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In this issue: Americans with Disabilities • Bullying • Collective Bargaining • Constructive Discharge • Discrimination • Due Process • First Amendment • Fourth Amendment • FMLA • Individuals with Disabilities • Jurisdiction • Ohio School Facilities Commission • Retaliation • Sale of Property • Sexual Harassment • Strikes • Title IX
Florida court finds that district may not require additional liability insurance, excess vaccinations, or separate handler for service dog of special education student.
Alboniga v. Sch. Bd. of Broward Cty., S.D. Fla. No. 14-CIV-60085-BLOOM/Valle (Feb. 10, 2015).
http://www.ada.gov/briefs/broward_county_school_board_soi.pdf
A.M. is a six-year-old with multiple disabilities. He is non-verbal, confined to a wheelchair and needs care and support for all aspects of daily living and education. A.M.’s mother determined that A.M. required a seizure alert and response dog. She obtained a service animal named Stevie, and had Stevie trained to provide A.M. with assistance in the event of a seizure or medical emergency. In May 2013, A.M.’s mother spoke to the district about her son being allowed to be accompanied by a service dog for the 2013-2014 school year. The district requested that A.M.’s mother complete a request form, include a record of the service dog’s vaccinations, and forward information regarding liability insurance. A.M.’s mother did not provide proof of liability insurance and the vaccinations of the service dog did not correspond with the required vaccinations in the district’s policies and procedures. The district requested this information again, and also informed A.M.’s mother that she needed to provide a “handler” for the dog.
From August until November, A.M.’s mother served as the dog’s handler. In November, the district made an administrative decision to allow the building’s custodian to serve as the handler for the dog. The handler’s responsibilities were to walk Stevie alongside A.M. with a leash instead of tethering Stevie to the wheelchair, taking Stevie outside to urinate, and to ensure that other people did not approach, pet or play with Stevie while he was working as a service dog. In September 2013, a health care plan was developed outlining the district’s responsibilities regarding care for A.M. if and when he had a seizure at school. The health care plan was incorporated into his Individualized Education Program (IEP). Neither A.M.’s health care plan nor his IEP included his use of a service dog at school.
A.M.’s mother sued the district, alleging a violation of the Americans with Disabilities Act (ADA) and Section 504 for failing to provide A.M. with a reasonable accommodation through the district’s initial denial of A.M.’s service animal in school and then by implementing procedural barriers to use of the service animal in school.
In order to determine whether A.M. had a valid ADA claim, the court examined three factors: 1) whether A.M. was a qualified individual with a disability; 2) whether he was excluded from participation in or denied the benefits of a public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and 3) whether that exclusion, denial of benefit or discrimination was by reason of A.M.’s disability. In this case, the court focused on the second prong – whether the school board discriminated against A.M. by failing to provide him with a reasonable accommodation.
The court found that the school board’s requirement that A.M. maintain liability insurance for the service animal and procure vaccinations in excess of the requirements under Florida law were surcharges that were over and above what other students were required to expend in order to attend school. As a result, the court found that those requirements constituted an impermissible discriminatory practice. The court also held that A.M.’s request to have an employee accompany Stevie outside to urinate was also a reasonable accommodation. The court held that because Stevie was tethered to A.M., A.M. was acting as Stevie’s handler and requiring the school board to assist or monitor A.M. in using his service animal was a reasonable accommodation.
Ohio court of appeals upholds trial court decision that school district was not negligent in implementing support plan to assist student that complained of bullying and ultimately committed suicide.
Vidovic v. Hoynes, 2015-Ohio-712.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2015/2015-Ohio-712.pdf
After the suicide of their daughter, Sladjana, Dragan and Celija Vidovic filed a lawsuit for negligence and gross negligence against the superintendent of Mentor Public Schools, the principal of Mentor High School, and a guidance counselor that worked with their daughter. The parents asserted that Sladjana committed suicide following months of bullying and harassment by students at the school. Additionally, the parents alleged that the defendants knew about the bullying but failed to take action to stop the harassment or intervene to prevent Sladjana’s suicide. The parents contended that the defendants' conduct constituted malicious purpose, bad faith, and wanton and reckless conduct, and thus the defendants were ineligible for immunity under RC 2744.03.
According to the facts set forth in the appellate decision, Sladjana began attending Mentor High School as a sophomore in fall of 2007. In the record, Sladjana’s friends described various incidents, such as pizza being thrown at Sladjana, harassing phone calls, being told to go back to Croatia, being called names, someone dumping her purse, and being “shoulder checked” or bumped in the hallway a few times. In November 2007, Sladjana was allegedly pushed down the stairs at school. Accounts from her friends varied regarding whether Sladjana believed it was malicious, an accident, or horseplay, and whether she knew the identity of the individual that pushed her. The school nurse reported that Sladjana told her she thought someone was going to push her, and that she had no injuries from the incident. According to her mother, however, Sladjana threatened to kill herself after the incident. Sladjana was admitted to a hospital for psychiatric care and began seeing a private counselor; she was released from the hospital on December 24, 2007.
Prior to Sladjana’s return to school in January 2008, Sladjana’s mother and sister met with the school district. The principal and Sladjana’s guidance counselor were present at the meeting. The group agreed to a plan to ensure Sladjana’s safety that included making Sladjana’s teachers aware of the plan and asking them to pay careful attention to Sladjana, allowing Sladjana to see her guidance counselor, the school social worker, or principal if she was having problems. Regular meetings for Sladjana with the guidance counselor were scheduled, as well. After the January 2008 meeting, the principal checked with the guidance counselor regarding Sladjana’s progress. He delegated day-to-day management of the plan to the guidance counselor, and relied on her to provide information regarding any problems. The guidance counselor provided reports back to the principal. When she found out that Sladjana had stopped seeing her private counselor, the guidance counselor left a message for Sladjana’s parents and sister, but did not receive a return phone call. In general, though, the guidance counselor believed Sladjana was safe at school, and was comfortable talking to many adults at the school, including security guards.
Sladjana’s mother and sister had also met directly with the superintendent to discuss their concerns after Sladjana was hospitalized, and the superintendent testified in the record that she followed up by speaking with the principal and director of secondary education after the meeting. She believed the district was being responsive to Sladjana’s needs, and that the district had an adequate plan in place to protect Sladjana from the ability to kill herself at school. In addition to the student-specific plan in place for Sladjana, the school district had an anti-bullying policy, required all-staff training, and implemented a specific anti-bullying program in fall of 2007. The school district also had an anti-suicide program in place.
After a fight in the summer of 2008, Sladjana became involved with the Lake County Juvenile Court. Sladjana began homeschooling in fall 2008, and committed suicide shortly thereafter.
The trial court granted summary judgment in favor of the defendants on all claims. The court held that the actions taken by the defendants were either appropriate, or, at worst, mere negligence. In either case, the trial court did not find the defendants’ conduct to be reckless, with malice, or bad faith. The parents appealed the decision.
The court of appeals observed that the gross negligence claim and the claim regarding violation of RC 2744.03 were similar in nature, and examined each of the defendant’s actions separately to reach its decision to uphold the trial court’s findings. The court rejected the parents’ argument that the school’s failure to properly document instances of bullying in compliance with school policy was sufficient reason to find the defendants actions were reckless, wanton, and with malice. The court found that each of the defendants acted appropriately, and while there was some question as to the ultimate effectiveness of the principal’s plan and the guidance counselor’s ultimate effectiveness in addressing Sladjana’s mental health issues, those questions did not mean that their conduct were grossly negligent or were reckless, wanton, or demonstrated malice. The court noted that “courts have not required schools to take perfect action to remedy bullying issues to avoid claims related to gross negligence [and] RC 2744.03, but that they take some precautions or steps to recognize and address the issue.”
Connecticut court dismisses FLSA claims after employee fails to exhaust CBA grievance procedures.
Zeyer v. Bd. of Edn., Town of Ridgefield, Ridgefield Pub. Schools, D. Conn. No. 3:13-cv-01344 (March 18, 2015).
https://cases.justia.com/federal/district-courts/connecticut/ctdce/3:2013cv01344/102053/77/0.pdf
Maura Zeyer worked as both a bookkeeper and a house secretary. In September 2002, Zeyer was appointed to a full-time job at Ridgefield High School (RHS) and a part-time job at East Ridge Middle School (ERMS) and Scotts Ridge Middle School (SRMS) in Connecticut. Her appointment letters, which listed her salary, initially only included her position at RHS. Her remaining hours were reported by timesheet. Zeyer agreed with school board representatives that when she reported her ERMS/SRMS hours by timesheet, she would report only 450 hours of work for the first two years and 550 hours thereafter, even though she actually worked substantially more than that.
In 2005, a change in the collective bargaining agreement (CBA) began affecting Zeyer’s pension contributions. The contributions and benefits were tied to an employee’s base salary, not including overtime pay. The district proposed an arrangement where Zeyer’s position would become a 1.45 FTE position, she would be compensated in the form of a straight salary that included compensation for her work at ERMS and SRMS, her appointment letter would be amended, and her pension contributions would be calculated from her total salary. In 2010, the district informed Zeyer that the 1.45 FTE position was improper and that she would have to return to filling out timesheets for her work at ERMS and SRMS and under-reporting her hours worked.
Zeyer filed a lawsuit against the district, alleging that the board denied her compensation and pension benefits, breached the 2005 agreement, and failed to pay her for the proper amount of overtime she worked. The district moved to dismiss on the ground that Zeyer failed to exhaust the grievance procedure available to her through the union’s CBA.
The court rejected the district’s arguments, holding that plaintiffs who are covered by a union contract may bring independent state-law claims for breach of separate “individual employment contracts” as long as the claims aren’t substantially dependent on analysis of a CBA. In this case, the court found that an employer’s promise to pay an employee for additional work performed outside the scope of the CBA was not, on its own, substantially dependent on the CBA. The court found that Zeyer’s breach of contract claim and her claim for unpaid wages relied upon a right created by a term of the CBA, so Zeyer was required to exhaust the CBA’s grievance procedures prior to filing a claim in court. Because she did not, the court dismissed her claims for her failure to satisfy a prerequisite to the court’s jurisdiction. Zeyer’s claim under the FLSA sought to vindicate an independent statutory right, and therefore was not subject to the exhaustion requirement. The case proceeded on that claim.
Ohio court finds teacher offered choice between retirement and termination voluntarily resigned when he was offered two months to deliberate his decision and acted on advice of counsel.
Albano v. Columbus Bd. of Edn, S.D. Ohio No. 2:14-CV-0379 (Mar. 17, 2015).
http://law.justia.com/cases/federal/district-courts/ohio/ohsdce/2:2014cv00379/170864/38/
Robert Albano was hired as a teacher in the Columbus City School District (CCSD) in August 2010. As a teacher employed by CCSD, he was also a member of the Columbus Education Association (CEA). During the first few months of his employment, Albano noticed discrepancies between his grade and attendance records and CCSD’s official records. He asked about the discrepancies, but was allegedly told to ignore them.
In April 2011, two students alleged Albano had engaged in misconduct, and he was placed on administrative leave during the investigation. Investigation by both CCSD and Children Services found the allegations to be unsubstantiated. When he returned, he was presented with a Last Chance Agreement. On the advice of the union representative and Sue Salamido, counsel hired by the CEA to represent Albano, Albano signed the agreement. Neither the union representative nor Salamido contested the allegations or requested an administrative hearing on Albano’s behalf.
Albano returned for the 2011-2012 school year, and noticed many of the students who had failed the prior year had been promoted. In October, he again noticed discrepancies between his attendance and grade records and CCSD’s official record. He inquired to the principal regarding the attendance issues, and was allegedly told the attendance issues and related forms were none of his business. In April 2012, Albano was removed from the school by the principal for allegedly telling students his sister lived in Florida and offering to take the students and their families to Boston. The district held a hearing regarding these allegations, and whether they violated the Last Chance Agreement Albano had signed the prior school year.
In June 2012, Albano was contacted by Salamido, and was told he had the option to resign effective the end of the 2012-2013 school year or be terminated immediately. He was informed that if he did not resign, his accrued vacation time and benefits, including medical, would cease immediately. Salamido advised him to resign at the end of the next school year. She did not advise him of his options or of his rights to due process under the law and collective bargaining agreement. Albano signed the agreement in August 2012.
Albano sued CCSD for a variety of state law claims, as well as a violation of his due process rights under §1983. The school district removed the case from Franklin County to federal court based on the due process claim. The Southern District of Ohio, Eastern Division found that Albano had a property interest in continued employment because Ohio law only permits dismissal or suspension of an employee upon certain showings. A public employee with a property interest in continued employment is illegally deprived of that property interest if the employee is constructively discharged by being forced to resign involuntarily.
The court declined to find that Albano had been forced to resign involuntarily, though, because the resignation was not forced by coercion or duress, or deception. While Albano was forced to choose between resignation or termination, the Court held that presenting an employee with such choice is not de facto coercion or duress: the amount of time that the employee has to make the decision determines whether coercion or duress is present. Because Albano had two months to consider whether he would sign the agreement, and was able to obtain the advice of counsel, coercion or duress was not present. Similarly, though Albano alleged he was told if he signed the agreement he would be allowed to work the 2012-2013 school year in peace, he was harassed and bullied throughout the year. The court found that “a promise to behave in a certain way in the future, which is later broken, is not the same as inducing a resignation through a material misrepresentation.”
The court acknowledged that both the CEA representative and Salamido failed to properly advise Albano of his rights to due process under the law and the collective bargaining agreement in place, but declined to extend those failures to the school district, noting that “labor unions are generally not state actors for the purpose of a §1983 claim.” The court dismissed Albano’s federal claim, and declined to exercise supplemental jurisdiction over the remaining state law claims.
Wisconsin court determines that board of education is liable for discrimination when it relies on the recommendation of an improperly motivated superintendent to terminate a teacher contract.
Bostwick v. Watertown Unified Sch. Dist., E.D. Wis. No. 13-C-1036 (Feb. 9, 2015).
http://docs.justia.com/cases/federal/district-courts/wisconsin/wiedce/2:2013cv01036/64363/55
Scott Bostwick was hired to replace Ivan Thompson as principal of Watertown High School in 2002. At that time, Thompson was demoted from his position but remained employed with the district. Bostwick served in the principal role for 9 years prior to the district’s hiring of Cassandra Schug as superintendent in the summer of 2011. In early 2012, concerned because he had heard rumors that Schug was considering replacing him, Bostwick requested – for purely informational purposes – a meeting to discuss his options around retirement with Schug. In February 2012 Schug and Thompson, then the district director of human resources, met with Bostwick and offered him an early retirement agreement. Bostwick indicated in the meeting he was not yet prepared to retire, and he did not want to do so until he had another job opportunity. Schug told Bostwick the district would not accommodate that request.
Schug advised Bostwick in the February meeting that he was under investigation for unspecified misconduct. Schug indicated the investigation “did not look good for Bostwick” and that the investigation would cease if he signed the early retirement agreement. Thompson told Bostwick it looked like he was guilty of mistreating older female staff on the basis of age and gender. Until the events at issue in the litigation, Bostwick had had a perfect employment record without any complaint or disciplinary reprimand. Neither Schug nor Thompson would provide Bostwick any details of the charges against him. After the meeting, Bostwick sent two emails to Schug, complaining of his treatment. Schug forbade Bostwick from contacting the board of education with a complaint, despite district policy permitting an employee to take complaints against the superintendent to the board’s president.
On March 23, 2012, Schug and Thompson told Bostwick he could retire with some benefits or the investigation against him would continue; Bostwick declined to retire. In April 2012, Schug had a closed meeting with the board of education and reported that “things were looking bad and Mr. Bostwick’s future could be in question.” In May 2012, Thompson met with and questioned Bostwick regarding more than 40 alleged incidents or issues, some dating to Bostwick’s first weeks on the job. The district did not provide Bostwick a copy of the charges or questions. The meeting was the first that a district representative had advised Bostwick of the specific allegations or asked for any response from Bostwick.
After the meeting, Bostwick violated Schug’s instruction not to contact the board and wrote a letter of complaint to the board president. Seven days after Bostwick’s complaint, Schug issued the board’s written response to the complaint and suspended Bostwick without pay. The board eventually met with Bostwick, and the district responded by expanding the scope of the investigation. Schug recommended the board terminate Bostwick’s contract, and the board did so on Sept. 26, 2012.
Bostwick brought suit against the board of education, Schug, Thompson, and other school district employees for age discrimination, retaliation, violation of his due process rights, and several state law claims. The defendants moved for summary judgement. The district court ruled in favor of Bostwick.
With respect to the discrimination and retaliation claims, the court held that the evidence put forth by Bostwick “easily support[ed]” the inference that he was fired because of his age and gender. Schug’s discussions with a younger, female assistant principal that the court found to be similarly situated to Bostwick indicated that Schug wanted to promote younger women. The promotion of the female assistant principal upon Bostwick’s exit also suggested that Bostwick was targeted because he was male and older. The court found that Bostwick had engaged in protected speech when sending emails complaining about his treatment and when he filed a formal harassment claim with the board of education. A jury could find a causal connection between Bostwick’s protected speech activity and his termination.
With respect to Bostwick’s due process claims, the court ruled that Bostwick could proceed on his claims against Schug and Thompson. The court also found that the board president could be held individually liable because she knew or had reason to know that the investigation and termination proceedings were “infected” because she was privy to Bostwick’s harassment complaint. While the board had gone through the motions of hiring an independent investigator and having a hearing prior to terminating Bostwick, the court found adequate evidence in the record to support Bostwick’s assertion that “the game was rigged, and his hearing was nothing more than a show trial.” The court pointed to several facts that suggested the process was not fair such as prior to hearing Bostwick’s side of the story, both Schug and Thompson had indicated the outcome of the investigation was not looking good; Thompson was potentially biased against Bostwick because he had been replaced by Bostwick as principal; the independent investigator had sent Schug an e-mail at the onset of his investigation, assuring the superintendent that she would prevail in the matter; and even after Bostwick made a harassment complaint, Schug and Thompson remained in charge of the investigation. Further, there was evidence in the record that suggested at least one board member (not the president) had pre-judged the case against Bostwick because of his faith and trust in Schug. That evidence alone was “sufficient to undermine the integrity of the Board in its entirety.”
Third Circuit rejects former teacher’s ADEA and Title VII retaliation claims.
Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181 (3rd Cir. 2015).
http://www2.ca3.uscourts.gov/opinarch/141503p.pdf
Dorothy Daniels is over 60 years old and African-American. In 2008, the School District of Philadelphia employed Daniels as an elementary school teacher. Daniels received satisfactory evaluations during that year, but was transferred at the end of the year due to enrollment or budget allocation changes. In 2009, she became a middle-school English teacher with the district.
In 2009, the middle school’s principal stated at a parents’ night that some of the teachers were old enough to be grandparents. Daniels spoke to the principal about the comments and contended that the principal became antagonistic towards her after she complained about the comments. The principal conducted several classroom observations of Daniels and gave her a negative evaluation, which Daniels believed to be unwarranted. At the end of the school year, the principal reduced the number of budgeted middle-school teachers for the upcoming year, which required Daniels to go through another forced transfer process.
During the 2010-2011 school year, Daniels began seeing doctors for anxiety and depression, which she attributed to her hostile treatment at school. She took several periods of medical leave due to anxiety. The district’s doctor concluded that she could return to work. Daniels, however, did not return to work as directed. Due to her failure to return to work, the district initiated termination proceedings, which ultimately led to the termination of her employment. In 2012, Daniels filed suit, asserting claims of age discrimination, race discrimination and retaliation. The court granted summary judgment for the district with respect to most of Daniel’s claims, including those of retaliation. The remainder of the claims proceeded to trial, at which the jury returned a verdict in the district’s favor. Daniels appealed.
On appeal, the court affirmed the district court’s order, finding that Daniels did not provide sufficient evidence to support a conclusion that the district acted with a retaliatory animus. The court found that Daniels had failed to provide evidence that the school administrators responsible for the adverse action knew of her protected conduct at the time they acted. Although the district may have harassed Daniels, the court found that Daniels was not able to link the harassment to the sort of “retaliatory animus” necessary to obtain relief under the anti-discrimination statutes.
Maryland court denies summary judgment for district in age discrimination claim.
Hudock v. Kent Cty. Bd. of Edn., D. Md. No. CCB-14-2258 (March 16, 2015).
http://www.mdd.uscourts.gov/Opinions/Opinions/Hudock%2016%20Mar%2015.pdf
Kenneth Hudock and Cheryl Vauls served as principals of two elementary schools in Maryland. Both Hudock, an educator with 25 years of experience, and Vauls, an educator with 40 years of experience, were told that their contracts would not be renewed. Both alleged that the board discriminated against them on the basis of age.
The school board president stated that the board’s decision not to renew the administrators’ contracts was largely driven by the poor performance of students at their schools on standardized tests. Parents in the district also complained of lax discipline at the schools and Hudock’s inadequate response to their complaints. The administrators were also critiqued on the quality of their instruction, their handling of meetings with parents, and the failure to satisfy several performance standards. The administrators’ supervisor did not share the board’s concerns with their performance. To the contrary, she considered both employees to be “satisfactory performers.” The court found summary judgment on the basis of parental complaints, the annual performance reviews, and other alleged inadequacies to be premature before discovery.
The court also called in to question the board’s explanation of the administrators’ termination based on the fact that the decision not to renew had not been recommended by the board’s superintendent, which is required under Maryland state law. For these reasons, the court denied the board’s motion for summary judgment.
Seventh Circuit vacates summary judgment for school board that failed to submit documentation to corroborate testimony of witnesses in racial discrimination case.
Hutchens v. Chicago Bd. of Edn., 781 F.3d 366 (7th Cir.2015).
http://hr.cch.com/ELD/HutchensChicagoBdEd.pdf
A large-scale layoff in the Chicago public schools system required the school’s professional development unit to decide whether to retain Joyce Hutchens, a black woman, or Deborah Glowacki, a white woman. After the unit’s director elected to retain Glowacki, Hutchens filed a claim alleging racial discrimination on the grounds that Glowacki was less qualified than she and was retained only because the unit director preferred whites to blacks. The district judge granted summary judgment in favor of the unit director and the board of education on the ground that they had presented a justification that was not merely a pretext. Hutchens appealed.
On appeal, Hutchens argued that she had the stronger background of the two employees. She had more post-graduate education and teaching certifications, longer tenure with the district, private sector experience in career coaching, and longer service in the unit. Hutchens alleged that the unit director engineered her termination by misleading the human resources officer into incorrectly thinking that Hutchens was not knowledgeable about a key certification program of the unit. The court acknowledged that the performance-based reasons offered for Hutchens’ layoff were at odds with the district’s files and were supported mostly by sharply-disputed witness testimony.
The Seventh Circuit noted its surprise that the district court granted summary judgment in light of the doubt and inconsistencies contained in the record. According to the court, the district court “did not remark the surprising fact that the defendants failed to submit a single document that might have corroborated any of the testimony” of the district’s main witnesses. The court concluded that a reasonable jury could find that Hutchens was the target of racial discrimination, vacated summary judgment and remanded for a trial of the employee’s discrimination claims.
Third Circuit determines that assistant superintendent failed to establish race-based discrimination.
Kirschling v. Atlantic City Bd. of Edn., 3rd Cir. No. 14-1927 (March 12, 2015).
Thomas Kirschling is a Caucasian male who served as the Assistant Superintendent of Human Resources for the Atlantic City School District. Kirschling negotiated a three-year contract in 2007. The April 2008 board election changed the composition of the board causing the board members who were previously hostile towards Kirschling to command a majority. In the latter part of 2008, Kirschling and the board were in buyout negotiations, and Kirschling demanded that he be entitled to 120 sick days and vacation days, which included 96 days rolled over from his previous employment with a different district. However, the board informed Kirschling that 34 of his claimed days were not properly claimed under the district’s comp time policy. The board also alleged that Kirschling failed to report 11 days as vacation when he was out of the state. In addition, the board informed Kirschling that he was previously compensated for the 96 days that were rolled over from his previous district. The district believed that Kirschling misrepresented the fact that he was compensated for the 96 days and suspended him. Kirschling resigned in July 2009 before the board could present formal charges to prosecutors and state tenure authorities. A Caucasian woman assumed Kirschling’s duties on an interim basis. Subsequently, an African-American woman assumed Kirschling’s previous duties.
Kirschling filed a lawsuit against the district alleging race-based constructive discharge. He contended that his resignation was under duress, and that the board’s “campaign to oust him” was motivated by his race. The trial court ruled in favor of the district and found that Kirschling failed to establish a prima facie case for discrimination. Kirschling appealed.
On appeal, the Third Circuit determined that Kirschling did not establish facts that would make a reasonable person believe that he had no choice but to resign from his position. The court found that although the board criticized Kirschling’s job performance and openly desired to remove him for his position making it a stressful situation, Kirschling’s allegations did not amount to the proximate harassment contemplated by law. There was no indication that he was forced to resign. As a result, the court found for the district because Kirschling failed to establish a prima facie case of discrimination.
Illinois court dismisses claim for due process after board reinstates employee’s termination as form of discipline.
Sutton v. Bd. of Edn. Bremen High Sch. Dist. 228, N.D. Ill. No. 14-cv-6146 (Feb. 11, 2015).
http://docs.justia.com/cases/federal/district-courts/illinois/ilndce/1:2014cv06146/299261/19
Earnest Sutton was hired by the Bremen High School District 228 in 1991. In 2012, he was hired as dean of Hillcrest High School under a 5-year contract. During his employment, Sutton received excellent and outstanding performance evaluations from his supervisors. In 2013, Sutton was arrested and charged with marijuana possession, drunken driving, no insurance and improper parking on a roadway. A week later, Sutton’s direct supervisor advised Sutton that it was the policy and past practice of the district to permit staff to participate in alcohol abuse treatment programs before initiating any disciplinary action and before taking any action that would lead to possible termination of employment. The supervisor recommended Sutton self-report the arrest to the superintendent to ensure that an alcohol treatment program would be provided in lieu of any disciplinary proceedings. Sutton self-reported.
The next day, the superintendent hand-delivered a letter to Sutton entitled “Recommendation for Dismissal,” which notified Sutton of the superintendent’s intent to recommend to the board that Sutton be discharged for cause. The board rejected the superintendent’s recommendation for immediate dismissal and voted to suspend Sutton instead. A few weeks later, Sutton sent a letter to the district stating that neither the board nor the superintendent had the authority to suspend Sutton without pay as a form of discipline under his existing employment agreement. A month later, the board voted to terminate Sutton “effective immediately.” Sutton filed a complaint against the board, alleging a violation of his procedural due process for the superintendent to convene a second disciplinary hearing for the sole purpose of convincing the board to alter and change its previous decision.
The court found that the pretermination proceedings made available to Sutton comported with the applicable due process standards. After Sutton’s arrest and subsequent discussion with the superintendent, Sutton was provided notice of the superintendent’s recommendation for dismissal. Sutton attended the hearing and participated in his defense. The court did not find that Sutton was entitled to more process than he obtained. The court highlighted that the only alterations to the board’s decision pertained to the mode of discipline, which morphed from suspension without pay to termination, not the fact that cause existed for implementing discipline. The court held that the second closed-door session of the board didn’t otherwise deprive Sutton of the procedural due process that the board provided him earlier in the year. As a result, the court found that Sutton failed to sufficiently allege a violation of his procedural due process rights and dismissed his claim.
Minnesota court finds a “statement of understanding” outlining district’s expectations of employees and pay schedules is not an ongoing contract for purposes establishing a property interest.
Szanjer v. Rochester Pub. Sch.’s Indep. Sch. Dist. #535, D. Minn. No. 13-2417(DWF/SER) (Feb. 13, 2015).
http://law.justia.com/cases/federal/district-courts/minnesota/mndce/0:2013cv02417/133801/31/
Janet Szanjer was a program coordinator for a community education program for Rochester Public Schools. In February 2011, in addition to working her community education program coordinator position, Szanjer accepted two part-time positions at a middle school in the district. She taught two to three days a week at the middle school from early February to June 2011. Her supervisor did not object to the arrangement. That summer, Szanjer took an internship that required her to teach in the district’s summer school program during times she was expected to be managing students in the community education program. She completed the work for the teen program by flexing her time and alleges her supervisor and the school district did not complain about the arrangement.
In fall of 2011, Szanjer was offered a part-time teaching arrangement with the middle school, and emailed a proposal that she be reduced to an hourly employee for the community education program. She was required to resign her full-time position to accept the teaching position; details regarding the hourly work with the community education program were not finalized at the time that she did so.
In September 2011, Szanjer was advised she was being investigated for violating school district policy that prohibited any employee from working two district jobs at the same time. She was placed on administrative leave from the teaching position at the middle school. After investigation, the district offered Szanjer two choices: to resign her position with community education and retain her teaching position with the middle school, or be terminated from both positions for gross misconduct. Szanjer resigned her position with the community education program, but retained her teaching position at the middle school and filed an age discrimination complaint with the EEOC.
Szanjer brought a federal suit challenging the district’s actions as a procedural and substantive denial of her due process rights. The district court dismissed her arguments at the summary judgment stage. With respect to the procedural due process claim, the court found Szanjer failed to have a property interest in her employment with the community education program because she did not have a contract for the position. While she had signed an agreement in 1992 for a one-year term, in subsequent years her position had been renewed with a “statement of understanding” (SOU) that was issued every two years. The SOU set forth the terms and conditions of employment, including salary schedules, but was not marked as an employment agreement. Because an ongoing employment contract must have “clear and unequivocal language by the employer evidencing an intent to provide job security,” the court held the SOU was not a fixed-term contract, and that Szanjer was an at-will employee.
With respect to the substantive due process claim, the court found that while Szanjer may have legitimate issues with the district’s decisions, actions, and process, none were such that they “shocked the conscience” or limited her ability to obtain other employment, a requirement for a successful substantive due process claim. The court noted that Szanjer’s continued employment with the district indicated employment opportunities were not foreclosed to her.
New Jersey court rules state law requiring daily recitation of Pledge of Allegiance in public schools does not violate New Jersey constitution.
Am. Humanist Assn v. Matawan-Aberdeen Regional School Dist., N.J Super. Ct. No. MON-L-1317-14 (Feb. 4, 2015).
A New Jersey law requires the daily recitation of the Pledge of Allegiance in public schools. The law contains a provision allowing students to opt out of participating in saluting the American Flag and reciting the Pledge for any or no reason. An atheist student attending the Matawan-Aberdeen School District in New Jersey objected to the practice of reciting the Pledge, alleging that his beliefs did not allow him to fully participate in the pledge and because of that, he felt excluded from other children when the Pledge was recited. The student and his parents objected to the law on the grounds that inclusion of the phrase “under God” violated their atheistic beliefs. The American Humanist Association (AHA) filed suit on behalf of the family alleging that the district’s practice of acknowledging God in the Pledge discriminates against atheists in violation of the New Jersey Constitution. The district filed a motion to dismiss, which the court treated as a motion for summary judgment.
The superior court granted the district’s motion for summary judgment. In analyzing the claim, the court applied a three-part balancing test which weighed: 1) the nature of the right at stake; 2) the extent to which the challenged statutory scheme restricts that right; and 3) the public need for the statutory restriction. Regarding the first factor, the court concluded that the recitation of the Pledge did not implicate religious freedom from either a historical or religious perspective. There were no cases that refuted the statement that recitation of the Pledge was anything other than a secular exercise that is constitutionally protected.
In regard to the second factor, the court rejected the plaintiff’s argument that the Pledge law draws a line between believers and non-believers. The court stressed the fact that recitation was completely voluntary, students did not have to provide any explanation for non-participation, and school officials did not engage in coercive tactics to make the student repeat the phrase “under God.”
Under the final factor, the court acknowledged the student’s feelings of being marginalized by the inclusion of the phrase “under God,” but emphasized that such feelings could not serve as a “constitutional litmus test for equal protection in the absence of invidious classification because potentially anything offensive to one’s subjective sensibilities could be struck down as unconstitutional.”
Second Circuit rules that mandatory vaccination as a condition of school admission does not violate the Free Exercise Clause.
Phillips v. City of New York, 2nd Cir. No. 14-2156-cv (Jan. 7, 2015).
New York law requires students attending public schools to be immunized against vaccine-preventable illnesses. There are two exemptions from the required immunization, which provide for a medical exemption if a physician licensed to practice medicine in New York certifies that the immunization may be detrimental to the health of the child. Additionally, a religious exemption is available for children whose parent has a genuine and sincere religious belief that is contrary to required practices under the law. Parents Nicole Phillips and Fabian Mendoza-Vaca received religious exemptions for their children. They are both Catholic. However, their children were excluded from school when another student was diagnosed with chicken pox. Another parent, Dina Check applied for a religious exemption for her daughter, but the department of education denied the exemption because they determined that Check’s opposition to vaccinating her daughter was not for a sincere religious belief. Check filed a lawsuit seeking an injunction that would allow her daughter to attend school unvaccinated. Her request was denied. The three parents eventually filed a complaint alleging that the mandatory vaccination law allowing exempted students to be temporary excluded during a disease outbreak were unconstitutional. The three parents’ cases were consolidated. The district court denied the parents’ claims, and they appealed.
On appeal, the parents argued that the law violated their substantive due process rights. The court of appeals ruled that mandatory vaccination is within the police power of the state, and therefore dismissed that claim. The parents also contended that their free exercise of religion was violated because their students were excluded. The court found that a parent’s right to practice religion does not allow them to expose the community or child to a communicable disease or “the latter to ill health or death.” Requiring a student to be vaccinated as a condition to be admitted into school does not violate the Free Exercise Clause. In addition, the parents contended that the mandatory vaccination violated their rights under the Equal Protection Clause and the Ninth Amendment. Here, the court found that Phillips and Mendoza-Vaca, both Catholic, did receive religious exemptions. The parents failed to challenge the district court’s ruling that Check’s viewpoints on vaccines were not based on sincere religious beliefs, and they did not establish that Check’s religious beliefs were similar to those of Phillips and Mendoza-Vaca. Therefore, the court also dismissed the equal protection claim. Lastly, the court found that since the parents did not allege any other constitutional violation, their claims under the Ninth Amendment failed. The court of appeals affirmed the district court’s ruling.
Florida court finds that students did not have a reasonable expectation of privacy outside of school prom.
Ziegler v. Martin Cty. Sch. Dist., S.D. Fla. No. 14-cv-14221-Middlebrooks (March 2, 2015).
https://www.nsba.org/sites/default/files/Ziegler. v. MCSD - MD FL Opn 2015.pdf
Jensen Beach High School held its senior prom on May 3, 2014. Students who purchased a ticket for the prom were required to sign the school board’s zero tolerance form for off-campus activities. A group of thirty-seven students arrived to the prom between 10:14 p.m. and 10:36 p.m. in a rented party bus. The dean of the students told the students to wait before entering the prom so the bus could be inspected. A sheriff’s deputy asked the bus driver if he could search the bus for drugs and alcohol, and driver consented. The deputy found an empty champagne bottle inside the bus, and the bus driver said the bottle belonged to the students. However, each student denied knowing about the champagne bottle or owning it. The students were informed that they would have to take and pass a breathalyzer test before they could enter the prom. The assistant principal administered the breathalyzer tests to the students, and they all passed. The students were allowed to enter the prom once the tests were complete, but they missed most of the prom. During the incident, two of the students used profanity and were suspended for three days. The students on the bus filed a lawsuit alleging violation of their constitutional rights.
The students argued that they had a reasonable expectation of privacy on the privately chartered party bus. They paid $3,000 to charter the bus for six hours. The students also argued that their contract with the bus company allowed them to exclude others from the cabin of the bus during the contract, which provided them with an expectation of privacy. The district argued that the students’ expectation of privacy ceased when they arrived at their final destination with the intent of not boarding the bus again. The court noted that the bus driver voluntarily consented to the search of the bus, and a third party’s consent is valid if that individual mutually uses the property. Additionally, a search of a student by a school official will be justified at its inception “when there are reasonable grounds for suspecting that the search will turn up evidence that the student violated or is violating the law or rules of the school.” The court found that the district had reasonable suspicion that the students consumed alcohol when the deputy informed school administrators that a champagne bottle was on the bus, as well as the bus driver’s statement that the bottle belonged to the students and the students were drinking. In addition, the court found that using the breathalyzer test was reasonably related to determine if the students were intoxicated prior to the prom because the test specifically tested for the presence of alcohol. The breathalyzer test was not excessively intrusive. As a result, the district did not violate the students' Fourth Amendment rights when the breathalyzer test was administered.
The students also contended that they were unconstitutionally detained for an hour and a half causing an unlawful seizure. The district argued that the students were not prevented from leaving the grounds as long as they were not operating a vehicle. The court found that the district was justified in detaining the students once the champagne bottle was discovered. The deputy had reasonable suspicion to believe that the students drank alcohol before the prom, which violated the zero-tolerance policy. The court determined that the district’s act of detaining the students until the breathalyzer test was administered was reasonable under the circumstances. In addition, the court found the district did not violate the Equal Protection Clause by having the zero-tolerance policy because there was no indication that the policy only applied to students who arrived on buses or limos. Lastly, the court of appeals found that the district did not violate the First Amendment rights of the two students who were suspended for using profane language because the students were on notice that using profanity was banned.
Eleventh Circuit affirms summary judgment for district where administrator failed to show causal connection between her FMLA leave and board’s decision to nonrenew.
Caldwell v. Clayton Cty. Sch. Dist., 11th Cir. No 14-13343 (Mar. 23, 2015).
http://law.justia.com/cases/federal/appellate-courts/ca11/14-13343/14-13343-2015-03-23.html
In August 2011, Monique Caldwell, an assistant principal, requested and was granted leave under the FMLA. She was on leave from August 11 to October 28. When Caldwell returned to work in October, she received a corrective plan that was given to employees when an administrator noticed a deficiency in performance. In March 2012, she received an unsatisfactory annual performance review and was recommended for non-renewal. In May 2012, Caldwell received notice of the decision not to renew her contract. She filed a lawsuit, alleging that the district had retaliated against her for exercising her rights under the FMLA. The district court determined that Caldwell failed to establish a case of retaliation because she did not establish a causal connection between her FMLA leave and the district’s decision not to renew her assistant principal contract. Caldwell appealed.
On appeal, the court affirmed the district court’s decision. In reaching its decision, the district relied on evidence that Caldwell had problems with time management, cafeteria discipline, and collaborative meetings with teachers. Caldwell had been on corrective plans and had received negative ratings on her annual evaluations both prior to and after her FMLA leave. There was no evidence suggesting that the members of the board of education even had knowledge of Caldwell’s FMLA leave at the time they made the non-renewal decision. Nor was there close temporal proximity between Caldwell’s FMLA leave in October 2011 and the non-renewal decision in May 2012. As a result, the court found that Caldwell had not shown a causal connection between her FMLA leave and the board’s decision not to renew her assistant principal contract.
Ninth Circuit overturns award of attorney’s fees to school district because claims challenging sufficiency of occupational therapy recommendation under IDEA were not frivolous.
C.W. v. Capistrano Unified Sch. Dist., 9th Cir. No. 12-57135 (Mar 2, 2015).
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/02/12-57315.pdf
C.W. had cerebral palsy, a ventriculoperitoneal shunt, and a heart murmur. In 2010, the Capistrano Unified School District determined C.W. was eligible for special education and related services due to her severe health disorder. In the process of developing the individualized education plan (IEP), C.W.’s mother, K.S., disagreed with the occupational therapy (OT) portion of the IEP recommendation and requested an independent educational evaluation (IEE) for OT. The district denied the request for an IEE at public request, and filed its complaint initiating a due process hearing before an administrative law judge (ALJ). The due process hearing concerned two issues: whether the OT assessment was administered properly and in compliance with statutory requirements, and whether the 40 days that had passed between K.S.’s request for an IEE and the school district’s filing of the due process hearing was an unnecessary delay. The ALJ found for the school district on both issues.
K.S. appealed. At the trial court level, K.S. contended that the ALJ’s decision was improper because the assessment was improper and that the district’s report failed to meet statutory requirements because the report failed to include the assessor’s opinion about whether C.W. actually required special education services. The trial court affirmed the ALJ decision, denied K.S.’s request for attorney fees, and invited the district to file a request for attorney fees under IDEA because the “bases for appeal [were] frivolous.” The district filed for attorney fees, and the trial court awarded more than $95,000 in attorneys’ fees and costs to the district because each of the claims was “frivolous, unreasonable, and without foundation.” K.S. appealed to the Ninth District Court of Appeals.
Because there was little case law governing fee awards to prevailing defendants under the IDEA, the court of appeals turned to case law on the civil rights statutes after which Congress modeled the fee-shifting provisions of the IDEA. Under such case law, a “case may be deemed frivolous only when the result is obvious or the arguments are wholly without merit.” The court of appeals concluded that while K.S.’s claims were poorly pled and argued, and she ultimately lost, that did not mean such claims were frivolous. The appellate court observed that the school district admitted its report should have noted whether C.W. required “related services.” The court also noted that only three other cases had interpreted the statutory provision at issue in the case, so the legal effect of the district’s omission regarding the related services language was not clear. With respect to the 40-day delay, court cases found that delays of time periods longer than 41 days required fact-specific inquiries to determine if the delay was unreasonable. The court of appeals reversed the trial court’s award of attorney fees under the IDEA.
California court rejects parent’s discrimination and tort claims where district had no oversight over employees of non-public school.
Pantell v. Antioch Unified Sch. Dist., N.D. Cal. No. C 14-1381 PJH (Feb. 20, 2015).
http://scholar.google.com/scholar_case?case=4516450780666848060&hl=en&as_sdt=6&as_vis=1&oi=scholarr
D.P. is a student who suffers from emotional disturbance that qualifies him for special education services. The Antioch Union School District approved Tobinworld, a non-public school that offers special education and behavioral services to profoundly disabled students, to provide special education and related services to D.P. D.P. was enrolled in Tobinworld for four weeks. During that time, DP was allegedly restrained, humiliated, and denied use of the bathroom, recess, and nourishment. D.P.'s mother filed a lawsuit under federal and state disability and civil rights laws and common law tort claims. She asserts that she gave “actual notice and specific details” of the restraints and inappropriate interventions to the district, which failed to intervene on behalf of DP to ensure that he was “safely educated and his bodily integrity preserved.” The board moved to dismiss for failure to state a claim.
The court granted the district’s motion. The court rejected D.P.’s mother’s claims that the district was liable as a supervisor since there were no allegations that Tobinworld employees were subordinates of the district’s employees. The superintendent of the district did not have oversight over employees of a non-public school. The court also did not find that a special relationship existed between D.P. and the district since D.P. was not in the custody of the district. Nor was there evidence that district employees recognized that any of the Tobinworld employees posed any danger to D.P. or actually intended to expose him to the risks posed. As a result, there was no special duty imposed upon the district or its employees to protect the rights, health and safety of D.P. while he was enrolled at Tobinworld. The court found that D.P.’s mother failed to state a substantive due process claim against the district and its employees.
Third Circuit denies tuition reimbursement for parent who failed to provide advance written notice of his intent to enroll student into private school.
W.D. v. Watchung Hills Regional High Sch. Bd. of Edn., 3rd Cir. No. 14-1733 (March 6, 2015).
http://www2.ca3.uscourts.gov/opinarch/141733np.pdf
W.D.’s son was diagnosed with dyslexia and Attention Deficit Hyperactivity Disorder. He received special education services until the end of eighth grade and had an Individualized Education Plan (IEP). The IEP team met with W.D. in anticipation of his son’s move from middle school to high school. During the meeting, W.D. expressed concern in regards to his son’s poor progression in school, but there were no proposed changes to his IEP. A neuropsychological evaluation was conducted and it found that the disabilities of W.D.’s son were not being properly addressed at his school. W.D. then submitted an application for his son to attend the Forman School, a private college preparatory boarding school. The Forman School accepted the application on August 7, 2012, and W.D. signed the enrollment agreement and paid tuition for a fall seat. W.D.’s attorney sent a letter to the district informing them of his intent to privately place his son and seek tuition reimbursement from the district. The attorney also sent a copy of the neuropsychological evaluation to the district. The IEP team then met with W.D. during September 2012 and suggested that a developmental reading program be added to the IEP. W.D. requested more information about the program, but the IEP team told him the program would be research based, focused on phonic skills and comprehension, and taught by a certified teacher. At that time, the district learned that W.D.’s son was attending the Forman School’s orientation program and terminated the meeting. Subsequently, the district sent W.D. a finalized IEP, but his son began classes at the Forman School.
W.D. filed a due process hearing request seeking reimbursement for the cost of his son’s private school placement. He also claimed that his procedural due process rights were violated under the Individuals with Disabilities Act (IDEA), and his son was denied a free appropriate public education because the district refused to share basic information regarding the developmental reading program. The administrative law judge (ALJ) dismissed W.D.’s claims for reimbursement finding the notice letter to be untimely and he did not have a right to the requested information. W.D. appealed, and the district court affirmed the ALJ’s decision. W.D. appealed again.
On appeal, W.D. argued that the district court erred by dismissing his reimbursement claim. The court of appeals determined that W.D. did not follow the notice requirements because he notified the district that he intended to remove his son from the district less than 10 business days prior to his son starting orientation at the Forman School. Shortly thereafter, W.D. enrolled his son at the private school and paid tuition for the first year. The court found that W.D. did not cooperate and assist with the formulation of the IEP. The court held that the IDEA allows for reimbursement to be denied if a parent does not provide timely notice of removal of the student. Additionally, the court ruled that W.D.’s procedural rights under the IDEA were not violated when the district did not adequately respond to his inquiries regarding the reading program because he did not show any violations of an IDEA provision or regulation. As a result, the court found that W.D. was not denied an opportunity to participate in his son’s education plan. The court determined that the district informed W.D. that the reading program would use a research based methodology, would be taught by a certified special education teacher, and would focus on phonics skills and reading comprehension. The final IEP did offer an opportunity for W.D. to observe the program proposed by the district. Therefore, the court of appeals affirmed the district court’s ruling.
Ohio court of appeals determines that lower court erred when it determined it lacked jurisdiction to consider arbitrator’s decision.
Cox v. Dayton Pub. Sch.’s Bd. of Edn., 2015-Ohio-620.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2015/2015-Ohio-620.pdf
Georgia Cox was a teacher at Meadowdale High School. Cox was put on paid administrative leave pending an investigation of an allegation that she assaulted a functionally impaired student. The district’s director of human resources prepared a notice of charges and specifications against Cox and set the hearing during the pendency of the criminal case. In 2012, Cox was notified that her paid leave status would be changed to unpaid leave. The Dayton Education Association (DEA), the union representing Cox, filed a grievance against the untimeliness of the notice of charges. The DEA alleged that the collective bargaining agreement (CBA) required notice of the charges to be issued within twenty-four hours of a suspension. The notice was subsequently rescinded and reissued. Although Cox requested a continuance, the hearing was held in January of 2013.
The DEA filed two grievances disputing the district’s decision to change Cox to unpaid leave and failing to continue the hearing until the criminal case was complete. Cox received a notice of intent to terminate, and the DEA submitted the matter to arbitration. The arbitrator denied the two grievances and found that the district had good and just cause to terminate Cox. Cox filed a motion to vacate, modify or correct the arbitrator’s decision. The board filed a motion to dismiss Cox’s motion to vacate. The trial court dismissed Cox’s motion ruling that it lacked jurisdiction since she did not comply with the filing requirements under RC 2711.13. The trial court also found that the DEA had standing to pursue a review of the arbitrator’s decision. Cox appealed.
The court of appeals found that Cox filed the motion to vacate within the statutorily required time of three months of the arbitrator’s decision as required under RC 2711.13. The district argued that Cox’s compliance with the statute was not complete until the district received a copy of the motion, which did not occur until three months after the filing deadline. However, the court found that Cox complied with filing the motion timely. Service is complete when the pleading is mailed or delivered to the carrier for service. The court held that, as a teacher, Cox had standing to pursue the motion to vacate the arbitration decision. Articles 46 and 48 of the master contract of the CBA had language that specifically provided teachers with individual rights to “be notified of the intent to terminate, to attend an immediate hearing, to retain a personal attorney and to make a personal decision whether to arbitrate the termination action or whether to exercise her statutory rights instead of her contractual rights.” This provides the teacher with standing in the termination process. The trial court erred by failing to acknowledge that the CBA provided teachers with the independent right to submit his or her termination to arbitration. Determining that a teacher does not have standing to pursue a judicial review of his or her termination waives that statutory right. The court of appeals held that the trial court erred when it granted the district’s motion to dismiss because Cox complied with RC 2711.13 by filing her motion to vacate the decision within three months of the issuance of the arbitrator’s decision. Therefore, the trial court did have jurisdiction to consider the motion.
OHIO SCHOOL FACILITIES COMMISSION
Ohio court of appeals finds trial court has jurisdiction over school district’s mandamus and declaratory action against the Ohio School Facilities Commission.
State ex rel. Midview Local Sch. Dist. Bd. of Edn. v. Ohio Sch. Facilities Comm., 2015-Ohio-435.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2015/2015-ohio-435.pdf
In 2000, Midview Local School District entered into an agreement to participate in the Expedited Local Partnership Program (ELPP) of the Ohio School Facilities Commission (OSFC). Under ELPP, a school district that does not yet qualify for the Classroom Facilities Assistance Program (CFAP) can begin construction on school facilities using its own funds. Those funds are later applied to the school district’s local share of costs for the district master plan when the district enters the CFAP program. When a school district enters into ELPP, OSFC works with the district to determine the state share of funding and the district’s facilities needs, then identifies projects appropriate for ELPP. Midland’s local share of construction costs was 55%, while the state share was 45%. In conjunction with OSFC, Midview determined it would build three new elementary schools through ELPP. The project was completed in 2005. After completion, the school district noticed ice-damming and air/water infiltration problems with the roofs of the three school buildings.
In 2009, Midview entered into an agreement to participate in CFAP. OSFC did not include remediation of the roof defects in Midview’s master plan. While work was underway in 2011, Midview brought the roof defects to the attention of OSFC’s project administrator, but OSFC did not include correction of the defects in the construction plan. In October 2013, Midview expressly requested inclusion of the roof defects in the CFAP project. OSFC denied the request, indicating, “ELPP projects are district projects and remedial work and recovery for ELPP issues is a school district responsibility.”
In January 2014, Midview filed a complaint against OSFC in the Lorain County Court of Common Pleas, seeking a writ of mandamus, or in the alternative, a declaratory judgment and equitable restitution. The court of common pleas dismissed the complaint for lack of subject matter jurisdiction, finding that the plaintiff was seeking money damages against the state, and the court of claims had exclusive jurisdiction over such matters. Midview appealed.
The court of appeals reversed the trial court, finding that Midview’s complaint asserted constitutional, statutory, and contractual rights that were at issue. The district requested the court compel OSFC to complete its statutory duties, which included to properly assess the classroom facilities needs of the district, to include the roof defects in the assessment, and to fund the state share of a master plan that included the roof defects. The court of appeals noted that Midview’s action sought its proper share of the state funding it was entitled to under RC Chapter 3318, and such request was not one for money damages that would prevent the trial court from exercising jurisdiction. As a result, the court of appeals remanded the case back to the trial court.
Seventh Circuit finds that Illinois school district’s reason for firing school psychologist was a cover for a retaliatory motive.
Koehn v. Tobias, 7th Cir. No. 14-3039 (Feb. 18, 2015).
The Harvard Community Unit School District 50 hired Peter Koehn in 2005 as a school psychologist. He evaluated special education students. Although tenured staff in the district were supposed to be evaluated biennially, Koehn only received one evaluation, occurring in 2008. The evaluation criticized Koehn’s performance. He was not evaluated again until 2010, and his contract was renewed for the 2010-2011 school year. Koehn determined that the principal had cut portions of individualized instruction for some of the high school special education students. The principal held a meeting with Koehn to discuss those cuts, and Koehn expressed his concerns that the principal violated the law by reducing the amount of the instruction. The principal required Koehn to attend an investigatory meeting to discuss his job performance and other deficiencies with his conduct. The principal accused Koehn of not providing and documenting special education services, and she accused him of not following district policies in regards to attendance and using the Internet. Koehn accused the principal of trying to bully him, and he did not attend the meeting. Koehn replied to an email sent by the principal demanding the principal document that she was able to discipline and supervise him.
Subsequently, the principal recommended that the district issue Koehn a notice of remedial warning for unprofessional and insubordinate conduct. Koehn then sent an email accusing the principal of “besmirching” his professional reputation and retaliating against him because he informed the Illinois State Board of Education of his allegations regarding the principal’s conduct. The principal accused Koehn of improperly reporting his absences. The district fired Koehn from his tenured position, and Koehn filed a lawsuit alleging that he was discharged without procedural due process in retaliation for protected speech. The district court ruled against Koehn, and he appealed.
The court of appeals found that a jury could reasonably be skeptical about the reasoning for wanting to terminate Koehn. Some of the criticisms about Koehn appeared to be trivial. The court found that the district’s “sudden preoccupation” with Koehn’s performance after he was supposed to be evaluated was too convenient. Additionally, the court found a reasonable jury could find that Koehn was in fact terminated due to his speech. In regards to Koehn’s Fourteenth Amendment claim, the court found that Koehn passed over an opportunity to address the board, which foreclosed him from challenging those procedures. The court of appeals vacated the trial court’s granting of summary judgment in favor of the district on Koehn’s First Amendment claim and remanded for further proceedings while affirming the remaining judgment of the trial court.
Kentucky court finds that a reasonable jury could determine that school district’s transfer of teacher was retaliation.
Ross v. Bd. of Edn. of Mason Cty., E.D. Ky. No. 13-186-DLB-CJS (Mar. 24, 2015).
http://law.justia.com/cases/federal/district-courts/kentucky/kyedce/2:2013cv00186/73914/34/
Michael Ross taught agriculture at Mason County High School from 1987 to 2013. He was the sole instructor in the program during most of his tenure. Ross also served as a teacher representative of the Mason County Education Association (MCEA). In summer of 2012, the state auditor conducted an audit of the Mason County School District. The auditor found that administrators had paid for dinners at exclusive restaurants and nights in upscale hotels with district funds. Ross published an editorial in the local newspaper criticizing the administrators’ excessive travel expenses and the board of education’s failure to immediately remove those administrators who had used district dollars as “their own personal slush fund.”
In December 2012, Ross met with the interim superintendent and asked him to allow the MCEA to coordinate the search for the next superintendent. The interim superintendent declined the request, believing an outside entity needed to perform the search. At its meeting the same month, the board hired an independent CPA to conduct a forensic audit of the district. In February 2013, Ross made an Open Records Act request of the board chair. He requested a copy of the forensic audit and all related documents, names of current and former employees who made restitution to the district, the amount and reason for those payments, names of certified employees whose salary and/or benefits were increased above the amount received by all certified employees, and the salary and benefits for current and former certified employees who worked in district administration for the past seven years. Shortly after the report was issued, the superintendent retired.
Ross was transferred without notice to the district’s Learning Academy for the 2013-2014 academic year, which included a nearly 25% decrease in pay because he was not required to work extended days in the new position. Ross’s primary responsibilities involved directing and assisting students in self-guided online course work. He wrote the new superintendent a letter stating he believed that he had been transferred as punishment for speaking out about the district. The superintendent never responded to the letter or its allegations.
Ross filed suit against the current and former superintendent, and the district, alleging that the defendants deprived him of his rights to free speech, expression, and association under the First and Fourteenth Amendments. The court found that because the evidence was open to different interpretations, and the jury could find that Ross engaged in protected speech that motivated an adverse employment action, the First Amendment claim survived summary judgment.
The federal court found that Ross’s editorial and records request were protected activity under the First Amendment, as was his recommendation that the MCEA coordinate the superintendent search. Because Ross made the requests and recommendations outside the scope of his official duties, Ross was speaking as a citizen, not a public employee. The fact that the records request and recommendation were communicated privately to his employer did not negate the nature of the protected speech. The court also held that the subject of the speech was a matter of public concern because the records request was related to the proper expenditure of public dollars, and the superintendent search recommendation was of public concern because the selection of a qualified and honest individual was of particular importance. The court found that when balancing factors, Ross’s interest in speaking about the district’s integrity and fiscal responsibilities outweighed the district’s interest in efficiency.
The district conceded that the transfer was an adverse employment action under the law. The court found that considering the temporal proximity between Ross’s protected speech and transfer, the cool reception his statements received, and questionable reasons behind his transfer, a jury could reach the conclusion that Ross’s protected speech motivated his transfer to the Learning Academy.
Ohio court of appeals holds that the $10,000 valuation threshold set forth in RC 3313.41 determines applicability of statute to sale of property, but is not a floor for the sale price of the property.
State ex rel. Allen v. Southington Local Sch. Dist. Bd. of Edn., 2015-Ohio-959.
http://law.justia.com/cases/ohio/eleventh-district-court-of-appeals/2015/2014-t-0082.html
In January 2012, the Southington Local School District sold a piece of property to Southington Township for a purchase price of $1,379.57. The contract indicated the township would pay closing costs for the sale. The purchase price agreed to was equal to one-half of the costs associated with the lot split and survey of the property. The quitclaim deed transferring the property indicated that the property be used “solely for public purposes.” After transfer of the property to the Township, the Township entered into an oil and gas lease of the property with BP American Production Company, and received $17,121 and a royalty.
Pursuant to RC 309.13, resident and taxpayer Nolda Ray Allen filed a complaint for declaratory judgment that the sale was void and a mandatory injunction reconveying the property to the school district. Allen claimed that the sale was conducted in violation of RC 3313.41 because the statute required the property be sold for no less than $10,000. She also argued that the conveyance was, in effect, a gift of the property from the school district to the township, because of the manner in which the sale price was derived. The Trumbull County Court of Common Pleas granted summary judgment in favor of the defendants, finding that the sale and transfer of the property were “executed in accordance with the statutory authority vested in the Board of Education” and RC 3313.41(C). The trial court found that while the value of the property was over $10,000, RC 3313.41 did not require the property to be sold for at least that amount. It also found the sale was not a gift.
Allen appealed the trial court decision. On appeal, the court affirmed the trial court’s decision finding that the “clear and unambiguous language [of RC 3313.41(C)] states that property with a value of over $10,000 may be sold to various public entities ‘upon such terms as are agreed upon.” Because the statute did not address the sale price, the court reasoned the board of education was authorized to contract and dispose of the property on terms it found appropriate. “The fact that Allen disagrees with the amount of the sale price does not render it a gift,” the court stated. While the sale was below market value, the transfer was not a gift because the transfer was made for consideration.
Alabama court finds teacher’s claims of sexual harassment and retaliation are time-barred.
Edwards v. Montgomery Cty. Bd. of Edn, M.D. Ala. No. 2:13cv780-MHT (Feb. 23, 2015).
http://www.gpo.gov/fdsys/pkg/USCOURTS-almd-2_13-cv-00780/pdf/USCOURTS-almd-2_13-cv-00780-1.pdf
Cossaundria Edwards was an assistant superintendent for the Montgomery County Board of Education. She alleged Lewis Washington, another assistant superintendent for the district, sexually harassed her and that she was retaliated against for reporting the harassment. Edwards alleged that the harassment began in May 2011 and escalated through September 2011. She ultimately reported the harassment to the district superintendent in October 2011. Edwards alleged that between September 2011 and June 2012, Washington made 15-20 sexual comments to her, but conceded that the harassment stopped on its own by June 2012. In July 2012, Edwards again raised harassment concerns. She also indicated at that time that she believed other staff members were conspiring with Washington to spy on her through her electronic devices.
In August 2012, the superintendent met with Edwards to discuss transferring her to a new position in a different building. The new position had less supervisory authority but the same pay. The school district indicated it proposed the move due to concerns about a romantic relationship between Edwards and one of her direct reports, her proximity to Washington during the course of the investigation, and her proximity to Washington and the staff she believed had been spying on her. Because Edwards was tenured, the transfer was effective only if Edwards agreed to the move. Otherwise, the transfer could not be approved until she had opportunity to present objections before the school board at a hearing pursuant to Alabama law.
The day after the August 2012 meeting, Edwards submitted her resignation. Shortly thereafter, Washington was placed on administrative leave pending investigation. The school board ultimately terminated his contract. Edwards filed an EEOC charge on August 24, 2012. Edwards then sued the school district, individual school board members, the current and former superintendents, and the assistant superintendent for human resources. Her lawsuit included Title VII claims of sexual harassment, sex discrimination, and retaliation.
The court dismissed the Title VII claims against the individual defendants in their official and individual capacities because relief is granted for Title VII claims against the employer, not individuals. As to the claims against the district for a hostile-work environment, the court found that Edwards had not sufficiently established in the pleadings that some portion of the harassing behavior had occurred in the 180-day window before her EEOC filing. Further, Edwards claimed to have lost all her records of any statements, including the diary in which she memorialized Washington’s statements. The court found she would not be able to produce additional evidence that some of the harassment occurred within the statute of limitations.
The court determined that the plan to transfer Edwards was not a constructive discharge or adverse employment action for purposes of Edwards’ sex discrimination claims because Edwards resigned upon being presented a plan for transfer, and before the transfer was actually effective. Further, the court rejected the retaliation claims because Edwards did not rebut any of the reasons the school district indicated it was proposing the transfer.
Ohio school board required to produce names of replacement teachers after strike ends.
State ex rel. Quolke v. Strongsville City Sch. Dist. Bd. of Edn., Slip Opinion No. 2015-Ohio-1083.
https://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2015/2015-Ohio-1083.pdf
On February 21, 2013, the Strongsville Education Association (SEA) gave the school board 10 days notice that it would strike. The day before the strike, the board began hiring temporary replacement teachers to take the place of the striking SEA teachers. During the strike, the replacement teachers were harassed and threatened.
David Quolke, the president of the Cleveland Teacher’s Union, made a public records request through his attorneys for the names and contact information for the replacement teachers. The board did not provide the records, arguing that the records were not subject to disclosure under Ohio’s public records law because of the threat of harm to the teachers. Quolke filed a mandamus action in the court of appeals to receive the records. The court held that the board was required to disclose the names of the replacement teachers because the evidence was insufficient to establish threats of harm against the replacement teachers once the strike ended on April 28, 2013. The board appealed.
On appeal, the Ohio Supreme Court noted that although case law does provide for a right of privacy in situations where a person may be subjected to a substantial risk of serious bodily harm if personal information is disclosed. However, in this case, the court affirmed the lower court’s decision that the danger of physical harm and/or retaliation against the replacement teachers had “receded” once the strike ended. As a result, the Supreme Court found that the board was obligated to produce the relevant documents containing the replacement teachers names unredacted.
Georgia court determines that a school’s general knowledge of student-on-student sexual assault is insufficient for Title IX liability.
Doe v. Bibb Cty. Sch. Dist., M.D. Ga. No. 5:12;-CV-468 (MTT) (Jan. 28, 2015).
http://www.leagle.com/decision/In FDCO 20150129E75/DOE v. BIBB COUNTY SCHOOL DISTRICT
Jane Doe II attended Northeast High School (Northeast) as a special education student. A male student came to Doe’s class and told the teacher that another teacher needed to see Doe. The teacher allowed Doe to leave, and she was raped and sodomized by the student and five other male students. The male students were allegedly members of a gang. Doe II’s parents alleged that the district was liable for her assault because of two prior incidents of student-on-student sexual assault and the district’s response. During the first incident in 2002, a female student was allegedly raped in a girls’ restroom at a different district high school. The administrators of that school investigated, but determined that the female student agreed to have sex with a male student in the bathroom. In 2008, a second incident occurred when a female special education student was raped in the lab at the high school Doe II attends. When that occurred, the lead special education teacher and the student’s special education teacher were conducting IEP meetings.
After the two previous incidents, Northeast implemented a policy that required teachers to monitor the hallways during the beginning of their planning periods. In addition, the high school retained more campus police officers and required more radios for staff and police to communicate. Doe II and her parents presented evidence that established the teachers’ training in sexual harassment consisted of the principal reading the district’s policy to them at the beginning of the year. However, Doe II’s teacher did not receive this training because she started teaching at Northeast midway through the school year. Doe II’s parents filed a lawsuit against the district alleging the district violated Title IX.
The court noted that Title IX does not expressly authorize a private right of action, but an implied right of action for money damages does exist. Student-on-student sexual harassment may give rise to Title IX liability in certain circumstances and may be actionable if: “(1) the defendant is a federal funding recipient; (2) an appropriate person has actual knowledge of the discrimination or harassment alleged; (3) the defendant is deliberately indifferent to known acts of harassment; and (4) the discrimination is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The district contended that the parents failed to sufficiently establish that the district had actual knowledge of the harassment of Doe II. To have actual knowledge for liability purposes the federal funding recipient does not have to have knowledge of the prior harassment of the specific Title IX plaintiff, but the substance of the actual knowledge must be sufficient enough to alert the school official of the possibility of the plaintiff being harassed.
Doe II’s parents argued that the district should have anticipated the attack against her because they were aware of the past two instances of sexual harassment involving different students that took place in the district. The court found that the two previous incidents did not indicate a systemic failure that contributed to Doe II’s rape. In addition, the court determined that if the previous incidents involved the same gang that raped Doe II or involved students being released to other students without verification then there was a possibility that a genuine issue in regards to the district’s actual knowledge may be present. In this case, the previous incidents as well as Doe II’s rape resulted from the district failing to maintain adult supervision in rooms that were accessible to students. The court ruled that having general knowledge that student-on-student assaults may occur at school is insufficient to find liability under Title IX. As a result, the court granted the district’s motion for summary judgment.