SMITH v. PERKINS BOARD OF EDUCATION Case No. 3:11 CV 560.
Carol Ann Smith, Plaintiff, v. Perkins Board of Education, et al., Defendants.
United States District Court, N.D. Ohio, Western Division.
January 12, 2012.
Matt Kosior, Defendant, represented by
Joan C. Szuberla, Spengler Nathanson — Toledo.
MEMORANDUM OPINION AND ORDER
JACK ZOUHARY, District Judge.
Before this Court is Defendants' Motion for Summary Judgment (Doc. No. 17). Defendants are the Perkins Board of Education, James Gunner (District Superintendent), and Stephen Finn (Principal of Briar Middle School). Plaintiff, Carol Ann Smith, is a former teacher (Doc. No. 1 at 4). Plaintiff alleges Defendants terminated her in violation of Ohio law, failed to accommodate her and retaliated against her in violation of Ohio law and the federal Americans with Disabilities Act ("ADA"), and that she suffered an intentional infliction of emotion distress (Doc. No. 1 at 12-15). This matter has been fully briefed (Doc. Nos. 17, 22 and 24).
Plaintiff began her employment with the Perkins Local School District in 1976 (Doc. No. 1 at 5). In 1992, Plaintiff was diagnosed with Type 2 diabetes, and she eventually required insulin injections (Doc. No. 1 at 5). During her employment, "Plaintiff received uniformly positive performance evaluations" until 2008 (Doc. No. 1 at 5).
In September 2008, Plaintiff received notice of a disciplinary conference regarding allegations that she had been sleeping during class (Doc. No. 1 at 6). Plaintiff alleges she was not sleeping, but rather exhibiting symptoms of her disability — diabetes (Doc. No. 1 at 6). She sent a letter from her healthcare provider to Principal Finn, explaining her disability and symptoms (Doc. No. 1 at 6). Principal Finn placed a written reprimand in Plaintiff's file and scheduled her for a performance evaluation (Doc. No. 1 at 7).
Plaintiff hired an attorney, who responded in writing to the reprimand (Doc. No. 22-7 at 18). Plaintiff's attorney also requested several accommodations for her disability (Doc. No. 22-1 at 21). The following accommodations were provided (Doc. No. 1 at 8):
Plaintiff was given the option of disseminating this diabetes information if she chose (Doc. No. 1 at 8).
Plaintiff was suspended on three separate occasions after the accommodations took effect. First, Plaintiff received a three-day unpaid suspension on April 2, 2009 for missing two class periods on February 25, 2009 (Doc. No. 1 at 9). Plaintiff claims she was injecting herself with insulin at the time (Doc. No. 1 at 9). Second, Plaintiff was suspended from August 25, 2009 to September 11, 2009 due to repeated incidents of sleeping in class (Doc. No. 1 at 10). Third, Plaintiff was suspended in March 2010 for using Playgirl Magazine as an example of yellow journalism (Doc. No. 1 at 10). Plaintiff apparently discussed with her students the differences between sensationalism and pornography (Doc. No. 18 at 30-31). Following this last incident, Plaintiff was informed that Superintendent Gunner would be recommending her termination to the Perkins Board of Education (Doc. No. 1 at 10-11).
The Board terminated Plaintiff's contract on April 14, 2010 on the basis of "good and just cause," specifying three grounds (Doc. No. 18 at 3):
Plaintiff challenged her firing and requested administrative review of the Board's decision (Doc. No. 1 at 11). The administrative hearing took place on July 21-22 and August 11-12 of 2010 before Referee Harry Taitch (Doc. No. 1 at 11).
Referee Taitch reviewed each of the Board's grounds for termination and supporting evidence. At the time of the hearing, Plaintiff was 71 years old and had thirty-four years of teaching experience (Doc. No. 18 at 12). Principal Finn testified he observed Plaintiff sleeping (eyes closed, leaning back, and mouth opened) during class on September 4 and September 9, 2008. The same behavior was observed by an assistant-principal on September 22 (Doc. No. 18 at 13). According to Principal Finn, Plaintiff admitted to sleeping in class on September 4, but denied the other incidents, claiming her sleepiness was caused by diabetes. These three events caused Principal Finn to issue the October written reprimand, and he testified that her behavior posed a danger to students (Doc. No. 18 at 14).
Taitch also heard testimony regarding Plaintiff's suspensions, as well as additional evidence showing Plaintiff repeatedly fell asleep during class (Doc. No. 18 at 14-17). Finally, Taitch reviewed the results from a March 2010 investigation that included testimony from several students who verified Plaintiff had fallen asleep in class numerous times (Doc. No. 18 at 19-25).
After considering all the evidence, Taitch concluded the Board's first ground did not warrant termination. While Taitch agreed that using Playgirl magazine as an example of yellow journalism "does not conform in any way to the social studies course of study" (Doc. No. 18 at 36) and that discussing pornography with a ninth grade class was "inappropriate" (Doc. No. 18 at 37), he ultimately determined Plaintiff "does not have a reputation for teaching inappropriate subjects" and her reference to pornography "was not conduct that was flagrant, outrageous, or persistent . . . ." (Doc. No. 18 at 37).
Taitch, however, did find the Board had established, by a preponderance of evidence, the other grounds warranting termination: namely, Plaintiff's sleeping in class, and at other times during her employment, was "persistent, flagrant and outrageous" (Doc. No. 18 at 40); and her repeated absences and tardiness to class were unacceptable behavior (Doc. No. 18 at 42). He described her conduct as "totally unprofessional, inappropriate, unsafe, outrageous, flagrant, and persistent and threatened the safety, security and welfare of the students." (Doc. No. 18 at 43).
Referee Taitch's decision was given to Plaintiff on October 9, 2010 (Doc. No. 18 at 44). On March 17, 2011, Plaintiff filed her Complaint with this Court (Doc. No. 1).
Plaintiff alleges four grounds for wrongful termination (Doc. No. 1 at 12-15):
Plaintiff seeks declaratory and injunctive relief, requesting this Court find her termination unlawful, reinstate her as a teacher with all accrued benefits and back pay, award her additional damages for mental distress and anguish, and award punitive damages against Defendants Gunner and Finn for the intentional infliction of emotional harm.
STANDARD OF REVIEW
Pursuant to Federal Civil Rule 56(a), summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." This burden "may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett,
Defendants argue all of Plaintiff's state and federal claims are barred and summary judgment is appropriate (Doc. No. 17-1 at 6-13). Specifically, Defendants argue the administrative hearing found Plaintiff's termination was for "good and just cause," a finding which now precludes Plaintiff from arguing she was terminated for discriminatory reasons (Doc. No. 17-1 at 7). Defendants also argue Plaintiff's state law claims are barred by the very language of the Ohio statute. How each count is, or is not, appropriate for summary judgment is discussed below.
Age Discrimination Under R.C. §§ 4112.14 and 4112.99
Plaintiff alleges her termination violated R.C. § 4112.14, which provides:
Defendants argue Plaintiff's termination was arbitrated and found to be for just cause; therefore, R.C. § 4112.14, by its terms, is unavailable (Doc. No. 17-1 at 7-9). Plaintiff received an administrative hearing under R.C. § 3319.16, not an arbitration. However, proceedings which are "the functional equivalent of arbitration" also bar claims under R.C. § 4112.14. Meyer v. United Parcel Serv., Inc.,
Plaintiff also alleges a violation of R.C. § 4112.99. That section, however, does not state a separate cause of action but simply provides "[w]hoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief." Like R.C. § 4112.14, this section is also barred by previous arbitration. Meyer, 122 Ohio St. 3d at 116 (finding a R.C. § 4112.99 claim "undoubtedly falls within the ambit" of R.C. § 4112.14).
The grievance proceeding Plaintiff received was "the functional equivalent of an arbitration" so as to bar her R.C. 4112 claims. Featherstone v. Columbus Pub. Sch.,
Here, Plaintiff was found to be terminated for just cause at a hearing that was functionally equivalent to an arbitration. Therefore, her R.C. §§ 4112.14 and 4112.99 claims are barred.
The second count alleges Defendants failed to make reasonable accommodations for Plaintiff's disability in violation of the ADA, 42 U.S.C. § 12112(b)(5)(A), and R.C. § 4112.02(A). Ohio's disability discrimination statute parallels the requirements of the federal ADA statute, and this Court may look to federal law in its interpretation of Ohio law. See Brenneman v. MedCentral Health Sys., 366 F.3d 413, 418 (6th Cir. 2004).
The ADA prohibits employers from "discriminat[ing] against a qualified individual on the basis of disability," including "not making reasonable accommodations" for a disabled employee. 42 U.S.C. § 12112(a)(b)(5)(A). To prevail on a failure to accommodate claim, Plaintiff must show: (1) she is disabled; (2) she is qualified for the job, with or without reasonable accommodation; and (3) she was denied a reasonable accommodation. Penny v. United Parcel Serv.,
As to the first element, the ADA defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of [the affected] individual." 42 U.S.C. § 12102(1)(A). Plaintiff must provide "sufficient evidence" of her substantial limitation to show her diabetes is a disability under the ADA. Gilday v. Mecosta County,
Nor do Defendants contest Plaintiff's qualifications as a teacher. When she was fired, Plaintiff had taught for over thirty years and had a master's degree (Doc. No. 1 at 5). The second element of her claim is met.
The third and final element of her claim requires this Court to examine whether she was denied reasonable accommodations. 42 U.S.C. § 12111(8) defines "reasonable accommodation" and includes job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquisition or modification of equipment or devices. Importantly, "an employee cannot force her employer to provide a specific accommodation if the employer offers another reasonable accommodation." Talley v. Family Dollar Stores of Ohio, Inc.,
Plaintiff requested the following accommodations (Doc. No. 22-1 at 21):
Instead of the above accommodations, Defendants allowed Plaintiff to keep snacks in her classroom to help moderate her blood sugar. She was also permitted to inject herself with insulin in the nurse's office — in privacy as she requested — as well as conduct regular blood tests. Plaintiff was also permitted to distribute information to students and staff regarding her disability (Doc. No. 1 at 8). Plaintiff was reminded that if she was having problems with her blood sugar, "[s]he simply needs to call the office and ask for assistance." (Doc. No. 22-1 at 22).
Plaintiff's primary objection to these accommodations is they "conspicuously failed to address Plaintiff's request that verbal confirmation be obtained in the event that she appears to be asleep . . . ." (Doc. No. 1 at 8). First, that request is not reasonable because Plaintiff is required to be awake and alert in class. Brickers v. Cleveland Bd. of Educ.,
Because Plaintiff was in fact afforded reasonable accommodations under the ADA and Ohio law, she cannot satisfy the third element of her claim. Gaines v. Runyon,
Plaintiff next alleges her termination was retaliatory in violation of the ADA and R.C. § 4112.02, specifically that her charges of discrimination "played a substantial or motivating factor in her being terminated by the Defendants" (Doc. No. 1 at 14). To make out a case of retaliation, Plaintiff must show: (1) she engaged in protected activity; (2) she suffered adverse employment action; and (3) a connection existed between the protected activity and the adverse action. Penny, 128 F.3d at 417.
Assuming arguendo the first two elements are met, Plaintiff certainly fails the third requirement. This is because her termination hearing found she was terminated for "just cause." Plaintiff cannot now challenge that finding by arguing her discharge was for discriminatory or retaliatory reasons. "When a state agency acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee, et al., v. Elliot,
The Sixth Circuit, applying Elliot, developed a three-step process to determine when an agency's action should be given preclusive effect: "first, was the agency acting in a judicial capacity; second, would the decision have preclusive effect under [Ohio] law; and third, does the federal action seek to litigate issues already determined by the state agency." Nelson v. Jefferson County,
As in Featherstone, the amount of evidence presented at Plaintiff's grievance hearing was substantial — over 1,200 pages of transcript, 129 exhibits and 27 witnesses (Doc. No. 17-1 at 4). Additionally, during the four-day hearing, Plaintiff had the assistance of counsel, had a full and fair opportunity to raise any defenses or challenges to her termination, and could have appealed the decision of the referee to state court. Plaintiff, in this lawsuit, seeks to relitigate issues already decided in her administrative hearing where the neutral referee determined that sleeping during class and repeated absences warranted Plaintiff's termination (Doc. No. 18 at 40). Plaintiff does not get a second bite at the apple. Plaintiff's retaliatory claim fails as well.
Intentional Infliction of Emotional Distress
Plaintiff's final claim alleges Defendants waged "a campaign to harass [Plaintiff] being extreme, outrageous and intentionally invasive of her mental and emotional tranquility . . . ." (Doc. No. 1 at 14-15). To succeed with this claim, Plaintiff must establish: (1) Defendants intended to cause Plaintiff emotional distress or should have known such serious emotional distress would result; (2) Defendants' conduct was outrageous, extreme, beyond all possible bounds of decency, and utterly intolerable in a civilized community; (3) Defendants' conduct proximately caused Plaintiff's psychic injury; and (4) Plaintiff's emotional distress is so serious that no reasonable person could be expected to endure it. Talley, 542 F.3d at 1110 (6th Cir. 2008) (interpreting Ohio law); see also Phung v. Waste Mgt., Inc.,
The Complaint does not specify particular instances where Defendants' conduct allegedly caused her psychic injury. Instead, it generally indicates nefarious conduct began in November 2008 and concluded with her termination in April 2010 (Doc. No. 1 at 14). A detailed review of the pleadings and record reveals no support for her claim. "Such bald allegations are clearly insufficient to forestall summary judgment." Aureus Holdings, Ltd. v. Detroit City, 303 F. App'x. 265, 270-71 (6th Cir. 2008). And, to the extent this claim relates to her termination, for reasons noted above, this claim is without merit.
Plaintiff is commended for her many years of dedication and devotion to teaching. It is sad perhaps that she stayed on too long when she was not able to keep up with the demands of the profession. This Court cannot find fault with the efforts of the school to accommodate and work with Plaintiff over time, nor can this Court find fault with the referee's decision that her termination was warranted. For all the above reasons, Defendants' Motion is granted and this case is dismissed.
IT IS SO ORDERED.
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