49068 | Ohio Ct. App. | Jul 15, 1985
Lead Opinion
This is an appeal by plaintiff-appellant, Ann Nadia Tye, from an order of the trial court granting summary judgment in favor of defendants-appellees, Board of Education of Polaris Joint Vocational School District and Richard C. Mueller.1
Appellant was employed as a guidance counsellor by appellee board of education between the 1979-1980 and 1981-1982 school years. She was employed pursuant to a series of one-year limited teaching contracts.
On April 12, 1982, appellant received notice of intent from appellee Mueller, superintendent, to "non-renew" her contract. On April 13, 1982, the board accepted the recommendation of the superintendent and voted to non-renew appellant's contract. On April 14, 1982, appellant received notice that she would be non-renewed for the 1982-1983 school year.
On July 12, 1982, appellant brought suit to compel arbitration. Appellant alleged that she was non-renewed as a result of a reduction in force of school personnel resulting from cuts in state aid and decreased enrollment. Under an existing collective bargaining agreement between the board and its teachers, a non-renewal of a limited teaching contract to effect a reduction in force would entitle the teacher to certain rights. These rights include that such non-renewals be made in reverse seniority order and that non-renewed teachers receive recall rights for a period of two years. Appellant alleged that she was not afforded these rights. *64
Appellees responded with a Civ. R. 12(B)(6) motion on September 3, 1982. They alleged that appellant was not non-renewed because of a reduction in force. Appellees alleged that appellant was non-renewed pursuant to R.C.
"A teacher eligible for continuing contract status employed under an additional limited contract * * * is, at the expiration of such limited contract, deemed re-employed under a continuing contract * * * unless the employing board, acting on the superintendent's recommendation as to whether or not the teacher should be re-employed, gives such teacher written notice of its intention not to re-employ him [or her] on or before the thirtieth day of April. * * *" (Emphasis added.)
Appellees argue that, pursuant to R.C.
On December 14, 1982, the trial court granted appellees' motion to dismiss. On appeal, this court reversed. We stated:
"This appeal raises a vital issue for limited contract teachers. If a teacher's contract is non-renewed pursuant to R.C.
"The Board has maintained at all times appellant was non-renewed pursuant to it's [sic] unassailable authority under R.C.
"Tye claims her non-renewal was an RIF determination, and therefore under Article 11 of the Collective Bargaining Agreement, she was entitled to be placed on the recall list. She specifically denies her non-renewal was governed by Article 9, Section 2 of the agreement. Her exhibits include a press release from the Board stating a[n] RIF was necessary, and that people in her section would be affected.
"Tye claims she is entitled to certain guarantees provided in this agreement upon the Board's notice of non-renewal, and that these guarantees are in addition to the requirements of R.C.
"`Contractually created procedural requirements relating to the nonrenewal of teachers' limited employment contracts, contained in collective bargaining agreements and arrived at through open negotiation, are enforceable so long as the procedures do not directly conflict with R.C.
"The Struthers court held the procedural safeguards in R.C.
"For a court to dismiss a complaint on a Civ. Rule 12(B)(6) motion, it must appear beyond a doubt from the complaint that the plaintiff can prove no set of facts entitling plaintiff to recovery. See O'Brien v. University Community Tenants Union
(1975),
Thus, this court concluded that if appellant could prove that areduction in force was the reason for her non-renewal, she wouldbe entitled to the relief sought.
On February 22, 1984, upon remand to the trial court, appellees moved for summary judgment. On March 13, 1984, appellant opposed the summary judgment motion with a brief and other evidentiary materials. A hearing on the motion was held on August 1, 1984, and on August 15, 1984 the trial court granted appellees' motion for summary judgment. Appellant appeals and assigns three errors for review.
"First Assignment of Error:
"The trial court erroneously disregarded the mandate issued by this court in Tye v. Board of Education of the Polaris JointVocational School District, case No. 46340 (Cuy. App. October 27, 1983) and exceeded the scope of its authority on remand when entering summary judgment in the appellees' favor.
"Second Assignment of Error:
"The trial court erroneously awarded summary judgment in appellees' favor where genuine issues of material fact remained in dispute about the arbitrability of appellant's grievance.
"Third Assignment of Error:
"The trial court erroneously awarded summary judgment against appellant because the underlying grievance `on its face' alleged an arbitrable violation of the collective bargaining agreement."
Each of appellant's assigned errors argue the propriety of awarding appellees a summary judgment; therefore, the assigned errors will be considered together.
Civ. R. 56(C) governing summary judgment provides that "[s]ummary judgment shall be rendered * * * if the pleading, depositions, * * * affidavits, transcripts of evidence * * * showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law." (Emphasis added.) It further provides, "[a] summary judgmentshall not be rendered unless it appears from such evidence orstipulation and only therefrom, that reasonable minds can come tobut one conclusion and that conclusion is adverse to the partyagainst whom the motion for summary judgment is made, such partybeing entitled to have the *66 evidence or stipulation construed most strongly in his favor." (Emphasis added.)
In an affidavit attached to the motion for summary judgment, appellee Mueller asserted that he recommended to the board that appellant's contract be non-renewed. He also asserted that appellant was given proper notice of this fact. The treasurer of the school district, Donald McElrath, also submitted an affidavit wherein he asserted that the board took action to non-renew appellant's limited contract pursuant to R.C.
Appellant also submitted affidavits to support her brief in opposition to the motion for summary judgment. Appellant asserted that she discussed her non-renewal notification with two school administrators3 who both informed her that her contract was being non-renewed because the school district was required to reduce its staff due to the reduced funding for the school district from the state of Ohio. Appellant also attached a "press release" from the school district:
"POLARIS APPROPRIATIONS REDUCED $646,297
"In a special board meeting on March 24, 1982, the Polaris Joint Vocational School District Board of Education approved the 1982 budget appropriations in the amount of $4,833,800.
"The reduction in the general fund budget from 1981 is $646,297as a result of cuts in State aide [sic] and decreased enrollment.This will result in major reductions in general fund programs andin staff for the remainder of this school year and for the beginning of the 1982-83 school year. Program reductions in September for the 1982-83 school year will involve the dropping of some programs and combining programs to include junior[s] and seniors in one class.
"* * *
"Anticipated staff reductions include 2.5 academic teachers, ten vocational instructors, two counsellors4 and one library instructor." (Emphasis and footnote added.)
Appellees argue that appellant has created no genuine issue of material fact through her affidavits and other material submitted with the brief in opposition to the summary judgment motion. Appellees also argue that their evidentiary materials conclusively demonstrate that appellant was non-renewed pursuant to its proper authority under R.C.
We disagree. The statement in the prior opinion of this court involving this matter is worth repeating: "If Tye can prove, as she alleges, a * * * [reduction in force][,] she would be entitled to the *67
relief sought." Tye, supra, at 4. Appellant has attempted to prove that she was removed because of economic conditions through her evidentiary materials. This court is persuaded that these materials create a genuine issue of material fact. Appellees' materials merely assert that appellant was non-renewed pursuant to its proper authority in R.C.
Judgment reversed and cause remanded.
PATTON, J., concurs.
KRUPANSKY, J., dissents.
Although this "press release" is not a document contemplated by Civ. R. 56(C), the record indicates that appellees did not object to its use, thus, the trial court could properly consider it.Rodger v. McDonald's Restaurants of Ohio (1982),
Dissenting Opinion
I do not comment on the previous decision rendered by the visiting panel sitting on this court on October 27, 1983. I do, however, feel it is my duty to respectfully dissent from the majority opinion since I am a member of this panel.
Civ. R. 56(C) sets forth the standard for granting a summary judgment; it provides in pertinent part:
"The adverse party prior to the day of hearing may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence orstipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor." (Emphasis added.)
The purposes of summary judgment are: the elimination of frivolous lawsuits and the clogging of the courts' dockets by the expeditious disposal of lawsuits which do not present substantial questions for determination at trial. See Washington County FarmAssn. v. B. O. (1972),
Two of the ways by which the school board can relieve an individual from employment are: (1) non-renewal pursuant to Article 9.2 of the parties' collective bargaining agreement and R.C.
The appellees provided substantial evidence in the documents attached to their motion for summary judgment to establish appellant was non-renewed in accordance with R.C.
"A teacher eligible for continuing contract status employed under an additional limited contract for not to exceed two years pursuant to written notice from the superintendent of his intention to make such recommendation, is, at the *68 expiration of such limited contract, deemed re-employed under a continuing contract at the same salary plus any increment granted by the salary schedule, unless the employing board, acting on thesuperintendent's recommendation as to whether or not the teachershould be re-employed, gives such teacher written notice of itsintention not to re-employ him on or before the thirtieth day ofApril." (Emphasis added.)
In the case sub judice the school board acted in accordance with the provisions set forth in R.C.
Appellant has continually maintained she was non-renewed under Article 11 due to RIF5 and, thus, is entitled to arbitrate her grievance. However, appellant has failed to raise a genuine issue of material fact that she was RIF in her brief in opposition to appellees' motion for summary judgment and the attached documents. Appellant attached three documents to her brief in opposition to the motion for summary judgment: viz., (1) a news release; (2) a memo from the civil service commission; and (3) appellant's own affidavit stating what Dr. Charlette Nealeigh and Kenneth Collier allegedly told her concerning the non-renewal of her contract.
The court can consider neither the (1) press release nor (2) the memo from the civil service commission since they fail to comply with those items listed in Civ. R. 56(C), i.e., the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, and only these items can be considered by the court in ruling on a motion for summary judgment.
Appellant's affidavit is a self-serving declaration which would be inadmissible evidence at trial. Banick v. Indus. Comm. (1941),
Thus, when we consider all the materials the trial court is permitted to consider in the case sub judice under Civ. R. 56(C), it is clear appellant cannot prove she was RIF. Even if appellant could establish an RIF occurred at the same time she was non-renewed appellant could not prove she was part of that RIF. In its journal entry the trial court stated:
"Tye does not challenge the non-renewal of her limited contract in this action. Rather, Plaintiff challenges the Board's failure to place her on a recall list as part of a planned reduction in force."
Appellant has defied the very roots of the board's statutory authority, but has failed to override its actions by attaching any reliable, official, competent or authoritative material of her own to raise a material issue of fact. Therefore, appellees are entitled to a summary judgment; there is no issue of material fact in the case sub judice and there is no way appellant can possibly prove what the majority of this panel contends.