not make reference to the land being limited to use as a future school site. Although Struckman attempted to persuade the court that the contract’s reference to its “intended use” of the property was ambiguous, thus allowing the introduction of parol evidence in the form of newspaper articles about the land sale and letters between the parties, the court did not find the term to be ambiguous.
In March 2017, the court of appeals affirmed the trial court’s dismissal of Struckman’s complaint and in December 2017, the Supreme Court of Ohio declined to accept Struckman’s appeal for review. However, on May 4, 2017, Struckman filed a Civ.R. 60(B) motion for relief from the trial court’s May 5, 2016 judgment. He contended that in a related case filed by the district against him, he obtained discovery responses pertinent to his claims in the case. Specifically, Struckman argued that the superintendent’s letter notifying him of the district’s intended use of the property was not properly issued because the board of education did not properly act on the issue at a public meeting and therefore violated the Ohio Sunshine Law. He also attempted to introduce several additional newly discovered documents that allegedly supported his contention that the parties’ contract phrase “its intended use” meant only the development of a school on the property.
In February 2018, the trial court denied Struckman’s motion for relief from judgment, holding that laches barred review of Struckman’s claim that the board’s termination notice was defective, and the law-of-the-case doctrine precluded it from reviewing Struckman’s claim concerning the interpretation of the parties’ purchase contract. Struckman appealed.
On appeal, the court of appeals affirmed the decision of the trial court. The court found that Struckman did not timely file the motion for relief from judgment. The court noted that although Struckman received the documents that supported his claim in October 2016, he did not file his Civ.R. 60(B) motion until May 2017. The court also noted that the documents could have been discovered much earlier through a pre-suit public records request.
The court of appeals also held that the trial court correctly denied Struckman’s motion because it was premised on the same contractual claim, and the law-of-the-case doctrine prevented Struckman from relitigating the interpretation of the purchase contract.
Ohio court holds expert witness report inadmissible finding it opinion and not of a highly technical nature beyond the comprehension of an average juror.
Parmertor v. Chardon Local Schools, 2019-Ohio-328.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2019/2019-Ohio-328.pdf
Daniel Parmertor was a Chardon High School student who, along with two other students, was shot and killed on Feb. 27, 2012, by Thomas M. Lane III. Additionally, another student was paralyzed, and two others were injured. Daniel’s parents filed a complaint against the District, Superintendent, several school employees, school board members, the Lake Academy Alternative School and the Lake County Educational Service Center (ESC). The complaint asserted claims against all defendants for wrongful death, negligence and recklessness, conscious disregard, malice, willful and wanton misconduct, survivorship and loss of consortium.
On Nov. 25, 2014, the trial court dismissed the claims against Chardon Schools, the Chardon School Board, individual board members and the Lake Academy based on statutory immunity. The trial court also granted judgment based on the pleadings in favor of the Chardon school employees on the Parmertors’ claims for negligence and dismissed the claims against the Lake County ESC employees. The Chardon school employees moved for summary judgment on the Parmertor’s remaining claims on the basis that there was legally insufficient evidence of specific conduct that rose to the level of malice, bad faith, wantonness, or recklessness so as to overcome the statutory immunity to which they were entitled.
The Parmertors’ opposed this motion, contending triable issues of fact were established upon the claim that the lives and safety of the students had been recklessly endangered. They asserted the employees’ motion ignored deposition testimony as well as their expert testimony showing that if a school resource officer (SRO) had been present, the shooting would not have occurred.
In considering the assignments of error, the appellate court noted that the expert testimony the trial court found inadmissible basically was opinion going toward the ultimate question for the finder of facts and not of such a highly technical nature to be beyond the comprehension of the average juror. Additionally, the court found the expert’s testimony that, had an SRO been present the shooting would not have occurred, to be complete speculation. The expert’s written report was objectionable because it reached the ultimate issue and because it neither related to matters beyond the knowledge or experience of lay persons nor served to dispel a misconception common among lay persons.
The second assignment of error the plaintiffs raised was that evidence demonstrated that genuine issues of material fact existed as to the school employees’ indifference to enacting critical preventative measures, specifically hiring an SRO. Here, the appellate court noted that the trial court made a particularly well-reasoned conclusion that none of the district employees acted with bad faith, malice or in a wanton and reckless manner. Accordingly, the appellate court adopted the trial court’s entry as its own, holding that all were entitled to statutory immunity on the Parmertors’ claims. The court of common pleas judgment was affirmed, and all other claims were dismissed.
COMMUNITY REINVESTMENT AGREEMENTS
Dispute under terms of a CRA agreement treated as breach of contract claim and strictly governed by its written terms.
Alliance v. Marlington Local School Dist. Bd. of Edn., 2019-Ohio-1188.
https://cases.justia.com/ohio/fifth-district-court-of-appeals/2019-2018ca00076.pdf?ts=1554131571
In November 2001, the City of Alliance and the Marlington Local School District entered into an “Enterprise Zone” agreement. This agreement gave the district a share of the income tax revenues the city collected from new employees working at real estate tax exempted locations under Community Reinvestment Area (CRA) agreements. In return, the district waived its statutory notice and consent rights, which enabled the city to grant tax abatements and tax exemptions up to 100% for projects in CRA and/or Enterprise Zone agreements.
Disagreement arose when a business located in the CRA closed after 11 years. Utilizing a “clawback” provision in the CRA agreement, the city and school district sued the business for back taxes, ultimately settling for approximately one-half of what was owed. A dispute then arose between the city and the district as to how this amount should be distributed between the various taxing authorities who were party to the Enterprise Zone agreement. More specifically, the city sought to deduct, from the district’s share of damages, the amount of money the city paid the district during the period of the business’s tax exemption. The city then sought a declaratory judgment for the amount it believed the district was owed and a declaration that the city had the right to control the distribution of the settlement money. The district counterclaimed, seeking the full amount of money it believed was its share. Ultimately, the trial court granted the city’s motion and denied the district’s claim. The district then appealed.
The ensuing court discussion started out by noting that the city had signed the CRA agreement with the business operator, rather than the actual owner, so the dispute about the CRA agreement had to be treated as a breach of contract claim and was governed strictly by its written terms. The terms did not include the damages the city sought nor did it give the city exclusive authority to determine and distribute any money collected for damages that resulted from the breach. Clearly all parties to the CRA agreement had agreed upon the settlement amount, but not the distribution. The city was claiming damages as part of its distribution amount, but damages and attorneys’ fees were not included in the terms of the contract. The court then ruled in the district’s favor and specifically listed the amount each party to the contract was to receive as its share of the distribution.
District Court affirms Janus v. AFSCME and denies motion to recoup damages based on prior collection of fair share fees.
Lee v. Ohio Edn. Assn., et al., N.D.Ohio No. 1:18CV1420, 2019 U.S. Dist. LEXIS 49403 (March 25, 2019).
Subsequent to the US Supreme Court Decision in Janus v. AFSCME, Council 31, __U.S.__, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018), Sara R. Lee filed suit against the Avon Lake School District, the Avon Lake Education Association, the National Education Association and the Ohio Education Association, seeking to enjoin the collection of fair share fees and recoup damages based on previous fees collected by the union. The court denied the plaintiff’s claims for past fees on the grounds that the union complied with Supreme Court precedent (Abood v. Detroit Bd. of Edn., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.3d 261 (1977)) in good faith prior to Janus and immediately ceased collecting dues upon that case’s resolution. The court held that because the fees were collected in good faith reliance on binding precedent the defendants did not violate the Constitution.
Student football player has to set forth facts to show an exemption exists to blanket governmental immunity enjoyed by school district.
Carelli v. Canfield Local School Dist. Bd. of Edn., 2019-Ohio-1096.
https://cases.justia.com/ohio/seventh-district-court-of-appeals/2019-18-ma-0012.pdf?ts=1553699675
David Carelli was a student at Canfield Schools and a member of the school’s baseball team until his sophomore year, when he transferred to a rival school district. He transferred back to Canfield Schools during his senior year and sought to return to the Canfield baseball team. Upon his return, Carelli attended all practices and maintained a high batting average but was cut from the team. Carelli maintained that he experienced a constant, methodical pattern of retaliation and discrimination because he had previously transferred to and played for a rival school district’s baseball team. Carelli brought suit against the district, its superintendent and baseball coaches for retaliation, discrimination and intentional and negligent infliction of emotional distress, requesting a jury trial.
The district and its employees filed a motion to dismiss pursuant to Civ.R. 12(B)(6), alleging that Carelli failed to file a timely claim and that district employees enjoyed immunity. The trial court dismissed their motions, and the district and its employees appealed based on immunity and the argument that the allegations set forth did not support claims of negligent infliction of emotional distress or negligent infliction of emotional distress.
The appellate court held that, while Carelli sought to establish that one of the immunity exceptions applied, he failed to provide any facts that would substantiate that claim. However, while Carelli’s claims related to the applicable statute of limitations in this case had no merit, the trial court did err in denying the district’s/employees’ Civ.R. 12(B)(6) motion due to Carelli’s failure to state a colorable claim. Therefore, the district’s/employees’ assignment of error was found to have merit and the trial court’s judgment was reversed.
HOSTILE WORK ENVIRONMENT/CONSTRUCTIVE DISCHARGE
District court allows case to proceed where administrator discloses basis for teacher’s medical leave without her consent.
King v. Cincinnati Pub. Schools, S.D.Ohio No. 1:17-cv-794, 2019 U.S. Dist. LEXIS 40522 (Mar. 13, 2019).
Rashida King was employed by Cincinnati Public Schools (CPS) as a seventh- and eighth-grade social studies teacher at Riverview East Academy from August 2015 to July 2016. Charlene Myers served as principal at Riverview. King requested one-week medical leave in March 2016 by submitting the appropriate documentation. The leave request was approved. After the initial leave, King submitted Family and Medical Leave Act (FMLA) paperwork to Beth Willis, who worked in CPS’s human resources (HR) department, requesting leave from April 4 through May 2, 2016. When Willis contacted Myers to inform her of the leave request, Myers asked Willis the basis of King’s request. Willis stated that the leave request was related to “psychological reasons.”
Later the same day, Myers met with King’s teaching team and an assistant principal. During the meeting she told all six individuals present that King would be missing time for “psychological reasons.” Myers then went on to opine that she personally had a difficult time understanding taking time off for psychological reasons. At no point did Myers review district policies or request King’s permission or permission of HR to disclose the reason for King’s FMLA request. After the team meeting, one of the teachers who had been present contacted King and shared information about what was said at the meeting, including a discussion about student grade changes prior to King’s return. When later deposed, Myers admitted to having referenced “psychological reasons” for King’s leave and again stated that she wouldn’t personally take leave for mental health reasons.
King contacted her union and attempted to contact the school’s HR director to complain about Myers’ disclosure of her confidential medical information. When her complaints were not addressed, she retained counsel who contacted CPS’s office of general counsel. Ultimately, King filed suit under FMLA, the Rehabilitation Act, the Ohio Civil Rights Act and the Americans with Disabilities Act (ADA). The district moved for summary judgment on all claims, arguing that King suffered no tangible injury or adverse employment action and that she could not support a hostile work environment claim based on her disability.
The court noted that a claim for hostile work environment based on disability under ADA required a showing that: 1) King was disabled; 2) she was subjected to unwelcome harassment; 3) the harassment was based on her disability; 4) the harassment unreasonably interfered with her work performance; and 5) CPS either knew or should have known about the harassment and failed to take corrective measures. CPS admitted that King was disabled, and the court noted that there was evidence that she was subjected to unwelcome harassment based on her disability. The court focused on whether the harassment was severe and pervasive enough to unreasonably interfere with King’s work performance. The court held that the evidence King offered regarding disclosure of her confidential medical information without her consent was sufficient to create a genuine issue of material fact as to her hostile work environment claim.
The court noted that a claim for constructive discharge required a showing that: 1) the employer intentionally created intolerable working conditions based on a reasonable person’s perception; 2) the employer did so with intent to force the employee to quit; and 3) the employee actually quit. The court went on to note that intent is satisfied where an employee’s resignation is a reasonably foreseeable consequence of the employer’s actions. It also noted that criticism of an employee doesn’t meet the constructive discharge standard, especially when it is limited only to a few incidents, and that the fact that criticism is tied to an employee’s use of FMLA leave, did not alone make the working conditions intolerable.
The court found that, based on the evidence provided, while not a typical case of prolonged harassment, gathering King’s entire teaching team and disclosing confidential medical information and maligning her in front of the group created a genuine issue of material fact as to whether a reasonable person would feel compelled to resign. The court held that a reasonable juror could find King’s resignation to be a reasonably foreseeable consequence of Myers’ alleged actions.
The court denied CPS’s motion for summary judgment as to both claims.
INDIVIDUALS WITH DISABILITIES ACT
U.S. District Court of Appeals upholds judgment for district in case alleging IDEA procedural violations for student with cognitive disabilities and peanut allergy.
Barney v. Akron Bd. of Edn., 6th Cir. No. 17-4116, 2019 U.S. App. LEXIS 5437 (Feb. 25, 2019).
http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0091n-06.pdf.
Delaina Barney’s son, J.B., has cognitive disabilities and a peanut allergy. Although J.B. has received special education for his cognitive disabilities since preschool, his school has not offered him special services under the Individuals with Disabilities Education Act (IDEA) for his allergy. Instead, the school implemented a medical plan for preventing and responding to allergic reactions. Among other safeguards, the school instructed food servers not to bring peanut butter to J.B.’s classroom when serving students free breakfasts.
In 2014, Barney enrolled J.B. as a third-grader at an Akron public elementary school. Early in the fall semester, school employees accidentally included sealed containers of peanut butter on the breakfast carts taken to J.B.’s classroom. A food server noticed the mistake and told J.B.’s teacher. The teacher then brought J.B. to her office to eat his breakfast. She saw no signs of an allergic reaction, and J.B. went to class after he finished his meal. When Barney heard about J.B.’s potential exposure to peanut butter, she visited the school to check on him. Barney and J.B.’s teachers disagreed about whether J.B. was suffering an allergic reaction, but the school principal agreed to drive Barney and J.B. to the emergency room.
A few weeks later, Barney met with J.B.’s teachers to discuss his individualized education program (IEP). The teachers described J.B.’s academic progress, as well as his behavioral improvements. Barney signed off on the proposed IEP without objection. Two days later, however, Barney removed J.B. from the school and subsequently filed a complaint under IDEA, challenging the district’s response to J.B.’s peanut allergy and the district’s implementation of J.B.’s educational program. After a hearing, the Ohio Department of Education (ODE) ruled for the district. Barney appealed the decision to a state-level review officer who affirmed ODE’s ruling. Barney then filed a lawsuit. The district court likewise entered judgment in favor of the district. Barney appealed.
On appeal, the court of appeals affirmed the decision of the district court. The court found that although Barney alleged that the district failed to ensure that she understood J.B.’s IEP, she was unable to identify any part of J.B.’s IEP that she did not understand. Nor could she explain how these alleged violations affected J.B.’s education. Barney also argued, among other things, that the district violated IDEA’s mandate to educate J.B. in the “least restrictive environment.” In support of her argument, Barney asserted that she had to drive J.B. to a field trip, which isolated J.B. from his classmates who traveled on a school bus. But the court highlighted the fact that Barney insisted on driving J.B. out of fear that he might be exposed to peanut butter on the bus. The court held that she could not blame the district for her own decision to separate J.B. from his peers.
Barney also challenged the substance of J.B.’s IEP, which she felt was not sufficiently “ambitious” or specific. Contrary to her assertions, however, the IEP contained goals tailored to J.B.’s weaknesses in five separate categories. Each goal included detailed academic objectives. Moreover, the program specified how much time should be spent weekly on each goal and provided for regular reporting of J.B.’s progress to his parents. The court found that Barney could not show why the IEP was not “reasonably calculated” to enable J.B. to make progress appropriate in light of his circumstances.
Barney also contended, among other things, that J.B.’s program should have addressed his peanut allergy. Yet, the district noted that J.B. had a peanut allergy in his written IEP under the heading “other information.” The district also had a separate medical plan to address his allergy. The court found that IDEA required nothing more than this.
As a result, the court of appeals affirmed the district court’s decision and entered judgment in favor of the district.
Court of appeals affirms district court’s summary judgment in favor of a school district in claims brought by a disabled student for failure to raise a triable issue of fact
K.C. v. Marshall Cty. Bd. of Edn., 6th Cir. No. 18-5186, 2019 U.S. App. LEXIS 2928 (Jan. 29, 2019).
https://cases.justia.com/federal/appellate-courts/ca6/18-5186/18-5186-2019-01-29.pdf?ts=1548783014
K.C., a student with cerebral palsy and autism, attended Central Elementary, a public school in Marshall County, Kentucky. In the 2015-16 school year, when K.C. was in third grade, he was placed in a functional mental disability classroom, taught by Crystal Teckenbrock. Teckenbrock was assisted by aides Joanna Cash, Lindsay Hall and Jennifer Parker.
In late April 2016, Heather Lane, the mother of another student in K.C.'s class, told K.C.’s mother that Lane's child had come home very upset because Teckenbrock was mean to K.C. Lane’s child said that Teckenbrock yelled at K.C., yanked him, was very rough with him and placed him in timeout for long periods of time.
Around May 1, 2016, K.C.'s parents met with Cash. According to K.C.’s mother, Cash told them that she had witnessed Teckenbrock pull K.C.'s hair, scream at him in his face, and place him in timeouts for hours at a time. K.C.’s parents also stated that Cash gave them a paper listing alleged instances of Teckenbrock’s abuse. In her deposition, Cash denied all of this, stating that she met with K.C.'s parents to deliver a box of K.C.’s things from school and that she did not author the paper. Nonetheless, Cash testified that she agreed that most of the instances described in the paper had happened.
K.C.’s parents withdrew K.C. from school after this conversation with Cash. On May 1, 2016, K.C.'s father reported the alleged abuse to the county sheriff's office. K.C.'s father testified that he played a recording of the meeting with Cash at the sheriff's office. The sheriff’s office conducted an investigation, interviewing Parker, Cash and Teckenbrock. At the request of Pat Gold, the principal at the elementary school, the director of education for Marshall County Schools, Stephen Flatt, sat in on the interviews. Although Cash told the investigator that she had witnessed Teckenbrock pulling K.C.’s hair and screaming in his face, the sheriff’s office concluded that it could not substantiate the allegations against Teckenbrock. The investigator communicated this to Flatt, who told Superintendent Trent Lovett.
Flatt and Lovett met with several parents, including K.C.’s mother, who gave them a list of concerns including allegations of abuse and neglect. Lovett told the parents that the school would investigate the situation. Lovett and Flatt interviewed Teckenbrock, Cash and Hall. Teckenbrock denied that she had engaged in any abusive actions toward K.C., and Cash reiterated what she had told the sheriff’s investigator. Flatt testified that he could not conclude that Teckenbrock had engaged in any inappropriate touching.
A third investigation was conducted by the Department of Child Based Services (DCBS). DCBS interviewed Lovett, Gold, Teckenbrock, Flatt, Cash, Parker and Hall. In late July, DCBS officials met with Lovett and informed him that its investigation substantiated a finding of neglect but not abuse. On Aug. 10, 2016, K.C.’s parents withdrew him from the school district. K.C.’s father testified that they were looking into alternative private schooling.
K.C.'s parents filed suit on his behalf against the district alleging claims under the Americans with Disabilities Act and Sec. 504 of the Rehabilitation Act. The complaint stated that the district was deliberately indifferent to the unequal treatment of K.C. in comparison to non-disabled students who did not experience abuse.
On Jan. 30, 2018, the district court applied the deliberate indifference test, concluded that the plaintiff had failed to raise a triable issue of fact in his claims and awarded summary judgment to the school district.
The circuit court agreed with the district court’s ruling. It dismissed a vicarious liability argument because the plaintiff had not raised it before the district court and, therefore, the circuit court could not consider the argument. It also concluded that, because K.C.’s parents had no intention of returning K.C. to school in Marshall County and had been exploring alternative private schooling, no reasonable jury could conclude that the alleged inadequacy of the board's response to the complaint of abuse caused K.C. to lose educational opportunities.
Ohio court of appeals affirms and denies in part administrators’ motion for judgment on the pleadings on the issue of immunity in sexual misconduct case.
Jane Doe 1 v. Licate, 2019-Ohio-412.
https://cases.justia.com/ohio/eleventh-district-court-of-appeals/2019-2018-a-0019.pdf?ts=1549666611
This case involves three school children who alleged they were victims of sexual misconduct by Virgil Murphy, a school bus driver who was hired by the Ashtabula Area City School District and is now deceased.
Murphy was hired by the district in 2005. The families of the three school children alleged that after Murphy was hired, the district received several reports about Murphy’s prior arrests for domestic violence, disorderly conduct, and resisting arrest. The complaint further alleged that, during Murphy’s employment with the district, incident reports were filed with the police indicating Murphy was accused of threatening his daughter-in-law, sexually assaulting his granddaughter and grandson, and threatening to assault a neighbor.
The families filed a lawsuit against several district administrators in their individual and official capacities alleging negligence, malicious purpose and wanton and reckless conduct for failing to investigate Murphy’s criminal background, recommending Murphy be hired, hiring Murphy, failing to monitor and investigate Murphy’s conduct, and failing to report the alleged sexual abuse to the public children services agency. The district administrators filed motions for judgment on the pleadings, which the trial court overruled. The district administrators appealed, claiming that the district court failed to properly grant the administrators immunity from the families’ claims.
On appeal, the transportation supervisor argued that the trial court erred in determining he was sued only in his individual capacity rather than in his official capacity. The court of appeals held that the trial court did not err in determining that the transportation supervisor personally engaged in actions that subjected him to liability as an employee of the district. The court found that he was not sued in his official capacity.
The district administrators also argued on appeal that even in their individual capacities as employees of the district, the trial court erred in failing to grant them immunity on the families’ claims. The court of appeals held that the families’ complaint didn’t allege that any of the administrators’ acts or omissions were manifestly outside the scope of their employment nor did it allege civil liability imposed by a separate section of the Ohio Revised Code. The court of appeals found that the complaint did not allege facts that would overcome the relevant statutory immunity regarding any claim for negligent acts or omissions. As a result, the court found that the trial court erred in failing to grant the administrators’ motion for judgment on the pleadings as to the negligence claims.
The court of appeals found that the trial court did not err in failing to grant the administrators’ motions for judgment on the pleadings with regard to claims of bad faith, malicious purpose or wanton and reckless conduct, finding that it was premature to dismiss as insufficient, the allegations set forth by the families in this area.
Special master dismisses requester’s claim for violation of Ohio’s Public Records Act due to overbreadth of request and failure to seek appropriate claim for relief.
The Cincinnati Enquirer v. Cincinnati, 2019-Ohio-969.
https://www.supremecourt.ohio.gov/rod/docs/pdf/13/2019/2019-Ohio-969.pdf
On April 28, 2018, Cincinnati Enquirer reporter Sharon Coolidge made a public records request to city of Cincinnati council members for “communications or correspondence (including e-mails and text messages) between five councilmembers.” The request covered records from Jan. 1, 2018 to April 30, 2018. After the initial request, the Enquirer and the city’s legal counsel engaged in follow-up correspondence. On Oct. 5, 2018, the Enquirer filed this action alleging denial of access to public records, and after mediation resolving the request for emails, the city filed a response and motion to dismiss on Dec. 17, 2018 regarding the remaining claim for production of text messages. The city argued that text messages of council members on personal, privately-paid cell phones were not records of the city or kept by the city, and that the request was vague and overly broad.
Special master, Jeffrey W. Clark, relying upon the Supreme Court of Ohio’s previous analysis of electronic and text messages as public records, noted that it is the content and not the format of the message, which determines whether communications are records for the purpose of the Public Records Act. Therefore, Clark determined that the text messages were capable of being public records.
In its second argument, the city asserted that text messages on a councilperson’s personal devices did not meet the definition of a “public record” because they were not “kept by the public office” or “created or received by or coming under the jurisdiction of any public office.” Clark disagreed, citing the fact that a public office creates and receives records through its officers and employees. He also noted that records exchanged between government employees included those transmitted by any medium, not just written records. He highlighted the fact that such records could be considered to meet the definition of a public record by meeting the “coming under the jurisdiction of the office” requirement as well. As a result, Clark found that the complaint sufficiently asserted a claim that the requested items met the definition of a “public record.”
The city also argued that a portion of the records did not meet the definition of public record, appearing to concede that others did. Clark noted that where responsive records include some nonpublic record information, redaction, rather than denial of the entire request is appropriate. The city argued for dismissal of the complaint on the grounds that the text messages were created and received on personal devices. Clark disagreed, noting that the nature and ownership of storage location did not make the information not a record. Therefore, Clark found that the complaint stated a claim upon which relief could be granted.
Finally, the city argued that the request was ambiguous and overly broad. Here, the Enquirer requested “communications or correspondence (including emails and text messages) between five council members over a period of four months.” Clark found the request to be overbroad because it covered a substantial period of time and was not limited by subject. Although the request was held to be overbroad, Clark noted that the Public Records Act required parties to cooperate with one another. Once the city denied the request on the basis of overbreadth, it had an obligation to allow the Enquirer to revise the request.
In meeting its obligation, Clark noted that the city could have availed itself of a number of available options, including, but not limited to: 1) offering to discuss revision with the Enquirer; 2) providing the Enquirer with a copy of the city’s records retention schedule; and/or 3) providing an explanation of how records were maintained and accessed. Clark held that the city’s denial of the Enquirer’s request without provision of information inviting revision constituted a per se violation of the Public Records Act. However, because the Enquirer did not seek the court to order the city to inform it of the way it maintains its records, Clark granted the city’s motion to dismiss finding that the Enquirer failed to state a claim on that violation.
Ohio court of appeals holds that surveillance footage is not an “infrastructure record” or “security record” exempt from disclosure under Public Records Act.
Welsh-Huggins v. Jefferson Cty. Prosec. Atty., 2019-Ohio-473.
https://www.supremecourt.ohio.gov/rod/docs/pdf/13/2019/2019-Ohio-473.pdf.
On Sept. 21, 2017, Andrew Welsh-Huggins, a reporter for the Associated Press, made a public records request to the Jefferson County Prosecutor’s Office for security camera footage of a shooting incident that took place in an alley outside the Jefferson County Courthouse. The prosecutor’s Oofice denied the request in its entirety. On May 7, 2018, Welsh-Huggins filed a complaint alleging that the prosecutor’s’ office wrongfully denied access to public records. The prosecutor’s office filed a motion to dismiss on the grounds that the video was an infrastructure and security record and that disclosure would endanger the life or safety of law enforcement personnel or a witness.
The court held that that the elements of “infrastructure record” (discloses configuration of critical systems beyond the mere spatial relationship of building components) and “security record” (information directly used for protecting or maintaining the security of a public office against attack, interference or sabotage) did not manifest on the face of the complaint or its attachments. The footage did not disclose the “structural configuration of the institution” or provide any additional information than would be revealed in a simple floor plan. The court held that the mere location, scope and camera angles of a security camera were not records that disclosed the configuration of a critical system. Nor was it apparent from the complaint that disclosure of the video would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. As a result, the court denied the prosecutor’s office’s motion to dismiss.
School district facilities task force did not violate the sunshine law when it conducted a private tour of school buildings.
Esrati v. Dayton City Comm., 2019-Ohio-1021.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2019/2019-Ohio-1021.pdf
Dayton Public Schools, through efforts of the superintendent, created a school facilities task force to study school facilities and make recommendations. This was created shortly after the district reduced its staff through a reduction-in-force. The task force consisted of members of the school board as well as business leaders, jointly selected between the board and the city of Dayton. Some of the task force’s initial meetings were held in private and some were made available to the public, but a bus tour of district facilities was private (although some members of the press were specifically invited).
David Esrati was not one of the bus tour invitees and previously protested several times about the task force meetings being held in private. On the day of the bus tour, Esrati even filed a motion in court seeking a temporary restraining order and followed the bus tour around from building to building, taking pictures at every stop. Toward the end of the tour, the district learned the trial judge had asked for the tour to be stopped, and it was.
The trial court then concluded the motion for temporary restraining order (TRO) was moot because the task force said they were no longer going to tour buildings. The court limited its hearing to two issues: 1) whether the task force was a public body as set forth in Ohio Revised Code (RC) 121.22(B)(1)(a)(b) and if so, 2) whether it violated the Open Meetings Act. At the hearing the court concluded that “as a matter of law that the task force consisting of three board members and others suggested by the mayor of Dayton [was] a committee or sub-committee of the decision making body, the ‘board of education,’ and met the definition of a ‘public body’ under the Open Meetings Act.” However, the court also concluded that Esrati failed to offer any evidence or prove that the task force violated the Open Meetings Act during the bus tour. Summary judgment was issued in favor of the district shortly after.
Esrati appealed with a single assignment of error asking the court to consider how he could prove deliberations occurred during the bus tour since it was closed to the public? Esrati contended that requiring him to prove a violation defied logic because he had no ability to know what actually happened on the bus. In response, the court noted that Esrati presented no evidence to prove the task force engaged in deliberations, despite multiple opportunities throughout the proceedings. Additionally, the court pointed out that while Esrati did not personally know what transpired on the bus, that is the function of discovery. Although Esrati appeared as a pro se litigant and did not attempt to take depositions or submit any additional evidence, he had to be held to the same standard as any other litigant. Therefore, his assignment of error was overruled, and the trial court’s judgment was affirmed.
Court finds appeals regarding allowing a claim to proceed without resolution of damages impermissibly may result in fragmented litigation.
State ex rel. Streetsboro City School Dist. Bd. of Edn. v. Streetsboro, 2019-Ohio-663.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2019/2019-Ohio-663.pdf
A dispute arose between the city and the school district relating to the interpretation of an “Income Tax Sharing Agreement.” As a result, the district filed suit against the city seeking a declaratory judgment interpreting the contract in its favor, as well as a claim for breach of contract and a statutory claim, seeking damages for both claims. The city filed an answer and a counterclaim seeking a declaratory judgment on the contract’s interpretation in its favor.
Both parties then filed motions for a summary judgment and the trial court found in favor of the district. The court also determined that since the motion for summary judgment was granted for the district on its claims and the city’s counterclaims, the city’s motion for a summary judgment had to be denied and issued a nunc pro tunc judgment entry. The city then filed an appeal from the nunc pro tunc entry, arguing that the order complied with Ohio Revised Code (RC) 2505.02(B) because the declaratory judgment action was a special proceeding, and it sought enforcement of a contract, which involved a substantial right. Additionally, the city argued that even though a hearing on damages was pending, the court’s order included the requisite Civ. R. 54(B) language.
The district countered by arguing that notwithstanding the accuracy of the city’s points, the appeal should have been dismissed as untimely. The earlier judgment entry was a final order, and the nunc pro tunc entry did not change the substantive effect of the previous order, nor did it toll the time frame. Thus, the district argued, the city’s appeal should have been dismissed for lack of jurisdiction.
The court then permitted both parties to brief their arguments before reaching its decision. The court held that although a declaratory judgment action was an appropriate means for a declaration of rights and obligations under an agreement, the breach of contract claim in this matter was simply a restatement of the basis for the declaratory action, only seeking damages. In effect, the two counts were substantially the same as they related to the issue of liability. In this instance, permitting a claim to go forward on the declaratory action would have been tantamount to impermissibly allowing an appeal to proceed on the breach claim without resolution of damages. The court held that the trial court abused its discretion when it certified the matter pursuant to Civ. R. 54(B), which when coupled with the issue of damages being unresolved at the time the appeal was filed, allowed the court to dismiss the district’s claim for lack of a final appealable order.
TORT LIABILITY-SOVEREIGN IMMUNITY
Ohio court of appeals upholds trial court’s denial of summary judgment for a school counsellor who failed to tell a student’s father that, after previous incidents, the student had threatened suicide again.
Baab v. Medina City Schools Bd. of Edn., 2019-Ohio-510.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2019/2019-Ohio-510.pdf
In November 2012, D.B., an eighth-grade student in middle school in the Medina City School District, died from suicide. For several months before his death, several of D.B.’s fellow students contacted Julia Schwendeman, a middle-school counsellor, to express their concern about his well-being. The students said that D.B. was engaging in scratching or cutting behaviors and was fearful of his father.
On Oct. 31, 2012, several students told Schwendeman that D.B. had discussed suicide. The counselor called D.B.’s father, Richard Baab, who took him to the hospital where doctors concluded that D.B. was not at risk of suicide. When doctors released D.B., they recommended that Baab seek counselling for D.B. or enroll him in the hospital’s partial hospitalization program. Baab said that D.B. was unwilling to agree to hospitalization because he would miss his friends. However, Baab asked Schwendeman to contact him if she heard anything else suggesting that D.B. was considering suicide.
On Nov. 16, a student told his mother that D.B. had texted him to say that D.B. was considering suicide again. The student’s mother called D.B. rather than Baab after her son told her that D.B. was afraid of his father. After speaking to D.B., the friend’s mother called Schwendeman and recounted the conversation. Schwendeman did not report the conversation to anyone, speak to D.B., conduct an assessment of D.B.’s suicide risk or contact Baab. D.B. died from suicide a few days later.
Baab sued the district, the board of education and Schwendeman for wrongful death, failure to report child abuse and respondeat superior. The defendants moved for summary judgment under Ohio Revised Code Chapter 2744. The court of common pleas granted summary judgment to the district and the board on all claims and to Schwendeman on the charge of failing to report child abuse.
However, the court did not grant summary judgment on the wrongful death claim against Schwendeman because it concluded that there was a genuine issue of material fact as to whether Schwendeman was reckless. It stated that a reasonable person in the counsellor’s position would “recognize that failure to act or report additional incidents could result in D.B.’s death” and that, upon review of the facts, a jury could support a determination of conscious disregard for a known or obvious risk. Schwendeman appealed.
After considering Schwendeman’s arguments, the appeals court agreed with the trial court’s conclusion. In response to Schwendeman’s argument that the lower court had applied an improper definition of “reckless,” the appeals court stated that the trial court was not required to explain each part of its analysis. Schwendeman also argued that the trial court erred because it based its conclusion on the risks a reasonable person would have recognized rather than basing it on her own knowledge. The court stated that the trial court properly relied on the reasonable person standard.
Finally, Schwendeman argued that the trial court did not consider that the hospital had concluded that D.B. was not at risk of self-harm, and that it failed to take into account how concerns about D.B. changed over time. The court stated that the trial court was required to view the evidence in the light most favorable to Baab. For that reason, it held that Schwendeman could not have assumed that D.B. was not at risk on Nov. 16 because of the hospital’s assessment of his level of risk two weeks earlier.
Appeals court finds that trial court did not abuse its discretion when it upheld the State Board of Education’s decision to disapprove a territory transfer of one home.
Izzo v. Ohio Dept. of Edn., 2019-Ohio-1008.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2019/2019-Ohio-1008.pdf
Carissa and John Izzo resided in the Columbus City School District (CCSD) but sought a transfer of their home to the Hilliard City School District (HCSD). Using the mechanism established in Ohio Revised Code (RC) 3311.24, the Izzos completed a petition to transfer their address and filed it with CCSD on April 1, 2016. CCSD forwarded the petition to the Ohio Department of Education (ODE).
ODE asked the Izzos, CCSD and HCSD to submit additional information as required by Ohio Administrative Code 3301-89-02(B). It also informed the parties that it would hold a hearing on the application if any of the parties requested one. The Izzos requested a hearing.
On Dec. 12, 2016, there was a hearing on the matter before a hearing officer for the State Board of Education. The Izzos and CCSD appeared at the hearing and HCSD submitted its arguments in writing. The Izzos objected to the participation of CCSD and HCSD, both of which opposed the transfer, because neither party had requested the hearing.
On Jan. 5, 2017, the hearing officer issued a report recommending that the transfer be denied. Although the Izzos filed objections to the report, on March 27, 2017, the board issued an order approving it. The Franklin County Court of Common Pleas affirmed the board’s order. The Izzos appealed the decision on two grounds: (1) CCSD and HCSD should not have been permitted to participate in the hearing; and (2) the hearing officer’s report was not based on reliable, probative and substantial evidence in accordance to law.
Regarding the Izzos’ first argument, the appeals court noted that RC 3311.24(A)(2) grants the board authority to hold a hearing on a petition to transfer territory without any of the parties requesting a hearing. In that case, all parties would receive notice of the hearing and an opportunity to appear. For that reason, the court stated that it could not conclude that only the party filing a request for a hearing was entitled to participate in the resulting hearing.
Regarding the Izzos’ second argument, the appeals court concluded that RC 119.12 required the trial court, when it reviewed the administrative appeal, to determine whether it was supported by reliable, probative and substantial evidence. The appeals court said that its more limited role was to determine whether the trial court abused its discretion.
The appeals court concluded that the hearing officer appropriately considered the best interests of the Izzos’ children and the fact that the transfer of the Izzos’ property, which was across the street from HCSD, would create an island of property that was not contiguous with HCSD. The appeals court also supported the hearing officer’s conclusion that it would not make practical sense to select the Izzos’ residence alone out of an entire subdivision, some of whose residents opposed the transfer, and place it in HCSD. Finally, the appeals court stated that the hearing officer’s conclusion that it would overextend HCSD to transfer two students into the district was reasonable. The court held that the common pleas court did not abuse its discretion when it found that the board’s order was supported by reliable, probative and substantial evidence.
Ohio appellate court finds school district employee’s termination resulted from protected whistleblowing activity.
Hageman v. Bryan City School Dist., 2019-Ohio-223.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2019/2019-Ohio-223.pdf
Janet Hageman was employed by the Bryan City School District as an assistant treasurer serving under treasurer, Rob Rosswurm. On Jan. 6, 2012, Rosswurm purchased a computer through the school district for his daughter who did not attend school in the school district. The purchase was paid for by school district check, and included an invoice indicating that it was tax exempt and made on behalf of the school district. Rosswurm then reimbursed the district for the cost of the computer. On Nov. 21, 2013, Hageman reported Rosswurm’s computer purchase to the state auditor’s office because sales tax was not paid on the purchase. On July 15, 2014, Rosswurm paid the state treasurer for the sales tax on the computer purchase.
On July 10, 2014, Hageman met with Rosswurm requesting a pay increase, which Rosswurm told her would not happen. During the meeting, Hageman told Rosswurm she had reported the computer purchase to the state auditor’s fraud line on the basis of funds misappropriation. Rosswurm later claimed that Hageman verbally attacked him at the meeting. Hageman maintained that she did not make inappropriate comments during the meeting. A disciplinary hearing based on Rosswurm’s allegations was followed by a written reprimand and two-day suspension to Hageman issued by school district superintendent, Diana Savage.
Hageman stated that she reported Rosswurm’s computer purchase internally in July 2014 and discussed it again in July 2015 at a meeting. In December 2015, Hageman was disciplined based on allegations by a school district custodian and union representative who said she spoke disparagingly of another member of the treasurer’s office staff. On Dec. 8, 2015, a notice of disciplinary hearing was issued, and the hearing resulted in a three-day suspension and implementation of a performance improvement plan. On Dec. 8, 2015, Hagemen reported Rosswurm’s computer purchase to the Williams County Sheriff’s Office and met with the county sheriff on Dec. 11, 2015, to advise him of her belief that Rosswurm had misappropriated funds and used his office for personal gains.
Hageman was disciplined a third time in April 2016 after allegations that she created a disruptive work environment and displayed unprofessional behavior and dishonesty related to a text message Rosswurm claimed to have received from her. At the disciplinary hearing resulting from this third instance, Hageman claimed she did not send the text messages in question to Rosswurm, but Savage determined that Hageman had sent the message. On May 25, 2016, Savage recommended that Hageman be discharged, and on May 31, 2016, the board voted to terminate her employment contract.
Hageman appealed her termination to the State Personnel Board of Review (SPBR), resulting in a hearing where an administrative law judge (ALJ) issued a report and recommendation concluding that Hageman was terminated because she filed the report with the Williams County sheriff, and that her report was protected activity. The ALJ recommended that Hageman be reinstated to the position of account clerk. SPBR adopted the ALJ’s recommendation with the limited exception that Hageman’s proper job title was assistant treasurer and ordered that she be reinstated. The board appealed the decision to the Franklin County Court of Common Pleas, arguing that the order was not supported by the evidence. The common pleas court affirmed, and the board appealed.
On appeal, the board argued that the common pleas court abused its discretion by failing to determine whether the SPBR finding that Hageman was a whistleblower entitled to protection under Ohio Revise Code (RC) 124.341 was supported by the evidence, and by affirming the SPBR finding that Hageman was terminated because she engaged in protected whistleblowing activities.
In making its determination, the appellate court noted that in determining good faith, it is appropriate to consider both the context in which the report was made and the content of the report. In this case, Hageman testified that she reported the activity to the Williams County sheriff, the state auditor’s office and certain members of the school district board of education. She also testified that she believed that the disciplinary action in December 2015 was retaliatory due to her earlier reports. Hageman also admitted on cross-examination that during a regular audit during fall 2014, an auditor from the state auditor’s office told her the situation was resolved because Rosswurm had reimbursed the school district for the purchase and separately paid the sales tax. As a result, the court held that the common pleas court did not abuse its discretion in finding sufficient evidence to support SPBR’s conclusion that Hageman’s report to the sheriff was protected.
In its second assignment of error, the board argued that the common pleas court abused its discretion by affirming SPBR’s conclusion that Hageman was terminated due to engagement in a protected activity. The board argued that Hageman failed to establish that her whistleblower report was the sole reason for her termination. The board cited the continued disciplinary action against Hageman as evidence that she would have otherwise been terminated due to her disrespectful and unprofessional behavior.
Hageman alleged that the disciplinary action only began after she informed Rosswurm that she reported the computer purchase to the auditor’s fraud hotline. Savage testified that she believed there was a pattern of disrespectful and unprofessional behavior by Hageman and that pattern was what led her to recommend Hageman’s termination. The court held that there was sufficient evidence for SPBR to conclude that Hageman’s whistleblowing activity was considered in the termination decision. The court relied on the fact that Savage was aware of Hageman’s report about the computer purchase, and that there was evidence that the whistleblowing activity “was a potential problem for Savage and may have motivated her decision to recommend termination.” As a result, the appellate court affirmed the judgment of the Franklin County Court of Common Pleas.
On March 7, 2019, Bryan City School District appealed the decision to the Supreme Court of Ohio. OSBA’s Legal Assistance Fund (LAF) provided supportive assistance in the form of an amicus curiae brief in support of jurisdiction. On May 29, 2019, the Supreme Court of Ohio declined to accept jurisdiction, with Justices Kennedy and Stewart dissenting.