by Erin Wessendorf-Wortman | Jun 7, 2021 | General, School Management
This case arose because a philosophy professor at Shawnee State University (Portsmouth, Ohio) refused to abide by the University’s policy requiring that he refer students with pronouns corresponding to their gender identity. The professor is a devout Christian whose religious convictions influence his thoughts on human nature, marriage, gender, sexuality, morality, politics, and social issues.
At the start of the 2016-17 school year, the University informed its faculty that they were required to refer to students by their preferred pronouns. The professor was informed that he would be disciplined if he refused to use a pronoun that reflects a student’s self-asserted gender identity. In his class that semester, a student requested to be referred to utilizing the female pronouns, and the professor would not oblige. The professor then requested accommodations for his religious and personal views. The student then filed a Title IX complaint against the professor. The professor’s request for religious accommodations were denied by the University, and the Title IX complaint resulted in a conclusion that the professor created a hostile environment for the students in his class; a violation of the University’s nondiscrimination policies, which resulted in discipline.
Then, the professor filed a lawsuit alleging that the University violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Ohio Constitution, and his contract with the University.
The Sixth Circuit found that First Amendment free speech rules apply differently when it is government speech. Normally when public employees are speaking pursuant to their official duties, they are not speaking as citizens with First Amendment protections: therefore, the Constitution does not protect their speech/communications from employer discipline. However, in this case, the Sixth Circuit highlighted its belief that professors at public universities retain First Amendment protection- at least when engaged in core academic functions, such as teaching and scholarship.
The Court rejected the argument that “…teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). The Court recognized the professor’s rights to academic freedom and freedom of expression within this case, including within that academic freedom the choice to use of pronouns to shape classroom discussion. At the university level, this professor was able to make choices regarding gender identity for appropriate classroom discussion in his political philosophy courses.
In summary, the Court remanded the case back to the lower court for the lower court to issue a decision in compliance with the First Amendment rights recognized by the Sixth Circuit.
What this means for your District
While this case deals with speech from a university professor, and not that of a K-12 educator, it is a good case to be aware of when faced with situations that may arise from staff members who refuse to refer to a transgender student with the student’s preferred pronouns or nicknames. Schools are required to recognize the academic freedoms that exist for educators- but how this will be balanced against the needs of minor students in the future will be one to watch. In this case, the Court was not remotely persuaded by the arguments of the University that a hostile environment was created by the professor’s actions against the transgender students in his class, because the Court was not presented with any evidence or arguments that the student(s) was denied any educational benefits or opportunities.
Meriwether v. Hartop, (C.A. 6, 2021) 992 F.3d 492
by Erin Wessendorf-Wortman | Jun 29, 2020 | Board Policy & Representation, General, Labor and Employment
The United States District Court for the Southern District of Ohio recently ruled in favor of a school district when an employee brought disability discrimination and retaliation claims after he was terminated for working for the local police department while being out on sick leave. Schwendeman v. Marietta City Schools, S.D. Ohio No. 2:18-CV-588, 2020 WL 519626 (Jan. 31, 2020).
The Plaintiff in this case was a bus driver employed by the Defendant school district, who also worked as a noon duty supervisor throughout the school day. In August of 2016, the Employee was required to have surgery on his foot. Following surgery, the Employee requested sick leave in order to recover. The Employee’s sick leave request was granted and the Employee returned to work on October 27, 2016.
When the Employee returned to work, the District set up a meeting because an employee’s wife had seen the Employee walking around in a Belpre Police Department uniform while out on sick leave. The District called the Chief of Police and discovered that the Employee was a volunteer for the police department, hired through a local subcontracting company. The Employee acknowledged that he was volunteering with the police department, but was not specific as to what days he was working and whether or not he was getting paid. After holding two subsequent meetings, the District was unable to determine which days the Employee was working with the police department or whether he was receiving compensation. Shortly thereafter, the Employee sent the District an email asking about the status of the investigation. The District replied stating the investigation was closed because of their inability to confirm whether the Employee was paid by the police department or by their subcontractor or the exact dates in which the Employee was working while out on leave.
Unsatisfied with the District’s response, the Employee filed Charges of Discrimination against the District with the EEOC and OCRC for the events that transpired throughout the investigation. The Employee’s claims were denied along with his appeals. Shortly after the discrimination charges were filed, the District reopened the investigation in order to defend the allegations stated within the charge. At that time, the District received records from the police department indicating that the Employee had been paid for working six days for four hours a day during the time he was on sick leave.
Upon learning this information, the District sent the Employee a Notice of Suspension and a Notice of Proposed Discharge for working with the police department during his sick leave. The grounds for termination included violation of O.R.C. § 2921.13 “falsification for the purpose of obtaining governmental benefits”, and O.R.C. § 3319.141 “falsification of an application for sick leave from public school employment.” The notices also stated that the Employee was being disciplined for his dishonesty during the school’s investigation. The District ultimately terminated the Employee’s employment for the reasons stated above.
The Employee then filed Charges of Retaliation against the District with the EEOC and OCRC. Again, these charges and the appeals thereof were ultimately denied. The Employee then filed a grievance in accordance with the collective bargaining agreement. The grievance was ultimately withdrawn in order for the Employee to seek legal help. This suit followed.
Lawsuit
The Employee brought an action alleging disability discrimination, FMLA retaliation, Retaliation, and Intentional Infliction of Emotional Distress.
Disability Discrimination under the ADA and Ohio Law
The Court found that the Employee had established a prima facie case of disability discrimination and considered the Employee as “disabled” considering the fact that the Employee had foot surgery and was impaired for three weeks while recovering.
However, the Court agreed that the District had legitimate non-discriminatory reasons for their employment action: falsification of sick leave, falsification of benefits, and dishonesty were legitimate reasons for termination. Further, the Court found that the District had an “honest belief” in the non-discriminatory reason it made in its employment decision and therefore the Employee’s claims were unsupportable. The key inquiry in this regard is to determine whether the employer made a reasonably informed decision before taking action. (Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007).) In this case, the District reopened their investigation into the Employee after receiving charges of discrimination on an honest belief and in pursuit of new information: that the Employee worked with the Belpre PD on six days while on sick leave and had received payment from the subcontractor as a result of working with the Belpre PD while on leave. Upon learning this information, the District sent notices of termination based on these grounds.
The Court further shut down the Employee’s argument that he did not mislead the District nor did he falsify any documentation regarding his surgery or his need for sick leave. The Court determined that a reasonable jury could not doubt the District’s explanation that they terminated him for falsifying sick leave. The District terminated the Employee because they believed he was dishonest and falsified his sick leave. Additionally, the Court noted that even if the District was mistaken in believing that the Employee had been dishonest of falsified leave, such a mistake is not a sufficient reason to doubt the District’s honest belief. (Clay v. United Parcel Serv., Inc., 501 F.3d at 713-15.) Moreover, the Employee’s assertion that the District wrongly assumed he could perform his duties because he was working during sick leave is insufficient to cast doubt on the District’s honest belief. Furthermore, the Employee also failed to establish any evidence that would establish discrimination as the real reason for the District’s employment decision. Thus, summary judgment on the Employee’s ADA and Ohio law discrimination claims were appropriate.
Retaliation Under the ADA
The Employee also brought retaliation claims under the ADA. However, the Court found that there was not temporal proximity between the Employee’s protected activity (filing charges with the EEOC and OCRC) and the adverse employment action (termination). When there is some time lapse between the activity and the adverse employment action, the Employee must couple that with some other evidence of retaliatory conduct in order to show causation. (Little v. BP Expl. & Oil Co., 265 F.3d 357, 365 (6th Cir. 2001).) In this case, the Employee was terminated three months after he filed Discrimination Charges with the EEOC and OCRC. Thus, he must point to some other evidence of retaliatory conduct in order to show causation. The Employee attempted to show this retaliatory conduct by the fact that the District reopened the investigation into the Employee because he filed the Discrimination Charges. However, the Court had already previously determined the District properly reopened the investigation in order to respond to the allegations therein and not as a general response to the charges being filed. Thus, the Court ultimately concluded that the Employee failed to establish a causal connection between his protected activity and his termination. Therefore, his ADA retaliation claim failed.
Ultimately, all of the Employee’s claims failed and were dismissed. This case is support for school districts taking action based on an employee’s dishonest actions while out on leave, even when such action appears in close proximate time to certain protected actions of an employee (e.g. filing charges of discrimination with EEOC and/or OCRC). If a district learns new information it is not prohibited from acting on the new information even though an employee may have sought other legal avenues.
by Erin Wessendorf-Wortman | Mar 12, 2020 | COVID-19 (Coronavirus), Special Education, Student Education and Discipline
It should come to no one’s surprise that the state and federal laws do not allow for exceptions to the required timelines for ETRs, IEPs, etc. As discussed in other posts, in December 2009, in response to the H1N1 pandemic, the U.S. Department of Education issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)” which plainly stated that the U.S. Department of Education would not waive the requirements for school districts to evaluate and assess during school closures. While the U.S. Department of Education issued a “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” the Department did not issue any comments regarding IEP and 504 timelines at this time.
The Ohio Department of Education has issued its own Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure originally on March 17th, and updated on March 27th.
Proper planning on your school district’s and case manager’s part will be essential in determining how your school district needs to act as schools are currently (as of March 30, 2020) closed until May 1st during which you would may be required to have an ETR or IEP meeting.
My school district is in the middle of conducting an ETR on a student. Do we continue with this evaluation?
Based on the Guidance and Considerations, you continue with the evaluation of the student. Your district may want to consider how much of the evaluation and assessments can be held remotely. If you can hold the ETR evaluations remotely, then you can hold the ETR meeting during the time of the closure via telephonic or video conference means. If pieces of the evaluation cannot be conducted because school is closed, the evaluation would need to be delayed and a prior written notice for the same should be sent. If you have not yet conducted the evaluation and assessments, another option to consider is waiving the reevaluation and delaying it until return to the in-person education with parental consent or to conduct a records review. The guidance from the Ohio Department of Education indicates that all services should still be provided if parents consent to waive reevaluation.
Are we required to hold in-person meetings for ETRs and IEPs during a school closure?
If school closes, IEP teams are not required to meet in person. However, according to the Guidance, schools must continue working with parents and students with disabilities, to develop required documents – ETRs, IEPs, 504s, etc. If a plan or evaluation for a student expires during the time of school closure due to COVID-19, IEP/504 teams should offer to meet via telephone conference or videoconference with the parents. School personnel should attempt to determine the specific services that can be provided during the ordered school-building closure period. If the parent does not agree with meeting via telephone or video conference, then the meeting should be delayed until school reopens according to the Guidance.
What about evaluations and plans developed under Section 504?
The same principles apply as discussed above for ETRs and IEPs to those activities conducted by schools for a student with a disability under Section 504 according to the Guidance. You will want to review your school district’s 504 polices to determine 504 plan review and reevaluation timelines, as there is no requirement in federal law for how often must occur.
How do we help our staff in planning for this potential?
School district personnel should look at their evaluation and IEP timelines to determine which items may expire during the next few weeks/months of the 2019/2020 school year. It would be prudent to plan how items may be advanced or to begin discussions now with parents on what the plan will be in the event of a school closure.
by Erin Wessendorf-Wortman | Jan 6, 2020 | Board Policy & Representation, General, School Management
The Eleventh District Court of Appeals was recently faced with the issue of whether Ohio’s Open Meetings Act requires the meeting minutes of a public body to be accurate enough to show the specific reasons a Board has entered into executive session.
In State of Ohio ex rel. Ames v. Brimfield Township Board of Trustees, Ohio App. 11th Dist., No. 2019-P-0017, 2019-Ohio-4926, Ames alleged that the board wrongfully entered into executive session for matters not contained in the exceptions listed in R.C. 121.22(G). The basis of Ames claim was that the Board’s meeting minutes failed to state the specific purpose for which they entered into executive session. The Board argued that they were only required to make a specific reference to the reason for entering into executive session in the motion and the vote held during the open meeting, but were not required to provide a description of the applicable exception in their meeting minutes.
The Open Meetings Act requires all public officials to take official action and conduct all deliberations in open meetings unless excepted by law. R.C. 121.22(A). These exceptions are listed in R.C. 121.22(G), which allows a Board to enter into executive session in order to consider any of the matters listed in R.C. 121.22(G)(1)-(8). In this instant case, the Board claimed they entered into executive session in accordance with R.C. 121.22(G)(1) in order to consider the appointment, employment, dismissal, discipline, demotion, promotion… of a public employee. Furthermore, if a board enters into executive session pursuant to R.C. 121.22(G)(1), the motion and vote to do so must state the purpose for doing so. In this case, a member of the Board testified that at each of the meetings referenced in the complaint, the Trustee making the motion to move into executive session referenced the relevant exception stated in R.C. 121.22(G)(1). Thus, the Board believed that they were in compliance with the Open Meetings Act.
However, not only does the motion and vote to enter into executive session need to state the purpose for doing so, Ohio law requires the Board’s meeting minutes to reflect the “general subject matter” of discussions in executive session. R.C. 121.22(C). Thus, the court in this case was required to determine whether the meeting minutes must reflect the specific reason a Board entered into executive session, or whether the action taken properly in the meeting was enough to prove legality. The court determined that the meeting minutes must reflect the specific reason for entering into executive session. In doing so, they concluded that when a Board enters executive session, not only must the motion and the vote to enter into executive session need to state the purpose for doing so, the Board’s minutes must specifically reference each of the purposes for which the executive session was held. Therefore, if the Board enters into executive session pursuant to one of the exceptions listed in R.C. 121.22(G), the minutes should reflect one or more of the eight purposes listed therein, but need not provide any further specificity.
This case serves as a great reminder for school boards of education, and school treasurers, to ensure that the reason(s) for entering executive session are explicitly stated upon the motion and vote to enter into executive session, and for such reasons to be included with the same specificity in the meeting minutes. The failure to include the permissible reasons for entering into executive session within meeting minutes, even if appropriately motioned and voted on in a meeting, could result in technical violations of the Open Meetings Act, which may result in unfavorable court decisions and awards of attorneys fees.
by Erin Wessendorf-Wortman | Jan 3, 2020 | Board Policy & Representation, General, Labor and Employment, School Management
Like students, teachers do not shed their constitutional right to free speech while at school. However, their rights are not without limits as the Sixth Circuit demonstrated recently when it issued a ruling upholding termination of a teacher. In Sensabaugh v. Halliburton, the District’s head football coach posted concerns on Facebook about the conditions he found when visiting an elementary school (a visit unrelated to his job). One of these posts included photos of a classroom and one included the faces of several students. District officials tried to contact Sensabaugh in an effort to explain their concern that this post could violate school policy as well as FERPA. However, they were unable to get in contact with him.
Meanwhile, Sensabaugh posted a separate entry on Facebook discussing his concerns with prisoners working at the high school. Again, school administration reached out to Sensabaugh to discuss their concerns over the posts. During their conversation, the administration informed Sensabaugh that he did not need to delete the post, but instead asked him to remove only the picture of the students accompanying the post. Sensabaugh yelled at members of the administration and informed them that he would not take the post down.
Following the conversation, administration drafted a “Letter of Guidance” which addressed Sensabaugh’s failure to remove the photos from Facebook, his conduct during the phone call, and other previous misconduct. This letter stated that the administration was not requiring Sensabaugh to remove his comments from his posts but directed him to remove the picture displaying the minor students. The letter clearly stated that failure to follow its directives could lead to discipline up to and including termination. Finally, Sensabaugh agreed to remove the photos from Facebook.
Following the Letter of Guidance, Sensabaugh’s behavior and actions continued to cause problems in the District. This led the administration to issue a Letter of Reprimand which placed Sensabaugh on administrative leave pending investigation. It was alleged that Sensabaugh accused the Athletic Director of coming to work under the influence of prescription pills, as well as threatening a football player and athletic trainer. The administration hired an independent law firm to investigate the alleged misconduct.
The investigator’s report concluded that Sensabaugh had engaged in unprofessional, insubordinate, threatening, and retaliatory behavior towards supervisors, students, and staff. It concluded that Sensabaugh’s actions had intimidated and undermined his coworkers and supervisors. The investigators went on to conclude that Sensabaugh’s repeated, belligerent, and confrontational speech to coworkers made it inconceivable for them to maintain an ongoing employment relationship. As a result, the investigator recommended that Sensabaugh’s employment with the district be terminated.
Administration notified Sensabaugh that the independent investigator had submitted their findings and recommended his termination. Sensabaugh was offered the opportunity to provide any statement or evidence in support of a less severe punishment. However, Sensabaugh never responded. The District then terminated Sensabaugh’s employment.
Sensabaugh sued, arguing that the District retaliated against him for exercising his First Amendment right to free speech. In order for a teacher to prevail on a First Amendment retaliation claim, he must show that: 1) he engaged in protected conduct; 2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that the adverse action was motivated at least in part by the protected conduct. Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002).
The Sixth Circuit Court of Appeals first determined that the Letter of Guidance was not an adverse action. The letter did not impose any discipline, but instead simply imposed directives that Sensabaugh needed to follow in order to avoid discipline. Likewise, the Court also found that the Letter of Reprimand was not an adverse action. Though the letter resulted in paid administrative leave, this still did not result in an adverse action. Ehrlich v. Kovack, 710 F.App’x 646, 650 (6th Cir. 2017).
There is no dispute that the termination was an adverse action. However, Sensabaugh must show that the Facebook posts were a substantial or motivating factor in the adverse employment action. Though the Letter of Guidance, Letter of Reprimand, and termination came within six months after the Facebook posts, temporal proximity alone is rarely, if ever, sufficient to establish the causation requirement. Here, there was no other indication to demonstrate that Sensabaugh was terminated because of his Facebook posts. The court noted that at no time leading up to the termination did the administration ask or require Sensabaugh to remove the Facebook posts. Instead, the letters acknowledged Sensabaugh’s right to comment on public concerns. He was asked to remove the content from his posts that violated FERPA. Additionally, the independent investigation substantiated other allegations of misconduct that supported termination.
Ultimately, the court determined that when deciding to end Sensabaugh’s employment, the District relied on several instances of misconduct which were unrebutted by Sensabaugh. There was no indication that the viewpoints expressed in his Facebook posts (other than the FERPA-protected images of students) played any part in the District’s decision to terminate. Therefore, the District did not violate his constitutional rights.
Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir.2019)
