August Brings More Decisions Relating to COVID Fallout.

Courts have continued this month to issue decisions relating to fallout from the COVID pandemic.  In one, the Sixth Circuit reversed an employer’s summary judgment on a Title VII religious discrimination claim alleging that the plaintiff had been fired for not conforming to the employer’s religious beliefs which were hostile to, among other things, his social distancing during the pandemic.  Amos v. LAMPO Group, LLC, No. 24-5011 (6^th Cir. Aug 6, 2024).  In another, the Sixth Circuit affirmed the continuation of a state law lawsuit where the plaintiff had been fired for refusing the COVID vaccine and rejected the employer’s argument that it was immune as a federal contractor because the government’s vaccine mandate was unlawful.  Riggs v. UCOR, LLC, No. 23-6116 (6^th Cir. Aug. 2, 2024).    Finally, the Ohio Supreme Court held that civil service employees were permitted to appeal whether their COVID furlough was a layoff governed by seniority rules.  Harmon v. Cincinnati, No. 2024-Ohio-2889.  “Common pleas court [was] not divested of jurisdiction to hear city employees’ administrative appeal regarding whether separation from employment under temporary emergency-leave program implemented in response to COVID-19 pandemic constituted a layoff.” The Court found that the bargaining agreement permitted civil service appeals and the civil service commission’s failure to conduct an evidentiary hearing when it should have done so did not destroy jurisdiction or render it a non-quasi-judicial matter.

In Amos, the plaintiff alleged that the defendant employer’s policy “was that prayer was the “exclusive way to prevent COVID infection,” and that anything else showed a “weakness of spirit” and was “against the will of God.”  . . . .  Employees that did take precautionary measures were “mocked and derided.” He also alleged that he “was criticized, specifically, for social distancing and wearing a mask.”  He followed “his own deeply held religious beliefs, including the “golden rule” of doing no harm to others and promoting the safety of his own family.”  Ultimately, he alleged that he was fired in July 2020 for “lack of humility” and because [he] “was not a good fit because he ‘would stand off to the side.”  He claimed “that his termination was based on his failure to submit to Lampo’s religious practices and his expression of his own religious beliefs with regard to COVID measures.”

While most religious discrimination claims are based on the employer’s failure to accommodate an employee’s beliefs, it is also true that religious nonconformity is covered because “Title VII “preclude[s] employers from discriminating against an employee because . . . the employee fails to comply with the employer’s religion.”

As with all other types of religious-discrimination claims, the employer is accused of discriminating against the employee on the basis of religion. Here, however, it is the employer’s religion that is the focus. But that doesn’t make the discrimination “reverse.” The employer is still the one allegedly doing the discriminating. The only difference is the alleged motivation—who holds the relevant religious beliefs. If anything, “reverse” might suggest—strangely—that it is the employee doing the discriminating. Accordingly, we will refer to this claim as one for “religious nonconformity.”

The trial court indicated that the plaintiff did not sufficiently allege that the employer failed to accommodate his own religious beliefs and dismissed his noncomformity claims as possibly unrelated to any particular religious belief and based simply on disdain.  The Court, however, found that he had sufficiently alleged a non-conformity claim.  He “provides sufficient facts to support a claim that [the employer] discriminated against him because he did not share [its] religious convictions, and so has met his burden.”

Moreover, the Court also concluded that he had sufficiently alleged that the employer had failed to reasonably accommodate his own religious beliefs.   He   “just need[s] to plausibly allege that [he was] denied a religious accommodation and treated differently because of [his] religion.” In particular, he alleged that the employer

violated Title VII . . . by refusing to respect and/or accommodate Plaintiff’s strongly held religious belief that ‘God helps those that help themselves,’” that he has “a deep religious devotion . . . to follow the ‘golden rule’ to do no harm to others,” and that “[the employer] terminated [him] for taking scientifically prescribed precautions, as required by his sincerely held religious beliefs.” . . . . In short, [he] pleads that his deeply held religious beliefs required him to take COVID precautions to avoid inflicting injury on others, as well as to protect his family—and that [the employer] did not allow him to do so and ultimately terminated him. This is a plausible claim, supported by specific factual allegations . . .

Finally, the Court rejected a distinction between religious beliefs and religious conduct.

Title VII defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate . . . [the] religious observance or practice without undue hardship on the conduct of the employer's business.”  . . . .  And the Supreme Court has explicitly denied attempts to create a distinction between religious belief and conduct in the Title VII context. . . . . Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”

In Riggs, the employer was a federal contractor who was required by federal regulation to maintain a safe workplace.  Prior to the government requiring contractors and employers to mandate COVIC vaccines, the employer implemented such a policy.  The Court enjoined the government’s mandate on government contractors, but not OSHA’s similar requirement on employers. The plaintiff’s request for a religious accommodation was denied by the employer and she was fired in January 2022 for refusing to be vaccinated.  She filed suit under a state law that prohibited the termination of employees who refused to get vaccinated.  The employer claimed that it was immune from such suit because it was a federal contractor which was required to mandate the vaccination.

Federal contractors may assert derivative immunity as a defense where (1) the government “directed” the contractor to take the action for which the plaintiff seeks to hold it liable, and (2) the government’s direction was legally valid, meaning that federal law authorized the government to issue that directive.  

In this case, the employer could not assert that the government’s direction was legally valid.  The Court had already enjoined the contractor mandate and the Supreme Court later struck down the OSHA mandate.   Further, the employer had implemented its policy before either government mandate. “A contractual provision granting UCOR the discretion to choose which measures it felt were “reasonable” to protect the health of its employees does not amount to a command from the government that UCOR implement a Covid-vaccination policy.”

Finally, in Harmon, the employees challenged the City’s Temporary Emergency Leave policy, which was implemented because of the (correctly) anticipated reduction in tax revenues and increased expenses being caused by the COVID pandemic and shutdown.  The employees alleged that it violated the City’s Civil Service rules governing layoffs.  After appearing before the City Civil Service Commission, the Commission ruled that the TEL was not a layoff and that the employees were not entitled to an evidentiary hearing as to whether the TEL was a layoff.  The employees appealed and the court reversed.  The City then appealed, arguing that the employees’ claims should be submitted to mandatory arbitration under their collective bargaining agreement and the Commission is entitled to interpret its own rules, but the appellate court affirmed.  The Supreme Court likewise affirmed.

The Court rejected the argument that the appeal was preempted by the CBA because it explicitly permitted employees to appeal layoffs to the Commission.  Arbitration was not mandatory in such cases.

The City also argued that only Commission decisions which result from quasi-judicial proceedings are appealable and a mere “appearance” before the Commission does not satisfy that requirement. “A quasi-judicial proceeding is a proceeding that requires notice, a hearing, and the opportunity to introduce evidence.”  The Court found that this is a question of law:

“Whether there is an adjudication depends not upon what the administrative agency actually did, but rather upon what the administrative agency should have done. Where the administrative agency should have given notice, conducted a hearing and afforded the parties an opportunity to be heard and to introduce evidence, the order is the result of an adjudication even if the administrative agency fails to afford such notice and hearing.”

 . . . .

Just as it did below, the city’s arguments here rest on the fact that the commission determined that a full hearing was unnecessary because, in its view, the TEL program was not a layoff. We conclude that the commission exercised its discretion in deciding that the program was not a layoff, rendering the appearance a quasi-judicial proceeding.  . . . . . And while the commission did not follow the requirements under Cincinnati Civil Service R. 17 for conducting a hearing, it was required to do so.

 . . . . Because there was some doubt regarding whether the program was a layoff, the commission should have proceeded with a hearing to allow the parties to argue their positions. As the First District noted, “[t]he commission may not abandon its own rules and sua sponte decide that the leave under the TEL program was not a layoff prior to holding a hearing on that issue.” 2023-Ohio-788 at ¶ 19. If the commission had conducted a hearing, there would have been no doubt that the common pleas court had jurisdiction over Harmon and Beasley’s appeal, and a hearing would have provided greater insight and detail into the matter for the court to consider in making its decision. Regardless, because the commission’s decision was the result of a quasi-judicial proceeding, the common pleas court had subject-matter jurisdiction to review the decision on administrative appeal and to ultimately remand the matter to the commission for a hearing.

In short, “[t]he commission was required to conduct a hearing on [their] appeals. Since the commission should have conducted a hearing, its failure to do so rendered its decision the result of a quasi-judicial proceeding and [they] were thus permitted to appeal the commission’s decision to the court of common pleas under R.C. 2506.01(A).”

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 change or be 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.

Sixth Circuit Finds Employee's First Amendment Rights Criticizing Protests Outweighed Employer's Efficiency Interests

Earlier this month, a divided Sixth Circuit Court of Appeals reversed a public library employer’s summary judgment and granted the employee summary judgment on the §1983 First Amendment claim of a security guard who was terminated in 2020 after he briefly posted on his private FB account a highly offensive and hyperbolic meme criticizing the BLM protests.  Noble v. Cincinnati & Hamilton County Public Library No. 23-3853 (6^th Cir. Aug 9, 2024).  In finding that his First Amendment rights outweighed the employer’s efficiency interests in maintaining a harmonious workplace, “there is no proof that any patron objected to [his] meme or even saw it. But, in any event, it was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians.”

According to the Court’s opinion, the plaintiff never had any performance or personality issues at work or with his colleagues in his two years at the library.  Some of his colleagues were also “friends” on Facebook and saw meme he shared saying “All Lives Splatter” and “Nobody Cares About Your Protests” which was deleted less than 24 hours after he posted it and prior to any protests being held in Cincinnati.   Although his FB account was private, it did refer to his employment with the library.   Some of his FB friends were offended and sent screen shots to the library director.  He was confronted by his manager and HR on June 1, after he had already deleted it, and explained that he had thought it was funny.  He was suspended pending investigation, which revealed that his friends were concerned about public perception.  However, there was no evidence that any member of the public saw or were offended by his sharing of the meme (vs. his “friends” sharing the meme with their friends).   In other words, the meme had been shared more by people who said that they were offended than by him.   There was also no evidence that he was trying to offend particular co-worker or that he knew that any of his colleagues had planned to participate in BLM protests.   He was ultimately fired on June 11 for violating the library’s harassment policy and causing his colleagues and the public to lose confidence in him.  He filed suit and the trial court granted the employer summary judgment.

The Court had no difficulty finding that the meme involved a matter of public concern.  The Court had previously held that FB posts approving of the Tamir Rice shooting similarly involved matters of public concern:

[He] provided the following description of the message he meant to convey: “I didn’t care about the protests. And if you’re going to protest, that’s fine, you have the right to do so, but when you start breaking the law or stopping traffic or destroying property, I don't agree it’s a protest anymore. You’re violating the law.”  . . .  Whether one agrees with [his] views or not, there is no question that he spoke to a matter of public concern—namely, whether the alleged violent and destructive tactics of BLM were appropriate means to protest the deaths of George Floyd and others.

That the meme communicated this message in an insensitive manner does not affect this analysis, because “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”  . . . . For example, in Rankin, a public employee responded to an assassination attempt on the life of President Reagan with the remark that “if they go for him again, I hope they get him.”  . . . That outrageous statement, the Supreme Court held, was a matter of public concern.  . . . If advocacy of killing the president can be a matter of public concern, then the meme’s depiction of a vehicle running over protestors does not detract from the conclusion that [the plaintiff] communicated on a matter of public concern as well.

Unlike other courts, however, the Court found that the plaintiff’s First Amendment rights outweighed the employer’s efficiency interest.

In the aftermath of the police shootings of George Floyd and others, there was nationwide debate over whether the BLM protests were an appropriate response when they resulted in alleged violence, destruction of property, and looting of businesses that had no relationship to the shootings. . . . . The way in which [he] expressed his opposition to BLM may not have been mainstream, but the sentiment that he wished to convey—that the methods of the BLM protests were counterproductive—was by no means an isolated segment of public opinion.

 As to context, the Library fired [him] for a post “made on his private Facebook page while he was at home and not working,” id., which “raises more First Amendment red flags,”  . . . There is no evidence that [he] took his politics to work or that his views on the BLM protests or any other political matter ever interfered with how he performed his job. To put this in context, consider that the employee in Rankin expressed her wish for President Reagan’s assassination during the workday.

We determine the scope of the Library’s interests by considering whether [his] speech “(1) impairs discipline by superiors or harmony among co-workers, (2) has a detrimental impact on close working relationships for which confidence and personal loyalty are necessary, (3) impedes the performance of [his] duties or interferes with regular operations of the enterprise, or (4) undermines the [Library’s] mission.”  . . .  “Together, these factors center on the [Library’s] effective functioning as a public agency.”  . . . This interest increases “as the speech becomes more controversial.”  . . . And [his] criticism of BLM was very controversial; indeed, it was directly opposite from the political messages on the Library’s website.

Weighing these competing interests, we hold that [his] interest in his speech outweighs the Library’s claimed efficiency interest because no evidence indicates that [his] speech significantly hindered Library operations. To begin, no member of the public ever complained about [his] post. Nor is it likely that the public would have seen the post: [He] kept the meme up for less than a day, his profile settings limited public viewership, and he had few Facebook friends.

Granted, [his] speech was highly distasteful, but the First Amendment protects abhorrent speech, and it does so even if the speech makes others feel quite uncomfortable. . . . . Similarly, the Supreme Court has held that the First Amendment protects individuals who refuse to salute the flag, or even burn it, and who engage in homophobic protests at military funerals, despite that such actions deeply offend many people.  . . .  That is because the First Amendment does not permit one side of a debate to use the government to cancel the other side. It allows all perspectives, even the very offensive, to be heard.

A public employer need not wait until an actual disruption to discipline an employee.  . . . But its anticipation of disruption must be objectively reasonable. . . . Without evidence that any member of the public beyond a few Facebook friends saw the meme, the Library could not reasonably anticipate any public backlash against the meme that would disrupt its operations. And though the Library appeared to argue that it could anticipate that [he] would run over his colleagues or protestors because [he] had access to a Library vehicle as a security guard, the Library did not seriously raise this argument at oral argument. The Library could not have reasonably anticipated that [his] hyperbolic meme suggested that he would recklessly drive any Library vehicle. In fact, [he] rarely even drove as part of his job and there is no evidence that he was ever unsafe behind the wheel.

The Court distinguished prior decisions finding the employer’s interest to outweigh the employee’s First Amendment rights where the employees’ FB posts had been “racially charged” or involved a racial slur or were by employees who held leadership posts or worked closely with the public. “Contrary to what the dissent suggests, the fact that [he] was a public-facing employee does not alter this analysis. Again, there is no proof that any patron objected to [his] meme or even saw it. But, in any event, it was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians.”

 . . . . That the Library fired [him] for speech expressing a view contrary to the powers-that-be at that institution casts doubt on its motive for firing him and undercuts its workplace harmony interest.

 . . . Here, the only injuries that resulted from the speech were the alleged wounded feelings of certain co-workers who had lost trust in him. . . . given [his] spotless record as a security guard prior to the meme, there is strong indication that he would have again performed his duties appropriately had he been allowed to retain his job, thus restoring that trust. Absent evidence that [he] posed a threat or risk to fellow workers, his hyperbolic speech alone was not enough to fire him. Given the short time [he] kept the meme on his Facebook page, its limited viewership, and the lack of public response, the Library could not have reasonably expected that [his] post would incite disruption. Pickering does not give the Library carte blanche to take away [his] means of livelihood based on his speech. The balance favors [him], not the Library.

The Court not only remanded the case back to the trial court, it directed the trial court to enter summary judgment for the plaintiff security guard. 

Dissenting, Judge Sutton preferred to give the Library broad discretion as an employer against a public-facing employee who shared a meme showing violence against BLM protesters. 

Deciding whether [he] has a greater interest in commenting on protests or whether the library has a greater interest in managing its workplace leaves us with the ineffable task of “judging whether a particular line is longer than a particular rock is heavy.”  . . .  Even if we could strike the right balance between these competing interests, the task would give us the unenviable role of acting like “legislators, not judges.”

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 change or be 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.

Sixth Circuit Rejects Disability Discrimination Claim When Employee Refused to Submit Reasonable Accommodation Request

Yesterday, in an instructive decision, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on disability discrimination and failure to accommodate claims based on the former employee’s withdrawal/failure to participate in the interactive process.  Wilson v. ODMAS, No. 23-3994 (6^TH Cir. Aug. 14, 2024). The Court agreed that the employee failed to show that she proposed a reasonable accommodation when she refused to complete or return forms from her physician confirming the disability and necessity for the requested accommodations of schedule flexibility and telework even though she had previously requested and exhausted FMLA leave and short-term disability.    This was a “critical failure” to participate in, and “voluntary withdrawal” from, the interactive process necessary to prevail on a failure to accommodate claim.  Further, the Court rejected her argument that the employer’s failure to accommodate was a “continuing violation,” and dismissed the remaining allegations since her accommodation requests had been made more than two years before she filed suit and were, therefore, untimely.

According to the Court’s opinion, the employee had several mental health impairments which affected her ability to maintain predictable attendance.  Her job duties involved travelling and working in the office.   She requested and received approval for intermittent FMLA leave.  However, she was placed on a last chance agreement after it was discovered that she had claimed to be working (and was paid) for two days that she required unpaid FMLA leave.   The following year, she exhausted her FMLA leave entitlement.  She then received and exhausted her lifetime of paid Short-term disability leave.  She then requested a reasonable accommodation for schedule flexibility and telework and was provided with the forms for her and her physician to complete.  Believing that it was a waste of time based on prior denial of accommodations, she did not complete or return the forms or exercise any appeal rights.  In July, she called off sick without sufficient sick leave, in violation of her Last Chance Agreement.  She was asked for a written explanation of her absence, but she refused to provide one.  A pre-termination hearing was held in November 2018, but she refused to attend and was fired the following month. She filed suit two years later.  

Although the claims were brought under the Rehabilitation Act, the Court applied standards from the  ADA.  She alleged that she was fired for absences that would not have occurred if her disability had been accommodated.  This disability discrimination claim required her to prove that she requested or proposed a reasonable accommodation.

But even if [she] satisfied the first four factors, the [employer] would not fail to provide the necessary accommodation merely by declining to provide one automatically at [her] request. Instead, [her] request for accommodation would mark the beginning of an “interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations” that “requires communication and good-faith exploration of possible accommodations. . . .

Before the [employer] must accommodate, [she] needs to first provide “a proper diagnosis of her disability and requested specific accommodation.”  . . . If she instead “voluntarily withdraws from the interactive process based on [the employer’s] request for verification, [she] fails to show that the [employer] denied her requests for accommodations.”  . . . And if [she] fails “to provide requested medical documentation supporting an accommodation,” that “precludes a failure to accommodate claim.”  . . .

Here, when [she] requested an ADA accommodation, the [employer’s] ADA coordinator asked her to fill out paperwork to describe her requested accommodation and to show physician support for it. But [she] refused. She claims that her FMLA and short-term disability forms should suffice because they were “signed by her physician” and “precisely describ[e] the nature of her disability.” . . .

These documents, however, only support the FMLA leave and short-term disability leave [she] already received and exhausted, showing no physician support for the ADA accommodations she requested: “reasonable accommodation within [the] area of work schedule, flexibility, and teleworking.”  . . . This deficiency is not some “bureaucratic technicalit[y],”  . . ., or a bad-faith refusal by the [employer] “to participate in the interactive process,”  . . . . It is a critical failure by [the plaintiff employee] to carry her burden of providing the [employer] “with medical documentation supporting [her] accommodation[s’] necessity,”  . . . And this failure amounts to a voluntary withdrawal that precludes her claim that the [employer] failed to accommodate her.

The Court refused to blame the employer for the breakdown in the interactive process even though the plaintiff subjectively believed that it was stacked against her.  Even if she though that 1/6 of the ADA committee was biased against her, she had a right to appeal the denial of any accommodation.  “The [employer] did not cause a breakdown in the interactive process by establishing a process that [she] simply did not like.”

Because she did not file suit until December 5, 2020, the Court would only consider accommodation requests that she made within the prior two years.  However, all 13 of her alleged requests for reasonable accommodation were made more than 26 months earlier.  “She knew the [employer] was not accommodating her before she was terminated on December 3, 2018, so everything in her failure-to-accommodate claim occurred outside the limitations period.”

The Court refused to consider these alleged failures to be a continuing violation of the Rehabilitation Act.

[E]ven if, as [she] alleges, “the consequences of each additional denial are overlapping and cumulative,” . . . .  no activity persisted up to or past her termination date. At that point, she already knew of her injury. So the alleged failures to accommodate occurred outside the limitations period, and [her] federal failure-to-accommodate claim is time-barred.

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 change or be amended without notice.

Sixth Circuit Rejects Lactation Retaliation and Hostile Work Environment Claims

 Last week, the Sixth Circuit affirmed a school employer’s summary judgment on a retaliation and harassment claim brought by a non-renewed special education teacher who had alleged that she was terminated in retaliation for taking lactation breaks.  Childers v. Casey County School District Board of Education, No. 23-5317 (6^th Cir. Aug. 1, 2024).   Although she brought the claims under Title IX and Kentucky state law, the Court applied Title VII burdens of proof to find that the employer’s explanation -- her failure to timely submit forms to fund a student’s education -- was not pretextual in light of the sporadic and stale allegations in her complaint. 

According to the Court’s opinion, the plaintiff was a contract special education teacher.  A new student was added during her maternity leave, but she failed to complete his enrollment verification form after she returned even though she was aware that his forms had not been properly completed or submitted for federal funding.  She and the Principal had agreed that she could use her locked classroom for lactation breaks and put a cover on the door.   When she returned from leave, the Special Education Director objected to the amount of paid time she intended to spend each day without seeing students: 60 minutes for planning, 60 minutes for lactation and 20 minutes for lunch.  She did not adjust her schedule.   Over the next six months, someone inadvertently entered her room during her lactation breaks on three separate occasions.  The Principal also asked her one time to remove the cover from her door for a safety audit, but she refused to do so.   For her performance evaluation, she was free to add examples of her students’ work, but she failed to do so.  She was evaluated as “developing” in part because the school lost funding for the new student for whom she had failed to timely submit a required form.  She appealed the evaluation, but it was affirmed and her contract was not renewed.

The Court found that the teacher failed to show that her poor performance evaluation was pretext for discrimination or retaliation.  While she agreed that the new student’s form was ultimately her responsibility and she had sufficient time to complete it, she attempted to shift the blame to others.   She also failed to show that the Special Education Director or his outburst six months earlier about her work schedule played any role the decision to not renew her contract.    Finally, she could not show pretext when she herself chose what was placed in her folder, not the Principal.

The Court also found insufficient evidence of a hostile work environment based on five sporadic incidents over a six month period.

While we are sympathetic to [the plaintiff’s] privacy concerns, these episodes are insufficient to raise an actionable hostile work environment claim. [She] acknowledged that she did not think that the janitors entered her classroom purposefully, which diminishes the severity of the intrusions. . . . The infrequency of the privacy violations, including the alleged removal of her window cover, demonstrates that [her] allegations are the types of “isolated incidents” that are legally insufficient to state a hostile work environment claim. . . . And [the Director’s] challenges to and frustrations with her draft schedule were not frequent, severe, physically threatening, or humiliating; at most, they constituted “mere offensive utterance[s].”

 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 change or be amended without notice. 

School District Violated Procedural Requirements of Three Evaluations of Actual Teaching When It Relied on Student Interviews Conducted During Teacher's Medical Leave.

 At the end of last month, the Ohio Supreme Court strictly construed the teacher observation statute to find that the defendant school board did not comply with the statute before voting to not renew the plaintiff teacher’s employment.   Jones v. Kent City School Dist. Bd. of Edn., No. 2024-Ohio-2844.   “When considering nonrenewal of a teacher’s limited teaching contract under R.C. 3319.11(E), school board must conduct three observations of the teacher being actually engaged in teaching to comply with the teacher-evaluation procedures set forth in R.C. 3319.111(E) . . .” The trial court was found to have abused its discretion in affirming the district's decision when the third evaluation (during the teacher's medical leave) constituted only interviews with students instead of observation of actual teaching. 

According to the Court’s opinion, the plaintiff had been hired in 2019 on a one-year basis after having taught for 20 years in that district.  In October, he was given an unpaid 3-day suspension for leaving five minutes early on six days (i.e., when the students were dismissed).   On January 6, 2020 he left his class unsupervised when he did not appear for work after apparently mistakenly scheduling a substitute for the following Monday while he was ill on January 5.  He was then notified that he would be subjected to formal observation prior to his contract being up for non-renewal.   He received one formal observation under the statute before COVID.  He had a second formal observation during remote learning after the COVIC pandemic started.  His third observation was scheduled for May 11, but he called off that day, was hospitalized and not released by his physician to return to work until June 1 -- after the deadline for the school to complete the third formal observation under the statute.   The observer, instead, interviewed his students on May 15.  The school district proceeded to vote to not renew his contract on May 19, even before receiving the report of the evaluations.  He was notified on May 20. “On May 28, the evaluator submitted a final-summative-rating report regarding Jones’s effectiveness as a teacher. The evaluator rated Jones at the overall highest level: “Accomplished.”

The teacher appealed to the common pleas court, which affirmed the board’s decision.  The Court of Appeals reversed on the grounds that the teacher had not received formal evaluation on three times as required by the statute.  The Supreme Court affirmed.   “Under R.C. 3319.111(E), school boards “shall require at least three formal observations” of any teacher employed under a limited contract if the school board is considering nonrenewal of that contract.” The interview with his students when he was on medical leave did not constitute the formal observation of his teaching as required under the statute.  The department of education and union could not modify the statutory requirement by regulation or agreement. 

We are mindful that because [the teacher] was medically excused from work by his doctor from May 11 through June 1, it was not possible for the board to observe him and make a decision about his reemployment before the June 1 deadline set forth in R.C. 3319.11(E). We also recognize the unique challenges and uncertainties that schools faced in spring 2020 as a result of the transition from in person to remote learning occasioned by the COVID-19 pandemic. But we are bound to apply the unambiguous language of R.C. 3319.111(E). Therefore, in accord with our history of ordering reinstatement to enforce compliance with R.C. 3319.11(G)(7), we order the board to reinstate [him].

 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 change or be 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.