The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MIRANDA GUY,
Case No. 1:18-cv-893
Plaintiff,
Bowman, M.J.
v.
BOARD OF EDUCATION ROCK HILL
LOCAL SCHOOL DISTRICT, et al.
Defendants.
MEMORANDUM OF OPINION AND DECISION1
This civil action is now before the Court on Defendants Rock Hill Local School
District Board of Education (“Rock Hill” or “Board”), David Hopper, Thomas Robinson,
Mark Harper, Keith Harper, Dennis Hankins, Paul David Knipp, and Keith Roth (“Rock Hill
Individual Defendants”) motion for summary judgment, proposed undisputed facts and
supporting evidence (Doc. 81) and the parties’ responsive memoranda. (Docs. 106, 107,
113, 121). Also before the Court is Defendants’ motion to strike Plaintiff’s Affidavit filed
in support of Plaintiff’s memorandum contra to Defendants’ motion for summary
judgment. (Doc. 120). The parties have consented to disposition of this matter by the
Magistrate Judge.
I. Background and Undisputed Facts
For over 12 years, Plaintiff was employed as the Superintendent Secretary by
Rock Hill Local School District Board of Education. (Doc. 13).
1 Doc. 153 was a draft of this memorandum of opinion and decision that was prematurely filed and removed
twenty‐two minutes later, as soon as the error was discovered. The Court apologizes for any confusion.
On September 18, 2017, Superintendent Wes Hairston (“Hairston”) told Plaintiff
that there had been allegations made against her that she had an inappropriate
relationship with students. (Doc # 70-1, PAGEID # 430). The accusations against Plaintiff
were made with respect to two students. (Doc # 73-1, PAGEID # 728). Plaintiff told
Hairston that she had texted with these boys on social media and Snapchat. Id.
The next day, Hairston spoke with the mother of one of the boys identified by
Plaintiff. (Id. at PAGEID # 729). Hairston testified that the boy’s mother told him that she
and her son were uncomfortable with Guy’s communications. Id. The mother told Hairston
that the communications between Guy and her son appeared sexual in nature. Id.
On September 19, 2017, after consulting with counsel, Hairston informed Plaintiff
that she was being placed on administrative leave. (Id. at PAGEID #730). During her
administrative leave, Guy was prohibited from being on school grounds and attending any
school function. (Doc # 70-2 PAGEID # 503).
In September 2017, Guy hired Attorney Mark McCown to represent her in her
divorce proceedings and to deal with the issues at Rock Hill. (Doc # 70-1, PAGEID #
435).
Beginning on December 8, 2017, Hairston tried to set up a pre-disciplinary
conference for Guy to occur on December 19, 2017. (Doc # 73-1, PAGEID# 731).
Hairston testified that he called the Lawrence County Education Service Center and had
a conference scheduled for December 19, 2017 at 1:00 pm. However, Plaintiff and her
attorney rejected the conference. (Id. at PAGEID# 731).
Thereafter, Plaintiff testified that she was given a deadline of December 19, 2017
at 4:00 pm to resign or she would be terminated. (Doc. 70 at p. 44). Plaintiff testified that
she “told them to let them go ahead and fire me because I wasn’t going to resign.” ( Id.).
The deadline was then extended to December 20, 2017 at 10:00 am. (Id.).
Plaintiff testified that she went to attorney McCown’s office on the morning of
December 20, 2017 to discuss the terms of her resignation. (Doc. 70 at p. 44-45). She
testified that she and her attorney discussed a list of things that she wanted included in
her resignation, such as her vacation time, sick time and being allowed on school
property. (Id.).
Attorney McCown then called the Board’s attorney, Sue Yount, to discuss Plaintiff’s
resignation. (Doc. 70 at p. 44). The call was on speakerphone and Plaintiff was able to
overhear the conversation. (Id.).
Plaintiff was asked what Yount said in that speakerphone conversation. (Doc # 70-
1, PAGEID # 436). Plaintiff testified that Yount “gave me an extension of time and said
that was fine.” (Id.). Plaintiff also testified that Yount also stated: “just to fax it over to her.”
(Id.). Plaintiff testified that her counsel asked for the extension. (Id.).
Plaintiff’s attorney the submitted her resignation letter on December 20, 2017.
Hairston testified that he never offered Guy or her attorney a bargain of the nature that if
she resigned, she would be allowed to come back on school property. (Doc. 73,
PAGEIDE# 734.). Guy agreed that no one at Rock Hill told her that if she resigned, she
would be able to come on school property. (Doc # 70-1, PAGEID # 436).
At its December meeting, the Board voted to accept Guy’s resignation and to ban
her from school property. (Id. at PAGEID # 449-450; Doc # 74-1, PAGEID # 779). Dennis
Hankins, Paul Knipp, Mark Harper, and Keith Roth were the four Board members who
participated in that meeting. (Doc # 70-1, PAGEID # 449-450).
On January 9, 2018, Luke Simpson, the Rock Hill Assistant Treasurer, contacted
Michelle Barnes, the contact person at Marsh & McLennan Agency (“Marsh”), an
insurance broker that administers the plan for Lawrence County Schools. (Doc # 75-1,
PAGEID # 785-786; Doc # 72-1, PAGEID # 677). Simpson notified Barnes of Guy’s
resignation and asked her to terminate her insurance policies. (Doc # 75-1, PAGEID #
789; Doc # 75-2, PAGEID # 816).
Guy testified that she received the COBRA notice in the mail, but she did not elect
coverage because she was working for the U.S. Postal. Service. (Doc # 70-1, PAGEID #
446, 450; Doc # 71- 1, PAGEID # 545-546).
The Board and the individual Rock Hill Defendants now move for summary
judgment asserting that they are entitled to judgment as a matter of law with respect to
Plaintiff’s remaining claims asserted against them.2 For the reasons that follow, the
undersigned finds that Defendants’ motion is well-taken.
II. Analysis
A. Standard of Review
2 Plaintiff’s original complaint asserted the following causes of action against Defendants: 1. Violation of 1983 claim,
Fundamental Parental Rights 2. Procedural and Substantive Due process 3. Constructive Discharge from Employment
4. Wrongful Discharge 5. Breach of Contract 6. COBRA Violation 7. Defamation 8. Intentional Infliction of Emotional
Distress 9. Violation of §1983, First Amendment – Freedom of Association 10. Violation of §1983, First Amendment
– Freedom of Association Unconstitutional Law, Custom or Policy 11. Violation of Violation of §1983, First
Amendment – Freedom of Speech 12. Violation of §1983, First Amendment – Freedom of Speech Unconstitutional
Law, Custom or Policy 13. Bad Faith Breach of Contract 14. Fraudulent Inducement 15. Declaratory Judgment 16.
Mandamus (Doc. 13). Defendant moved to dismiss Plaintiff’s claims. The Court granted Defendants motion in part.
Namely, Plaintiff’s federal claims (claims 1, 2, 6, 9, 10, 11, 12) brought against the individual Defendants were
dismissed. Plaintiff’s federal claims (claims 1, 2, 9, 10, 11, 12) brought against the Board were dismissed, except the
portion of Claim 2 of Plaintiff’s procedural due process claim related to her property rights (i.e. her employment
contract) against the Board. Plaintiff’s state law for constructive discharge, wrongful discharge, and bad faith (claims
3, 4 and 13) were dismissed as to all Defendants. Plaintiff’s state law claims for breach of contract, fraudulent
inducement, declaratory judgment and a mandamus (claims 5, 14, 15, and 16) were dismissed as to the individual
defendants.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” A dispute is “genuine” when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202
(1986). A court must view the evidence and draw all reasonable inferences in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden of showing an
absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477
U.S. 317, 325, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met
its burden of production, the nonmoving party cannot rest on the pleadings, but must
present significant probative evidence in support of his case to defeat the motion for
summary judgment. Anderson, 477 U.S. at 248-49. The mere scintilla of evidence to
support the nonmoving party's position will be insufficient; the evidence must be sufficient
for a jury to reasonably find in favor of the nonmoving party. Id. at 252.
B. Defendants are entitled to judgment as a matter of law with respect to
Plaintiff’s remaining Federal Claims
1. Procedural Due Process
Plaintiff claims that she was denied procedural due process for her property rights
(i.e. her employment contract) when the Board interfered with her employment by forcing
her to resign without just cause and without rational basis. Defendants moved to dismiss
this claim. The Court denied the Board’s motion to dismiss this claim against it, reasoning:
“At this time, without the benefit of discovery surrounding Plaintiff’s alleged involuntary
resignation, Plaintiff’s complaint has stated a claim against the Board that her protected
property rights related to her employment contract were violated.” (Doc # 55, PAGEID #
338). Defendants now move for summary judgment on this claim asserting that Guy did
not ask the Board for the opportunity to be heard and the Board did not deprive Guy of
her employment. The undersigned agrees.
To succeed on a § 1983 claim, a plaintiff must show that the defendant, while
acting under the color of state law, deprived her of a right secured by the federal
constitution or by federal law. Markva v. Haveman, 317 F.3d 547, 552 (6th Cir.2003).
“Procedural due process prohibits arbitrary and unfair deprivations of protected life,
liberty, or property interests without procedural safeguards.” Howard v. Grinage, 82 F.3d
1343, 1350 (6th Cir. 1996). “The touchstone of procedural due process is the fundamental
requirement that an individual be given the opportunity to be heard ‘in a meaningful
manner.” Id.
Here, Plaintiff argues that the Board “tricked her into resigning” and
“misrepresented its willingness to lift the ban against her presence on school grounds at
school activities.” (Doc # 107, PAGEID # 1446-1448). In support of this contention,
Plaintiff asserts that in response to her proposed termination, she responded to the Board
stating that she would resign if the ban prohibiting her from attending her schools event
ended. According to Plaintiff, Defendants, acting through counsel, assured Plaintiff that
they would end the ban. As such, on December 20, 2017, Plaintiff asserts that she agreed
to sign the prepared letter of resignation which the Board adopted. However, the Board
also immediately adopted another resolution banning Plaintiff from school property and
school functions. As such, Plaintiff claims she was tricked into resigning and that her
resignation was involuntarily procured by the Board in violation of procedural due process.
The record contains the following relevant evidence:
On September 19, 2017, after consulting with counsel, Hairston handed Guy a
letter on placing her on administrative leave. (Doc. 73 at PAGEID #730). Plaintiff agreed
that Hairston placed her on administrative leave on September 19, 2017. (Doc. 70-1,
PAGEID # 426). Guy testified that Hairston told her that Board counsel Yount had
instructed him and the Board to put her on administrative leave. (Id.). Guy testified that
she was paid during that leave (Id. at PAGEID # 443) and that she was forbidden from
being on school grounds and attending any school function. (Doc # 70-2, PAGEID # 503).
Around September 2017, Plaintiff hired attorney Mark McCowan to represent her
to deal with her issues with Rock Hill. (Doc. 70, PageID # 435). Beginning on December
8, 2017, Hairston tried to set up a pre-disciplinary conference for Guy to occur on
December 19th. (Doc # 73-1, PAGEID# 731). Hairston testified that he called the
Lawrence County Education Service Center and had a conference scheduled for
December 19th, 2017 at 1:00. However, Plaintiff and her attorney rejected the conference.
Id. at PAGEID# 731).
Thereafter, Plaintiff testified that she was given a deadline to resign by or she
would be terminated. (Doc. 70 at p. 44). Plaintiff testified that she “told them to let them
go ahead and fire me because I wasn’t going to resign.” (Id.). The deadline was then
extended to December 20, 2017 at 10:00 am. (Id.).
Plaintiff testified that she went to her attorney’s office on the morning of December
20, 201 to discuss the terms of her resignation. (Doc. 70 at p. 44-45). She testified that
she and her attorney discussed a list of things that she wanted included in her resignation,
such as her vacation time, sick time and being able to be allowed on school property. Id.
Attorney McCown then called the Boards attorney Yount to discuss Plaintiff’s
resignation. (Doc. 70 at p. 44). The call was on speakerphone and Plaintiff was able to
overhear the conversation. Id.
Plaintiff was asked what Yount said in that speakerphone conversation. (Doc # 70-
1, PAGEID # 436). Plaintiff testified that Yount “gave me an extension of time and said
that was fine.” (Id.). Plaintiff also testified that Yount also stated: “just to fax it over to her.”
(Id.). Plaintiff testified that her counsel asked for the extension. (Id.). Notably the
deposition testimony states as follows:
Q. Do you recall anything that Sue [Yount] said in the conversation other
than giving you an extension -- giving your attorney an extension?”
A. No.
Q. Okay. Were there any other conversations that you overheard between
Ms. Yount and your counsel?
A. No.
Q. Okay. Who told you that – its throughout your lawsuit. Who told you that
if you resigned you would be able to come on school property?
A. My Attorney.
Q. Anyone at Rock Hill ever tell you that?
A. No
Id.
Plaintiff’s attorney submitted her resignation letter on December 20, 2017. Plaintiff
testified that her attorney wrote the letter and she signed it. (Doc. 70, PAGEID# 507.)
Plaintiff’s resignation letter states, in toto:
“I resign my position with the Rock Hill Local School District effective this date.”
(Doc. 70 Ex. 3).
Hairston testified that he received a copy of Plaintiff’s resignation letter on
December 20, 2017. (Doc. 73 PAGEID 731). That same day, the Board voted to accept
Guy’s resignation and to ban her from school property. (Id. at PAGEID # 449-450; Doc #
74-1, PAGEID # 779). Hairston testified that he never offered Guy or her attorney a
bargain of the nature that if she resigned, she would be allowed to come back on school
property. (Doc. 73, PAGEID #734).
Based on the foregoing, the undersigned finds that Plaintiff has failed to establish
that the Board “tricked’ her into resigning and that she was denied procedural due process
by the Board. As noted by Defendants, Plaintiff was represented by counsel from the
time she was placed on administrative leave to the time of her resignation 3 months later.
(Doc. 113,. #12, 23, 28). Guy was offered the option of a pre-disciplinary hearing 13 days
before the Board’s next meeting; however, she rejected this procedural safeguard in favor
of resignation. (Doc. 113, # 13). There is no evidence in the record that the Board agreed
to the condition that Plaintiff’s resignation was contingent on lifting Plaintiff’s ban on
school property.3 As noted above, Plaintiff testified that she received no communication
3 Plaintiff filed an affidavit in support of her opposition to Defendants’ motion for summary judgment. (Doc
#106-2, PAGEID # 1423-24). For the first time and in contradiction with her deposition testimony,
Plaintiff’s affidavit states, inter alia:
“The next day, my attorney was advised the deadline was extended to 10 a.m. My attorney
and I prepared a list of conditions under which I would agree to resign my continuing contract
with the School District. The most important one of those conditions was that the ban against
from Rock Hill that indicated if she resigned the ban from school properly would be lifted.
(Doc. 70 at p. 435-436).
Nonetheless, in response to Defendants’ motion for summary judgment, Plaintiff
argues that her resignation was involuntarily procured. A public employee with a property
interest in continued employment, such as Plaintiff is deprived of that interest by her
employer if the employer constructively discharges her by forcing him to resign
involuntarily. Rhoads v. Board of Ed. of Mad River Local School Dist., 103 F. App'x 888,
894 (6th Cir. 2004) (citing Parker v. Bd. of Regents, 981 F.2d 1159, 1162 (10th Cir.1992);
accord Leheny v. City of Pittsburgh, 183 F.3d 220, 227–28 (3d Cir.1999); Hargray v. City
of Hallandale, 57 F.3d 1560, 1567–69 (11th Cir.1995); Angarita v. St. Louis County, 981
me attending my son’s school events or entering the school premises would be lifted. My
attorney and I presented these conditions, including the ban to the Board’s attorney
during our speaker phone conversation. She [Yount] agreed and led us to believe she
would present this development to the Board at its meeting on December 20, 2017.”
(Doc # 106-2, PAGEID # 1424).
Defendants seek to strike Paragraphs 3, 4, and 8 of Plaintiff’s affidavit, asserting that it attempts
to introduce hearsay statements from her attorney and also attempts to create a sham fact issue
as it contradicts her deposition testimony. Defendants argue Plaintiff cannot cure the statement’s
inadmissibility by introducing an affidavit from McCown because Plaintiff’s counsel confirmed in
writing on June 22, 2020 that she will not be calling McCown as a witness. (Doc #119, PAGEID
#1540-1541). Counsel for Defendants contend that they relied upon that representation from
Plaintiff’s counsel and cancelled McCown’s deposition which had been scheduled for June 30,
2020. (Id.). Since McCown cannot testify about these matters, only Plaintiff can testify about what
she said to Ms. Yount or heard Ms. Yount say. Plaintiff has testified on these matters and her prior
deposition testimony directly conflicts with her affidavit testimony.
It is well established that “a party cannot avoid summary judgment through the introduction of self-
serving affidavits that contradict prior sworn testimony.” See United States ex rel. Compton v.
Midwest Specialties, 142 F.3d 296, 303 (6th Cir. 1998) (citations omitted)). In the alternative, even
if considered, the statements contained in Paragraph 4 of Plaintiff’s affidavit fail to establish a
triable issue of fact with regard to Plaintiff’s procedural due process claim. Plaintiff asserts that
Yount led them to believe she would present the conditions to the board. There is no evidence
that such conditions were, in fact, presented to the board, nor does this statement establish that
Yount stated that the board would agree to plaintiff’s conditions. As detailed below, the facts
establish that upon advice of counsel, Plaintiff voluntarily resigned.
F.2d 1537, 1544 (8th Cir.1992); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173
(4th Cir.1988)).
If Plaintiff resigned of her own free will, however, “even as a result of the
defendant's actions,” then this Court must find that Plaintiff voluntarily relinquished her
property interest in continued employment-meaning she was not constructively
discharged-“and the defendant cannot be found to have deprived [her] of that interest
without due process of law.” Rhoads, 103 F. Appx at 894.
Generally, employee resignations are presumed to be voluntary. Id. at 895 (citing
Leheny, 183 F.3d at 227). An employee may rebut this presumption by producing
evidence indicating that the resignation was involuntarily procured. Id. There are two
circumstances in which an employee's resignation will be deemed involuntary for due
process purposes: “(1) when the employer forces the resignation or retirement by
coercion or duress, or (2) when the employer obtains the resignation or retirement by
deceiving or misrepresenting a material fact to the employee.” Leheny, 183 F.3d at 228
(citing Hargray, 57 F.3d at 1568).
When assessing whether a resignation was obtained by coercion or duress, the
inquiry is whether an objectively reasonable person would, under the totality of the
circumstances, feel compelled to resign if he were in the employee's position. Rhoads,
103 F. App'x at 895 (citing Yearous, 128 F.3d at 1356). Relevant to this inquiry are several
non-dispositive factors, including: (1) whether the employee was given an alternative to
resignation, (2) whether the employee understood the nature of the choice [she] was
given, (3) whether the employee was given a reasonable time in which to choose, and (4)
whether the employee could select the effective date of resignation.” Id. (citing Lenz v.
Dewey, 64 F.3d 547, 552 (10th Cir.1995)). Whether the employee had the advice of
counsel is also a factor considered by other Circuits when assessing whether an
employee resigned voluntarily. See Hargray, 57 F.3d at 1568 (citing Stone, 855 F.2d at
174, 177. See also Angarita, 981 F.2d at 1544; Parker, 981 F.2d at 1162; Schultz, 810
F.2d at 1136; Scharf, 710 F.2d at 1574).
The mere fact that an employee is forced to choose between resignation and
termination does not alone establish that a subsequent choice to resign is
involuntary, provided that the employer had good cause to believe there were
grounds for termination. On the other hand, an employee resigns involuntarily if,
after being given a choice between resignation and termination, she is not granted
sufficient time and opportunity to deliberate about the choice.
Brown, 638 F.Supp.2d 856, 863–66 (S.D.Ohio 2009) (citing Rhoads, 103 Fed.Appx. at
895 (internal citations omitted). See also Harris v. Butler County, Ohio, No. 1:07CV069,
2008 WL 4186316, *7, 2008 U.S. Dist. LEXIS 86385, at *19 (S.D.Ohio Sept.3, 2008)
(relying upon same voluntary resignation tests)).
Here, under the totality of circumstances and considering the factors outlined in
Rhoads and other relevant case law, the undersigned finds that Plaintiff’s resignation was
not involuntarily procured. As detailed above, Plaintiff was represented by counsel after
she was placed on administrative leave in September 2017, until the time of her
resignation in December 2017. Plaintiff was offered the option of a predisciplinary hearing
13 days before the Board’s next meeting; however, she rejected this procedural
safeguard in favor of resignation. The undersigned recognizes that the alternative to
resignation was termination. However, Plaintiff and her attorney were granted extra time
to submit her resignation and had at least 24 hours in which to negotiate the terms of
resignation. Moreover, as noted above, Plaintiff testified that she received no
communication from Rock Hill that indicated if she resigned the ban from school properly
would be lifted. (Doc. 70 at p. 435-436).
Such facts are not in line with cases in which Plaintiffs have overcome the
presumption that a resignation was voluntary, such as case where a plaintiff was subject
to time pressure, isolation, or denial of requests to speak with counsel or representatives.
See, Parrish v. City of Wilmington, 3 F.Supp.3d 688 (S.D. Ohio 2014) (finding constructive
discharge where employer did not advise employee of his rights; cornered him with the
possibility of losing unemployment benefits; told him they needed an answer for that
evening's meeting; and plaintiff did not sign the resignation letter or choose the date of
resignation); see also Paroczay v. Hodges, 297 F.2d 439 (D.C.Cir.1961) (finding
resignation involuntary where the employee was told he had to sign a resignation letter
before he left the supervisor's room, or charges would be filed immediately, despite his
repeated requests to have more time and to consult an attorney); Angarita v. St. Louis
County, 981 F.2d 1537 (8th Cir.1992) (finding resignation involuntary where employees
were: not permitted to leave the interrogation room without first signing a resignation form;
not presented with a specific complaint of their actions; denied requests to speak with
their supervisors or have them present; threatened with disclosure of the allegations to
their family; threatened with publicity in the media; and were not told the source of the
allegations, among other things).
Here, the undersigned finds that Plaintiff has failed to present sufficient evidence
the she was denied sufficient process. As noted by Defendants, neither Plaintiff nor her
counsel ever requested a hearing on her employment. (Doc. 113, # 21). Plaintiff rejected
a pre-disciplinary conference. (Id. at # 13). Plaintiff’s resignation letter does not contain a
contingency clause outlining that her resignation is subject to the ban on school property
being lifted. Notably, had Plaintiff not resigned, the Board could only terminate Guy’s
continuing contract by a majority vote for one or more of the following reasons: “violation
of written rules and regulations as set forth by the board of education or for incompetency,
inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous
treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance,
or nonfeasance.” R.C. 3319.081 (C). This process did not occur because Plaintiff chose
to resign.
As noted by Defendants, the above statute requires the Board to serve Guy by
certified mail with a copy of their action of terminating her employment. Upon receipt of
this document, Plaintiff would have the right to file a written appeal in common pleas court
within ten days of the Board action of terminating her employment. Id. Guy did not file an
appeal because the Board never terminated her.
Plaintiff argues that the Board consistently claimed to know little or nothing about
the allegations made by the students and moved to terminate her before reviewing the
evidence in violation of her due process rights.4 This assertion is misplaced. Plaintiff
had the statutory right to only be fired for a reason listed in the statute, and, if that
occurred, the right to appeal her termination. Plaintiff did not avail herself of the procedural
safeguards which she enjoyed as a tenured nonteaching employee, because she
decided, upon consultation with her counsel, to resign her employment. As such, Plaintiff
has failed to show that her contract was terminated without any procedural safeguards.
4 Plaintiff also devotes considerable attention to the alleged actions of Defendant Jason Guy despite the fact that
Plaintiff’s claims against him are not the subject of the Rock Hill Defendants’ motion for summary judgment. (Doc #
107, PAGEID # 1434‐1438).
In light of the foregoing, the undersigned finds that the Board is entitled to judgment as a
matter of law with respect to Plaintiff’s procedural due process claim.
2. COBRA – Claim 6
The Board also seeks summary judgment on Plaintiff’s COBRA claim. As detailed
above, Plaintiff contends that Defendants failed to provide notices of continuation
coverage to which she was entitled by law and have failed to provide vision and dental
insurance to Plaintiff. Plaintiff’s initial complaint asserted this claim against all defendants.
Defendants moved to dismiss this claim and the Court dismissed this claim as to the
individual defendants. Thus, Plaintiff’s COBRA claim against the Board survived.
Defendants now move for summary judgment on this claim against the Board.
Pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), the
employer of an employee under a plan must notify the administrator of a qualifying event,
such as termination, within 30 days of the event. 29 USC 1166(a)(2). It is then the
obligation of the plan administrator to provide notice of continuation rights to the
employee.” Bruno v. United Steelworkers of America, 784 F.Supp. 1286, 1318 (N.D.,
Ohio, 1992), affirmed, Bruno v. United Steelworkers of America, 983 F.2d 1065 (6th Cir.
1993). An argument that an employer shares this obligation with the plan administrator is
“contrary to the express language of the statute, 29 USC 1166(a)(2), (4)(A).” Id. at 1319.
The statutory requirement under COBRA to notify qualified beneficiaries of their right to
continue health insurance coverage is imposed by the Plan Administrator. McDowell v.
Krawchison, 125 F.3d 954, 957 (6th Cir. 1997); 28 U.S.C § 1162.
The record evidence establishes that Robinson serves as the Treasurer for the
Rock Hill Local School District. (Doc # 72- 1, PAGEID # 674). Rock Hill’s health insurance
is through a consortium called Lawrence County Schools. (Doc # 75-1, PAGEID # 785).
Rock Hill is not the Plan Service Provider or Plan Administrator. (Doc # 75-2, PAGEID #
822). The Plan Administrator is Lawrence County Schools. (Id.) Marsh & McLennan
Agency (“Marsh”), an insurance broker, administers the plan for Lawrence County
Schools. (Doc # 75-1, PAGEID # 785-786; Doc # 72-1, PAGEID # 677). Michelle Barnes
(“Barnes”) is Rock Hill’s contact person at Marsh. (Doc # 75-1, PAGEID # 786; Doc # 72-
1, PAGEID # 677).
On January 9, 2018, Luke Simpson, the Rock Hill Assistant Treasurer, contacted
Barnes, notifying her of Guy’s resignation and asked her to terminate her insurance
policies. (Doc # 75-1, PAGEID # 789; Doc # 75-2, PAGEID # 816).
With respect to the Board, Plaintiff claims that “a triable issue of fact remains as to
whether Defendants provided notice to the Plan Administrator of Ms. Guys termination
within the mandated thirty-day time period.” (Doc # 107, PAGEID # 1444). Namely,
Plaintiff contends that there are two versions of an email that Assistant Treasurer Luke
Simpson sent to Michelle Barnes. (Id. at PAGEID # 1445).
Specifically, Plaintiff alleges:
“Defendants have referenced through their Proposed Undisputed Fact #46
an email that Luke Simpson purportedly sent to ‘Michelle.” There are two
different versions of what appears in that email. On one, the date has been
obscured and is indecipherable-although the rest of the email is clearly
legible; on the version, the margins are aligned to the left. On the second
version, the date is visible, but the sender’s name, the date, and the
recipient’s name are all indented, not aligned as they were in the
indecipherable version. Also, the second version contains a check mark
next to the date. Crucially, neither of the two emails contains the year. Thus,
the question of verification of the transmission date is not resolved. The date
is the foundation of the Defendant Board’s contention that it has met its
COBRA obligation. Defendant Board failed to offer an affidavit from anyone
named Luke Simpson.
(Doc. 75, internal citations omitted)
Defendants, however, assert that there is no fact issue or authentication issue
surrounding the January 9, 2018 transmission from Rock Hill. In this regard, Defendants
contend that prior to responding to the instant motion for summary judgment, Plaintiff’s
counsel received a copy of the January 9th email, which was marked as Robinson Depo.
Exhibit 12, on no fewer than 3 occasions. The first occasion was at Mr. Robinson’s
deposition on November 15, 2019. (Doc # 72-1, PAGEID #677). Plaintiff’s counsel
questioned Robinson about this document at his first deposition. (Id.).
The second occasion was on July 15, 2020 when counsel for Defendants sent
Robinson Depo. Exhibit 12 and “Pl Personnel File Excerpts.pdf” to Plaintiff’s counsel,
informing her that these documents might be used as exhibits at Mr. Robinson’s second
deposition. (Doc # 119, PAGEID #1541). The date of the transmission was legible on
Plaintiff’s Exhibit 12 and the January 9, 2018 email attached as the first page of “Pl
Personnel File Excerpts.pdf.” (Id.). Both “versions” of the January 9th transmission were
sent to Plaintiff’s counsel. (Id.).
The third occasion was at Mr. Robinson’s second deposition on July 16, 2020
when Plaintiff’s counsel had every opportunity to question him about this document, its
transmission, and any other alleged issues with it. The alleged second “version” of the
transmission was marked by Plaintiff’s counsel as Exhibit B along with other personnel
file documents produced in response to Plaintiff’s subpoena duces tecum. (Doc # 72-1,
PAGEID # 789; Doc #72-2, PAGEID # 816, 826). At his second deposition, Robinson was
also asked to describe Exhibit 12. Robinson identified January 9, 2018 as the date of the
email, stated the sender and receiver of the email, and read the contents of the email.
(Doc # 72-2, PAGEID # 787). Later in his deposition, Robinson again stated that the email
was sent on January 9, 2018. (Id. at PAGEID # 790). Robinson also testified that he was
aware that his assistant Luke Simpson had sent the email. (Id. at PAGEID # 789).
Robinson also authenticated Exhibit 12 as a document kept in the ordinary course of
business. (Id. at PAGEID # 790).
Upon careful review, the undersigned finds that there are no fact issues
surrounding the January 9, 2018 email. The evidence of record clearly establishes that
there is one version of the email, as detailed above, it was properly authenticated and
identified on numerous occasions. The undersigned recognizes that the date may have
been illegible on certain copies of the document that were scanned repeatedly, however,
the testimony clearly establishes the email was sent on January 9, 2018. As such, the
undersigned finds that Rock Hill presented sufficient evidence that it satisfied it obligation
under the statute of notifying the plan administrator within 30 days. (Doc # 81, PAGEID #
894-895). Accordingly, the Board is entitled to summary judgment on this claim.
III. Conclusion
In light of the foregoing, Defendants’ motion for summary judgment (Doc. 81) is
GRANTED with respect to Plaintiff’s claims under Federal Law. Defendants motion to
strike (Doc. 120) is DENIED as moot. Because Plaintiff’s federal claims asserted against
Defendants should be dismissed, the Court no longer has original jurisdiction and
declines to exercise supplemental jurisdiction over any pendant state-law claims asserted
against them. See 28 U.S.C. § 1367(c)(3). Accordingly, Plaintiff’s any state law claims
are DISMISSED without prejudice and this matter is closed.
IT IS SO ORDERED.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge