Schaffer v. Covington Exempted Village School Dist. Bd. of Edn. , 2022 Ohio 1189 ( 2022 )

[Cite as Schaffer v. Covington Exempted Village School Dist. Bd. of Edn., 2022-Ohio-1189.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
SHON SCHAFFER :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-27
:
v. : Trial Court Case No. 2021-CV-70
:
COVINGTON EXEMPTED VILLAGE : (Civil Appeal from
SCHOOL DISTRICT BOARD OF : Common Pleas Court)
EDUCATION :
:
Defendant-Appellant
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OPINION
Rendered on the 8th day of April, 2022.
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JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 & SERAH E. SIEMANN, Atty. Reg.
No. 0088687, 130 West Second Street, Suite 460, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
JESSICA K. PHILEMOND, Atty. Reg. No. 0076761, ELIZABETH A. BRAVERMAN, Atty.
Reg. No. 0088454, 250 East Broad Street, Suite 900, Columbus, Ohio 43215 & BRYAN
A. NIEMEYER, Atty. Reg. No. 0068255, 100 South Main Avenue, Suite 300, Courtview
Center, Sidney, Ohio 45365
Attorneys for Defendant-Appellant
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LEWIS, J.
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{¶ 1} Defendant-Appellant Covington Exempted Village School District Board of
Education (“the Board”) appeals from the trial court’s judgment disaffirming the Board’s
decision to terminate the employment of Plaintiff-Appellee Shon Schaffer.
I. Facts and Course of Proceedings
{¶ 2} Schaffer had been employed by the Covington Exempted Village School
District as a bus driver for over 15 years. During this time, Schaffer had a good
employment record and his job opportunities at the school district were expanding. But
this changed abruptly. On January 10, 2021, Schaffer’s grandson was bitten by a dog
owned by Schaffer’s daughter. Schaffer took possession of the dog. On January 11,
2021, Schaffer was informed by a sheriff’s deputy that the dog had to be quarantined for
10 days according to health department regulations. Schaffer ignored this direction and
euthanized the dog on January 19, 2021. Schaffer then told a sheriff’s deputy that he
had disposed of the dog’s remains in a dumpster at the local high school. However,
Schaffer had actually disposed of the remains in his own garbage.
{¶ 3} On the afternoon of January 21, 2021, Schaffer voluntarily met with the
School District’s Superintendent, Gene Gooding, about the dog incident. According to
Gooding’s notes from the meeting, Schaffer admitted to killing the dog on day eight of
quarantine and then lying to the sheriff’s deputy about knowing when the quarantine
expired “because he was scared and did not want to get in trouble.” Id. Schaffer also
admitted to lying to the sheriff’s deputy about where he had disposed of the remains of
the dog, because he thought that disposing of the remains in his own garbage was illegal
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and he was “trying to prevent himself from getting into trouble.” Id. Later that day,
Gooding alerted Schaffer that he would be contacting the authorities to tell them what
Schaffer had admitted to him.
{¶ 4} On January 25, 2021, Gooding placed Schaffer on administrative leave and
gave him a letter that stated, in part:
Please meet with me on January 28 at 3:30 in my office. At that time, we will
discuss the following:
Mr. Schaffer is currently under investigation for criminal activity related to the
manner in which he euthanized and ultimately disposed of a dog prior to the period
of time that he was authorized by authorities to do so. Mr. Schaffer admitted to
me on January 21, 2021, that he had lied to the Sheriff’s deputy about not knowing
that the ten-day waiting period, which was required prior to euthanizing the dog,
had not expired. He also advised me that he had lied to the Sheriff’s deputy about
how he disposed of the dog’s carcass. He had advised the Sheriff’s deputy that
he had disposed of the carcass by placing it in a dumpster located at Bradford
Schools. However, Mr. Schaffer advised me that he actually disposed of the
carcass in his own trash receptacle. [Covington Exempted Village School District]
has reason to believe that Mr. Schaffer will likely face criminal charges as a result
of his conduct. Mr. Schaffer’s conduct could constitute grounds for termination.
These issues will be discussed during the disciplinary hearing on Thursday,
January 28, 2021, during which Mr. Schaffer will be given an opportunity to
address his conduct and present any other evidence or written explanation if he so
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chooses. Mr. Schaeffer has the right to union representation at the disciplinary
hearing.
{¶ 5} The disciplinary hearing referenced in the letter was rescheduled to January
27th at Schaffer’s request. There is no transcript from the disciplinary hearing in the
record before us. Rather, the record contains some typewritten and handwritten notes
from Gooding and a staff member. According to these notes, Schaffer began the hearing
by backpedaling on whether he had lied to or even spoken to a sheriff’s deputy about the
killing and disposing of the dog. But he then conceded again that he had lied to the
sheriff’s deputy. According to Gooding, on the advice of counsel, Schaffer did not plan
to call the sheriff’s deputy and explain what really happened. Schaffer gave an undated
letter to Gooding and the Board apologizing for his conduct and offering to be put on
unpaid leave and take as many ethics courses as the Board saw fit.
{¶ 6} The Board met on February 17, 2021, and voted unanimously to terminate
Schaffer’s contract. On February 18, 2021, Gooding sent a letter by certified mail to
Schaffer’s home address. The letter stated that the Board had terminated Schaffer’s bus
driver contract and that “[t]he Board’s decision was based on your dishonesty and
immoral conduct, as summarized in the Notice of Disciplinary Hearing that was provided
to you on January 25, 2021.” The USPS tracking computer printout associated with the
certified mail indicated that the letter was delivered to an individual at Schaffer’s address
at 4:09 P.M. on February 20, 2021. But no signature was provided on the green card
returned by the postal employee charged with delivering the certified mail. According to
Schaffer, no postal employee delivered any certified mail to him on Saturday, February
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20th, and he did not locate the certified mail in his mailbox until Monday, February 22nd.
Memo in Opp. to Motion for Judgment on Pleadings (Apr. 28, 2021).
{¶ 7} On March 3, 2021, Schaffer appealed the Board’s termination of his contract
to the court of common pleas. On April 12, 2021, the Board filed a motion for judgment
on the pleadings, contending that the common pleas court lacked jurisdiction over the
appeal because Shaffer failed to timely file his appeal within ten days of receiving the
certified mail from the Board, as required by R.C. 3319.081(C). On June 10, 2021, the
trial court overruled the Board’s motion for judgment on the pleadings, finding that
Schaffer did not receive the Board’s decision until he found it in his mailbox on February
22, 2021, which was less than ten days before he filed his appeal on March 3, 2021.
{¶ 8} On August 31, 2021, based on its review of the evidence of record and
arguments of the parties, the trial court found that the Board’s January 25, 2021 notice of
pre-termination hearing “did not apprise [Schaffer] of all of the R.C. 3319.081 charges
against him” and therefore violated his due process rights and was unconstitutional.
Consequently, the court disaffirmed the Board’s decision of termination. The Board
appeals from the trial court’s decision.
II. Schaffer Timely Filed His Appeal Within Ten Days of Receiving The
Board’s Decision Via Certified Mail
{¶ 9} The Board’s first assignment of error states:
THIS UNTIMELY TERMINATION APPEAL MUST BE DISMISSED
BECAUSE IT WAS NOT FILED WITHIN 10 DAYS OF APPELLEE’S
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RECEIPT OF THE TERMINATION NOTICE BY CERTIFIED MAIL.
{¶ 10} The parties agree that R.C. 3319.081(C) sets forth the ten-day period in
which Schaffer must have filed his appeal from the Board’s termination decision. R.C.
3319.081(C) provides, in relevant part: “The action of the board of education terminating
the contract of an employee or suspending or demoting the employee shall be served
upon the employee by certified mail. Within ten days following the receipt of such notice
by the employee, the employee may file an appeal, in writing, with the court of common
pleas of the county in which such school board is situated.” (Emphasis added.)
{¶ 11} Notably, R.C. 3319.081(C) requires the notice to be served by certified mail
and, once the notice is received by the employee, the ten-day time period for filing an
appeal begins to run. The Board contends that the trial court lacked jurisdiction over
Schaffer’s appeal, because Schaffer received the notice from the Board on February 20,
2021, and did not file his appeal until March 3, 2021, eleven days after receipt of the
notice. The Board based its time calculation on a United States Postal Service (USPS)
computer printout that stated an individual at Schaffer’s address had signed for the
certified mail on February 20, 2021.
{¶ 12} Schaffer responds that the trial court correctly found that he did not receive
the certified mail until he found it in his mailbox on February 22nd, which would mean his
appeal was filed timely nine days after receipt of the Board’s notice. The record contains
an affidavit of Schaffer stating that he did not receive the certified mail until he found the
letter in his mailbox on Monday, February 22, 2021. Memo in Opp. to Motion for
Judgment on Pleadings (Apr. 28, 2021).According to Schaffer, on Saturday, February 20,
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2021, no postal worker came to his residence and no individual at the residence was
given any certified mail or signed any certified receipt green card.
{¶ 13} The trial court resolved this factual issue in favor of Schaffer. The court
explained: “The instant record supports [Schaffer’s] affidavit that he was not served with
the Notice until he found it in this mailbox on February 22. The USPS documents do not
evince service; rather, the USPS’ conclusion in its printout that ‘an individual’ was served
is not supported by the Green Card, which bears no individual’s signature.” Motion for
Judgment on the Pleadings, p. 9.
{¶ 14} The Board contends that the trial court improperly “expand[ed] the statute
of limitations” and the ten-day statutory period in R.C. 3319.081(C) through its use of the
Rules of Civil Procedure relating to service. We do not agree. R.C. 3319.081(C) plainly
states that the Board’s termination decision “shall be served upon the employee by
certified mail” and that the employee must file his appeal within ten days following the
“receipt” of such notice. The Board’s evidence that Schaffer received the Board’s
decision by certified mail on February 20th rested on the presumption that the certified
mail was received by Schaffer or a representative of Schaffer at Schaffer’s house on that
day. But Schaffer responded with an affidavit stating that neither he nor his
representative received the certified mail on February 20th. And the green card returned
by the postal employee in charge of delivering the certified mail did not contain any
signature identifying a person who signed for the certified mail. The statute is clear that
the ten-day period for filing an appeal does not begin to run until the certified mail is
received. Schaffer received the certified mail on Monday, February 22nd, when he found
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the certified mail in his mailbox.
{¶ 15} Finally, the Board contends that the trial court should have found the appeal
untimely based on the Board’s evidence that Schaffer received a hand-delivered copy of
the termination letter through a union representative more than ten days before he filed
his appeal in the court of common pleas. The trial court rejected this argument due to
the fact that this argument and evidence was raised for the first time in a reply brief.
Moreover, hand delivery is not the method of service specifically mandated by R.C.
3319.081(C), which requires service by certified mail.
{¶ 16} Schaffer timely filed his appeal within the ten-day period provided by R.C.
3319.081(C). The first assignment of error is overruled.
III. The Trial Court Erred In Finding The Board’s Decision Was
Unconstitutional
{¶ 17} The Board’s second assignment of error states:
THE BOARD PROVIDED APPELLEE SUFFICIENT PROCEDURAL DUE
PROCESS BEFORE TERMINATING HIS EMPLOYMENT BY PROVIDING
APPELLEE ORAL AND WRITTEN NOTICE OF THE CHARGES AGAINST
HIM IN BOTH THE PRE-TERMINATION NOTICE AND IN THE PRE-
TERMINATION HEARING.
{¶ 18} The parties agree that Schaffer’s termination is governed by R.C.
3319.081(C), which provides, in part: “contracts may be terminated only for violation of
written rules and regulations as set forth by the board of education or for incompetency,
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inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous
treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance,
or nonfeasance.”
{¶ 19} Ultimately, the Board cited dishonesty and immoral conduct from the list of
acceptable reasons for termination in R.C. 3319.081(C). The trial court found that the
Board’s decision was unconstitutional, because the Board failed to provide Schaffer with
due process prior to terminating his employment. In particular, the trial court found that
the Board failed to provide adequate notice of the charges against Schaffer. The Board
contends that the trial court erred in finding the Board’s decision unconstitutional.
According to the Board, Schaffer was provided sufficient procedural due process before
his employment was terminated when the Board provided him with oral and written notice
of the charges against him in both the pre-termination notice and in the pre-termination
hearing.
{¶ 20} It is well-established that Schaffer was “entitled to oral or written notice of
the charges against him, an explanation of the employer’s evidence, and an opportunity
to present his side of the story.” (Citation omitted.) Cleveland Bd. of Edn. v. Loudermill,
470 U.S. 532, 546, 105 S. Ct. 1487, 84 L.Ed.2d 494 (1984). It is undisputed that Schaffer
was provided with notice of the Board’s evidence and an opportunity to present his side
of the story. The parties dispute whether Schaffer received oral or written notice of the
charges against him.
{¶ 21} The trial court agreed with Schaffer, stating that the January 25, 2021 notice
of the pre-termination hearing “failed to include all of the charges against [Schaffer.]”
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Decision and Judgment Entry (Aug. 31, 2021), p. 11. According to the trial court, “[e]ven
if the listing of the Director’s evidence in the January 25 notice may have apprised
[Schaffer] that he would be responding to a dishonesty charge, the Court concludes that
it would not be reasonable for [Schaffer] to conclude he was being charged with ‘immoral
conduct.’ ” Id. at 10-11. We do not agree.
{¶ 22} The January 25, 2021 pre-termination notice was clear that Schaffer’s
potentially criminal actions involving the killing of a dog, the disposal of the dog’s carcass,
and the subsequent attempt to cover up those actions through lying were the bases for
considering termination of Schaffer’s employment. The Board’s identification of this
particular conduct was sufficient to alert Schaffer of the charges against him and allow
him to adequately prepare for the pre-termination hearing. While including the words
“dishonesty” and “immoral conduct” in the January 25, 2021 notice would have more
cleanly tracked the language in R.C. 3319.081(C), there is no due process requirement
to include these exact words.
{¶ 23} The Board satisfied the due process standards enunciated in Loudermill.
Therefore, the trial court erred in finding that the Board’s decision was unconstitutional.
The second assignment of error is sustained.
IV. The Cause Must Be Remanded to Allow The Trial Court To Complete Its
Review of The Board’s Decision Under R.C. 2506.04.
{¶ 24} The Board’s third assignment of error states:
THE BOARD’S TERMINATION OF APPELLEE’S EMPLOYMENT WAS
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SUPPORTED BY A PREPONDERANCE OF RELIABLE, PROBATIVE,
AND SUBSTANTIAL EVIDENCE.
{¶ 25} When resolving an appeal from a Board of Education’s decision under R.C.
3319.081(C), the trial court, after considering the whole record, may determine that the
Board’s “order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial, reliable, and
probative evidence * * * .” R.C. 2506.04. Due to the trial court’s finding that the Board’s
decision was unconstitutional, the trial court did not address whether the Board’s decision
was illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of
substantial, reliable and probative evidence. Therefore, on remand, the trial court will
have the opportunity, in the first instance, to review the whole record and make a finding
on whether the Board’s decision was illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence. R.C.
2506.04. Based on its finding, the trial court will determine whether to affirm, disaffirm,
or modify the Board’s decision.
{¶ 26} The third assignment of error is overruled.
V. Conclusion
{¶ 27} Having sustained the Board’s second assignment of error, the decision of
the trial court is reversed, and the cause will be remanded for the trial court to make a
determination whether the Board’s decision to termination Schaffer’s employment was
illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of
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substantial, reliable, and probative evidence.
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TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Jeffrey M. Silverstein
Serah E. Siemann
Jessica K. Philemond
Elizabeth A. Braverman
Bryan A. Niemeyer
Hon. Stacy M. Wall