This issue includes: ADA • Arbitration – Health Benefits • Arbitration – Nonrenewal • Athletic Eligibility • Attorney • Civil Procedure • Construction • Disability – Accommodations • Discrimination – Race • Discrimination – Sex • Equal Protection Clause • First Amendment – Free Speech • Individuals With Disabilities • Individuals with Disabilities – Denial of FAPE • Liability – BOE • Tax – Valuation/Real Property • Teacher Termination • Teacher – Termination • Tort Liability – Sovereign Immunity
A licensed teacher with a vision impairment suing for disability discrimination after being blocked from applying for substitute teaching positions asserts enough evidence to warrant a jury trial.
Conley v. Lakota Local School Dist., S.D.Ohio No. 1:16-cv-1105, 2018 U.S. Dist. LEXIS 176433 (Oct. 15, 2018).
Kyle Conley was a licensed school teacher with a vision impairment. He sued the Lakota Local School District and the Fairfield City School District for discrimination on the basis of his disability and failure to accommodate under the Americans with Disabilities Act (ADA) and Ohio Revised Code (RC) 4112.02, after both districts blocked him from applying for positions as a substitute teacher.
Both districts sought summary judgment, arguing that Conley was not qualified to perform the essential functions of a substitute teacher, with or without reasonable accommodation. Fairfield also asserted that Conley refused to accept the reasonable accommodation of a sighted aide present in the classroom with him. Lakota moved to strike the testimony of Conley’s expert witness and other submitted evidence. The court denied Lakota’s motions to strike testimony and evidence. It concluded that the expert’s testimony was admissible, and that the court should determine whether it had significant weight.
On Conley’s ADA claim, the court concluded that he had asserted sufficient evidence supporting his argument that he could perform the essential functions of a substitute teacher for grades 5 through twelve without a sighted aide to warrant a jury trial on the issue. However, the court granted summary judgment to the districts on the failure to accommodate claim because Conley failed to address it in his response to the motion for summary judgment and neither identified nor provided evidence of a reasonable accommodation that he requested and was denied.
Dependent eligibility requirements found to be a negotiable term or condition of employment, absent specific contract language.
Dayton City School Dist. Bd. of Edn. v. Dayton Edn. Assn., 2018-Ohio-4350.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2018/2018-Ohio-4350.pdf
Dayton Public Schools (DPS) and the Dayton Education Association (DEA) entered into a collective bargaining agreement effective Dec. 21, 2013, through June 30, 2017. DPS had a self-funded health insurance plan for its employees, specifics of which were included in Article 49 of the Master Agreement between DPS and DEA. Under this contract, the parties switched from a preferred provider program to a high deductible plan, with a health savings account (HDHP w/HSA).
As part of the insurance plan switch, DPS contracted with an outside, independent consultant who conducted an employee dependent verification audit. This consultant recommended various specific types of documentation that employees would need to provide DPS for verification of dependent eligibility for health insurance. DPS met with DEA and discussed the importance of employees’ quickly and correctly responding to the audit’s questions. It explained that failure to do so could result in employee dependents being removed from the health insurance plan retroactively and before the inception of the new plan. DEA also conveyed this information to its members with the same admonitions. Not all employees complied in a timely or sufficient manner and DPS subsequently terminated coverage and COBRA for ineligible dependents. DEA then filed a class action grievance on behalf of the members whose dependents lost insurance coverage.
An arbitration hearing was held on Oct. 24 and 25, 2016. The arbitrator issued a decision on Feb. 13, 2017, finding the grievance timely. He also held that while DPS had a right to verify dependent eligibility, there were issues as to the reasonableness of the specified documents required to determine eligibility. The arbitrator retained jurisdiction on six of the individual cases’ claims for damages but found a seventh lacked merit. On May 12, 2017, DPS filed a motion in the trial court to vacate the judgment on the ground that the eligibility audit was a management right not subject to arbitration. The trial court affirmed the arbitration decision and DPS appealed.
The appellate court initially looked at DPS’ argument that the arbitrator did not focus on the Agreement’s management rights clause in reaching his decision, but instead relied on Article 49, which is the Agreement’s insurance article. DPS contends there is no rational nexus between Article 49 and the dependent eligibility audit. The court noted public policy favoring arbitration and that an arbitrator’s award should not be disturbed if there is a rational nexus between the contract and the award, provided the award is not arbitrary, capricious or unlawful, and that it does not exceed the scope of the arbitrator’s authority.
The court found in this situation, even though DPS claimed to have reserved certain management rights pursuant to statute, health care benefits were bargainable. Determining whether DPS could then impose additional dependent eligibility requirements required the arbitrator to resort to contract interpretation, since language on this issue was not specifically included in Article 49. Therefore, the arbitrator’s award was rationally derived from the terms of the parties’ agreement. The trial court’s judgment was affirmed.
Ohio appellate court holds that trial court did not err in holding that board of education acted within its discretion to nonrenew two bus drivers’ one-year limited contract-classified employee contracts.
United Elec. Radio & Machine Workers of Am. v. Highland Local School Dist. Bd. of Edn., 2018-Ohio-5307.
https://cases.justia.com/ohio/fifth-district-court-of-appeals/2018-18ca0007.pdf?ts=1546036835
This case involves the appeal of a trial court decision that was included in the 2018-3 SLS, and in which OSBA’s Legal Assistance Fund (LAF) provided assistance to the board on appeal in the form of an amicus brief. The case stems from the board’s nonrenewal of two bus drivers at the expiration of their one-year limited contract-classified employee contracts. After being provided written notice of the board’s intent to nonrenew the contracts, the bus drivers filed a complaint arguing that the collective bargaining agreement (CBA) governed termination of their employment and required “just cause” for such termination. The board argued that Ohio Revised Code (RC) 3319.081 and RC 3319.083 governed nonrenewal of the one-year limited contracts. The trial court granted the board’s motion for summary judgment finding that nothing in the agreement specifically addressed renewal of limited contracts and citing the fact that the CBA provision the bus drivers relied upon dealt with discipline not limited contract nonrenewal.
The appellate court agreed with the trial court, finding that no CBA provisions used specific enough language to explicitly demonstrate that the parties’ intent was to override or preempt RC 3319.081 or RC 3319.083. The court also held that the CBA language did not address the subject of limited contracts. Finally, the court held that the trial court did not err in finding that the bus drivers were provided limited contracts per RC 3319.081, which were lawfully nonrenewed because the board provided written notice of its intent to nonrenew prior to June 1 in the year of contract expiration as required by RC 3319.083.
Ohio appellate court reverses trial court decision, finding athletic association’s decision and enforcement of its bylaws not arbitrary.
Nelsons v. Ohio High School Athletic Assn., 2018-Ohio-4169.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2018/2018-Ohio-4169.pdf
In August 2016, J.R., a minor who was born in 2002, moved to Lima, Ohio to live with the Nelsons. J.R.’s parents remained in St. Thomas, U.S. Virgin Islands. On Aug. 25, 2016, the Nelsons filed to become J.R.’s legal guardians. Their request was granted on Jan. 27, 2017. During the 2016-17 school year, J.R. sought to participate in interscholastic athletics while attending Lima Senior, which is now and was at the time a member school of the Ohio High School Athletic Association (OHSAA).
Through a series of communications between Lima Senior’s Director of Athletics and OHSAA’s Executive Director’s Office and legal counsel, OHSAA communicated that J.R. was ineligible under OSHAA bylaws and associated exceptions because his parents lived in a different state and the Nelsons, while legal guardians of J.R., did not fall under the definition of “parent” for purposes of the relevant bylaw. OHSAA noted that, for the purposes of the bylaw, “parent” only included biological and adoptive parents, and that legal guardianship by individuals not related to the student did not suffice to meet that definition. On Nov. 20, 2017, the Nelsons filed a complaint in the Allen County Court of Common Pleas seeking to enjoin OHSAA’s enforcement of its determination of J.R.’s ineligibility to participate in interscholastic athletics at Lima Senior.
Before the trial court, the Nelsons argued that the applicable OHSAA bylaws and exceptions were arbitrary as written and arbitrarily and capriciously enforced as a result of OHSAA’s interpretation and application of them to J.R.’s situation. The trial court issued a permanent injunction barring OHSAA from enforcing its decision regarding J.R.’s ineligibility.
OHSAA appealed, arguing the trial court erred in issuing a permanent injunction and substituting its own interpretation of OHSAA’s bylaws for the interpretation of OHSAA’s member schools. OHSAA also argued that the trial court erred by not holding that the Nelsons failed to exhaust administrative remedies by failing to appeal J.R.’s ineligibility ruling to the Executive Director’s Office.
While the Nelsons argued that the application of OHSAA’s bylaws to J.R.’s situation was arbitrary, OHSAA provided evidence establishing that member schools specifically voted as a referendum item in 2013 to limit the definition of “parent” to mean biological or adoptive parent. Therefore, the appellate court overturned the trial court’s decision and held that OHSAA, by virtue of its Executive Director’s Office, simply was interpreting and enforcing the bylaws pursuant to the authority delegated to it by the member schools.
Ohio district court finds school attorney performed “traditional legal duties” for the district and should not be held liable as a state actor.
Cox v. Hausmann., N.D.Ohio. No. 3:17-cv-2420, 2018 U.S. Dist. LEXIS 177650 (Oct. 16, 2018).
https://scholar.google.com/scholar_case?case=9413985478959610814&hl=en&as_sdt=6&as_vis=1&oi=scholarr
In January 2017, Matthew Cox, who served as the principal of Briar Middle School in the Perkins Local School District, notified the district’s superintendent that he would need to take leave under the Family and Medical Leave Act (FMLA) to care for two qualifying family members. Approximately one week later, Cox was notified he was to attend a pre-disciplinary conference regarding possible termination of his contract due to “allegations regarding insubordination, not following board policy, and not respecting the chain of command.” The board’s counsel was present at the pre-disciplinary conference. Cox brought legal counsel to the pre-disciplinary conference as well.
After the pre-disciplinary conference, the superintendent placed Cox on administrative leave for purportedly failing to report a fight that occurred in the cafeteria immediately prior to the pre-disciplinary conference. Cox requested several hearings with the board, but those requests were denied. Cox filed a lawsuit, alleging that the superintendent, the board and the board’s legal counsel failed to provide him with due process, violated his First Amendment rights, retaliated against him for exercising his rights under FMLA, and committed numerous violations of Ohio law.
The board’s legal counsel sought dismissal of Cox’s claims against him, contending that they should not be permitted to go forward because he was a private attorney hired by the board, not a member or employee of the board, and therefore was not acting under color of law. Cox asserted that the attorney should have been held liable as a state actor because he acted “as both legal counsel for the board as well as the designee for the district and board regarding personnel matters relating to Cox.”
The court granted the board attorney’s motion for judgment on the pleadings. The court held that while a “private party’s joint participation with a state official in a conspiracy to [violate the plaintiff’s rights] would constitute …state action,” an attorney performing traditional legal duties by “representing a client cannot ‘conspire’ within the attorney-client relationship.” The court noted that attorneys who are acting within the traditional role of a lawyer do not become state actors simply because they are paid by a public agency. The court found that the board’s attorney was acting in a traditional legal role and that Cox failed to support a conclusion that the attorney was a state actor.
A court’s granting of a motion for a directed verdict, while premature, is not in error if there was no prejudice.
Netherlands Ins. Co. v. BSHM Architects, Inc., 2018-Ohio-3736.
https://cases.justia.com/ohio/seventh-district-court-of-appeals/2018-18-mo-0001.pdf?ts=1537208975
Note: Earlier proceedings in this case were reported in 2018-3 SLS.
Switzerland of Ohio Local School District was insured by the Netherlands Insurance Company. In the process of building improvements the district made to its high school it contracted with BSHM Architects to provide engineering services for a roof drainage system. Ultimately, the installed system failed to perform as expected and the high school gymnasium floor was damaged in the amount of $135,735.50. Netherlands Insurance paid for the damages, but subsequently filed a complaint against BSHM and the contractor.
A trial began on Sept. 25, 2017, but immediately after a jury was sworn in, BSHM moved for a directed verdict claiming Netherlands Insurance failed to state a claim upon which relief could be granted. The only claim raised in Netherlands’ complaint was negligence. BSHM asserted that the basis of the negligence claim arose solely out of and under the contract. BSHM maintained that when a contract action exists against a defendant, the plaintiff cannot maintain a tort claim based upon the same underlying actions as a breach of contract claim unless the defendant also breached a duty owed independently of the contract.
In this case, the appellate court held that, although the motion for directed verdict was premature, case law indicated that if there was no prejudice, the trial court did not commit error in granting the motion. Additionally, given the facts and underlying contract, there was no separate independent tort claim. Therefore, the trial court did not abuse its discretion in denying the motion to amend, because the motion was made after the jury was sworn in. Since tort claims and contract claims require different elements, more discovery would most likely have been needed if the amendment had been allowed.
Ohio court finds district is entitled to damages on each breached contract, regardless of amounts received from settling parties on separate contracts.
Waverly City School Dist. Bd. of Edn. v. Triad AR, Inc., 2018-Ohio-4748.
https://cases.justia.com/ohio/fourth-district-court-of-appeals/2018-17ca885.pdf?ts=1543433855
The Waverly City School district engaged in a construction project from 2002-2004 that involved the construction of four separate schools at an original cost of nearly $50 million. Rather than have a single general contractor perform all construction, the district entered into separate contracts with four contractors, an architect, a construction manager and a geo-technical firm that provided evaluation of the construction site and soil testing during construction.
Shortly after the district took occupancy, all four buildings experienced major water intrusion problems and issues with concrete floor slabs. After several failed attempts to fix the problems, the district hired two firms to investigate the problems and were able to classify the project’s defects into three separate categories: 1) roofing; 2) masonry; and 3) general trades/floor slabs. Remediation was performed at a total cost of more than $6.5 million. Waverly filed a complaint against several of the contractors, the architect and the construction manager. Over the course of several years, the district entered into settlement agreements with several of the defendants.
The non-settling defendants raised concerns at trial that the settlement amounts received by the district exceeded the total amount of the district’s damages. In response to these concerns, the trial court granted the non-settling defendants’ motion for summary judgment on the basis that: 1) the amounts received from the settling co-defendants exceeded the damages incurred on the project; 2) the district couldn’t identify with reasonable certainty which alleged breaches caused what amount of damages. The district appealed.
On appeal, the district argued that the trial court erred by relying upon settlement amounts and settlement agreements that were not properly entered into the record. The court found that the district failed to object to the consideration of the settlement amounts during the trial proceedings and had affirmatively acknowledged the settlements in its memorandum contra, thereby inviting and encouraging the trial court to consider the settlement amounts.
The district also contended on appeal that the trial court erred in granting summary judgment on the basis that the district was made whole and recovered settlements in excess of its remediation costs from the settling co-defendants. The court agreed with the district, finding that although it is true that “plaintiffs are entitled to only one recovery,” there was not, in this case, only one defect. Rather, there were a multitude of defects, stemming from the “faulty masonry, roof, and floor slab installation; poor design, oversight, and quality control measures; and even from the known use of defective materials.” The court found that the district was entitled to recover damages on each contract, apart from any recovery on other separate and distinct contracts. As a result, any additional recovery of damages from the non-settling defendants would not amount to a windfall for the district, because the district had yet to recover any damages based on breaches of the contracts with those defendants. The court of appeals found that the trial court erred in granting summary judgment to the non-settling defendants on this issue.
In reaching its decision, the court also held that the district was not required to allocate damages among the co-defendants. The court held that when a defendant’s breach is a “substantial factor” in causing the injury, the defendant may be held responsible for the full extent of the damages. As a result, the issue of proportionate fault among other contributing factors was not germane to the district’s recovery from the defendants.
New York district court finds that a student with asthma and severe allergies can pursue disability discrimination claims related to a school district’s failure to protect her from exposure to service dog.
Doe v. Katonah-Lewisboro School District, S.D.N.Y. No. 17-CV-7868 (Dec. 4, 2018).
Jane Doe had a disability due to her chronic asthma and food and environmental allergies. This includes a severe allergy to dogs, which was triggered when she came into contact with dogs, dog dander or the protein emitted by dogs. When exposed to any of these things, she experiences a number of severe allergic reactions, including breathing difficulties. In September 2014, Doe entered sixth grade at KLSD middle school and began experiencing symptoms of allergic reaction. Doe and her parents repeatedly asked KLSD to remove dogs from school property due to her allergy. KLSD refused to do so citing their federal and state law obligations to accommodate individuals with service animals in their buildings.
In November 2014, KLSD invited an individual who trains service dogs to come to the school to speak about training and promoting service dogs, even though Doe’s parents provided a letter from her physician stating that she should not be exposed to dogs. Beginning in January 2015, Doe and her parents requested that KLSD accommodate Doe’s disability under a Sec. 504 plan. KLSD found Doe to be an individual with a disability pursuant to those requirements. The plan created for her allegedly required KLSD to prevent contact between Doe and service dogs, employ a cleaning protocol anywhere a service dog had been, and notify Doe and her parents of known or expected visits to the school by service dogs.
Over the course of the following time period, Doe was exposed to dogs or dog-related allergens on a number of occasions. On Feb. 23, 2015, Doe was required to participate in an orchestra concert where a parent who previously had brought a service dog would be in attendance. On May 15, 2015, KLSD held a fundraiser for a service dog organization where service dogs were in attendance. In November 2015, Doe’s parents learned that her class would be going on a field trip to a nursing home, which regularly was inhabited by dogs. As a result, Doe’s parents kept her home from the field trip, and she was instead required to write an essay. On Dec. 18, 2015, KLSD revised Doe’s 504 plan, removing special accommodations for field trips and the requirement that Doe and her parents receive notice, as soon as practicable, of service dogs at Doe’s school. On Nov. 11, 2016, after Doe’s parents filed a complaint, an impartial hearing officer (IHO) found KLSD to be in violation of Sec. 504 of the Rehabilitation Act.
The IHO ordered KLSD to develop and implement a new plan that would protect Doe. On Dec. 12, 2016, KLSD instituted a new 504 plan. Doe and her parents alleged that KLSD did not comply with the IHO’s orders or the revised plan. The court found that while the district could not and should not exclude service animals from its buildings, it still was obligated, under Sec. 504, to provide all accommodations to limit Doe’s exposure to allergens.
District court grants summary judgment to board, dismissing former employee’s claims of race discrimination, citing board’s legitimate non-discriminatory reasons for nonrenewing him.
Seals v. Bridgeport Spaulding School Dist., E.D.Mich. No. 17-CV-13514, 2018 U.S. Dist. LEXIS 171659 (Oct. 4, 2018).
In October 2016, the Bridgeport Spaulding School District Board of Education voted to grant Eugene Seals a one-year contract as athletic director (AD) for the district. Seals previously had been the high school basketball coach for the district and continued to serve as coach while he was the AD. The contract did not include any language about renewal or extension.
The AD before Seals had established a procedure for the collection, count and deposit of ticket and concession sales proceeds. The proceeds were counted by two people, who agreed on the count, completed a deposit slip and ticket summary sheet, and sealed the cash and slip into a sealable deposit bag provided by the AD’s secretary.
When Seals became AD, he asked the individuals counting the proceeds to leave the bag unsealed. The unsealed bags then remained in his office for some time. In March 2017, Seals gave the secretary seven or eight unsealed bank deposit bags without some of the summary sheets.
Toward the end of the basketball season, board members became concerned about the handling of the ticket and concession proceeds. First, an ad hoc committee of the board convened to investigate if the AD violated any district policies. A month later, an outside group was hired to investigate the management of funds for the basketball season.
The outside group interviewed seven employees. It invited Seals to participate in the investigation, but he declined. The investigation concluded that all proceeds were accounted for but that summary sheets for five games were not identified and there was no way to confirm the accuracy of the recorded deposits for the games. Following the investigation, the board voted four to two against issuing Seals a new contract.
Seals sued the district, alleging race discrimination under 42 USC 1983, Title VII of the Civil Rights Act, and Michigan’s Civil Rights Act. The court applied the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
The court concluded that Seals satisfied the first two elements required in McDonnell Douglas, because he was a member of a protected class, qualified for the AD job and performed it satisfactorily. Seals claimed that, when his contract was not renewed, he was not given notice or a hearing, which was required by Michigan law because he was an administrator. The district argued that Seals was not an administrator because he did not possess an administrator certificate. Further, the contract was a service agreement for a defined time period.
The court concluded that, although Seals was not an administrator with a statutory right to notice and a hearing, he did suffer an adverse employment action when his contract was not renewed, which established the third element of McDonell Douglas. Because the primary person who replaced Seals was outside his protected class, he also met the fourth element.
The court then concluded that the district articulated several legitimate, nondiscriminatory reasons for voting not to renew Seals’ contract. Specifically, the school district's interest in safeguarding its financial resources was sufficient to support the board's decision not to renew Seals’ contract. Finally, the court held the district’s legitimate nondiscriminatory reasons for voting against renewal of Seals’ contract were not pretext for discrimination. For these reasons, the court granted summary judgment for the district on Seals’ federal claims of discrimination.
The court also concluded that Seals had failed to provide evidence supporting a finding that he was engaged in protected activity under Michigan’s state civil rights act. It granted summary judgment to the district on this claim as well.
Ohio court finds that football player’s claim of sex discrimination by coach required producing evidence that he exhibited gender non-conforming characteristics.
Chisholm v. St. Marys City School Dist. Bd. of Edn., N.D.Ohio No. 3:16CV2849, 2018 U.S. Dist. LEXIS 216192 (Dec. 26, 2018).
www.leagle.com/decision/infdco20181227862
Doug Frye was employed by St. Marys City School District as head football coach. Dane Chisholm was a student in the district who played football and was a junior the first year Frye served as head coach. Chisholm had several disciplinary problems while playing but was named a team captain at the start of his senior year. According to Frye, Chisholm’s attitude declined very quickly during his senior year after he started sharing playing time with a sophomore.
Frye routinely inspired his players by calling them a number of profoundly derogatory names. Chisholm was the target of this motivational method daily. Chisholm alleged that Frye created an environment where players were pressured to play injured and filtered players through trainers before sending them to a doctor. Chisholm additionally claimed that Frye retaliated against him when Chisholm challenged Frye’s authority, disagreed with him or made mistakes. Chisholm did not complain to his parents or school officials while playing for Frye. Chisholm’s teammates voted to remove him from the football team on Oct. 23, 2015, because they believed Chisholm tried to throw the second-to-last game of the season. Frye acquiesced to the team’s vote and decision, but it is unclear whether he affirmatively approved of it.
Chisholm rode the bench for the final game of that season and did not attempt to rejoin the team. St. Marys Athletic Code of Conduct does not provide for voting a player off the team, nor does it provide any manner of redress if/when that occurs. The assistant coach and Frye discussed Chisholm’s removal, but no further investigation or follow-up took place.
Chisholm subsequently complained to his father about Frye’s behavior, who then talked with the school principal. When asked if he wanted to make a formal complaint, Chisholm’s father declined, but then contacted another player’s father who revealed that his son also had received the same “personal motivation” from Frye, which had embarrassed him and made him feel as if he had been “treated … unfairly and disrespectfully.”
Chisholm’s father then concocted a questionnaire and distributed it to several of his son’s ex-teammates. After getting their responses, Chisholm’s father contacted the assistant coach and complained about his son’s removal from the team. Chisholm’s father then met with other player parents, contacted an attorney and filed a letter with the board asking for an investigation of Frye and removal of him and his staff from coaching and teaching. They also sent the complaint to the Ohio Department of Education (ODE).
Upon receiving the complaints, the board commenced an investigation and hired an independent consultant, the former ESC superintendent. Following an investigation, the former superintendent recommended that the coaching staff continue to communicate injury protocols and the assistant coach continue to learn the players’ concerns and proactively address potential problems. He also found that while some swearing does occur, there was no evidence that it was out-of-line by most standards. Frye’s attorney then obtained and posted this report on a Facebook page used by district football players’ parents and identified the complaining fathers by name. Subsequently, some of the page’s members posted insulting comments about Chisholm, other complaining players and their parents. Many more derogatory names were bandied about. Some of the posters included school district employees, such as the school nurse and even a keyboarding instructor (who also was Frye’s wife).
The complaining students and one of the player’s fathers then appealed the investigation results to the board. On April 27, 2017, ODE concluded its investigation and determined that no disciplinary action would be pursued. A court case was then initiated by Chisholm, charging the school district with discrimination under Title IX and violating his constitutional rights to equal protection and substantive due process. Chisholm also alleged state law claims for intentional and negligent infliction of emotional distress and negligent hiring.
The court carefully considered the facts in this situation when analyzing Chisholm’s various claims. For example, the court found that Chisholm’s sexual harassment claims did not fit the legal standard for Title IX claims. Chisholm claimed Frye called him certain derogatory names to target stereotypically feminine characteristics and re-enforce traditional notions of masculinity. However, Chisholm produced no evidence that he exhibited gender non-conforming characteristics. At best, all of the names Frye used just showed that he perceived Chisholm as weak. Additionally, because Frye used the same names repeatedly for other players, it showed that he was an equal opportunity insulter and would “spray-shot his name-calling randomly at anyone or, sometimes, at the whole team.” Therefore, he did not single out Chisholm for unique, observable, gender non-conforming characteristics.
Chisholm also raised a retaliation claim, alleging the board retaliated against him for exercising his Title IX rights. Title IX protects people who pursue claims of sex discrimination from retaliation. However, in this case Chisholm did not engage in any protected activity. He simply lodged a general bullying complaint against the coach. The court noted that vague complaints of harassment or discrimination have consistently been held as insufficient to constitute Title IX-protected activity. Similarly, the court found Chisholm’s equal protection claims failed because he did not suffer any discrimination based on sex and his substantive due process rights were not violated because Frye’s conduct “does not shock the conscience.” The court noted that the context here was not in a nurturing classroom environment, but in an ultra-competitive, highly physical sport.
The court went on to dismiss all of Chisholm’s other claims against the district, Frye and other school administrators, finding they had qualified immunity for the hiring and supervision of Frye, and that Chisholm was never in any danger of a real, imminent physical harm – a requirement to prove negligent infliction of emotional distress. The court granted St. Marys City School District Board of Education’s and Frye’s motions for summary judgment.
Ohio court of appeals upholds summary judgment for district in discrimination case where teacher fails to demonstrate fourth element of McDonnell Douglas test.
Crawford v. Kirtland Local School Dist. Bd. of Edn., 2018-Ohio-4569.
https://cases.justia.com/ohio/eleventh-district-court-of-appeals/2018-2018-l-010.pdf?ts=1542148569
In August 2015, the Kirtland Local School District board of education hired Molly Crawford as an elementary school intervention specialist. One of Crawford’s job duties was to write Individualized Education Programs (IEPs) for her special education students. At the start of Crawford’s employment, the district Director of Pupil Services, Becky Malinas, helped Crawford prepare IEPs. However, as the year progressed, it was determined that Crawford’s IEPs were below expectations, despite supervision and assistance from Malinas.
Crawford’s evaluations also revealed that she had problems with classroom management and failed to provide Malinas with required data regarding student progress on IEP goals. Throughout her first year as an intervention specialist, Crawford failed to remedy these serious deficiencies in her performance. As a result, Malinas rated Crawford “ineffective” and the board ultimately nonrenewed Crawford’s one-year contract.
After Crawford’s nonrenewal, the district filled Crawford’s position at the elementary school with a female teacher who previously was assigned to the high school. That teacher filed a grievance regarding her assignment and, as a result of her grievance, she was assigned to a high school position. The board then placed one of its long-term substitute teachers, Dale Clark, in Crawford’s former position.
On Dec. 19, 2016, Crawford filed a complaint against the board and Malinas, alleging they discriminated against her based upon gender. In her deposition, Crawford testified that her claim was based on three sets of allegations. First, she testified Malinas treated her with a “cold, clipped, curt, no eye contact” demeanor compared to the “very flirtatious, open, friendly” manner in which she treated male intervention specialists. Second, Crawford said she was not provided with the same teaching materials as male intervention specialists (i.e. a laptop and certain books). Third, she said she was treated unfairly with respect to Malinas’ informal walk-through observations, formal evaluations and feedback.
In December 2017, the trial court entered judgment dismissing Crawford’s claim for lack of subject-matter jurisdiction on the grounds that it related to her observations, evaluations and rating, and the evaluation process was governed exclusively by the collective bargaining agreement. The trial court entered summary judgment for the board on the balance of Crawford’s claim due to her failure to identify a genuine issue of material fact.
The court of appeals affirmed the judgment of the trial court. The court of appeals found that the determination of whether the board complied with the evaluation procedures in the collective bargaining agreement or discriminated against Crawford required application and interpretation of the collective bargaining agreement. As such, the court of appeals found that the trial court did not err in finding it lacked subject matter jurisdiction over this part of Crawford’s claim.
The court of appeals also affirmed the judgment of the trial court on the issue of Crawford’s gender discrimination claim. The court found that Crawford failed to demonstrate the fourth element of the McDonnell Douglas test, namely that she was replaced by a male teacher or that a similarly situated male comparator with the same deficiencies received more favorable treatment than she did. The court also found that Malinas’ repeated efforts to help Crawford draft her IEPs and improve her ratings created a “strong inference” that Malinas did not rate Crawford poorly due to gender animus just nine months after she was hired.
Tennessee district court grants district’s motion to dismiss coach’s Title IX claim, finding that student-athletes are capable of representing their own interests.
Haley v. Clarksville-Montgomery Cty. School Sys., M.D.Tenn. No. 3:18-cv-00400, 2018 U.S. Dist. LEXIS 212007 (Dec. 17, 2018).
The Clark-Montgomery County School System (CMCSS) hired Angela Haley as the Northeast wrestling coach. According to Haley, she was “instrumental in getting wrestling sanctioned as a state sport within Tennessee.” She also “had a very good track record” as a wrestling coach with CMCSS and sat on the board of the Tennessee Secondary School Athletic Association (TSSAA). However, Haley alleged that CMCSS did not allow her to attend TSSAA meetings unless she did so “on her own personal time” and without “reimbursement or supplement.” Haley also alleged that CMCSS “subjected her to a moldy closet as her coach office.”
In March 2016, Haley was removed from the position of head wrestling coach. Haley alleges that she was replaced by a “less-qualified” male coach in August 2016. In April 2018, Haley filed a lawsuit against the district alleging that the district failed to provide female coaches with the same treatment and benefits as the male coaches and failed to provide equal athletic coaching instruction opportunities for female faculty. She also alleged that CMCSS intentionally and consciously discriminated against female student athletes by failing to provide them with treatment and benefits comparable to the treatment and benefits provided to male student athletes.
The court rejected the Title IX claim that Haley filed on behalf of the female student athletes, finding that Title IX claims concerning student treatment are appropriately brought by the students themselves rather than by their coaches. The court did not find any evidence demonstrating that the student athletes were incapable of representing their own interests or protecting their own rights.
The court also rejected Haley’s personal Title IX claim, finding that Haley’s claim was time-barred by the one-year statute of limitations. Haley did not file her complaint until approximately 17 months after the alleged injury occurred. As a result, the district’s motion to dismiss was granted.
Kentucky district court grants summary judgment for district in case involving sexual assault of a student by a district employee.
K.D. v. Swafford, E.D.Ky. No. 7:17-132-KKC, 2018 U.S. Dist. LEXIS 192156 (Nov. 9, 2018).
Jerry Swafford was employed by the Pike County Board of Education in Kentucky as a janitor at Belfry High School, where K.D. was a student. On Oct. 15, 2016, Swafford threw a party at his residence, to which Belfry High School students were invited. At the party, Swafford served K.D. an alcoholic beverage and she passed out. Swafford then sexually assaulted K.D. in a bedroom. As a result, Swafford pleaded guilty to criminal sexual assault charges and now is serving a prison sentence in West Virginia.
On the day before the party, a Belfry High School parent became aware of the party plans and attempted to stop Swafford’s party before it began. Concerned about Swafford’s behavior, the parent telephoned the school board, the high school principal and the police. The district did nothing to prevent the party from occurring. After she was sexually assaulted, K.D. filed a lawsuit against the Pike County Board of Education, the high school principal and the district’s superintendent.
K.D.’s complaint alleged that the board violated her right to be free from sexual abuse at the hands of a public school employee. The court cited prior case precedent holding that a school board cannot be found liable unless “the plaintiff can establish that an officially executed policy, or the toleration of a custom within the school district leads to, causes or results in the deprivation of a constitutionally protected right.” The court found that K.D. had not produced any evidence that the board tolerated a custom or officially executed a policy that caused the violation of her rights. Although the record showed that there had been at least five district employees who committed or had been accused of serious sexual misconduct against students in the prior 10 years, the district took appropriate corrective measures in each case. Nor was the board member’s response to the complaining parent prior to the party considered by the court to be a “deliberately indifferent” response. The board member recommended that the parent contact the police and the high school principal, who was Swafford’s direct supervisor. As a result, the court dismissed K.D.’s claims against the board of education.
K.D. also alleged that the high school principal and district’s superintendent violated her due process rights as a public school student to personal security and bodily integrity. Specifically, K.D. argued that the administrators were liable for their “tacit authorization of or knowing acquiescence in Swafford’s sexual misconduct against students like K.D.” The court found that K.D. was unable to point to any evidence that either administrator “participated, encouraged, authorized or acquiesced” to the sexual assault of students. As a result, the court granted summary judgment to the administrators.
K.D. also alleged that the sexual abuse by Swafford was so severe and objectively offensive that it undermined and detracted from her educational experience sufficiently enough to deny her equal educational opportunities in violation of Title IX. The court found no evidence that the board had actual notice that Swafford posed a risk of sexual assault to students. Accordingly, the court found that the board did not act with deliberate indifference in the case and granted the board’s motion for summary judgment.
U.S. district court finds application of school district’s “Play Up, Stay Up” rule regarding participating in the same sport at different grade levels to be discriminatory based on gender.
J.S. v. Laurel Cty. Bd. of Edn., E.D.Ky. No. 6:18-cv-00258-KKC, 2018 U.S. Dist. LEXIS 192157 (Nov. 9, 2018).
https://casetext.com/case/js-v-laurel-cnty-bd-of-educ
J.S. was a 6th grade boy at South Laurel Middle School (SLMS). Rules and regulations for participation in sports are determined by the Laurel County Board of Education and annually adopted in the Laurel County Public Schools Athletic Handbook. One such rule, referred to as “Play Up, Stay Up” provides that, with some exception, students only can play at one grade level while participating in sports at the middle school level. Under the rule, if a coach allows a student to play at a higher level that student may not later move back down to play the same sport at a lower level. The rule specifies that it does not apply to soccer, volleyball and girls’ basketball due to play being in different seasons. The reason provided for the exemptions was because play on the different level teams for the listed sports occurs in different seasons.
The board asserted that in September 2018, the rule was amended to give the superintendent the ability to suspend the rule upon the district athletic director’s recommendation due to low participation numbers on a team, and in order to create greater participation. Under the rule, J.S. was unable to play basketball at multiple grade levels. At the same time, female basketball players at SLMS were exempt from the rule.
On Aug. 16, 2018, J.S.’s attorney, Bill Meader, wrote a letter to the superintendent, Douglas Bennett, complaining that girls on the basketball teams were playing up and down on multiple teams, and arguing that the rule improperly discriminated against male athletes at the middle school level. The letter threatened legal action if the rule was not either applied equitably to both genders or abolished.
On Aug. 30, 2018, counsel for the board, Larry Bryson, responded explaining that the rule was suspended for the girls’ basketball team because there was a shortage of players. Meader then sent a reply letter stating the belief that the rule violated both the Equal Protection Clause of the Fourteenth Amendment, as well as certain Title IX provisions. When the board refused to change the rule, J.S. filed a complaint seeking injunctive relief and alleging violations of the Equal Protection Clause, Title IX and the Kentucky Constitution.
The court considered whether the “Play Up, Stay Up” rule improperly discriminated against boys playing basketball at the middle school level. The board made five arguments, including that the rule allowed middle school athletes to develop their skills, that it promotes maximum participation by student athletes, that it assists the district with its Title IX compliance, and that it helps prevent injury and results in higher academic performance.
The court, however, determined the rule to be facially discriminatory on a gender basis. The court found that even though Title IX is an important government interest, the exceptions to the rule were far too broad. Therefore, the court granted J.S.’s motion for summary judgment and preliminary injunction and ruled that the board was required either to abolish the rule or revise any exemption to it in a manner that does not discriminate on the basis of gender.
Coach’s termination based on insubordination, use of profanity towards students and retaliatory conduct towards staff and students, not protected speech.
Sensabaugh v. Halliburton, E.D.Tenn. No. 2:18-CV-11, 2018 U.S. Dist. LEXIS 196830 (Nov. 19, 2018).
In January 2017, the Washington County Board of Education (Tennessee) hired former Dallas Cowboys player Gerald Sensabaugh to serve as the district’s high school head football coach. By October of that year, the school’s team was ranked first regionally and in its classification. However, Sensabaugh remained extremely disappointed with other issues in the district, such as deteriorating facilities and funding allocations. He traveled to several district buildings, took photographs of the classrooms and posted them on a Facebook page entitled “The real problem in Washington County.” The district did not take kindly to Sensabaugh’s efforts and repeatedly admonished and, ultimately, reprimanded him for his posts, verbally and in writing.
Calling Sensabaugh’s continued behavior “unprofessional,” on October 10, 2017 the district placed him on paid administrative leave while the district investigated charges on improper conduct related to his school building visits and ensuing meetings. On Jan. 19, 2018, Sensabaugh filed suit against the Washington County Board of Education and its chief administrator, Director Kimber Halliburton. Sensabaugh alleged the district and Halliburton, acting under the color of state law, retaliated against him in violation of his First Amendment right to speak out on matters of public concern. Subsequently, the district investigation concluded and found Sensabaugh had engaged in unprofessional, insubordinate, threatening and retaliatory behavior toward supervisors, staff and students. Haliburton then terminated Sensabaugh’s employment on March 15, 2018.
Sensabaugh then amended his action to include the termination while Haliburton moved to dismiss his suit on the grounds that it failed to allege an actionable “adverse action” and that Halliburton was entitled to qualified immunity. The court determined its function – at the point of summary judgment – was limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the jury. In examining the facts presented, the court noted that the district letters of guidance and reprimand/suspension did not constitute adverse actions against Sensabaugh while the termination was based on an investigation by an outside law firm. Additionally, the termination was based on his insubordination, use of profanity toward students and retaliatory conduct toward staff and students, not his protected speech. The court found that no reasonable jury could find Sensabaugh’s Facebook posts to be a substantial motivating factor for Haliburton’s decisions to issue the letters of guidance/reprimand/suspension or to terminate his employment.
Although a teacher’s use of a body sock on a student with disabilities constitutes a seizure for purposes of the Fourth Amendment, it is reasonable and not excessive.
Crochran v. Columbus City Schools, 6th Cir. No. 17-4110, 2018 U.S. App. LEXIS 28531 (Oct. 10, 2018).
https://cases.justia.com/federal/appellate-courts/ca6/17-4110/17-4110-2018-10-10.pdf?ts=1539190936
Naqis Crochran was a child with autism and attention deficit hyperactivity disorder attending South Mifflin STEM academy in the Columbus City School District. Crochran and his parent, Amatullah Shields, alleged that his rights were violated when he was injured after being placed in a “body sock,” and that the use of the sock was not in Crochran’s individualized education program (IEP) and constituted an illegal restraint.
The Columbus Board of Education claimed that the use of the body sock was an effort to control the student’s unruly behavior. Crochran and his mother sued the district, asserting that the teacher’s use of the body sock was a violation of the student’s Fourth Amendment right against unlawful seizure, his Fourteenth Amendment right to due process, and prohibited by the Americans with Disabilities Act (ADA) and Sec. 504 of the Rehabilitation Act (Sec. 504).
The circuit court, in a de novo review, affirmed the district court’s grant of summary judgment to the district on Crochran’s federal claims. The court stated that the use of the body sock was a seizure for purposes of the Fourth Amendment. It concluded that the use of the body sock was a “limitation on the student’s freedom of movement” that significantly exceeded “that inherent in every-day, compulsory attendance.”
However, the court held that the seizure was justified in its inception because the student was having difficulty controlling his behavior and the teacher reasonably believed the body sock could help him. The court concluded that, although the sock may have been used improperly, no evidence was presented creating a genuine issue of fact that it was not justified in a constitutional sense. The court also concluded that the seizure was permissible in scope because it was reasonably related to the objective of the seizure and not excessive.
On Crochran’s Fourteenth Amendment claim, the court concluded that the force applied in the use of the body sock was not a brutal and inhumane abuse of official power that shocked the conscience. The teacher has a legitimate pedagogical reason justifying the use of the sock and did not force the student into the sock. Although Crochran suffered a serious injury when he fell while in the sock, the court concluded that the factors, taken together, compelled a finding that the teacher’s actions did not shock the conscience.
Finally, the court concluded that Crochran’s ADA and Sec. 504 claims failed because Crochran did not point to any evidence that he was discriminated against, excluded from, or denied the benefits of his special education program.
District court grants summary judgment to school employees and district in final of three related cases alleging that teacher's actions violate of the Fourteenth Amendment and federal law.
Doe v. Livonia Pub. Schools, E.D.Mich No. 13:-cv-11687, 2018 U.S. Dist. LEXIS 175805 (Oct. 12, 2018).
https://scholar.google.com/scholar_case?case=9239151144672533692&hl=en&as_sdt=6&as_vis=1&oi=scholarr
This case was filed alongside, and alleged harms arising from a common set of facts with, two other cases: Gohl v. Livonia Public Schools (2016-4 SLS) and Roeder v. Livonia Public Schools. The district judge in Gohl dismissed all federal claims and declined to exercise supplemental jurisdiction over the Michigan state law claims. Roeder was settled after Gohl was dismissed.
Three students with disabilities, M.D., C.W., and K.H., were attending school in the moderately cognitively impaired afternoon program at the Livonia Public Schools in the 2011-12 school year. All three students allegedly were abused by their teacher, Sharon Turbiak. The parents of the students filed suit against the district, Turbiak, and other district employees, alleging that their rights were violated under the Fourteenth Amendment, the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA) and Michigan state law.
According to the record, Turbiak pulled a chair out from under K.H., moved a chair from under M.D. while she was attempting to sit, prevented K.H., who had an auditory sensitivity, from covering her ears and laughed at her when she became upset that Turbiak yelled in her face, and put a device made from a modified potato chip can on K.H.’s arms, preventing her from covering her ears or face. The students and their parents allege that Turbiak violated her students’ substantive due process rights to be free from physical abuse by state actors, and that the other defendants were liable for failing to intervene and stop Turbiak’s conduct.
Similar to its conclusion in the Gohl case, the court concluded that, although Turbiak engaged in inappropriate conduct and was emotionally and professionally ill-equipped to serve her students, her actions did not raise to a level where they violated her students’ substantive due process rights. The court concluded that the plaintiffs’ ADA and RA claims fail because they did not provide sufficient evidence for a reasonable juror to find that they were denied participation in or benefit of their educational program and failed to show that any denial was caused by their disabilities. Finally, the court dismissed all remaining state law claims when the federal claims were dismissed.
Tennessee district court holds that IDEA’s definition of a free appropriate public education (FAPE) incorporates compliance with state’s restraint and seclusion laws.
J.M. v. Tenn. Dept. of Edn., M.D.Tenn. No. 3:17-cv-00405, 2018 U.S. Dist. LEXIS 209651 (Dec. 12, 2018).
J.M. is a student in the Dickson County School District in Tennessee. J.M. has multiple disabilities, including autism, intellectual disability, obsessive compulsive disorder, anxiety and attention deficit hyperactivity disorder. In 2010, J.M. began attending school in the district as a kindergartener. By the end of his third-grade year, J.M. had begun exhibiting “aggressive behavior towards staff and peers” and “elopement issues.” Teachers identified his aggressive behaviors occurring, on average, 12 times per day and sometimes as many as over 80 times in a single day. The district made a number of efforts to address J.M.’s behavior but determined with his individualized education program (IEP) team in February 2016 that his current elementary school was not equipped to provide the resources, environment and services necessary for J.M.’s needs.
J.M. was transferred to New Directions Academy, a school within the district characterized as having a “behavior first” approach. J.M., however, continued to exhibit aggressive and disruptive behavior at the new school. In addition to properly documented uses of restraint, the district also allegedly subjected J.M. to undocumented isolations in a manner that violated the state’s restraint and seclusion guidelines.
J.M.’s mother filed a complaint against the district under the Individuals with Disabilities Education Act (IDEA). The district filed a motion to dismiss, arguing that J.M. failed to properly plead a violation of IDEA because his only allegations were about improper isolations in violation of state law. The court denied the motion, finding that IDEA’s definition of FAPE incorporates compliance with the state’s restraint and seclusion laws. The district appealed.
On appeal, the court examined whether Congress created a cause of action, under IDEA, that encompassed state law violations. The court found that IDEA’s definition of FAPE adopts “the standards of the state educational agency” and Tennessee’s state educational agency is charged with at least some aspects of overseeing the administration of the state’s restraint and seclusion laws. The court also found that the state’s restraint and seclusion laws also clearly were intended to function hand-in-hand with the structure imposed by IDEA and that a “reasonable policymaker” would or should have known that the state’s restraint and seclusion laws would be enforceable under IDEA. As a result, the court found that providing qualified child special education and related services that include isolations in violation of the substantive requirements of the state’s restraint and seclusion law was a denial of FAPE and an appropriate subject of an IDEA claim.
The Tennessee Department of Education also argued that, even if a violation of the state’s restraint and seclusion law can give rise to a suit under IDEA, it cannot give rise to a suit against the state department of education. In reviewing the argument, the court held that while the “party best situated to immediately affect J.M.’s education was the district,…the state educational agency is responsible for ensuring that….all educational programs for children with disabilities in the State, including all such programs administered by any other State agency or local agency…meet the educational standards of the State educational agency.” The court acknowledged that J.M. still would be required to tie the department’s alleged failings to the details of his treatment by the district but declined to grant the department summary judgment on the theory that IDEA prohibits lawsuits against state-level defendants.
INDIVIDUALS WITH DISABILITIES – DENIAL OF FAPE
District’s failure to provide a functional behavior analysis and behavior intervention plan before proposing a student’s change of placement constitutes denial of a free appropriate public education.
J.A. v. Smith Cty. School Dist., M.D.Tenn. No. 2:18-cv-00043, 2018 U.S. Dist. LEXIS 214346 (Dec. 20, 2018).
https://scholar.google.com/scholar_case?case=2099325717421819825&hl=en&as_sdt=6&as_vis=1&oi=scholarr
J.A. was a five year old who was diagnosed with Down Syndrome and eligible for special education services from the Smith County School District. District staff met with J.A.’s parent in May 2017 to develop his individualized education program (IEP) for preschool to begin in August. J.A. was placed in a regular education classroom at New Middleton Elementary School (NMES).
J.A.’s pre-K teacher, Wendy Cond, had 11 years of experience teaching, but had never taught special education or a student with Down Syndrome. Cond’s classroom had 20 children and she had a full-time paraprofessional. J.A.’s IEP provided him with the following pull-out services each week: 30 minutes of academic services, 30 minutes of occupational therapy, 30 minutes of physical therapy and 40 minutes of speech therapy (delivered in two 20-minute sessions). The IEP did not include academic goals.
J.A. was having behavioral issues in Cond’s classroom, including hitting, licking and throwing objects, putting objects in his mouth, climbing and running away from adults, and having toilet training accidents. Although Cond logged the behaviors and told J.A.’s mother about them, the district did not conduct a functional behavior assessment (FBA) or provide a behavior intervention plan (BIP). The options for FBA and BIP were crossed out by the district on J.A.’s IEP form.
At an IEP meeting in October, the district proposed moving J.A. to a comprehensive development class (CDC) at Carthage Elementary School (CES), located 30 minutes from J.A.’s home. The CDC classroom included children with disabilities and typical children, with three teachers in a smaller group setting. J.A.’s mother did not agree to the proposed change in placement and requested a one-on-one aide for J.A. in his current placement. The district did not agree to her request, stating that the placement would be too restrictive.
J.A.’s November IEP recommended that J.A. be taught by a special education teacher four times a week, seven hours a session, for a total of 28 hours a week at CES. The IEP again focused on nonacademic goals. J.A.’s mother did not sign the IEP, withdrew him from NMES, and filed a due process complaint alleging that the district was not providing J.A. with a free appropriate public education (FAPE) on the basis of an inappropriate IEP and denial of least restrictive environment.
The administrative law judge (ALJ) concluded that a one-to-one aide would be too restrictive and would not provide an educational benefit to J.A., that the proposed placement at CES was a reasonable alternative to the NMES placement and not in violation of FAPE, and that relief for the disputed IEP was limited to conducting the FBA, to be completed as soon as possible so that a proper placement for J.A. could be determined for the upcoming school year.
The district court concluded that the district’s decision that use of a one-to-one paraprofessional because it was too restrictive was a procedural violation of the Individuals with Disabilities Education Act (IDEA) that led to substantive harm. The court also concluded that J.A. was denied FAPE because the IEP lacked meaningful academic goals and ordered the district to rewrite J.A.’s IEP to include these goals. The district court found that the ALJ erred in concluding that the district’s proposed placement at CES was a reasonable alternative. It ordered that the district conduct an FBA and implement a BIP for J.A. at NMES. The district court also concluded that the district should have provided J.A. a paraprofessional in his IEP.
Finally, the district court concluded that the district had improperly predetermined, without any data, that a one-to-one aide would be overly restrictive in the regular education classroom and that the district failed to place J.A. in the least restrictive environment. The court ordered that J.A. be placed in kindergarten at NMES with a paraprofessional properly trained in working with students with Down Syndrome.
INDIVIDUALS WITH DISABILITIES – DENIAL OF FAPE
Sixth circuit upholds order that district pay for 1,200 hours of tutoring and one year of transition planning, and $208,000 in attorney fees, as compensatory education for denial of FAPE.
Somberg v. Utica Community Schools, 908 F.3d 162 (6th Cir.2018).
https://cases.justia.com/federal/appellate-courts/ca6/17-2195/17-2195-2018-11-05.pdf?ts=1541448074
During the 2012-13 school year, Dylan Somberg was an 18-year-old student in his fifth year of high school at Eisenhower High School in the Utica Community Schools (UCS). Dylan was diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder, and Tourette’s Disorder, and exhibited symptoms of obsessive-compulsive disorder. He received special education services from UCS.
Dylan’s individualized education program (IEP) for the 2011-12 school year terminated because UCS assumed he would graduate in June 2012. In September 2012, the district amended his IEP to extend it through November 2012 but did not substantively change the IEP. The IEP stipulated that Dylan’s curriculum would be split evenly between special and general education classes. Rather than following this plan, UCS assigned Dylan to one general education class, three special education classes, and a community-based inclusion (CBI) classroom for two class periods.
Dylan’s mother objected to the CBI placement, claiming it was inconsistent with his IEP. After her objection, UCS moved Dylan from the CBI classroom to the principal’s office, where he was isolated from other students and, in his mother’s opinion, did not receive meaningful education. Although Dylan’s mother asked for a general education schedule so that Dylan could select classes for the last two periods, her requests were ignored until the issue was raised to the attention of the administrative law judge (ALJ). When Dylan reviewed the schedule and selected several classes, UCS told him the classes were full.
UCS admitted that Dylan’s class schedule between Sept. 4 and Oct. 1, 2012, was not consistent with his IEP, and a denial of FAPE. By June 2013, UCS reevaluated Dylan and developed a new IEP. It continued to complete annual IEPs thereafter until Dylan’s mother withdrew him from UCS in October 2015 and enrolled him in a private school.
The Sombergs filed an administrative complaint against UCS in September 2012, alleging that UCS denied Dylan a free appropriate public education (FAPE). In October, UCS offered to determine whether Dylan was entitled to compensatory education due to his assignment to CBI and, if so, provide it. The parents rejected UCS’s offer and requested $7,195 to compensate for the denial of FAPE, plus attorney fees. No settlement was reached.
Following a three-day hearing in December 2012, the ALJ concluded that Dylan had been denied FAPE because the September 2012 IEP lacked measurable goals, Dylan’s schedule at the beginning of the school year was not consistent with his IEP, and his transition plan was “woefully inadequate.” However, the ALJ concluded that Dylan was not entitled to any compensatory education.
The Sombergs appealed the ALJ’s decision to the district court. UCS filed a counter-claim against Dylan’s mother and her attorney, seeking attorney fees and costs, alleging that the administrative complaint was filed for an improper purpose and made fictitious claims. The court held that UCS’s counterclaims had no merit.
In March 2016, the district court granted the Sombergs’ motion for summary judgment, affirming the ALJ’s conclusions regarding the denial of FAPE but reversing her order that Dylan was not entitled to compensatory education. The district court ultimately found that UCS should pay for 1,200 hours of tutoring and one year of transition planning. The court assigned a special master to oversee the compensatory education. It also ordered UCS to pay more than $200,000 in attorney fees and expenses, including fees and costs associated with defending against UCS’s counterclaims, although, it reduced the attorney’s hourly rate from $250 to $220 and reduced the number of hours claimed by 25%.
The circuit court upheld all of the district court’s actions. It concluded that the district court did not abuse its discretion by declining to defer to the ALJ’s decision on compensatory education because the court appropriately applied a modified de novo standard, requiring it to make findings of fact based on a preponderance of evidence. The court also concluded that the district court did not err in permitting the Sombergs to present evidence that was not presented to the ALJ, because it did not use the additional evidence to decide any issue that was not previously presented to the ALJ.
Finally, the circuit upheld the district court’s decision to reduce the attorney fees award. It relied on Williams v. Fulton Cty. School Dist., 717 Fed.App’x. 913 (11th Cir.2017), and concluded that, even when the district unreasonably protracted the litigation, the court did not err if it reduced the attorney fees award “due to reasonableness.”
Court applies entwinement test to determine school district's specific involvement in bus subcontractor’s employment decisions.
Stepp v. Hamilton Cty. Dept. of Edn. (In re M.S.), 6th Cir. No. 17-6241, 2018 U.S. App. LEXIS 30961 (Nov. 1, 2018).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0546n-06.pdf
Johnthony Walker crashed a school bus while transporting 37 students from Woodmore Elementary School in Chattanooga, Tennessee. Six students died; a number of others were injured. An amended class action complaint was filed on behalf of the students under 42 USC Sec. 1983 and state law but was dismissed by the district court under Federal Rule of Civil Procedure 12(b)(6). On appeal, the U.S. Court of Appeals for the Sixth Circuit had to decide whether the pleadings are sufficient for the court to draw a reasonable inference that the bus driver’s employer and the school district were liable under Sec. 1983 for injuries the students sustained as a result of the crash.
Walker was employed by Durham, which was the private bus contractor hired by the district to provide drivers. Durham was included in the lawsuit filed by the injured students but was dismissed from the lawsuit by the district court. That court applied the four tests generally used to determine whether a private actor can be held liable for acting under the color of law in Sec. 1983 claims. More specifically, two of the tests, the “symbiotic relationship or nexus test” and the “entwinement test” were found most relevant in this case. Crucially, the court found the nexus test asks whether the district was entwined with Durham’s employment decisions regarding Walker specifically, not generally. Since the injured students did not allege or prove the district’s entwinement with Durham’s personnel decisions regarding Walker, their Sec. 1983 claim was properly dismissed.
However, the court of appeals overturned the lower court on the question of whether the district had knowledge of the building principal’s unconstitutional actions in instructing students to board Walker’s school bus, that the district took no action in preventing the principal from taking these actions or making the bus safer and that in failing to do so, the district deprived the students of their constitutional rights. The court determined these allegations would have to be borne out by evidence at a later stage in litigation, so dismissal of the case on these grounds was reversed.
Court finds BTA’s refusal to consider school board’s appraisal of racino’s valuation to be legal error.
Harrah’s Ohio Acquisition Co., L.L.C. v. Cuyahoga Cty. Bd. of Revision, Slip Opinion No. 2018-Ohio-4370.
https://cases.justia.com/ohio/supreme-court-of-ohio/2018-2016-0568.pdf?ts=1540904844
Thistledown, a horse racing facility in Cuyahoga County, Ohio, owned by Harrah’s, obtained a $50 million video lottery terminal (VLT) license shortly after a Jan. 1, 2013, tax-lien date. Prior to that date, Harrah’s had spent about $7 million improving the facility’s real property. Thistledown Racino opened in April 2013.
The Cuyahoga County fiscal officer initially valued the property at $37,658,000. Harrah’s asked the Cuyahoga County Board of Revision (BOR) to decrease the valuation to $23,315,888, which was the sum of its expenditures for improvement to the real property and the property’s tax-year-2012 valuation of $16.3 million. The school board asked the BOR to increase the total valuation to $43,000,000 – the July 2010 sale price. BOR retained the fiscal officer’s original valuation and both parties appealed to the Board of Tax Appeals (BTA).
At BTA, the school board abandoned its reliance on the July 2010 sale price in favor of an appraisal valuation, which used a cost and income capitalization approach, not a sales-comparison approach. Harrah’s relied on the latter approach to determine valuation, which BTA later adopted. The school district appealed the finding.
The Supreme Court of Ohio found that the school board did not show it was contrary to law to attribute separate value to a property owner’s opportunity to acquire racing and VLT licenses because there are material differences between a government’s exercise of the police power through zoning and through licensing, which was part of Harrah’s approach to determine valuation. The court also found BTA’s refusal to consider the school board’s appraisal was legal error because the appraiser could take the possibility of encumbering the property with a lease into account when valuing it consistent with Ohio Revised Code 5713.03’s directive to determine “the true value of the fee simple estate, as if unencumbered,” so long as the appraisal assumed a lease that reflected the relevant real-estate market.
The court then vacated BTA’s decision and remanded the case to BTA to “fully consider and address the evidence in the existing record.”
Sixth circuit court uses the rational-basis test to uphold school district’s termination of teacher for poor classroom performance and inappropriate actions outside the classroom.
Hartwell v. Houghton Lake Cmty. Schools, 6th Cir. No. 18-1294, 2018 U.S. App. LEXIS 31217 (Nov. 5, 2018).
https://casetext.com/case/hartwell-v-houghton-lake-cmty-sch-amy-peterson
Shawna Hartwell was hired by Houghton Lake Community Schools as a probationary teacher in 2014. At the end of her first year, she received a “minimally effective” score. During her second year, Hartwell had numerous personal issues surface, not the least of which was her husband’s joint custody of two children from his first marriage. Both were students in the district, and one attended the building in which Hartwell worked. Hartwell got involved with her stepchildren at school, but not in a positive way. Allegations of subtle harassment, interference with custody and with student records all emerged in rapid succession. The police even were called in one situation. Additionally, Hartwell’s performance stagnated and she earned another minimally effective rating at the end of her second year, with her numerical score dropping from 2.45 to 2.0.
Based on this, Hartwell’s contract was not renewed, ultimately terminating her existing contract based on “sufficient reason.” Hartwell then sued the school district and its superintendent, alleging violations of the First and Fourteenth Amendments. The district moved for a summary judgment, which was granted by the district court. Hartwell then appealed.
Hartwell’s appeal was limited to the theory that she was terminated because of her relationships with her husband and her stepchildren, arguing that this violated her right to intimate association under both the First and the Fourteenth Amendments. However, the court quickly held that only the Fourteenth Amendment possibly could govern Hartwell’s claim.
Analyzing her claim under this light, the court found that Hartwell must prove that there is sufficient evidence for a reasonable jury to find the school district’s motivation was to punish her for her protected conduct. Hartwell therefore had to show that this protected conduct was a substantial or motivating factor of the termination. However, Hartwell could not prove that she was fired for any reason other than poor classroom performance and inappropriate actions outside the classroom. The court noted that her inappropriate behavior had no “temporal proximity” to her intimate associations and that these intimate associations were not a substantial or motivating factor in her termination. The court then applied the rational-basis test and found that Hartwell’s bad behavior placed the district in legal jeopardy, detracted from the school’s learning environment and interfered with the school’s administration. Therefore, the district’s decision to fire Hartwell survived the rational-basis review.
The court closed by noting that the Constitution protects certain intimate associations, but those protections are not a life vest for bad employees.
Tennessee court dismisses teacher’s claim that drug test violated her Fourth Amendment rights.
Myers v. Greene Cty. Bd. of Edn., E.D.Tenn. No. 2:16-CV-96, 2018 U.S. Dist. LEXIS 194684 (Nov. 15, 2018).
www.casemine.com/judgement/us/5bef572a342cca3d464ccf2d
In October 2015, Teri Myers, a tenured public school teacher in Greene County, Tenn., was drug tested at the direction of the district, and then suspended for three days. The following school year she was transferred to a different school in the district, where she later applied for long-term health leave. Her request was denied at which point she initiated a civil rights suit against the district, its board of education and the director of schools.
Myers claimed that the school director violated her Fourth Amendment rights when he ordered her to undergo a drug test without having reasonable suspicion, that the scope of the test was “undefined” and that she was required to disclose the myriad prescription drugs she was taking to the medical review officer (MRO), which found their way into her personnel file. However, the court found that the director enjoyed qualified immunity because he had no personal role in crafting the district’s drug testing policy, nor did he direct the MRO to ask Myers about her prescription medications. Additionally, Myers could not prove it was the director who placed the drug test results in her personnel file rather than some other school employee.
The court next turned to Myers’ claims against the board. The court’s noted that since the director did not violate Myers constitutional rights in ordering drug testing, the board could not be found liable either. Furthermore, Myers was tested based on an individualized reasonable suspicion and screened for a total of twelve substances, which were six fewer than the policy the Sixth Circuit upheld in Knox Cnty. Edn. Assn. v. Knox Cnty. Bd. of Edn., 158 F.3d 361 (6th Cir.1998). Additionally, the MRO asked Myers about her prescription drug use in accordance with Department of Transportation regulations and in order to avoid a false positive test result. The court held that the district’s suspicion-based drug testing regime was sufficiently defined such that its execution did not deprive Myers of a constitutional right.
Myers’ claim that her privacy rights were violated by placing her drug test results in her personnel file was dismissed on the grounds that all parties admitted the placement was inadvertent and Myers had not proven how she was damaged as a result. The court also found she failed to establish an essential element of her claims for discrimination and retaliation under the ADA and dismissed all claims against the board and its director.
Ohio court finds teacher’s failure to enter final grades for her students is good and just cause for termination.
Thomas v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-4231.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2018/2018-Ohio-4231.pdf
Pamela Thomas had been a reserve or substitute teacher with the Dayton City School District from 1994 through 2003. Starting in 2011 or 2012, Thomas worked as an intervention specialist at Fairview pre-K through 8 school. She was suspended without pay for 10 days in November 2015 for failing to complete individualized education program (IEP) forms for her students. She transferred to Belmont High School in 2016, starting on Jan. 26, to replace a substitute teaching living skills.
Shortly after Thomas started at Belmont, interim grades were due for her students. The computer system that teachers used to enter grades was changed in the 2015-16 school year, and Thomas did not know how to use the new Teacher Access Center (TAC). She sought and received help from a colleague to enter the interim grades.
When final third-quarter grades were due four weeks later, Thomas did not enter the grades using TAC. As a result, her students who were seniors receive a notification that they would not have enough credits to graduate.
On Apr. 4, 2016, the district issued a notice of charges, charging Thomas with violations of various board policies. After that notice was issued, Thomas criticized fellow staff members and called them devils in front of students. On Apr. 19, the district issued a revised notice of charges, charging Thomas with unsatisfactory work performance, neglect of duty, insubordination, lack of cooperation, conduct disruptive to fellow employees, careless and unsafe work habits which amounted to incompetence, insubordination, neglect of duty, and acts of misfeasance, malfeasance and/or nonfeasance in office. The notice stated that Thomas had “failed to assume responsibility for performing even the basic and essential functions” of her job and that termination was recommended.
On May 16, 2016, following a hearing, a hearing officer recommended that Thomas be terminated. Thomas requested a hearing before a referee consistent with Ohio Revised Code (RC) 3319.16. A three-day hearing was held in September. The referee concluded that Thomas’ failure to ensure that her students’ third quarter final grades were entered into the computer grading system was a serious matter and that the district had proven that it was good and just cause to terminate Thomas’ contract.
The board accepted the referee’s report and terminated Thomas’s contract on that basis. However, it rejected the referee’s conclusion that Thomas’s past misconduct was not relevant to the charges pending against her. The board concluded that the other good and just grounds for terminating Thomas included her past misconduct at Fairview, calling her coworkers devils in the presence of students, refusing to cooperate with, and insubordination and disrespect to, her building administrators, failure to assume responsibility for and perform the basic and essential functions of her position at Belmont, and being uncooperative, obstinate, and unwilling to carry out her job duties.
Thomas filed an administrative appeal on Feb. 15, 2017, challenging all of the district’s reasons for terminating her employment. The district filed its response on Mar. 7.
On Oct. 4, 2017, Thomas filed a motion to amend her complaint, asserting that she had a new attorney and wanted to add claims for disability and race discrimination in violation of RC 4112.02. The district filed a memorandum in opposition on Oct. 11, noting that Thomas previously had attempted to pursue discrimination claims before the Ohio Civil Rights Commission, which had dismissed them. On Oct. 13, the trial court overruled Thomas’ motion to amend.
In its subsequent decision, the trial court vacated all but one of the district’s reasons for terminating Thomas. However, it found that the district’s decision to terminate Thomas based on her failure to enter third quarter final grades for her students was supported by the evidence and affirmed it. Thomas appealed the trial court’s decision, challenging the denial of her motion to amend and the final judgment on her termination. The district filed a cross-assignment of error, challenging the trial court’s vacation of its other reasons for terminating Thomas.
The appeals court concluded that the trial court had not abused its discretion when it denied Thomas’ motion to amend her complaint, given the undue eight-month delay from the filing of her initial complaint. The appeals court also concluded that the trial court had not abused its discretion when it upheld the board’s decision to terminate Thomas based on her failure to enter third quarter final grades for her students and the fact that that failure constituted good and just cause for termination.
Finally, the appeals court concluded that, because it determined that Thomas was subject to termination on one of the bases provided by the district, it did not need to address the board’s cross-assignment of error.
District’s termination of a teacher because her position was eliminated when the state ended grant funding does not constitute a denial of due process.
Williams v. Shelby Cty. Bd. of Edn., W.D.Tenn. No. 2:17-cv-02050-TLP-egb, 2018 U.S. Dist. LEXIS 212801 (Dec. 18, 2018).
Sonya Williams worked for the Memphis City School District as a family and consumer sciences teacher from 2002 until 2015. In 2013, Williams applied for a job as an advisor with the district, which she did not receive. She filed a claim with the Equal Employment Opportunity Commission (EEOC), alleging age and race discrimination. The claim was settled in August 2015. As part of the settlement, Williams was hired as an Adult Education Advisor at Messick Adult Center in the Adult Education Program (AEP) of the Shelby County School System (SCS). The program, including Williams’ position, was funded by a grant provided by the state of Tennessee.
During her time with AEP, Williams alleged harassment by her coworkers and supervisors. She filed a whistleblower complaint with the state claiming that SCS had provided false testing data to the state and was engaged in testing fraud. She also filed an EEOC complaint against AEP employees alleging retaliation.
State officials interviewed Williams about her whistleblower allegations. At that meeting, Williams complained about her supervisor, Rochelle Griffin, Messick interim principal. Griffin issued a written reprimand to Williams, stated that Williams’ behavior appeared to be intended to sabotage AEP. About a month later, the state of Tennessee terminated the grant that funded AEP. Employees of AEP whose salaries were funded by the grant, were terminated. Williams was terminated shortly thereafter by the SCS superintendent.
Williams filed a five-count complaint against SCS, alleging retaliation in violation of the First Amendment, violation of her Fourteenth Amendment due process rights, and violations of three provisions of Tennessee state law. The court granted summary judgment to SCS on both of Williams’s federal claims and on two of her three Tennessee state law claims.
Regarding her First Amendment retaliation claim, the court concluded that Williams’ speech when she reported allegations of testing fraud was speech that arose from her job and that she reported fraud to advance the ordinary responsibilities of her employment. For these reasons, Williams’ speech was unprotected, and she failed to establish a prima facie case for retaliation.
Regarding her Fourteenth Amendment claim, the court concluded that the district did not improperly deny Williams of her property interest in continued employment without due process. Williams was removed from her position because the state grant that funded the program where she was employed was terminated by the state. State law allows school boards to terminate employees when there is a reduction in the number of teaching positions in the system because of a decrease in enrollment or for other good reasons. The court found that the elimination of AEP because its grant funding was revoked constitutes “other good reasons” for a reduction in force.
TORT LIABILITY – SOVEREIGN IMMUNITY
School district and its employees found to have immunity in student’s sexual assault by another student on school bus.
Doe v. Jackson Local School Dist. Bd. of Edn., N.D.Ohio No. 5:L17-cv-1931, 2018 U.S. Dist. LEXIS 211131(Dec. 14, 2018).
https://www.courtlistener.com/recap/gov.uscourts.ohnd.236432/gov.uscourts.ohnd.236432.93.0.pdf
During the 2016-17 school year, Doe was a five-year-old kindergarten student attending an elementary school in the district. C.T. was an 11-year-old student attending the same school. Over the course of several weeks, between the end of October and the middle of November 2016, C.T. performed multiple sexual acts on Doe and made Doe perform sexual acts on him while the two rode a district school bus on their way home from school.
Jimmie Singleton was employed by the district as a bus driver during this period and he was assigned to C.T. and Doe’s bus route. Singleton met all legal requirements to serve as a public school bus driver and attended numerous trainings on bus safety and student-related issues. However, none of the training was related to sexual harassment or sexual abuse. Singleton received satisfactory ratings, although the district had received complaints from parents on pupil-management.
In September 2016, the district’s dean of students received a call from C.T.’s teacher that a student had reported that C.T. lit a match on the school bus during the afternoon bus route the day before. Video surveillance confirmed the incident, also showing C.T. blocking another student from reporting the incident to Singleton and tossing the match out the bus window. The Dean interviewed several other students about the incident and C.T. temporarily was removed from the bus. C.T. also received building restrictions, which included being escorted around the building by staff, random searches and assigned seats in gym, music and during library time. Up to this point, the only discipline C.T. had been subject to during school was being placed on a “success plan.”
Upon his return to the bus, C.T. was assigned a front seat immediately to Singleton’s right. Doe had previously been assigned to the seat immediately behind Singleton and across from C.T., which afforded the worst visibility for the bus driver.
On Nov. 12, Doe’s mother reported to the district that Doe reported that C.T. had “done something really gross” on the afternoon bus route. Doe’s mother also noted that she already had contacted the police and it was evident that Doe had been sexually assaulted multiple times by then. The district reviewed the bus surveillance independently and with the police, confirming the sexual assaults. The district expanded its video reviews and found C.T. assaulted Doe or other students at least a dozen times. C.T. was expelled from school and never had any other contact with Doe again.
The Doe’s parents filed a complaint against the district for violations of 42 USC 1983 and Title IX, negligence and/or reckless conduct, loss of filial consortium and intentional infliction of emotional distress. The district responded by seeking summary judgment based on statutory immunity, and its employees asserted a right to qualified immunity.
The court, while sympathetic to Doe, could not find a constitutional violation on the part of the district or its employees. The district qualified for immunity because it was engaged in the governmental function of providing public education. The court considered various employees and their roles in this situation to determine whether any/all of them were immune from suit. While C.T.’s past behavior in lighting matches on the school bus was alarming, it could not have served as a predictor to any of the employees of his sexual assaults on Doe. None of the district’s employees acted with the requisite culpability to increase the risk of harm to Doe from a third party (C.T.). The consequences were disturbing and unfortunate, but it was not the result of a constitutional violation by the school district or any of its employees.