Ohio Supreme Court: No Abuse of Discretion to Order Disclosure of Names of Replacement Teachers Months After Strike Had Ended Without Evidence of Continuing Threats

Last week, a divided Ohio Supreme Court  ruled that, after a labor strike has ended, a public school must disclose as requested the names of replacement teachers hired during the strike. State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn., 2015-Ohio- 1083 (3/25/15).  However, the court acknowledged that the school may have been justified in withholding the names of the replacement teachers during the strike when there had been harassment, violence and threats of violence against the replacement teachers during the strike.  Nonetheless, the school was still ordered to pay the attorney fees of the successful plaintiff incurred in pursuing the mandamus action to obtain the records because the school still had not produced the records months after the strike ended and had not proven that the replacement teachers would suffer any harm from the delayed disclosure.   

According to the Court’s per curiam opinion, the replacement teachers suffered harassment, violence and threats of violence as a result of the teacher’s strike:   

·        On March 3, a crowd of 75 to 100 people outside the city council building (where the interviews and hiring was taking place) chanted, jeered, and cursed at the applicants as they entered and exited the building to apply for jobs. The crowd took pictures of applicants and screamed obscenities at one applicant who entered the building with her two small children.

·        During the strike, acts of harassment and intimidation aimed at the replacement teachers continued. Replacement teachers discovered notes left in classrooms containing offensive messages. Signs were distributed in neighborhoods where some replacement teachers lived identifying the teacher by name and disclosing his or her address. SEA posted a “wall of shame” on its website with the pictures of some replacement teachers; the posting was accompanied by derogatory and offensive comments. Picketers continued to harass and intimidate replacement teachers during the strike.

·        It was reported that a striking teacher was arrested by the Strongsville Police Department for reckless driving when he allegedly cut off a van transporting replacement teachers to work. The replacement teachers reported to the police that the other driver nearly caused a collision with the van. The replacement teachers described the incident as “harrowing” and “outrageous” and stated that they “feared the worst” and were “frightened.” 

·        A replacement teacher reported to the police that she was driving home after work when a car pulled up next to her and the passenger yelled “scab” and threw an object at her windshield, breaking the glass. 

The teachers’ union immediately requested the names of the replacement teachers and again a month later.  However, the school refused to produce them, citing a concern with their safety.  “In particular, the board asserted that the names of the replacement teachers were not considered public record because of the threat of harm to those teachers.”    The Supreme Court has previously recognized a “good sense” exception to the state public records law when releasing the names of certain employees (such as undercover police officers and children) would result in their harm. “The case law does establish a right to privacy in circumstances in which a person might be at substantial risk of serious bodily harm if personal information is disclosed. . . . . Some cases also indicate that even when imminent bodily harm is not threatened or a potential risk, disclosure is nevertheless precluded because of the potential for nonphysical harm.” 
 

Upon considering the case in August --  months after the strike had ended on April 28--  the appellate court concluded that the school had not proven that the replacement teachers still suffered any “threat of harm after the strike had ended.”  Concerns that that the replacement teachers would suffer retaliation for the remainder of their career was insufficient to make their names non-public.  

Although the Supreme Court recognized that “[t]here may have been a genuine threat to the replacement teachers’ physical well-being from supporters of the strike” and that the school board “reasonably” concluded that the disclosure during the strike could place the replacement teachers at “substantial risk of serious harm,”  it nonetheless affirmed the order to disclose the records in August (when the appellate court considered the mandamus lawsuit) because the school had “presented little or no evidence that once the strike was over, there was any remaining threat to the replacement teachers.”  Accordingly, the appellate court did not abuse its discretion in ordering the disclosure of the replacement teachers’ names.  The Court specifically rejected the school’s concern with a single threat that the replacement teachers would suffer retaliation that would follow them their entire careers.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

When Bizarre and Threatening Behavior Constitutes Constructive Notice of a Need for FMLA Leave.

Setting a rather dangerous precedent, the Seventh Circuit Court of Appeals – in a 2-1 vote -- recently reversed summary judgment in favor of an employer which had fired an employee who freaked out over a stray puppy that had entered her workspace, engaged in bizarre and threatening behavior, called off sick for days on end due to the stray dog, and failed to provide the necessary medical certification to justify a medical leave of absence. Stevenson v. Hyre Electric Co., No. 06-3501 (7th Cir. 10/16/07).

After a dog wondered near the plaintiff’s desk, she began cursing, spraying deodorizer, and otherwise displaying agitated and belligerent behavior. Two hours later, she went home “ill.” She called off “sick” the next day as well. The following day, she accosted the company president first thing in the morning and screamed at him about the dog for ten minutes despite his efforts to calm her. She then left work again, filed a complaint with OSHA about the single incident involving the stray dog and went to the local ER, which obtained normal CAT scans and EKGs, but diagnosed her with anxiety and stress and prescribed Antivan. She called off “sick” for the next three workdays (again without elaborating why), but met with her union steward about the stray dog incident. She finally came to work for a few hours (and had been moved to a different office to accommodate her fear of stray dogs), but called the police about undefined harassment, screamed at her co-workers and left work again “ill” without completing any significant work. Before leaving, she left a copy of her records from her ER visit.

The company then notified the plaintiff that she had exhausted her paid leave and needed to provide medical certification of her need for FMLA leave within 15 days of her first absence or she would be terminated. Plaintiff called off “sick” again, but went to her regular physician (who prescribed sleep medication). Plaintiff did not return to work for a few days, but met with her union again. She also obtained a note from her physician “excusing” her absences through that date (February 20), but not certifying or even mentioning that she had a “serious health condition” or that she had been directed to remain off work. Despite her doctor visit, the plaintiff still did not return to work, but she provided the doctor’s “excuse” to her union, which sent it to the company president. In this age of workplace violence, the employer was alarmed by her bizarre behavior and lack of cooperation in supplying medical information. It changed its locks and barred her from entering when she finally showed up a few days later without a doctor's release. Only then did Plaintiff obtain an updated medical release to return to work, but by then, the company did not want it and refused to explain why to her union when asked.

Apparently not as concerned with the safety of her co-workers, the majority of the court interpreted the same bizarre behavior as sufficient evidence for a jury to believe that the plaintiff suffered from a serious health condition which was protected by the FMLA and excused her from seeking medical leave or providing timely medical certifications. Her bizarre behavior could constitute “constructive notice” to the employer of her need for medical leave in the same way that watching an employee break his or her arm would constitute constructive notice of a need for medical leave:

“Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employee’s calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give [the president] notice of a serious mental health condition. Of course, the factfinder could find that [Plaintiff] just had a bad temper that erupted during the period in question. The point here is that this is not a decision the court can make as a matter of law.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomniacs can read the full opinion at http://caselaw.lp.findlaw.com/data2/circs/7th/063501p.pdf.