In this issue: First Amendment • Fourth Amendment • Individuals With Disabilities • Open Meetings Act • Title IX • Tort Liability – Sovereign Immunity • Tortious Interference With A Business Contract • Unfair Labor Practice
Ohio district court dismisses employee’s First Amendment retaliation complaint against county commissioner.
Godfrey v. Fuda, N.D.Ohio No. 4:22CV225, 2023 U.S. Dist. LEXIS 19788 (Feb. 3, 2023).
https://casetext.com/case/godfrey-v-fuda-1
Paulette Godfrey served as a commissioners’ clerk for the Trumbull County Commissioners. On March 24, 2021, Trumbull County Commissioner Frank Fuda asked Godfrey during a public meeting whether he had ever yelled at her. Godfrey replied that Fuda had yelled at her on several occasions. After the public meeting, Fuda allegedly began to harass, torment, bully and act abusively toward Godfrey, creating a hostile work environment and ultimately leading to Godfrey’s constructive discharge. Godfrey filed a complaint against Fuda alleging retaliation for protected First Amendment conduct. Fuda moved for judgment on the pleadings.
In her complaint, Godfrey alleged that Fuda, acting under color of state law, restrained Godfrey’s First Amendment right to freedom of speech by harassing her and constructively discharging her in retaliation for her engaging in protected First Amendment activity. Godfrey contended that she was speaking as a matter of public concern when she responded to Fuda’s questioning at a public meeting, and as a matter of public concern, her speech should be protected under the First Amendment.
The court, however, rejected Godfrey’s arguments that the comments made during the public meeting were of public interest. Instead, the court categorized the comments as a “private dispute between an employer and employee” that were “not a matter of public concern.” As a result, the court found that Godfrey’s complaint did not state a cause of action for deprivation of any protected constitutional right. “Mere allegations of managerial incompetence,” the court held, “do not amount to constitutionally protected speech.” The court also found that Godfrey’s complaint was subject to dismissal because she could not be said to have been speaking as a private citizen since her speech was both on the clock and to her supervisor.
As a result, the court granted Fuda’s motion for judgment on the pleadings and dismissed Godfrey’s complaint.
Seventh Circuit sides with school district after employee claims religious discrimination and retaliation in response to district policy that required employee to use the names and pronouns of transgender students that aligns with their gender identity.
Kluge v. Brownsburg Community School Corp., 64 F.4th 861 (7th Cir.2023)
John Kluge was employed as a music and orchestra teacher at Brownsburg High School, the only high school within the Brownsburg Community School Corp., a public school district in Indiana. The district had a policy in place that required teachers within the district to call students by the name listed in the online directory. Students were able to update their names and pronouns in the directory by presenting letters from a parent and a health care professional. Multiple transgender students were enrolled in the district and used this process to update their names and pronouns to align with their gender identity, including students enrolled in courses taught by Kluge.
Kluge objected to calling transgender students by the names that align with their gender identity on the grounds that doing so violated his sincerely held religious beliefs, and the district subsequently accommodated him by allowing him to call students by their surnames, deemed the last-name-only policy. There was evidence in the record that Kluge sometimes still misgendered at least one of the transgender students during this period and sometimes refused to call them any name at all. Kluge had several meetings with the principal during this period to discuss the policy, and the principal allegedly encouraged Kluge to resign at the end of the school year. When it became clear that this policy was causing disruption in the classroom and harm to the transgender students as students realized that the policy was in place due solely to the presence of the transgender students, the district announced that it would revert to its original policy of requiring teachers to call students according to their names in the online directory. Kluge sent an email to the administration announcing his intention to resign prior to the beginning of the next school year but would later attempt to withdraw his notice of intent to resign. The district board accepted the resignation anyway.
Kluge then filed suit against the district under Title VII, alleging religious discrimination/failure to accommodate, retaliation and a hostile work environment. Kluge also made claims under the First and 14th Amendments and state law. The district court dismissed Kluge’s constitutional, state law and hostile work environment claims, and he did not ultimately appeal those claims. Kluge and the district filed cross motions for summary judgment on the discrimination and retaliation claims. The district court granted the district’s motion on both claims and dismissed Kluge’s.
The appellate court upheld the district court’s findings on both claims in favor of the district. Title VII provides that “it shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” Further, employers must allow for reasonable accommodations that do not create an “undue hardship.” Analyzing precedents from the U.S. Supreme Court, the court noted a standard that an employer need not bear more than a de minimis cost when providing an accommodation. All told, in light of precedent, in order to make a prima facie case of unlawful religious discrimination under Title VII, “an employee must demonstrate that: (1) an observance or practice that is religious in nature, and (2) that is based on a sincerely held religious belief, (3) conflicted with an employment requirement, and (4) the religious observance or practice was the basis or a motivating factor for the employee’s discharge or other discriminatory treatment.” If the plaintiff can make out a prima facie case, the burden shifts to the defendant to show that it could not accommodate the employee’s religious belief or practice without causing the employer undue hardship.
Turning to Kluge’s case, the court upheld the district court’s finding that he had made a prima facie case. Thus, the crux of the matter was whether accommodating his religious beliefs created an undue hardship for the district, on which both courts ruled in favor of the district. Noting the general requirement that public schools educate all students who enter their doors, the appeals court accepted the district’s claims that the last-name-only policy was causing harm to students and frustrating its educational mission. The court pointed to a plethora of evidence the district presented about the harms and disruptions that were reported by students and other staff related to the last-name-only policy, which reportedly had the effect of isolating and ostracizing the transgender students and making even cisgender students uncomfortable. Kluge presented no controverting evidence to this. While a teacher and three students would later testify that they observed no disruption, the court noted that the presence of some individuals who were not harmed or disrupted does not controvert the harm experienced or observed by others. Further, Kluge’s practice was contrary to the recommendations of the students’ parents and health care providers as to what was in their best interest, which the court found impacted the district’s custodial and protective role over its students. The majority also rejected Kluge’s argument that his policy was equally applicable to all students, both cis- and transgender, pointing to the specific harm it had in practice on the transgender students. Further, because there were no other reasonable accommodations available, the court ruled that there was no improper discrimination, as the district had successfully demonstrated that the proposed accommodation constituted an undue hardship.
Kluge also alleged that the district had engaged in unlawful retaliation by removing his accommodation and ultimately causing him to resign. This claim was likewise rejected by the court. To demonstrate retaliation under Title VII, a plaintiff must demonstrate that: (1) they engaged in statutorily protected activity; (2) they suffered a materially adverse action; and (3) there is a but-for causal connection between the two events, which is a higher standard of causation than that used in discrimination claims. An employer may rebut this by demonstrating that it had a legitimate, nondiscriminatory reason for the adverse action, which shifts the burden back to the plaintiff to show that the proffered reason is merely a pretext. Kluge argued that he engaged in a statutorily protected activity with the last-name-only policy according to his sincerely held religious beliefs and that the district coerced him into resignation in retaliation. The court ultimately found that Kluge failed to make out a prima facie case, specifically falling short on the causation element. Noting the high standard of causation required for retaliation claims, the court highlighted the multiple steps the district made to try to work with Kluge to accommodate his religious beliefs and that it attempted to provide him his requested accommodation until it became clear that it was unworkable. The majority goes onto note that even if he did make out the prima facie case, he had no evidence to demonstrate that the district’s actions were pretextual and that the district had legitimate reasons for taking the action.
Note: The Seventh Circuit Court of Appeals does not have jurisdiction over Ohio schools, so this case does not have any direct impact in the state. It is included as an illustration of how courts are analyzing this salient issue.
Sixth Circuit reverses grant of summary judgment to county after it stops using towing company in response to company’s disparaging Facebook posts.
Lemaster v. Lawrence Cty., 6th Cir. No. 22-5135, 2023 U.S. App. LEXIS 8571 (April 11, 2023).
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0072p-06.pdf
Billy and Amanda Lemaster ran a towing business in Lawrence County, Kentucky. Billy also served as the fire chief of the all-volunteer Cherryville Fire Department, and Amanda served as its treasurer. In January 2019, Phillip Carter was elected as the Lawrence County’s “judge executive,” the elected head of its executive branch. Immediately after his election, Carter fired the county’s emergency management assistance director, a decision that Mr. Lemaster criticized publicly on Facebook. The next day, Carter called Lemaster “cursing” about the post. Lemaster agreed to take the post down but used the call as an opportunity to complain about the county’s management of its “rotation list,” which was the process the county used to rotate through towing companies when the city’s 911 center needed to order a tow. Lemaster believed that the 911 center had not been ”properly” rotating between companies on the list. Carter agreed to “go in the morning and tell 911 to make sure that they rotate everybody.” After this conversation, Lemaster deleted his post. Carter then appeared to fix the rotation list.
However, Carter soon began to disparage the Lemasters publicly. Concluding that Carter was conspiring to incite the community against him, Lemaster again took to Facebook and published disparaging comments about Carter. Five days later, the 911 center sent an email to its dispatchers that stated that per Judge Carter’s orders, Lemaster Towing was no longer on the rotation list. When Lemaster learned about his removal from the towing list, he sued Carter and Lawrence County, alleging that Carter violated the First Amendment by removing Lemaster Towing from the rotation list in retaliation for Lemaster’s criticisms. The district court granted summary judgment to Carter and the county. Lemaster appealed.
On appeal, the court found that a reasonable jury could find that Carter took an “adverse action” against the Lemasters since the removal of a tow company from a public “tow call list” would likely deter the ordinary company from speaking to avoid losing this government-generated business. Carter also did not dispute that the First Amendment protected Lemaster’s Facebook posts. In reviewing whether there was a causal connection between Lemaster’s Facebook posts and Carter’s adverse action, the court reviewed the temporal proximity of the two actions, Carter’s initial response to Lemaster’s posts and the fact that Carter engaged in a “pattern of retaliatory mistreatment” from then on. The court found that the way Carter removed Lemaster Towing from the rotation list could lead a jury to find that he did so for an improper reason. The court also found it persuasive that at no point did Carter offer evidence of a valid neutral reason for his removal of Lemaster Towing from the rotation list. The court found that the Lemasters offered enough evidence to create a jury question over whether Carter violated the First Amendment and reversed the district court’s grant of summary judgment to Carter.
The court affirmed the district court’s grant of summary judgment to Lawrence County, finding no evidence that Carter’s “rogue” action of unilaterally removing Lemaster Towing from the rotation list was tied to any county policy or custom.
Last year, the Sixth Circuit found that Facebook account run by the city manager did not constitute state action despite posts on the account that relate to his official duties. U.S. Supreme Court announces that it will review case next term.
Lindke v. Freed, 37 F.4th 1199 (6th Cir.2022); Lindke v. Freed, ___U.S.___ (2023)
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0138p-06.pdf
In 2022, the Sixth Circuit made an important ruling that analyzed the application of the First Amendment to social media accounts run by public figures. James Freed, a city manager in Port Huron, Michigan, created a Facebook profile that he used for both personal matters and for announcements and information connected to his position with the city. After exceeding Facebook’s limits on the number of friends on a typical profile, he turned his profile into a “page” with 5,000+ “followers” instead of friends. He listed the city website and the city’s contact information in the “About” section of the page. In addition to posts about his private life and family activities, he posted information about city policies and initiatives, including information about public health directives connected to the COVID-19 pandemic. Kevin Lindke was a citizen who disapproved of Freed’s handling of the pandemic, and he began posting critical comments on some of Freed’s posts. Freed began deleting the comments and eventually blocked Lindke from being able to access his Facebook page or see and/or interact with his posts.
Lindke filed suit against Freed under Sec. 1983 of the Civil Rights Act, alleging a violation of his First Amendment rights. The district court ruled in favor of Freed, and Lindke appealed. The key question the appellate court had to analyze was whether Freed’s action constituted “state action.” The panel noted the tests historically applied by the U.S. Supreme Court and that the Sixth Circuit has, in practice, applied what it called the “state-official test,” which asks whether the official is “‘performing an actual or apparent duty of his office,’ or if he could not have behaved as he did ‘without the authority of his Office.’” Per the court, this test constitutes a version of the “nexus test” crafted by the Supreme Court, which asks whether a defendant’s action “may be fairly treated as that of the State itself.” The “state-official test” is thus the Sixth Circuit’s way of applying the nexus test when the alleged state actor is a public official, as it is asking whether a defendant’s action “may be fairly treated as that of the State itself.”
The court ruled that Freed’s Facebook posts did not constitute state action under this test, determining as a preliminary matter to review the Facebook page as a whole rather than looking at individual posts. The court then turned to factors that would indicate that having a Facebook page would constitute state action, such as when a law required the maintenance of a Facebook page, if state resources were used to maintain it or if it was the official account of a public official. In the case of Freed, these conditions were not present, so it was determined that his activity on the account did not constitute state action. No law required him to maintain the account, it was not part of his job duties, public resources were not used to pay for it and it was not set up as the “official account” of a public official. The court further noted that government employees were not used to maintain or create materials for the account. Thus, the court determined that Freed operated the account as a personal account, despite the fact that he sometimes posted materials related to his job as city manager.
The court noted that its approach contrasts with the analysis employed by other circuits. Perhaps because of this split in how several circuits have approached the issue, the U.S. Supreme Court granted a writ of certiorari on this case on April 24, 2023, meaning it will review the case during its next term. Thus, while the approach in Lindke remains in place for the moment, readers should be aware that this may change depending on the action of the Supreme Court.
District court grants summary judgment to district and employee on federal claims regarding students’ suspensions for violation of marijuana policy; dismisses remaining state law claim without prejudice.
Stanford v. Northmont City School Dist., S.D.Ohio No. 3:19-cv-399, 2023 U.S. Dist. LEXIS 21882 (Feb. 8, 2023).
https://casetext.com/case/stanford-v-northmont-city-schs-1
This case involved the suspension of two African American high school students (J.S. and J.E.) for violating Northmont City School District’s marijuana policy. Both students claimed that they were searched in violation of the Fourth Amendment because of their race and were wrongly suspended. Both students appealed their suspensions to the board of education and lost. Both appealed to the court of common pleas, which found that neither suspension violated the students’ constitutional rights but found the cases moot. J.S. appealed to the Second District Court of Appeals, which affirmed on mootness alone (SLS-2021-2).
J.S. and his parents filed this action on Dec. 23, 2019, and added J.E. and his mother as plaintiffs in their second amended complaint, filed on Nov. 25, 2020. The remaining claims before the district court were a 42 United States Code 1983 (Sec. 1983) claim alleging the district deprived the students of their right to an education by searching and suspending them; Fourth Amendment claims challenging the searches of the students; due process claims challenging how the students were suspended; racial discrimination and equal protection claims that the students were treated differently from white students when they were suspended; and state law claims of negligent supervision against the district.
The court granted the district’s summary judgment motion on all the plaintiffs’ federal claims. It concluded that the defendants were entitled to qualified immunity on the Sec. 1983 claims, that the students’ parents were not proper Sec. 1983 plaintiffs and that there is no federal right to a public education. It dismissed the Fourth Amendment claims, concluding that the district had more than reasonable suspicion to perform the minimally intrusive searches it performed in both instances. The court concluded that the district provided due process, through its agents, by explaining the charges and providing evidence that the students violated the marijuana policy, before giving the students the opportunity to tell their side of the story. The court concluded that the plaintiffs’ Title VI claims fall short as a matter of law, that the high school principal cannot be sued under Title VI, that the plaintiffs identified no relevant comparators and that there was no evidence of intentional discrimination. The court dismissed the plaintiffs’ equal protection claims because they could not identify comparators or provide evidence of intentional discrimination.
The court declined to exercise supplemental jurisdiction over the remaining state law claim and dismissed it without prejudice.
Sixth Circuit upholds district court determination that school district did not fail to meet its child-find obligation regarding student with escalating behaviors at school.
Ja.B. v. Wilson Cty. Bd. of Edn., 61 F.4th 494 (6th Cir.2023).
https://law.justia.com/cases/federal/appellate-courts/ca6/22-5417/22-5417-2023-03-06.html
Ja.B. began attending eighth grade at Mount Juliet Middle School in Wilson County Schools (WCS) following his family’s move from Illinois to Tennessee in 2017. Prior to this move, Ja.B. had no formal mental health diagnosis but struggled to regulate his emotions from an early age. Most of Ja.B.’s behaviors of concern occurred at home. Ja.B.’s Illinois school records reflect that he was meeting both academic and behavioral expectations. He had no safety plan, individualized education program (IEP) or Section 504 plan.
Prior to the beginning of the 2017-18 school year, Ja.B.’s mother requested a tour of the school after explaining his anxiety, hoping that a tour might ease the transition. Although she was told that a tour was not possible, Ja.B.’s mother was able to see the school briefly. She met with Ja.B.’s counselor and discussed his background and needs with her.
After an uneventful two weeks, Ja.B. began experiencing behavioral episodes and receiving disciplinary referrals. His mother reached out to the school to explain Ja.B.’s behavioral history and suggest strategies that had helped in the past. On Sept. 8, she requested assistance and intervention from the school. After a few difficult days at school, Ja.B.’s behavior escalated at home, and he was admitted to Vanderbilt University Medical Center on Sept. 20 and stayed there until Sept. 27.
Following his discharge, Ja.B.’s parents met with the school again and discussed his discharge, new medications and the possibility of an IEP or Section 504 plan. The school said a 504 process would come first and the possibility of an IEP would follow, depending on the 504 plan’s efficacy. Ja.B. experienced a few more disciplinary referrals over the next few weeks, culminating with his arrest by a school resource officer. He was charged with disorderly conduct and resisting arrest, although the charges were eventually dropped. Ja.B. was suspended pending a hearing, and his parents withdrew Ja. B. and home-schooled him for the rest of the school year. They enrolled him in a private school for the 2018-19 school year. During the year, Ja.B. was readmitted to the hospital in November 2018 and January 2019, and attended a residential treatment center for two months. Ja.B. was able to finish the 2018-19 school year and the 2019-20 school year at the private school.
On May 1, 2019, Ja.B.’s parents filed a due process complaint alleging that WCS denied Ja.B. a free appropriate public education (FAPE) by failing to identify and evaluate him for special education services and failing to design and implement an IEP for the 2017-18 and 2018-19 school years. As a result of the complaint, WCS initiated an evaluation and determined that Ja.B. was eligible for special education and related services.
After a four-day hearing, an administrative law judge (ALJ) from the Tennessee Department of Education issued a final order determining that WCS did not deny Ja.B. FAPE because it did not fail to identify or evaluate him for special education services. As a result, the ALJ determined that Ja.B.’s parents were not entitled to reimbursement for his private school education.
The parents filed a complaint in federal court. The magistrate judge issued a report and recommendation affirming the ALJ’s findings, and the district court adopted and approved the magistrate’s report and recommendation. The plaintiffs appealed to the Sixth Circuit Court of Appeals.
The circuit court stated that a claimant in a child-find case must show that the school officials overlooked clear signs of disability and were negligent in failing to order testing or that there was no rational justification for deciding not to evaluate. Ja.B.’s parents alleged the WCS violated its child find obligation, citing their frequent communications with the school, his behavior at the school resulting in repeated suspensions, his admission to Vanderbilt Medical Center and his arrest following a series of behavioral escalations at the school.
School officials noted that the school did provide supports to Ja.B. The assistant principal testified that the student’s behaviors, while enough to warrant disciplinary referrals, were not to the point of requiring a special education referral. Following his hospitalization, the school began the 504 process, which required a two-week data collection period. The school principal and 504 coordinator both testified that WCS used a tiered response to intervention approach so that students were not improperly referred for special education services.
Based on the facts that Ja.B. had no history of receiving special education services, attended WCS for a very brief time and had recently moved across state lines, and that the district may not have been aware of his formal diagnoses, the circuit court concluded that WCS officials did not violate their child-find responsibilities. The court stated: “It is true that WCS was neither as communicative, nor responsive, nor proactive as it could have been to meet Ja.B.’s needs and to respond to his parents’ concerns. Still … we cannot say that WCS officials ‘overlooked clear signs of disability and were negligent in failing to order testing, or [had] no rational justification for not deciding to evaluate.’” However, the court also cautioned that its decision was not license for districts to delay identification or evaluation of students or otherwise “drag their feet with respect to their IDEA obligation” when there were clear signs that a student, even if enrolled only for a short time, may have a disability.
Because of its decision regarding denial of FAPE, the circuit court concluded it did not need to address the appropriateness of Ja.B.’s placements at the private schools.
Sixth Circuit holds student’s placement in special education classroom violates his LRE rights but does not constitute discrimination under Section 504 and ADA.
Knox County. v. M.Q., 62 F.4th 978 (6th Cir.2023).
M.Q. is a child diagnosed with autism, who has developmental delays in three key areas: 1) communication skills, 2) social/emotional behavior and 3) prevocational skills. Despite his challenges, M.Q. is a well-behaved and bright student who is “compliant, cooperative and responds well to redirection.” Moreover, M.Q.’s preschool performance showed that he had the capacity to learn and grow with respect to his communication, social/emotional and prevocational skills, as demonstrated by progress he made on his IEP goals throughout preschool. M.Q. was enrolled in Knox County Schools’ preschool program from 2016-19. The district initially placed M.Q. in self-contained preschool classrooms for two years and decided to place him in an inclusive preschool classroom in the third year. His IEP team established four IEP goals for M.Q. to work toward, each of which targeted his communication, social/emotional and prevocational abilities. The eight progress reports M.Q. received that year commented that M.Q. was “making good progress toward his IEP goals.”
In May 2019, the IEP team met to craft M.Q.’s kindergarten IEP. The district wanted to place M.Q. in a general education class primarily for nonacademic portions of the school day and in a self-contained special education classroom for the better part of his academic instruction. M.Q.’s parents objected to the self-contained special education classroom placement and instead wanted him to remain in the regular education classroom full-time with the aids and services he needed. Ultimately, M.Q.’s parents refused to sign off on the proposed IEP and requested a due process hearing with the Tennessee Department of Education. They alleged that the district’s proposed placement deprived M.Q. of the right to be educated in his least restrictive environment (LRE) under the Individuals with Disabilities Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Sec. 504) and the Americans with Disabilities Act (ADA). The hearing officer heard the case and concluded that the self-contained classroom was not his LRE and thus violated IDEA, and M.Q.’s claims under Section 504 and the ADA were pretermitted as duplicative given his success under IDEA.
The district petitioned the district court to review the hearing office’s LRE ruling. M.Q. objected to the hearing officer’s determination on his Sec. 504 and ADA claims. The district court affirmed the part of the hearing officer’s decision finding an IDEA violation but overturned his conclusion that M.Q.’s Section 504 and ADA claims were pretermitted. However, it ultimately overruled M.Q.’s objection on the merits, explaining that M.Q. failed to show how the district discriminated against him in crafting his IEP. Both parties appealed.
On appeal, the Sixth Circuit Court of Appeals affirmed the judgment of the district court. The court found that it was appropriate for the district court to weigh M.Q.’s progress reports heavily in its analysis of whether M.Q. made progress on his IEP goals in the general education preschool setting, but that these were not the only data points relied on by the court that led it to reach its decision. The court of appeals rejected the district’s argument that the district court failed to independently reexamine the administrative record and instead narrowly focused on M.Q.’s progress report scores. As a result, the court of appeals found that the district court did not err in finding that M.Q. made progress on his IEP goals in the general education classroom.
The court of appeals also found that the district court did not err in finding that the supports M.Q. required could adequately be provided in a mainstream setting. The court held that the district could not prevail in an LRE case merely on the grounds that it believed mainstreaming is “impossible, impractical or counterproductive” because “the situation became challenging.” The court highlighted several pieces of evidence that supported the idea that M.Q.’s indicated supports and services could be provided in the regular education setting. The court rejected the district’s argument that the purported benefits of the self-contained classroom “far outweigh[ed]” those of the regular classroom and affirmed the district court’s judgment that the district wrongfully placed M.Q. in a more restrictive educational setting than his disability required.
After reviewing M.Q.’s claims that the district court applied an incorrect legal standard to M.Q.’s Sec. 504 and ADA claims, the court of appeals concluded that the court properly applied the law. M.Q. argued that the district’s failure to appropriately mainstream him constituted a distinct form of discrimination under Sec. 504 and ADA because both laws impose affirmative duties to integrate students with disabilities. The court rejected this argument, finding no legal support for M.Q.’s proposition. As a result, the court of appeals affirmed the district court’s denial of M.Q.’s claims under Sec. 504 and ADA.
U.S. Supreme Court rules that IDEA exhaustion is not required when a plaintiff in federal court seeks a remedy that is not available under IDEA, such as money damages.
Perez v. Sturgis Pub. Schools, ___U.S.___, 143 S.Ct. 859 (2023)
https://www.supremecourt.gov/opinions/22pdf/21-887_k53m.pdf
Miguel Luna Perez was a student in the Sturgis Public School District. Perez is deaf, and he received services from the district through an individualized education program (IEP), including an aide to interpret classroom instruction using sign language. Perez allegedly went hours in the classroom in which his aides were absent or unqualified to provide the services that Perez required to benefit from his instruction. His parents further alleged that the district inflated Perez’s grades and advanced him from grade to grade inappropriately, which concealed the fact that Perez was not actually benefiting from his education. Ultimately, when it was time for Perez’s graduation, the district informed him and his family that he would not receive a diploma.
Perez’s parents then filed a complaint and request for a due process hearing under the Individuals with Disabilities Education Act (IDEA), alleging a denial of a free appropriate public education (FAPE). The parties settled the complaint prior to the administrative hearing, and the district agreed to provide some equitable relief to Perez in the agreement, including some additional education at the Michigan School for the Deaf. After settling the IDEA claim, Perez filed suit in federal court under the Americans with Disabilities Act (ADA) seeking compensatory damages for the same conduct that was the subject of the IDEA complaint. Notably, money damages are not an available remedy under IDEA. The district moved to dismiss the claim, arguing that the claim was barred because Perez had failed to exhaust the administrative process under IDEA.
The key disagreement in the case concerned the exhaustion requirement in IDEA. The exhaustion requirement is a rule in IDEA requiring that families who seek to bring an action in court for certain matters that are within the ambit of IDEA must first fully utilize — or “exhaust” — IDEA’s procedural safeguards before proceeding to court, in some cases even when the suit is nominally brought under another law. In this case, the question was whether Perez was required to exhaust the IDEA administrative remedies prior to bringing the action for money damages for the district’s conduct, as settling the IDEA claim outside the hearing process did not constitute exhaustion. The district’s argument was that because the underlying harm alleged in both the IDEA complaint and the ADA case was the same, Perez was required to exhaust his IDEA claim before bringing a lawsuit under ADA. Thus, the ADA suit for money damages should be dismissed. By contrast, Perez and his parents argued that because the remedy they sought in the ADA suit — compensatory money damages — was not available under IDEA, exhaustion was not required, and the suit should be permitted to proceed.
The court ultimately agreed with Perez and held that 20 United States Code (USC) 1415(l) did not bar Perez’s ADA claim because the remedy sought in the ADA suit was not available under IDEA. Justice Neil Gorsuch, writing for a unanimous court, conducted a close parsing of the text of 1415(l), looking at the complementary phrases “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under…[other laws, including ADA]” and “[e]xcept that before the filing of a civil action under such [other federal] laws seeking relief that is also available under this [provision] shall be exhausted” (emphasis added). The court noted that the definitions of the terms “remedies” and “relief” and their contextual use elsewhere in the statute indicate that the two terms mean the same thing in this statute. Thus, if a specific type of remedy is not available under IDEA, that remedy does not constitute “relief that is also available under” IDEA. Therefore, Perez was not required to exhaust under IDEA before filing a claim for money damages under ADA.
The court rejected the school district’s alternative reading of 20 USC 1415(l), which would have required exhaustion for any case brought under ADA if it concerned the same underlying harm as an IDEA claim, which was the reading adopted by the lower court. The district attempted to rely on the Supreme Court’s 2017 decision in Fry v. Napoleon Community Schools, 580 U.S. 154 (2017), another recent case concerning IDEA exhaustion, in which the court determined that whether exhaustion is required turns on whether “the gravamen of the plaintiff’s suit is … the denial of [FAPE].” The district in Perez argued that the reasoning in Fry directs the court to adopt its proposed harm-based inquiry in determining whether exhaustion applies to the claim. The court disagreed and noted that the Fry court explicitly avoided answering the question presented in Perez, noting that the key difference from Fry was that Perez admits that the conduct alleged does constitute a denial of FAPE but that, because he is seeking a remedy that is not available under IDEA, exhaustion is not required.
Notably, this ruling did not reach the merits of Perez’s claim — it merely allowed the ADA suit to proceed and remanded the case for further proceedings below.
Eleventh district court of appeals upholds the jurisdiction of trial courts to hold hearings on frivolous conduct hearings under the Open Meetings Act while appeals on the merits are ongoing and finds in favor of board of revisions on variety of matters raised by pro se relator.
State ex rel. Ames v. Geauga County Bd. of Revision, 2023-Ohio-1247
The Geauga County Board of Revision is a public body located in Geauga County, consisting of the county treasurer, county auditor and a member of the board of county commissioners selected by that board. It is a quasi-judicial body responsible for conducting hearings to determine the fair market value of property. Relator Brian Ames brought an action in the Geauga County Court of Common Pleas alleging that a meeting that occurred on Jan. 13, 2020, took place in violation of the Open Meetings Act (OMA) because the attendees at the meeting — the deputy treasurer and auditor and the county administrator — may not lawfully act as members of the board. Ames sought a finding that that the board violated the OMA, an injunction enjoining the board to comply with the OMA, a civil forfeiture of $500, court costs and reasonable attorney fees.
In the trial court, the board filed a motion for summary judgment, which was granted. Ames’ motion for summary judgment was dismissed. The court entered a judgment in favor of the board and indicated its intention to hold a hearing to determine whether Ames engaged in frivolous conduct and whether it would impose sanctions against Ames, pointing to Ohio Revised Code (RC) 121.22(I)(2)(b), which states that if the court “does not issue an injunction ... and the court determines at that time that the bringing of the action was frivolous conduct ... the court shall award to the public body all court costs and reasonable attorney's fees, as determined by the court.” In a previous decision, the Eleventh District Court of Appeals had not read the statute as to give “at that time” its plain meeting, meaning that a court would have to make a determination on frivolous conduct at the same time it declined to issue an injunction. Thus, a trial court would be empowered to enter an order denying the claim that a body violated OMA and then issue notice that it was scheduling a hearing on frivolous conduct. The trial court did so here and scheduled the hearing.
Ames filed his first appeal in this matter after the trial court’s ruling. His first appeal specifically focused on the grant of summary judgment to the board on the OMA case, and in a previous ruling, the appellate court upheld the trial court’s grant of summary judgment. Shortly after filing the appeal, Ames filed a motion in the trial court seeking to stay the proceedings on the frivolous conduct hearing because the appeal on the merits was pending. The trial court rejected this motion and scheduled a hearing in front of the magistrate to determine whether Ames had engaged in frivolous conduct. Ames’s request that the court determine that it lacked jurisdiction to hold the hearing and that the court vacate its judgment scheduling the hearing were also rejected.
The hearing on frivolous conduct and sanctions was held in January 2022, and the magistrate ultimately found that Ames had engaged in “objectively frivolous” conduct that was “egregious,” and that the board was adversely affected. The magistrate recommended an award of $1,485 in attorney’s fees to the board. The trial court subsequently adopted the magistrate’s recommendations and entered judgment to that effect. Ames again appealed. This appeal, which is the subject of the instant opinion, concerned two assignments of error: (1) the trial court lacked subject matter jurisdiction to conduct a hearing on frivolous conduct after he filed his appeal of its decision; and (2) the court erred in its determination that Ames’s conduct was frivolous.
The appeals court upheld the trial court on both counts. First, turning to the jurisdictional matter, the appellate court determined that while generally trial courts lose jurisdiction over matters except to aid in an appeal once it has been filed, they still retain jurisdiction to “consider collateral matters not related to the merits of the action.” The court pointed to precedent, which upheld trial courts’ ability to determine matters such as sanctions or contempt of court matters while merits appeals were pending. The appellate court would still have the authority to overturn rulings on such matters if it determined it was appropriate to do so consistent with its ruling on the merits. The court found that the frivolous conduct hearing was analogous to these matters, so the trial court could proceed on that matter. The court also rejected the remainder of Ames’s arguments, including finding that because Ames failed to object to the magistrate’s specific finding that his conduct was frivolous, as is required by the Ohio Rules of Civil Procedure, he forfeited such an argument. The court noted if a claimant does not object to a magistrate’s findings as required by the rules of civil procedure, a court’s adoptions of a magistrate’s findings will only be disturbed if a claimant can show “plain error,” which does not exist here. The court lastly noted that while Ames was a pro se litigant, such litigants are not entitled to special treatment and, in any case, given Ames’s history, he was not the typical pro se litigant.
Ohio court of appeals declines to award attorney’s fees in Open Meetings Act violation case.
State ex rel. Crilley v. Lowellville Bd. of Edn., 2023-Ohio-775.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2023/2023-Ohio-775.pdf
Ohio Revised Code (RC) 121.22(F) requires public bodies, by rule, to “establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place and purpose of all special meetings.” In 2020, a trial court held that the rule that the Lowellville Board of Education used to provide notice of special meetings was silent to any method or manner of notifying the general public of the time, place and purpose of special meetings. The trial court awarded statutory damages to the plaintiffs in the case and declined to award attorney’s fees to either party. The plaintiffs appealed, and the court of appeals found that the trial court “merely parroted the statutory language regarding attorney’s fees, without an explanation for its refusal to award attorney’s fees.” The court of appeals remanded the matter to the trial court in order for the court to engage in the required statutory analysis.
On remand, the trial court again concluded that statutory attorney’s fees were not warranted. The trial court opined that the offending notice policy had been drafted by an outside policy provider and adopted by the board without revision. The trial court further cited the board’s established written practice of posting notice of meetings, including time, place and purpose, on its public website at least 48 hours in advance of each meeting and providing notice of time and place for meetings within the same time frame to the local newspaper. The plaintiffs appealed.
On appeal, the court of appeals held that the trial court applied the appropriate standard of review and its conclusion that attorney’s fees were not warranted was not unreasonable. The court agreed that the board acted as a “well-informed public body” and was reasonable in its belief that its adoption of the notice policy it obtained from an established policy provider, coupled with its established, but unwritten, practice of posting its meeting agendas on its website prior to each meeting complied with RC 121.22(F). Accordingly, the judgment entry of the trial court declining to award attorney’s fees was affirmed.
Note: In light of this case, OSBA has recommended policy updates to its model policy BDDA, Notification of Meetings. OSBA policy subscribers can learn more about those recommendations in the March issue of Policy Development Quarterly or by contacting an OSBA policy consultant.
Federal district court finds that states cannot discriminate based on gender identity and sexual orientation in the administration of SNAP and SNAP-Ed programs.
Tennessee v. U.S. Dept. of Agriculture, E.D.Tenn. No. 3:22-cv-257, 2023 U.S. Dist. LEXIS 72426 ( March 29, 2023).
https://caselaw.findlaw.com/court/us-dis-crt-e-d-ten-nor-div-at-kno/2197724.html
On May 5, 2022, the U.S. Department of Agriculture (USDA) issued a memorandum announcing the agency’s interpretation of the prohibitions on sex discrimination contained in the Food and Nutrition Act (FNA) and Title IX. In its memo, USDA concluded that Title IX and FNA prohibit discrimination based on gender identity and sexual orientation. USDA’s memo directed state agencies to “expeditiously review their program discrimination complaint procedures and make any changes necessary to ensure complaints alleging discrimination on the basis of gender identity and sexual orientation are processed and evaluated as complaints of discrimination on the basis of sex.” Contemporaneously with the May 5 memo, USDA issued a cover letter, a “Questions and Answers” document and a supplemental memorandum regarding timelines and guidelines for implementing the revised nondiscrimination statement and posters.
On Nov. 17, 2016, USDA issued a notice of proposed rulemaking (NPRM), which proposed an update that required states to comply with Title IX and FNA “to the effect that, no person in the United States shall, on the grounds of sex … be excluded from participation in, be denied the benefits of, or be otherwise subject to discrimination under the Supplemental Nutrition Assistance Program (SNAP).” On June 14, 2022, USDA issued the Final Rule based on the NPRM, but the Final Rule added the clause “including gender identity and sexual orientation” after the word “sex” in the original language.
Twenty-one states, including Ohio, filed a motion for preliminary injunction. Many of the states’ claims turned on their contention that the rule and guidance documents prohibited all gender-identity and sexual-orientation discrimination “at the institutional level,” despite USDA’s express assurances that they relate only to the administration of SNAP and do not “bear on issues related to ‘maintaining sex-separated bathrooms and locker rooms, offering sex-separated athletic teams, or using biologically accurate pronouns.’”
USDA filed a motion to dismiss the case for lack of jurisdiction on the basis that the states lack standing to sue. To have standing, a plaintiff must have 1) suffered an injury in fact; 2) that is fairly traceable to the challenged conduct of the defendant; and 3) that is likely to be redressed by a favorable judicial decision. The court found that the costs associated with the requirement that plaintiffs review their program discrimination complaint procedures, make necessary changes and update documents, pamphlets, websites, etc. with a revised nondiscrimination statement were injuries-in-fact that were traceable to the rule and guidance documents because they imposed immediate compliance costs. The court also found that their injury of compliance costs was redressable by a favorable decision setting aside the rule and guidance documents. As a result, the court found that the plaintiffs’ allegations were sufficient to confer standing.
USDA also argued that its guidance documents were not reviewable by the court because they were not a final agency action. The Administrative Procedures Act (APA) “permits federal courts to review only ‘final agency action.’” To qualify as final agency action, the action must “1) mark the consummation of the agency’s decision making process and 2) be an action by which rights or obligations have been determined, or from which legal consequences will flow.” In this case, the court found that the guidance documents showed the “telltale signs of a nonbinding policy statement.” The May 5 memo was labeled as merely a “policy update” and the bulk of the memo was dedicated to interpreting the text of existing statutes. The court found that the memo did not impose new obligations or command regulated parties; it simply reiterated obligations under preexisting law, both as to their articulation of what Title IX and FNA’s sex discrimination prohibitions protect and as to smaller administrative tasks. As a result, the court found that the guidance documents were not “final agency actions” subject to review by the court under APA.
The court then turned its attention to the plaintiffs’ contention that the inclusion of the clause “including gender identity and sexual orientation” in the final rule was not a logical outgrowth of the NPRM’s language prohibiting discrimination “on the grounds of sex.” Because of this, the plaintiffs argued the final rule should be invalidated. In analyzing this claim, the court reviewed the U.S. Supreme Court’s decision in Bostock, which held that a “prohibition against discrimination on the basis of gender identity and sexual orientation was not merely a logical outgrowth of a prohibition against discrimination because of sex, but inherent in the ordinary public meaning of the language since its inception.” The district court applied a similar analysis and held that it would defy logic to conclude that the inclusion of the clause “including gender identity and sexual orientation” in the final rule — a mere reiteration of what is inherent in the ordinary language of Title IX and FNA — was not a “logical outgrowth of the NPRM’s prohibition on sex discrimination.” As a result, the court held that the final rule was a logical outgrowth of the NPRM and satisfied the procedural requirements of APA.
The plaintiffs also argued that the final rule should be set aside as “arbitrary and capricious” under APA. APA states that, when reviewing agency actions, the reviewing court shall hold unlawful and set aside agency action, findings and conclusions found to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” The plaintiffs argue that the final rule is arbitrary and capricious because USDA “failed to consider the reliance interests associated with banning sex-separated facilities.” The court rejected this argument, finding that the final rule did not impact those interests in any way. The court stated that “no matter how many times Plaintiff States insist otherwise, protecting poor people’s access to the benefit of food stamps does nothing to redefine access to a school restroom.”
Plaintiffs next argued that the final rule’s interpretation of the phrases “on the basis of sex” in Title IX and “by reason of … sex” in FNA is contrary to those laws. However, the court again cited the Supreme Court’s Bostock decision, which concluded that the “ordinary public meaning” of Title VII’s prohibition on discrimination “because of sex” in employment decisions inherently includes sexual-orientation and gender-identity discrimination “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The district court acknowledged that Bostock was not dispositive of whether Title IX and FNA are contrary to the final rule’s prohibition on gender identity and sexual orientation in the administration of SNAP. However, the court held that in the absence of any other binding precedent that determines the meaning of sex discrimination under Title IX and FNA, the reasoning in Bostock should certainly inform the court’s analysis in the case. Following the reason in Bostock, the court found that the plain text of Title IX’s sex discrimination prohibition also barred gender-identity and sexual-orientation discrimination. The court also found that the entire text and structure of Title IX and FNA support the interpretation of their sex-discrimination prohibitions to ban gender-identity and sexual-orientation discrimination in the administration of SNAP. Accordingly, the USDA’s motion to dismiss was granted as to the plaintiffs’ contrary-to-law APA claim.
The plaintiffs also claimed that the final rule violated APA for being contrary to several constitutional provisions, namely, the spending clause, the First Amendment, the 10th Amendment, the anticommandeering doctrine, separation of powers and the nondelegation doctrine. The court found that the final rule was permissible under the spending clause, separation of powers doctrine and nondelegation doctrine because Congress unambiguously set forth clear instructions to condition SNAP funds on states’ agreement not to use the funds to engage in gender-identity or sexual-orientation discrimination. The court found that the rule was permissible under the 10th Amendment and the anticommandeering doctrine because it did not supersede powers historically reserved to the states or command the states to enact a regulatory program. The rule’s prohibition against sex discrimination under SNAP was a valid condition on the receipt of federal SNAP funds rather than a “command … to enact state regulation.” The court also rejected the plaintiffs’ First Amendment claims, finding that the rule did not regulate state-employed teachers’ and professors’ speech. The court also held that the states did not have a cause of action against the federal government to assert religious-liberty or free-expression rights.
For these reasons, the court granted the USDA’s motion to dismiss and denied the plaintiffs’ motion for preliminary injunction. In its conclusion, the court noted the following: “This case is about food stamps and nutrition education, not bathrooms, sports teams, free speech or religious exercise. … The Court’s task was to determine whether Title IX and the FNA protect LGBTQIA+ people’s access to federally funded food-assistance benefits and nutrition education. And the answer is clear: states cannot discriminate based on gender identity and sexual orientation in the administration of SNAP and SNAP-Ed.”
TORT LIABILITY – SOVEREIGN IMMUNITY
Michigan state court dismisses school district and its employees from lawsuit stemming from mass shooting at school on the grounds of state law governmental immunity.
Myre v. Fine, Mich. No.22-192262-NO (March 3, 2023).
https://static.fox2detroit.com/www.fox2detroit.com/content/uploads/2023/03/Oxford-MSD-opinion112.pdf
A Michigan state court has granted a motion for summary disposition filed by a Michigan school district, Oxford Community Schools, and its employees in a lawsuit filed by the family of victims of a school shooting in the district. The suit resulted from a shooting at Oxford High School on Nov. 30, 2021, in which a student at the district shot and killed four students and injured 15 others at school. That student has since pleaded guilty in criminal court for charges connected to the shooting and is also listed as a defendant in the suit. The families filed suit against the district with claims of negligence, gross negligence and a violation of Michigan’s child protection law. The school district and its employees moved for summary disposition on the grounds of governmental immunity.
The court granted the district’s motion and dismissed the district and its employees from the suit. Michigan’s governmental immunity statute grants immunity from tort liability “if the governmental entity is engaged in the exercise or discharge of a governmental function.” The court noted that a school district educating students is a governmental agency engaged in the exercise of a governmental function and that the relevant analysis requires courts to look at the general activity involved and not the specific activities engaged in when the injury occurs. The court further noted that none of the six statutory exceptions to governmental immunity applied to the facts.
The plaintiffs argued that Michigan’s governmental immunity statute violates the equal protection clause of the Michigan Constitution by requiring plaintiffs to meet the higher gross negligence and proximate cause standards the statute requires, with their theory being that a lower threshold of liability would suffice if the plaintiffs were suing a private school instead of a public school. The court rejected this argument, noting that the plaintiffs had not alleged discrimination against a protected class or the burdening of a fundamental right that would elevate the inquiry to a more searching standard. Instead, the court analyzed the law under the deferential rational basis test and determined that the immunity statute met this standard.
The court then turned to the claims against the individual school district employees. Under the immunity statutes, an employee of a governmental entity is immune from suit if: (1) the employee reasonably believes they are acting within the scope of their employment; (2) the governmental agency is engaged in the exercise or discharge of a governmental function; and (3) the employee’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Michigan precedent directs courts to look at “the one most immediate, efficient and direct cause of the injury” to determine the proximate cause. The court determined that the district’s employees were not the proximate cause of the injuries — rather, the shooter’s firing of the gun was the proximate cause. The court found that no reasonable jury could find that the defendants’ conduct was the proximate cause under this standard, given the intentional conduct on the part of the perpetrator of the shooting, so dismissal was warranted. The court likewise rejected the plaintiffs’ attempt to argue that the school officials’ failure to report suspected child abuse by the shooter’s parents, which constitutes a violation of Michigan’s mandatory reporting provision, was the proximate cause of the shooting. The court stated that this provision does not constitute an exception to the governmental immunity statute or change the fact that the perpetrator’s conduct was the proximate cause of the injury.
TORTIOUS INTERFERENCE WITH A BUSINESS CONTRACT
Appeals court upholds dismissal of former employee’s claim of tortious interference with a contract, promissory estoppel and infliction of emotional distress against board of education and legal counsel.
Burks v. Dayton Public Schools Bd. of Edn., 2023-Ohio-1227.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2023/2023-Ohio-1227.pdf
Shirlette Burks worked for Dayton Public Schools (district), in various positions, for over 50 years. In 2017, while she was serving as principal of Charity Adams Early Academy for Girls (academy), Burks called into her office two students who were allegedly engaged in a public display of affection. According to Burks, she explained the academy’s policy against public displays of affection and advised the students not to engage in it at school.
According to the mothers of the two students, Burks made derogatory statement to the students at the meeting. The mothers complained to Joseph Lacey, a member of the board of education. According to Burks, that complaint resulted in Judith Spurlock, the district’s director of human resources, asking Burks to either resign or be terminated.
Although Burks denied the allegations, she agreed to resign provided that the district agreed to keep the parents’ allegations “strictly confidential” and not interfere with Burks’s retirement and medical benefits. The director of human resources made an oral representation of agreement to these conditions, and Burks submitted her resignation. No written document was ever produced reflecting this oral agreement to keep the parents’ allegations confidential.
After her resignation, Burks was called to testify in March 2019 at an administrative hearing involving the termination of a district teacher. According to the hearing transcript, the attorney for the district questioned Burks about various charges made against her by the district, including the parents’ allegations from 2017. In June 2019, Burks testified in another administrative hearing involving the termination of a different district teacher. The hearing transcript reflects that the same attorney again questioned Burks about district’s charges against her. After an objection, the attorney stated that he was not aware of any confidentiality agreement on the matter.
In March 2022, Burks sued the district’s board of education, Lacey and Spurlock (the district defendants) for tortious interference with a contract. She also sued the district defendants, and the attorney and his law firm (law firm defendants), alleging promissory estoppel and intentional infliction of emotional distress. The law firm defendants filed a motion to dismiss, which the court granted. Burks filed a motion to amend her complaint against the law firm defendants, which the court denied. The district defendants also filed a motion to dismiss, alleging that the tortious interference with a contract claim must fail because the board could not interfere with its own employment contract. The district defendants also claimed that the board and its employees could not be found liable under the theory of promissory estoppel and were entitled to immunity. The court granted the district defendants’ motion to dismiss.
Burks appealed, alleging that the trial court’s denial of her motion to file an amended complaint against the law firm defendants was an abuse of discretion and that the court erred in granting the district defendants’ motion to dismiss because they did not satisfy the burden of proof.
Regarding Burks’s first claim, the appeals court stated that, to establish abuse of discretion, it must find that the trial court’s decision was unreasonable, arbitrary or unconscionable. It would not be sufficient to find that the decision was not the same decision the appeals court would have made. The court concluded that, in this case, the trial court provided a reasonable explanation for denying Burks’s motion to file an amended complaint against the law firm defendants: “We cannot find that the trial court abused its discretion in rejecting Burks’ attempt to revive the dismissed claims absent any variation in the facts or evidence alleged in the original complaint.” Further, the court found that Burks did not state facts that establish a fiduciary duty owed to her by the law firm defendants.
Regarding Burks’s second claim that the court erred in dismissing her claims against the district defendants, the appeals court reviewed each claim in turn. On the claim of tortious interference with contract, the appeals court concluded that the trial court did not err in dismissing Burks’s claim of tortious interference with a contract against the board defendants because the board was a party to the contract. It also acted properly when dismissing claims of tortious interference with the contract against two district officials.
On the claim of promissory estoppel, the appeals court concluded that each of the officials and employees, acting on behalf of the board, was engaged in a governmental function when engaged in the activities described in Burks’s complaint. While so engaged, they retain the protection of immunity for promissory estoppel claims, and the trial court properly concluded that Burks’s claim was barred as a matter of law.
Finally, on the claim of intentional infliction of emotional distress, the appeals court agreed with the trial court’s finding that none of the allegations in Burks’s complaint described behavior that would be considered intolerable in a civilized society or so outrageous as to go beyond the bounds of decency.
Tenth District upholds SERB finding that Cincinnati Public Schools did not commit a ULP when it reached an MOU with the carpenters union providing for straight, non-double-time pay during COVID-19-related building closures.
State ex rel. Intl. Union of Operating Engineers, Local 20 v. State Emp. Relations Bd., 2023-Ohio-1253.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2023/2023-Ohio-1253.pdf
The plaintiff labor union, which is the bargaining unit representative for carpenters and carpenter foremen employed by Cincinnati Public Schools (CPS), filed an unfair labor practice (ULP) against CPS in 2020 related to COVID-19. The collective bargaining agreement (CBA) contained the following provision: “When schools are closed because of an epidemic or other public calamity, and employees are not required to report to work, any employee in this bargaining unit required to work during such calamity, shall receive double the regular rate.” The CBA also contained a provision prohibiting strikes and lockouts. On March 16, 2020, CPS closed its school buildings in accordance with state public health orders related to COVID-19. CPS negotiated memoranda of understanding (MOUs) with unions representing other classes of employees but initially failed to reach agreement with the plaintiff union in this matter. Then, on April 23, 2020, CPS notified members of the union that it no longer required their work given the building closures and would no longer be paying the union members. On April 24, the parties reached an MOU in which CPS “recognize[d] and agree[d] that bargaining unit employees returning to work under this [MOU] might be entitled to double their regular rate of pay, pursuant to Article 8, Section 2 of the parties’ CBA,” but “[i]n the spirit of cooperation and shared sacrifice, the Union agrees to return to work at their regular rate of pay.” Union members returned to work on April 27, pursuant to the MOU.
On June 20, 2020, the union filed a ULP charge against CPS, alleging that CPS engaged in an illegal lockout from April 23 to April 27 in order to force the union to agree to straight pay wages when members would have been entitled to double time. The union did not first file a grievance as required by the CBA. The investigator from the State Employment Relations Board (SERB) ultimately issued a finding dismissing the charge that CPS committed a ULP and finding that the issues were purely a disagreement over contract interpretation. The union filed a motion for reconsideration to SERB, which was denied. The union then sought relief in the trial court, seeking a writ of mandamus directing SERB to find probable cause that CPS committed a ULP, which would have required the trial court to find that SERB abused its discretion in declining to find probable cause and hold a hearing on the ULP issue. They then filed the appeal at issue here.
The appellate court declined to reverse the trial court. The court noted that its role in reviewing SERB’s action was limited — even more limited than that of the trial court, as its review power is only to determine whether the trial court abused its discretion in denying the writ. In this case, the appellate court did not find any abuse of discretion. The panel noted that the facts at issue appeared to revolve around a contractual dispute, noting the disagreement over specific language in the CBA, specifically surrounding when double-time pay was warranted. It also found issue with the fact that the union did not avail itself of the grievance procedure, as was the process required in the CBA when a party allegedly violates the terms of the CBA. The union attempted to argue that it was “oversimplification” to state that the disagreement was a mere contract dispute, alleging that it was the way CPS used the contract dispute that constituted the ULP. That is, by stating that CPS interpreted the CBA to enable it to not pay the union members at all, it was forcing the union to the table to agree to straight pay wages when members should have been paid double time. The court again noted that if the union felt this was the case, it should have availed itself of the grievance process outlined in the CBA. The court likewise pointed to the fact that the union waited two months to allege a ULP and to the fact that the MOU reached between CPS and the union confirmed that the practice would not be considered precedent setting.