School Law Summary 2017-4
In this issue: ADEA • Americans With Disabilities Act • Arbitration – Appeals • Attorneys’ Fees • Collective bargaining • Criminal Law • Criminal Records Check • Employee Non-Renewal – Disability Discrimination • Facilities – OSFC Liability • Fair Share Fees – Class Action Certification • Fair Share Fees – Constitutionality • Fourteenth Amendment • Individuals With Disabilities Act • Individuals With Disabilities Act – FAPE • Pupil Activity Permit Denial • Sexual Harassment • Student Suspension And Expulsion • Teacher Termination • Transgender Students
United States District Court denies board’s motion to dismiss former employee’s ADEA claim based on employee’s allegations of direct and circumstantial evidence of age discrimination.
Blohm v. Wilmington City Schools, S.D.Ohio No. 1:16cv591, 2017 U.S. Dist. LEXIS 114644 (July 24, 2017).
https://www.gpo.gov/fdsys/pkg/USCOURTS-ohsd-1_16-cv-00591/pdf/USCOURTS-ohsd-1_16-cv-00591-0.pdf
Edward F. Blohm was employed by the Wilmington City Schools Board of Education as an athletic director and human resources director under a three-year contract beginning on July 1, 2012 and ending on June 30, 2015. On Jan. 6, 2015, Blohm was told by the school district superintendent, Ron Sexton, that the board did not intend to renew Blohm’s contract when it expired at the end of June 2015. On Jan. 9, 2015, as he was leaving his office, Blohm alleged that he overheard a person whom he believes was board of education member, Bill Liermann, saying that non-renewing Blohm’s contract would give the board “a chance to get some younger blood” in the role.
Blohm alleged that beginning in February 2015, Sexton began pressuring him to tell Sexton when Blohm planned to retire. Blohm also alleged that board of education member, Kevin Snarr, told him that the board would agree to renew his contract for two years at the board’s March 2015 meeting if Blohm submitted a resignation/retirement notice effective Dec. 31, 2016. Blohm submitted a resignation/retirement notice on Mar. 18, 2016. Blohm later claimed that he did not wish to retire on Dec. 31, 2016, and only submitted the notice because the board made renewal of his contract contingent upon him doing so.
Blohm also claimed that he was not evaluated in the 2012-13 school year, and only was provided a preliminary review and not a final review in the final year of his contract. Among his other allegations, Blohm maintained that pursuant to Ohio Revised Code (RC) 3319.02(D), he was entitled to an annual evaluation by Sexton or his designee in each year of his contract, as well as a preliminary and final review in the final year of his contract. He argues that the board’s failure to perform these evaluations entitled him to automatic re-employment for two years following the June 30, 2015, expiration of his contract.
Blohm filed suit against the board of education and Sexton claiming age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and RC 4112, and “lack of consideration” for a contract based upon RC 3319.02(D). The board and Sexton filed motion for dismissal arguing that Blohm failed to state a claim.
In considering Blohm’s ADEA claims, the court noted that ADEA prohibits an employer from discharging an individual because of his or her age. In such cases, the plaintiff must provide by a preponderance of the evidence (either direct or circumstantial) that age was the but-for cause of the challenged employer decision. The court found that Blohm’s allegation of overhearing Lierman saying that not renewing him would give the board “a chance to get some younger blood” in his role could be direct evidence of age discrimination.
In its analysis of circumstantial evidence of age discrimination, the court noted that a plaintiff must first establish a prima facie case of discrimination by showing: (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination. Here, the court found that Blohm sufficiently pled a claim for relief that is plausible on its face by alleging that he was entitled to a two-year employment contract by operation of law, but only was given 19 months of employment. The court noted that the decision to make Blohm’s contract renewal contingent upon his resignation/retirement constituted a significant change in employment status, thus creating an adverse employment action.
In its analysis of Blohm’s RC 3319.02 claim, the court noted that while the Board moved to dismiss the claim relying on the portion of the statute that allows the superintendent to recommend a one-year contract, Blohm’s allegations suggested that a one-year contract was not offered. Rather, only the option of conditional two-year renewal was discussed. For these reasons, the court denied the board’s motion to dismiss.
AMERICANS WITH DISABILITIES ACT
Second circuit upholds summary judgment for board that refused teacher’s accommodation request to be transferred.
Wenc v. New London Bd. of Edn., 2d Cir. No. 16-3171-cv, 2017 U.S. App. LEXIS 15801 (Aug. 21, 2017).
http://caselaw.findlaw.com/us-2nd-circuit/1871448.html
Jon Wenc is an amputee who uses a leg prosthesis for mobility. In 2003, Wenc began working as a fifth-grade teacher at an elementary school in Connecticut. During his teaching career, the board transferred Wenc to teach first grade. While teaching first grade, Wenc made several requests to be transferred to teach sixth grade, because he found working in a first-grade classroom more physically demanding. The district did not grant Wenc’s request.
In December 2011, Wenc sought a medical leave of absence through November 2012. During this time, Wenc provided a number of notes from his physician, which explained his condition and reaffirmed the recommendation that Wenc take leave from work. In notes from April 2012, his physician advised the board that Wenc “needed to be transferred to teaching a higher grade-level” because it would require less physical movement. In November 2012, when Wenc returned to work, he was provided an accommodation of two classroom aides to teach first grade. Wenc filed a lawsuit, claiming that the board discriminated against him on the basis of his disability by refusing to provide him with a reasonable accommodation. The board moved for summary judgment, which was granted by the district court. Wenc appealed.
On appeal, the court of appeals for the second circuit found that the district court properly granted summary judgment to the board of education. The court found that the board’s allowance of medical leave and provision of two classroom aides on the teacher’s return to his first-grade assignment reasonably accommodated his disability. The court found that the ADA does not “require the employer to provide every accommodation the disabled employee may request” so long as the accommodation provided is reasonable.
Wenc also argued that the board “forced” him to take unpaid FMLA leave in retaliation for requesting a transfer to the sixth grade. The district court granted the board summary judgment on Wenc’s retaliation claim, finding that Wenc’s unpaid medical leave was not an adverse employment action, and that the evidence did not admit a causal inference that he was “forced” to take such leave. The court of appeals agreed, finding that the evidence showed that when Wenc exhausted his paid sick leave, the board advised him that if he was still unable to return to work, he could apply for unpaid leave under FMLA. Wenc chose to apply for such leave and the board approved it. Accordingly, the court affirmed the district court’s grant of summary judgment on all claims.
Appellate court overturns an arbitrator’s decision finding he exceeded the scope of his authority.
Adams Cty./Ohio Valley Local School v. OAPSE/AFSCME, Local 572, 2017-Ohio-6929.
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2017/2017-Ohio-6929.pdf
In the 2014-15 school year, the Adams County/Ohio Valley Local School District decided to subcontract the work of salting and plowing the district’s parking lots to an outside contractor. Because this work was normally performed by the school’s custodians, who were covered under the district’s collective bargaining agreement (CBA), the union filed a grievance with the board in January 2015. The union charged that the district violated the CBA by contracting out work that was normally done by union-member employees. Under the CBA, both parties agreed to arbitration, which began in June 2015. In October that year, the arbitrator sided with the union, stating that the board violated the CBA by hiring an outside contractor to perform winter maintenance on district property.
In January 2016, the board moved to vacate the arbitrator’s decision, claiming that the arbitrator exceeded his legal authority by ignoring precedent in a prior arbitration decision, relying excessively on inference, and imposing requirements in the CBA that did not explicitly exist within its language. In response, the union applied to confirm the award. On Oct. 11, 2016, the Adams County Court of Common Pleas granted the board’s request to vacate the award of the arbitrator. In performing its own analysis of the issues in the case, the trial court found that it had not been established by evidence that the board violated the relevant clause of the CBA, because the use of outside contractors did not fall within the scope of that section.
The union appealed the decision to the Court of Appeals of Ohio for the Fourth Appellate District. On July 13, 2017, the court of appeals overturned the decision of the trial court, arguing that the lower court ruled improperly and overstepped the bounds of its authority. The court reasoned that a judicial review of a motion to vacate an arbitrator’s decision is limited to a strict analysis of whether the arbitrator acted improperly or exceeded his legal powers. Because the trial court performed an independent analysis of the merits of the case presented in arbitration, it essentially repeated the arbitration process, and therefore ruled improperly. The court remanded the case to the trial court, so that it could reconsider the matter strictly under the statute regarding vacating arbitration awards.
United States District Court finds parents were not entitled to attorneys’ fees where no judicially sanctioned relief was received.
G.B. v. Easton Area School Dist., E.D.Pa No. 17-551, 2017 U.S. Dist. LEXIS 138305 (Aug. 29, 2017).
http://www.paed.uscourts.gov/documents/opinions/17D0610P.pdf
In July 2016, G.B. and his parents (G.B.) filed a special education due process complaint pursuant to IDEA, the Rehabilitation Act and the Family Educational Rights and Privacy Act (FERPA) before the Pennsylvania Office of Dispute Resolution (ODR). The complaint sought the release of educational records concerning G.B. previously withheld by the district. The records related to a September 2015 alleged assault by a substitute paraprofessional who had provided G.B. one-to-one support during his assigned paraprofessional’s lunch hour.
The records included a variety of documents including witness interviews, an investigation report, staff and student statements, and email correspondence about the incident. G.B. argued these records were needed to be able to make a fully informed educational decision. The district filed a motion to dismiss arguing that the parents were precluded from requesting a special education due process hearing to obtain records and also that the parents were not entitled to the records.
The hearing officer denied the district’s motion to dismiss, but granted the district’s motion as to one set of documents, which included items such as the substitute paraprofessional’s personnel file, because the hearing officer deemed those documents to not constitute educational records to which G.B. was entitled. The hearing officer did, however, order the district to either release the redacted version of the second set of records, which included items such as investigation materials, reports and email correspondence, or to provide a list of the withheld records. The hearing officer did not hold that any of the records were educational records.
In an effort to compromise, the district did release some of the previously withheld records. After this release, the parties mutually agreed that a due process hearing was no longer necessary. On Feb. 6, 2017, G.B. filed this action seeking attorneys’ fees as a prevailing party under IDEA. The district argued that G.B. and his parents were not prevailing parties and counterclaimed that the hearing officer’s ruling that the records in question might be educational records was legally incorrect. Both parties filed briefs in opposition to each other’s motions.
This case hinges on the dispute over whether G.B. became a prevailing party once the hearing officer denied the district’s motion to dismiss and the district voluntarily provided the records, in turn, entitling G.B. to attorneys’ fees. Here, the court noted that two questions must be answered to determine whether there is a prevailing party: (1) whether there is a material alteration of the legal relationship of the parties; and (2) whether that material alteration is judicially sanctioned.
The district argued that the parties were in the same position after the release of documents than they were before, emphasizing the fact that the district produced the documents voluntarily, and therefore G.B. did not obtain any ordered relief. G.B. argued that because the requested records were received, there was a material alteration of the parties’ legal relationship. G.B. also argued that the district was judicially sanctioned to turn over the requested records as evidenced by the fact that the district did not do so until after the hearing officer entered his/her order on the district’s motion to dismiss.
As to the first consideration, the court noted that even a nominal award meets the test, and that here, because G.B. received some of the requested documents, there was a material alteration so the first factor was met. As to the second consideration, the court noted that there was no judicially enforceable order mandating the district to fulfill its promise of voluntarily producing documents. The hearing officer did not order the district to produce any documents and it did not hold that any document constituted an educational record, therefore, the second factor was not met.
As a result, the court found G.B. was not entitled to attorneys’ fees associated with this due process hearing. The court went on to note, though, that G.B. may ultimately prevail in a separate due process hearing filed after the district voluntarily produced documents, so G.B. ultimately may be entitled to attorneys’ fees in that case.
Sixth Circuit finds collective bargaining agreement (CBA) language to be retaliatory because it requires arbitration proceedings to be held in abeyance until the resolution of other agency complaints.
Watford v. Jefferson Cty. Pub. Schools, 870 F.3d 448 (6th Cir.2017)
https://cases.justia.com/federal/appellate-courts/ca6/16-6183/16-6183-2017-09-01.pdf?ts=1504285382
Joyce Watford was a teacher in the Jefferson County Public School District in Kentucky for 11 years before she was terminated on Oct. 13, 2010. As rationale for her termination, the superintendent charged that Watford engaged in “insubordination and conduct unbecoming a teacher.” Watford disagreed with this assessment and filed a grievance under the district’s CBA, alleging that her termination was the result of discrimination on the basis of race, sex and age.
The CBA specified that the grievance process proceeded from the building administrator to the superintendent, followed by arbitration. This process was to proceed “as rapidly as possible,” and the CBA limited the amount of time each stage could last. Under this procedure, Watford and the board agreed for arbitration to begin in July 2011. However, Watford also filed a charge with the Equal Employment Opportunity Commission (EEOC) on Feb. 24, 2011. The agreement stipulated that arbitration proceedings would be held in abeyance until all complaints with other agencies were resolved. This caused Watford to file another EEOC complaint, alleging that the district was retaliating against her for filing an EEOC discrimination charge.
EEOC determined the district had retaliated against Watford for filing her initial claim, but dismissed the initial claim, stating that the investigation of Watford’s discrimination was inconclusive. Once all active EEOC complaints were resolved, arbitration began in late April 2013. The process again was held in abeyance when Watford filed a complaint in the District Court for the Western District of Kentucky.
In her new complaint, Watford alleged age and race discrimination, and argued that both her initial termination and the district’s practice of holding the grievance proceedings in abeyance were retaliatory. Watford then filed a new EEOC retaliation claim, alleging the district retaliated against her by holding the arbitration in abeyance because she filed the district court complaint. On Feb. 17, 2016, the district court awarded summary judgment to the district. Watford appealed to the Sixth Circuit Court of Appeals.
The court of appeals reversed the district court’s opinion, holding that the CBA provisions that provided for grievance proceedings to be held in abeyance for the duration of investigations by other agencies discouraged employees from filing discrimination grievances against the district. The court argued that this essentially amounted to retaliation for filing a charge with an agency such as the EEOC. The court found the lower court’s decision inconsistent with prior holdings that “an adverse action against [an] employee because the employee had pursued the statutorily protected activity of filing a charge with the EEOC” is “clearly” retaliation. As a result, the court found the CBA to be retaliatory on its face and reversed the district court’s decision.
Court of appeals concludes that requirement that teacher register as a sex offender for life is not cruel and unusual punishment and is rationally related to its purpose of preventing teachers from using their undue influence over students.
State v. Fisher, 4th Dist. Ross No. 16CA3553, 2017-Ohio-7260.
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2017/2017-Ohio-7260.pdf
Appellant, Samantha Fisher, was a high school teacher who engaged in a sexual relationship with a 16-year-old student aide. She was charged with two counts of sexual battery in November 2015. In a hearing in April 2016, she pled guilty to both counts, which carried with them a Tier III sex offender classification and requirement to register as a sex offender for life and have community notification. In May 2016, she acquired a new attorney. Shortly thereafter, Fisher filed a motion to withdraw her guilty pleas, arguing that her prior counsel had misinformed her about the registration and notification requirements of her pleas.
On May 23, 2016, the trial court denied Fisher’s motion to withdraw her pleas, concluding that it had properly notified her, at the hearing, of the lifetime requirement. The court applied the Tier III sex offender classification and sentenced Fisher.
Fisher appealed, arguing that: (1) her Tier III sex offender classification constituted cruel and unusual punishment; (2) the Tier III sex offender requirements violated the separation of powers doctrine; and (3) there was not a sufficient nexus between the application of the classification and the government’s interest.
In response to her first argument, the court considered whether society’s standards determine that there is a national consensus against the sentencing practice and whether, in its judgment, the punishment violates the Constitution. The court concluded that a national consensus favors sex offender registries and community notification. Regarding the constitutional challenge, the court followed the three-step analysis set forth by the U.S. Supreme Court in Graham v. Florida, considering: (1) the culpability of the offender in light of the crime and characteristics; (2) the severity of the punishment; and (3) the penological justification.
The court concluded that the punishment, as applied to Fisher, was not unconstitutional. First, Fisher was criminally culpable because she was a teacher and six years older than the victim, a student whose parent had recently died when she initiated text contact with the student and invited him to her home where the sexual contact occurred. It also concluded that the registration and community notification requirements were not unjustly severe, and that the penological grounds for registration and notification were accepted and justified based on the perceived high recidivism rate among sex offenders.
The court overruled Fisher’s second assignment of error and concluded that the court’s judgment in determining a defendant’s guilt is not abrogated by the classification system outlined in state statutes. Finally, regarding her third assignment of error, the court concluded that there was a rational basis [protecting students from the harm caused by sexual activity with a teacher when the adult takes unconscionable advantage of the student] for the application of the statute under which Fisher was convicted and that application of the Tier III classification is related to this intended purpose.
Supreme Court of Ohio affirms termination of county employment for individual who failed to disclose a sealed criminal conviction on his employment application and subsequent registration applications.
Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, 2017-Ohio-6953.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-6953.pdf
In 1995, Michael Gyugo was hired by the Franklin County Board of Developmental Disabilities (board) as a training specialist. Prior to his employment, Gyugo had been convicted of an unidentified criminal offense. In 1992, a common pleas court in Ohio sealed Gyugo’s record of the conviction. The sealing order stated that the proceedings were deemed not to have occurred, that the conviction was expunged, and that the records pertaining to the conviction would be confined to the specific uses described in Ohio Revised Code (RC) 2953.32 and 2953.35.
When Gyugo applied for the job with the board, he did not reveal the sealed criminal conviction on his application. The conviction also was not revealed by the background investigation conducted before Gyugo was hired by the board.
During the course of his employment with the board, from 1995 through 2013, Gyugo was required to maintain registration with the Ohio Department of Developmental Disabilities (department) as an adult services worker. Gyugo applied for or renewed his registration with the department in 1996, 2000, 2004 and 2008. Although all of those applications asked for disclosure of any conviction of a felony or misdemeanor, even if the record of the conviction had been sealed or expunged, Gyugo did not disclose his conviction.
In 2013, when the board conducted a background check on all of its employees, it learned of Gyugo’s conviction. It terminated Gyugo for dishonesty for failing to disclose the conviction on his application and on his four registration renewals. Gyugo appealed the termination decision to the Franklin County Court of Common Pleas, which affirmed it. The Tenth District Court of Appeals also affirmed the termination.
The Supreme Court of Ohio upheld the termination because Gyugo’s failure to disclose the conviction on his adult-services registration applications despite an express requirement to do so supported the board’s termination decision. In a footnote, the court mentioned RC 9.73(B), which was amended to prohibit public employers from including any question about an applicant’s criminal history on applications. However, the Court noted that the prohibition in RC 9.73(B) did not apply to applications for licenses or registrations.
EMPLOYEE NON-RENEWAL – DISABILITY DISCRIMINATION
An employee’s claim of having, or being regarded as having, a disability is insufficient to overcome a non-renewal for poor performance.
McCullough v. Bd. of Edn., N.D.Ohio No. 5:16-cv-527, 2017 U.S. Dist. LEXIS 121650 (Aug. 2, 2017).
Plaintiff McCullough was employed as an elementary school intervention specialist for Canton City Schools under three successive, one-year limited contracts. While rated overall as proficient, she had several unsatisfactory ratings in various subsections. She also was placed on various assistance programs to improve her performance. However, during her employment, McCullough was diagnosed with fibromyalgia and she provided a note from her doctor to that effect. Subsequently, she was reprimanded for being tardy and using her cell phone while on duty. McCullough also had several instances of being ill at work and taking leaves of absence.
Ultimately, the district non-renewed McCullough for poor performance. She filed suit against the district on the grounds that she had a disability, or was regarded as having a disability and that the non-renewal was discrimination under the Americans with Disabilities Act (ADA). In reviewing the case, the court noted that while the doctor’s letter McCullough provided the district stated that she had severe debilitating fibromyalgia, it did not state when she developed the various levels of symptoms nor did it state that any of her major life activities were limited as a result of the disease. Furthermore, in her own testimony, McCullough stated that she does not consider herself to be disabled at all. The incidents when she became ill at work could not be found to show the employer regarded her as having a disability, since in both situations the district assisted her, allowed her to go home and even checked on her safety. The court found this to be common courtesy, not a basis for a “regarded as” claim. The court then concluded that, based on her performance evaluations, the district did in fact have a legitimate, nondiscriminatory reason for the adverse employment action in non-renewing McCullough’s employment contract.
Court grants summary judgment to the Ohio School Facilities Commission (OSFC) against claims by school district that it owed a “state share” of roof repair costs due to defects in building construction.
State ex rel. Midview Local School Dist. Bd. of Edn. v. Ohio School Facilities Comm., 9th Dist. Lorain No. 16CA010991, 2017-Ohio-6928.
The Midview Local School District sought to enjoin OSFC through a writ of mandamus to help pay for roof repairs to three of its elementary school buildings. They were constructed as part of OSFC’s Expedited Local Partnership Program and the roofs proved to be defective. At the trial court level, Midview’s claims were dismissed because the trial court found it lacked jurisdiction to rule on a mandamus (or declaratory judgment) action. On appeal, OSFC was awarded summary judgment. Midview argued, but did not substantiate, that OSFC had a duty to provide the state’s share of funds for the defects and Midview had a right to the same. However, because Midview did not substantiate that assertion, the court refused to grant mandamus and instead granted OSFC summary judgment.
FAIR SHARE FEES – CLASS ACTION CERTIFICATION
District Court certifies class action on fair share fee challenge.
Beckhart v. Jefferson Cty. Pub. Schools Bd. of Edn., W.D.Ky. No. 3:15-CV-00751-GNS-CHL, 2017 U.S. Dist. LEXIS 150704 (Sept. 18, 2017).
Fair share fee payers of the Jefferson County Public Schools challenged the constitutionality of contractual provision on the grounds that they violated the First and Fourteenth Amendments to the U.S. Constitution. The plaintiffs were all non-members of AFSCME Local 4011 and the school district automatically deducted fair share fees from the employees’ pay, in an amount determined by the union. The plaintiffs subsequently moved to certify a class of plaintiffs and for appointment of class counsel, to which the union objected. The counsel the plaintiffs chose was employed by the National Right to Work Legal Defense Fund (NRWLDF).
The district court carefully reviewed the Rule 23(a) requirements in order to certify the class action. The requirements were numerosity, commonality, typicality, adequacy of representation, and that the plaintiffs demonstrated that the class fit under one of the three Rule 23(b) subdivisions. In this case, the court found all four requirements successfully met, and that the class met more than one subdivision, even though the union objected most strenuously to having the NRWLDF representing the plaintiffs. The court granted the motion for class certification and appointment of class counsel to include the NRWLDF as co-counsel.
FAIR SHARE FEES – CONSTITUTIONALITY
U.S. Supreme Court agrees to hear case challenging constitutionality of “fair share” fees.
Janus v. AFCSME, Council 31, ___U.S.___, 198 L.Ed.2d 780 (2017).
https://www.leagle.com/decision/infco20170321120#
Mark Janus, an Illinois state child protective services worker, challenged the Illinois state labor relations act, which allows unions to be certified as an exclusive representative for employees of a bargaining unit for the purpose of collective bargaining. As the exclusive representative, the union has to represent all employees of the bargaining unit, regardless of their membership status. Employees who do not choose to join the union are compelled to pay an “agency fee” to the union as a condition of their employment. Ostensibly, an agency fee is the employee’s proportionate share of the costs of the collective bargaining process, contract administration and pursuit of matters affecting wages, hours and conditions of employment.
In February 2015, the newly elected Illinois governor began bargaining with AFSCME over a new state agreement, with little success, reaching impasse in early 2016. The governor also directed the state to stop taking union fees from state workers who were not union members and initiated a lawsuit seeking to have the Illinois public-sector agency fee law declared unconstitutional. The state’s Attorney General, along with Janus and two other state employees subsequently intervened, and ultimately, Janus and the two other state employees became the sole plaintiffs in the case. Janus alleged that being forced to pay (agency) fees as a condition of public employment violated his First Amendment rights. At the District Court level, Janus’ motion was dismissed solely on the grounds that Abood v. Detroit Bd. of Edn., 431 U.S. 209 (1977) controlled the issue. Similarly, on appeal, the U.S. Court of Appeals for the Seventh Circuit dismissed Janus’ claim based on Abood. Janus then petitioned the U.S. Supreme Court for certiorari, requesting that the Court overrule Abood and declare the Illinois agency fee unconstitutional. On Sept. 28, the petition was granted by the Supreme Court. This represents the third time in the last four years the Supreme Court has considered this issue.
United States District Court denies board’s motion to dismiss former employee’s claim of alleged publication of false information regarding the employee’s prior work history with the school district.
Bosco v. Pittsburgh Bd. of Pub. Edn., W.D.Pa. No. 2:16cv1264, 2017 U.S. Dist. LEXIS 148962 (Sept. 14, 2017).
Michael C. Bosco, Jr. worked for the Pittsburg Public School District from 1984 through April 2014. Bosco was employed as a physical education teacher at the elementary school during the 2011-12 school year. He alleged that around Nov. 15, 2011, and Jan. 25, 2012, he was involved in two altercations with students that resulted in subsequent suspensions. No details about the incidents were included in the record, but they did not result in child abuse investigations under Pennsylvania’s Child Protective Services Law. In April 2012, Bosco and the board entered into a mutual settlement and release, under which Bosco voluntarily resigned and received a severance package.
In 2015, Bosco began applying for employment in other school districts. Each of the school districts to which Bosco applied was required, under Pennsylvania law, to obtain a disclosure release form from Bosco’s former employer. With each request from a school district where Bosco applied, the district completed the form answering “yes” to the question “has the applicant been the subject of an abuse or sexual misconduct investigation by any employer, state licensing agency, law enforcement agency, or child protective services agency?” Bosco then filed this action against the board alleging a Fourteenth Amendment violation. In his complaint, Bosco argued that this “false” answer on the form deprived him of acquiring any position with a school district that involves direct contact with children, which, in turn, deprived him of his “right” to pursue an occupation in education. The board filed a motion to dismiss.
The board argued that: (1) Bosco’s allegation regarding disclosure to three prospective employers could not establish public dissemination of information; (2) the situations that resulted in Bosco’s separation from employment made it impossible for him to establish misrepresentation; (3) Bosco’s loss of prospective employment opportunities do not equate to a Fourteenth Amendment protectable property or liberty interest; and (4) Bosco was not completely foreclosed from an entire occupation because not all schools require the forms in question. Bosco argued that sending this information to multiple school districts amounted to public dissemination, and that the statement was false because the situations in question did not lead to child abuse investigations.
The court reviewed the evidence applying the “stigma-plus” doctrine which requires a showing that: (1) there was a harm to one’s reputation consisting of publication of a substantially and materially false statement that infringed upon the reputation, honor or integrity of the individual; and (2) the defendant caused a deprivation of some additional constitutionally protected right or interest, such as the right to pursue a chosen occupation.
Here, the court found that the dissemination of false information suggesting Bosco was the subject of a child abuse investigation to multiple school districts was sufficient to meet the plausibility standard for public dissemination. The court also found that the board’s argument that the statements were true failed because there never was an investigation of child abuse initiated as a result of the incidents. The court also found that the “yes” answer on the form could, in fact, preclude Bosco from securing future employment with any school entity. For these reasons, the court denied the board’s motion to dismiss.
INDIVIDUALS WITH DISABILITIES ACT
North Carolina district court dismisses IDEA, ADA and Section 504 claims against school board because of plaintiffs’ failure to exhaust administrative remedies.
A.H. v. Craven Cty. Bd. of Edn., E.D.N.C. No. 4:16-CV-282-BO (Aug. 14, 2017).
https://www.leagle.com/decision/infdco20170818887
In December 2016, A.H. filed a complaint asserting substantive and procedural violations of IDEA, ADA and Section 504. In March 2017, the Craven County Board of Education in North Carolina filed a motion to dismiss, arguing that the court lacked subject matter jurisdiction over the complaint.
The board argued that the plaintiffs’ failure to exhaust administrative remedies deprived the federal court of subject matter jurisdiction over the IDEA claim. A.H. admitted to failing to pursue administrative remedies to completion, but argued that they were not required to because they were “challenging policies and practices of general applicability that are contrary to numerous federal laws.” A.H., however, pleaded no facts to support their conclusory allegation. The court also rejected A.H.’s “mere allegations of irreversible harm,” stating that they would not be enough to excuse the completion of administrative proceedings. Because none of the exceptions to the exhaustion requirement were applicable, the court found that A.H.’s IDEA claims must be dismissed for lack of subject matter jurisdiction.
The board also argued that A.H.’s ADA and Section 504 claims must be dismissed for lack of subject matter jurisdiction for failure to exhaust. Applying the U.S. Supreme Court’s recent ruling in Fry v. Napoleon, the court found that the “gravamen” or essence of the plaintiffs’ suit concerned the denial of FAPE. The court found that each of the plaintiffs’ claims was inextricably tied to their IDEA claim and that the proper recourse for the plaintiffs’ concerns was to first file a petition before the state and pursue state administrative remedies. Because A.H. failed to exhaust their administrative remedies before filing in federal court, the court dismissed the ADA and Section 504 claims.
INDIVIDUALS WITH DISABILITIES ACT - FAPE
New York district found to have provided FAPE despite parental concerns over student’s IEP.
F.L. v. Bd. of Edn. of the Great Neck U.F.S.D., E.D.N.Y No. 15-cv-5916 (SJF)(GRB), 2017 U.S. Dist. LEXIS 134378 (Aug. 15, 2017).
R.C.L. was a student with multiple and severe learning disabilities in the Great Neck Unified School District (NY). Over a three-year period, the student was provided with comprehensive Individualized Education Programs (IEP), all developed through the district meeting with R.C.L.’s parents and specialists. However, the parents ultimately filed a due process complaint, claiming the district failed to provide FAPE and that R.C.L.’s IEPs were both procedurally and substantively inadequate. R.C.L. alleged that the IEPs were procedurally inadequate because the parents had been deprived of a meaningful opportunity to participate in the IEP process and substantively inadequate because the IEP was not appropriately individualized for R.C.L.
On appeal from a New York State Review Officer, who held in the district’s favor, the district court initially reviewed the lengthy factual background of the case. R.C.L. had substantial learning impairments, but at all times had been a student in the Great Neck School District receiving special education programming, services and support as provided for under the IDEA. However, at various times, the district and R.C.L.’s parents were in disagreement as to his educational needs and progress. Many, but not all, goals were being met, which led to the parents requesting that R.C.L. be placed in a special “Foundations” class, which was at a charter school, for part of the day. The district disagreed, arguing that the “Foundations” instructors were not state licensed.
The district court noted, at this point, that a meaningful opportunity to participate in the development of an IEP does not require that the district agree with every (or any) suggestion or observation a parent offers, only that they be heard and considered by the district. The evidence provided by the district showed that the parents were present at all IEP meetings and given opportunities to provide suggestions and opinions on R.C.L.’s education. The evidence also indicated that the district carefully considered the parents’ suggestions and requests, since it was district’s research in the “Foundations” school that showed the instructors were not adequately licensed.
The court then looked at R.C.L.’s IEP and held that, again, simply because an IEP does not contain every goal that a parent wants or agrees with, does not mean it is not individualized. Evidence provided by the district showed the IEPs were developed on the basis of the student’s progress in meeting goals in a wide variety of different classes. The court concluded by upholding the state review officer’s judgment in favor of the district.
PUPIL ACTIVITY PERMIT - DENIAL
Court of appeals upholds the decision of the State Board of Education to deny issuing a pupil activity permit to an applicant consistent with RC 3319.31.
Miller v. Ohio Dept. of Edn., 2017-Ohio-7197.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2017/2017-ohio-7197.pdf
Robert Miller applied for a pupil activity permit in September 2013 to serve as an unpaid volunteer assistant coach. In his application for the permit, Miller answered “no” to questions asking whether he had ever been convicted or found guilty of, or pled no contest to, any criminal offenses other than traffic offenses. When the Ohio Department of Education (ODE) conducted a background check, it received criminal case files for Miller from the Air Force (which were sealed by the trial court) and information about a court-martial proceeding involving Miller.
In April 2015, ODE sent Miller a notice of opportunity for hearing, because it intended to decide whether his application for a pupil activity permit should be denied or permanently denied. Its stated reason was Miller’s conviction in an Air Force court-martial on Mar. 18, 1999, in which Miller was convicted of numerous charges of attempted larceny, conspiracy to commit larceny, larceny, falsification, and obstruction of justice, for crimes occurring at Air Force bases in California and Ohio. Miller requested a hearing, which was held on Oct. 6, 2015. The hearing officer recommended that the State Board of Education (SBOE) approve Miller’s application provided Miller gave SBOE written confirmation of his efforts at rehabilitation, as described in Ohio Administrative Code (OAC) 3301-20-01(E)(3)(d).
In February 2016, SBOE decided to permanently deny Miller’s application for a permit. Miller appealed the decision to SBOE and the Court of Common Pleas. The court upheld SBOE’s decision, concluding it was supported by reliable, probative, and substantial evidence. The court concluded that SBOE had thoroughly reviewed the record and was entitled to disbelieve Miller’s version of his convictions. It was also empowered to reject the hearing officer’s recommendation and to apply a penalty outside of those described in the Licensure Code of Professional Conduct. Miller then filed an appeal with the 2nd District Court of Appeals.
The appeals court concluded that Miller’s guilty plea on larceny charges under the Uniform Code of Military Justice was equivalent to a guilty plea to theft under Ohio Revised Code (RC) 2913.02. It upheld the SBOE’s finding that Miller’s conduct met the requirements in RC 3319.31(B)(2) for refusal to issue a permit, particularly given Miller’s failure to disclose his guilty pleas on his application for the permit. The court also concluded that Miller’s hearing testimony, which inaccurately described his crimes and service in military correction facilities, militated against the idea that he was truly rehabilitated by revealing “a tendency to discount his own conduct and responsibility.”
Finally, Miller argued that he was denied due process because SBOE’s agenda for the February 2016 meeting indicated that it would vote to award his permit. As a result, Miller and his attorney did not attend the meeting. At the meeting, SBOE decided to deny Miller’s application for the permit. The court concluded that Miller was not denied due process as he had notice that the matter would be on SBOE’s agenda at its February 2016 meeting.
Circuit court vacates district court summary judgment for school district in sexual harassment action, finds alleged harasser to qualify as the victim’s supervisor.
Moody v. Atl. City Bd. of Edn., 3d Cir. No. 16-4373, 2016 U.S. App. LEXIS 17191 (Sept. 6, 2017).
http://law.justia.com/cases/federal/appellate-courts/ca3/16-4373/16-4373-2017-09-06.html
Michelle Moody was employed by the Atlantic City Board of Education as a substitute custodian in November 2011. Moody alleged that, in October 2012, the custodial foreman at the New York Avenue school, Maurice Marshall, began making sexual comments, touching her breasts and buttocks, and exposing himself. This culminated on Dec. 27, when Marshall came to Moody’s home and Moody, feeling that her job had been threatened, “reluctantly” agreed to have sex with him. In the days after the encounter, Moody told Marshall it would never happen again. Following her rebuke, Moody alleged that Marshall began to treat her differently, and gave more substitute assignments to another female substitute custodian.
In February 2013, Moody informed the board’s assistant superintendent of the sexual harassment, who immediately took her to human resources to file a written complaint. The board hired a law firm to conduct an independent investigation of Moody’s claims. The law firm concluded that Moody was not subjected to harassment or discrimination.
Moody filed a complaint against the board, raising claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act and New Jersey’s law against discrimination. The district court granted summary judgment for the board because Marshall was not Moody’s supervisor, meaning that the board was not liable for his actions, and that Moody did not show she suffered a tangible employment action.
The circuit court vacated the summary judgment. It held that Marshall’s conduct toward Moody, if proven, could be viewed by a reasonable juror as sufficiently severe or pervasive to support a hostile work environment claim. The court then considered whether the board could be liable for Marshall’s actions under the rule that an employer can be held responsible for an employee’s actions if the employee was aided in accomplishing the actions by the existence of an agency relationship. The employer’s liability is predicated on the idea that the supervisor is able to take a tangible employment action against a subordinate only because the supervisor is the employer’s agent.
The court concluded that Marshall was Moody’s supervisor because: (1) the board empowered him as the foreman to select from a list of substitute custodians; (2) the board conceded that, while Moody was on school premises, Marshall served in a supervisory role; (3) the record identified no one else who served as Moody’s supervisor; and (4) Marshall controlled 70% of Moody’s hours, which meant his decision to assign or not assign hours to her would significantly affect her pay.
STUDENT SUSPENSION AND EXPULSION
Appeals court concludes student’s due process rights were protected, and notice of emergency removal and hearing were timely.
N.Z. v. Madison Bd. of Edn., 2017-Ohio-6992.
http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2017/2017-Ohio-6992.pdf
N.Z. is the mother of a student at Madison Comprehensive High School. On Oct. 6, 2016, the high school received a bomb threat that closed the school. On Oct. 9, a school employee found a binder with the words “Klebold Surprise” and the names “Dylan Klebold” and “Eric Harris” written on the cover. The binder’s owner was located, and led the school administrators to a group of other students involved in a message group called Klebold Kuck Krew on Kik, a messaging app. The message group contained posts with hate speech and comments about killing African Americans, sexually aggressive language, discussions of school shootings, and photos and videos of students with firearms. Law enforcement told school administrators the participants in the message group could be forming a hate group. N.Z.’s child (Student) was one of the participants in the message group.
On Friday, Oct. 9, all of the students involved in the message group were emergency removed from the school. School was closed on the following Monday for Columbus Day. On Wednesday, Oct. 14, the district received a bomb threat and all schools were evacuated. Student was notified of his emergency removal hearing on Thursday, Oct. 15. The hearing was held on Oct. 16. Student admitted to participating in the message group and declined to remove himself from it. He offered no apology.
Student was subsequently suspended from school for ten days, and then expelled from Nov. 2, 2015 to Jan. 8, 2016. Student appealed the expulsion to the board of education, which affirmed it. N.Z., on Student’s behalf, appealed. She alleged that: (1) her son’s due process rights were violated because the school did not comply the Ohio Revised Code (RC) 3313.66 notice requirements; and (2) her son’s First Amendment rights were violated by the board’s decision to affirm his expulsion.
The trial court concluded that, while the school did not fully meet the RC 3313.66 timing requirements for notice and hearing, Student’s due process rights were not violated. For example, although notice of the emergency removal hearing was not made within two calendar days and the hearing was not held within three calendar days, these steps occurred within two and three school days, respectively. Student fully participated in the process and was represented by counsel at the expulsion stage. The court also concluded that Student’s First Amendment rights were not violated because his private conversations were brought into the school setting, the message group glorified school violence and showed that students had access to weapons, and the conversation and group were found during a time when the district received multiple threats of violence.
The appeals court upheld the trial court’s decision, finding no abuse of its discretion. It concluded that Student’s expulsion was permissible under the standard set forth in Tinker v. Des Moines. The court specifically noted the Supreme Court of Ohio’s recent decision in State v. Polk regarding a school’s obligation to maintain a safe learning environment.
District court rules teacher’s termination was not retaliatory.
Wilbanks v. Ypsilanti Comm. School, E.D.Mich. No. 16-10157, 2017 U.S. Dist. LEXIS 117410 (July 27, 2017).
https://scholar.google.com/scholar_case?case=5002310403186454785&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Ambrose Wilbanks was a special education teacher at Ypsilanti Middle School in Ypsilanti Community Schools, a school district in Michigan. At the beginning of the 2015-2016 school year, Wilbanks began to make repeated complaints to several building and district officials. In his complaints, Wilbanks charged that the school district failed to follow IEPs and that no aides were available in his classroom. Throughout the months of September and October 2015, Wilbanks sent several more emails to various district administrators and officials, claiming that the lack of aides hampered his ability to teach effectively and that he “physically could not manage getting the majority of class to a safe, neutral environment.” He stated that students were causing violence and danger to other students in the school.
During this same time, Wilbanks was involved in two incidents, both of which were recorded on video, in which he used physical force against students. In the first incident, Wilbanks stopped a student (P.H.) wandering the hallway and tried to prevent P.H. from running away. When P.H. escaped from Wilbanks, the teacher “grabbed P.H. by the torso” and cornered the student against the wall. Aaron Rose, the middle school principal, received a report from P.H. about Wilbanks’ use of force. Rose verbally reprimanded Wilbanks several days later and warned him not to put his hands on students.
The second incident involved D.H., a student in Wilbanks’ class. Wilbanks sent D.H. into the hall for being disruptive and threatening to damage items in the classroom. Wilbanks left the room to search for D.H., and found him near a stairwell. As D.H. attempted to exit the hall into the stairwell, Wilbanks grabbed him by the arm and pulled him back into the hallway. D.H. later spoke to Rose telling him that Wilbanks hurt his shoulder and that something snapped in his arm. Following the second incident, the human resources director for the district, Donald Wood, was notified and an investigation of Wilbanks’ conduct ensued.
In October, a week after the D.H. incident, Wilbanks was placed on administrative leave during the investigation. Later that month, Wilbanks retained counsel. Wood notified Wilbanks of termination charges against him and that a school board meeting in early November would be held to consider the charges. In a closed session where Wilbanks, his counsel, Rose, and a union representative were present, several pieces of evidence, including emails Wilbanks sent concerning requests for additional support in his classroom and videos of both physical altercations with P.H. and D.H., were shown to the board. Wilbanks’ counsel did not cross-examine Rose, nor did she call any witnesses or introduce evidence on Wilbanks’ behalf. Instead, she only made an oral statement at the end of the meeting. At the conclusion of the session, the school board voted to terminate Wilbanks for violation of district policies regarding his use of force against P.H. and D.H.
Wilbanks then filed charges in district court, claiming that his termination was in retaliation for his earlier complaints. He maintained that the district’s actions violated the Americans with Disabilities Act and the Rehabilitation Act. On July 27, 2017, the district court granted the board’s motion for summary judgment, holding that Wilbanks did not establish that his termination was retaliatory in nature, and that Wilbanks’ counsel had ample time to call witnesses and introduce evidence on his behalf before the school board meeting. The school board conducted a complete independent investigation and therefore the court found Wilbanks’ termination to be justified.
Federal district court in Pennsylvania denies preliminary injunction to families who object to district’s practice of accommodating transgender students.
Doe v. Boyertown Area School Dist., E.D.Pa. No. 17-1249, 2017 U.S. Dist. LEXIS 137317 (Aug. 25, 2017).
https://www.paed.uscourts.gov/documents/opinions/17D0601P.pdf
In March 2017, four students sued the Boyertown Area School District claiming that the district’s practice of allowing transgender students to access bathrooms and locker rooms consistent with their gender identity violated their: (1) constitutional right to privacy under the Fourteenth Amendment; (2) right of access to educational opportunities, programs, benefits and activities under Title IX; and (3) state common law right of privacy preventing intrusion upon their seclusion while using bathrooms and locker rooms. The students requested a preliminary injunction to require the school to return to its prior practice of requiring all students only to use the privacy facilities corresponding to their biological sex.
On Aug. 25, 2017, the court denied the preliminary injunction. The court rejected the plaintiffs’ constitutional privacy claims, finding that no court has recognized a constitutional right of privacy as broadly defined as the plaintiffs alleged in their complaint. In fact, the district court found only one other case that addressed a similar constitutional privacy claim, Students and Parents for Privacy v. U.S. Dept. of Edn., N.D. Ill. No. 16-cv-4945 (Oct. 18, 2016). In that case, the court concluded that high school students “did not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” The court also highlighted the fact that no cisgender student was compelled to use a restroom with a transgender student, in part because the district offered multiple options to use private bathrooms and changing areas to all students who sought additional privacy, regardless of whether they were cisgender or transgender. Accordingly, the court found that the plaintiffs failed to establish that they were likely to succeed on the merits of their claim for invasion of privacy against the district.
The court also rejected the plaintiffs’ Title IX claim, finding that all students, regardless of gender, were treated similarly under the district’s practices. The court emphasized that “even if the court were to find that the practice was based on sex, the plaintiffs ignore that Title IX deals with ‘discrimination’ based on sex and there can be no discrimination when everyone is treated the same.” Additionally, the court found that the plaintiffs failed to show that they were subjected to pervasive sexual harassment in regard to their actual interaction with transgender students in the district. As a result, the court found that the plaintiffs failed to establish a likelihood of success on their Title IX sexual harassment hostile environment claim.
On Sept. 25, 2017, the plaintiffs appealed the denial of the preliminary injunction to the Third Circuit Court of Appeals.