O'Hara v. Board of Education of Brooklyn City School District

CLAY, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority opinion on all issues except for those relating to Plaintiff’s due process claims. Plaintiff proffered sufficient evidence to create a genuine issue of material fact for trial as to *316 whether she functioned as a “supervisor” or “management level employee” for purposes of affording Plaintiff the procedural protections of Ohio Rev.Code § 3319.16 and Plaintiff proffered sufficient evidence to demonstrate that she had a protected property interest in her two-year non-teaching contract with the Board for purposes of affording Plaintiff constitutional protections. Thus, Plaintiffs claims for denial of due process under the Ohio Code and under the Fourteenth Amendment should not have been dismissed on summary judgment. I therefore respectfully dissent from the majority’s opinion in this regard.

A. Denial of Statutory Due Process Under Ohio Rev.Code § 3319.16

Under Ohio law, an at-will public employee has no entitlement to due process upon termination absent some specific statute to the contrary. Wood v. Dorcas, 126 Ohio App.3d 730 , 711 N.E.2d 291, 296 (Ohio Ct.App.1998). Plaintiff, who was hired under a two-year non-teaching contract, seeks to avoid this principle by invoking Ohio Rev.Code § 3319, which provides that “[a]ny nonlicensed employee whose job duties enable such employee to be considered as either a ‘supervisor’ or a ‘management level employee’ as defined in section 4117.01 of the Revised Code” may not have his written contract “terminated by a board except pursuant to section 3319.16 of the Revised Code.” Ohio Rev. Code Ann. § 3319.02 (A)(1)(b) & (C) (Anderson 2002). Section 3319.16 provides the procedural process that must be afforded to an employee who qualifies under § 3319.02 before that employee may be terminated. Ohio Rev.Code Ann. § 3319.16 (Anderson 2002).

The majority correctly recognizes that § 4417.01(F) defines “supervisor” as

any individual who has authority, in the interest of the public employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees; to responsibly direct them; to adjust their grievances; or to effectively recommend such action, if the exercise of the authority is not of a merely routine or clerical nature, but requires the use of independent judgment____

Ohio Rev.Code Ann. § 4117.01(F) (Anderson 2002). The majority also properly recognizes that § 4117.01(L) defines “management level employee” in relevant part as

an individual who formulates policy on behalf of the public employer, who responsibly directs the implementation of policy, or who may reasonably be required on behalf of the public employer to assist in the preparation for the conduct of collective negotiations, administer collectively negotiated agreements, or have a major role in personnel administration. ...

Ohio Rev.Code Ann. § 4117.01(L) (Anderson 2002). However, the majority fails to view the evidence proffered by Plaintiff in support of her claim that she functioned as a “supervisor” or “management level employee” as defined under these provisions in the light most favorable to her for purposes of surviving summary judgment.

For example, § 4117.01(F) lists a number of ways in which an employee may be considered a supervisor, and among those is the situation where the employee has the authority to discipline or responsibly direct another public employee. In this regard, Plaintiff brought forth evidence by way of Ferian’s deposition testimony wherein Ferian stated that both he and Plaintiff disciplined an employee, Pat Smith, on several occasions and, after one *317 such disciplinary meeting, Plaintiff drew up a letter to Smith recapping the meeting and the points made therein. Ferian stated that he did not know whether Plaintiff placed the letter in Smith’s personnel file. Ferian did state, however, that these counseling meetings with Smith were the result of both his and Plaintiffs observations as to Smith’s unacceptable work performance. Ferian testified that he and Plaintiff approached Smith’s discipline as “a team.” (J.A. at 620.) Ferian further testified that on occasion Plaintiff would go into the main office to assist Smith in her work performance, and “that’s usually the assistant treasurer’s role to do that.” (J.A. at 623.) Ferian claimed that he was not “completely aware” of times when Plaintiff alone counseled Smith about her poor performance. (J.A. at 623.)

In arguing that she functioned as a “management level employee” Plaintiff places much emphasis on her assisting the District out of fiscal emergency by way of eliminating, modifying, and creating new policies and procedures for the Treasurer’s Office in order to achieve that end. (J.A. at 581, Plaintiffs Affidavit.) Plaintiff averred that in making the books auditable, she was required, among other things, to “correet[] the coding of expenditures, correct[ ] the coding of receipts, work[ ] on bank reconciliations, and get [] grants cleaned up with the [Ohio] Department of Ed[ucation]’s help____” Plaintiff claims that here efforts in this regard constituted implementation of the Board’s policy to removing the District from fiscal emergency. (J.A. at 581.) Although the district court was not persuaded by Plaintiffs claims, finding these tasks to be merely routine or clerical in nature, the a jury should be allowed to make that determination after hearing the evidence. Indeed, no one disputes that Plaintiff was hired to assist the District out of its fiscal emergency, and nothing has been offered to indicate that the accounting clerks performed these tasks.

The evidence also indicates that a question of fact remains as to whether Plaintiff functioned as a “management level employee” by way of her participation in collective bargaining negotiations, if needed. Under § 4117.01(D), an employee functions as a “management level employee” if that employee “may reasonably be required on behalf of the public employer to assist in the preparation for the conduct of collective negotiations, [or] administer collectively negotiated agreements____” Ohio Rev. Code § 4117.01(L) (emphasis added). Plaintiff offered testimony from Ferian in which Ferian indicated that during the 1994 collective bargaining negotiations, the District’s negotiating team consisted of “[t]he superintendent, the business manager, the assistant superintendent, building principals and the treasurer and assistant treasurer were invited as needed.” (J.A. at 593.) Thus, Plaintiff proffered evidence to demonstrate that she “may [have] reasonably be[en] required on behalf of the public employer to assist in the preparation for the conduct of collective negotiations” for purposes of qualifying as a “management level employee.” See Ohio Rev.Code Ann. § 4117.01(L).

The majority, like the district court, is not persuaded by Plaintiffs argument in this regard, concluding that because Plaintiff was never actually called upon to participate in negotiations, her claim is merely speculative. However, this conclusion not only fails to view the evidence in the light most favorable to Plaintiff, it fails to heed the express word of § 4117.01(L). Under § 4117.01(L), Plaintiff did not have to demonstrate that she actually participated in the negotiations, she only had to demonstrate that she “may [have] reasonably be[en] required” to assist in the prep *318 aration for the negotiations. Ohio Rev. Code Ann. § 4117.01 (L). Plaintiff brought forth such evidence, particularly for purposes of surviving summary judgment, by way of Ferian’s testimony indicating that the assistant treasurer had been called upon to participate in negotiations in the past. Indeed, based upon this testimony, a reasonable juror could conclude that the likelihood existed that Plaintiff may have likewise been called upon to participate in negotiations.

Plaintiff need only show that she functioned as a “supervisor” or a “management level employee,” as those terms are defined under § 4117, in order to avail herself of the protections of § 3319. Thus, where Plaintiff proffered evidence sufficient to create a genuine issue of material fact as whether she functioned both as a “supervisor” or “management level employee,” it is particularly clear that the district court erred in dismissing Plaintiffs claim on summary judgment.

Although not discussed by the majority, Plaintiffs claim should also proceed against Superintendent Garber as well. Garber makes the argument that he was sued solely in his official capacity and therefore cannot be found liable because suing a public official in his official capacity for acts performed within the scope of his authority is equivalent to suing the governmental entity under Kentucky v. Graham, 473 U.S. 159, 166 , 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985). Garber argues in the alternative that even if he had been sued in his individual capacity, he still cannot be found liable under Graham inasmuch as Plaintiff failed to demonstrate that Garber caused Plaintiff to suffer a deprivation of a constitutional right. Said differently, although not expressly by Garber, he enjoys qualified immunity because he did not have the power to terminate Plaintiff. According to Garber, only the Board had the authority to terminate Plaintiffs employment.

Garber’s contention that he was sued by Plaintiff solely in his official capacity flies in the face of Plaintiffs complaint as well as Garber’s own written word. In paragraph four of Plaintiff’s complaint, she expressly states that “Garber is sued in both his official and individual capacities.” (J.A. at 21, Plaintiffs Complaint). And, in Garber’s memorandum in support of his motion for summary judgment, he expressly states that “Plaintiff filed this lawsuit against Garber in both his individual and official capacities____” (J.A. at 464, Garber’s Memorandum in Support of his Motion for Summary Judgment.) Although it is true that the caption to Plaintiffs complaint does not indicate that Garber is being sued in his individual and official capacities, under this Court’s jurisprudence, Garber was clearly on notice that he was being sued in his individual capacity, and thus Garber cannot now claim otherwise. See Moore v. City of Harriman, 272 F.3d 769, 772-75 (6th Cir.2001) (en banc) (affirming that in this circuit, a “course of proceedings” test is used to determine whether § 1983 defendants have received notice of the plaintiffs intent to hold them personally liable) (citing Abdur-Rahman v. Mich. Dep’t of Corrs., 65 F.3d 489, 491 (6th Cir.1995); Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir. 1995)).

To the extent that Garber was sued in his individual capacity, a question of fact remains as to whether he would be immune under Ohio law for providing Plaintiff with a letter of termination. See Ohio Rev.Code Ann. § 2744.03(A)(6) (stating that a government employee is immune from liability unless his acts or omissions “were with malicious purpose, in bad faith, or in a wanton or reckless manner”). In other words, questions of fact remain as to *319 whether Garber acted with a malicious purpose, in bad faith, or in a wanton or reckless manner.

B. Denial of Constitutional Due Process Under the Fourteenth Amendment

When considering a procedural due process claim under the Fourteenth Amendment to the Constitution, a court must first determine whether the interest at stake is within the Fourteenth Amendment’s protection of liberty or property. Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 569-70 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972). “Thus, in a § 1983 due process claim for deprivation of a property [or liberty] interest, a plaintiff must first show a protected property [or liberty] interest. Only after meeting this requirement can the plaintiff prevail by showing that such interest was abridged without appropriate process.” Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir.1997) (internal quotation marks and citation omitted). “A property interest can be created by state statute, a formal contract, or a contract implied from the circumstances.” Ludwig v. Bd. of Trs. of Ferris State Univ., 123 F.3d 404, 409 (6th Cir.1997). “An injury to a person’ reputation, good name, honor, or integrity constitutes the deprivation of a liberty interest when the injury occurs in connection with an employee’s termination.” Id.

For the reasons set forth in the discussion of the previous issue, questions of fact remain as to whether Plaintiff could be considered a “supervisor” or “management level employee” for purposes of satisfying § 3319.02 and § 3319.16; thus, Plaintiff may have also established a claim for denial of her Fourteenth Amendment right to due process, inasmuch as she claims that she was not afforded all the process that she was due under § 3319.16. See Ludwig, 123 F.3d at 409 (“A property interest can be created by state statute, a formal contract, or a contract implied from the circumstances.”).

In addition, Plaintiff may have established a property interest in the “non-teaching” contract that she had with the Board. Under Ohio law, when an employment agreement, either expressly or by implication, is for a duration of time, and the employee is discharged before the expiration of that period “without justifiable cause, a right of action accrues to him against the employer for breach of contract.” Henkel v. Educ. Research Council of Am., 45 Ohio St.2d 249 , 344 N.E.2d 118, 120 (Ohio 1976). Thus, the district court’s finding that the duration of employment clause as set forth in Plaintiffs contract failed to provide Plaintiff with any property rights is erroneous. See id. The Resolution under which Plaintiff was hired, by its label and express terms, clearly was a bargained for agreement between Plaintiff and the Board, where the Board offered to employ Plaintiff as Assistant Treasurer for a period of two years, and Plaintiff agreed to perform as such for an agreed upon amount of money or consideration. Therefore, the district court erred in dismissing Plaintiff’s claim at summary judgment where it appears that Plaintiff has established a property interest by way of her employment contract, thus allowing this claim to go forward. See Ludwig, 123 F.3d at 409 .

As to Superintendent Garber, a proper inquiry should be conducted as to whether Garber would be protected under qualified immunity. A government official performing a discretionary function is entitled to qualified immunity from suit for civil damages unless his actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. *320 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). An analysis into whether qualified immunity attaches requires the application of the Supreme Court’s sequential process set forth in Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). As Saucier makes clear, the “threshold question” in a qualified immunity analysis is whether, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.” Id. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)). “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id.

Although Garber contends that he cannot be found to have deprived Plaintiff of a constitutional right inasmuch as only the Board had the authority to actually terminate Plaintiffs employment, this contention is short-sighted and fails to consider Garber’s vital role in Plaintiffs termination process. It was Garber who drafted the termination letter, posed the ultimatum to Plaintiff, and requested that the Board affirm Plaintiffs termination. Under Saucier, it would appear that Plaintiff has established that Garber’s actions may have violated her due process interests. Id. at 201. However, questions of fact remain as to whether Plaintiff has established those rights; therefore, this issue should be remanded for an inquiry into the second step of the Saucier analysis, particularly when the district court failed to engage in any meaningful analysis under the Saucier standard. See id.

C. Conclusion

For the above-stated reasons, I would reverse and remand the district court’s order dismissing Plaintiffs state and federal procedural due process claims.