Hunt v. Westlake City School District

*235 Weaver, Judge. Plaintiffs Frances Hunt and the Westlake Teachers’ Association appeal from the order of the trial court which awarded summary judgment to deféndants Westlake City School District Board of Education (“board”) and David J. Karahuta in plaintiffs’ action for discriminatory and unconstitutional employment practices, and which dismissed plaintiffs’ remaining causes of action. For the reasons set forth below, we reverse. I The record reveals that in August 1990, the board voted to employ plaintiff Hunt as a long-term substitute teacher at Bassett Elementary School for the first semester of the 1990-1991 school year. Thereafter, in December 1990, the board again voted to employ Hunt as a long-term substitute teacher for the second semester of the 1990-1991 school year. In August 1991, Hunt was informed that her employment would not be renewed for the 1991-1992 school year. Hunt filed grievances with the board and the board responded by offering Hunt the opportunity to substitute teach on a casual or as-needed basis. Hunt apparently agreed to this offer, but was never called to substitute teach. On March 18, 1992, Hunt and the Westlake Teachers’ Association (“WTA”) filed this action against the. board and Bassett Elementary School Principal David Karahuta. In their second amended complaint, plaintiffs alleged that as a long-term substitute teacher at the school district, Hunt was entitled to notice of nonrenewal by April 30, 1991, and that absent timely notice, her employment would have “rolled over” or continued for the 1991-1992 school year. In addition, plaintiffs alleged that defendants represented that Hunt’s employment would be renewed, but subsequently elected not to renew her employment because she contemplated becoming pregnant in the near future and because she attempted to pursue the reporting of suspected child abuse. Plaintiffs then set forth causes of action for breach of employment contract (including promissory estoppel and public policy claims), violation of constitutional rights under Section 1983, sexual discrimination under to R.C. 4112.02, and defamation. Later, plaintiffs set forth a fifth cause of action that alleged that defendants had violated the state “Sunshine” law in connection with the procedure by which they had reached the decision not to renew Hunt’s employment. Defendants denied liability under all of the causes of action advanced by plaintiffs, and subsequently moved for summary judgment. On June 6,1993, the trial court entered summary judgment for defendants as to plaintiffs’ Section 1983 claim, sexual discrimination claim, and defamation claim. *236 Thereafter, the matter proceeded to a bench trial on plaintiffs’ remaining claims for breach of contract, promissory estoppel, and violation of the “Sunshine” law. As trial commenced, the parties stipulated, inter alia, that Hunt’s employment was not excluded from representation under the collective bargaining agreement, that Hunt’s prior employment was as a long-term substitute teacher and not a casual substitute teacher, that Hunt did not receive classroom visitations or observations during this prior employment, that the board did not document any professional deficiencies in Hunt’s teaching, that Hunt was not notified twenty days in advance of the board’s meeting at which the board decided not to renew her employment, and that the school system utilized eighty-four casual substitute teachers for a total of 890.5 school days, and they were paid $49 per day. Plaintiffs then presented the testimony of Christina Dinklocker as if upon cross-examination, Patrick Walsh, and Frances Hunt. Christina Dinklocker testified that she was assistant superintendent of the school district in 1990 when Hunt was first hired as a long-term substitute on a limited, one-semester contract. After forty days, long-term substitute teachers are paid in accordance with the board’s pre-set salary schedule and are given benefits. Conversely, casual substitute teachers are paid a flat rate of $49 per day, or $75 per day after the first ten days, with no benefits. Dinklocker further testified that Hunt was a certificated employee with less than three years’ teaching experience. Teachers who have limited contracts must be given notice of nonrenewal by April 30, in order to prevent the contract from automatically “rolling over” to another year. Dinklocker further testified that after conducting an investigation into this matter, she learned that Hunt was not given proper advance notice of the board’s decision not to renew her contract, and was not given the observations and evaluations provided for in the collective bargaining agreement. Hunt’s complaints were subsequently presented to the board in executive session. Dinklocker admitted, however, that at this “hearing,” Hunt simply presented her point of view, and there were no questions asked of her, no discussions by the board, and no formal decision afterward. Thereafter, on August 12, 1991, Dinklocker, in her position as acting superintendent of the school district, sent Hunt a letter, which proposed that Hunt receive casual or as-needed substitute teaching assignments in resolution of the matter. Patrick Walsh testified that he is President of the Westlake Teachers’ Association, and was chief negotiator for the association in the collective bargaining process that preceded adoption of the collective bargaining agreement in effect from 1989 through 1991. According to Walsh, teachers with less than three years’ experience with the board were not obligated to arbitrate disputes *237 concerning nonrenewal, but could instead pursue other avenues of dispute resolution. On cross-examination, Walsh admitted that a teacher’s employment may be nonrenewed without cause. With regard to plaintiffs’ promissory estoppel claim, Walsh indicated that only the board, by vote taken at a public meeting, may hire a teacher. Individual board members and the principal acting alone have no authority to do so. Frances Hunt testified that she graduated from Muskingham College in 1990. She was ranked as first in her class in education and also had a 4.0 grade point average in her major. Her first teaching job was with the board, at Bassett Elementary School. According to Hunt, she interviewed for the position and submitted letters of recommendation, then was contacted by former Superintendent Dr. Mary Spor, who guaranteed that Hunt would have a position at the school system for the 1990-1991 school year, and thereafter. Hunt further testified that in February 1991, Karahuta told her that another second grade teacher was retiring and that she would replace her in that permanent position. Hunt then accepted the position, and Karahuta later gave her the class list and allowed her to order supplies for the 1991-1992 school year. In addition, Hunt prepared a grant request for a language curriculum at Bassett for the 1991-1992 school year. Hunt later learned that the board had decided to nonrenew all of the long-term substitutes whom it had hired during the preceding year, but Karahuta and board member Keith Estes assured her that she would be hired as a regular full-time teacher. Hunt participated in formal interviews for this position and was then hired as the advisor to the 1991 varsity soccer cheerleading squad. According to Hunt, this position had to be offered first to teachers with contracts for the upcoming year, and the high school athletic director confirmed from Karahuta that Hunt would be given a contract for the 1991-1992 school year. In June 1991, or after the April 30 statutory deadline for providing notice, and after the April 1 contractual deadline for providing notice, Karahuta told Hunt that there was no position for her at Bassett Elementary. According to Hunt, Karahuta said that he felt she was an average teacher and he did not like her treatment of underprivileged children, and he remarked that there had been too many maternity leaves at the school. These latter remarks reportedly referenced Hunt’s prior insistence at reporting suspected child abuse and her comments that she and her fiance were excited about starting a family soon after their marriage. Hunt next testified that she subsequently spoke with the five members of the board, and a majority of them stated that she would be rehired. The board subsequently met in executive session. Hunt admitted that she left this meeting *238 before a final determination was reached, and she also denied receiving Dinklocker’s letter dated August 12, 1991. She admitted, however, that Dinklocker advised her by telephone of the board’s action and that a copy of Dinklocker’s letter was presented to her in August 1991 by a member of the WTA. In this letter the board had proposed the option of casual substitute teaching. Hunt further testified that she was never called in to substitute, but she did earn $1,000 teaching summer school. She later learned that she had more experience than six people who were hired by the district, and that long-term substitute positions were filled after the board made its decision not to renew her employment. Hunt next testified that she was given only one observation report during her employment in 1990-1991, which is less than what is required under the collective bargaining agreement. According to Hunt, this and the timing and method by which she was informed of the board’s decision not to renew her employment constituted procedural deficiencies that rendered ineffective the board’s decision not to renew her contract. On cross-examination, Hunt admitted that after the board decided not to renew her contract, she received a letter from the acting superintendent of the district that explained that it is the board’s policy to annually nonrenew all of the long-term substitutes. In addition, Hunt acknowledged that she knew that only the board, acting at a public meeting, had hiring authority. As to the money she received in lieu of continued teaching with the board, Hunt stated that she received $7,257 from unemployment compensation and $2,000 from substitute teaching in another school district. With regard to her claim for violation of the “Sunshine” law, Hunt admitted that she left before the board ended its executive session and before a decision was reached. On November 29, 1993, the trial court found that plaintiffs had shown no right to relief, and it dismissed plaintiffs’ remaining claims, pursuant to the provisions of Civ.R. 41(B)(2). Plaintiffs now appeal, assigning eight errors for our review. II Plaintiffs’ first, sixth, and seventh assignments of error are interrelated and state: “The trial court erred by (a) failing to grant summary judgment in favor of Hunt and the WTA on the breach of contract claims, (b) by failing to grant judgment at trial on said claims for appellants, (c) by granting judgment for appellees, (d) by finding that Hunt’s remedy was through a statutory appeal rather than a breach of contract action, (e) by excluding relevant evidence on these issues, (f) by finding that Hunt had failed to establish her damages, and (g) *239 by making factual findings or conclusions of law on these issues not supported by the record.” “The trial court erred by dismissing the ‘Sunshine’ law claims and by finding that it had no jurisdiction to consider a statutory appeal by Hunt and/or Hunt had waived a statutory appeal.” “The trial court erred by finding that Hunt had to utilize the statutory appeal proceedings, rather than a civil action, for her breach of contract claims and/or she had waived her right to seek a remedy through a civil action.” The fundamental question which must first be addressed within these assignments of error is whether plaintiffs have invoked the proper procedures for challenging the board’s determination. Defendants maintain, and the trial court concluded, that plaintiffs have invoked an improper form of relief by filing the instant action, since they were required to perfect a statutory appeal within thirty days after the proceedings before the board, pursuant to R.C. 3319.11. Conversely, plaintiffs maintain that they have invoked a proper form of relief because the collective bargaining agreement provides that it supersedes any other provisions of the Revised Code. In addition, the agreement purports to establish arbitration as the next level of dispute resolution, yet for Hunt, a teacher with less than three years’ experience, arbitration was not permitted. Thus, plaintiffs maintain, this ambiguity in the procedures allows them to file a complaint against defendants in the court of common pleas in lieu of a statutory appeal. Plaintiffs further assert that their initiation of this action is proper because the board did not complete critical acts which must be completed before the time for perfecting an appeal begins to run. In relevant part, R.C. 4117.10(A) provides: “An agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure. Where no agreement exists or where an agreement makes no specification about a matter, the public employer and the public employees are subject to all applicable state or local laws or ordinances pertaining to the wages, hours, and terms and conditions for public employees. Laws pertaining to civil rights * * * prevail over conflicting provisions of agreements between employee organizations and public employers. * * * ” (Emphasis added.) *240 Thus, unless the collective bargaining agreement specifically provides to the contrary, the parties are subject to all laws pertaining to that matter. Reeves v. Union Twp. Bd. of Trustees (1989), 55 Ohio App.3d 148, 150, 563 N.E.2d 370, 371-372; cf. Naylor v. Cardinal Local School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 162, 165, 630 N.E.2d 725, 728-729 (unless a collective bargaining agreement specifically provides to the contrary, R.C. 3319.111 governs the evaluation of a teacher employed under a limited contract). The statutory law as it pertains to a school board’s notice of intent not to renew a teacher’s limited contract is set forth in R.C. 3319.11(E), which provides in relevant part as follows: “[A]ny teacher employed under a limited contract, and not eligible to be considered for a continuing contract, is, at the expiration of such limited contract, considered reemployed under the provisions of this division * * * unless evaluation procedures have been complied with pursuant to division (A) of section 3319.11 of the Revised Code and the employing board, acting upon the superintendent’s written recommendation that the teacher not be reemployed, gives such teacher written notice of its intention not to reemploy him on or before the thirtieth day of April. A teacher who does not have evaluation procedures applied to him in compliance with division (A) of section 3319.11 of the Revised Code or who does not receive notice of the intention not to reem/ploy him on or before the thirtieth day of April is presumed to have accepted such employment unless he notifies the board in writing to the contrary on or before the first day of June, and a written contract for the succeeding school year shall be executed accordingly.” (Emphasis added.) In Kiel v. Green Local School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 149, 630 N.E.2d 716, the Supreme Court analyzed this provision and determined that a teacher with a limited contract is deemed reemployed unless the board “gives such teacher written notice of its intention not to reemploy him on or before the thirtieth day of April.” As to the procedures which must be invoked in order to pursue a claim that notice requirements were not met, we observe that R.C. 3319.11(G) provides: “(1) Any teacher receiving written notice of the intention of a board of education not to reemploy him * * * may within ten days of the date on which he received the notice, file with the treasurer of the board of education a written demand for a written statement describing the circumstances that led to the board’s intention not to reemploy the teacher. “(2) The treasurer of a board of education, on behalf of the board, shall, within ten days of the date on which he receives a written demand for a written statement * * * provide to the teacher a written statement describing the circumstances that led to the board’s intention not to reemploy the teacher. *241 “(3) Any teacher receiving a written statement describing the circumstances that led to the board’s intention not to reemploy the teacher * * * may, within five days of the date on which he received the statement, file with the treasurer of the board of education a written demand for a hearing before the board of education * * *. “(4) The treasurer of a board of education, on behalf of the board, shall, within ten days of the date on which he receives a written demand for a hearing * * * provide to the teacher a written notice setting forth the time, date, and place of the hearing * * *. “(5) Any hearing conducted pursuant to this division shall be conducted by a majority of the members of the board of education. The hearing shall be held in executive session of the board of education unless the board and the teacher agree to hold the hearing in public. * * *. “(6) Within ten days of the conclusion of a hearing conducted pursuant to this division, the board of education shall issue to the teacher a written decision containing an order * * * the intention of the board not to reemploy the teacher “(7) A teacher may appeal an order affirming the intention of the board not to reemploy the teacher to the court of common pleas of the county in which the largest portion of the territory of the school district is located, within thirty days of the date on which the teacher receives the written decision * * (Emphasis added.) In this instance, the parties’ initial dispute focused upon whether Hunt, as a long-term substitute, was part of the bargaining unit under the 1989-1991 collective bargaining agreement. There is no reference to long-term substitute teachers in the agreement but, pursuant to the Recognition Clause of the agreement, all certificated personnel are represented, and Hunt was certificated. With regard to pursuing a claim of improper nonrenewal, the agreement provides that for employees in the bargaining unit with three years of service or more within the district, the procedural requirements regarding nonrenewal and evaluation are subject to the grievance procedure. Further, as to the procedures on nonrenewal, the agreement indicates in a provision directed to “teachers who have more than three years of service in the district” that the designated procedure “supersedes any other provisions of this agreement or the Ohio Revised Code regarding non-renewal procedures.” A provision directed to “teachers on limited contracts” contains no such language, however. The undisputed evidence presented in this matter demonstrated that Hunt, a teacher on a limited contract with less than three years of service in the district, was challenging various procedures and board action taken in connection *242 with the decision to nonrenew her employment. Accordingly, it is clear that there is no contractual procedure which supersedes the provisions of the Revised Code, and the provisions of R.C. 3319.11 therefore apply, pursuant to the directives of R.C. 4117.10(A). Accordingly, plaintiffs were required to appeal the decision of the board under the procedures outlined in R.C. 3319.11(G)(7). Plaintiffs could not simply challenge the board’s nonrenewal in an original action in the court of common pleas. With regard to plaintiffs’ claim that the board did not properly notify Hunt of its final decision, and the time within which to perfect an appeal has not therefore began to run, we initially note that R.C. Chapter 3319 is remedial legislation which must be construed liberally in favor of teachers. Kiel v. Green Local School Dist. Bd. of Edn., supra, 69 Ohio St.3d at 149-150, 630 N.E.2d at 717. We further note that pursuant to R.C. 3319.11(G)(7), a teacher may appeal the final “order” of the board, “affirming” the previous decision to nonrenew, within thirty days of the date on which the teacher receives the written decision. From this statute, it is clear that deficiencies in providing notice of the board’s intention would not alter the essential character of the remedy to be employed and would not authorize the initiation of an original action in the court of common pleas, but would extend the time within which to commence an appeal. See R.C. 3319.11(G)(7). In this instance, the evidence indicated that Hunt did not directly receive Dinklocker’s letter, but instead received a copy of it from the WTA. In addition, there was evidence that the letter was written by Dinklocker in her capacity as acting superintendent, without being directed to do so by the board, and that there was no “order” which affirmed or vacated the previous decision, no formal decision by the board, and no manifestation of the board’s intention that Hunt’s employment not be continued. Accordingly, there was no evidence that Hunt ever received final notice of the board’s ultimate decision, and the trial court’s determination that plaintiffs were required to commence their statutory appeal within thirty days of Hunt’s awareness of Dinklocker’s letter is therefore unsupported by the manifest weight of the evidence. Defendants assert, however, that since the board offered Hunt the opportunity to perform casual or as-needed substitute teaching, it fully remedied its failure to provide her with notice of its decision not to renew her employment by April 30. See State ex rel. Dennis v. Hillsdale Local School Dist. (1988), 39 Ohio St.3d 158, 161, 529 N.E.2d 1248, 1250-1251. We note that the court explained that in its previous decision in State ex rel. Dennis v. Hillsdale Local School Dist. (1986), 28 Ohio St.3d 263, 503 N.E.2d 748, the court did not intend *243 “ * * * to overlook the mandate of the General Assembly contained in the first paragraph of R.C. 3319.10 that: “ ‘Teachers may be employed as substitute teachers for terms not to exceed one year for assignment as services are needed to take the place of regular teachers * * *; such assignment to be subject to termination when such services are no longer needed.’ (Emphasis added.) “ * * * The language contained in the writ ordering that appellant be employed under the substitute teaching contract as his services were needed clearly follows the language used in State ex rel. Dennis, supra, and in the first paragraph of R.C. 3319.10. Appellant became entitled to a contract as a substitute teacher under State ex rel. Dennis, supra, but was not entitled to a contract as a regular teacher. It is a basic premise that substitute teachers are employed as their services are needed. It would be illogical to compel a school board to employ a substitute teacher whose services are not needed.” 39 Ohio St.3d at 161, 529 N.E.2d at 1250. In this instance, however, there was evidence that the board hired long-term substitutes after nonrenewing Hunt’s employment; the undisputed evidence established that Hunt was never contacted by defendants to perform casual substitute teaching; and the parties stipulated that the school system had utilized eighty-four substitute teachers. Accordingly, this court is unable to conclude that defendants did legitimately and in good faith actually employ Hunt as a casual substitute teacher. Plaintiffs’ first and seventh assignments of error are well taken. With regard to plaintiffs’ sixth assignment of error, in which plaintiffs contend that defendants violated the “Sunshine” law in connection with their actions herein, we note that plaintiffs were required to establish that defendants violated the provisions of R.C. 3319.11(G)(5). Pursuant to this statute, any hearing on the board’s decision must be held before a majority of the board, acting in executive session, unless the board and teacher agree to hold the hearing in public. This hearing envisions more than an informal session between the school board and the teacher where the teacher makes a verbal presentation protesting nonrenewal of his or her contract. Naylor v. Cardinal Local School Dist. Bd. of Edn., supra, 69 Ohio St.3d at 168, 630 N.E.2d at 730-731. It necessarily includes the presentation of evidence, confrontation and examination of witnesses and the review of the arguments of the parties. Id. Herein, plaintiffs’ evidence established that the board allowed Hunt to relate the substance of her complaint in an executive session. However, from Dinkloeker’s testimony regarding the fact that no evidence was presented, no questions asked, no discussions held, and no formal decisions made, this meeting hardly *244 qualifies as a hearing pursuant to Naylor v. Cardinal Local. School Dist. Bd. of Edn., supra. The trial court therefore erroneously determined that no procedural error occurred in connection with the board’s “hearing,” and that plaintiffs demonstrated no right to relief under this cause of action. Thus, the trial court erroneously granted a judgment of dismissal in favor of defendants. Accordingly, plaintiffs’ sixth assignment of error is well taken. In accordance with the foregoing, we conclude that the board failed to give Hunt proper notice of its intention not to reemploy her, failed to hold a proper statutory hearing, and failed to give Hunt proper notice of any ultimate decision by the board. Thus, by application of the Supreme Court’s recent pronouncements in Kiel v. Green Local School Dist. Bd. of Edn., supra, Hunt must be deemed reemployed. Therefore, we reverse the judgment of the lower court as to the assignments of error set forth above, and we order that the board reinstate Hunt and award her all compensation and benefits which she has lost as a result of the unlawful nonrenewal of her contract. Further, in light of this determination, plaintiffs’ remaining assignments of error are moot, and we will not address them. App.R. 12(A). Judgment accordingly. Dyke, J., concurs. Krupansky, P.J., dissents.