by Ryan LaFlamme | May 18, 2018 | Labor and Employment
Ohio’s Tenth District Court of Appeals recently overturned a decision of the Ohio Court of Claims in a case alleging gender discrimination. The Court of Claims had rendered summary judgment in favor of the employer, the Ohio Department of Transportation (ODOT), but the Court of Appeals found that the trial court overstepped its authority in making that decision. The Court of Appeals sent the case back to the Court of Claims, presumably for either trial or settlement.
The plaintiff, a truck driver named Anne Eschborn, was the only female employee at her assigned post. She was terminated from employment and was told the reason was lack of work. However, she later received a letter stating that she had been terminated for poor performance, for using foul language, and for sexual harassment. She admitted to using foul language in a few instances at work and that these were sexual in nature.
At the outset, the appellate court noted the legal standard in discrimination cases in Ohio. The analysis, often cited as the “McDonnell Douglas burden shifting,” goes as follows: If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to prove that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. If the employer does so, the burden of proof shifts back to the plaintiff, who then must prove that the employer’s reasons are merely a pretext for discrimination.
A plaintiff can establish a prima facie case either directly or indirectly. Directly, a plaintiff may present evidence of any nature to show that the adverse employment action taken by the employer was more likely than not motivated by discriminatory intent. Indirectly, a plaintiff may show that “(1) he or she was a member of a statutorily protected class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by, or that the removal permitted the retention of, a person not belonging to the protected class.”
The Court of Claims found that Eschborn failed to present a prima facie case of discrimination. The Court of Claims determined that Eschborn could satisfy the first three elements of her prima facie case but could not satisfy the last element because the evidence was insufficient to support the conclusion that a person outside of the protected class replaced her or that other comparable, nonprotected persons were treated more favorably.
The evidence showed that ODOT assigned another employee to the post that Eschborn occupied prior to her termination. The trial court held that the evidence merely established a redistribution of work, not a replacement (with someone outside of the protected class). Therefore, the Court of Claims granted summary judgment to ODOT.
Summary judgment is a device used to terminate litigation before trial. It is granted sparingly because of the difficult burden of proof. In order to be granted summary judgment, a party must show that no dispute exists regarding all of the facts and evidence in the record, and that reasonable minds could come to only one conclusion, against the other party.
Generally, in a civil trial, the jury decides what the facts are, and the judge applies the law to those facts. The Court of Claims does not use juries, and so judges are the triers of fact. In this case, the plaintiff argued that the judge was making factual determinations that should have been left to a trier of fact.
Here, the issue is that no trial took place at which the judge could weigh the evidence presented to make a factual determination. Reasonable minds could differ on the meaning of the evidence about the replacement. Therefore, the two parties were in dispute of the facts, which is a genuine issue for a trial. If any genuine issues exist for the trier of fact to consider, a court cannot grant summary judgment. The Court of Appeals therefore agreed with the plaintiff, finding that the trial court had overstepped its authority in granting summary judgment. The Court of Appeals also pointed to evidence in the record that similar male employees were not disciplined for using foul language.
While this case is certainly better for law students studying summary judgment than for school administrators, the case facts contain some practical lessons regarding employment law, discrimination, and harassment. First, without the shifting explanations for termination, the employee’s claim of discrimination would likely not have been made. Employers must be clear in their communications to employees, especially communications of a disciplinary nature. Make sure that department heads and supervisors are on the same page regarding an employment matter before moving forward. Second, employers should keep in mind that discipline must be uniform among employees to prevent claims of better treatment of persons outside of a protected class. It is difficult for an employer to credibly state that foul language was a basis for termination, and not a pretext for discrimination, when other similar employees are not disciplined for similar behavior.
– Eschborn v. Dept. of Transp., 2018-Ohio-1808.
by Ryan LaFlamme | Nov 30, 2017 | Legislation, Workers’ Compensation
The General Assembly is currently considering three different Workers’ Compensation bills that may affect schools. These bills will most likely undergo changes during the deliberation process. The summary below describes the provisions of each of these bills as initially introduced. As of November 29, each bill has had two hearings in the House Insurance Committee. Stay tuned to Ennis Britton for updates on this and other legislation. Contact an Ennis Britton attorney if you have any questions regarding how these may affect your school district.
HB 268
Requires the Administrator of Workers’ Compensation to waive a requirement that an employer have sufficient assets located in Ohio to qualify for self-insuring status if the employer holds a rating of B3 or higher according to Moody’s or a comparable rating from a similar agency. An employer that is granted self-insuring status through the waiver is subject to the same requirements that self-insuring employers are subject to under current law. This includes requirements to pay assessments based on the amount of the employer’s paid compensation as defined in continuing law and to provide a surety bond sufficient to pay claims, except that the employer must contribute to the Self-Insuring Employers’ Guaranty B Fund created under the bill (discussed below) instead of the Self-Insuring Employers’ Guaranty Fund (SIEGF) under current law.
Allows all self-insuring employers to purchase private workers’ compensation insurance to cover any workers’ compensation claim from an insurer that has an A.M. Best Financial Strength Rating of A or higher. Current law voids most contracts or agreements that indemnify or insure an employer against workers’ compensation claims. A self-insuring employer may, however, purchase an insurance policy that indemnifies against all or part of the employer’s loss in excess of $50,000 from a single disaster or event arising out of the employer’s workers’ compensation liability. But the insurer cannot, directly or indirectly, represent the employer in any settlement, adjudication, determination, allowance, or payment of workers’ compensation claims. The bill eliminates this prohibition.
Creates the Self-Insuring Employers’ Guaranty B Fund, which consists of contributions and other payments made by employers granted self-insuring status as a result of the waiver. The fund created under the bill secures compensation and benefits for employees of a self-insuring employer who is granted the waiver but who defaults on the obligation to make direct payments. The Administrator of the Bureau of Workers’ Compensation must establish a contribution amount each year and require every employer that is granted self-insuring status through the waiver to pay the established contribution to the fund. Contribution rates are to be as low as possible but must be sufficient to ensure enough money in the fund to guarantee the payment of any claims against the fund.
HB 269
Requires employees who receive Temporary Total Disability (TTD) benefits to comply with a return-to-work plan. TTD is a wage loss benefit designed to compensate employees who are temporarily unable to perform the functions of their jobs due to a workplace injury. Employees receiving TTD essentially get two-thirds of their wages tax-free. This bill will require the BWC administrator to develop a return-to-work plan for each employee receiving TTD. The plan will have the goal of returning the employee fully to the former position of employment, to return the employee to the former position of employment on a part-time basis or on a full-time basis with modified duties, or retraining the employee to work in another position. The employees’ progress with the plan will be evaluated every 90 days. Evaluations will also determine whether the plan needs revision. If the administrator determines that the plan does not need to be revised and that the employee is not complying, TTD benefits may be suspended.
Employees in compliance with the plan will continue to receive TTD benefits until such benefits are terminated in accordance with law.
Incentivizes employers for participation in safety consultations and loss prevention programs. This provision will modify and enhance the incentives for employers to participate in safety and loss prevention training, including premium discounts and other measures.
Makes changes to Permanent Total Disability (PTD) and death benefits. PTD is a benefit designed to compensate employees who are totally disabled from working, on a permanent basis, due to a workplace injury. PTD benefits are paid for life to employees who cannot engage in any form of sustained remunerative employment using the employment skills that the employee has or may reasonably be expected to develop, and to employees who have lost multiple body parts or the use of multiple body parts.
Pursuant to the bill, employees who receive PTD benefits and who reach full retirement age will have their PTD replaced with Extended Benefit (EB) compensation. “Full retirement age” is defined as the age at which an employee is eligible for unreduced retirement benefit from a state retirement system (PERS, STRS, SERS, OPERS, etc.), or the age at which an employee reaches full retirement age for purposes of the Social Security Act. Employees who are at or within one year of full retirement age will receive PTD for two years before the benefit is converted to EB.
EB is paid as a percentage of the PTD benefit that the injured worker received prior to reaching full retirement age. For example, at least one year but less than two years of PTD will convert to an EB of 10 percent, whereas an employee with ten years or more of PTD will receive 100 percent. PTD is calculated by a formula that essentially works out to two-thirds of an employee’s wages, subject to certain caps and other rules. Employees who receive EB compensation will receive an annual 2 percent increase.
Additional death benefits are provided by the bill. In addition to the benefits under current law, the bill adds a $35,000 lump sum payment to be apportioned among dependents if there are more than one. The bill also provides for a $5,000 scholarship payable to dependents annually for up to four years. Dependents cannot receive the scholarship until they receive a high school diploma or GED.
HB 380
Prohibits illegal and unauthorized aliens from receiving compensation and certain benefits. This bill adds to the definition of “employee” for purpose of workers’ compensation law. Under current law, employee is defined broadly as “every person in the service of any person, firm, or private corporation, including any public service corporation, that employs one or more persons regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens.” This bill qualifies that definition to include only aliens authorized to work by the U.S. Department of Homeland Security.
Under the bill, “illegal alien” means an alien who is deportable if apprehended because of one of the following: (1) The alien entered the United States illegally without the proper authorization and documents. (2) The alien once entered the United States legally and has since violated the terms of the status under which the alien entered the United States, making that alien an “out of status” alien. (3) The alien once entered the United States legally but has overstayed the time limits of the original legal status.
The bill defines “unauthorized alien” as an alien who is not authorized to be employed as determined in accordance with the Immigration Reform and Control Act.
Update
On November 29, the House Insurance Committee adopted an omnibus amendment from the sponsor of HB 380 and then voted to accept the bill.
The amendment eases some of the policies that were controversial and contentious for opponents of the bill, such as employee advocates. One of the main provisions in the amendment allows a U.S. citizen who is a dependent of an undocumented worker to receive a death benefit in the event of the worker’s death, equal to the amount entitled to the dependent of a U.S. citizen.
The amendment also adds language that creates a rebuttable presumption that a worker was hired with legal working status.
Next, the bill will go before the full House for a vote and is expected to pass with ease.
by Ryan LaFlamme | May 16, 2017 | Labor and Employment, Workers’ Compensation
The Supreme Court of Ohio recently issued an opinion in a workers’ compensation case in which an employer was sued for disability payments even after the employee had quit and moved on to another job.
The employee, Norman James Jr., worked for Walmart at the time he was injured. The injury fractured a surgical screw in his neck from a prior surgery, and he was allowed some compensation for certain conditions related to that injury. He returned to work after being fully released by his doctor, and then he quit his job one-and-a-half years later. He briefly worked at Petco and then began working for Casper Service Automotive. After a few months he was fired from Casper for excessive absenteeism.
More than a year later, James filed a motion for temporary total disability (TTD) payments against Walmart – retroactive to the day after he was fired from Casper. Walmart contested the claim on the grounds that the medical evidence did not support an award and that James had voluntarily abandoned his job when he was fired for cause from Casper.
If an injured worker does not return to his or her former position of employment as a result of the worker’s own actions rather than the industrial injury, the worker is considered to have voluntarily abandoned his or her employment and is no longer eligible for TTD compensation. However, an injured worker who voluntarily abandons employment but reenters the workforce will be eligible to receive TTD compensation from the original employer if, due to the original industrial injury, the claimant becomes temporarily and totally disabled while working at the new job. Thus, James had the burden of proving that his termination from Casper for excessive absences was due to his industrial injury at Walmart.
The Industrial Commission ruled against James, finding that the medical evidence did not support his claim. The next month, James again filed a request for TTD. This time, the hearing officer ruled that the matter had already been adjudicated, that James had voluntarily abandoned his job at Casper, and that he was not employed by either Casper or Walmart when his alleged disability recurred.
James then filed a mandamus action in the court of appeals, challenging the Industrial Commission’s ruling. The magistrate affirmed the Industrial Commission’s ruling, and the employee filed objections. The court of appeals agreed that James had voluntarily abandoned his employment at Walmart, but it sent the case back to the Industrial Commission to hear further evidence as to whether the employee was fired from Casper or laid off.
After an unsuccessful attempt at mediation, the case then came to the Ohio Supreme Court by way of appeals. The Supreme Court found that James had voluntarily quit his job at Walmart because his departure was not due to his industrial injury but rather so that he could pursue other employment. The court distinguished the case relied on by the employee, in which employees were laid off after their injuries, finding that James had presented no evidence that his industrial injury caused the excessive absences for which he was fired: “[A] key tenet in temporary-total-disability cases is that ‘the industrial injury must remove the claimant from his or her job. This requirement obviously cannot be satisfied if the claimant had no job at the time of the alleged disability.’”
Districts should be aware that they may have liability for TTD claims even after an injured worker has moved on to other employment. An employer would certainly be liable if the industrial injury is the cause of the departure – whether from the current or a subsequent employer – even if an employee is terminated for excessive absences. If the absences are caused by the industrial injury, the employee may be entitled to TTD. However, if the separation is not caused by the industrial injury, the employee is not losing wages due to the injury, and so no TTD can be awarded. TTD would also be denied, as in this case, where a new period of disability begins without the employee having a job at the time.
– State ex rel. James v. Wal-Mart Stores, Inc., Slip Opinion No. 2017-Ohio-1426.
by Ryan LaFlamme | Apr 5, 2017 | General, Legislation
General Assembly Once Again Changes Rules on Disposal of Real Property
In 2015 Ohio’s General Assembly enacted R.C. 3313.413. This statute added another step to the process for disposing of real property worth $10,000 or more. The statute required school districts to first offer the property to “high-performing” community schools, as designated by the Ohio Department of Education. These schools may be located anywhere in the state of Ohio. Then, assuming no such high-performing school took up the offer, the district was required to offer the property to any start-up community school as well as any college-preparatory boarding school located within the district’s territory.
The designated list of high-performing community schools initially published by ODE contained 22 schools, so any district with an interest in selling a piece of real estate it owned was required to issue 22 offer letters, one to each these schools. Just as with the offer to community schools within a district’s territory, the offer to the high-performing schools could be for no more than the appraised value (the appraisal not being more than a year old) and the offer had to remain open for 60 days.
These relatively new requirements have now been modified by House Bill 438, which was signed in January and becomes effective on April 6. Under the new law, districts are back to the previous system of only having to offer properties to community schools and college-preparatory boarding schools within their territory – including high-performing community schools.
Along with the change in territory is a change in prioritization for districts that receive an offer from more than one high-performing or other community school. If a district receives notice from more than one high-performing community school, it must hold an auction at which only those interested high-performing community schools may bid. If no such high-performing community school expresses interest, the district may move on to the non-high-performing community schools and college-prep boarding schools. If two or more of these schools express interest, the district must hold an auction at which only the interested schools would participate.
If no community school or boarding school expresses interest, the district must hold a public auction for the property with at least 30 days’ prior notice in a newspaper of general circulation in the district. If no bids are accepted through the auction, the district may then sell the property at private sale on its own terms.
ODE will continue to maintain and publish the list of high-performing community schools.
Competitive Bidding Threshold Increased
The threshold for competitive bidding with construction projects was increased in Senate Bill 3, which became effective March 16. Under the new law, construction or demolition projects in excess of $50,000 (the previous threshold was $25,000) must be advertised for bids. All other provisions of R.C. 3313.46 remain the same.
Note about Personal Property
District-owned personal property valued at more than $10,000 is required to be sold at public auction after 30 days’ notice. This statute has not changed (R.C. 3313.41). If a district adopts a resolution that school district property worth less than $2,500 (fair market value) is obsolete or unneeded, it may donate that property to eligible nonprofit entities. The board must adopt a procedure and must publish its intent to donate in a newspaper. Contact an Ennis Britton attorney for the specific requirements and applicability of the law to any personal property being considered for sale or disposal.
by Ryan LaFlamme | Aug 8, 2016 | Board Policy & Representation, General, Legislation
Laws regarding public records are under scrutiny across the United States, including in Ohio. Advanced technology has brought myriad ways to communicate information to U.S. citizens, who continue to demand increased transparency. Public-records law continues to develop and change in the form of both legislation and court decisions. Below are a few recent Ohio bills and cases dealing with public records that have an effect on school districts throughout the state.
House Bill 585: Body Cameras
The Ohio House introduced HB 585 on July 11, proposing that the record of body cameras worn by law enforcement officers be considered generally a public record if the officer is performing official duties. (This bill does not include any regulations on police dash cams.) The bill will specify circumstances in which a nonpublic record would become a public record, and circumstances in which recordings would not be public records. Personal or nonrelevant information, and generally, recordings of minors or victims, would be redacted. The bill would also require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.
Senate Bill 321
This bill, which was signed into law in June, becomes effective in late September. This new law provides a procedure for someone who has been denied access to public records, in the form of mediation or filing with the court of claims.
The bill also contains a provision that a public office which places all of its public records online may limit the number of records a person may request to receive digitally to 10 per month. The requirements and limitations are as follows:
1. All records must be online and accessible to the public except for during outages that are not within the control of the public office.
2. Records that are not online cannot be subject to the limit.
3. The limit also does not apply if the person making such requests certifies that the request responses are not being forwarded or used for commercial purposes.
The bill modifies the attorney fee provisions of the statutes. An award of fees is now mandated to be considered remedial and not punitive, and to enforce this, the bill limits fees to those that are incurred prior to the record being turned over plus the fees incurred to produce the proof of the amount and reasonableness of the fees incurred. The court may reduce the award of fees if it determines that the suit was not necessary and the records could have been obtained through less formal means. Finally, a public office may itself be awarded costs and fees if the court determines that the suit to enforce the fulfillment of a public records request is frivolous.
Attorney Billing Statements
In the 2016 case State ex rel. Pietrangelo v. Avon Lake, the Ohio Supreme Court ruled that, in certain circumstances, the professional fee summary of an attorney-fee billing statement is exempt from disclosure in a public-records request. In this case, the plaintiff, Pietrangelo, had requested certain public records from the City of Avon Lake, including attorney billing statements. The city complied with the request but redacted the following information from the attorney billing statements based on attorney-client privilege and attorney work product:
• Narrative descriptions of particular legal services rendered
• Exact dates on which such services were rendered
• The particular attorney rendering each service
• The time spent by each particular attorney on a particular day
• The billing rate of each particular attorney
• The total number of hours billed by each particular attorney for the invoiced period
• Total fees attributable to each particular attorney for the invoiced period
Pietrangelo then petitioned the Ninth District Court of Appeals for a writ of mandamus to compel the city to provide unredacted invoices, which the court granted. The Ohio Revised Code notes that “public records” do not include records that are prohibited from release by state or federal law.
In a previous decision, State ex rel. Anderson v. Vermilion (134 Ohio St.3d 120, 2012-Ohio-5320), the Ohio Supreme Court held that itemized statements, including dates of services, hours, rates, and money charged for the services, are not exempt from public-records law and therefore must be disclosed. However, in State ex rel. Dawson v. Bloom-Carroll Local School Dist. (131 Ohio St.3d 10, 2011-Ohio-6009), the same court found that the narrative portions of the statements were confidential but a summary of the invoice, including the attorney’s name, the invoice total, and the matter involved, was sufficient for the public-records request. One of the differences between the two cases, Anderson and Dawson, is that the matter in Dawson was pending litigation but the matter in Anderson was for general informational purposes.
In Pietrangelo v. Avon Lake, the Ohio Supreme Court held that this case resembles the Dawson case and that the records relating to the pending litigation were exempt from disclosure. “If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote or speculative.”
State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.
Directory Information
The Ohio Supreme Court determined that School Choice Ohio was entitled to records that constitute directory information as defined by the district’s public records policy. However, the organization did not have the right to compel the district to amend its student records policy.
School Choice obtains students’ contact information from Ohio public school districts via public-records requests. In addition to requesting the court to compel the district to disclose the records requested, the organization also attempted to compel the district to amend its policy to expand directory information and to require disclosure to its company by amending the parent notice and opt-out provisions. According to the Family Educational Rights and Privacy Act (FERPA), “directory information” includes the following student information:
• Name, address, telephone listing, and date and place of birth
• Major field of study
• Participation in officially recognized activities and sports
• Weight and height of members of athletic teams
• Dates of attendance
• Degrees and awards received
• The most recent previous educational agency or institution attended
Pursuant to FERPA, districts must determine which of the items listed above are to be considered directory information. Districts must then provide public notice to parents of what it defines as directory information and give them an opportunity to opt out of directory information being disclosed without prior written consent.
Ohio law defines directory information similarly and places an additional condition on disclosure – that directory information cannot be requested or disclosed for profit-making activities. In fact, whether directory information is being used for profit-making activities is the one time in public records law where the public office is permitted to inquire about the purpose of the request.
Ohio law also provides that a district may not limit the disclosure of directory information to representatives of the armed forces, business, industry, charitable institutions, other employers, and institutions of higher education unless such restriction is uniformly imposed on each of these types of representatives. The court determined that School Choice Ohio is not any of these types of organizations.
However, the court ultimately concluded that even with the limited way in which the district defined its directory information, which was lawful, the organization fit within the definition and was entitled to the records.
What This Decision Means to Your District
Many districts have received the annual requests from this particular organization and from others. This case considered the question of whether the organization is engaged in profit-making activity and answered in the negative. Therefore, districts should continue to disclose records, including directory information, in accordance with the relevant policy. Remember to consult your list of opt-outs whenever directory information is going to be disclosed without prior written consent of the parent. If you are considering changes to your public-records policies, please contact an Ennis Britton attorney for assistance or review.
