Smith v. Perkins Bd. of Educ.

• Decision Date: 27 February 2013
• Docket Number: No. 12–3187.,12–3187.
• Citation: 708 F.3d 821
• Parties: Carol Ann SMITH, Plaintiff–Appellant, v. PERKINS BOARD OF EDUCATION; Dr. James P. Gunner, individually and in his capacity as Superintendent of the Perkins Local School District; Stephen P. Finn, individually and in his capacity as Principal of Briar Middle School, Defendants–Appellees, Steve Schuster, et al., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

708 F.3d 821

Carol Ann SMITH, Plaintiff–Appellant,

v. PERKINS BOARD OF EDUCATION; Dr. James P. Gunner, individually and in his capacity as Superintendent of the Perkins Local School District; Stephen P. Finn, individually and in his capacity as Principal of Briar Middle School, Defendants–Appellees,Steve Schuster, et al., Defendants.

No. 12–3187.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 25, 2013.

Decided and Filed: Feb. 27, 2013.

ARGUED:Edward G. Kramer, Kramer & Associates, LPA, Cleveland, Ohio, for Appellant. Teresa L. Grigsby, Spengler Nathanson P.L.L., Toledo, Ohio, for Appellees. ON BRIEF:Edward G. Kramer, Kramer & Associates, LPA, Cleveland, Ohio, for Appellant. Teresa L. Grigsby, Spengler Nathanson P.L.L., Toledo, Ohio, for Appellees.

Before: CLAY, COOK, and ROTH,^* Circuit Judges.

OPINION

CLAY, Circuit Judge.

Plaintiff Carol Ann Smith appeals the district court's grant of summary judgment in favor of her former employer, the Perkins Board of Education, as well as its superintendent and the principal of the middle school at which she was a teacher. Plaintiff alleges that she was terminated on account of her age in violation of Ohio Rev.Code § 4112.14, that she was denied reasonable accommodations and was the victim of retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., and parallel provisions of state law, and that Defendants committed the common-law tort of intentional infliction of emotional distress. A state administrative hearing determined that Plaintiff had been terminated for “just cause,” and Defendants attempt to use that finding to preclude Plaintiff from further litigating issues related to her termination. For the reasons that follow, we AFFIRM the grant of summary judgment with respect to Plaintiff's age discrimination claim, but REVERSE with respect to the remaining claims and REMAND for further proceedings.

BACKGROUND

Plaintiff became a teacher with the Perkins Local School District in 1976. In 1992, she was diagnosed with Type 2 diabetes, a condition that deteriorated until, by 1999, she required insulin injections. Prior to 2008, Plaintiff received positive performance evaluations and was never subject to disciplinary action. In September 2008, Plaintiff was summoned to a disciplinary conference to address allegations that she had been sleeping during class. Plaintiff claims that she was not sleeping but rather exhibiting symptoms of her diabetes. Nevertheless, she was formally reprimanded by Principal Stephen Finn, who also scheduled a series of performance evaluations.

After she was reprimanded, Plaintiff requested numerous accommodations to help deal with her disability, including: 1) requiring certain staff to become familiar with and trained in recognizing symptoms of diabetes; 2) requesting that staff assist her if she appears asleep by providing food or a drink, or if necessary, contacting emergency services; and 3) providing short breaks so that she might inject herself with insulin in private. In response to Plaintiff's requests, Superintendent Gunner agreed to allow her to keep snacks in her classroom and inject herself with insulin in the school nurse's office if she first called the office and waited for classroom coverage to arrive. Superintendent James Gunner also agreed to allow Plaintiff to disseminate information to students and staff regarding her disability.

After Plaintiff and the school agreed to these accommodations, Plaintiff was suspended on three separate occasions, once for missing two class periods during which Plaintiff contends that she was injecting herself with insulin, once for repeated incidents of sleeping in class, and once for using Playgirl Magazine as an example of yellow journalism during a class discussion. As a result of these incidents, on April 14, 2010, the Perkins Board of Education decided to terminate Plaintiff's teaching contract on the basis of “good and just cause.”

As a public school teacher, Plaintiff was entitled to request an administrative hearing before a neutral referee to determine whether her termination was in fact supported by good and just cause. SeeOhio Rev.Code § 3319.16. Plaintiff requested such a hearing, which was conducted on July 21–22 and August 11–12, 2010. At the time of the termination hearing, Plaintiff was 71 years old. The referee heard testimony from Principal Finn as well as several other administrators and students that Plaintiff had repeatedly fallen asleep during class. Plaintiff maintained that her disability caused her to appear as if she were sleeping, but that she was actually awake. Plaintiff further asserted that the school administration purposefully scheduled her to supervise classes at opposite ends of the building so that she would be tardy.

After hearing the testimony of 27 witnesses and receiving 129 documentary exhibits into evidence, the referee concluded in a written decision on October 9, 2010, that Plaintiff's sleeping during class and her tardiness to other classes constituted “good and just cause” for her termination. On that basis, the referee recommended that the board terminate Plaintiff's teaching contract. Pursuant to state law, Plaintiff could have appealed the referee's decision to the court of common pleas. SeeOhio Rev.Code § 3319.16.

Instead, on March 17, 2011, Plaintiff filed a complaint in the United States District Court for the Northern District of Ohio and alleged four counts: 1) age discrimination in violation of Ohio law; 2) failure to make reasonable accommodations in violation of the ADA and similar provisions of state law; 3) retaliation for engaging in protected activity in violation of the ADA and state law; and 4) intentional infliction of emotional distress.

On September 15, 2011, Defendants filed a motion for summary judgment on their seventeenth affirmative defense—that Plaintiff's age discrimination claim is foreclosed by Ohio Rev.Code § 4112.14(C) and the remaining claims are barred by the doctrine of collateral estoppel. While that motion was pending, the parties filed briefs on a discovery dispute arising from Plaintiff's request to depose a former member of the board of education on discussions held during executive sessions of the board. On October 15, 2011, Plaintiff filed a response to Defendants' motion for summary judgment, arguing that her claims were not barred either by statute or by the doctrine of collateral estoppel. Along with her response, Plaintiff filed a detailed affidavit describing her claims and the circumstances which led to her termination. Three days later, the district court ordered that the pending discovery dispute be held in abeyance pending its decision on summary judgment. Plaintiff has represented that the parties had an understanding that discovery would be put on hold until the district court resolved the collateral estoppel issues in the pending summary judgment motion.

On January 12, 2012, the district court granted summary judgment to Defendants on all claims, finding that Count One was not authorized by statute and that Count Three was barred by collateral estoppel. Having found that collateral estoppel applied, the district court could have resolved Counts Two and Four in a similar fashion, but instead determined—without the benefitof briefing or argument from the parties—that Count Two failed on the merits and that Count Four had been insufficiently pleaded. Plaintiff filed a timely Notice of Appeal.

DISCUSSION

We review a district court's grant of summary judgment de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). 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.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In reviewing the record, we view the factual evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in that party's favor.” Slusher v. Carson, 540 F.3d 449, 453 (6th Cir.2008) (citations omitted). In reviewing Plaintiff's claims under Ohio law, this Court applies state law in accordance with the currently controlling decisions of the Ohio Supreme Court. Metz v. Unizan Bank, 649 F.3d 492, 496 (6th Cir.2011).

I. Age Discrimination Under Ohio Rev.Code § 4112.14

Plaintiff alleges that Defendants terminated her employment in violation of Ohio statutes prohibiting age discrimination in employment.¹Ohio Rev.Code § 4112.14 states, in relevant part:

(A) No employer shall ... discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job.

....

(B) Any person aged forty or older who is ... discharged without just cause by an employer in violation of division (A) of this section may institute a civil action against the employer.

....

(C) The cause of action described in division (B) of this section ... shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.

Subsection (C) prohibits an employee from bringing a cause of action for age discrimination if her termination has already been arbitrated and found to be for just cause. The Ohio Supreme Court has held that an employee need not have participated in an actual arbitration proceeding, but rather that the “functional equivalent of arbitration” will suffice to bar an action for age discrimination under § 4112.14(C). See Meyer v. United Parcel Serv., Inc., 122 Ohio St.3d 104, 909 N.E.2d 106,...