Earlier this month, a judge in Hamilton County sided with the Board of Education of the Cincinnati Public School District (“Board”) when she denied the Cincinnati Federation of Teachers’ (“Union”) motion for a temporary restraining order and preliminary injunction that sought to delay the return to in person learning. Cincinnati Fed. of Teachers v. Bd. of Education of the School District of Cincinnati, No. A2100376 (Feb. 1, 2021).
This case was the result of the Board voting to resume in-person instruction beginning February 1, 2021. As a result, the Union filed a motion for a temporary restraining order on the basis that the Board’s decision to resume in-person instruction violated provisions of their collective bargaining agreement (“CBA”). In particular one of the provisions of the CBA provides that the Board and the Union will cooperate with one another in making reasonable provisions for the health and safety of its teachers. Additionally, the CBA provides that if a teacher believes that they are being required to work under unsafe or unhealthy conditions beyond the normal hazards of the job, then they have a right to file a grievance. In return, the Board argued that the court should dismiss the case because it lacked jurisdiction and because the Board had the express authority to make decisions regarding in-person instruction.
In reaching its decision, the court looked to § 4 of the Norris-Laguardia Act, 29 U.S.C. § 104, which generally prevents courts from granting injunctive relief involving labor disputes. However, an exception to this general rule applies if the controversy involves a labor dispute, an evidentiary hearing is held, the underlying dispute is subject to the arbitration procedure of the collective bargaining agreement, and the basis for injunctive relief are satisfied.
In evaluating the union’s claim, the court relied on previous Supreme Court precedent which held that a union’s claim that a board failed to provide them with notice and opportunity to discuss the closure of a facility fell under the exclusive jurisdiction of the State Employment Relations Board (“SERB”). State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106 (2003). The court in this particular case analogized the union’s failure to cooperate claim to the claim in Reed. Thus, the court concluded that SERB had exclusive jurisdiction to the claim and it therefore was not subject to the arbitration process. Because they were not subject to the arbitration process, the union’s claim did not meet the exception to the general rule that prevents courts from granting injunctive relief in a labor dispute.
The teachers in this case also filed a grievance due to their belief that they were being required to work under conditions which were unsafe or unhealthy. Though the arbitration process with respect to this grievance was proceeding, the union asked the court to issue a status quo injunction while the grievance was being resolved. In evaluating this claim, the court looked to a particular section of the CBA which stated that the Board is invested with the governmental authority and control of Cincinnati Public Schools. The provision further stated that the Board’s authority includes the authority to make rules, regulations and policies that are necessary for the government of schools, the employees, and their students.
This court further noted that the Ohio legislature has vested superintendents and boards of education with almost unlimited reasonable authority to manage and control the schools within their districts. Courts will not interfere with grant of discretionary power, so long as it is exercised in good faith and is not a clear abuse of discretion. Here, the court determined that the return to in-person instruction clearly fell within the authority granted to the Board. Thus, the court concluded that the claims brought by the Union were not arbitrable and the court could not issue an injunction.
What this means for your district?
Ohio superintendents and boards of education have the ultimate decision-making authority in determining whether their schools return to in-person instruction. Courts recognize that Ohio has granted superintendents and boards of education with almost unlimited authority to manage and govern the schools within their districts. So long as boards and superintendents exercise this power reasonably and in good faith without violating the laws of the state of Ohio, courts will seldom interfere.
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.
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.
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.
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)
Recently, in State ex. rel CNN, Inc. v. Bellbrook-Sugarcreek Local School Dist., 2019-Ohio-4187, the Second Appellate District ruled that the death of a student does not remove the legal protections of the confidentiality of student records.
In August 2019, an adult gunman killed nine people and injured twenty-seven others in a mass shooting in Dayton. Following the incident, several media outlets requested public records of the gunman’s educational records, including disciplinary records, from the School District from which he graduated.
The district released directory information concerning the student but declined to release any other records. The media outlets sued, filing a mandamus action seeking the release of the records. Ohio Revised Code (R.C.) Section 149.43 requires a public agency to release public records upon request, unless an exception applies. That section provides that records are not “public records” subject to release if a state or federal law prohibits the release of them.
The district argued that the Ohio Student Privacy Act limits access to records concerning students, specifically, that “[n]o person shall release, or permit access to personally identifiable information other than directory information concerning any student attending a public school … without the written consent of each such student who is eighteen years of age or older.”
The court concluded that, based on the plain language of R.C. 149.43, the district is barred from releasing the records requested, rejecting the news media’s argument that the district was compelled to release the requested records because the former student’s right to privacy expired with his death. The case has been appealed to the Ohio Supreme Court.
Attorney General Dave Yost filed a brief to the Supreme Court of Ohio. His brief is in support of the media outlets that are suing in order to have rights to view the student’s records. Yost argued that neither Family Educational Rights and Privacy Act nor Ohio Student Privacy Acts protects the records of students who die after becoming an adult. A local TV station and other news organizations filed briefs amicus curiae in support of CNN.
Yost’s brief states that the attorney general’s office has a duty to “ensure transparency in all levels of government.” One of the duties involved is to provide training and guidance on Ohio’s Sunshine Laws. This duty, the brief reads, is being directly impacted because the Public Records Act is being violated in not allowing access to the student records
The Court of Appeals in Logan County, Ohio recently upheld a decision of the Indian Lake School District Board of Education terminating its superintendent after he was arrested for gross sexual imposition of a minor.
The superintendent was placed on paid administrative leave the day following his arrest. The Board adopted a resolution nine days later that initiated the termination process based on the nature of the charges, including that the arrest required a report to the Ohio Department of Education and suspension from all duties during the pendency of criminal action. The resolution also noted that the arrest generated extensive media coverage that resulted in staff, parents, students, and community members becoming aware of the charges. The Board determined that the superintendent was thus unable to effectively perform his duties.
The superintendent elected to have a hearing on his termination before a state appointed referee. After a five-day hearing, the referee issued a report and recommendation concluding the Board failed to provide reliable, probative, and substantial evidence that just cause supported the superintendent’s termination. The referee focused on the fact that the Board failed to demonstrate that the superintendent engaged in any conduct warranting termination. Instead, the Board alleged that it was the fact of his arrest that rendered him unable to perform his duties. The referee believed this could not support a termination order and recommended that the superintendent remain on unpaid leave pending the criminal proceedings.
The Board rejected the referee’s recommendation, and in accordance with R.C. 3319.16 terminated the superintendent. The superintendent appealed to the court of common pleas. As it turned out, the superintendent was convicted and sentenced during the pendency of his appeal. He subsequently filed a motion to strike the Board’s reference to his conviction in his appeal. The court denied that motion and upheld the Board’s decision to reject the referee’s recommendation and terminate the superintendent.
The court specifically found that the nature of the allegations, in light of his position and loss of community trust, prevented him from effectively performing his duties. The court also held that it could not ignore the fact that the superintendent was convicted while his appeal was pending. The court also found that the Board did not need to indefinitely postpone the termination action until after the criminal proceedings were resolved, meanwhile suffering the damage caused by the turmoil created by the uncertainty and doubt as to the strength of the school system’s integrity.
Despite his conviction, incarceration, and inability to work as a superintendent or teacher under law, the superintendent appealed to the court of appeals. The court of appeals noted that courts cannot substitute their judgment for the judgment of the Board if substantial and credible evidence is presented to support the charges. The court of appeals held that the lower court did not abuse its discretion in upholding the Board’s decision. The superintendent was required to be suspended from all duties requiring the care, custody, or control of children pursuant to R.C. 3319.40 and 3319.31. The court noted that he was unable to perform his job duties based on that fact alone. As a result, the lower court’s conclusion that the superintendent was terminated for good and just cause was not an abuse of discretion and the termination was permitted to stand.