School Law Summary 2019-4
In this issue: Discrimination — Age And Disability • Discrimination — Gender • Discrimination — Race • Elections • First Amendment — Free Speech • First Amendment — Retaliation • Fourteenth Amendment — Due Process • Individuals With Disabilities • Public Records • Supplemental Contracts • Teacher — Termination • Title IX • Tort Liability — Political Subdivision Immunity • Unemployment Benefits
DISCRIMINATION — AGE AND DISABILITY
District court allows teacher’s claims of discrimination on the basis of age and disability to proceed because she established a factual predicate for her claims.
McGriff v. Beavercreek City School Dist., S.D.Ohio No. 3:18-cv-00372, 2019 U.S. Dist. Lexis 132776 (Aug. 7, 2019).
Bonnie McGriff had been a foreign language teacher in the Beavercreek City School District (district) since July 1996. According to McGriff, she had a 50% hearing impairment that required her to wear hearing aids, fibromyalgia and stress associated with her hearing impairment.
For 21 years, McGriff taught Spanish for the district. For the 2017-18 school year, McGriff was given a job transfer to teach only French. McGriff had difficulty the last time she taught French due to her hearing disability, i.e., a need for “discriminating ears.” She alleged that younger, nondisabled employees had received more favorable teaching assignments and her reassignment to teaching French had negatively impacted her fibromyalgia.
After the reassignment, McGriff filed a formal discrimination complaint against the district with the Ohio Civil Rights Commission (OCRC), which subsequently was dismissed. She then filed a civil action claiming discrimination on the basis of age and disability. The district moved to dismiss the claims, but the district court held that both claims had merit.
Regarding her age discrimination claim, the court found McGriff set forth a “factual predicate” of an adverse employment action. The court stated that the action did not have to be a termination. McGriff’s claim of aggravation of a fibromyalgia condition was unique but could have resulted from an adverse employment action.
The court also noted that McGriff did not need to show an adverse employment action based on her disability for her claim to proceed. McGriff only needed to prove that she put the district on notice of the claims against it.
Appeals court affirms summary judgment in gender discrimination case, as the only other similarly situated comparator was treated less favorably.
Snyder v. Orange Bd. of Edn., 2019-Ohio-3774.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2019/2019-Ohio-3774.pdf
Orange City Board of Education (OCBE) hired Paula Snyder in 2011 as its human resources director. In June 2017, at the end of her second three-year contract, OCBE decided to not renew Snyder’s contract. A formal reason for nonrenewal was not provided. Snyder was replaced by an older female, Judy Robinson. After not being renewed, Snyder requested, and was approved for, a teaching position.
In July 2017, Snyder filed a complaint alleging gender discrimination, age discrimination and violations of public policy. On the gender discrimination claim, Snyder argued that the only administrators that OCBE nonrenewed were women and that she was subjected to disparate treatment because OCBE disapproved of her direct approach to performing her job responsibilities. On the age discrimination claim, Snyder argued that OCBE had demonstrated a pattern and practice of nonrenewing, threatening to nonrenew or attempting to nonrenew the contracts of female employees over 40, naming five other employees.
The trial court issued an order granting OCBE’s motion for summary judgment because Snyder failed to show any direct evidence of discrimination; was replaced by an older female; and did not show direct evidence that OCBE treated similarly situated employees outside the protected class better regarding the terms and conditions of their employment. It also concluded that Snyder’s claims for public policy violations failed because she was not an at-will employee. Snyder’s appeal was a sole assignment of error that the trial court erred in granting the gender discrimination claim.
The appellate court followed the McDonnell Douglas framework for a prima facie gender discrimination case. Snyder failed to meet all of the elements under McDonnell Douglas as she was replaced by a person of the same protected class. Snyder contended she established her case with evidence of disparate treatment to satisfy the fourth element of the gender discrimination claim. In order to meet that element, the court noted that Snyder needed to prove she was treated differently from similarly situated individuals. She could demonstrate that by showing enough common factors between herself and a comparator to allow for a meaningful comparison in order to determine whether discrimination was at play.
The court found only one individual who could be considered a similarly situated comparator and determined that he had been treated less favorably than Snyder. It concluded that Snyder identified no other comparator who was treated more favorably than she was treated. For that reason, the court stated that Snyder did not establish a prima facie case of disparate treatment, meaning that the burden did not shift to OCBE. However, if the burden had shifted to OCBE. to show a legitimate, nondiscriminatory reason for Snyder’s termination, the court found that it could produce such a reason.
Because Snyder did not establish the existence of genuine issues of material fact regarding her disparate treatment claim, the court affirmed the trial court’s judgment.
District court determines reassignment combined with increased workload does equate to adverse employment action in school district employee’s claim.
Irving v. Carr, S.D.Ohio No. 3:18-cv-00372, 2019 U.S. Dist. LEXIS 173325 (Oct. 27, 2019).
https://casetext.com/case/irving-v-carr-1
Jessica Irving started full-time employment as a speech-language pathologist (SLP) with the South-Western City School District in the 2010-11 school year. Irving’s supervisor was the director of special education, a position held first by Gwenn Spence, then Steve Carr and finally Nicole Tyo. For the 2013-14 and 2014-15 school years, Irving was assigned to Darby Woods Elementary School.
After beginning work at Darby Woods, Irving reported to Spence her belief that colleagues were pushing Irving to “overqualify” students for delivery of special education services, which had the potential to increase Medicare payments to the district. Spence did not share these Irving’s concerns with anyone else.
In April 2015, Carr told Irving that he was considering reassigning her because Darby Woods’ principal Debbie Reed believed Irving was not a team player. Irving told Carr that she was treated differently because she was a minority and about her concerns about overqualification. In May, Irving and her union representative met separately with Reed and Carr. During those meetings, Irving expressed her desire to remain at Darby Woods and her feelings that she was being treated differently because of her race.
In June 2015, Irving was assigned to Park Street Intermediate School. After receipt of the letter, Irving filed a complaint alleging racial discrimination with the Ohio Civil Rights Commission (OCRC). Later that summer, Irving was informed she would be transferred to Park and two other schools.
During September and October of the 2015-16 school year, Irving was assigned no fewer than 75 students and sometimes more than 82 students. The Ohio Department of Education (ODE) regulation is a maximum of 80 students assigned to an SLP. No other SLP in the district had above 65 students or had been assigned to these particular schools at the same time. Of the 27 SLPs in the district, Irving had the highest number of students and the highest number receiving intensive services.
In August 2015, Irving complained to Tyo about her caseload. Later, Irving had a meeting with Jennifer Bogenrife, the special education coordinator for the district’s middle and high schools, about her caseload. In September 2015, Irving contacted the Ohio Board of Speech-Language Pathology and Audiology (OBSLPA) regarding her excessive caseload. On Sept. 23, Irving received a letter from OBSLPA and gave the letter to Tyo and Bogenrife. On Sept. 24, Irving received a Letter of Direction from Bogenrife outlining alleged issues with Irving’s performance and the course of action to remedy the issues.
Irving’s doctor concluded the stress of her job was negatively impacting her health, and Irving went on medical leave on Oct. 28. In November, Carl Metzger, the district’s assistant superintendent, asked Amber Hufford, the district’s civil rights officer, to conduct an investigation into whether Irving was properly performing her duties. Hufford determined Irving was not properly performing her duties.
Irving resigned Jan. 20, 2016, stating that the resignation was involuntary. On Jan. 27, Metzger filed a misconduct form with ODE stating Irving had resigned while under investigation and providing a summary of the investigation. Irving subsequently received a letter from ODE stating she was under investigation and her license was in jeopardy.
Irving sued the district and seven district employees (Bogenrife, Carpenter, Carr, Hufford, Metzger, Tyo and Superintendent William Wise) in their individual capacities. She made three claims (claims 1-3) against the seven individuals: First Amendment retaliation; racial discrimination and retaliation pursuant to 42 U.S. Code § 1983 and the Equal Protection Clause; and post-termination First Amendment retaliation. She also made three claims (claims 4-6) against the district: race discrimination, retaliation and post-termination retaliation. Finally, Irving requested punitive damages.
After a lengthy and detailed analysis of the school district’s combined motion for summary judgment and judgment on the pleadings, the court dismissed claims 4, 5 and 6 against the district and claim 3 against the individual defendants. The court allowed claims 1 and 2 (race discrimination and retaliation) to proceed against three of the individual defendants (Bogenrife, Carr and Tyo) with punitive damages to be considered on the retaliation claim only.
The court determined Irving’s transfer, combined with her increased workload, constituted an adverse employment action. Defendants argued the reassignment was due to dysfunction with the Darby Woods special education team. The court found this to be an inadequate answer. Although others were transferred, Irving was the only person of those similarly situated who also received a higher workload. The retaliation claim survived summary judgment because the temporal proximity of one day between Irving’s presentation of the letter from OBSLPA to the district and the district’s Letter of Direction to her created a causal connection.
Ohio court rejects writ to compel board of elections to place candidate’s name on ballot after it incorrectly informed her about the required number of signatures.
State ex. rel. Martin v. Tuscarawas Cty. Bd. of Elections, 2019-Ohio-4236.
https://www.supremecourt.ohio.gov/rod/docs/PDF/5/2019/2019-Ohio-4236.pdf
Sheila Martin filed a complaint for writ of mandamus to compel the Tuscarawas County Board of Elections to place her name on the ballot for the General Election scheduled for Nov. 5, 2019. The issue presented in Martin’s writ was whether the board of elections properly rejected Martin’s nominating petition for the New Philadelphia City School District Board of Education due to an insufficient number of signatures.
In June 2019, Martin visited the board of elections and requested a nominating petition to be on the ballot for a school board seat. The board of elections provided Martin with a packet containing three-part petitions that allowed for a maximum of 60 signatures. The board of elections incorrectly advised Martin that she only needed 25 valid signatures.
Thereafter, Martin returned to the board of elections and requested additional three-part petitions stating she wanted to obtain at least 100 signatures. The board of elections again provided incorrect information and advised Martin that she could not submit more than 75 signatures. Martin obtained only 75 signatures and did not seek more signatures based on the advice she received from the board of elections.
On Aug. 5, 2019, Martin submitted her nominating petition to the board of elections. On Aug. 22, 2019, Martin received a letter from the board of elections rejecting her nominating petition due to an insufficient number of signatures. The board of elections rejected three signatures. Because Martin was actually required to obtain a minimum of 75 signatures and since three of the signatures were invalid, Martin did not have the required number of signatures to have her name placed on the ballot.
The board of elections rejected the first signature because the address listed for the signer was not the same as his registered address. The second signature was rejected because the signer was not a registered voter, and the third signature was rejected because the signer’s name was printed on the petition and not signed.
Martin submitted affidavits from the first and third signers indicating that they voluntarily signed Martin’s nominating petition for Martin to be placed on the ballot. The court found that the board of elections abused its discretion when it found these two signatures to be invalid in light of the affidavits submitted.
However, the court held that the board of elections did not abuse its discretion or clearly disregard applicable law when it rejected the second signature because Martin did not demonstrate that the signer was a qualified elector at the time she signed Martin’s nominating petition.
The court also rejected Martin’s argument that she relied on the incorrect information provided by the board of elections. The court held that case law was clear that “the mistaken advice or opinion of an employee of the board of elections does not estop the board from removing a candidate’s name from the ballot.” For these reasons, the court found that the Tuscarawas County Board of Elections did not abuse its discretion or act in clear disregard of the law when it concluded Martin did not have the required number of signatories on her nominating petition and denied Martin’s writ of mandamus.
Federal court finds that board’s public participation policy is narrowly tailored to promote board’s substantial interests and does not violate First Amendment.
Ison v. Madison Local School Bd., S.D.Ohio No. 1:19cv155, 2019 U.S. Dist. LEXIS 120754 (July 19, 2019).
https://www.leagle.com/decision/infdco20190722a35.
In March 2018, the Madison Local (Butler) School Board began to discuss arming some of its administrators, teachers and support staff. In April 2018, the board considered and voted on a resolution to allow armed staff in a school safety zone. At that meeting and on 34 separate occasions, a family in the district spoke in opposition to the district’s policy.
The board had in place a public participation policy that contained three relevant sections. First, the policy stated the board’s position that anyone having a “legitimate interest” in the actions of the board may participate during the public portion of the meeting. Second, the policy required attendees to register their intent to participate in the public portion of the meeting at least two business days prior to the meeting. Attendees who desired to participate were required to complete a public participation form in person. Finally, the policy allowed the presiding officer to interrupt, warn or terminate a participant’s statement when the statement was too lengthy, personally directed, abusive, off-topic, antagonistic, obscene or irrelevant.
On separate occasions, the board enforced its policy against members of the family who voiced opposition to the district’s resolution to arm staff. The family moved the court for a temporary restraining order and a preliminary injunction barring the board from enforcing its public participation policy on the grounds that the policy violated the First Amendment.
The family argued that the provisions in the board’s public participation policy were not content-neutral regulations. The family argued that the policy barred speech that was critical of the board and prevented particular speech because of the topic to be discussed. The court disagreed and held that the policy did not exclude speech merely because it criticized school officials. The policy, the court held, was not based on the subject matter of the speech but had “everything to do with conducting orderly, productive meetings.” The court also found that the policy was narrowly tailored to serve the board’s interest in prohibiting speech that interfered with conducting board meetings in a productive and efficient manner. The court also found that because the family had the ability to individually contact the board or the district’s superintendent, and had done so on more than 30 occasions, there were ample alternative channels for communication.
As a result, the court rejected the family’s motion for a temporary restraining order and preliminary injunction.
Sixth Circuit finds district did not retaliate against coach under First Amendment by terminating him following his social media posts.
Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir.2019).
https://cases.justia.com/federal/appellate-courts/ca6/18-6329/18-6329-2019-08-27.pdf?ts=1566918015.
Gerald Sensabaugh was hired as the head football coach of a high school in the Washington County School District in Tennessee. On Sept. 22, 2017, Sensabaugh posted on Facebook decrying the conditions of the elementary school. His post included photos of the classroom, and one photo showed the faces of several students. The district reached out to Sensabaugh, expressing concerns that the photo could be violative of both the board’s policy and the Family Educational Rights and Privacy Act and directed Sensabaugh to remove the photos from Facebook. Sensabaugh did not comply.
Two days later, Sensabaugh again posted on Facebook. This post discussed his concerns with prisoners working at the high school. The district again reached out to Sensabaugh. During a telephone conversation with Sensabaugh, school administrators again directed Sensabaugh to remove the photos of students and explained that the district was not demanding that he remove his other posts, which were critical of the district. Sensabaugh refused and yelled at the school administrators before hanging up the phone.
Following the phone conversation, the district drafted a Letter of Guidance, which addressed not only Sensabaugh’s failure to remove the photos from Facebook and his conduct during the phone call but other alleged misconduct, including his use of profane language with students and his requiring a student to practice while injured. The letter again directed Sensabaugh to remove the photos from Facebook but stated, “At no time did we ask you to delete any of your comments or opinions on social media. You have the right to comment on matters of public interest on social media.” After receiving the letter, Sensabaugh removed the photos from Facebook.
The district gave Sensabaugh the letter of guidance on Oct. 6, 2017. Sensabaugh “became agitated and began pacing back and forth. As the meeting progressed, he became belligerent and confrontational,” and accused the district’s athletic director of illegal drug use. Sensabaugh then went to the school cafeteria where he confronted an athletic trainer and an injured student athlete. During that night’s football game, Sensabaugh directed profanity at his players in violation of administrative directives. Sensabaugh also loudly proclaimed that the athletic director had a drug problem, which was heard by those in attendance.
The district issued Sensabaugh a Letter of Reprimand and placed him on paid administrative leave while district officials investigated his conduct. The investigation substantiated that Sensabaugh engaged in misconduct, insubordination and threatening, retaliatory behavior towards his supervisors, district staff and students. The investigation also noted that Sensabaugh refused to remove the photo of the students from his Facebook page in violation of the district’s directives. After giving Sensabaugh the opportunity to respond, which he refused, the district terminated his employment.
Sensabaugh filed a First Amendment retaliation claim against the district. The court concluded that Sensabaugh’s Facebook posts were protected by the First Amendment, except for the photo of the students. The court held that although the decision to terminate Sensabaugh was an adverse employment action, there was no connection between the Facebook posts and Sensabaugh’s termination. The court noted that the district never asked Sensabaugh to remove his social media posts, except for the photo of the student, and the district conducted a thorough investigation into Sensabaugh’s subsequent misconduct. The district relied on the investigation, which showed significant misconduct warranting Sensabaugh’s termination as the basis for its termination decision. As a result, the court affirmed the judgment of the district court in favor of the district.
FOURTEENTH AMENDMENT — DUE PROCESS
Federal court rejects teacher’s right to a “name-clearing hearing” following superintendent’s accusations and refusal to recommend renewal of supplemental contract.
Gallow v. Pittis, S.D.Ohio No. 2:17-cv-1007, 2019 U.S. Dist. LEXIS 150119 (Sept. 4, 2019).
https://www.leagle.com/decision/infdco20190905c51.
Toni Gallow was a teacher who had been employed by the East Guernsey Local (Guernsey) School District Board of Education since 2003. In addition to her teaching responsibilities, Gallow held more than a dozen supplemental positions. With respect to her teaching position, Gallow had the job security that tenure provided. However, with respect to her supplemental positions, she had been required to reapply annually for any positions that she sought.
In summer 2015, East Guernsey Local hired a new superintendent. In June 2016, Gallow submitted letters of interest to the superintendent’s office for seven supplemental positions for the 2016-17 school year. Gallow had been appointed to these seven positions many times before.
On Sept. 9, 2016, the superintendent accused Gallow of falsifying her time sheets and “double billing.” At two subsequent meetings, Gallow provided evidence to the superintendent to refute his allegations. However, the superintendent told Gallow that he would not be recommending renewal of most of her supplemental contracts for the 2016-17 school year, seemingly based on his suspicions of wrongdoing by Gallow. As a result, Gallow received contracts for only three of the seven supplemental positions for which she applied.
Subsequent to these meetings, the superintendent told other district employees about his suspicions that Gallow had been double billing. Rumors began to spread, and Gallow became the subject of significant gossip in the community. Based on this, Gallow requested that she be granted a “name-clearing hearing” in order to prove that the allegations were false. The superintendent denied her requests. Gallow filed a lawsuit against the superintendent, arguing that his refusal to allow her a “name-clearing hearing" deprived her of her liberty interest in her reputation, good name, honor and integrity in violation of the due process clause of the 14th Amendment.
The court found that Gallow did not have a constitutional right to a “name-clearing hearing.” The court concluded that “where a state employee was not terminated incident to the unfavorable statement, there was no violation of the liberty interest protected by the Due Process Clauses.” Gallow was not terminated but rather remained employed by the district. The court also highlighted that Gallow did not have a right under state law to any of the supplemental positions to which she applied. As a result, because Gallow did not plead a violation of a constitutional right, the court granted summary judgment to the superintendent.
District court allows 14th Amendment claims to continue against district; settlement agreement releasing district from IDEA claims showed that parent had exhausted IDEA administrative remedies.
Gregory v. W. Clermont Local School District Bd. of Edn., S.D.Ohio No. 1:18-cv-824, 2019 U.S. Dist. Lexis 166350 (Sept. 27, 2019).
https://casetext.com/case/gregory-v-w-clermont-local-sch-dist-bd-of-educ
G.G. was an elementary school student in West Clermont Local (Clermont) School District. Beginning in October 2016, G.G.’s mother, Holly Gregory, had a number of communications with the district about G.G.’s aggressive and disruptive behavior. During that school year, Gregory requested an evaluation of G.G. to determine whether he was eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA).
In May 2017, a private assessment diagnosed G.G. with attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). In September 2017, Gregory wrote to G.G.’s teacher asking if G.G. qualified for an individualized education program (IEP) with the possible help of an aide. In October 2017, the principal told Gregory that she had been unable to calm G.G. for over an hour and a half and that she had contemplated calling the police and an ambulance. The principal suggested that Gregory take G.G. to the hospital for an evaluation. Gregory reminded the district that she had requested a meeting about G.G. a month previously.
On Oct. 31, 2017, Gregory requested an emergency meeting with the district. On Nov. 1, 2017, the district indefinitely suspended G.G. due to his behavioral issues, stating that he could return to the classroom with documentation from a physician or therapist that he was no threat to himself or others. Gregory filed a due process complaint against the district for violations of IDEA. Subsequently, Gregory and the district settled that complaint, and Gregory entered into a settlement agreement releasing the district from any claims arising under IDEA.
Gregory filed a lawsuit in federal court asserting that the district had violated G.G.’s 14th Amendment rights by denying him an appropriate public school education without due process of law when it withheld his eligibility for an IEP. Gregory also alleged that the district had violated G.G.’s Fourth Amendment rights by unlawfully restraining him in a gym mat and his right to privacy by videotaping him without consent.
The district sought dismissal of all of Gregory’s claims. It argued that her 14th Amendment claim should be dismissed because she released all IDEA claims against the district in her settlement agreement and that her claim was barred for failing to exhaust available remedies under IDEA.
The court concluded that the fact alleged conduct would also constitute a violation of IDEA does preclude a plaintiff from pursuing challenges on constitutional grounds. It also concluded that the plaintiff’s complaint was not barred by the settlement agreement because it was a claim under the 14th Amendment. It concluded that the settlement agreement demonstrated that the plaintiff had sufficiently exhausted her administrative remedies under IDEA before bringing her 14th Amendment claim.
The court declined to dismiss Gregory’s Fourth Amendment seizure complaint, concluding that wrapping G.G. in a gym mat constituted an unlawful seizure. However, it dismissed Gregory’s complaint alleging a violation of the Fourth Amendment for excessive force on the basis that the district’s action in wrapping G.G. one time in a gym mat did not shock the conscience. It also dismissed the Fourth Amendment complaint for violation of G.G.’s right to privacy on the basis of one incident of videotaping G.G. without consent.
Appeals court holds that district records of investigation by its counsel, some of them prepared in anticipation of litigation or trial, are protected by attorney-client privilege or work product doctrine.
M.H. v. Akron City School Dist. Bd. of Edn., N.D.Ohio. No. 5:18-cv-870, 2019 U.S. Dist. LEXIS 156053 (Sept. 12, 2019).
https://www.leagle.com/decision/infdco20190913f47
An individual allegedly impersonated a police officer and gained access to Akron City School (ACS) buildings to operate an unsanctioned “scared-straight” program. When ACS became aware of the allegations, the superintendent directed the district’s chief legal counsel to conduct an investigation. The parent of one student sued the district and requested copies of records related to the investigation. ACS declined to produce the documents, claiming that they were protected from disclosure because of attorney-client privilege or the work product doctrine.
The court reviewed a number of documents to determine whether they were protected from disclosure. The court also considered plaintiffs’ argument that the documents were public records or must be disclosed under the crime-fraud exception to attorney-client privilege.
The court explained that documents are protected by attorney-client privilege when legal advice is sought from a legal adviser and the documents relate to the purpose of the representation made in confidence by the client. These documents are permanently protected from disclosure by the client and the attorney unless the protection was waived.
The court then examined the work product document, which protects some documents from discovery and was established in Federal Rules of Civil Procedure 26(b)(3). Documents prepared by an attorney, or by another party for an attorney and the attorney’s client, are protected provided they were prepared in anticipation of litigation or trial. To determine whether documents are protected by the work product doctrine, the court explained that it must consider whether the document was created because of a party’s subjective anticipation of litigation rather than for an ordinary business purpose and whether that subjective anticipation was objectively reasonable.
The court accepted ACS’s argument that it subjectively believed litigation was probable after the Akron Beacon Journal reported on an armed man impersonating a police officer on school property. However, it rejected the argument that all of the ACS’s documents created after that date and related to the incident were protected under the work product doctrine. The court placed the burden of establishing that privilege applied on ACS, as the party asserting it.
The court concluded that documents prepared by ACS’s legal counsel in connection with her investigation of the incident were created in anticipation of litigation and entitled to work product protection. However, documents on which legal counsel was copied or that were forwarded to her, or fact-finding documents created for other purposes (such as establishing lessons learned), were not work product entitled to protection.
The court rejected the plaintiffs’ argument that some of the documents fit the crime frauds exception to attorney-client privilege. It concluded that there was no evidence to suggest that the documents were created to facilitate or actively conceal a crime or fraud. The court also reject the plaintiffs’ argument that the documents were public records. It found that the documents were trial preparation records which are explicitly exempted from the definition of public record in Ohio Revised Code 149.43.
Court concludes that plain language of the Ohio Student Privacy Act bars the release of an adult former student’s records without consent and with no exception in the event of the person’s death.
State ex. rel CNN, Inc. v. Bellbrook-Sugarcreek Local School Dist., 2019-Ohio-4187.
https://www.supremecourt.ohio.gov/rod/docs/PDF/2/2019/2019-Ohio-4187.pdf
In August 2019, an adult gunman killed nine people and injured 27 others in a shooting in Dayton. Following the incident, a number of media outlets submitted public records requests for the gunman’s educational records, including disciplinary records, to the Bellbrook-Sugarcreek Local (Greene) School District, from which he had graduated,. The district released directory information but declined to release any other records.
The media outlets filed a mandamus action seeking release of the records, and the parties agreed to expedited consideration of the matter. The court noted that the rights and duties that can be enforced in a mandamus action must be legislatively created not judicially created, and that it must deny any mandamus action based on common law or nonstatutory sources of the claimed rights and duties.
The court examined Ohio Revised Code (RC) 149.43, requiring a public agency to release public records upon request unless an exception applies. The records custodian has the burden to establish the applicability of an exception. To obtain the relief it sought, the court said that the media outlets were required to show that they have a clear legal right to obtain the records and that the district has a corresponding clear legal duty to release the records.
The court noted that RC 149.43 provides that records are not “public records” subject to release if a state or federal law prohibits the release of the records. The district argued that the Ohio Student Privacy Act (OSPA) limits access to records concerning students: “No person shall release, or permit access to, personally identifiable information other than directory information concerning any student attending a public school … without the written consent of each such student who is eighteen years of age or older.” The court further noted that there is no exception to this limitation because of the death of an adult former student.
The court concluded that, based on the plain language of RC 149.43, the district is barred from releasing the records requested. It rejected the plaintiffs’ argument, based on common law tort right-to-privacy, that the district was compelled to release the requested records because the former student’s right to privacy expired with his death.
Appeals court concludes that district lacks legal authority to unilaterally deduct salary overpayments from teacher’s salary in ensuing contract year and remands case to trial court.
Walton v. Valley View Local School Dist., 2019-Ohio-4189.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2019/2019-Ohio-4189.pdf
Liberty Walton was an employee of the Valley View Local (Montgomery) School District. She had a supplemental contract to serve as an assistant cross-country coach for the 2016-17 school year and was paid $2,311.06 for her services. This was the correct salary for Walton to receive for the position, based on the district’s salary index.
Walton was hired to serve in the same position for the 2017-18 school year and executed a contract stating that she would be paid $2,801.03. The correct salary for Walton to receive for the position, based on the salary schedule, was $2,334.19. The treasurer’s office made the mistake in the salary listed on Walton’s contract. Walton performed the required services under the contract and was paid the amount listed in the contract.
Walton again was hired to serve in the position for the 2018-19 school year and executed a contract stating that she would be paid $2,369.19. Walton contacted the treasurer’s office asking why her salary was lower than it had been the previous school year. The district treasurer informed her that she had been overpaid in the previous year, and the overpayment amounts would be deducted from payments to be made for the 2018-19 school year.
Walton objected and subsequently filed a complaint in the Miamisburg Municipal Court seeking damages for breach of contract. The district counterclaimed, claiming its right to the overpaid monies. After trial, the municipal court magistrate entered judgment in Walton’s favor for the overpayment amount plus interest and court costs.
The district filed objections, arguing that it was entitled to recoup the overpayments and it acted properly in unilaterally deducting monies from Walton’s pay checks. The district cited case law and Ohio Revised Code (RC) 3313.33(B). The first sentence in RC 3313.33(B) stated that no board member shall have an interest in a public contract. The second sentence stated that no contract shall be binding on the board “unless it is made and authorized at a regular or special meeting of such board.” The trial court overruled the district’s objections and found for Walton. Regarding RC 3313.33(B), the court concluded that the provision to which the district referred did not apply to Walton because she was not a board member and the second sentence referred only to board members.
The district appealed. The appellate court took a three-prong approach in reviewing the lower court decision. It found that the district’s self-help approach in recovering the money was without legal basis under statutory or case law. The court found that the trial court’s interpretation of RC 3313.33(B) was in error, and that a board president cannot bind the board to a contract that has not been approved or ratified by the board, even if the contract did not involve a board member. Finally, because the trial court’s interpretation of RC 3313.33(B) was incorrect, the appellate court determined that judgment on the district’s counterclaim must be reconsidered. It remanded the case to the trial court on the issue of the district’s counterclaim without further comment.
Appeals court upholds teacher/coach’s termination for providing prescription analgesic patches to her student athletes.
Hiss v. Perkins Local School Dist. Bd. of Edn., 2019-Ohio-3703.
https://www.supremecourt.ohio.gov/rod/docs/pdf/6/2019/2019-Ohio-3703.pdf
Tracey Hiss worked for the Perkins Local (Erie) School District as a teacher and coach for various girls sports teams from 1992 to 2015. In May 2013, the district learned that some of the girls track team members had obtained Lidoderm patches (a prescription analgesic) from Hiss. The superintendent held a pre-disciplinary conference with Hiss, discussed the allegations and suspended her with pay until an investigation could be completed. The superintendent also informed Hiss that the information would be turned over to the local police department and the district investigation would be paused until the police were done with their case.
Hiss was later criminally charged and participated in a diversion program, resulting in the common pleas court dismissing the charge against her. In February 2014, the district resumed its investigation, ultimately sending Hiss a notice of intent to recommend termination based on 13 grounds. Hiss objected to this notice because it contained specifications not addressed in the May 2013 meeting. A second pre-disciplinary conference was held to address the new information and charges.
In April 2014, Hiss received a second notice of intent to terminate, which generally relied on the same grounds but did include another, new ground for termination. A hearing was then held before a referee, who also recommended termination. The board adopted the referee’s findings and acted to terminate Hiss on March 11, 2015.
Hiss appealed to the common pleas court, which concluded the board lacked good and just cause to terminate Hiss’s contract and awarded her damages. The district appealed the trial court’s decision.
The court of appeals held that the school board did have good and just cause to terminate Hiss’s contract under RC 3319.16 because giving students access to prescription analgesic patches over a period of three years was a “fairly serious matter” that violated school policy. The court also concluded that the trial court committed error by concluding that Hiss had a due process right to a full and fair investigation, because due process only required notice and an opportunity to be heard. Hiss was afforded all due process to which she was entitled because she had received notice of the charges against her and was given several meaningful opportunities to respond. Hiss was represented by competent counsel, fully participated in the referee proceedings and presented evidence to counter the district’s allegations. For these reasons, the appeals court reversed and vacated the lower court’s ruling in favor of Hiss.
Ohio district court denied subpoena duces tecum to U.S. Department of Justice for documents and materials relating to the criminal investigation of a teacher.
Doe v. Dublin City School Dist. Bd. of Edn., S.D.Ohio No. 2:18-cv-00943, 2019 U.S. Dist. LEXIS 159806 (Sept. 19, 2019).
https://casetext.com/case/doe-v-dublin-city-sch-dist-bd-of-educ.
The plaintiff’s allegations involve a Dublin City School District teacher who engaged in a sexual relationship with plaintiff when she was a high school student at Dublin City Schools. Plaintiff raised claims under the 14th Amendment and Title IX.
Prior to filing the original complaint, the teacher was investigated by the city’s police department, who arrested the teacher on federal child pornography charges. The teacher pled guilty to child pornography charges in federal court and was sentenced to 21 years in prison. The U.S. Department of Justice (DOJ) handled the prosecution of the teacher, which was investigated in part by FBI.
In January 2019, the plaintiff served DOJ with a subpoena for the documents and materials relating to the criminal investigation of the teacher. The plaintiff asserted that she needed the documents and materials to prove that the district had actual knowledge of the propensity of the teacher to engage in sexual misconduct and allowed him to continue in his position for years while preying on minor female students. DOJ made the determination not to release the requested materials. The plaintiff filed a motion to enforce the subpoena duces tecum to DOJ.
The court conducted an in camera review to determine whether the files or the teacher’s presentence investigation report had any evidence or information that tended to prove the district had actual knowledge of the teacher’s propensity to engage sexually with minor female students or failed to take prompt or effective remedial measures. The court concluded that the requested documents and materials did not contain any relevant information and instead focused exclusively on the teacher’s conduct. It did not show when or what the district knew of the teacher’s propensities, nor did it mention the district’s response once it became aware of the teacher’s conduct. As a result, the court denied the plaintiff’s motion to enforce the subpoena duces tecum.
TORT LIABILITY — POLITICAL SUBDIVISION IMMUNITY
Appeals court denies immunity for school district employees in a case involving an injury to a student because they showed “conscious disregard of or indifference to a known or obvious risk of harm.”
A.J.R. v. Bd. of Edn. of Toledo Pub. School Dist., 2019-Ohio-3402.
https://www.supremecourt.ohio.gov/rod/docs/PDF/6/2019/2019-Ohio-3402.pdf
A.R. was enrolled by her parents in Toledo City Schools (TCS) kindergarten at the age of four. A.R. attended classes at DeVeaux Elementary School during the 2015-16 school year. Although she was four when enrolled, A.R. was five for the majority of the school year.
During her kindergarten year, A.R. was allegedly teased by other children, in particular S., for being younger than the other students. A.R.’s parents informed TCS, specifically Amanda Lute, A.R.’s teacher; Cynthia Skaff, DeVeaux’s assistant principal; and Ralph Schade, DeVeaux’s principal, of the teasing. They also reported bullying, such as other students attempting to get A.R. to drink applesauce and other food items mixed with milk.
Schade spoke to the students about the teasing, and it stopped. He also visited the classroom frequently and spoke to A.R., who said she was doing well. Between November and March, Lute was unaware of any teasing or bullying. Skaff periodically visited A.R. to check on her and ensure she was doing well.
A.R.’s parents allege that, on March 3, S. poked A.R. in the cheek with a pencil, causing a puncture wound. They reported the incident to the school on March 7, at which time they withdrew A.R. from the school. Previous to this incident, S. had no discipline in her file and no history of physically harming staff or students.
A.R.’s parents sued TCS and three individual employees, Lute, Skaff and Schade, claiming reckless negligence; neglect of a child of tender years; endangering a child of tender years; vicarious liability; and promissory estoppel. They claim that the district and employees failed to provide reasonable supervision, care, protection or support in accordance with the standards of appropriate care.
Defendants filed a motion for judgment on the pleadings based on immunity under RC Chapter 2744 and the inapplicability of promissory estoppel. On Oct. 3, 2016, the Lucas County Common Pleas Court dismissed all counts against TCS and dismissed all counts against the three individual employees except for the claim of "recklessness or reckless negligence."
Written discovery and depositions took place on the remaining count. In March, the plaintiffs filed an amended complaint alleging a single count of recklessness or reckless negligence and adding A.R.’s parents as parties, alleging loss of consortium. TCS filed a motion for summary judgment on May 16, 2017. The trial court found in favor of the three individual employees on Dec. 11, 2017 and dismissed the remaining claims.
Plaintiffs appealed to the Sixth District Court of Appeals. Due to a conflict with plaintiff A.J.R. (at the time, he was a law clerk for a Sixth District Court of Appeals judge), the claims were heard by visiting judges from the Ninth District Court of Appeals. On Aug. 23, 2019, the court of appeals concluded that the trial court had erred in granting summary judgment, based on immunity, to the TCS employees on the recklessness claims.
RC 2744.03 provides immunity to officials and employees of political subdivisions. There are three exceptions to this grant of immunity: (1) acts or omissions outside the scope of employment; (2) acts or omissions made with malicious purpose, in bad faith or in wanton or reckless manner; and (3) when liability is expressly imposed by the revised code.
The district court denied immunity for the three TCS employees on the matter of recklessness or reckless negligence. The court stated that a reasonable trier of fact could conclude that the employee “engaged in conduct characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another than [was] unreasonable under the circumstances” and greater than negligent conduct. As a result, the appeals court stated that the trial court erred in granting summary judgment for the employees based on immunity.
The law allows an immediate appeal of a denial of immunity. TCS and its employees filed a memorandum in support of jurisdiction with the Supreme Court of Ohio in early October. The OSBA Legal Assistance Fund, along with the Buckeye Association of School Administrators, Ohio Association of School Business Officials, and Toledo Association of Administrative Personnel, filed an amicus curia brief in support. On Nov. 22, the Supreme Court of Ohio accepted jurisdiction.
TORT LIABILITY — POLITICAL SUBDIVISION IMMUNITY
Denial of political subdivision immunity in summary judgment allows for appeal and results in reversal in favor of school district.
McCullough v. Youngstown City School Dist., 2019-Ohio-3965.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2019/2019-Ohio-3965.pdf
Faith McCullough and her brother attended school in the Youngstown City School District. They received approval from their parents to walk to and from school, as they lived nearby. Once their mother stopped accompanying them, Faith and her brother began taking a shortcut. They walked across the football field and down a grass-covered and terraced hill. At the bottom of the hill was the sidewalk and a strip of grass prior to reaching the curb. On Nov. 11, 2014, the two rolled down the hill for the first time, instead of walking.
On Nov. 12, 2014, Faith and her brother decided to roll down the hill again. Faith’s brother went first and collected all of their belongings that they threw to the bottom of the hill and awaited his sister. At the bottom of the hill, a district employee was driving a bus that was stopped in traffic. The bus driver saw the student roll down the hill. Although traffic began moving, the driver remained stopped because she was concerned the student could roll into the street. The driver saw the student stand with her brother’s assistance, whereupon the driver released the brake and proceeded down the hill. Unfortunately, Faith stumbled toward the road as the bus passed, fell under the rear wheels, suffered a head injury and died at the scene. Faith’s father arrived at the scene prior to Faith’s passing.
Faith’s father filed wrongful death and survival claims, both individually and as administrator of her estate, against the Youngstown City School District. The claims included a hillside being a physical defect on school grounds, negligent operation of a motor vehicle and negligent infliction of emotional distress. After discovery, the school district filed a motion for summary judgment, and the trial court denied the motion. Although the denial of summary judgment is not typically a final appealable order, Ohio Revised Code 2744.02(C) allows for an exception when the order denies political subdivision immunity.
The Seventh Appellate District used the statutorily designed three-tiered analysis for political subdivision immunity. The three tiers are the general grant of immunity, the exceptions that would strip immunity and the defenses contained in statutes that establish nonliability.
The district argued that the hillside was not a physical defect and that the driver was not negligent in her operation of the school bus. The court analyzed the physical defect exception and the negligent operation of a vehicle in conjunction with the political subdivision immunity.
The district correctly argued the hillside was not a physical defect on school grounds because not having a fence in the flat portion of the property did not render it defective if a student ran out in the street, as not having a fence at the bottom of the hill did not render it defective. The court determined the hill did not become defective because a person decided to roll down it and reversed the lower court’s decision.
The court also concluded that the driver was not negligent. The court cited the general rule that “only after it has been found that the vehicle is not proceeding in a lawful manner, by violating a law or ordinance, does the consideration of the driver’s common-law duty to use ordinary care come into play.” The “noticed peril” exception was discussed, and the court determined the driver did notice the peril, waited for the peril to cease and proceeded as the peril was over. The court concluded the negligent infliction of emotional distress claim failed because it was predicated on the success of the other two allegations.
Appeals court finds that teacher who voluntarily quits job to avoid termination proceedings is not entitled to unemployment benefits.
Meinerding v. Coldwater Exempted Village School Dist. Bd. of Edn., 2019-Ohio-3611
http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2019/2019-Ohio-3611.pdf
Jill Meinerding was employed by the Coldwater EV School District as a physical education teacher for the middle and high school. In February 2018, she was placed on paid administrative leave following an incident in her classroom. She was alleged to have been neglectful in her duties when two of her students got into a fight. One student struck the other in a hallway, and Meinerding was charged with insubordination for not reporting the incident properly. Ultimately, the district informed Meinerding she was to be terminated, at which point she and the district reached an agreement whereby she was allowed to resign. Meinerding subsequently applied for unemployment benefits.
The Ohio Department of Job and Family Services Unemployment Compensation Benefits (ODJSF) disallowed her application on the grounds of a disqualifying separation from employment, i.e. quitting without just cause. Following several administrative appeals of the disallowance, her case was heard by a hearing officer, who determined that, while the district had made Meinerding aware that it intended to remover her from her teaching position, the act was not imminent and was subject to appeals. Her subsequent decision to resign was a voluntary act without just cause.
Meinerding appealed to the Mercer County Court of Common Pleas on the grounds that she did have just cause to resign from her teaching position. The court found the manifest weight of the evidence established that although there would have been just cause for the termination by the board of education, the fact that she knowingly, willingly and voluntarily negotiated a resignation was done without just cause. Meinerding appealed the trial court’s decision.
The appeals court noted that the standard of review was limited to determining whether the hearing officer’s decision was supported by the weight of the evidence. The court found the earlier decision was supported by the weight of the evidence, testimony and relevant legal authority. The court noted that while there was some evidence in the record to support Meinerding’s position that she quit with just cause, the weight of the evidence to the contrary did not compel the appellate court to believe the trial court “lost its way and created such a manifest miscarriage of justice” that its decision must be reversed. For that reason, the court affirmed the trial court’s judgment that Meinerding was not entitled to unemployment benefits.