In this issue: Academic Distress Commission • American with Disabilities Act • Arbitration – Teacher Transfer • Construction • Defamation • Discrimination – Disability • Due Process • Employment Discrimination – Disability • Family Medical Leave Act • Individuals with Disabilities • Individuals with Disabilities Act • Serb – Authority • Sexual Harassment • Student – Suspension • Taxation – Renewal Levy • Teacher Licensure • Title IX – Gender Identity • Title IX • Title IX – Retaliation • Title IX – Sexual Harassment • Tort Liability – Sovereign Immunity
Ohio court of appeals dismisses Youngstown City school board appeal in academic distress commission case.
Youngstown City School Dist. Bd. of Edn. v. State, 2017-Ohio-555.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2017/2017-Ohio-555.pdf
On June 24, 2015, the Ohio General Assembly passed House Bill (HB) 70, which created legislation that identified under-performing public school systems and allowed state officials to intervene to implement remedial measures. Under HB 70, Youngstown City School District met the criteria that would make it subject to appointment of both an “academic distress commission” and a chief executive officer with operational, managerial and instructional control of the district. On Aug. 21, 2015, the Youngstown City School District board of education filed a complaint for declaratory judgment and an application for preliminary injunction that challenged HB 70’s constitutionality. On Oct. 13, 2015, the trial court entered judgment denying Youngstown’s motion for preliminary injunction, having found that Youngstown failed to prove each of the four factors required for a preliminary injunction. The board appealed to the court of appeals.
The issue on appeal was whether the trial court’s order denying temporary injunctive relief was a final, appealable order over which the court of appeals had jurisdiction. The court concluded it was not a final, appealable order that supported jurisdiction and dismissed the board’s appeal. The court found that the trial court’s denial of a temporary injunction did not leave the board without recourse or effectively determine the action during the pendency of the trial court’s consideration of the legislation’s constitutionality in the underlying declaratory judgment action.
AMERICANS WITH DISABILITIES ACT
Kentucky district court grants summary judgment to board after teacher forfeits her status as qualified individual under ADA.
Hargett v. Jefferson Cty. Bd. of Edn., W.D.Ky. No. 3:14-cv-00869-CRS-CHL (Mar. 9, 2017).
http://law.justia.com/cases/federal/district-courts/kentucky/kywdce/3:2014cv00869/92728/45/
Avadawn Hargett began her employment with the Jefferson County Public Schools in Kentucky in 1987. In May 2013, Hargett requested a leave of absence under the Family Medical Leave Act (FMLA), which was granted. Hargett intended for her FMLA leave to end in August 2013. Hargett’s return date, however, was extended until September 2013 because she was scheduled to undergo knee surgery. Hargett later provided the district a series of four doctor’s notes that extended the date on which she was scheduled to return.
The district had a collective bargaining agreement that required the district to “keep the employee’s assignment available upon resumption of assigned duties provide the employee’s planned absence does not exceed ninety (90) days.” Because Hargett’s planned absence exceeded 90 days, the elementary school principal hired a new teacher to take Hargett’s third-grade teaching position.
When Hargett returned to work in November 2013, she was offered a position teaching a first-grade class. Hargett rejected the offered position, explaining that the first-grade position required more physical demands than a fourth-grade position, for which there also was a vacancy.
In January 2014, the district emailed Hargett with a job placement. The email specified that she would return from leave and report to the middle school to teach eighth-grade social studies. After about a month, Hargett was asked to participate in hall monitoring between morning classes. In April 2014, Hargett submitted a doctor’s note requiring her to avoid hall duty to reduce the risk of re-injury to her knee. The district discussed ways to accommodate her knee injury, including the use of a stool or a wheelchair. Hargett rejected these accommodations and, in December 2014, filed suit against the board of education, asserting that the district violated her rights under ADA and interfered with her rights under FMLA. In July 2014, Hargett applied for and was granted disability retirement.
Regarding Hargett’s ADA claim, the court found that Hargett was not “otherwise qualified” to perform the essential functions of a teacher because she and her physicians certified that she could not perform the essential functions of a teacher as part of her application to receive disability retirement. However, the court found there was a genuine dispute of material fact as to whether Hargett was “otherwise qualified” between the time when she took a leave of absence for her knee surgery in August 2013 and when she began receiving retirement benefits in July 2014. Despite this determination, however, the court held that because Hargett rejected the district’s reasonable accommodations, she forfeited her status as a qualified individual and summary judgment was appropriate for the district. The court also found that Hargett’s failure to show that she was subjected to an adverse employment action provided additional grounds for granting summary judgment.
The court also rejected Hargett’s FMLA claims, finding that the evidence failed to demonstrate the board denied her FMLA benefits or interfered with her FMLA rights. When Hargett requested an FMLA leave of absence, her request was granted. When Hargett requested an extension of her FMLA leave, her extension also was granted. Moreover, when Hargett attempted to return to work after a planned absence of more than 90 days, the board attempted to find her a replacement position. Because the board provided Hargett the entitlements set forth in FMLA, the court found that her interference claim failed as a matter of law. As a result, the court granted the board’s motion for summary judgment.
ARBITRATION – TEACHER TRANSFER
Arbitrator denies grievance in awarding teaching position to more qualified/less senior applicant.
In the matter of arbitration between Bristol Assn. of School Emp. and Bristol Local School Dist. Bd. of Edn., Case No. 01 16 0001 2709, Arbitrator Daniel G. Zeiser, (Dec. 15, 2016).
The Bristol Association of School Employees (union) filed a grievance with the Bristol Local School District Board of Education (board) over awarding a vacant teaching position to a less senior employee. The union argued that the board violated several sections of the negotiated agreement, focusing on a change in the job description, which the union argued should have been bargained over. The arbitrator strictly construed the contract language to support the district’s ability to modify job descriptions, the superintendent’s discretion in determining who was more qualified, and ultimately the awarding of the position to the less senior applicant. The grievance was denied.
In November, 2015, due to an anticipated retirement, the Bristol Local School District had an opening for a second-grade teaching position for the 2016-2017 school year. The grievant was an intervention specialist and special education teacher in kindergarten through third grade who was initially hired in 2011. A total of three applications were received, but the grievant had the greatest seniority of all the applicants. Ultimately, the position was awarded to a less senior teacher based on qualifications and a grievance was timely filed.
At the arbitration hearing, the union argued that the grievant was more senior and more qualified than the teacher awarded the position. When posting the vacancy, the board changed the job description to include a new PK-3 license preference. The union also argued that this change was not bargained for and discriminated against teachers over 40. The board took the position that the changes to the job description did not have to be bargained nor were they discriminatory, and that the superintendent selected the most qualified applicant for the position, as required by the contract.
The arbitrator, in reaching his decision, carefully reviewed the contract language and found it clear and unambiguous. While the district had modified (updated) the job description for elementary teacher K-6 to include a PK-3 license preference, it did not actually change the qualifications. The preference was based on changes in Ohio’s requirements. None of the applicants were considered ineligible because of the new preference and the district did not discriminate against any applicant based on age. Additionally, the contract language set forth the requirement that the district use OSBA job descriptions “when applicable.” When Ohio changed the requirements for elementary teachers’ licensure, the superintendent concluded the existing job description was no longer applicable and modified it accordingly. Nothing in the contract prohibited the employer from modifying a job description when the OSBA job description no longer applied, nor did the language require that every change be negotiated.
The contract did require the district to bargain over new positions’ job descriptions, but the arbitrator reasoned that, in this case, the position was not new and only the requirements had been modified. While the district could have chosen to bargain over, or explain, the modified requirements, it was not obligated to do so. The superintendent selected the most qualified applicant and had the right to determine qualifications of applicants for a vacancy. Seniority makes a difference only when all qualifications are equal, in his determination. The arbitrator found that the superintendent did not abuse his discretion or exercise bad faith and, therefore, declined to substitute his judgment for the superintendent’s and upheld the award of the vacant position to a less senior, but more qualified, teacher.
Court of appeals holds that School Facilities Commission has no legal duty to provide school district with funds to repair defects on a school project completed no later than 2004.
State ex rel. New Riegel Local School Dist. Bd. of Edn. v. Ohio School Facilities Comm’n, 2017-Ohio-875, 2017 Ohio App. LEXIS 860.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2017/2017-Ohio-875.pdf
Early in 2000, the New Riegel Local School District Board of Education (district) built a K-12 school building. In December, 1999, the district signed an agreement with the Ohio School Facilities Commission (OSFC), under which the OSFC pledged to provide property management and financial assistance for construction of the new school. OSFC provided 89% of the cost of the project. A number of years later (the parties could not agree whether it was two years or four years), OSFC issued a certificate of completion for the New Riegel project. The issuance of this certificate officially closed the project (Ohio Revised Code (RC) 3318.48).
In 2015, the district sought a writ of mandamus and complaint for declaratory judgment to compel OSFC to re-open the construction project to repair construction defects. OSFC filed a motion to dismiss the complaint.
The trial court dismissed the mandamus action. It concluded the district failed to establish that the commission had a legal duty to the district because the project was closed and the district had an adequate remedy at law against the involved contractors. The court also found that declaratory relief was not proper because the facts alleged by the district did not constitute a violation of law by OSFC.
The district appealed the trial court’s rulings, arguing that OSFC owed it a clear legal duty to reopen the construction project and fund the repairs to the project defects. The appeals court answered succinctly: “We disagree.”
To be entitled to a writ of mandamus, the district must establish a clear legal right to the requested relief, a clear legal duty on the part of OSFC to provide it, and the lack of an adequate remedy in the ordinary course of the law. The proof must be plain, clear and convincing before the court is justified in granting a writ. The district’s bases for its claim were that OSFC failed to properly administer the construction project, violated Section 2 of Article VI of the Ohio Constitution, resulting in disparate educational opportunities for the pupils of the district, and prevented the district from a complete educational program in violation of RC 3318.01 and 3318.03.
The appeals court concluded that the district failed to demonstrate a clear legal right requiring OSFC to reopen the project. It dismissed the request for a writ of mandamus and complaint for declaratory relief stating: “[The] factual allegations in New Riegel's complaint are void of any circumstance, event, act or failed act occurring after the issuance of the certificate of completion by the commission and prior to New Riegel's January, 2015 letter which mandates a clear legal duty on behalf of the commission to reopen the project to address the defective systems in the school.”
Court of appeals grants summary judgment to school district administrators and dismisses teacher’s defamation and false light invasion of privacy claims against them.
Dickinson v. Spieldenner, 2017-Ohio-667, 2017 Ohio App. LEXIS 664.
https://www.supremecourt.ohio.gov/rod/docs/pdf/6/2017/2017-Ohio-667.pdf
Steven R. Dickinson was a physical education teacher for Toledo Public Schools (TPS) from 1994 until Jan. 28, 2014. In Oct. 2013, Dickinson threw a dodge ball at a student and called the student a “dummy.” Following the incident, Cheryl Spieldenner, Chief Human Resources Officer for TPS, sent an educator misconduct reporting form describing the incident to the Ohio Department of Education. In the form, Spieldenner indicated that Dickinson had engaged or may have engaged in conduct unbecoming to the teaching profession. She stated that, prior to the incident, Dickinson had “multiple charges against him” and “has been subject to multiple investigations for a variety of reasons by the Lucas County Children Services Board (LCCS).”
Following an internal TPS hearing, the hearing officer issued a recommendation that TPS terminate Dickinson. The hearing officer based her recommendation on Dickinson’s history of use of excessive force against students. She also noted that LCCS investigated Dickinson twice, including one investigation regarding allegations of sexual abuse. TPS subsequently terminated Dickinson’s employment. The termination was upheld through mediation at the local and state levels.
In Oct. 2014, Dickinson brought claims against TPS, Spieldenner, the hearing officer (Carol Thomas), and TPS assistant superintendent (Diane Irving), who testified against him in the TPS internal hearing. Dickinson claimed that the statements contained in TPS documents were either incomplete or inaccurate, and resulted in defamation causing him economic damages and medical injury. Dickinson also claimed false light invasion of privacy.
TPS, Spieldenner, Thomas, and Irving filed a motion for summary judgment with the Lucas County Court of Common Pleas. The court granted the motion for summary judgment on all of Dickinson’s claims.
The appeals court reviewed Dickinson’s evidence and arguments in the light most favorable to him. It applied the five-part test for establishing defamation. The plaintiff must show that: (1) a false statement of fact was made; (2) the statement was defamatory; (3) the statement was published; (4) the plaintiff suffered injury as a proximate result of the publication; and (5) the defendant acted with the requisite degree of fault in publishing the statement. Upon review, the court concluded that TPS’s employees’ statements were true, and that any omitted information did not result in defamation. The court also upheld the trial court’s conclusion that Dickinson did not establish false light invasion of privacy.
Tennessee court upholds teacher dismissal despite claims of sexual harassment and discrimination.
Webb v. Shelby Cty Schools, W.D.Tenn. No. 2:16-cv-2033-JPM-dkv, 2017 U.S. Dist. LEXIS 24620 (Jan. 31, 2017).
https://www.gpo.gov/fdsys/pkg/USCOURTS-tnwd-2_16-cv-02033/pdf/USCOURTS-tnwd-2_16-cv-02033-0.pdf
Jacquelyn Webb was hired as a teacher in 2007 and assigned to a number of different buildings in the school district over the following seven years. After several letters of reprimand, investigations, excessive absences, complaints and performance issues, Webb was suspended and ultimately dismissed by the district in 2014. Following her dismissal, Webb filed a claim with the Equal Employment Opportunity Commission (EEOC) alleging sex and age discrimination, and retaliation for her disclosure of her principal’s relationship with another teacher. The school district moved for a summary judgment.
The court noted that in order to establish a prima facia case of sex discrimination, Webb had to show that: 1) she was a member of a protected group; 2) she was subjected to an adverse employment decision; 3) she was qualified for the position; and 4) similarly situated non-protected employees were treated more favorably. The court noted that Webb satisfied the first prong of the test easily, and met the second prong with her claim that she was suspended and ultimately terminated when she revealed her principal was having a sexual relationship with the school’s librarian.
However, Webb failed to provide any facts to prove that non-protected employees were treated more favorably. She simply stated that she was “discriminated against because of [her] sex.” The court deemed this a conclusory statement that does not suffice to defeat a summary judgment motion. The court then considered whether Webb made a case for a hostile work environment, but could find only one possible sex-based comment to support that claim and the comment was not mentioned in Webb’s EEOC charge or complaint.
Lastly, the court looked at the retaliation claim, but found that the termination action took place after she retired and the district had provided numerous legitimate, non-discriminatory reasons for its actions. The court granted the district’s motion for a summary judgment.
District court dismisses former school employee’s claims of discrimination against school district for failure to state a claim upon which relief can be granted.
Johnson v. Shelby Cnty. Schools, W.D.Tenn. No. 17-2144-JTF-dkv, 2017 U.S. Dist. LEXIS 55065 (Mar. 9, 2017) [report of magistrate judge], No. 2:17-cv-02144-JTF-dkv, 2017 U.S. Dist. LEXIS 55728 (Apr. 11, 2017).
https://casetext.com/case/johnson-v-shelby-cnty-sch-1 (report of magistrate judge); https://scholar.google.com/scholar_case?case=9913595324733854743&hl=en&as_sdt=6&as_vis=1&oi=scholarr (decision)
Brenda Johnson was employed by the Shelby County Schools (SCS) as a teacher’s aide for more than 23 years. On Nov. 13, 2013, SCS terminated her employment. On Mar. 2, 2017, Johnson filed a pro se complaint alleging that she was terminated, in violation of Title VII of the Civil Rights Act and the American with Disabilities Act (ADA), alleging discrimination on the bases of religion and perceived disability.
Under Local Rule 4.1(a), the court was required to screen Johnson’s pro se complaint in forma pauperis. The court was required to dismiss any complaint or portion of a complaint if the action: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from that relief. The magistrate judge completed the required screening and issued a report and recommendation. She concluded that Johnson failed to state any claims upon which relief could be granted.
Regarding the allegation of religious discrimination in violation of Title VII, Johnson claimed that her employment was terminated because of the spiritual and religious beliefs of another SCS employee. In order to state a claim for religious discrimination under Title VII, a plaintiff must show that she: 1) holds a sincere religious belief that conflicts with an employment requirement; 2) has informed the employer about the conflicts; and 3) was discharged or disciplined for failing to comply with the requirement. The magistrate judge and court concluded that Johnson’s complaint did not allege that she was terminated because of any religious belief or that SCS was aware of her beliefs.
Regarding Johnson’s claim that she was terminated because of discrimination based on perceived disability, the magistrate judge turned to the disability discrimination language in the ADA, which prohibits discrimination against a qualified individual in relation to the person’s employment on the basis that the person has an impairment or is regarded as having an impairment. In order to establish a prima facie claim of discrimination, the plaintiff must show that: 1) she is disabled; 2) she is otherwise qualified for the position; 3) she suffered an adverse employment decision; 4) the employer knew or had reason to know of her disability; and 5) the position remained open while the employer sought other applicants or the employee was replaced.
The magistrate judge concluded, and the court agreed, that Johnson did not offer direct evidence that showed a discriminatory motive by SCS. Further, the magistrate judge and court concluded that Johnson did not offer sufficient evidence to establish that SCS failed to accommodate her disability. The court dismissed Johnson’s complaint.
Ohio appeals court finds that due process hearing request must be received by ODE within 30 days.
McClendon v. Ohio Dept. of Edn., 8th Dist. Cuyahoga No. 104292, 2017-Ohio-187.
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2017/2017-Ohio-187.pdf
Edwina McClendon was employed as a teacher under a kindergarten through elementary teaching certificate. On Dec. 12, 2013, the Ohio Department of Education (ODE) sent McClendon a notice of opportunity for hearing informing her that the board was considering suspension, revocation or permanent revocation of her teaching certificate relating to an allegation that she failed to appropriately supervise a five-year-old kindergarten student who, as a result, was found wandering alone in the community. The notice provided that McClendon’s request for a hearing needed to be made in writing and received in ODE’s offices within 30 days of the date of mailing of the notice.
On Jan. 16, 2014, 35 days after the notice was dated, the Board received a letter from McClendon requesting a hearing. McClendon was notified that her request would not be honored because it was not timely. The hearing proceeded without McClendon. The hearing officer concluded that McClendon did fail to appropriately supervise the student, her actions were conduct unbecoming her position, and as a result, recommended permanent revocation of her education license based on the nature and seriousness of her conduct. McClendon filed objections to the hearing officer’s report, but the Board agreed with the report and recommendation and ordered that she be permanently ineligible to apply for any license issued by the board. McClendon then appealed to the common pleas court, which affirmed the board’s decision, leading to this appeal.
The appellate court noted that its review is limited to whether the trial court abused its discretion by issuing a judgment that is unreasonable, arbitrary or unconscionable. The court noted that due process requires a governmental agency to provide an individual reasonable notice and an opportunity to be heard prior to action depriving an individual of liberty or property.
On appeal, McClendon argued the notice she was provided was constitutionally inadequate because it didn’t adequately inform her of the requirement to request a hearing. She also argued that she made timely written and oral requests for a hearing, and because the Board had discretion whether or not to strictly enforce the 30-day requirement, she was wrongly denied participation in the hearing. The court disagreed with these arguments citing the fact that ODE’s notice satisfied the statutory due process requirements and provided McClendon proper notice and information about the process to request a hearing. Reviewing the 30-day timeline, the court noted that the deadline for ODE to receive McClendon’s hearing request would have been Jan. 12, 2014, but the record shows she didn’t even mail the request until Jan. 13, 2014.
In regards to McClendon’s argument that the board had discretion to determine whether or not to enforce the 30-day requirement, the court noted that the rule McClendon cited applies only to documents filed after a request for an administrative hearing has been received. As a result, the court found the board did not have the alleged discretion to allow McClendon to participate in a hearing when she failed to make a timely hearing request.
McClendon then argued that permanent revocation of her teaching license was an abuse of discretion. The court, however, found that the trial court did not abuse its discretion in finding the board’s decision appropriate given the facts that, based on school policy, the student was McClendon’s responsibility, and the Cuyahoga County Department of Children and Family Services conducted an investigation and found allegations of child neglect against McClendon in this situation to be substantiated. In its review, the court went on to discuss some of the factors the board considers when evaluating instances of conduct unbecoming to the teaching profession, noting that three of those factors applied in this case.
Finally, McClendon argued that permanent revocation of her license was too harsh a punishment. The court did not agree, citing the fact that the board may take into account mitigating and aggravating factors, and that in considering those factors, such as the student’s age, the serious harm that could have resulted, and McClendon’s apparent lack of concern for the safety and welfare of students, the situation was aggravated and permanent licensure revocation was appropriate.
The dissenting judge disagreed, citing the fact that the 30th day fell on a Sunday, and arguing that Jan. 13, 2014 should have been counted as the 30th day. The dissenting opinion also states that ODE’s notice was not in compliance as it only discussed when the hearing is requested, not when the request for hearing is considered received. As a result, the dissent suggests McClendon’s due process rights were violated when she wasn’t given the opportunity to participate in the hearing.
Sixth circuit court concludes that a teacher is not denied Fourteenth Amendment due process following a 10-day suspension because suspension without demotion or discharge does not infringe on a property right.
Potts v. Gobles Pub. School Dist., 6th Cir. No. 17a0053n.06, 2017 U.S. App. LEXIS 1350 (Jan. 23, 2017).
http://law.justia.com/cases/federal/appellate-courts/ca6/16-1896/16-1896-2017-01-23.html
Michael Potts was employed as a teacher for the Gobles Public Schools (GPS) since 1966. On Nov. 11, 2013, a student complained that Potts had slapped her arm. Potts claimed that the slap was done in a joking manner with no intent to harm. He was placed on administrative leave and, subsequently, given a written reprimand, suspended without pay for 10 days, and advised that the slap was unprofessional conduct. Potts also was removed from his position as basketball coach and received a minimally effective rating on his annual performance review for the 2013-14 school year. He was placed on a personal improvement plan for the 2014-15 school year.
Potts filed a complaint against GPS, the board of education, individual board members, and the superintendent. He alleged that the unpaid suspension deprived him of a property interest without due process. The defendants submitted a motion to dismiss for failure to state a claim for relief. The district court granted the motion on the basis that Potts’ 10-day suspension did not interfere with his property interest in his continued employment.
The circuit court agreed with the district court. The plaintiff’s property interest was created by Michigan law, which stated that a teacher on continuing tenure “shall be employed continuously” by the board and “shall not be dismissed or demoted” except as allowed by law. Potts argued that the 10-day suspension was sufficient interruption to his continuous employment that he was entitled to due process relative to the suspension.
The court concluded that employment is a binary concept—one is either employed by an employer or not employed by the employer. Although Potts was suspended by GPS, he never ceased to be an employee, so his property interest in his employment was never threatened. Had GPS sought to dismiss or demote Potts, he would have been entitled to due process.
EMPLOYMENT DISCRIMINATION – DISABILITY
District court finds school district did not discriminate against school security officer who could no longer perform essential duties of his position due to a restriction from breaking up fights.
Townsend v. Cleveland Metro. School Dist., N.D.Ohio No. 1:15 CV 2469, 2016 U.S. Dist. LEXIS 172773 (Dec. 14, 2016).
Remus Townsend began working for the Cleveland Metropolitan School District in 2003 as an instructional assistant. In 2011, during his employment as a school security officer, he sprained his right finger while breaking up a fight at the school. As a result, Townsend took medical leave and filed a workers’ compensation claim. His doctor later said that he could return to work, but was restricted from breaking up student fights. Townsend alleged that after that time, his supervisor made inappropriate comments about him and his workers’ compensation claim. He reported this behavior to the district.
Townsend later applied for substitute teacher and teacher assistant jobs, but was not offered either of the positions. In Aug. 2013, he requested paperwork for leave for his medical condition while he searched for another job. The district did not process this leave request. The district terminated Townsend’s employment as a security officer on Aug. 12, 2013, citing the fact that he couldn’t perform the essential functions of his position as a security officer since he was permanently restricted from breaking up fights. Townsend’s complaint asserted five claims, including disability discrimination and failure to accommodate.
In regards to Townsend’s disability discrimination claim, the district argued that he did not have a disability. The court agreed with this argument, citing lack of an impairment that substantially limits a life activity. Townsend could not meet the burden to prove that he was in fact disabled. The court noted that even if Townsend was disabled, he could not show that he was otherwise qualified for the position with or without reasonable accommodation, because being able to break up fights is an essential duty of a school security officer.
For his failure to accommodate claim, the court also found that Townsend failed to show that he was disabled. The district also argued that Townsend never requested an accommodation. As a result, the court found Townsend’s failure to accommodate claim failed because he did not request a reasonable accommodation.
Ohio district court grants summary judgment for district when board established legitimate, non-discriminatory reasons for non-renewing teaching contract.
Gardner v. Summit Cty. Edn. Serv. Ctr., N.D.Ohio No. 5:15CV1270 (March 14, 2017).
https://casetext.com/case/gardner-v-summit-cnty-educ-serv-ctr
In 2009, Devin Gardner was hired by the Summit County ESC as a long-term substitute in an intervention preschool classroom. Gardner was later placed in a full-time position as a preschool teacher in the Tallmadge City School District. Throughout his year with Tallmadge, district personnel made multiple complaints about Gardner’s behavior and poor performance as a preschool teacher. Throughout the fall of 2012, administrators sent various emails to Gardner regarding his performance and the district’s expectations.
On Feb. 7, 2013, Gardner underwent prescheduled wrist reconstruction surgery. Gardner believed he would be recovering for two to three weeks. Gardner prepared a binder with three weeks of lesson plans and spoke to the board’s secretary to arrange a substitute, but never communicated his absence to human resources. On Feb. 19, 2012, Gardner’s physician provided Gardner with a “workability” form allowing him to return to work. He returned to work on Feb. 25 and worked a half-day on Feb. 26. Around this time, Gardner informed administrators that his recovery had complications and that he was going to need a two-month absence from work. On Feb. 28, the board’s human resources director contacted Gardner because she “became aware of the need to contact him because he had been out for surgery.” The two were able to develop a plan that permitted Gardner to perform light-duty work and utilize paid leave when necessary. In April, Gardner was placed on full-time FMLA leave.
Within a few weeks of returning from FMLA leave, Gardner was placed on a “plan of assistance,” which was designed to “assist teachers in their craft.” The plan of assistance specifically documented deficiencies in Gardner’s performance. In February 2014, the board did not feel that Gardner was progressing with the plan. Gardner was rated as an “ineffective” teacher on his year-end final evaluation and his contract was non-renewed by the board of education in April 2014. Gardner filed a complaint alleging, among other things, interference with FMLA and retaliation for using FMLA leave. The board moved for summary judgment.
The court granted the board’s motion for summary judgment, finding that Gardner was unable to demonstrate a genuine issue of material fact on his claim for interference with FMLA. Additionally, the court found that the board had a legitimate, non-discriminatory reason for placing Gardner on the plan of assistance and for ultimately non-renewing his contract. The court cited the fact that Gardner’s performance issues existed and were documented well before Gardner notified anyone about his surgery, and lasted for more than 18 months after Gardner was initially made aware of the issues needing improvement.
U.S. Supreme Court concludes that, to provide FAPE to a student with a disability, a district must offer an IEP reasonably calculated to enable the student to make progress appropriate to the child’s circumstances.
Endrew F. v. Douglas County School Dist. RE-1, ___ U.S. ___, 137 S.Ct. 988, 2017 U.S. LEXIS 2025 (Mar. 22, 2017).
https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf
Endrew F. was diagnosed with autism at age two. He attended school in the Douglas County School District from preschool through fourth grade under an individualized education program (IEP) updated each year. When the school district presented its proposed IEP for fifth grade, Endrew’s parents felt that it was essentially the same as his past IEPs, under which he was not making educational progress.
Endrew’s parents removed him from the district and enrolled him at a private school that specializes in educating children with autism. Endrew’s parents subsequently asked for reimbursement for Endrew’s tuition at his new school on the basis that he was denied a free appropriate public education (FAPE) because the district’s IEP did not meet the standard established in Board of Education of the Hendrick Hudson Central School District v. Rowley. In Rowley, the Supreme Court held that an IEP must be “reasonably calculated to enable the child to receive educational benefits.”
he administrative law judge for the state of Colorado concluded that Endrew F. was not denied FAPE. Endrew’s parents sought review of the decision in federal district court, which affirmed the administrative law judge’s decision. The district court said that modifications to Endrew’s previous IEPs showed “a pattern of, at least, minimal progress.” The district court decision was affirmed by the 10th Circuit Court of Appeals, relying on language in Rowley that stated that instruction and services to children with disabilities must be calculated to confer “some educational benefit.” The court stated that a child’s IEP is adequate if it is calculated to confer an educational benefit that is “merely . . . more than de minimis.”
In its decision, the Supreme Court rejected the standard fashioned by the 10th Circuit. The court stated that a student offered an education program providing merely more than de minimis progress from year to year “can hardly be said to have been offered an education at all.” Quoting Rowley, the court noted that, for children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’” The court declined to elaborate on what appropriate progress means on a case-by-case basis. It stated that the adequacy of an IEP depends on the circumstances of the child for whom it was created.
Finally, the court cautioned that the absence of a bright-line rule is not an invitation to courts to substitute their own notions of educational policy for those of the school authorities they review. The opinion concludes that the Individuals with Disabilities Education Act (IDEA) “vests [school authorities] with responsibility for decisions of critical importance to the life of a disabled child. The nature of the IEP process … ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue.… [S]chool authorities will have … a complete opportunity to bring their expertise and judgment to bear on areas of disagreement.” Courts reviewing disputes about IEPs after this process may “fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP” meets the standard set by this decision.
U.S. Supreme Court holds that a plaintiff need not exhaust remedies available under IDEA when relief under IDEA is not sought and the lawsuit’s basis is something other than a denial of FAPE.
Fry v. Napoleon Community Schools, ___ U.S. ___,137 S.Ct. 743, 2017 U.S. LEXIS 1427 (Feb. 22, 2017).
https://www.supremecourt.gov/opinions/16pdf/15-497_p8k0.pdf
When E.F., a student with cerebral palsy, was in kindergarten, her parents, Stacy and Brent Fry, asked the school she attended, Ezra Eby Elementary School, to allow her service dog, Wonder, to accompany her to school. Although it allowed Wonder to attend on a trial basis, the school did not allow him to assist E.F. with many of the tasks he was trained to perform.
Following the trial period, the school declined to allow Wonder to continue to attend school with E.F. The Frys removed E.F. from Ezra Eby and homeschooled her until they found another school, in another district, that welcomed Wonder.
The Frys sued the local and regional districts in which E.F.’s former elementary school was located. The complaint alleged that the school districts violated Title II of ADA and Sec. 504 of the Rehabilitation Act by denying E.F. equal access to the school and its programs, refusing to reasonably accommodate E.F.’s use of a service animal, and discriminating against E.F. as a person with disabilities.
The districts filed a motion to dismiss the Frys suit. The motion asserted that the Frys were required, by Sec. 1415(l) of the Individuals with Disabilities Education Act (IDEA) to exhaust administrative remedies in IDEA before filing suit under ADA and Sec. 504. The district court granted the districts’ motion. The court of appeals affirmed, holding that Sec. 1415(l) applies if the injuries alleged in a suit “relate to the specific substantive protections of the IDEA.”
In an opinion written by Justice Kagan, the U.S. Supreme Court remanded that case to the appeals court for additional review. The Supreme Court held that a plaintiff need not exhaust IDEA’s remedies provided “the gravamen of the plaintiff’s suit is something other than denial of IDEA’s core guarantee of FAPE.” Exhaustion of IDEA’s remedies is required only when the plaintiff seeks relief available under IDEA.
To establish the scope of the exhaustion language in IDEA, the court said, one must identify whether the crux of a lawsuit seeks relief for the denial of FAPE. If so, the plaintiff cannot bypass the exhaustion requirements in IDEA by suing under other statutes. The court set forth two questions to determine whether a complaint against a school concerns the denial of FAPE or addresses disability-based discrimination:
- Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?
- Could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance?
If the answer to these questions is yes, the complaint is unlikely to be truly about the denial of FAPE. When the answer is no, the complaint probably does concern FAPE.
When the Supreme Court applied these two questions to the Frys’ complaint, it concluded that the answer to both is yes, suggesting that the Frys’ complaint is not truly about the denial of FAPE. However, the court also noted that, if the plaintiffs had pursued administrative remedies under IDEA before bringing their current suit, it would be evidence that the substance of the complaint is the denial of FAPE, even if the complaint does not use that term.
The court remanded the case to the court of appeals for an analysis of whether the crux of the Frys’ complaint is the denial of FAPE, even though the complaint makes no reference to the adequacy of the special education services E.F.’s school provided. The court specifically charged the appeals court with determining: 1) whether the Frys invoked IDEA’s dispute resolution process before filing suit under ADA and Sec. 504; and 2) if so, whether pursuing that process reveals that the essence of their complaint is the denial of FAPE.
INDIVIDUALS WITH DISABILITIES ACT
Tennessee district court grants district’s motion to dismiss and rejects complaint alleging that formulaic policy was aimed at removing or reducing related services.
T.D. v. Rutherford Cty. Bd. of Edn., M.D.Tenn. No. 3:16-cv-1488 (Jan. 9, 2017).
https://casetext.com/case/td-v-rutherford-cnty-bd-of-educ
T.D. was a student with an intellectual disability and substantial needs in gross and fine motor control. She required directional assistance, was not toilet-trained, was non-verbal, and had limited ability to sit, stand, stomp, clap or use school tools without hand-over-hand assistance. T.D., who was in elementary school, had an IEP that provided her with special education and related services.
In June 2016, T.D., by and through her parents, filed a proposed class action against the Rutherford County Board of Education in Tennessee, claiming that a senior occupational therapist employed by the district disseminated a formulaic policy that aimed to remove or reduce related services to save money for the district. The policy evaluated factors such as whether the goals of the student remained static over an extended period and whether the special education staff was trained to provide the interventions that the related service provider initiated. T.D. complained that the formulaic approach violated IDEA because a student’s goals should never be static over an extended period. The complaint also alleged that the district contracted with an insufficient number of physical therapists, but did not provide any details arguing that students were receiving inadequate services.
Based on these allegations, the complaint requested a declaratory judgment that the board’s policies, actions and practices violated IDEA. The board filed a motion to dismiss in July 2016, arguing that T.D. failed to state a claim due to failure to exhaust administrative remedies.
The court granted the district’s motion to dismiss acknowledging that administrative exhaustion of an IDEA claim is not required “when it would be futile or inadequate to protect the plaintiff’s rights.” However, the court found that the district’s policy did not provide the basis to support this type of challenge. Instead, the policy language described an individualized process for determining related services for students. There was no blanket denial of services.
The court also acknowledged that neither IDEA nor Tennessee special education laws prohibit a student’s goals from remaining static, so long as that’s what the student’s IEP team believes to be appropriate. In denying the complaint, the court also found that there were “simply no factual allegations in the complaint to show that additional providers are actually needed or that any student…is not getting the services he or she needs.” As a result, the court found that the proper forum to challenge the services specifically provided to T.D. was an individual administrative hearing.
Appellate court finds the State Employment Relations Board (SERB), not the courts, has subject matter jurisdiction for any claims arising from the terms of a collective bargaining agreement.
Fairland Assn. of Classroom Teachers, OEA/NEA v. Fairland Local School Bd. of Edn., 4th Dist. Lawrence No. 15CA23, 2017-Ohio-1098.
https://casetext.com/case/fairland-assn-of-classroom-teachers-v-fairland-local-sch-bd-of-educ
After a teacher was notified of the nonrenewal of his supplemental contract as an athletic director past the contractual deadline, the association filed a grievance. The board of education denied the grievance at a hearing. The association filed suit against the board, alleging breach of the Master Agreement and seeking a supplemental contract for the teacher, along with back pay, benefits and a declaration that the board must abide by the terms of the agreement.
The board then filed a motion to dismiss the complaint for lack of subject matter jurisdiction. The common pleas court granted the motion and the association appealed to the trial court, who also dismissed the complaint for lack of subject matter jurisdiction. An appeal was timely filed, with the assignments of error focusing on the issue of whether the lower court had subject matter jurisdiction over the original breach of contract and declaratory judgment claim.
The appellate court noted that the association’s complaint for breach of contract and declaratory judgment alleges two violations of the terms of the parties’ collective bargaining agreement. Ohio Revised Code (RC) 4117.09(B)(1) provides that a party to a collective bargaining agreement “may bring suit for violations of agreements…in a court of common pleas of any county wherein a party resides or transacts business.” The board argued that the association’s complaint did not assert any claims independent of the collective bargaining agreement and that Ohio law clearly provides that SERB has exclusive jurisdiction over claims dependent on bargaining rights created by RC 4117.
The court considered similar cases and found that although the master agreement did not provide for final and binding arbitration, and the contract contained language that did not limit the ability of the association to file a breach of the agreement under RC 4117(B)(1), the dispositive issue remained whether the association’s claims arose from, or were dependent on, collective bargaining rights. All of the issues in contention between the parties were terms of their contract and the teacher initially sought resolution through another term of the contract, the grievance procedure. As such, jurisdiction of the association’s claims lies exclusively with SERB and not the courts. The appellate court affirmed the trial court’s decision in favor of the board.
Franklin county district court finds extensions to a collective bargaining agreement do not affect the expiration date of the original agreement.
State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Ohio State Emp. Relations Bd., 10th Dist. Franklin No. 16AP-492, 2017-Ohio-448.
The Municipal Construction Equipment Operators’ Labor Council (MCEO) filed a complaint against SERB on July 5, 2016, seeking to order SERB to vacate an earlier order to direct a mail ballot election and to order SERB to provide a hearing pursuant to Ohio Administrative Code (OAC) 4117-5-05 before considering the petition. At issue was a representation election between MCEO and a rival union. MCEO represented certain City of Cleveland employees under a collective bargaining agreement (CBA) between Mar. 31, 2013 to Mar. 31, 2016. The rival union filed a representation petition on May 4, 2016. During this time, the city and MCEO were operating under an extension to the original contract.
The magistrate, in focusing on the core issue of a representation election, noted that SERB cannot conduct a representation election during the term of a lawful CBA, but extensions of agreements do not affect the expiration of the original agreement. The magistrate pointed out that, while the terms of an expired CBA continue in full force during a post-expiration negotiation period, the court is not compelled to conclude that the duration or term of the agreement itself has not expired. As such, while the status quo may continue, SERB is free to undertake actions consistent with a new representation election. The magistrate granted SERB’s motion to dismiss MCEO’s complaint on that basis.
District court of appeals affirms summary judgment for board of education on hostile work environment based on sex claims because the actions were not severe and pervasive enough to affect employment.
Janiszewski v. Belmont Career Ctr., 2017-Ohio-855.
http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2017/2017-Ohio-855.pdf
Karin Janiszewski was employed by the Belmont Career Center as a full-time broadcast journalism/entertainment marketing teacher until 2013 when the career center board of education did not renew her contract. The non-renewal was based on Janiszewski’s failure to renew her teaching license by Apr. 15, 2013, as required by the collective bargaining agreement (CBA). Her license did not expire until June 2013, but the April 15 deadline was put in the contract to avoid past licensure situations the district experienced and assure time to hire qualified candidates if the current teacher’s contract was not renewed.
Janiszewski was involved in a horseback riding accident in Nov. 2012 which, according to her, hindered her ability to complete all of the work required to meet the Apr. 15, 2013 deadline. She did complete the necessary work prior to her license’s June 2013 expiration. The board still declined to rehire or interview her for her former teaching position and instead hired another candidate.
In July 2013, Janiszewski filed a grievance, which resulted in a settlement stating that she will release the board and its administrators from any and all grievances, demands or causes of action, known or unknown, related to the collective bargaining agreement in effect between the board and teachers’ association.
On January 15, 2015, Janiszewski filed an eight-count complaint against the board, alleging hostile work environment based on sex, disability discrimination, defamation, fraud, wrongful termination, constitutional violation, malicious prosecution and false imprisonment. The board answered and asserted numerous defenses, including privilege, accord and satisfaction, immunity and the arbitration settlement. The board also moved for judgment on six of the charges, which were sustained in part and overruled in part. The remaining charges, hostile work environment, disability discrimination, defamation, fraud and false imprisonment, were remanded to the trial court.
The trial court issued a summary judgment on all remaining claims, finding Janiszewski could not produce evidence that the alleged harassment was based on sex nor that the conduct was so severe or pervasive as to be actionable. Nor did the trial court find that Janiszewski was qualified for a succeeding contract since she had missed the Apr. 15 deadline. The defamation claim failed because the Board did not publish any false statements, the fraud claim failed because Janiszewski never received a representation from a decision maker and the settlement of her grievance included an explicit nondiscrimination clause.
Janiszewski appealed and the seventh district appellate court carefully reviewed the hostile work environment sexual harassment claims. In order to establish a prima facie case, the conduct needed to be sufficiently severe or pervasive to create an abusive work environment. The trial court concluded that while the school district’s practices were not best practices, and the court did not approve of them, the conduct was not pervasive. The appellate court noted that, even when viewing the facts in Janiszewski’s favor, the district’s actions, while inappropriate, were not severe. However, the appellate court did find that the grievance settlement did not prevent her from pursuing a statutory discrimination claim because the contract language was not specific enough to settle the statutory claims. The appellate court concluded that, although the settlement agreement would have allowed Janiszewski to pursue a statutory claim, it was not required to reverse the trial court’s grant of summary judgment for the district. The appellate court affirmed the lower court’s decision in favor of the school district.
Parents of suspended student have a 90-day period during which to appeal a state review officer’s decision.
Loper v. Cleveland Metro. School Dist., N.D.Ohio No. 1:16CV1349, 2017 U.S. Dist. LEXIS 26160 (Feb. 24, 2017).
Latasha Loper’s son was involved in an incident in which the police were called to school on Oct. 22, 2015. Her son was suspended and Loper requested an administrative review. Following the review, Loper’s son was to undergo a functional behavior assessment (FBA), but Loper still sought to have the suspension removed from her son’s records. After further administrative review, a state review officer denied her request. Loper then brought a pro se case to challenge that decision.
The district responded by seeking to have the case dismissed because it was file beyond the 90-day deadline to do so. The court summarily noted that Loper instituted the action to appeal the administrative decision of Feb. 11, 2016, on June 3, 2016, which was 113 days after the decision was issued. Loper argued the court should excuse the neglect of a party who fails to file a timely claim in certain circumstances, and that the court should toll the statute of limitations on equitable grounds so she could be allowed the ability to appeal in this situation. The court granted the school district’s motion to dismiss, pointing out the case had already been heard by two different administrative hearing officers and that the very statute that allowed Loper to file the claim in court dictated the 90-day limitation.
Ohio supreme court finds a school district has no legal right to relief and the tax commissioner has no legal duty to act where a county board of elections fails to include a renewal levy on all counties’ ballots in a multicounty school district.
State ex rel. Delaware Joint Vocational School Dist. Bd. of Edn. v. Testa, 2017-Ohio-796.
https://casetext.com/case/state-ex-rel-del-joint-vocational-sch-dist-bd-of-educ-v-testa
This case involves a renewal levy passed in Nov. 2015 by the Delaware Area Career Center (DACC). Ninety-nine percent of DACC’s territory is in Delaware County, while less than 1% falls in Franklin, Marion, Morrow and Union Counties combined (DACC Territory). The school district met all of its obligations regarding the tax levy, but the Delaware County Board of Elections (DCBOE) failed to place the levy on the ballots in Franklin, Marion, Morrow and Union Counties. The levy passed by more than 10,000 votes. Even if all of the 1,026 registered voters in DACC’s territory in Franklin, Marion, Morrow and Union counties had voted against the levy, it still would have passed by a large margin (9,618 votes).
DCBOE certified the election results using Form 125, which reported the result of the levy vote in Delaware County. As a result of DCBOE’s failure to include the levy on the other counties’ ballots and submit Form 5-U, which the Secretary of State uses for certifying election results in multicounty elections, the tax commissioner refused to certify and levy the tax from it. As a result, DACC filed a mandamus action to compel the tax commissioner to apply the reduction factors and calculate tax rates for the levy. OSBA’s legal assistance fund submitted a memorandum in support of DACC.
A writ of mandamus requires a relator to establish: 1) a clear legal right to requested relief; 2) a clear legal duty on the part of the respondent; and 3) lack of an adequate remedy in the ordinary course of the law. Here, DACC argued that the tax commissioner had no authority to question the validity of the election because DCBOE certified the results. DACC also argued that it was the tax commissioner’s mandatory ministerial duty to apply reduction factors and calculate tax rates and, as a result, it had a clear legal right to performance of that duty.
The court in a 4-3 decision held that the tax commissioner could not be compelled to calculate tax rates when DCBOE had not certified the election results from all five counties in the multicounty school district. The court noted that the tax commissioner's statutory obligation to calculate tax rates in multicounty districts didn't arise because he could not determine that the tax had been authorized to be levied due to the fact that DCBOE did not use the appropriate form (Form 5U) prescribed by the Ohio Secretary of State.
In a dissenting opinion, Chief Justice Maureen O'Connor (joined by Justices Judith L. French and Patrick F. Fischer) cited the fact that even if all of the 1,026 registered voters in the other counties had voted against the levy, it still would have passed. The dissenting opinion also disputed the majority's assessment that Form 5U was required, arguing the county also had the option of using Form 125, and that, because DCBOE properly submitted Form 125 to the Ohio Department of Taxation, the tax commissioner did have a clear legal duty to calculate the tax rates.
Court finds conduct unbecoming and upholds ODE suspension of a teacher’s license.
Sutton v. Ohio Dept. of Edn., 8th Dist. Cuyahoga No. 104476, 2017-Ohio-105.
http://cases.justia.com/ohio/eighth-district-court-of-appeals/2017-104476.pdf?ts=1484248579
John Sutton dated M.F. in the 70’s when they were in high school. After losing contact for some time, Sutton attempted to contact M.F. several times throughout the years, but later stopped when M.F.’s husband and brother requested that he do so. In 2012, M.F. contacted the police, believing Sutton was stalking her. While she did not want to press charges, she wanted the police to talk with Sutton and explain that M.F. wanted no contact with him. In 2013, M.F. contacted the police again, saying Sutton attempted to contact her and, as a result, he was arrested in the parking lot of his church, 100 yards from M.F.’s home. M.F. also got a restraining order against Sutton.
Sutton advanced several reasons for the continued contact attempts, averred he did not completely understand what “no contact” meant and testified that he was ashamed, upset and unaware that M.F. was married. He also claimed to be in counseling and submitted several letters of reference. Based on the charges, a hearing officer recommended that Sutton’s teaching license be suspended for at least three years and that he undergo a “fitness to teach” evaluation prior to reinstatement. The Ohio Department of Education (ODE) adopted the hearing officer’s recommendations and suspended Sutton’s license from June 9, 2012 through Oct. 9, 2015. Pursuant to Ohio Revised Code (RC) 119.12, Sutton appealed ODE’s decision to the Cuyahoga County court of common pleas, which found ODE’s suspension supported by reliable, probative and substantial evidence. Sutton then appealed.
On appeal, Sutton argued that the ODE hearing officer failed to apply the nexus test to determine whether his misdemeanor convictions constituted conduct unbecoming under RC 3319.31(B)(1) and Ohio Administrative Code (OAC) 3301-73-21. The court agreed that a direct nexus did not exist, but emphasized the Licensure Code’s definition of professional behavior and conduct unbecoming. The court also noted that Sutton’s own behavior during the hearing was concerning. The court found that, given the nature of its review, it could not find the trial court abused its discretion in this case and, as a result, affirmed the judgment (suspension).
Sixth circuit appellate court finds public interest weighs strongly against stay of an injunction allowing an 11-year-old transgender student to use the girls’ restroom.
Dodds v. United States Dept. of Edn., 845 F.3d 217 (6th Cir. 2016).
https://casetext.com/case/dodds-v-us-dept-of-educ
The issue here is whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender. In this case, Jane Doe, an 11-year-old special needs student and transgender girl was previously granted an injunction requiring Highland Local School District Board of Education and its superintendent and principal (Highland) to allow Doe to use the girls’ restroom. Due to recent changes in federal guidance, an injunction in a similar case (G.G. ex rel. Grimm v. Gloucester Cty. School Bd., 136 S.Ct. 2442, 195 L. Ed. 2d 888.) was stayed by the U.S. Supreme Court. As a result, Highland appealed, requesting a stay of the preliminary injunction that ordered the school district to treat Doe as a female and permit her to use the girls’ restroom.
In its analysis, the court found that Doe’s young age, mental health history, unique vulnerabilities and use of the girls’ restroom for over six weeks which greatly alleviated her distress, differentiate her from the plaintiff in Gloucester County. The court also noted that keeping the preliminary injunction in place here would maintain the status quo for Doe, which further differentiates from Gloucester County where staying the preliminary injunction maintained the status quo as opposed to disrupting it. Finally, the court found that Highland failed to meet its burden of establishing irreparable harm in absence of the stay.
The court held that while the United States Supreme Court issued a stay in Gloucester County, that stay was not enough to grant a stay in this case because Highland could not show irreparable harm and public interest weighted heavily against a stay of the injunction. On dissent, Circuit Judge Sutton argued that lower courts should adhere to the Supreme Court’s stay decisions when faced with indistinguishable claims, particularly because the Supreme Court’s decision in Gloucester County would likely apply the same rule to all students regardless of their age or the level of counseling they require. The dissent also noted that the status quo in a stay motion is the lay of the land before the district court’s decision and, in this case, a stay of the injunction would represent a return to the status quo.
Sixth circuit affirms dismissal of Title IX claim by mother of bullied high school student driven to suicide.
Tumminello v. Father Ryan High School Inc., 6th Cir. No. 16-5165 (Jan. 30, 2017).
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0084n-06.pdf
In his freshman year as a student at Father Ryan High School, a private school in Tennessee, Spencer Tate was bullied by several other students who called him “gay” and “fag” and suggested that he kill himself. Tragically, Tate later committed suicide. His mother, Patricia Tumminello, brought claims against the district under both Title IX and Tennessee negligence law, alleging that Tate’s suicide was caused by the harassment he experienced at school and by the district’s failure to enforce the school’s anti-bullying policy. The district court granted the district’s motion to dismiss both claims. The district court found that Tumminello failed to make a plausible claim of student-on-student harassment under Title IX because she failed to show Tate had been subject to harassment on account of his sex, that she failed to make a plausible negligence claim because she failed to provide allegations from which the court could draw a reasonable inference that Tate’s suicide was foreseeable, and that she failed to establish that punitive damages were appropriate. Tumminello appealed.
On appeal, Tumminello conceded that harassment on the basis of sexual orientation could not form the basis of a cognizable Title IX claim, but argued that students harassed Tate because of his gender-non-conforming behavior and appearance, not because of his perceived sexual orientation. Although the court acknowledged that harassment or stereotyping based on a person’s gender-non-conforming behavior is impermissible discrimination, it found that Tumminello did not allege facts in her complaint showing that Tate did not conform to traditional gender stereotypes in an observable way and that these characteristics were the basis for his harassment.
The court also found that the district had neither “actual knowledge” nor was it “deliberately indifferent” to the harassment. Although Tumminello summarily concluded that the district had actual knowledge of the abuse and harassment and was deliberately indifferent to said abuse and harassment, the court found that she failed to provide enough evidence to defeat a motion to dismiss. The court also rejected Tumminello’s negligence claims, finding difficulty in concluding that “the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.”
Circuit court upholds district court’s dismissal of student’s claim of retaliation and peer-to-peer sexual harassment in violation of Title IX following sexual assault by a teacher.
Gordon v. Traverse City Area Pub. Schools, 6th Cir. No. 16-1613, 2017 U.S. App. LEXIS 6487 (Apr. 12, 2017).
http://law.justia.com/cases/federal/appellate-courts/ca6/16-1613/16-1613-2017-04-12.html
In 2011, during his sophomore year at Traverse City West Senior High School, Keegan Gordon was sexually assaulted by a teacher. Following the assault, and the resignation and conviction of the teacher, Gordon claimed he was harassed by peers, shunned by athletic coaches, and retaliated against by administrators.
In 2015, Gordon filed claims against Traverse City Area Public Schools (TCAPS). He alleged that, in violation of the Fourteenth Amendment’s Equal Protection Clause, Title IX, and Michigan law, TCAPS punished him for his assailant’s arrest and failed to protect him from peer harassment. The district court dismissed all of Gordon’s claims. Gordon appealed the dismissal of the Title IX and state claims to the Sixth Circuit.
Retaliation by a recipient of public funds, such as a public school, against any individual who complains of sex discrimination is “intentional conduct that violates” Title IX. To determine whether Gordon demonstrated a prima facie case of retaliation, the court examined whether he had shown: 1) he engaged in protected activity; 2) TCAPS knew of the protected activity; 3) he suffered an adverse school-related action; and 4) that there was a causal connection between the protected activity and the adverse action. If Gordon could show these elements, the claim may still fail if TCAPS could articulate some legitimate, non-discriminatory reason for its action and Gordon was unable to show that TCAPS’ articulated reason was pretextual.
The district court determined that Gordon had not shown that he engaged in a protected activity because he did not complain of the harassment. In the alternative, the court concluded that, even if he had established that he engaged in a protected activity, TCAPS had a good faith belief for taking the actions that Gordon argued were adverse, and that Gordon failed to show those reasons were pretextual.
The circuit court determined that Gordon was subjected to adverse actions by TCAPS. However, it agreed with the district court that the district’s actions were made for legitimate, non-discriminatory reasons and Gordon did not demonstrate that a jury would believe the actions were pretextual.
Regarding Gordon’s Title IX sexual harassment claim, the court said that he would have to establish: 1) sexual harassment so severe and offensive that it deprives him of access to the school’s educational opportunities; 2) the district’s knowledge of the harassment; and 3) the district’s deliberate indifference to the harassment. The court concluded that Gordon had not provided sufficient evidence such that a reasonable jury could conclude the district’s response to any harassment he suffered was deliberately indifferent.
District court permits parents’ Title IX and 1983 claims against school district to proceed to trial after peer-on-peer sexual harassment of their middle-school-aged son.
C.R. v. Novi Cmty. School Dist., E.D.Mich. No. 14-14531, 2017 U.S. Dist. LEXIS 18394 (Feb. 9, 2017), clarified 2017 U.S. Dist. LEXIS 32853 (Mar. 8, 2017).
https://docs.justia.com/cases/federal/district-courts/michigan/miedce/4:2014cv14531/296856/97
http://law.justia.com/cases/federal/district-courts/michigan/miedce/4:2014cv14531/296856/101/
Joe R. was a student at Novi Middle School (NMS) in the Novi Community School District (NCSD) when his parents, C.R. and J.R., were informed that another student in his class had video-recorded a third student, J.J., touching Joe’s genitals. All three students qualified for special education support. After further investigating the matter, C.R. and J.R. discovered that the activity had been occurring for some time. The parents filed a police report and kept their son home from NMS. After investigation, the Novi Police Department concluded that the acts between the two boys were mutual, declined all charges against J.J., and closed the case.
The district also believed that the peer-to-peer sexual activity was mutual and encouraged C.R. and J.R. to return Joe R. to NMS. C.R. and J.R. chose to remove Joe R. from NMS rather than returning him to school where he still would have been in the same classroom with J.J.
C.R. and J.R. brought an eleven-count complaint against NCSD, two individual NMS administrators, a teacher and substitute teacher in Joe R.’s classroom, the staffing company that employed the substitute teacher, and the NCSD superintendent. Before the court were multiple motions for summary judgment filed by plaintiffs and defendants.
The court reviewed the claims and concluded that there was sufficient merit in seven of the parents’ claims, against some of the defendants, for them to proceed to trial. The parents’ first two claims were against NCSD under Title IX for sexual harassment of their son and for retaliation against him.
Applying the three-part test established in Davis v. Monroe Co. Board of Edn., the court concluded that the plaintiffs had established a prima facie case of student-on-student sexual harassment under Title IX by producing evidence showing that: 1) the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the student of access to educational opportunities and benefits; 2) the school had actual knowledge of the harassment; and 3) the school was deliberately indifferent to the harassment. The court also concluded that the plaintiffs had established a prima facie case for retaliation based on circumstantial evidence.
The parents also brought multiple 42 U.S.C. 1983 claims against NCSD and individual Novi employees, alleging that they deprived Joe R. of his constitutional rights to equal protection and substantive due process. The court dismissed all but three of these claims.
The court concluded that the parents had produced sufficient evidence to raise a genuine issue of fact concerning: 1) their 1983 supervisory liability claim against NCSD based on its failure to provide training on identifying sexual harassment to its employees; 2) their1983 due process claim against Joe R.’s teacher, Vera Williams, of a state-created danger because she placed the two students alone in a separate room on several occasions; and 3) their 1983 supervisory liability claim against the NMS principal for acquiescing in the teacher’s decision to place the students alone in a separate room and pressuring the plaintiffs to return their son to the same classroom. The court allowed a state claim against the principal and assistant principal for intentional infliction of emotional distress to proceed to trial. Finally, the court allowed a state claim for respondeat superior against the staffing company for the substitute teacher’s alleged misconduct. The court dismissed all other claims against the various defendants.
District court upholds claim of Title IX teacher-to-student harassment against school district and board of education and 1983 failure to train claim against district.
King v. Curtis, W.D.Mich. No. 1:14-cv-403, 2017 U.S. Dist. LEXIS 28429 (Mar. 1, 2017).
http://law.justia.com/cases/federal/district-courts/michigan/miwdce/1:2014cv00403/77583/300/
Chad Curtis, a substitute teacher working in the weight room at Lakewood High School in Lakewood Public Schools, sexually assaulted at least three students. Following the assault, Curtis was convicted of six charges of criminal sexual conduct involving three students. Curtis is currently serving a prison sentence of seven to 15 years.
The plaintiffs, students who were assaulted by Curtis and their parents, sued Curtis for battery and intentional infliction of severe emotional distress (IIED). The magistrate judge and the court granted the plaintiffs summary judgment on the claim of battery against Curtis, and left the damages and IIED claims for a jury.
They also sued Lakewood Public Schools and its board of education for teacher-to-student and peer-to-peer sexual harassment in violation of Title IX. Finally, they sued the schools and board of education, and 10 unidentified individuals, for violating 42 U.S.C. 1983. The district countersued the company that managed Curtis, Private Contract Management, Inc. (PCMI). On the recommendation of the magistrate judge, the court granted summary judgment for PCMI, dismissing this last claim. The court then reviewed the magistrate judge’s other conclusions regarding the claims.
To prevail on the teacher-to-student sexual harassment claim, the plaintiffs would have to establish that an official with authority to institute corrective measures on the district’s behalf had actual knowledge of the harassment and that the official’s response to the knowledge demonstrated deliberate indifference. The court concluded that there was sufficient information presented by the plaintiff to put the matter before a jury and, therefore, denied both plaintiffs’ and defendants’ motions for summary judgment.
The court accepted the magistrate judge’s recommendations to grant the defendants’ motion, and deny the plaintiffs’ motion, for summary judgment on the peer-to-peer sexual harassment claims. Finally, regarding the 1983 failure to train claim, the court agreed with the magistrate judge and allowed the claim against the Lakewood Public Schools to continue, but granted summary judgment on the claim for the board of education.
TORT LIABILITY – SOVEREIGN IMMUNITY
Ohio appellate court grants governmental immunity for surface water runoff from district’s maintenance building.
Anderson v. Warren Local School Dist. Bd. of Edn., 2017-Ohio-436.
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2017/2017-Ohio-436.pdf
Timothy and Carol Anderson resided in the Warren Local School District. The district owned a maintenance building located to the southeast and uphill from the Andersons’ property. In 1995, water began to seep through the Andersons’ basement wall. According to Mr. Anderson, all of the downspouts coming from the district’s maintenance building flowed to a drainage pipe that discharged the collected rainwater onto his property. In 1996, the district placed a sump pump into its loading dock at the maintenance building, constructed a new line that discharged the maintenance building rainwater to a ditch and plugged the pipe that was discharging water onto the Andersons’ property.
In 2005 or 2006, the district added a refrigeration unit to the maintenance building. A second refrigeration unit was added in 2008. In 2011, Mr. Anderson noticed cracks in his rear basement wall. In 2013, Mr. Anderson sought assistance from several individuals who inspected the water runoff issues of the maintenance building and the Andersons’ property. Upon receiving the individuals’ recommendations, both parties made changes to their drainage systems to collect and reroute the rainwater. In Apr. 2015, the Andersons’ alleged two counts against the district: 1) common law negligence and 2) violation of the reasonable use rule regarding surface water.
In May 2015, the district filed its answer to the Andersons’ complaint and in Nov. 2015, the district filed a motion for summary judgment. In the motion, the district argued that it was entitled to governmental immunity under Ohio Revised Code (RC) Chapter 2744. The trial court granted summary judgment in favor of the district, finding that the district was entitled to governmental immunity under RC 2744.
The Ohio Political Subdivision Tort Liability Act provides an exception to governmental immunity for the maintenance, operation and upkeep of a sewer system. One of the central issues in the appeal was whether the maintenance building’s rainwater drainage system was a “sewer system” for purposes of the governmental immunity statute.
The court acknowledged that there was no definition of “sewer system” in RC 2744. Using the customary definition of the words, however, the Ohio appellate court concluded that the maintenance building’s runoff drainage did not qualify as a “storm water system” or “sewer system” as contemplated by the immunity statute. The court held that a contrary definition would be too overbroad. “A sewer system consisting of only gutters and downspouts attached to a building and underground disposal pipes would characterize normal household rainwater disposal systems as their own ‘sewer systems'” even though the discharging pipes do not connect into a system. As a result, the court concluded that the district’s maintenance building's gutters, downspouts, and underground disposal pipes did not constitute a sewer system contemplated by RC 2744, and the district could not be exposed to liability for any negligent performance of the proprietary function of maintaining a sewer system.