School Law Summary 2019-3
In this issue: Age Discrimination In Employment Act • Americans With Disabilities Act • Arbitration — Union Dues • Athletics • Collective Bargaining • Construction — Statute Of Repose • Defamation • Discrimination — Disability • First Amendment — Free Speech • Individuals With Disabilities • Individuals With Disabilities — Exhaustion Of Remedies • Public Records • Sexual Abuse And Harassment • Sexual Harassment • Statute Of Limitations • Teacher Termination
AGE DISCRIMINATION IN EMPLOYMENT ACT
Sixth circuit rejects applicant’s ADEA claim when she failed to establish that she was the superior candidate or that the district’s reasons for not hiring her were pretextual.
Romano v. Hudson City School Dist., 6th Cir. No. 18-3949, 2019 U.S. App. LEXIS 13491 (May 6, 2019).
https://law.justia.com/cases/federal/appellate-courts/ca6/18-3969/18-3969-2019-05-06.html
Trisha Romano worked as a part-time teacher and volunteer in the Hudson City School District from 2012 to 2016. She was never hired as a full-time teacher, and the district eventually stopped interviewing her for positions. In 2017, she filed a complaint alleging age discrimination. The district court granted summary judgment to the school district on all of her various claims.
The appeals court exhaustively detailed the district’s hiring and interview process. It noted that Romano did not clearly specify how she was attempting to show that the district’s reasons for not hiring her were pretextual. Romano argued that she was much more qualified than the other employees considered and no reasonable employer would have ever chosen them over her. The court felt differently. It found, after comparing the résumés, that a reasonable employer could have chosen either of the other applicants over Romano. The court concluded that, because Romano could not establish that she was clearly the superior candidate, the district court properly granted summary judgment to the school district and affirmed the decision.
AMERICANS WITH DISABILITIES ACT
Kentucky district court denies school nurse’s ADA claim when nurse did not provide employer with relevant medical information to support the requested accommodation.
Kirilenko-Ison v. Bd. of Edn. of Danville Indep. School, E.D.Ky. No. 5:18-435-DCR, 2019 U.S. Dist. LEXIS 115944 (July 12, 2009).
https://law.justia.com/cases/federal/district-courts/kentucky/kyedce/5:2018cv00435/86506/43/
Cherryl Kirilenko-Ison was a registered nurse employed by the Danville Independent School District from 2006 to 2017. Susan Bauder-Smith was employed by the district as a part-time nurse in 2014 under a three-year contract. Both nurses assisted in the management and treatment of two district students with diabetes. Additionally, they helped develop accommodation plans for the students pursuant to Sec. 504 of the Rehabilitation Act.
Both Kirilenko-Ison and Bauder-Smith got into disputes with the students’ mothers over various aspects of their treatment plans. These disputes escalated over time, with the nurses filing complaints against the mothers with the Child Protection Branch of the Kentucky Cabinet for Health and Family Services (CPB). Conversely, the mothers filed complaints with the school district alleging unprofessional conduct and violations of various state statutes and school policies, which the district superintendent investigated. As a result of the investigations, Kirilenko-Ison was suspended for five days without pay and Bauder-Smith indicated she would no longer provide services for one of the students. Following her suspension, Kirilenko-Ison took leave under the Family and Medical Leave Act (FMLA) for the remainder of the school year.
Kirilenko-Ison attempted to return to school following her FMLA leave, but she and the district had a dispute over access to her medical records, at which point she applied for disability retirement and resigned from her position in the school district. Bauder-Smith was offered a substitute nursing position but declined, instead applying for a full-time position at a later date. She was not interviewed for that position. The former nurses then asserted claims under Sec. 504 and the Kentucky Whistleblower Act. Kirilenko-Ison also filed a claim for failure to accommodate under the ADA and Kentucky law. Both parties then filed motions for summary judgment.
In discussing Kirilenko-Ison’s claim for failure to make a reasonable accommodation, the court noted that the Kentucky Civil Rights Act is interpreted consistent with the ADA, so claims under the state statutes can be analyzed by reference to the ADA. Similarly, ADA and case law has developed to show that the process to determine a reasonable accommodation for an employee’s disability is an interactive process. In this case, the district did not fail to provide a reasonable accommodation, because Kirilenko-Ison had not provided a proper diagnosis when the board asked for relevant information. Since she was unwilling to provide supporting medical documentation, the court concluded she did not engage in the interactive process in good faith and could not bring a claim for failure to accommodate.
The court also dismissed the plaintiffs’ claims that the district retaliated against them in violation of Sec. 504 because they did not provide any direct evidence of retaliation. Neither plaintiff showed a causal connection between their actions of filing complaints against the parents and their subsequent suspension and reassignment.
Additionally, the plaintiffs’ whistleblower claims did not survive summary judgment because the Kentucky Whistleblower Act protects employees from adverse action by their employer in retaliation for reporting wrongdoing by the employer. In this case, the plaintiffs alleged the district took adverse action against them after they filed reports with CPB alleging wrongdoing by parents. Because the nurses’ reports did not allege wrongdoing by their employer, whistleblower protection does not apply. The court granted the school district’s motion for summary judgment and dismissed the nurses’ claims, with prejudice.
Arbitrator strictly construes Janus decision to affect nonunion fair share fee payers, not union members seeking to withdraw their memberships.
In the Matter of Arbitration between Ripley Union Lewis Huntington School Dist. Bd. of Edn. and OAPSE/AFSCME Local 4, AAA File No. 01-180004-6755 (June 18, 2019) (Heekin, Arb.).
OAPSE/AFSCME Local 4, Local 642 represented approximately 41 classified, nonteaching school employees in the Ripley Union Lewis Huntington School District. On Oct. 1, 2018, subsequent to the U.S. Supreme Court decision in Janus, Donna Fizer, a bus driver for 25 years and an OAPSE member since 2001, hand delivered an unsigned letter to the district treasurer immediately withdrawing her union membership, pursuant to Janus v. AFSCME. The letter also asked the treasurer, if he was unwilling to comply, to provide Fizer with the legal reasons why and explain the process Fizer needed to follow to withdraw her membership.
The treasurer spoke with Fizer, who threatened to sue the district if he did not immediately stop her dues withdrawal. The treasurer ceased withdrawing Fizer’s dues. OAPSE filed a grievance in November challenging the cessation of dues collections from Fizer.
At the hearing on OAPSE’s grievance, the board argued that the Janus decision superseded the collective bargaining agreement’s (CBA) union dues withdrawal window period because it did not have Fizer’s affirmative consent. However, the arbitrator held that Janus specifically involved a nonunion member who paid fair share fees, not a member paying dues. Therefore, Janus did not supersede the CBA, and Fizer could only withdraw her membership during the window period set forth in the CBA. The arbitrator also found that Fizer’s action of joining the union 21 years earlier was sufficient written authorization for continuing withdrawal of her dues absent any contractual language that required updated authorization or reauthorization from an employee.
OAPSE’s grievance was sustained. The arbitrator ordered the district to resume dues deductions and make OAPSE whole for all lost dues.
Supreme Court of Ohio rules common pleas court has jurisdiction over a challenge to OHSAA’s rules even though it may not be able to grant the relief the plaintiffs seek.
Ohio High School Athletic Assn. v. Ruehlman, 2019-Ohio-2845.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-2845.pdf
The Ohio High School Athletic Association (OHSAA) is a voluntary private organization that regulates high school sports competitions, including assigning schools to divisions, by enrollment count, for postseason games. After concerns were raised that private schools were winning state championships at a disproportionate rate, OHSAA adopted “competitive balance rules.” The rules created a formula for an adjusted enrollment count for private high schools. Under the formula, each private high school was assigned a limited number of feeder schools. Feeder schools are in the same system of education, such as the Catholic Conference of Ohio or the Lutheran Schools of Ohio, and are located within a designated public school district attendance area. For public schools, the formula is based on whether the student and at least one of his parents reside within the school district.
In August 2018, Roger Bacon High School and a group composed of the eight co-ed Catholic high schools in the Archdiocese of Cincinnati, Greater Catholic League Coed (GCL Co-Ed), filed a lawsuit in the Hamilton County Court of Common Pleas claiming that they were unfairly affected by OHSAA’s competitive balance rules. Judge Robert P. Ruehlman awarded a temporary restraining order (TRO), blocking OHSAA from implementing the rules. The judge concluded that OHSAA’s enforcement and application of its rules and bylaws were arbitrary and capricious.
In September 2018, OHSAA asked the supreme court for a temporary stay of the TRO and challenged whether the court of common pleas had jurisdiction to consider how a voluntary organization administered its agreed-upon bylaws and rules. The court granted the temporary stay, allowing the rules to remain in effect, and expedited consideration of the jurisdictional challenge.
In its opinion, the supreme court decided that the court of common pleas did have jurisdiction over GCL Co-Ed’s challenge to OHSAA’s rules. The court acknowledged that there is “a substantive legal rule of noninterference with the decisions of voluntary organizations” such as OHSAA. However, it stated that the common pleas court was the appropriate venue to consider the case brought by GCL Co-Ed, even though the court may not be able to grant the relief that GCL Co-Ed had requested.
With this decision, the supreme court’s emergency stay on the judge’s TRO was lifted, meaning the TRO will block OHSAA's rules until Judge Ruehlman can determine whether to issue a preliminary injunction. The case will return to the common pleas court for Judge Ruehlman to consider the merits.
OSBA’s Legal Assistance Fund (LAF), along with the Buckeye Association of School Administrators, Ohio Association of School Business Officials, Ohio Association of Secondary School Administrators and Ohio Interscholastic Athletic Administrators Association, provided an amicus brief supporting OHSAA in the case.
Ohio appeals court finds lower court exceeded its authority and ruled on the merits of a dispute underlying a grievance rather than confining its review to the arbitrability of the grievance.
Toledo Fedn. of Teachers v. Bd. of Edn. of Toledo City School Dist., 2019-Ohio-3025.
https://www.supremecourt.ohio.gov/rod/docs/pdf/6/2019/2019-Ohio-3025.pdf
Toledo Federation of Teachers (TFT) is a public employee labor union representing the teachers, paraprofessionals and substitute teachers employed by the board of education of the Toledo City School District. TFT and the board are parties to a collective bargaining agreement (CBA). Sec. 36 of the CBA, governing “student activities, athletic events and coaches’ salaries,” designated 25 days per high school year for coaches’ attendance at athletic clinics.
On Jan. 13, 2016, Keith Hershey, a district math teacher and high school track coach, submitted a professional leave request and expense voucher, asking for permission to attend a Jan. 29, 2016, clinic in Columbus sponsored by the Ohio Association of Track and Cross Country Coaches. The month before Hershey submitted his request, the district emailed the district’s athletic director to advise that “no professional development leaves are being approved for anyone in the district without in-house coverage; we do not have enough subs to cover classes due to vacancies or illness, so leaves cannot be approved.” The email further advised that leave would be approved if the professional seeking leave found in-house coverage during his or her absence and indicated on the form who would be providing that coverage.
Hershey’s leave request form did not indicate that he had secured in-house coverage. As a result, his request for leave to attend the clinic was denied.
TFT filed a grievance alleging that the board violated Sec. 36 of the CBA when it denied Hershey’s request for leave to attend the clinic. Hershey’s grievance was not resolved informally and was denied at all three levels of the formal procedure established by the CBA. On Jan. 12, 2017, TFT requested arbitration. The board denied this request, relying on an “exclusionary clause” in the CBA that barred TFT from bringing or continuing to bring grievances that were similar to grievances that had been denied by the decision of an arbitrator.
The board maintained that Hershey’s grievance was “similar to” a grievance that had been denied by an arbitrator on May 26, 2016. TFT filed a complaint against the board in the county court of common pleas, asking that the trial court enforce the arbitration agreement and require the board to arbitrate the grievance.
The court held that Hershey’s grievance was not arbitrable because it was similar to the arbitrator’s prior decision and therefore subject to the exclusionary clause. The court granted summary judgment in favor of the board. TFT appealed, arguing that the trial court exceeded its authority and ruled on the merits of the underlying dispute rather than limiting its review to the arbitrability of the grievance. TFT claimed that by reaching the conclusion that Hershey’s grievance was similar to the grievance in a prior arbitration, the trial court improperly engaged in an interpretation of the CBA.
The board responded that because the trial court was charged with determining whether the dispute was subject to arbitration, and because the CBA exclusionary clause prohibited TFT from arbitrating grievances that were similar to a grievance denied by the decision of an arbitrator, it was necessary for the trial court to determine whether Hershey’s grievance was similar to the prior grievance.
The appeals court found TFT’s arguments persuasive. The court of appeals held that the decision of whether two grievances were “similar” required knowledge of the CBA, analysis of its terms and consideration of the unique factual circumstances of both grievances. In the absence of an “express exclusion,” “explicit language” or “forceful evidence” from the bargaining history indicating an intent to reserve the issue for the trial court, the court found that the determination of whether two grievances are “similar” was a matter for the arbitrator. As a result, the court of appeals reversed the decision of the trial court and remanded so the trial court could enter an order declaring the parties’ dispute arbitrable.
CONSTRUCTION — STATUTE OF REPOSE
Supreme Court of Ohio concludes that Ohio’s statute of repose for claims related to improvement to real property applies to claims of injuries from breaches of contract.
New Riegel Local School Dist. Bd. of Edn. v. The Buehrer Group Architecture and Eng., Inc., 2019-Ohio-2851.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-2851.pdf
In the early 2000s, the New Riegel Local School District built a school using funding provided by the Ohio Facilities Construction Commission. Water infiltration and structural issues beleaguered the building since its substantial completion in December 2002. The district filed a lawsuit for breach of contract against the architect and contractors on April 30, 2015.
The trial court dismissed the district’s claims, stating that the statute of repose, Ohio Revised Code (RC) 2305.131, barred the district from suing because the project had reached substantial completion more than 10 years before it initiated its case. The district appealed.
The appellate court reversed the trial court’s decision. It stated it was required to follow the Supreme Court of Ohio’s 1986 Kocisko v. Charles Shutrump & Sons Co. decision, which found the statute of repose only applied to tort actions. However, breach of contract claims were governed by RC 2305.06, the statute of limitations for contract claims. Although RC 2305.06 was amended in 2012 to reduce the limit for bringing an action for breach of contract from 15 years to 8 years, the 15-year limit still applied to claims that arose prior to Sept. 28, 2012, the effective date of the amendment. Buehrer and the other defendants appealed to the Supreme Court of Ohio, which agreed to hear the case.
The supreme court overturned the appeals court’s decision, agreeing with the trial court. In its majority opinion, the court concluded that, because the statute of repose had been amended substantially since the decision in Kocisko, the court could conduct a “fresh review” of the statute, notwithstanding that precedent.
The court noted that, as amended, RC 2305.131 expressly referred to contract-law concepts. For that reason, the court’s majority concluded that the current version of the law applied to both tort lawsuits and breach of contract lawsuits. The supreme court’s decision reinstated the trial court’s dismissal of the district’s breach of contract claims as barred by the statute of repose. The supreme court also declined to rule on the district’s other claims and remanded them to the court of appeals.
The district has filed a motion of reconsideration on the venue for the remand, asking the supreme court to remand the remaining claims to the trial court, rather than the court of appeals, as neither court has had the opportunity to review those claims. That motion is pending.
OSBA’s Legal Assistance Fund (LAF) provided support to the district by joining in an amicus curiae brief along with the County Commissioners Association of Ohio, Ohio Municipal League, Ohio Township Association and Erie County Board of Commissioners.
Ohio court finds that placement of a letter of reprimand in a teacher’s personnel file is not publication for purposes of a defamation claim if the letter is removed prior to a third party accessing the file.
Sheridan v. Columbia Local School Dist. Bd. of Edn., N.D.Ohio No. 1:18 CV 1162, 2019 U.S. Dist. LEXIS 88201 (May 24, 2019).
https://docs.justia.com/cases/federal/district-courts/ohio/ohndce/1:2018cv01162/243319/44
John Sheridan was a teacher at Columbia High School in the Columbia Local School District. In May 2018, Sheridan filed a claim alleging defamation and a violation of his First Amendment and due process rights by the school district and its superintendent. The claim centered on a public letter of reprimand written by the superintendent and placed in Sheridan’s personnel file on April 11, 2018.
The letter reprimanded Sheridan for two incidents, one occurring on Feb. 28, 2018, and the other occurring on March 6, 2018. The letter stated that, in February, Sheridan inappropriately had told the parents of a student that another district employee had lied about the student’s medical condition and that the employee often covered up for and excused the student’s behavior. It also noted that, in March, Sheridan had verbally attacked and shouted at other school employees and accused them of lying about the student’s medical condition. In his complaint, Sheridan alleged that the letter falsely accused him of being dishonest.
On Sept. 6, 2018, the April reprimand letter referenced in Sheridan’s complaint was removed from his personnel file and all other board files. It was replaced by a letter of reprimand that did not include any reference to the February incident. Sheridan was given the opportunity to amend his complaint to include the September letter rather than the April letter, but did not do so.
The court started its analysis of the case by reviewing the elements of a defamation suit, noting that one essential element is the publication of a false statement. In cases such as this, Ohio courts have consistently held that the placement of something in a public employee’s personnel file, even if it is considered a public record, does not equate to publication for the purposes of defamation if no third party has accessed the information. As there was no evidence that anyone viewed the original letter of reprimand, and it was removed, Sheridan had no viable present or future claim for defamation based on that letter. The court also denied Sheridan’s other claims for failure to provide any evidence and on grounds of mootness.
Ohio court upholds summary judgment for district that proffered a legitimate, nondiscriminatory reason for terminating employee while on leave for knee surgery.
Pilato v. Bd. of Edn. of Nordonia Hills City School Dist., 2019-Ohio-3085.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2019/2019-Ohio-3085.pdf.
Patricia Pilato worked in the cafeteria at Nordonia High School for over 20 years, eventually becoming the manager. In this position, Pilato was a member of the OAPSE union. Throughout her employment, Pilato received positive performance evaluations and, up until the facts giving rise to this case, had never received disciplinary action. Part of Pilato’s job responsibilities included ordering food from Gordon Food Service (GFS). To do this, Pilato would log on to the GFS website with her username and password. Other than her immediate supervisor, Sue Petonic (who had her own username and password), no one else at the high school had access to GFS’s online ordering system.
In May 2017, Pilato requested leave for the last two weeks of the school year to have knee replacement surgery. While Pilato was on leave, a GFS order that Petonic placed did not arrive. After contacting GFS, Petonic learned that someone using Pilato’s username and password on a nonschool computer had cancelled the order. Pilato denied cancelling the order, but district administrators did not believe her, in part because her story “changed multiple times.” Petonic also learned that, while Pilato was on leave, she was logging into the online payroll system and changing other employees’ time. During her investigation of the cancelled food order, Petonic spoke with other cafeteria employees who alleged that Pilato had bullied and harassed them.
The business manager of the district decided that Pilato should be removed from her position as manager, and that, given the allegations of bullying, she should not return to work at the high school. He provided Pilato with three options: 1) complete an employee assistance program and take a nonmanagement cafeteria position at one of the other schools within the district; 2) resign, thereby allowing her to retain the district’s contributions to her retirement benefits; or 3) be terminated for insubordination. Pilato resigned and sued the district for disability discrimination. The district moved for summary judgment, which the trial court granted. Pilato appealed.
On appeal, Pilato argued that the district discriminated against her by forcing her to resign and by failing to provide a reasonable accommodation. The trial court had determined that Pilato never requested an accommodation. It further determined that, if her request for leave to undergo knee surgery qualified as a request for an accommodation, the district had granted that request.
Pilato argued that her request for leave was a request for an accommodation and that the district effectively denied it by requiring her to work and by requiring her to address, while on leave, the issue of the cancelled food order. The court of appeals rejected these arguments, finding that the record did not support a claim that she was required to continue working while on leave. The court also found that because Pilato had not asserted the issue of the cancelled food order to the trial court, she could not do so for the first time on appeal.
The court concluded that the district proffered a legitimate, nondiscriminatory reason for its actions (i.e. the cancelled food order) and that nothing in the record indicated that the district’s actions were motivated by anything other than that legitimate, nondiscriminatory reason. Accordingly, the court of appeals found that the trial court did not err by granting summary judgment in favor of the district.
Kentucky court upholds Kentucky Labor Cabinet’s subpoenas for information related to statewide teacher protests, then remands the case to state court.
Ky. ex rel. Beshear v. Dickerson, E.D.Ky. No. 3:19-033-DCR, 2019 U.S. Dist. LEXIS 78524 (May 9, 2019), remanded to state court, 2019 U.S. Dist. LEXIS 107466 (June 27, 2019).
https://cases.justia.com/federal/district-courts/kentucky/kyedce/3:2019cv00033/89069/11/0.pdf
https://law.justia.com/cases/federal/district-courts/kentucky/kyedce/3:2019cv00033/89069/19/
In 2018 and 2019, a number of public school teachers protested proposed legislation at the state capitol building in Kentucky. Because these protests took place during the school year, many districts faced staffing shortages and had to make decisions on school closings. Some school districts had to close and delay critical student testing.
Following the forced school closures, the Kentucky Labor Cabinet issued subpoenas to 10 school districts for the purpose of investigating and determining whether the absent teachers violated state laws through an illegal work stoppage. Kentucky Attorney General Andy Beshear, siding with the teachers, wrote to the governor and labor cabinet secretary asserting that the subpoenas violated the teachers’ First Amendment rights and requested the subpoenas to be withdrawn. The secretary of the labor cabinet, David Dickerson, denied this request because the cabinet was simply investigating possible violations of Kentucky law as the cabinet is required to do.
Beshear and the teachers association then instituted an action in state court seeking a temporary restraining order and/or injunction to prohibit Dickerson from acting on or enforcing the subpoenas. Dickerson removed the matter to federal court, asserting federal question jurisdiction.
After reconstructing the facts which lead to the court action, the U.S. District Court for the Eastern District of Kentucky denied Beshear’s motion because he did not show a likelihood of success on the merits of his claim. Further, any injury the plaintiffs may have suffered was minimal because most of the information subject to the subpoenas had already been provided to the Kentucky Labor Cabinet. Finally, denying the plaintiffs’ motion protected third parties from harm and promoted the public interest. The court noted that Beshear lost on all four factors which are considered by the court in determining whether injunctive relief is warranted.
Following this decision, the plaintiffs filed a motion asking the federal court to remand the case to state court on the basis that their claims arose under state law only. The district court agreed and remanded the case to the Franklin Circuit Court.
Kentucky court upholds summary judgment, concluding that evidence does not support a claim that coach discriminated against athlete with disabilities.
Clemons v. Shelby Cty. Bd. of Edn., W.D.Ky. No. 3:15-CV-00552-GNS-DW, 2019 U.S. Dist. LEXIS 111061 (July 3, 2019).
https://law.justia.com/cases/federal/district-courts/kentucky/kywdce/3:2015cv00552/95027/61/.
T.W. was an eighth-grader at a Kentucky high school. At the beginning of the 2013-14 school year, T.W.’s parents noticed that she was experiencing a significant amount of anxiety, which her mother partially attributed to T.W. being overwhelmed by the size and environment of her new school. In December 2013, T.W.’s parents decided to seek professional assistance from a therapist, who diagnosed T.W. with Asperger’s Syndrome Disorder. During that school year, T.W.’s family did not request an IEP or any accommodation for T.W.
T.W. had participated on the girls’ tennis team while in sixth and seventh grade, and she decided to participate on the girls’ tennis team in 2014. During preseason training, T.W. would come home crying in response to criticism she received from the tennis coach. T.W.’s mom texted the coach and disclosed T.W.’s diagnosis of Asperger’s Syndrome Disorder.
At the end of the season, T.W.’s mom texted the coach to find out if T.W. would be participating in the regional tournament. The coach replied that T.W. had been beaten out by another player for the last spot at regionals based on a challenge match held about a week before regionals. After T.W. learned that she would be an alternate at regionals, she was devastated and texted her mom threatening to commit suicide. T.W.’s mom drove to the school and met T.W. and two school officials in their office. At that afternoon’s practice, T.W. tried to get additional answers from her tennis coach about why she was not selected for the regional tournament, but the coach claimed that he would not talk to T.W. or her mother after T.W.’s mother yelled at him about the decision at the practice following the announcement. T.W.’s mom withdrew T.W. from the high school and decided to home-school her for the remainder of the school year. T.W. was not invited to the end-of-the-year team banquet but eventually learned about the event and attended anyway.
In June 2015, T.W.’s family filed a lawsuit asserting claims under Title IX of the Education Amendments of 1972 (Title IX), Sec. 504 of the Rehabilitation Act, Equal Protection Clause of the Fourteenth Amendment and the Kentucky Constitution. The claims contended that the district discriminated against T.W. during the tennis season because of her disability. The district court granted summary judgment for all defendants (SLS 2018-2), and T.W.’s family filed a motion to alter, amend or vacate.
The court found that T.W. failed to prove a prima facie claim under the Sec. 504 and granted summary judgment to the district on the claim. The court found that the coach’s treatment of T.W. was similar both before and after T.W.’s mother disclosed T.W.’s disability diagnosis. As a result, any alleged discriminatory treatment could not be because of T.W.’s disability. The court held that there was no evidence to show that T.W.’s nondisabled teammates were treated any more favorably than T.W. The court also found that T.W.’s withdrawal from school and separation from the tennis team prior to the banquet severed any link between T.W.’s disability and her failure to be notified of the banquet.
Sixth Circuit upholds district court summary judgment for school district on parents’ claim that district employees had retaliated against them by filing Department of Children’s Services complaints.
M.L. v. Williamson Cty. Bd. of Edn., 6th Cir. No. 18-5671, 2019 U.S. App. LEXIS 15528 (May 24, 2019).
https://law.justia.com/cases/federal/appellate-courts/ca6/18-5671/18-5671-2019-05-24.html
The facts of this case and the lower court’s ruling previously were addressed in SLS 2018-3. Student J. was diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. J. attended school in the Williamson County School District in Tennessee and had an individualized education program (IEP) and a behavioral intervention plan (BIP).
During the 2015-16 school year, J.’s teachers observed behaviors on several occasions that caused them to be concerned that J. was being subjected to abuse. On three occasions during the year, district employees filed reports with the Tennessee Department of Children’s Services (DCS). The parents alleged that the district violated Sec. 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and the First Amendment when its employees filed the reports in retaliation for his mother’s advocacy on his behalf. Both Sec. 504 and ADA prohibit retaliation against any person seeking to enforce rights under the Individuals with Disabilities Education Act.
The court reviewed the parents’ claims under ADA and Sec. 504 together and agreed with the lower court’s decisions. Regarding the parents’ claim of retaliation for the first report to DCS, the appeals court concluded that the parents had not met the requirements to establish a prima facie case. Regarding the parents’ claims for the other two reports, the appeals court concluded that although the parents established a prima facie case, they were unable to prove that the district’s legitimate reason for making the reports was pretextual.
The court also upheld the district court’s grant of summary judgment on the parents’ First Amendment claim. However, it based its decision on grounds supported by the record other than those relied upon by the district court. It concluded that, because the parents had not shown that any district policy or custom caused retaliation for protected speech, summary judgment was appropriate for the claim.
Tennessee district court faults state department of education for failing to comply with settlement order and orders it to pay plaintiffs’ attorney fees and costs to prepare for and attend mediation.
S.P. v. Knox Co. Bd. of Edn., E.D.Tenn. No. 3:17-CV-100, 2019 U.S. Dist. LEXIS 80779 (May 19, 2019).
https://scholar.google.com/scholar_case?case=8332163214623869858&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Students E.E. and M.P. were assigned to two different schools in the Knox County school system. Both were students with epilepsy who were prescribed the anti-seizure medication Diastat. The school system’s policy required any student receiving Diastat to attend and, if necessary, be transferred to, a school with a full-time on-site nurse. The policy also provided that the school system could transfer a nurse to the zoned school if none was assigned to the school. Tennessee state law prohibited a local education agency from assigning a student with epilepsy to a school, other than the one to which he or she was zoned, because the student had a seizure disorder.
Both E.E. and M.P. were assigned to a school other than the zoned school. M.P.’s parent decided to discontinue Diastat so she could attend her zoned school. E.E.’s parents allowed her to attend the non-zoned school. M.P. was not told she could have a nurse at her zoned school. E.E. was specifically told that she could not have a nurse at her zoned school.
E.E. and M.P., and their parents, sued the Knox County Board of Education (board) and Tennessee Department of Education (TDOE), alleging that the practice of busing students with epilepsy to a school with a nurse violates the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), Sec. 504 of the Rehabilitation Act and Tennessee state law.
The board and TDOE filed motions for summary judgment. The district court denied summary judgment for the board and denied summary judgment to TDOE on all but one state law claim. The court ordered the parties to mediation under a rule that required all parties to attend with full authority to negotiate a settlement.
TDOE chose to file a motion for reconsideration of summary judgment on the IDEA claim, stating that the court found that IDEA provided a remedy for claims other than denial of a free appropriate public education (FAPE). Although it had not yet filed the motion for reconsideration at the time of the mediation, TDOE notified the other parties that it would be unable to offer anything toward a settlement. It attended the mediation with no authority to contribute to the settlement.
The plaintiffs countered TDOE’s argument, stating that TDOE must enforce both IDEA and incorporated state law concerning zoned school access. The plaintiffs also asked for sanctions against TDOE for failing to participate in the mediation in good faith.
The court denied TDOE’s motion for reconsideration. It held that when a state special education law is more protective than IDEA, a violation of state law can amount to a violation of IDEA.
The court also granted plaintiffs’ motion for sanctions against TDOE. It stated that TDOE’s decision not to contribute in the mediation without seeking a modification or withdrawal of the court order “shows an utter lack of respect for the court.” Sanctions were appropriate, according to the court, because TDOE displayed bad faith by not advising the court that it was filing a motion to reconsider or that it would not participate in the mediation, needlessly delayed resolution of the matter, and increased the time and expense incurred by the parties. The court ordered TDOE to pay the plaintiffs’ attorney’s fees and costs related to the mediation.
INDIVIDUALS WITH DISABILITIES — EXHAUSTION OF REMEDIES
Sixth circuit court of appeals upholds district court’s decision that student’s Sec. 504 denial of FAPE claim is subject to the IDEA exhaustion of remedies requirements.
L.G. v. Fayette Cty. Ky. Bd. of Edn., 6th Cir. No. 18-5715 (June 10, 2019).
https://www.courtlistener.com/opinion/4627974/lg-v-bd-of-educ-of-fayette-cty/
In September 2016, when he was a student at Morton Middle School in Fayette County, Kentucky, L.G. was diagnosed with an E. coli infection. His doctor advised his parents that L.G. should not attend school.
L.G.’s mother contacted the school administration and provided a medical statement from L.G.’s physician stating that he would not be allowed to return to school for some time. In November, L.G. and his parents were contacted by a social worker about a complaint that L.G. was dependent, neglected or abused. His parents also were made aware that the school considered him absent from school and had been giving him failing grades in his classes as a result, and that a truancy petition had been filed against them for his absences.
L.G.’s parents withdrew him from Fayette County Public Schools in March 2017 and filed a complaint alleging that the Fayette County Public Schools Board of Education had failed to identify L.G. as a child with a disability, and, as a result, he was subject to discrimination and denied a free appropriate public education (FAPE) in violation of Sec. 504 of the Rehabilitation Act. The complaint also alleged that the truancy charge and abuse complaint were filed against L.G. and his parents in retaliation for his parents’ advocacy on his behalf. The lower court’s decision to dismiss all claims against the board was discussed in SLS 2018-3.
The court of appeals affirmed the judgment of the district court. It concluded that L.G.’s claim of discrimination in violation of Sec. 504 was actually a claim of a denial of FAPE under the Individuals with Disabilities Education Act (IDEA). As such, L.G. was required to exhaust administrative remedies under IDEA before pursuing a claim of discrimination. It also concluded that L.G. had not established a causal connection between the truancy charges and neglect complaint that were filed against his parents with their advocacy on his behalf. As a result, he had not made a prima facie case for retaliation.
Ohio court finds that text messages that document the functions, policies, procedures, operations or other activities of a public office are public records, even if conveyed using personal devices.
Sinclair Media III, Inc. v. Cincinnati, 2019-Ohio-2623.
https://www.supremecourt.ohio.gov/rod/docs/pdf/13/2019/2019-Ohio-2623.pdf
In May 2018, a reporter for Sinclair Media filed a public records request with the city of Cincinnati, asking for text messages sent between March 1 and April 12, 2018, from any city council member, the mayor or the city manager in which the city manager’s employment was discussed. The city replied to the request, saying that it would provide the responsive documents but did not provide them.
In October 2018, Sinclair Media filed an action with the court of claims, alleging a denial of public records. The court appointed a special master. Following unsuccessful mediation, the city filed a motion asking that Sinclair Media’s complaint be dismissed on the bases that it was ambiguous and overly broad and that the records were not public records. The special master ordered the city to submit the records under seal, and the city complied.
The special master issued a report recommending that the court deny the city’s motion and order the city to provide the records to Sinclair Media. The special master stated that, because the request was limited to text messages sent by specific public officials on a specific topic and within a six-week time period, it was not ambiguous or overly broad.
The special master also concluded that text messages written by city officials concerning the employment status of a city official were records created, received by or under the jurisdiction of the city. The records were kept by the city through its officials, even though they were maintained in personal devices. The city objected to the special master’s report.
On the question of whether the request was ambiguous and overly broad, the court of claims concluded that Sinclair Media had actually submitted three requests for three separate sets of records. It agreed with the special master that the first request for the first set of records was not ambiguous and overly broad. It noted that the Supreme Court of Ohio recently had concluded that even complex and expansive requests may be valid and sufficiently specific if the requester places sufficient limitations on the scope of the request.
However, for Sinclair Media’s second and third requests, the court sustained the city’s objection. It concluded that these requests were overly broad because, in order to fulfill them, the city would have been required to search the cellphones of all city officials and employees, and possibly other people.
The court agreed with the special master on the question of the status of the texts as public records. The court concluded that the records were kept by the city, even though they were retained on the personal, privately paid devices of city officials. The court stated: “The operative question in this case is not whether the text messages at issue were sent from or stored on personal or private devices, but whether they document the functions, policies, procedures, operations, or other activities of the City.” The court found that they did. It ordered the city to provide the documents it had already submitted under seal to Sinclair Media.
Michigan district court holds that district was not “deliberately indifferent” in its investigation of inappropriate photographs found on students’ iPads.
Doe v. Grandville Pub. School Dist., W.D.Mich. No. 1:18-CV-309, 2019 U.S. Dist. LEXIS 116092 (July 12, 2019).
https://www.casemine.com/judgement/us/5d2d89029d7cb605bcd68870#.
Jimmy Doe was a kindergartner at a school in the Grandville Public School District in Michigan. The district provided iPads to its kindergarten students during the 2014-15 school year. On April 21, 2015, Jimmy’s kindergarten teacher, Hillary Huberts, discovered that a group of boys had inappropriate pictures of students on their iPads. Hubert found at least two inappropriate pictures. One depicted Jimmy with his pants pulled down, bent over and exposing his bottom, with his head turned facing the camera and smiling. Another picture was a close-up shot of a penis. No other picture identified a student. The pictures did not show Jimmy being touched by any classmate, nor did they indicate sexual harassment.
Huberts notified the building principal of the photographs and provided her with the iPads. The principal determined that four students had inappropriate pictures on their iPads and that the photographs were dated March 31, 2015. The principal interviewed the students involved, during which Jimmy told the principal it was his idea to pull his pants down. Jimmy said he had pulled his pants down twice and then stopped after he talked with his mom about “the privates.” Jimmy said that the hands in the picture of his bottom were his own, and he did not indicate that he had been coerced, threatened or touched by a classmate. The principal interviewed other students, each of whom confirmed that it was Jimmy’s idea to pull his pants down.
In addition to interviewing the students, the principal contacted the parents of each student involved, filed a report with the Michigan Department of Human Services, and contacted the Wyoming Police Department, which instructed the principal to ensure that the pictures were deleted from the iPads. The principal complied by having the district’s IT department delete the pictures. The principal also met with Jimmy’s mom, who expressed concern that students may be talking about the photographs. During the meeting, Jimmy’s mom did not indicate that Jimmy had been inappropriately touched or sexually harassed.
Jimmy’s parents chose to keep Jimmy home for the remainder of the school year. Jimmy returned for the 2015-16 school year. During this year, there was no incident or report of harassment or bullying. The following year, shortly before Jimmy was about to start school, Jimmy told his mother that he had been touched in 2015, and she was “surprised.” Jimmy’s mom had not asked Jimmy about what had happened in April 2015 until that time. Jimmy testified that around spring break in 2015, several of his classmates took photographs and inappropriately touched each other. Jimmy said that they were able to avoid detection because the teacher could not see them.
Jimmy’s mom informed the principal of Jimmy’s allegations. The principal met with Jimmy’s parents, contacted the district’s Title IX coordinator, contacted the mother of a student Jimmy’s mom said had witnessed the incident, conducted an investigation which failed to confirm Jimmy’s new allegations, and filed a report with the Michigan Department of Human Services. Around this time, Jimmy’s mom informed the principal that Jimmy had enrolled at Tri-Unity Christian School. The family later filed a complaint pursuant to Title IX of the Education Amendments Act of 1972 for violation of Jimmy’s rights to personal security, bodily integrity and equal protection and for gross negligence. The district filed a motion for summary judgment.
The court granted the district’s motion for summary judgment. The court held that the family’s claim failed because it was undisputed that the district did not have actual notice that Jimmy was being subjected to sexual harassment prior to discovering the inappropriate pictures on the iPads. Additionally, the family failed to demonstrate that the district was deliberately indifferent to known sexual harassment of Jimmy.
The court found that the principal’s response to the teacher’s discovery of the inappropriate pictures on the iPads was entirely reasonable in light of the known circumstances. She separately interviewed each student involved to find out the details of what occurred. Each student, including Jimmy, stated that it was Jimmy’s idea to take the picture. No student said that inappropriate touching had occurred, and no other circumstance indicated that such was the case. The principal also contacted the police, the Michigan Department of Human Services and the parents of each student involved. Accordingly, the court granted the district’s motion for summary judgment and dismissed the family’s claims with prejudice.
Tennessee district court finds sufficient facts for a jury to hold a district liable, under Title IX and Sec. 1983, because of its actions relating to videos of students engaged in sex.
T.C. v. Metro. Govt. of Nashville & Davidson Cty., 378 F.Supp.3d 651 (M.D.Tenn. 2019).
The facts of this case, and the court’s previous conclusions on procedural matters involving these four students and one other, were covered in SLS 2018-04.
Plaintiffs are parents of four high school students who filed lawsuits against the Metropolitan Nashville Public Schools (MNPS) on their children’s behalf. The lawsuits allege violations of Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681 and 42 U.S.C. 1983, arising from incidents at two MNPS schools of “exposing,” which is taking and circulating video of sex acts without the knowledge of some of the participants. As a result of the harassment, the students were subjected to name-calling, bullying and harassment online and at school, and were unable to remain in school.
The plaintiffs alleged that exposing and harassment were widespread within MNPS, and administrators at the schools were aware of it. The plaintiffs alleged that MNPS had failed to train its personnel to handle incidents of sexual harassment and was deliberately indifferent to the ongoing sexual harassment of female students.
The parents filed a collective motion for summary judgment against MNPS, which the court denied. MNPS filed motions for summary judgment involving all four sets of plaintiffs. The court denied three of these motions and granted in part and denied in part the fourth motion.
The court noted that Title IX cases based on harassment or abuse have been separated into two kinds of claims: “before” claims and “after” claims. “Before” claims focus on the school’s actions before any underlying incident or the school’s knowledge of the incident. They consider whether a school acted adequately to prevent and prepare for foreseeable risks of harassment and abuse. “After” claims focus on the school’s response after it learns of an underlying incident. They consider whether the school met its obligation to handle an incident without deliberate indifference.
Regarding the “before” claims in this case, the court rejected all of MNPS’s arguments. First, it held that there was ample evidence for a jury to conclude that MNPS was on notice of the risk of the dissemination of sexual images of its students without their consent. MNPS personnel has witnessed numerous cases of sexting and sexually oriented videos between 2012 and 2017. The court rejected outright MNPS’s related argument that it had no Title IX liability unless it was aware that a particular student or student group was likely to commit harassment or likely at risk to be targeted. The court concluded: “[a]ctual knowledge of a serious, widespread problem is at least enough to allow a district to reasonably respond in some way, even if it cannot predict or prevent every future incident.”
The court rejected MNPS’s “myopic focus” on whether the students consented to the sexual acts that were recorded. The court noted that sexual interactions may be multistaged and multifaceted, and that consent at one stage does not imply consent at every other stage. Further, it noted that, when considering sexual harassment claims, the Sixth Circuit has emphasized welcomeness, rather than consent. The court thereby recognized that while sexual activity may be consensual, the underlying interaction may be sufficiently unwanted or unwelcome that it can contribute to an environment of discriminatory harassment. An environment in which a student consents to sexual activity but is then subjected to severe, gendered harassment and humiliation has not become Title IX-compliant as a result of the consent. The circulation without consent of private recordings was enough to support a Title IX claim even if the depicted student consented to the underlying sexual activity.
Third, the court rejected MNPS’s argument that students of both genders were subjected to the same level of disruption from the circulated recordings. The plaintiffs had produced sufficient evidence that the bullying to which the female students were subjected followed the “easily recognizable” script of treating women and girls as “uniquely tainted and lessened” by their engagement in sexual activity and MNPS administrators should have been familiar with this dynamic. For this reason, a jury could conclude that male and female students were not harmed equally by MNPS’s failure to prevent the development of a culture of digital sexual humiliation in its schools.
The court also rejected MNPS’s argument that the circulation of the recordings was not sexual harassment because it may have been motivated by personal animus. It stated that the question was not the harasser’s motivations but the social impact of the behavior. The court held that a reasonable juror could conclude that the conduct at issue was sufficiently severe, pervasive and objectively offensive to deny the students subjected to it equal access to education.
The court then turned to plaintiffs’ claims that, after it knew of the harassment, MNPS failed to take immediate effective action to eliminate the hostile environment and prevent its recurrence. The court noted that many of MNPS’s arguments were reiterations of those the court had already addressed in relation to the “before” claims.
In sum, the court said that a reasonable jury could conclude that MNPS was deliberately indifferent because of its “failure to build, or at least use, the basic [Title IX] structures that would have made even an attempt at an appropriate response possible.” A reasonable juror could look at the facts presented and see principals and vice principals “dealing with a new and systemic problem on an essentially ad hoc basis, with little support from the high-level administrators who were supposed to be the ones making sure that Title IX issues were properly addressed.”
The court also concluded that there was sufficient evidence for a reasonable jury to conclude that MNPS owed a student, at a minimum, a meaningful assurance that the school recognized that the circulation of a recording depicting her engaged in a sexual act posed a distinct and significant risk of harm to the student’s education. Without that assurance, the court concluded that the message sent to the student was that “by engaging in recorded sexual activity, she has forfeited the right to the school’s protection from future harassment.”
However, the court did grant summary judgment to MNPS on the “after” claims filed by parents on behalf of one of the students who attended a different school. It concluded that the student did not identify facts that would permit a jury to conclude that MNPS’s reaction to her specific allegations supported an additional finding of liability. The court denied summary judgment to MNPS on the student’s other claims.
Ohio district court holds claims are time-barred since administrator took over three years to file lawsuit after receiving board’s notice of its intent to terminate.
Hackett v. Bd. of Edn. of the Marysville Exempted Village School Dist., S.D.Ohio No. 2:18-cv-1308, 2019 U.S. Dist. LEXIS 94399 (June 5, 2019).
In April 2014, Melissa Hackett and the Marysville Exempted Village school board entered into a written administrator’s contract, whereby Hackett would serve as principal for a term of three years. Hackett also had a continuing employment contract with the district.
In July 2015, the board informed Hackett that it had adopted a resolution declaring its intent to consider the termination of her administrator and teacher contracts. Hackett was placed on an unpaid suspension pending the proceedings. Hackett submitted a written demand for a referee. A list of potential referees was provided to Hackett, and a hearing date of Aug. 25, 2015, was set. While the parties agreed on the referee, the hearing did not take place and was not rescheduled, for reasons that are not explained in the record of the case.
Hackett filed a lawsuit asserting a claim under 42 U.S.C. 1983, alleging that the board’s failure to provide her with a hearing violated her due process rights. She also asserted that, after she invoked her right to have a referee hear her case, the board could not lawfully terminate her contract prior to the hearing. Finally, she argued that she still held an active teacher’s contract with the board, which further entitled her to compensation.
The board contended that Hackett’s claims were time-barred. The court rejected Hackett’s argument that “either an eight-year or four-year statute of limitations governs her claims.” The court noted that, because there is no statute of limitations in Sec. 1983, Ohio’s two-year statute of limitations for personal injury actions, governed Hackett’s claims. The court acknowledged that, although Hackett may not have known the full extent of her injuries when she received notice that the board had placed her on unpaid leave and was seeking to terminate her, the letter Hackett received in mid-2015 clearly should have put Hackett on notice that she needed to protect her rights. The court found that because Hackett did not file her lawsuit until October 2018, which was over three years after she first received notice that the board was suspending her without pay and seeking to terminate her employment, Hackett’s first claim for relief was time-barred.
The court also rejected Hackett’s second and third claims, finding that these were not independent causes of action but rather “ill effects tied to her first cause of action” and “inextricably linked to the alleged due process violation of terminating her administrator’s contract.” As a result, Hackett’s second and third claims were also time-barred.
This decision has been appealed to the U.S. Court of Appeals for the Sixth Circuit.
Ohio court of appeals affirms judgment of the trial court, which upheld Ohio Civil Rights Commission’s dismissal of former teacher’s claim of discrimination against Dayton City School District.
Cox v. Dayton Pub. Schools Bd. of Edn., 2019-Ohio-2591.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2019/2019-Ohio-2591.pdf
On Oct.10, 2012, Georgia Cox, an intervention specialist at Meadowdale High School in the Dayton City School District, hit a student using a wheelchair in the upper chest. Criminal charges were initiated against Cox on Oct. 16, 2012, and she later was convicted of felony assault. Cox’s contract with the district was terminated in December 2013. Cox’s appealed the termination. Reports of these appeals have been included in three earlier SLS. (SLS 2015-2, SLS 2016-4 and SLS 2018-3.)
In addition to contesting her termination, Cox filed an Ohio Civil Rights Commission (OCRC) charge of discrimination against the district in December 2017. Cox based her claim on an Aug. 21, 2017, brief filed by the district asserting that her license had been permanently revoked, rendering further review of her termination moot. In its motion, the district also stated its objection to rehiring Cox because her license had been permanently revoked. Cox argued that this filing, and the district’s failure to rehire her, amounted to an unlawful discriminatory practice, discrete from the harm related to the termination.
OCRC issued a letter of determination dismissing the charge in April 2018, concluding that OCRC did not have jurisdiction over the charge because Cox did not file it within six months of the alleged discriminatory practice. Cox requested reconsideration of the dismissal. On June 7, 2018, OCRC issued a letter of determination upon reconsideration. In the letter, OCRC dismissed the charge again, stating that filing of the district’s brief in August 2017 was not a discrete and new act of harm. OCRC concluded that it had no jurisdiction because the charge had not been filed within six months of an unlawful discriminatory practice.
The trial court limited its review of the matter to the OCRC’s June 7, 2018, letter of determination upon reconsideration. It found that OCRC’s order dismissing Cox’ claim because she did not file within the six month period required by law was not unlawful, irrational, arbitrary or capricious and, therefore, that OCRC’s decision not to conduct an evidentiary hearing was justified.
The appeals court upheld the trial court’s review and ruling. While Cox asserted that an unlawful discriminatory practice occurred on Aug. 21, 2017, when the district filed its brief, OCRC correctly found that this brief was not a discrete or new act of harm to Cox. [Note: In its conclusion, the appeals court lists the date of the brief as “December 21, 2017.” The correct date is Aug. 21, 2017.]
Ohio court of appeals found that trial court did not abuse its discretion in upholding teacher’s termination following teacher’s brawl with her sister and niece at district track meet.
Humphries v. Lorain City School Dist. Bd. of Edn., 2019-Ohio-2263.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2019/2019-Ohio-2263.pdf
Aliceson Humphries was employed in various positions by the Lorain City School District from 1996 until her termination in 2016. At the time of her termination, she was the director of Lorain Digital Academy pursuant to a two-year administrative contract and also had a continuing teaching contract. The Lorain City Board of Education decided to terminate her as a result of conduct at a district track meet and senior recognition ceremony held on school grounds in 2015.
At that track meet, Humphries got into an argument with her sister and her niece, who was a student in the district, that escalated into a “brawl.” Security officers eventually escorted the niece to the parking lot. At that time, Humphries approached her niece and “bopped” her on the head.
Humphries was placed on paid administrative leave and directed to stay off school property while the incident was being investigated. At the conclusion of the investigation, the board issued a notice to Humphries of a hearing to address the board’s anticipated recommendation to initiate termination proceedings against her. At the hearing, the board voted to terminate Humphries, finding she engaged in inappropriate verbal and physical aggression towards a student — her niece — during the track incident as well as her conduct concerning an earlier, unrelated incident where Ms. Humphries was disciplined for using profanities and having a physical confrontation with another student.
During the termination process, Humphries made a timely demand for a hearing to be conducted before a referee. The referee’s hearing was conducted on Nov. 16, 2015, and a report issued on Jan. 22, 2016. In the report, the referee found all of the allegations to be true but recommended that discipline in the form of termination “is excessive.”
The board considered the referee’s report. By a 4-1 vote, it issued a resolution rejecting the recommendation and terminating Humphries’ employment contracts immediately. The resolution detailed the board’s consideration of the referee’s report and articulated the various reasons for rejecting it.
Humphries appealed the board’s decision to the common pleas court, which affirmed it. Humphries then appealed to the appellate court. That court overturned the trial court and remanded the case for a determination of whether the board properly rejected and altered the referee’s findings of fact and whether the board properly resolved to terminate her contracts.
Following the remand, the trial court once again affirmed the board’s decision to terminate Humphries, who then appealed raising a single assignment of error: whether the trial court committed reversible error by failing again to employ due deference to the hearing referee. Humphries specifically alleged that while the trial court recognized its obligation to defer to the referee’s factual findings, it failed to employ the application of the deference.
The court of appeals held that the trial court found that the board accepted the referee’s conclusion that just cause for discipline existed but disagreed with the referee’s opinion that termination was too harsh a punishment. The trial court determined that the board properly considered the significance of the factual findings that good and just case did exist for termination. Humphries’s argument that the trial court failed to utilize the correct legal standard was without merit. The trial court applied the correct legal standard in determining that the board’s decision to terminate her employment contracts was supported by the weight of the evidence. Therefore, the appellate court found that the trial court did not abuse its discretion.
Ohio court upholds contractual time limits for filing and appealing grievances in termination case.
Streetsboro Edn. Assn. v. Streetsboro City School Dist. Bd. of Edn., 2019-Ohio-2170.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2019/2019-Ohio-2170.pdf
As a result of alleged hazing incidents at summer band camps, two district music teachers were investigated and provided pretermination notices. Following hearings, the board of education adopted resolutions initiating proceedings to terminate the teachers’ contracts pursuant to Article 31 of the Collective Bargaining Agreement (CBA) and in accordance with Ohio Revised Code (RC) 3319.16, which governed the procedures for teacher termination.
In the RC 3319.16 proceedings, the teachers demanded a hearing on the termination of their contracts. A referee conducted a hearing and found that while the teachers did not permit hazing, they took actions that were serious enough to constitute just cause for discipline. However, the referee did not recommend the teachers be terminated. The board rejected the referee’s recommendations and terminated the teachers’ contracts. The teachers’ appeal, filed in the common pleas court, is pending.
While the RC 3319.16 matter was progressing, the Streetsboro Education Association (SEA) filed grievances on the teachers’ behalf, alleging the district failed to follow the contractual progressive disciplinary procedure in Article 31 as well as its own procedures for handling parental concerns. The grievances were denied at the informal and first two formal levels. When the SEA filed a Level Three grievance, the district superintendent concluded it was not timely filed.
The SEA advanced the grievance to arbitration. The superintendent informed the SEA that the board would not participate in an arbitration because the grievances were waived for failure to file a timely appeal. The SEA requested a panel of arbitrators, but the arbitration file was closed based upon the board’s refusal to participate.
The SEA filed in the trial court on behalf of the teachers, alleging the board violated the CBA by declining to go forward with binding arbitration of the teachers’ two grievances. The board responded by noting the appeal of the grievances was untimely and, as a result, arbitration was waived. It also argued that the “sole remedy” in termination proceedings is the appeal process set forth in RC 3319.16, which was already ongoing.
The court noted SEA’s contention that previous court decisions failed to apply the presumption of arbitrability of the grievances it filed and therefore failed to construe the CBA’s termination provision under Article 31.
Although the SEA insisted the grievances were, in fact, filed timely, it also argued that the question of timeliness was a matter for the arbitrator to decide.
With respect to the timeliness issue, the court found that, in 2014, the parties engaged in litigation that concluded in an arbitrator rendering a decision that untimely grievances under the CBA are not arbitrable. That arbitrator noted that the CBA is clear that time limits are maximums and must be adhered to. In this case, the time limit for an appeal of a Level Two grievance was set as a maximum of five days, but the SEA did not file its appeal until 13 school days later. Thus, the trial court did not err in drawing a procedural conclusion that the grievances were barred as untimely.
The court then determined that the SEA’s claims that the CBA’s language regarding employee termination was not ambiguous were inapplicable and found that there was a presumption favoring arbitration. The SEA’s other assignments of error were overruled as moot and the common pleas court’s judgment was affirmed.
Ohio court holds RC 3319.16 proceedings do not preclude a claim under 42 U.S.C. 1983 when the prior proceedings never addressed issues relevant to that claim.
Watkins v. Columbus City Schools, S.D.Ohio No. 2:19-cv-394, 2019 U.S. Dist. LEXIS 107964 (June 27, 2019).
https://law.justia.com/cases/federal/district-courts/ohio/ohsdce/2:2019cv00394/221460/12/
Stanley Watkins worked for the Columbus City School District as a special education kindergarten teacher from August to October 2015. During this time, the board of education became concerned Watkins was unable to teach or control his class, maintain professional relationships with his teaching assistants or ensure the safety of his seven kindergarten students with disabilities. On several occasions, Watkins was observed sleeping in class. On Oct. 28, 2015, the board removed Watkins from the classroom setting due to allegations that he restrained a student in an improper manner.
His removal prompted a pre-disciplinary hearing, and the written notice he received detailed six separate allegations of failures in the classroom and/or student interactions. Following the requisite disciplinary hearings, on April 19, 2016, the board notified Watkins that his conduct was wholly contrary to his responsibilities, duties and obligations as a teacher and initiated termination proceedings. Watkins then requested a hearing before a referee, who held that Watkins’ conduct constituted good and just cause for termination. Based on this report, the board terminated Watkins’ employment effective June 20, 2017.
Watkins then petitioned the Franklin County Common Pleas Court to review the board’s decision, alleging 27 errors by the board. The court reviewed the evidence and concluded that Watkins was provided notice and full due process regarding his termination. Watkins appealed to the Tenth District Court of Appeals, which overruled all of his claimed errors because there was no evidence in the record that the common pleas court abused its discretion. He filed an appeal with the Supreme Court of Ohio, which was declined.
Watkins then filed a 42 U.S.C. 1983 lawsuit, and the board filed a motion to dismiss. The board argued that the court must dismiss Watkins’s complaint under Rule 12(b)(6) because his Sec. 1983 claim is barred under the doctrine of res judicata. In the board’s view, the various and multiple hearings and court proceedings had afforded the parties ample opportunity to litigate the issues in this case and those issues had been decided. Therefore, the issue before the district court is what preclusive effect, if any, the conclusions of Watkins’ state administrative proceedings had in this case.
The court reviewed the board’s decision and the subsequent affirming opinions but was not persuaded that the Ohio Revised Code (RC) 3319.16 proceedings precluded Watkins’ Sec. 1983 claim. The court concluded that those prior proceedings had never addressed issues relevant to that claim. The narrow review created by RC 3319.16 does not encompass procedural errors or civil rights violations. The court denied the board’s motion to dismiss.