Hammonds v. Beavercreek City Schools , 2021 Ohio 4022 ( 2021 )

[Cite as Hammonds v. Beavercreek City Schools, 2021-Ohio-4022.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
:
WILLIAM HAMMONDS :
: Appellate Case No. 2021-CA-12
Plaintiff-Appellant :
: Trial Court Case No. 2020-CV-342
v. :
: (Civil Appeal from
BEAVERCREEK CITY SCHOOLS, et : Common Pleas Court)
al. :
:
Defendants-Appellees
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OPINION
Rendered on the 12th day of November, 2021.
...........
DAVID M. DUWEL, Atty. Reg. No. 0029583, 130 West Second Street, Suite 2101,
Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
BERNARD W. WHARTON, Atty. Reg. No. 0063487, 600 Vine Street, Suite 800,
Cincinnati, Ohio 45202
Attorney for Defendants-Appellees
.............
HALL, J.
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{¶ 1} Plaintiff-appellant, William Hammonds, appeals from a judgment of the
Greene County Court of Common Pleas, which granted summary judgment for
defendant-appellees, Beavercreek City School District Board of Education et al., on
Hammonds’s claim alleging wrongful discharge from his position as an assistant principal
in violation of public policy. His position as a teacher was unaffected by the loss of the
administrative position. Finding no error, we affirm.
I. Factual and Procedural Background
{¶ 2} In 2009, Hammonds was hired as a teacher by the Beavercreek City School
District Board of Education. For the 2015-2016 school year, the Board gave him a one-
year administrative contract to be an assistant principal at Beavercreek High School,
where Jeff Jones was the principal. In October, Jones put Hammonds on a professional
growth plan to help Hammonds evaluate and review teachers, as well as to help him
engage the staff and community in the evolving use of technology in the school district.
{¶ 3} The following January, Jones placed Hammonds on a performance-
improvement plan, precipitated by Hammonds’s failure to keep confidential sensitive
information related to an accusation of inappropriate conduct by a staff member with a
student. Hammonds had told former teaching colleagues in the building about the
circumstances of the allegations. The school believed that Hammonds’s failure to keep
this information confidential violated the requirements of his job. Jones was also
concerned about Hammonds’s lack of communication with him in the situation. The
performance-improvement plan focused on the performance standards in the Ohio
Principal Evaluations System, which addresses how principals uphold and model
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professional ethics, policies, and legal codes of conduct.
{¶ 4} The Board renewed Hammonds’s administrative contract for the 2016-2017
school year. Assistant Superintendent Jason Enix was assigned to work with Jones to
evaluate Hammonds that year. The school had an ongoing concern about disparaging
comments that Hammonds would make to other administrators and staff members about
Jones as a supervisor. Superintendent Paul Otten had given Hammonds a written
reprimand for his conduct and directed him to comply with the superintendent’s
expectations, but Hammonds continued to make disparaging comments.
{¶ 5} An incident occurred in August 2016 involving Hammonds in a classroom at
the high school—Hammonds’s former classroom. A gas jet behind a microwave in the
room had been turned on. The room had been a science room but was converted to a
special-needs classroom for the 2016-2017 school year. Jones investigated the incident
and wrote a report. He interviewed staff members, several of whom said that Hammonds
had acted unprofessionally in the room’s transition. They told Jones stories about
Hammonds’s refusing to remove items from cabinets and placing chains and locks around
them, making it impossible for anyone else to clean them out. Jones’s report revealed
that Hammonds had a poor relationship with the science department and the special-
needs department.
{¶ 6} In September 2016, Jones put Hammonds on a second performance-
improvement plan in response to ongoing complaints that Hammonds failed to support
the school staff, Board policy, and leadership decisions. The plan required Hammonds to
improve under three performance standards of the Ohio Principal Evaluations System.
Hammonds filed a written objection to this plan, stating that it was based solely on hearsay
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and Jones’s opinions.
{¶ 7} Around the same time, Superintendent Otten directed Deron Schwieterman,
Director of Human Resources for the Beavercreek City School District, to investigate staff
complaints about Hammonds, including complaints of intimidating and harassing
behavior toward staff and students, causing a hostile work and educational environment
through unprofessional behavior, lack of professionalism, disregard for directives from
supervisors, and inappropriate use of sick time. Schwieterman completed a summary of
his investigation on October 20, 2016. Based on interviews with Hammonds, other
administrators, and teachers, Schwieterman concluded that Hammonds had acted
unprofessionally and inappropriately in multiple situations, had acted to undermine
Jones’s leadership, had violated ethics policies that applied to administrators in the school
district, lacked good professional judgment, and failed to meet the responsibilities or the
essential functions of an assistant principal.
{¶ 8} Superintendent Otten reviewed Schwieterman’s investigation and agreed
that Hammonds had failed to follow directives, failed to maintain professionalism, and
failed to maintain confidential information. Otten further concluded that Hammonds had
acted in an unprofessional manner on several occasions and that Hammonds’s behavior
had led to his inability to perform the duties of his position as an assistant principal in a
satisfactory manner. Otten found that Hammonds had violated several Board policies and
requirements of his job and had run afoul of his (Otten’s) expectations for school
administrators. Otten issued Hammonds a written reprimand and advised him that any
further misconduct may result in additional discipline, including termination of his
employment.
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{¶ 9} On November 8, 2016, Hammonds met with Schwieterman. During the
meeting, Hammonds discussed filing a formal complaint for misconduct against Jones
with the Office of Professional Conduct at the Ohio Department of Education (DOE).
Hammonds asked whether the school district would self-report Jones, and Schwieterman
told Hammonds that the school “always get[s] notified when someone is reported on.”
(Hammonds Affidavit, ¶ 2).
{¶ 10} After his meeting with Schwieterman, Hammonds retained an attorney, who
wrote a letter to Superintendent Otten. The letter, dated November 30, 2016, stated that
Hammonds had complained to the school district of abuse, harassment, and mistreatment
by Jones and demanded, among other things, that Hammonds not be supervised by
Jones or be required to work with Jones without a third-party present, that the
performance-improvement plans be removed from Hammonds’s personnel file, and that
the school self-report Jones to the DOE for his actions and unprofessionalism. The letter
stated that if the school did not report Jones to the DOE, Hammonds “will have to report
Mr. Jones himself and point out that the Board and superintendent failed and refused to
[self-report.]”
{¶ 11} Superintendent Otten responded with a letter of his own, dated December
22, 2016. As to the demand that the school report Jones to the DOE, Otten refused, in no
uncertain terms: “Eighth, the District does not agree that Mr. Jones should be reported to
the Ohio Department of Education and will not do so.” Hammonds’s attorney, in a letter
dated January 20, 2017, told Otten, “As to your eighth point we accept that as your opinion
and final determination as to your actions.” There is no mention of Hammonds filing or
planning to file a complaint with the DOE.
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{¶ 12} Nevertheless, sometime before the end of February 2017, Hammonds did
file a formal complaint against Jones with the DOE. (The DOE acknowledged receipt of
Hammonds’s complaint in a letter dated February 27, 2017.) Hammonds did not send the
complaint to anyone at the school, and no one ever talked to him about the complaint.
Neither Schwieterman nor anyone else in the school district was contacted about the DOE
complaint. Indeed, Schwieterman, Otten, and Jones did not become aware of the
complaint until at least October.
{¶ 13} By the end of the 2016-2017 school year, Jones had concluded that
Hammonds was ineffective as an assistant principal. Both he and Assistant
Superintendent Enix recommended to Superintendent Otten that Hammonds’s
administrative contract not be renewed. Otten, in turn, recommended to the Board that it
not renew Hammonds’s administrative contract. The Board adopted a resolution not to
renew the contract when the contract for the 2016-2017 school year expired. Hammonds
was given notice of the intent to not renew his administrative contract and was later sent
a letter notifying him of the Board’s decision not to renew his assistant-principal contract.
Hammonds returned to his former position as a teacher for the school.
{¶ 14} On June 16, 2020, Hammonds refiled a complaint in the Green County
Court of Common Pleas against the Beavercreek City School District Board of Education,
Paul Otten, Jeffrey Jones, and five school board members (individually).1 He asserted
claims of wrongful discharge in violation of public policy and wrongful discharge based on
age discrimination, R.C. 4112.14. The defendants moved for summary judgment. On April
1Hammonds first filed the complaint on October 20, 2017. That complaint was dismissed
without prejudice on June 17, 2019.
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21, 2021, the trial court granted summary judgment for the defendants and dismissed
Hammonds’s claims.
{¶ 15} Hammonds appealed.
II. Analysis
{¶ 16} The sole assignment of error alleges:
The Trial Court erred when it granted Appellee’s motion for summary
judgment since there were issues of material fact that should be determined
at trial on the merits.
In this assignment of error, Hammonds argues only that the appellees were not entitled
to summary judgment on his claim for wrongful discharge in violation of public policy.
{¶ 17} “Because this case was decided upon summary judgment, we review this
matter de novo, governed by the standard set forth in Civ.R. 56.” (Citation omitted.) Comer
v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Under Civ.R. 56(C),
summary judgment is proper if it is shown “(1) that there is no genuine issue as to any
material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3)
that reasonable minds can come to but one conclusion, and that conclusion is adverse to
the party against whom the motion for summary judgment is made, who is entitled to have
the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing
Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 18} “The employment-at-will doctrine, the rule that general or indefinite hiring is
terminable at the will of either party for any cause or no cause, is the traditional rule in
Ohio. Collins v. Rizkana, 73 Ohio St.3d 65, 67-68, 652 N.E.2d 653 (1995). The tort of
wrongful termination in violation of public policy, also known as a Greeley claim, is an
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exception to the employment-at-will doctrine.” House v. Iacovelli, 159 Ohio St.3d 466,
2020-Ohio-435, 152 N.E.3d 178, ¶ 11, citing Greeley v. Miami Valley Maintenance
Contractors, Inc., 49 Ohio St.3d 228, 234, 551 N.E.2d 981 (1990).
{¶ 19} To succeed on a Greeley claim, a plaintiff must establish four elements:
(1) that a clear public policy existed and was manifested either in a state or
federal constitution, statute or administrative regulation or in the common
law (“the clarity element”), (2) that dismissing employees under
circumstances like those involved in the plaintiff's dismissal would
jeopardize the public policy (“the jeopardy element”), (3) that the plaintiff's
dismissal was motivated by conduct related to the public policy (“the
causation element”), and (4) that the employer lacked an overriding
legitimate business justification for the dismissal (“the overriding-
justification element”).
Miracle v. Ohio Dept. of Veterans Servs., 157 Ohio St.3d 413, 2019-Ohio-3308, 137
N.E.3d 1110, ¶ 12; see Collins at 69-70. “The clarity and jeopardy elements involve
questions of law; the causation and overriding-justification elements involve questions of
fact.” Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d
938, ¶ 9, citing Collins at 70. In this appeal it is the factual elements—causation and
overriding justification—that are before us.
Hammonds’s was not an at-will employee
{¶ 20} The Board’s first argument is that Hammonds could not bring an action for
wrongful discharge in violation of public policy, because he was not an at-will employee.
We conclude that the Board is right.
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{¶ 21} The Ohio Supreme Court has held that “[i]n order for an employee to bring
a cause of action pursuant to Greeley v. Miami Valley Maintenance Contractors, Inc. that
employee must have been an employee at will.” Haynes v. Zoological Soc. of Cincinnati,
73 Ohio St.3d 254, 652 N.E.2d 948 (1995), syllabus. Hammonds plainly was not an at-
will employee. The terms and conditions of his employment were governed by an
administrative contract. Compare id. at 258 (holding that a union member was not an
employee at will, because “the terms of her employment relationship were governed by a
collective bargaining agreement”). Hammonds was “outside the class of employees for
whom Greeley provides protection.” Id.
{¶ 22} Hammonds also could not bring this cause of action because he was not
discharged from his employment. Courts have held that the non-renewal of a contract is
not equivalent to discharge. E.g., Cameron v. Bd. of Edn. of Hillsboro, Ohio, City School
Dist., 795 F.Supp. 228, 239 (S.D.Ohio 1991) (holding that an employee did not have a
claim for wrongful discharge, because defendants did not discharge her but rather did not
renew her contract), citing 39 Ohio Jurisprudence 3d, Employment Relations, Section 47
(1991) (describing wrongful discharge as a cause of action an employee may pursue if
she has been discharged before the end of her contract); Sexstella-Wright v. Sandusky
City School Dist., Case No. 1:05cv1136, 2006 WL 3526791, *12 (N.D.Ohio 2006), citing
Cameron (“Nor can an employee whose terms and conditions of employment are
governed by contract bring a public policy wrongful termination claim because non-
renewal is not termination.”); Doerter v. Bluffton College, 98 Ohio App.3d 95, 98, 647
N.E.2d 876 (3d Dist.1994) (finding that “plaintiff was never actually discharged” where the
plaintiff was employed under a one-year contract and was not terminated during the term
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of that contract; defendant exercised its right not to renew the contract for an additional
one-year term). As one court has said, “It would contradict the plain meaning of the
language to equate ‘wrongful discharge’ with ‘nonrenewal.’ ” Cameron at 239.
{¶ 23} Despite the fact that Hammonds was precluded from making a public policy
claim, we recognize that the Board did not make either of these arguments in the trial
court. Consequently we do not decide this appeal on either issue. See State v.
Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10, citing Goldfuss
v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997) (“A first principle of
appellate jurisdiction is that a party ordinarily may not present an argument on appeal that
it failed to raise below.”). Instead, we assume at-will employment and discharge and
consider the two factual elements of Hammonds’s Greeley claim—causation and
overriding justification.
Causation
{¶ 24} To establish causation, Hammonds must prove that the non-renewal of his
contract was retaliatory. See Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d
938, at ¶ 10. “The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient evidence
of causality to establish a prima facie case uniformly hold that the temporal proximity must
be ‘very close.’ ” Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508,
149 L.Ed.2d 509 (2001), quoting O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253
(10th Cir.2001).
{¶ 25} Hammonds contends that it was his filing of the complaint with the DOE that
led to the Board’s decision not to renew his administrative contract. Three months
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separated Hammonds’s filing of the DOE complaint and the Board’s decision not to renew
his contract, a temporal proximity that we would not describe as “very close.” More
important, though, is the utter lack of evidence showing any causal connection, let alone
retaliation, between the DOE complaint and the Board’s decision. The evidence shows
that no one at the school was even aware that Hammonds had filed the complaint with
the DOE until after he filed this lawsuit. Schwieterman averred that neither he nor anyone
else in the school district was contacted about the DOE complaint and that no one was
aware that the complaint had been filed until Hammonds filed his lawsuit. In answers to
interrogatories, Otten and the Board stated that they had no knowledge of the DOE
complaint until the lawsuit was filed. Likewise, Jones stated in his answers to
interrogatories that he was unaware that Hammonds had filed the DOE complaint.
{¶ 26} Hammonds contends that it was reasonable to infer retaliation from the
extremely acrimonious relationship between him and Jones. Hammonds states that, upon
learning of the complaint, Jones would have been motivated not to renew Hammonds’s
contract. But the relationship had deteriorated well before the filing of the DOE complaint.
Hammonds was already communicating to the Superintendent through a lawyer.
Moreover there was no evidence that Jones did not want to renew Hammonds’s contract
because of the DOE complaint. Given the evidence and circumstances, we find it was not
a reasonable inference to conclude that Hammond’s contract was not renewed because
of his complaint to the DOE.
{¶ 27} Hammonds did not provide any evidence showing that it was because he
filed the DOE complaint that the Board decided not to renew his contract. The evidence
did show that Hammonds threatened to file a complaint with the DOE, but there was
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simply no evidence that anyone knew that he had actually done so before the Board’s
non-renewal decision. In sum, there was no genuine issue as to whether the Board
decided not to renew Hammonds’s contract in retaliation for his filing the complaint
against Jones.
Overriding justification
{¶ 28} To establish the overriding-justification element, Hammonds had to prove
that the Board lacked an overriding legitimate business justification for not renewing his
administrative contract. See Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d
938, at ¶ 10.
{¶ 29} According to Otten and the Board’s answer to an interrogatory, “his
[Hammonds’s] administrator’s contract was not renewed based [on] evaluations of him as
an assistant principal.” The evidence was full of legitimate reasons for not renewing
Hammonds’s contract. Hammonds was placed on multiple growth and improvement plans
during his two year tenure as an assistant principal; he was found to be ineffective and
unprofessional on multiple occasions; he undermined his supervisors and their decisions,
and he undermined Board policy; he failed to follow directives; he failed to maintain
confidential information; he was written up for making derogatory remarks about Jones
and persisted in the conduct after being reprimanded for it; and multiple staff members
and one parent made complaints about Hammonds’s lack of professionalism. There was
no evidence from which one could reasonably find that the Board’s articulated reason for
not renewing Hammonds’s contract was pretextual.
{¶ 30} Likely because the evidence showed so many legitimate reasons for not
renewing his contract, Hammonds does not really address this element in his brief. He
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argues instead that there was an issue of fact as to whether the school district knew about
the DOE complaint beforehand. Although we disagree with that argument, even if the
evidence did show that district employees knew of the complaint, Hammonds still failed
to show a causal connection between that knowledge and the decision not to renew his
contract.
{¶ 31} There was no genuine issue as to whether the Board lacked an overriding
legitimate business justification for not renewing Hammonds’s administrative contract.
III. Conclusion
{¶ 32} The trial court properly entered summary judgment for the Board.
Hammonds’s sole assignment of error is overruled. The trial court’s judgment is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
David M. Duwel
Bernard W. Wharton
Hon. Adolfo A. Tornichio