by Ryan LaFlamme | Feb 14, 2023 | Board Policy & Representation, General
State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2023-Ohio-263
This particular case and its parties have an extensive legal and procedural history that we will not bore you with here. The pertinent fact for purposes of this article is the Ohio Supreme Court’s holding that “an invoice for a legal service provided to a public-office client is a public record, with the caveat that the narrative portion of the invoice describing the service is protected from disclosure by the attorney-client privilege.” Other information on the billing statements—e.g., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services—is considered nonexempt and must be disclosed.
The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) issued this opinion on remand from the Ohio Supreme Court to consider that very holding when analyzing whether invoices for legal services submitted to Rootstown Township, Ohio which were disclosed pursuant to a public records request were properly redacted. The Township redacted the narrative portions of the invoices.
The rationale behind the rule is that billing records describing the services performed for the attorney’s clients, and any other attorney-client correspondence may reveal the client’s motivation for seeking legal representation, the nature of the services provided or contemplated, strategies to be employed in the event of litigation, and other confidential information exchanged during the course of the representation. “A demand for such documents constitutes an unjustified intrusion into the attorney-client relationship.”
The appeals court conducted a confidential review of the invoices and determined the narrative portions of the invoices were properly redacted before being disclosed. The Court then went on to resolve the legal issues concerning the motion to dismiss in the case.
What does this mean for your District?
As the court noted in a footnote to the decision, the relator in this case, Brian Ames, was attempting to establish a new rule of law—the “[a]ttorney-client privilege does not apply to invoices for legal services provided to a public body.” The relator was not successful here and the contrary holding of the Ohio Supreme Court in this regard remains good law today.
by Ryan LaFlamme | Feb 14, 2023 | Board Policy & Representation, General
Jones v. Kent City School Dist. Bd. of Edn., 2023-Ohio-265
The Eleventh District Court of Appeals of Ohio (Ashtabula, Geauga, Lake, Portage, and Trumbull) reversed a trial court’s decision affirming a board of education’s decision to nonrenew a teacher. During the 2019-20 school year, the teacher had several instances of misconduct that resulted in a three-day suspension. Later that same school year, the teacher failed to report to work and did not follow the proper protocols for entering an absence, resulting in students being unsupervised. The teacher was told he would be placed on a full evaluation cycle and was likely to be non-renewed.
An in-person observation was conducted in January, and a second took place while observing a distance learning class on May 1. On May 15, an observation of a Google Meets session was conducted where the students “shar[ed] progress on their Google Sheets assignment.” The teacher was not present during this session, as he was on a medical leave, and the evaluation consisted of observing the students working on a project the teacher designed. The teacher was invited to but did not attend a post-conference meeting on May 28th.
The Board then took action to nonrenew the teacher’s contract, as recommended by the Superintendent. The teacher was advised of this decision, asked for the reasons for nonrenewal and was informed it related to those days he left early, failure to fulfill duties on an early release day and teacher work day, and his absence which left students unattended.
In April 2020, a Memorandum of Understanding was entered into by the Board and the teachers’ union, which specified the process to complete teacher evaluations for 2019-20 in accordance with House Bill 197. It provided that for those teachers subject to an evaluation under the CBA, if all required observations were completed by March 16, 2020, the evaluator shall complete the evaluation report by May 22, 2020, and if the required observations were not completed by that date, they would be conducted virtually. It provided that, based upon completion of such procedures, “all teachers subject to evaluation for the 2019-20 school year shall be deemed to have evaluations complied with for purposes of R.C. 3319.11.”
The court of appeals noted the standard on appeals in cases concerning nonrenewals. Under the applicable statute, the court does not have the jurisdiction to consider the merits of the decision of the Board concerning the reasons for nonrenewal. The Court may overturn such a decision only if there are procedural defects, i.e., failure to provide the required evaluations.
The court of appeals also addressed the jurisdictional argument of the Board, which was that only SERB had jurisdiction over the dispute because the dispute arose from an MOU that is part of the collective bargaining agreement. The court noted that while there can be cases in which even statutory rights may be subject to interpretation through an applicable CBA, which in turn could divest a court of jurisdiction, the statute applicable here may not be superseded by the CBA. Therefore, since determination of the evaluation procedures is statutory, and the application of the law is not dependent upon a collective bargaining agreement, the lower court had jurisdiction to hear this matter.
Having resolved the jurisdictional issues, the court turned to the merits of the teacher’s challenge, which in essence was that the third observation did not comply with the statutory requirements because the teacher was not present and the observation consisted of watching students work virtually on a project designed by the teacher. On this, the court agreed, holding that the statutes applicable to nonrenewal must be liberally construed in favor of teachers and that strict compliance, not substantial compliance is required with regard to nonrenewal procedures. The teacher was not present at all during the third evaluation and even though it was due to his own illness, there was no pre or post-observation conference. These were determined to be fatal procedural defects. The Ohio Supreme Court has previously held that a teacher’s medical leave of absence does not excuse a school board from complying with required nonrenewal procedures.
What does this mean for your district?
Procedural defects are essentially the only pathway a teacher has to overturn the decision of a board to nonrenew. Complying with those procedures is crucial. It would be wise to have a gameplan in place for any teacher being considered for nonrenewal. A checklist is also a good tool to make sure you are meeting procedural requirements in the lead-up to the Board’s action to nonrenew the contract. Finally, consider addressing how absences will be handled in the context of evaluations and nonrenewal in your collective bargaining agreements. Attorneys at Ennis Britton can assist you with crafting language to meet your needs.
by Ryan LaFlamme | Dec 12, 2022 | General
DeVito v. Clear Fork Valley Local Schools Bd. of Edn., 2022-Ohio-3894
The Fifth Appellate District upheld the termination of a principal accused of, among other things, misconduct related to her evaluation duties. The principal allegedly asked a teacher to sign a blank document, recorded inaccurate observation/walkthrough times on six occasions, and copied/cut out signatures and stapled them into other documents.
The referee appointed to the termination appeal agreed with the Board on almost all specifications given for the termination. The Board adopted the referee’s 237-page report, but also expressed disagreement with the specifications the referee did not uphold, citing its interpretation of the relevant facts found by the referee and applying them to its own policies. As such, the Board voted in favor of termination.
The principal appealed to the court of common pleas, which upheld the Board’s decision. On appeal, the principal raised a plethora of defenses the trial court allegedly ignored and errors that it made. Many were hyper-technical defenses related to due process and some were just seemingly made out of thin air. While on the one hand, this is eye-roll inducing for the reader (and the defense attorney), on the other hand, this gave the appellate court the opportunity to make some definitive statements about the law in this arena, which is always helpful.
First, the Plaintiff tried to argue that there were procedural defects, such as the failure to issue a twenty-one-day notice of the hearing, the treasurer failing to sign the notice informing the plaintiff that the Board would consider her termination, and that the referee and the Board both departed from the specifications for termination originally provided by the Board.
The court rejected these arguments essentially on the basis that there was no harm caused by minor procedural defects. It held that the hearing scheduling requirements are merely directory and not mandatory or jurisdictional. With regard to the treasurer’s signature, the court found that the notice contained a typed signature line containing the treasurer’s name, thereby giving appellant the identity of the treasurer and informing her that the letter came from the treasurer’s office. The notice was in substantial compliance with the law and was therefore sufficient.
As to the minor deviations between the referee’s findings and the Board’s specifications for termination, the court noted that the very cases cited by the principal all reject a rigid standard of matching a Board’s specification of grounds with identical grounds for termination found by the referee. Rather, Ohio appellate courts have allowed the Board’s evidence to stand as long as the totality of the circumstances indicate that the teacher was sufficiently apprised of the issue in question to present countervailing evidence if so inclined.
The principal also attempted to attack the merits of the Board’s decision on even more ridiculous grounds than her procedural defenses and the court was predictably unassuaged. It went sort of like this:
Principal: The Board had to give me a chance to change my conduct before they could terminate me!
Court: No, they did not.
Principal: The Board had to consider my employment record before terminating me!
Court: No, they did not.
Principal: They didn’t read the transcript! The Board had to read the entire transcript of the hearing before making its final decision!
Court: No, they did not. The Board only had to consider the referee’s report in making its final decision. The trial court did, however, have to read the transcript, and concluded that the transcript showed you deserved to be terminated.
What does this mean for my District?
We should always of course be careful to meet all procedural requirements of the applicable law and CBA. But if you forget to put the letter in the mailbox with your left hand while blinking twice, the court is not going to hold that against you so long as the employee has sufficient information to assert their rights and prepare a defense.
by Ryan LaFlamme | Dec 12, 2022 | General
Another facet of the ongoing fallout of the COVID-19 pandemic is the litigation that has ensued, particularly in employment law. Last month, there was progress in two cases stemming from the pandemic. The first involves the non-teaching employee employment statute, RC 3319.081, which requires that all non-teaching employees be “paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity.” Prior to the pandemic, this generally only came up during snow days and other school closures. The second case is at the university level but involves one of the first causes of action under RC 3792.04, a statute enacted in 2021 which prohibits public schools and state institutions of higher education from discriminating against persons based on their vaccination status.
State ex rel. Ohio Assn. of Pub. School Emps. v. Willoughby-Eastlake City School Dist., 2022-Ohio-4242
The Eleventh District Court of Appeals has overturned an injunction that prohibited a reduction in force during the pandemic.
During the 2020-2021 school year, a School Board transitioned to remote instruction due to the pandemic. Buildings remained open for teachers, administrators, secretaries, and certain special education students. On November 19, 2020, the Board voted to implement a reduction in force of certain non-teaching employees.
The trial court granted a preliminary injunction in favor of the Union. In its order, the trial court determined the following with regard to the statutory language: COVID-19 is “an epidemic or other public calamity”; the laid-off employees are “employed,” despite the reduction in force; and even though students are being taught remotely, the schools are “closed” because the employees cannot report to the buildings to perform their duties. The trial court also concluded that it had jurisdiction to hear the matter because the rights asserted under R.C. 3319.081(G) are independent from the parties’ collective bargaining agreement.
Unfortunately, the Eleventh District Court of Appeals did not answer the questions of whether a reduction in force ends an employee’s eligibility to be paid wages for all time lost from a school closure, and whether a school building providing only remote instruction but which is still open to teachers, administrators, secretaries and special education students, is “closed.” The Appellate Court avoided those questions because the case was reversed on jurisdictional grounds. The Court found that the employees’ rights regarding reduction in force were governed by the collective bargaining agreement. The collective bargaining agreement has a grievance process that is ultimately resolved through binding arbitration rather than litigation. The Court recognized that even though an employee may have rights provided by a statute (e.g. 3319.081 and 3319.17), if the application of the statute is dependent on an interpretation of a collective bargaining agreement, a court lacks jurisdiction over the case and it must be resolved through the grievance and arbitration process.
Siliko v. Miami Univ., 2022-Ohio-4133.
In this case, the Plaintiffs were employees that sued Miami University for claims alleging that the University’s vaccination policy violated the Ohio Constitution (“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety”), as well as RC 2905.12 (Coercion); 3709.212 (a 2021 statute limiting the applicability of certain health department regulations related to disease prevention); 3792.04(B)(1) (requiring a vaccine); and 3792.04(B)(2) (discrimination on the basis of vaccination status).
Miami’s vaccination policy provided that all employees and students must be fully vaccinated by November 22, 2021, unless exempted. Requests for exemption were required to be submitted by October 15, 2021. Faculty, staff and students were also required to receive at least their first COVID-19 vaccine dose by October 25, 2021. The policy further provided that “exemptions may be granted for medical reasons, sincerely held religious beliefs or reasons of conscience (philosophical or ethical reason) and a deferral granted for pregnancy or nursing.” Individuals with an approved exemption were required to comply with COVID-19 testing and other educational and preventative health and safety measures. As for employees, the policy provided that “employees who choose not to be vaccinated and who do not receive an approved exemption will face disciplinary action.”
The trial court dismissed the Plaintiffs’ complaint after finding that they lacked standing to challenge Miami University’s vaccination policy because, at the time of filing the complaint, they either had obtained an exemption to the vaccine requirement or had failed to request an exemption. The Appellate Court agreed with the dismissal except as to the discrimination claims under RC 3792.04(B)(2). The Plaintiffs alleged that because the policy required exempted employees to take additional measures such as testing and other prevention, they were being treated differently than similarly situated vaccinated employees in violation of the statute. Additionally, the Plaintiffs alleged that the University had a bonus program to encourage vaccination, which only vaccinated employees were eligible for.
The Appellate Court found that this was enough to survive a motion to dismiss and reinstated that portion of the case. It should be noted that a motion to dismiss is a high standard and serves to test the sufficiency of the complaint to state an actionable claim. It is not a judgment on the merits. Ennis Britton will monitor this case as it proceeds and will provide important updates to our clients.
by Ryan LaFlamme | Apr 9, 2021 | General, Labor and Employment, Workers’ Compensation
Creveling v. Lakepark Industries, Inc., 2021-Ohio-764
The Sixth Appellate District Court of Appeals has rendered a decision denying an employee’s claims of workers’ compensation retaliation and disability discrimination, among some other related claims.
The employee at issue was a tool and die maker. He was injured while using a machine that had rotating parts which caught the glove he was wearing and mangled his right hand, resulting in an amputation of his middle and ring finger. The Employer contacted OSHA to begin an investigation and filed a workers’ compensation claim on the employee’s behalf. The employee was eventually released to full duty by his doctor and the employer reinstated him as a tool and die maker.
Employees were trained extensively not to use gloves while using rotating equipment and the employer investigated the employee’s conduct in this regard and imposed a three-day suspension without pay. The employee admitted that he violated the policy and also executed an employee corrective action warning him that any further violations would result in his dismissal. The first day back from the suspension, the employee was witnessed wearing gloves while operating a rotating machine. The employee was reported to management and was terminated for violating the policy and the employee corrective action. The employee conceded that he had violated the corrective action.
The employee sued the employer for workers’ compensation and disability discrimination as well as wrongful termination, an intentional tort related to maintenance of the equipment, and loss of consortium on behalf of his wife.
Ohio law provides that “no employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”
Workers’ compensation retaliation, like other discrimination and retaliation claims are subject to a burden-shifting analysis by the Court. The employee bears the burden to establish a “prima facie” case by showing that (1) the employee filed a workers’ compensation claim, or instituted, pursued, or testified in a workers’ compensation proceeding; (2) the employer discharged, demoted, reassigned, or took punitive action against the employer; and (3) a causal link exists between the employee’s filing or pursuit of a workers’ compensation claim and the adverse action by the employer.
If the employee can establish a prima facie case, the employer must show a legitimate, non-discriminatory reason for its action. If the employer meets this burden, it goes back to the employee to establish that the reasons provided by the employer are merely a pretext. To do so, the employee must be able to shoe that the reasons given by the employer (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge.
The Court rejected the employee’s argument that because he was fired within 7 days of returning to work, it was sufficient to establish retaliatory motive. The Court reasoned that the firing and the employer’s knowledge of the claim were not sufficiently close enough in time to establish that proximity alone constituted evidence of retaliatory intent. Moreover, the Court found that the act of returning to work is not protected activity.
The Court also rejected evidence that the employer had a hostile attitude towards the employee based on a couple off-color remarks that were made upon his return such as “I guess you are left-handed now.” Such isolated comments, however, out of context, and in the absence of other evidence, are insufficient to establish a causal link between termination and the filing of a workers’ compensation claim.
The Court also rejected the employee’s argument that because the employer had failed to discipline other employees prior to his injury for wearing gloves, that its action to do so after the injury is evidence of a retaliatory motive. The Court found that the employee himself had not been declined for doing so prior to his injury and that he was unequivocally prohibited from doing so after his injury, before he was terminated for once again violating the policy.
The Court denied the employee’s disability discrimination law, which was made on similar factual allegations as the retaliation claim. However, here, the Court found that the employee was unable to establish a prima facie case of discrimination because he did not have a disability due to his two fingers being amputated. The Court found that the employee did not establish that the amputation caused him a substantial limitation of a major life activity. The Court recognized that he had some difficulty in adjusting to writing and other tasks with his right hand after the amputation, but he was still able to perform his work as a tool and die maker and could not establish that he was substantially limited in the performance of any major life tasks as compared to most people in the general population.
The Court also found that the employee could not have been regarded as having a disability by the employer because the employee lobbied to return to, and succeeded in securing, his former position of employment. Finally, the Court held that even if the employee could establish that he was disabled, there was insufficient evidence to find that he was terminated on account of his disability.
What this means for your District:
It is possible to terminate an employee for acts which lead to a workers’ compensation claim. A termination does not end the claim itself, just the employment relationship. Termination should be supported by an articulable violation of policy or directive or you may risk losing the burden shifting analysis. Here, the employer did not have a perfect set of facts because there was a history of non-enforcement of the policy until after the injury and there were some snide remarks made to the employee about his injuries. However, because the employer provided training, complied with its legal requirements, and kept the discipline focused on the employee’s violation of the policy and the corrective action, those little factual hiccups were not sufficient to establish a retaliatory or discriminatory motive behind the discipline action.