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

MEMORANDUM OPINION SCHWARZER, Senior District Judge. Diana L. O’Hara brought this action against the Brooklyn City School District (the “District”) and its Board of Education (the “Board”), James R. Garber, the District’s Superintendent, and Marti Ferian, its Treasurer, alleging state and federal due process claims and tort claims arising out of her termination as the District’s assistant treasurer. The district court granted summary judgment for defendants on the due process claims and judgment as a matter of law at the close of trial on the defamation claim against Ferian; it imposed sanctions on plaintiffs counsel and awarded attorneys’ fees to defendant Ferian. The district court had jurisdiction under 28 U.S.C. § 1331 and § 1441(a). We have jurisdiction of the appeal under 28 U.S.C. § 1291. We affirm the summary judgment on the state and federal due process claims because plaintiff did not have a cognizable property interest in her job. We affirm the judgment as a matter of law on the defamation claim because plaintiff failed to come forward with evidence that Ferian acted “in a wanton or reckless manner.” We vacate the district court’s orders imposing sanctions on plaintiffs counsel and awarding fees to Ferian’s counsel because we find them to be an abuse of the court’s discretion. I. THE DUE PROCESS CLAIMS Plaintiff asserted a statutory due process claim under Ohio Revised Code § 3319, which provides that a public employee of the State of Ohio “whose job duties enable such employee to be considered as either a ‘supervisor’ or a ‘manage [313] ment level employee’ ” may not have her written employment contract terminated except in accordance with the procedures under Ohio Revised Code § 3319.16, which entitle her to notice and a right to appeal. She claims that she was a supervisor or management level employee, or that at least genuine issues of material fact remained as to her status as supervisor or management level employee. We review a grant of summary judgment de novo to determine whether, in the light most favorable to the nonmoving party, there is a genuine issue of material fact. Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir. 1996). Section 4117.01(F), in relevant part, defines “supervisor” as an individual “who has authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees, [or] to responsibly direct them.” Section 4117.01(L), in relevant part, defines “management level employee” as an individual “who formulates policy ____ 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.” The district court found that plaintiff offered no evidence that she performed supervisory or managerial tasks, that the tasks she performed were clerical, that her oversight of the two clerks in her office was limited to clerical procedure, that she sought the Treasurer’s consent before exercising discretion, and that she was not called on to participate in collective bargaining negotiations or in preparation for them. Plaintiff does not dispute the substance of the district court’s findings. As to whether she was a “supervisor,” O’Hara argues that she was hired to help the District extricate itself from a fiscal emergency but she does not dispute that her direction of and assignment of tasks to the two clerks were limited to clerical procedure. Nor does she dispute that she kept the Treasurer apprised of changes in policies and procedures she made, and she offers no facts from which it could be found that she exercised independent judgment. Finally she points to no evidence indicating that she held authority to hire, fire, or discipline employees or that she responsibly implemented policy. As to whether she was a “management level employee,” the burden of her argument is that as assistant treasurer she “may reasonably be required” to assist in collective bargaining negotiations, but the only evidence she offered was that on two occasions in prior years the assistant treasurer had assisted in collective bargaining negotiations. Because it is undisputed that she did not assist in such negotiations or in preparation for them, the purely speculative possibility that she might in the future have been called upon to do so is insufficient to raise a triable issue. Plaintiff’s job description, moreover, contains no reference to assisting in collective bargaining negotiations. We conclude that plaintiff failed to raise a genuine issue of material fact with respect to her claim to supervisor or management level employee status. Alternatively, plaintiff contends that she is entitled to due process because she had a property interest by reason of having an employment contract with a duration clause. Under Ohio law, she argues, an employee hired for a term, as she was, is not an at-will employee, citing Schutte v. The Danis Cos., 141 Ohio App.3d 824, 832, 753 N.E.2d 899 (2001). Schutte, a private sector case, is inapposite. Despite her contract, O’Hara’s employment is governed by Ohio law applicable to public employees. Public employees are either classified or unclassified. Under state law, [314] classified employees may appeal an employment decision to the State Personnel Board of Review. Ohio Rev.Code § 124.32.8; see Neamand v. Oberlin City Sch. Dist., 2001 WL 458676, at *2 (Ohio App. 9 Dist.2001) (unreported). It is undisputed, however, that plaintiff was an unclassified employee. See Ohio Rev.Code § 124.11(A). Unclassified employees are considered at-will employees not entitled to the procedural protections afforded classified employees. Because plaintiff was not a supervisor or management level employee and was an at-will employee, she therefore had no property interest in her position. The summary judgment must be affirmed. II. THE DEFAMATION CLAIM Plaintiff claims that Ferian defamed her by telling or suggesting to various persons that she had disclosed confidential information to the president of the classified employees union. The district court granted Ferian judgment as a matter of law on this claim at the close of evidence at trial. We review Rule 50 motions de novo, viewing the record evidence in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109-10, 147 L.Ed.2d 105 (2000) (stating that “a court should render judgment as a matter of law when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”). As a public employee, Ferian was immune from tort liability unless his statements were made “with malicious purpose, in bad faith, or in a wanton or reckless manner.” See Ohio Rev.Code § 2744.03(A)(6)(b). Plaintiff contends that Ferian’s statements were reckless because he did not know whether they were true and did not attempt to verify them until after they had been made. No reported Ohio decisions have directly addressed the issue what constitutes the requisite showing of recklessness in the context of defamation claims made by private figures. Ohio courts have defined wanton misconduct as “the failure to exercise any care whatsoever ... mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.” Cook v. City of Cincinnati, 103 Ohio App.3d 80, 658 N.E.2d 814, 820 (Ohio App. 1st Dist.1995) (citations omitted). Plaintiff does not contend that Ferian knew or had reason to believe the statements he made were false; her proffered evidence that he did not verify them does not rise above the level of negligence. Mere failure to verify may constitute negligence but is not sufficient to support a finding of reckless misconduct. We find support in the analogous context of defamation claims by public figures in which a defendant’s failure to investigate is insufficient to establish his bad faith. See New York Times Co. v. Sullivan, 376 U.S. 254, 287, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (finding that recklessness requires proof that the defendant “in fact entertained serious doubts as to the truth of the publication”); see also Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir.1982) (quoting St. Amant v. Thompson, 390 U.S. 727, 730-31, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Bressler v. Fortune Magazine, 971 F.2d 1226, 1246 (6th Cir.1992)). Because nothing in the record before us suggests that Ferian doubted the truth of his statements, the judgment on this claim must be affirmed. III. THE IMPOSITION OF SANCTIONS ON PLAINTIFF’S COUNSEL The district court sanctioned plaintiffs counsel for canceling a deposition sched [315] uled for September 12, 2001, for personal reasons. The court determined that sanctions were appropriate because of the inconvenience to the witness whose deposition had been twice before postponed by plaintiffs counsel. We review the imposition of sanctions for abuse of discretion. Ridder v. Springfield, 109 F.3d 288, 298 (6th Cir.1997), cert. denied, 522 U.S. 1046, 118 S.Ct. 687, 139 L.Ed.2d 634 (1988). The district court cited no authority for the imposition of sanctions. Federal Rule of Civil Procedure 30(g) provides that sanctions may be imposed if the party noticing the deposition fails to attend and another party attends. Neither party attended the canceled deposition on September 12, 2001. Hence, Rule 30(g) does not authorize these sanctions. Nor does Rule 37(d) apply; it permits the court to impose sanctions against a party who fails to appear for the taking of his properly noticed deposition. In the absence of any supporting authority, the order imposing sanctions was an abuse of discretion and must be vacated. IV. THE AWARD OF ATTORNEYS’ FEES TO FERIAN After the filing of the summary judgment motion, plaintiff moved pursuant to Rule 41(a)(2) for voluntary dismissal without prejudice of counts one and three, the due process claims, against Ferian. By order of October 29, 2001, the court denied the motion and instead dismissed these counts with prejudice and ordered plaintiff to reimburse Ferian for reasonable fees and costs incurred in defending against them. The court deferred assessing fees and costs until the conclusion of the case. By order entered after judgment, the court, observing that Ferian was a prevailing party on all claims, awarded fees and costs incurred in the defense of count three in the amount of $2,985.51. We review a district court’s decision on a Rule 41(a)(2) motion for an abuse of discretion. Duffy v. Ford Motor Co., 218 F.3d 623, 629 (6th Cir.2000). By dismissing the claims with prejudice in response to plaintiffs request for dismissal without prejudice without giving plaintiff notice of its intention to dismiss with prejudice, an opportunity to be heard, and an opportunity to withdraw the request for voluntary dismissal and proceed with the litigation, the court abused its discretion. United States v. 266 Tonawanda Trail (“One Tract”), 95 F.3d 422, 425-26 (6th Cir.1996). Moreover, the award of attorney fees at the conclusion of the action after all claims had been disposed of on the merits was an abuse of discretion. Under the American Rule, awards of attorney fees are not appropriate except when authorized by statute or court rule. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 249-50, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The court cited none to support this award and we are aware of none. Accordingly, the order awarding fees must be vacated. CONCLUSION For the reasons stated, we AFFIRM the summary judgment on the state and federal due process claims; we AFFIRM the judgment as a matter of law on the defamation claim: and we VACATE the district court’s orders imposing sanctions plaintiff’s counsel and awarding attorneys’ fees to Ferian’s counsel.