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In this issue: Americans with Disabilities Act • Arbitration • Collective Bargaining • Discrimination — Sex • Fourteenth Amendment • Immunity • Individuals With Disabilities Act • Retaliation • School Fees • Sexual Abuse And Harassment • Student Discipline • Tax Valuation • Unemployment Compensation
AMERICANS WITH DISABILITIES ACT
Ninth Circuit rules that compliance with IDEA does not equal compliance with ADA.
K.M. v. Tustin Unified Sch. Dist. and D.H. v. Poway Unified Sch. Dist., 9th Cir. No. 11-56259 & 12-56224 (Aug. 6, 2013).
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11-56259 web revised.pdf
Two California high school students with hearing disabilities received special education services under IDEA. Both students requested their school district provide them with Communication Access Realtime Translation (CART) while in the classroom. CART is a “word-for-word transcription service in which a trained stenographer provides real-time captioning that appears on a computer monitor.” Each district denied the requests for CART, but offered other accommodations for the students.
The students challenged their respective IEPs to an administrative law judge since CART was not provided to them. The administrative law judge found that the districts provided the students with a free appropriate public education (FAPE). The students filed claims with the district court alleging discrimination on behalf of the districts under § 504 of the Rehabilitation Act, Title II of the ADA and IDEA. The district court ruled in favor of both school districts. The students appealed.
On appeal, the Ninth Circuit ruled that a district’s compliance with “its obligations to a deaf or hard-of-hearing child under IDEA” does not mean that a district has complied with its effective communication obligations under ADA. The court stated that the services a district may be required to provide to a deaf or hard-of-hearing student under the ADA may be different from the services required under IDEA. Additionally, the court of appeals found that claims under IDEA and Title II of the ADA must be analyzed separately under relevant law.
The school districts argued that the students claims should have failed even if analyzed separately because they must show that they were denied “meaningful access” to school services, programs, or activities. The school districts believed the students did not establish that they were denied meaningful access. The court found that the failure to establish a claim under IDEA does not automatically terminate a claim under Title II of ADA based on Title II’s effective communications regulation. As a result, the court of appeals reversed the lower court’s ruling in favor of the school districts and remanded for further proceedings.
Grievance denied because school board has authority to assign bus routes.
In the matter of arbitration between the Bd. of Edn. of Springfield City Sch. Dist. and S.E.U.S.S./OEA Springfield Edn. United Support Staff, Case No. 13-01035-6, Arbitrator Linda DiLeone Klein, (July 25, 2013).
Issue: Whether the board violated the collective bargaining agreement by unilaterally changing the afternoon portion of the bus route that transported students to tutoring services.
Award: For the board. The arbitrator found that the board did not relinquish its authority to determine how the late portion of the bus route would be assigned. The arbitrator found that the collective bargaining agreement did not apply to the late portion of the bus route because it was neither a regular nor mid-day route. It was within the board’s rights to assign work to drivers to transport students to tutoring services.
Thanks to C. Bronston McCord, III, Esq., Ennis Roberts Fischer Co., L.P.A., Cincinnati, for submitting the above arbitration decision.
Rhode Island Supreme Court rules that grievance submitted on behalf of retirees is not arbitrable because the union had no standing to pursue the matter.
Providence Sch. Bd. v. Providence Teachers Union, Local 958, AFT, AFL-CIO, 68 A.3d 505, No. 2012-147-Appeal (June 19, 2013).
http://www.courts.ri.gov/Courts/SupremeCourt/Opinions/12-147.pdf
The Providence School Board provides health insurance to active employees and retirees. During the summer of 2006, the active employees and retirees were separated into different groups in order to calculate the health insurance rates. As a result, the premium costs increased for retirees by 55% and by 10% for active employees.
The union filed a grievance alleging that the increase violated three provisions of the collective bargaining agreement (CBA) due to the increase of the premium costs. The board argued that the union did not have standing to represent the retirees because they were not members of the bargaining unit or parties to the CBA. However, the union contended that it did have standing to pursue the matter because the provisions were negotiated while the retirees were active employees.
The arbitrator ruled in favor of the union and determined that the union had standing. In addition, the arbitrator found that the board violated the “medical coverage and past practice provisions” of the CBA by failing to put retirees and active employees in a single group when the healthcare premium rates were calculated. The board was ordered to recalculate the premiums. The board then moved to vacate the arbitrator’s award. The district court vacated the arbitrator’s award and determined that the arbitrator exceeded his authority. Additionally, the district court found that the CBA was silent regarding how the group premium rates would be calculated. The union appealed.
On appeal, the Rhode Island Supreme Court found that the union did not have authority to pursue a grievance on behalf of retirees. It determined that the CBA excluded retirees from the bargaining unit, and retirees were not included in the definition of a teacher. As a result, the Rhode Island Supreme Court ruled that the union did not have standing to pursue the grievance, and the grievance was not arbitrable.
Ohio court of appeals affirms decision granting summary judgment to district in action alleging gender discrimination, invasion of privacy, and defamation.
DeGarmo v. Worthington City Schools Dist., 2013-Ohio-2518.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2013/2013-ohio-2518.pdf
Lisa DeGarmo worked as a security monitor for Worthington City Schools. In October 2012, DeGarmo and the Dean of Students investigated two students in a minivan at the high school. Upon DeGarmo’s approach, a male student pulled his pants up and a female student pulled down her skirt and both quickly exited the van. Shortly after the incident, DeGarmo met with the assistant principal. DeGarmo claims she never stated that she saw a sex act or the male’s penis. The assistant principal stated that DeGarmo indicated that she saw the male’s penis and some sort of sex act. The district believed that DeGarmo lied, misrepresented or provided false statements about her observations and further shared confidential information with staff members. They recommended that DeGarmo be terminated and the Worthington school board did so in December 2012.
DeGarmo filed a complaint alleging sexual discrimination, defamation, and false light invasion of privacy. The district moved for summary judgment, which was granted by the trial court. DeGarmo appealed.
The decision of the trial court was affirmed. The court of appeals agreed that the other employees involved in the investigation were not similarly situated to DeGarmo because they did not misrepresent nor inaccurately report what occurred. As a result, the court found that DeGarmo failed to prove her prima facie case for gender discrimination. With regard to the defamation claim, the court found that there was insufficient evidence that the district made defamatory statements with reckless disregard to their falsity. As a result, the court found that DeGarmo failed to overcome the defense of qualified privilege on the defamation claim and failed to establish a claim for false light invasion of privacy.
Sixth Circuit determines Tennessee principal and teacher did not deprive student of constitutional rights by failing to inform officers of the student’s autism.
Chigano v. City of Knoxville, 6th Cir. No. 12-6025 (July 10, 2013).
http://www.ca6.uscourts.gov/opinions.pdf/13a0641n-06.pdf
M.C. was a special education high school student with autism in Roberta Bianucci’s class. During class, M.C. repeatedly took her cell phone out, violating school policy. The policy required cell phones to be off and not visible during the school day. Subsequently, Bianucci confiscated M.C.’s phone after repeatedly telling her to put the cell phone away. Bianucci took the cell phone to the front office after M.C. attempted to retrieve it.
When the school day was over, M.C. returned to the front office to retrieve her cell phone, but was informed by the principal that it would be released only to her parents. Two school security officers and a police officer arrived and attempted to get M.C. to leave the front office, but she would not. The police officer and M.C. engaged in a struggle “as he attempted to remove her from the office.” M.C. was transported to a juvenile detention center and charged with disorderly conduct and resisting arrest, but the charges were later dropped.
M.C.’s parents filed a lawsuit alleging violations of M.C.’s constitutional rights as well as violations of state law. The district court found that M.C.’s constitutional rights were not violated, and the parents appealed. On appeal, the parents argued that both the principal and Bianucci’s actions of summoning the police to the office to assist with M.C. and their failure to inform the police that M.C. was autistic deprived M.C. of her Fourteenth Amendment rights.
The court of appeals noted that a failure to protect an individual from violence by a third party is not a constitutional violation. Courts have found that a state may be liable for its failure to protect a citizen if the citizen was in the “functional custody” of the state when the injury happened, or if the state actor created or increased the danger to the citizen.
In this case, the court found there was no indication that the principal or Bianucci had someone call the police officer to remove the student. Therefore the parents were unable to show that an affirmative act by the principal or Bianucci created a risk to M.C. As a result, no constitutional rights were violated because M.C. did not suffer a deprivation of liberty, and the district court’s ruling was affirmed.
Fifth Circuit finds nothing clearly establishing a student’s privacy right that precludes school officials from disclosing to a parent the student’s sexual orientation.
Wyatt v. Fletcher, et al., 5th Cir. No. 11-41359 (May 31, 2013).
http://www.ca5.uscourts.gov/opinions/pub/11/11-41359-CV0.wpd.pdf
In March 2009, S.W., a female high school student, attended a meeting of the varsity softball team on which she played. The student’s mother alleged that, upon S.W.’s arrival at the meeting, her softball coaches dismissed the rest of the team and led S.W. to a nearby locker room. After they entered the room, the coaches locked the door and questioned S.W. about her relationship with an older woman. The coaches also allegedly accused S.W. of spreading rumors regarding one of the coaches’ sexual orientation. S.W. claimed they yelled at her and threatened to tell her mother that she was involved in a sexual relationship with the older woman.
After S.W. met with the coaches, they called her mother to a meeting. The mother first claimed that the coaches “outed” her daughter at the meeting, but later said she inferred her daughter’s sexual orientation from the coaches’ comments during the meeting. The coaches indicated that they were required to contact the student’s mother because rumors regarding S.W.’s relationship were causing “dissension on the team,” that the older woman was a “potentially dangerous and underage user of illegal drugs and alcohol,” and that any possible sexual relationship with S.W. was a valid concern.
In 2010, the student’s mother filed a complaint in federal court against the district and two coaches, claiming violations of her daughter’s Fourth and Fourteenth Amendment rights. The coaches raised the defense of qualified immunity in a motion for summary judgment. The magistrate judge rejected that defense, finding that S.W.’s constitutional right to privacy in her sexual orientation was clearly established. That ruling was appealed.
On appeal, the court found that the district and coaches had not violated any clearly established Fourth or Fourteenth Amendment rights. The panel quickly disposed of the parent’s Fourth Amendment claim, which alleged that the coaches’ decision to “lock the locker room door and order S.W. to remain inside while the defendants confronted and threatened her was a de facto seizure of S.W.’s person.” The court held that yelling and verbal abuse do not violate constitutional rights.
With regard to the Fourteenth Amendment claim, the panel found that the critical issue was whether S.W. had a clearly established constitutional right to the privacy of her sexual orientation, including the right that it not be disclosed to her parents. The panel found that no such right was established. The panel stressed the fact that the disclosure was made by school employees to S.W.’s parent. On this basis, the panel distinguished cases finding that individuals have a generalized privacy interest in sexual matters.
Ohio court of appeals finds school district and aide have qualified immunity after student was injured.
J.H. v. Hamilton City Sch. Dist., 12th Dist. No. 2012-11-236, 2013-Ohio-1967.
http://www.sconet.state.oh.us/rod/docs/pdf/12/2013/2013-ohio-2967.pdf
Brenda Asher, a district employee, was pushing a middle school student with a severe handicap in a wheelchair when the student’s leg became caught in the wheelchair. The parents of the student filed a complaint for personal injury against the district and the employee. The board argued that it was immune from liability because it was a political subdivision, and the complaint failed to set forth allegations that would remove the district’s immunity under RC 2744.02(B)(1)-(5). Asher contended, that as an employee of a political subdivision, she was immune from liability because the complaint failed to allege facts to show that she acted outside the scope of her employment. The trial court ruled in favor of the district and Asher. The parents appealed.
On appeal, the parents contended that immunity did not apply. The Ohio Supreme Court has set forth a three-tiered analysis for determining whether a political subdivision is immune from civil liability. That immunity is subject to five exceptions.
The parents alleged that two exceptions applied: (1) the negligence of a school employee with respect to “proprietary functions” and (2) civil liability that is expressly imposed by statute on the political subdivision. The court of appeals found that the “proprietary functions” exception did not apply because Asher was engaged in a governmental function, not a proprietary one. In addition, the court found that the second exception did not apply because the statute “does not apply to political subdivisions, but is limited in application to those entities falling under the definition of a state.” Therefore, the trial court correctly ruled in favor of the district.
In regards to Asher, the parents contended that she was not immune because she acted “with malicious purpose, in bad faith, or in a wanton or reckless manner.” However, the court found that the parents did not establish that Asher acted maliciously, in bad faith, or in a wanton or reckless manner. As a result, the court of appeals affirmed the trial court’s decision and ruled that the school district and Asher were immune from liability.
Eleventh Circuit rules that individual board members are entitled to qualified immunity.
Leslie v. Hancock Cty. Bd. of Edn., 11th Cir. No. 12-13628 (July 12, 2013).
http://www.ca11.uscourts.gov/opinions/ops/201213628.pdf
Awanna Leslie and Bettye Richardson were the superintendent and assistant superintendent of the Hancock County School District. Leslie and Richardson publicly stated that the tax commissioner failed to perform his duties, ultimately causing the district to be underfunded. Leslie made her comments at board meetings, and the comments also appeared in the Atlanta Journal-Constitution.
During the November 2010 election, new members were elected to the school board. Shortly thereafter, the board fired Leslie and recommended that Richardson be demoted. Both Leslie and Richardson filed a complaint against the board and its members in their official and individual capacities alleging retaliation for expressing their right to freedom of speech. The board contended that the speech was not protected since it occurred during the performance of an employment duty. The board also believed that they were entitled to qualified immunity. The district court ruled in favor of Leslie and Richardson. The board appealed.
On appeal, the court found that Leslie and Richardson’s complaint against individual board members was barred by qualified immunity because Leslie and Richardson were policymaking employees who spoke about policy and it was not clearly established that a policymaking or confidential employee who spoke about policy could prevail on their claim. Leslie was found to serve in a policymaking or confidential role because she was the “executive officer” and the board relied upon her to enforce its policies. In addition, as superintendent, Leslie was considered to be the alter ego of the board. Lastly, Richardson conceded that her complaint fell within Leslie’s complaint, and was therefore barred also.
INDIVIDUALS WITH DISABILITIES ACT
Ninth Circuit rules that Hawaii school’s failure to have parent at IEP meeting due to parent’s scheduling difficulties is a denial of FAPE.
Doug C. v. State of Hawaii Dept. of Edn., 9th Cir. No. 12-15079 (June 13, 2013).
http://www.wrightslaw.com/law/caselaw/2013/9th.doug.c.v.hawaii.pdf
A student was diagnosed with autism at age two and found to be eligible for services under the Individuals with Disabilities Act (IDEA). In fifth grade, his IEP placed him in a private facility, which was paid for by the Hawaii Department of Education (Department). Even though the parent of the student was unable to attend, the Department held an annual IEP meeting in November 2010 at which the student’s placement was changed to Maui High School, a public facility.
The IEP meeting was scheduled initially for October 28. On October 22, the special education coordinator called to confirm the meeting. The parent indicated that he was unavailable that day and the group agreed to meet on November 4 or 5. The following day, parent again called to indicate that he was not available and the group settled on meeting on November 9. On the morning of November 9, the parent emailed saying he was sick and unable to attend. He suggested rescheduling the meeting for November 16 or 17. Because the annual review deadline for the IEP was November 13, the Department offered to reschedule for either November 10 or November 11. Doug C. responded that he might be able to participate, but couldn’t definitively commit to either day since he was ill and couldn’t guarantee he would recover in time.
The Department elected to go forward with the meeting on November 9 as scheduled. The parent did not attend and proceeded to file a due process complaint on December 6, arguing that his exclusion from the November 9th IEP meeting, without consent, denied his child a FAPE.
The administrative hearing officer held that the Department did not deny the student a FAPE. The district court affirmed, holding that the parent had “…failed to show that [the district] did not fulfill its statutory duty to ensure that Doug was afforded an opportunity to participate at the November 9, 2010 IEP meeting.” The parent appealed to the Ninth Circuit.
On appeal, the Ninth Circuit panel focused on the importance of parental participation in the IEP process. The panel held that an IEP meeting may continue without a parent only if: 1) the parent affirmatively refuses to attend; or 2) the school is unable to convince the parents that they should attend. The Department could not prove either of these circumstances. The parent did not refuse to attend, and instead “vigorously objected to the Department holding an IEP meeting without him and asked the Department to reschedule the meeting.” The panel rejected the Department’s arguments that the parent was difficult to work with in scheduling the IEP, that the parent’s rescheduling request could not be accommodated because of the annual IEP deadline, and that the follow-up IEP meeting with the parent present cured any violation. As a result, the panel found that the school’s procedural violation denied the student a FAPE.
Eighth Circuit rules that families’ failure to exhaust remedies under IDEA barred suit under 504 and ADA
J.B. v. Avilla R-XIII School Dist./A.L.A. v. Avilla R-XIII Sch. Dist., 8th Cir. Nos. 12-1112/12-1113 (July 24, 2013).
http://media.ca8.uscourts.gov/opndir/13/07/121112P.pdf
J.B. and A.L.A. were two students with disabilities who attended Avilla R-XIII School District in Missouri. Both students were provided with an IEP. The parents/guardians of each student participated in the development of their student’s IEP, but had ongoing disputes with the district over the manner in which the IEP was being implemented.
While the disputes were ongoing, J.B.’s parents filed a complaint with the U.S. Office for Civil Rights (OCR), alleging that the district’s grievance process was inadequate for addressing parents’ complaints about IEP issues. OCR determined that the process was adequate for addressing IEP-related complaints, but inadequate to handle complaints regarding other forms of disability discrimination.
J.B. and A.L.A. did not utilize the due process complaint procedure available under the IDEA and instead filed suit in federal district court against the district. Their claims alleged that the district discriminated against J.B. and A.L.A. in violation of the ADA and Section 504 by failing to adequately implement each child’s IEP and by not having an adequate grievance process for disability discrimination complaints.
The district court granted the district’s motion for summary judgment and the families appealed. On appeal, the Eighth Circuit panel affirmed the lower court’s decision. The panel determined that the families were required to exhaust their administrative remedies under the IDEA before filing their ADA and Section 504 claims in district court.
The panel determined that none of the three recognized exceptions to the exhaustion requirement were satisfied. The parents argued that the first exception, futility, was met since the district’s inadequate grievance process could not have been remedied in an IDEA due process hearing. Although the panel accepted the parents’ assertion, it pointed out that even though “the administrative venue may not have been able to address the grievance resolution process … [e]xhaustion would have allowed the agency to develop the record for judicial review and apply its expertise to the plaintiffs’ claims to the extent those claims are related to implementation of J.B.’s and A.L.A.’s IEPs.”
The parents claimed that the second exception, inability of the administrative remedies to provide adequate relief, was present because their claims for compensatory damages were barred by the statute of limitations. The panel dismissed this argument, stating that the plaintiffs’ failure to file their suit within the proper time frame “reflects only on the individual’s choice and not the adequacy of the remedy.”
The parents also cited the district’s grievance process in an attempt to use the third exception, establishment of an agency policy or practice of general applicability that is contrary to law. The panel rejected this argument, noting that “The OCR report gives no indication the district’s grievance resolution process was inadequate for addressing IEP-related claims.”
Third Circuit finds that school district not required to reimburse parents because student was offered an IEP that would meet his educational needs.
Munir v. Pottsville Area Sch. Dist., 3rd Cir. No. 12-3008 (July 25, 2013).
http://www2.ca3.uscourts.gov/opinarch/123008p.pdf
O.M., a student suffering from an emotional disturbance, overdosed on prescription medication and was hospitalized in April 2008. In August 2008, his parents notified the district that they were enrolling him in a private school. After O.M.’s first day in private school, his parents withdrew him because he had thoughts of harming himself. O.M. reenrolled at the district high school, but his mental health problems continued. His parents contacted the district and requested an IEP.
The district created a §504 plan for O.M., but did not create an IEP. O.M. was hospitalized again and, upon release, his parents enrolled him at Wediko Children’s Services, a therapeutic residential treatment center. Wediko conducted an evaluation and recommended that the district offer O.M. an IEP. During May 2009, the district offered an IEP for O.M., but the parents rejected it because it did not provide smaller classes or the same counseling services that O.M. received at Wediko.
During the 2009-2010 school year, O.M. was transferred to a residential school. His parents filed a due process complaint contending that the district failed to conduct a “timely evaluation of O.M. and provide specialized educational services.”
The hearing officer denied the parent’s request for relief and determined the district was not obligated to evaluate O.M. or provide him with specialized educational services. In addition, the hearing officer concluded that even if the district committed a procedural violation of IDEA, it did not have a substantive effect on O.M. The parents appealed, and the district court affirmed. The parents filed a second appeal.
The court of appeals affirmed the lower court’s ruling and found that the parents did not establish that O.M. was placed at Wediko to meet his specialized educational needs. Additionally, the court of appeals found that O.M.’s parents were entitled only to tuition reimbursement if the district had failed to offer a FAPE. The court found that the district satisfied its obligations under IDEA when developing O.M.’s IEP because it took into account the evaluations conducted by Wediko and incorporated almost all of its recommendations.
Tenth Circuit rules that Oklahoma school district had a legitimate reason to reassign a special education teacher to different duties.
Duvall v. Putnam City Sch. Dist., 10 Cir. No. 11-6250 (Aug. 5, 2013).
http://www.ca10.uscourts.gov/opinions/11/11-6250.pdf
Louise Duvall was employed as a special education teacher in the Putnam City School District. In that capacity, she prepared IEPs, conducted IEP meetings, ensured compliance with state and federal laws, and documented any IEP disagreements.
Duvall alleged that she sent several emails to her superiors and met with the district’s executive director of special services to discuss her concerns regarding the district’s compliance with federal and state laws. However, the executive director assured Duvall that she had no reason to be concerned as long as she was performing her duties in good faith. Duvall submitted letters of dissent for most of the IEPs for which she was responsible.
In 2007, the district sent Duvall a letter of admonishment “because of the manner in which she had conducted one specific IEP meeting and presented her letter of dissent.” The district claimed that the letter wasn’t a result of or in retaliation to Duvall’s letters.
Subsequently, Duvall was assigned to first grade for the 2008-2009 school year because the principal believed that she would be happier. Duvall filed a grievance alleging that she had been treated differently from other faculty members and submitted her resignation. In addition, Duvall filed a lawsuit alleging violations of the Rehabilitation Act and the First Amendment. The district court ruled in favor of the district, and Duvall appealed.
The court of appeals determined that Duvall was engaged in a protected activity and established an adverse action because she was reassigned to teach the first grade, a lower paying position. In addition, the court found that the timing of Duvall’s reassignment was close enough in time to her letters of dissent to establish a prima facie case of retaliation under the Rehabilitation Act. However, the court of appeals ruled that the district did have a legitimate reason to reassign Duvall because it was believed that she would be happier teaching first grade and it would benefit her as well as the district and students. The court of appeals dismissed Duvall’s claim under the Rehabilitation Act.
The court of appeals also found that Duvall’s retaliation claims under the First Amendment failed because her speech was speech within her official duties, and she did not establish causation resulting in any adverse employment action. As a result, the court of appeals ruled in favor of the district.
Ohio court of appeals upholds decision finding student responsible for school fees incurred by student.
N. Baltimore Local Schools v. Todd, 2013-Ohio-2599.
www.sconet.state.oh.us/rod/docs/pdf/6/2013/2013-ohio-2599.pdf
North Baltimore Local Schools filed a small claims action against a student for $226 in unpaid school fees incurred between 2004 and 2009. The fees included the cost of workbooks, class fees, assignment notebooks, activity fees, and progress books. At the beginning of each school year, the school district established fees and provided families with a procedure for waiver of the fees if a student was eligible for the federal free lunch program. In this case, the family had not provided enough documentation to demonstrate their eligibility for the program. In 2011, a magistrate found in favor of the school district.
Although the student’s family filed objections, the court overruled the objections and adopted the magistrate’s decision. The student’s family sought an appeal, arguing that the trial court erred in interpreting RC 3313.48, 3313.642(C) and 3329.06.
On appeal, the court of appeals concluded that the trial court did not err by finding that the student could be charged with the school fees. The court found that, despite the broad language of RC 3313.48, which provides that a board of education shall provide a free education, and RC 3329.06, which requires a board furnish textbooks and electronic textbooks free of charge, RC 3313.642(A) specifically provides that a board is not required to furnish, free of charge, materials used in the course of instruction. The court acknowledged that the statutes requiring a board to provide free, public education and the statutes permitting boards to charge pupils for consumable materials used in the course of instruction were irreconcilable, but construed the statutes so that the specific statute controlled over the general statute. As a result, the court upheld the trial court’s decision that the student could be held responsible for the school fees incurred by the student.
Second Circuit upholds award of summary judgment for New York district accused of workplace discrimination, harassment and retaliation on the basis of race and gender.
Douglass v. Rochester City Sch. Dist., 2nd Cir. No. 12-3227-cv (May 22, 2013).
http://law.justia.com/cases/federal/district-courts/new-york/nywdce/6:2010cv06031/77420/18
Grace Douglass served as an athletic director with the Rochester City School District in New York. Douglass claimed that, during her employment, she was subject to repeated instances of workplace discrimination, harassment, and retaliation based on race and gender. She sued the district under federal and state law claims of retaliation and a racially and sexually hostile work environment. The district moved for summary judgment, which the district court granted.
On appeal to the court of appeals, Douglass argued that she stated a hostile work environment claim sufficient to survive a motion for judgment on the pleadings. The court found that Douglass’ “conclusory assertions” that she was targeted by various supervisory officials on the basis of race and gender did not demonstrate that her workplace was so “permeated with discriminatory intimidation, ridicule and insult…as to alter the conditions of her employment.” The court found that the allegations of mistreatment that Douglass did identify – including addressing her discourteously, denying her requests for athletic and other equipment, and excluding her from meetings – did not rise to the level of altering the conditions of employment. Accordingly, the court of appeals held that summary judgment was correctly awarded to the district on Douglass’ hostile work environment claim.
The court of appeals also upheld the district court’s conclusion that Douglass failed to show that she suffered an adverse employment action in response to engaging in protected activity. Douglass argued that her December 10, 2007 letter to a school human resources officer requesting a change in supervisor constituted protected activity for retaliation purposes. The court of appeals agreed with the district court that while the letter characterized the principal as having a “brusque manner and volatile temperament,” it would not have placed a reasonable employer on notice that Douglass thought the alleged mistreatment was motivated by race or gender. Douglass did not argue that the reasons given for her termination were a pretext for retaliatory animus, nor did she submit any evidence to support such a showing. Accordingly, the court of appeals found that the district was entitled to summary judgment on Douglass’ retaliation claim.
Delaware Supreme Court rules police officer violated student’s Fourth Amendment right against seizure by purposely frightening him to get a confession from another student.
Hunt v. State of Delaware, 69 A.3d 360 (2013).
http://courts.delaware.gov/opinions/download.aspx?ID=191040
An autistic student was bullied on a school bus and money was taken from him. One of the students told the vice principal of the elementary school that “AB,” a fifth grade student, took the money. The vice principal obtained permission from AB’s mother to talk to AB about the incident. Delaware state trooper David Pritchett, who was assigned to the district as a school resource officer attended the interview. The vice principal was called to another matter during the interview, leaving Pritchett alone with the student during the interview.
During the questioning, AB admitted to having the money, but said that another student, who was sitting next to the autistic student on the bus, took the money. Pritchett determined that the student seated next to the autistic student was Anthony Hunt. Although Pritchett believed AB was the perpetrator, he called Hunt to the office. Pritchett questioned Hunt in AB’s presence. According to Hunt, Pritchett used a “mean voice” and told him “11 or 12 times that Pritchett had the authority to arrest Hunt and place him in jail if he didn’t tell the truth.” Pritchett’s intimidating actions resulted in Hunt becoming shaken and starting to cry. AB finally admitted to taking the money from the autistic student.
After Hunt reported the incident to his mother, she removed him from school for approximately 18 months. The mother sued in state court alleging a Fourth Amendment seizure violation and various torts. The trial court granted Pritchett summary judgment on the Fourth Amendment claim and the state law claims. Hunt appealed.
On appeal, the Delaware Supreme Court panel reversed the trial court’s ruling on Hunt’s Fourth Amendment claim and on two of his tort claims. The panel determined that, because a reasonable child would not believe he was free to leave the room under the circumstances, Pritchett had engaged in a Fourth Amendment seizure of Hunt. The panel determined that the seizure was unreasonable for a number of reasons. Chief among those reasons was that Pritchett admitted that he did not suspect Hunt of having taken the money, and therefore brought Hunt to be interviewed solely to elicit AB’s confession. The court found that Pritchett should have known it was unreasonable to seize Hunt and intentionally frighten him in order to teach another student a lesson. For these reasons, the Delaware Supreme Court reversed the trial court’s decision.
Ohio Supreme Court determines property valuation complaint filed by a company employee is not the unauthorized practice of the law.
Marysville Exempted Village Sch. Dist. Bd. of Edn v. Union Cty. Bd. of Revision, 2013-Ohio-3077.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-ohio-3077.pdf
A salaried employee of Connolly Construction Company prepared and filed ten property valuation complaints. The Union County Board of Revision (BOR) reviewed the complaints and ordered a decrease in value. In response, the Marysville Exempted School District Board of Education appealed to the Board of Tax Appeals (BTA).
The school board asked the BTA to order that the original complaints be dismissed because a lawyer did not sign them. The school board alleged that the actions of the salaried employee constituted an unauthorized practice of the law. The BTA issued a consolidated decision granting the school board’s motion, and ordered the complaints be remanded to the BOR to be dismissed for want of jurisdiction. Connolly Construction appealed.
The Ohio Supreme Court reversed the BTA decision and remanded to the BTA for further proceedings. The Court found the statute permitting nonlawyers to file valuation complaints, R.C. 5715.19(A)(1), constitutional. The Court explained that there is ample precedent for exercising deference to laws or policies that authorize nonlawyers to engage in activities that fall into the broad category of the practice of law.
Ohio court of appeals upholds determination that employee’s employment was terminated without just cause.
Bellevue City Sch. Dist. Bd. of Edn. v. Martin, 2013-Ohio-2801.
www.supremecourt.ohio.gov/rod/docs/pdf/6/2013/2013-ohio-2801.pdf
In June 2009, a number of female employees came to the Bellevue City School District’s treasurer with complaints about the behavior of the district’s Superintendent, William Martin. The matter was submitted to the board of education, which unanimously adopted a resolution notifying Martin of the board’s intent to terminate him for “gross inefficiency, willful and persistent violations of reasonable policies of the board of education, and other good and just cause.” The resolution referenced the board’s policies prohibiting discrimination on the basis of sex, sexual harassment, and fostering a hostile work environment based on sex. Martin filed the application for unemployment compensation shortly thereafter.
While his initial employment compensation claim was pending, Martin demanded a hearing before an ODE hearing officer. The ODE hearing officer found that Martin’s behavior did not constitute sexual harassment and that the district failed to prove just cause for Martin’s termination. The school district rejected the hearing officer’s decision and terminated Martin’s employment.
Martin’s application for unemployment compensation was initially disallowed by the Ohio Department of Job and Family Services. Martin appealed the denial of benefits to the Ohio Unemployment Compensation Review (OUCR) Commission, who reversed disallowance of unemployment compensation. OUCR found credible Martin’s testimony that many of Martin’s statements were taken out of context and carried no sexual intent.
Two actions were brought in the common pleas court. Martin appealed his termination notice and the school district filed an appeal seeking reversal of OUCR’s award of unemployment compensation benefits. The common pleas court affirmed the district’s decision to terminate Martin and reversed the OUCR’s award of unemployment compensation benefits, finding that the court already resolved the issue of whether Martin was terminated with “just cause” when they heard Martin’s appeal of his termination. Martin appealed.
On appeal, the court of appeals reversed the common pleas court’s decision and upheld the determination that Martin’s employment was terminated without just cause. The court concluded that the common pleas court committed several errors in its consideration of the matter, including improperly taking judicial notice of its own decision and substituting its judgment for that of the trier of fact. The common pleas court also made no effort to reconcile its decision with the hearing officer’s conclusion that Martin’s termination was without just cause. Because there was competent, credible evidence by which the hearing officer could have found that Martin’s termination was without just cause, the judgment of the court of common pleas was reversed. The court of appeals remanded the matter back to the common pleas court to apply the proper standard of review.