[Cite as Spitulski v. Toledo School Dist. Bd. of Edn., 2018-Ohio-3984.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Ronald P. Spitulski                                          Court of Appeals No. L-17-1300

        Appellant                                            Trial Court No. CI0201501111

v.

Board of Education of the Toledo
City School District, et al. and
Heather Baker, et al.                                        DECISION AND JUDGMENT

        Appellees                                            Decided: September 28, 2018

                                                   *****

        Dennis D. Grant, for appellant.

        Roman Arce, David Rodman Cooper and Shawn Nelson,
        for appellees.

                                                   *****
        MAYLE, P.J.

        {¶ 1} Plaintiff-appellant, Ronald Spitulski, appeals judgments in favor of the

Toledo Public Schools Board of Education, James Gault, and Heather Baker

(collectively, “the Board”), rendered by the Lucas County Court of Common Pleas on
May 28, 2015, September 10, 2015, February 3, 2016, October 3, 2016, August 23, 2017,

September 13, 2017, and November 13, 2017. For the reasons that follow, we affirm the

trial court’s judgments.

                                      I. Background

       {¶ 2} This is the second time that this action has been before this court. Our

decision in Spitulski v. Bd. of Edn. of the Toledo City School Dist., 2017-Ohio-2692, 90

N.E.3d 287, ¶ 8 (6th Dist.),1 includes a detailed recitation of the factual background of

this case, which, in large part, we repeat here.

       {¶ 3} Sixty-seven-year-old Ronald Spitulski was employed by the Board of

Education of the Toledo City School District (“the District”) for nearly 25 years, most

recently as a supervisor of the pupil personnel center. He was responsible for conducting

suspension appeal and expulsion hearings. He reported to Heather Baker, the director of

pupil placement and child adjustment services, and Baker reported to James Gault, then

the chief academic officer.

                  A. Issues arise with Spitulski’s work performance.

       {¶ 4} Between November of 2012, and May of 2013, Baker received complaints

that Spitulski had acted unprofessionally in his treatment of a non-attorney “parent

advocate,” several parents, and a character witness. In addition to this, on May 8, 2013,




1
 We first reviewed this case with respect to Gault and Baker’s claims of statutory
immunity.




2.
Spitulski admitted to Baker that he lost almost a year’s worth of digitally-recorded

hearings that he conducted during the 2012-2013 school year.

                     B. The CBA outlines the disciplinary process.

       {¶ 5} Spitulski was an administrative employee of the Board, and as such, was a

member of the Toledo Association of Administrative Personnel (“TAAP”). TAAP and

the Board are parties to a collective bargaining agreement (“CBA”). The CBA provides

procedures for addressing disciplinary concerns. Those procedures call for progressive

discipline where appropriate, and they set forth a three-step disciplinary process: (1) an

informal level, (2) a continuing disciplinary investigation (“CDI”), and (3) a CDI report.

       {¶ 6} Under step one, an administrator who wishes to informally discuss a matter

that may lead to a CDI must consult with her supervisor and notify the employee and

TAAP in writing on a prescribed form known as “a buff sheet.” The buff sheet must

describe (1) the conduct in question, (2) the date, time, and place of the meeting

requested, and (3) the right of the employee to have a TAAP representative present.

Under the CBA, every effort must be made to resolve matters at the informal level. If the

matter is resolved, a record of the meeting and the prescribed resolution must be placed in

the employee’s personnel file.

       {¶ 7} If the matter is not resolved at step one, or if it is a “serious matter,” step two

provides for a CDI, also referred to as “a hearing on the record.” The supervising

administrator or TAAP may submit a written request to the personnel office for a CDI

within 10 days from knowledge of the serious matter, or within five working days from




3.
the date of the informal meeting. A TAAP representative shall be permitted to be present

for a CDI.

       {¶ 8} Finally, under step three, a CDI report is generated. A designated human

resources representative may hear testimony, examine witnesses, and review all relevant

material pertaining to the CDI. He or she must then issue a report to the superintendent

(or his designee), who must render a decision or recommend action to the Board. A copy

of the superintendent or Board’s decision must be sent to all parties concerned and placed

in the employee’s file. The employee may submit a written response which shall be

attached to the decision. The employee or TAAP may then appeal from the decision. If

the decision is to terminate the employee’s contract, such termination must comply with

Article VII, section E of the CBA. This provision of the CBA requires compliance with

the Ohio Revised Code, including R.C. 3319.16, relating to the termination of a contract

by a board of education.

       {¶ 9} The CBA makes clear that an employee whose conduct is the subject of

investigation is entitled to (1) timely and adequate notice of the conduct complained of on

a prescribed form, (2) reasonable time to prepare a response, (3) representation by the

TAAP; and (4) other reasonable procedures affording due process. If an investigation is

not performed in accordance with the procedures set forth in the CBA, it cannot be

considered part of the employee’s personnel file, and neither the fact of the investigation

nor statements made during the investigation may be used in any subsequent Board

proceeding. The CBA also specifies that while progressive discipline must be followed




4.
where appropriate—providing written warnings and suspensions in lieu of termination—

a written warning is not always required and immediate termination may be appropriate

in cases of serious misconduct.

                      C. Baker initiates the disciplinary process.

       {¶ 10} On May 23, 2013, Baker emailed Gault requesting a hearing on the record

for Spitulski. She cited the following reasons for requesting the hearing: (1) failure to

perform job duties, (2) failure to maintain professional relationships and behavior with

parents and students, and (3) insubordination. On May 31, 2013, Gault contacted the

District’s chief human resources officer to request a hearing. He cited the following

reasons for his request: (1) violation of licensure code of professional conduct for Ohio

educators, (2) violation of board policy section G: Personnel; Title; Staff-Student

Relations, (3) failure to perform job duties, and (4) insubordination. He further

elaborated as to the conduct giving rise to his request as follows:

              Used inappropriate language during a suspension hearing for a

       student.

              Acted in a very unprofessional way towards parents in hearings and

       while scheduling hearings. Several parents have refused to allow him to

       hear their cases because they felt he was rude, unprofessional, and unfair.

       These cases had to be heard by an alternate hearing officer.

              He has failed to maintain accurate hearing records or hearing

       dispositions. Parent and school personnel have verified that one particular




5.
         disposition was incorrect and was not what was presented in the hearing.

         When questioned about it, he refused to adjust it, stating it was correct.

                Upon request, Ron was unable to supply any audio hearing tapes

         from any hearings held in his office this school year up until the month of

         April. He states he is unsure of what happened to them. This is in violation

         of Ohio Revised Code 9.69 [sic].2

         {¶ 11} A hearing on the record took place on August 19, 2013. Gault presented

the case to the District’s hearing officer, Annmarie Heldt, and Baker and Spitulski

testified. A union representative appeared on Spitulski’s behalf. On September 9, 2013,

Heldt issued a written recommendation to the Board, recommending that Spitulski be

terminated. The District’s chief human resource officer, Cheryl Spieldenner,

recommended that Heldt’s recommendation be upheld.

                    D. The Board terminates Spitulski’s employment.

         {¶ 12} On October 4, 2013, the District’s treasurer provided written notice under

R.C. 3319.16 of its intent to terminate Spitulski’s employment. Spitulski submitted a

written request for arbitration to be conducted by an independent referee, and the Board

invoked the hearing procedures provided in R.C. 3319.16. The Ohio Department of

Education appointed a neutral referee, attorney James Gucker. On May 5 and 6, 2014,

Gucker considered evidence and heard testimony from a number of witnesses. On



2
    The Ohio Revised Code does not contain a section 9.69.




6.
August 14, 2014, he issued a recommendation to the Board concluding that “good and

just cause” did not exist to terminate Spitulski’s employment agreement.

Notwithstanding the referee’s recommendation, the Board passed a resolution on

December 16, 2014, terminating Spitulski’s employment contract. The contract

otherwise would have expired on July 31, 2016.

                               E. Spitulski seeks recourse.

       {¶ 13} Spitulski dually filed a charge of discrimination with the Ohio Civil Rights

Commission (“OCRC”) and the Equal Employment Opportunity Commission (“EEOC”)

in September of 2013, alleging gender, disability, and age discrimination. He later

sought permission to withdraw the charge so he could pursue the matter in the common

pleas court. The OCRC granted his request on July 17, 2014. At Spitulski’s request, the

EEOC issued a notice of right to sue dated October 14, 2014. On January 13, 2015,

following the Board’s termination of his employment contract, Spitulski filed a complaint

against the Board, Gault, and Baker alleging eight claims: (1) termination without good

and just cause in violation of R.C. 3319.16; (2) tortious violation of rights; (3) age

discrimination; (4) disability discrimination; (5) retaliation in violation of R.C.

4112.02(I); (6) intentional infliction of emotional distress (“IIED”); (7) false light

invasion of privacy; and (8) intentional interference with business relationship.

       {¶ 14} Through seven different orders, the trial court disposed of all of Spitulski’s

claims:




7.
                May 29, 2015: dismissed counts two and eight;

                September 10, 2015: dismissed count one;

                February 3, 2016: dismissed Spitulski’s claim for punitive damages

                  and attorney’s fees;

                October 3, 2016: dismissed counts four and seven;

                August 23, 2017: dismissed count six;

                September 13, 2017: dismissed count three; and

                November 13, 2017: dismissed count five.

     {¶ 15} Spitulski appealed and assigns the following errors for our review:

           A. The Trial Court Committed Prejudicial Error by Creating a Fact

     to Justify Dismissal of Plaintiff’s Age Discrimination Claim.

           B. The Trial Court Committed Prejudicial Error by Dismissing

     Plaintiff’s Count Two, Improperly Inferring that He Had Received a Fair

     Administrative Hearing.

           C. The Trial Court Committed Prejudicial Error in Dismissing

     Plaintiff’s Disability Discrimination Claim by Holding that Pretext Could

     Not be Proven by Comparing Plaintiff’s Discharge with the Lesser

     Discipline Received by Non-class Members Who had Committed

     Unprofessional Conduct.




8.
                 D. The Trial Court Committed Prejudicial Error by Applying

       Inapplicable Private Sector Contract Preemption Law to Dismiss Plaintiff’s

       Public Sector Intentional Infliction of Emotional Distress Claim.

                 E. The Trial Court Committed Prejudicial Error by Dismissing

       Plaintiff’s Retaliation Claim Based on Dicta in a Case that Supposedly

       Rejected the “Cat’s Paw” Theory of Liability.

                 F. The Trial Court Committed Prejudicial Error by Assessing the

       Board’s Resolution, rather than the Referee’s Findings of Fact, and then

       Applying an Incorrect Evidentiary Standard in that Assessment.

                 G. The Trial Court Committed Prejudicial Error by Dismissing

       Plaintiff’s Claims for Punitive Damages and Attorney Fees Under

       Abrogated Judicially-created Governmental Immunity Law.

                                   II. Law and Analysis

       {¶ 16} In his seven assignments of error, Spitulski challenges the trial court’s

dismissal of Counts 1 through 6 of his complaint, as well as the court’s dismissal of his

demand for punitive damages and attorney fees. We address each of his assignments of

error in turn.

                   A. Dismissal of Spitulski’s Age Discrimination Claim.

       {¶ 17} In Count 3 of Spitulski’s complaint, he claimed that he was unlawfully

discharged from his employment on the basis of his age. He alleged that Baker told him

that “they’re asking me when you are going to retire,” and told him that the District




9.
wanted him discharged because “you have too much gray hair.” He also contended that

on September 13, 2013, Spieldenner called him and the TAAP president into her office,

at which point she attempted to coerce him into signing “an unlawful retirement

agreement.”

       {¶ 18} The Board moved the court under Civ.R. 12(B)(1) to dismiss Spitulski’s

claim for age discrimination for lack of subject-matter jurisdiction. In an order dated

September 13, 2017, the trial court granted the Board’s motion. In his first assignment of

error (Error “A”), Spitulski claims that the trial court erred in granting the Board’s

motion because (1) it “creat[ed] a fact to justify dismissal” of his claim, and (2) the Board

failed to assert lack of subject-matter jurisdiction as an affirmative defense, thereby

waiving the defense.

       {¶ 19} “Civ.R. 12(B)(1) provides for the dismissal of a complaint where the trial

court lacks jurisdiction over the subject matter of the litigation.” United States Bank

Natl. Assn. v. Perdeau, 6th Dist. Lucas No. L-13-1226, 2014-Ohio-5818, ¶ 9. “The

standard of review for dismissal under Civ.R. 12(B)(1) is ‘whether any cause of action

cognizable by the forum has been raised in the complaint.’” Id., quoting State ex rel.

Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). We review a Civ.R.

12(B)(1) decision de novo, employing the same standard as the trial court. Id.

       {¶ 20} The trial court held that it lacked jurisdiction to hear Spitulski’s age

discrimination claim because under R.C. 4112.08, he was required to elect between

pursuing a charge with the OCRC or instituting litigation. It held that because Spitulski




10.
elected to pursue a charge with OCRC—and notwithstanding the fact that he later

withdrew that charge—the court lacked jurisdiction over his age-discrimination claim

based on the same alleged conduct.

       {¶ 21} In Ohio, a plaintiff who claims to have been subjected to age-based

employment discrimination may pursue either (1) a judicial remedy, by filing a civil

action in the common pleas court under R.C. 4112.14 or 4112.02(L), or (2) an

administrative remedy, by filing a charge with the OCRC under R.C. 4112.05(B)(1).

Vinson v. Diamond Triumph Auto Glass, Inc., 149 Ohio App.3d 605, 2002-Ohio-5596,

778 N.E.2d 149, ¶ 8 (2d Dist.). Arguably, R.C. 4112.99 provides an additional basis for

seeking a judicial remedy for age-based discrimination, however, the Ohio Supreme

Court held in Bellian v. Bicron Corp., 69 Ohio St.3d 517, 519, 634 N.E.2d 608 (1994),

that regardless of a litigant’s stated reliance on R.C. 4112.99 as the basis for his age-

discrimination claim, “he had to be referring to the form of age-based employment

discrimination identified by R.C. 4112.02.”

       {¶ 22} The Ohio Supreme Court recognized in Smith v. Friendship Village of

Dublin, 92 Ohio St.3d 503, 506, 751 N.E.2d 1010 (2001), that the General Assembly

specifically provided in R.C. 4112.08 that individuals alleging age discrimination must

choose between remedies. Id., citing R.C. 4112.08 (“[A]ny person filing a charge under

division (B)(1) of section 4112.05 of the Revised Code, with respect to the unlawful

discriminatory practices complained of, is barred from instituting a civil action under

section 4112.14 or division (L) of section 4112.02 of the Revised Code.”); see also




11.
Balent v. Natl. Revenue Corp., 93 Ohio App.3d 419, 423, 638 N.E.2d 1064 (10th

Dist.1994) (applying election of remedies to actions brought under R.C. 4112.99).

       {¶ 23} The mere act of filing an OCRC charge evinces an intent to elect the

administrative remedy set forth in R.C. 4112.05(B)(1). Vinson at ¶ 20. This is true even

where the administrative process is later abandoned or withdrawn. Id. Where a litigant

files an age-discrimination claim premised on the same unlawful discriminatory practices

that formed the basis for an earlier-filed OCRC charge, a trial court properly dismisses

the claim under Civ.R. 12(B)(1) for lack of subject-matter jurisdiction. Id. at ¶ 7.

       {¶ 24} The question here is whether Spitulski’s lawsuit and OCRC charge are

premised on the same unlawful discriminatory practices. Spitulski argues that they could

not have been because “the unlawful discriminatory practice” here was his termination,

and he was not terminated until December 16, 2014—which was 14 months after he first

initiated his September 20, 2013 OCRC charge. He claims that the conduct he

challenged in his charge was the Board’s attempt to coerce him into signing an agreement

to retire, whereas his lawsuit challenges the threats and retaliation to which he was

allegedly subjected, as well as his suspension and termination.

       {¶ 25} The Board argues, however, that Spitulski himself identified in his charge

that the “type of discrimination” he was alleging was his “discharge/termination.” It

insists that the alleged “unlawful discriminatory practices” complained of in his OCRC

charge are the same as those alleged in his complaint. It points to paragraph three of his

charge, and insists that the same facts are alleged in his complaint:




12.
             3. I believe I was disciplined/terminated based on my sex/male, age

      66 years, and disability because:

             a. I am a male person who was born on January 10, 1947;

             b. I am a person who has a disability (and respondent has record of

      my disability);

             c. I was issued a disciplinary hearing notice on August 12, 2013,

      and the hearing was held on August 19, 2013. I was accused of violations

      of the state code of professional conduct for educators, violation of policies

      regarding student-staff relations, failure to perform job duties, and

      insubordination. Respondent recommended I be terminated, despite the

      loss of tapes for hearings I conducted from September 2012 to April 2013

      due to a technical issue/computer glitch.

             d. Heather Baker (female, age 32) stated that she was told to tell

      him “they’re asking me when you’re going to retire” and “that you have too

      much gray hair.” She has also treated younger staff more favorably in

      assignments and compensation.

      {¶ 26} Spitulski claims that the Board cited selectively to the OCRC charge,

omitting paragraph 4, which states:

             4. I believe I was compelled to resign/accept retirement based on

      my sex/male, age 66 years, and disability because:

             ***




13.
              c. On September 13, 2013 I was given notice that I was to transfer

       to the adult education unit until November 1, 2013, when I would be forced

       to retire, and if I did not accept this agreement, I would be subjected to the

       decision (that is, be terminated). At this point, the stress of this notice led

       me to be hospitalized for my condition.

Spitulski contends that this paragraph makes clear that the unlawful practices alleged in

the charge are not the same as those alleged in his complaint.

       {¶ 27} We have reviewed both Spitulski’s OCRC charge and the complaint.

While Spitulski’s termination may not have been effected until December 16, 2014—

after the procedures set forth in the CBA and R.C. 3319.16 were exhausted and the Board

passed its resolution—Spitulski selected “discharge/termination” as the “type of

discrimination” challenged in his charge (as opposed to other options from which he

could choose, including “demotion” or “discipline”). He also specifically alleged in

paragraph 3 of his charge that he had been “disciplined/terminated” based on his age.

While we appreciate that termination had merely been “recommended” and not yet

“decided” at the time he filed his charge, designating his charge as such evidences that

Spitulski elected to challenge his discharge via the procedure set forth in R.C.

4112.05(B)(1). Having made this election, he was not free to file a lawsuit once the

“recommendation” became a “decision.”

       {¶ 28} We also observe that both the charge and the complaint allege age

discrimination premised on threats made by the district in an attempt “to coerce him into




14.
signing an unlawful retirement agreement.” (Paragraph 68 of Spitulski’s complaint, and

paragraph 4(c) of his charge.) In sum, the charge and the complaint allege the same

discriminatory practices.

         {¶ 29} Spitulski also argues that the Board waived the defense of election of

remedies by failing to plead it. The Board counters that Spitulski’s filing of an OCRC

charge deprived the common pleas court of subject-matter jurisdiction, and subject-

matter jurisdiction can never be waived and may be raised at any time.

         {¶ 30} Indeed, it is well-established that subject-matter jurisdiction may not be

waived. Shawnee Twp. v. Allen Cty. Budget Comm., 58 Ohio St.3d 14, 15, 567 N.E.2d

1007 (1991) (“[A] party cannot waive subject-matter jurisdiction regardless of procedural

sins.”). And Ohio courts have dismissed employees’ age-discrimination claims against

their employers for lack of subject-matter jurisdiction where the employee first elected to

file a claim with the OCRC under R.C. 4112.05(B)(1). Balent, 93 Ohio App.3d at 424,

638 N.E.2d 1064; Vinson, 149 Ohio App.3d 605, 2002-Ohio-5596, 778 N.E.2d 149, at

¶ 3, 25. It was, therefore, appropriate to dismiss Spitulski’s age-discrimination claim for

lack of subject-matter jurisdiction regardless of when the defense was first raised by the

Board.

         {¶ 31} Accordingly, we find Spitulski’s first assignment of error (Error “A”) not

well-taken.




15.
          B. Dismissal of Spitulski’s Claim for Tortious Violation of Rights.

       {¶ 32} At Spitulski’s refereed hearing, the Board presented evidence concerning

encounters between Spitulski and six individuals—parents, relatives, representatives, or

witnesses for suspended or expelled students—during which Spitulski allegedly exhibited

unprofessional behavior. Only one of those encounters was documented in a buff sheet.

The Board also presented evidence concerning Spitulski’s loss of hundreds of audio

recordings of hearings he conducted. Again, there was no buff sheet related to this

incident. Spitulski alleged in Count 2 of his complaint that the Board, “with conscious

disregard for [his] union contract due process rights,” breached and violated (1) the terms

of his supplemental employment rights as expressed in the CBA between the Board and

TAAP, and (2) his statutory right under R.C. §3319.16 to have the refereed hearing

confined to the grounds stated in the notice thereof * * *.” He termed this count of his

complaint a “tortious violation of rights.”

       {¶ 33} The Board moved to dismiss this claim under Civ.R. 12(B)(1) and (6). It

argued that Ohio law does not recognize a general cause of action for “tortious violation

of rights.” It also maintained that the rights that Spitulski claimed were violated were

rights created by R.C. 3319.16 and the CBA. It insisted, therefore, that R.C. 3319.16

provides the exclusive means by which to challenge the termination of his employment,

and that the State Employee Relations Board has exclusive jurisdiction over claims based

on rights created by the CBA.




16.
       {¶ 34} In a judgment dated May 28, 2015, the trial court dismissed Spitulski’s

claim for tortious violation of rights, holding that it lacked subject-matter jurisdiction

because “a common-law intentional tort claim cannot be based entirely on alleged

violations of rights created and/or procedures mandated by either R.C. 3319.16 or a

CBA.” In his second assignment of error (Error “B”), Spitulski argues that in reaching

this conclusion, the trial court “improperly inferr[ed] that he had received a fair

administrative hearing.”

       {¶ 35} The court determined that it lacked subject-matter jurisdiction over

Spitulski’s claim under Provens v. Stark Cty. Bd. of Mental Retardation & Dev.

Disabilities, 64 Ohio St.3d 252, 252, 594 N.E.2d 959 (1992), which held that “[p]ublic

employees do not have a private cause of action against their employer to redress alleged

violations by their employer of policies embodied in the Ohio Constitution when it is

determined that there are other reasonably satisfactory remedies provided by statutory

enactment and administrative process.” It concluded that Spitulski “cannot reasonably

deny that the legislative and regulatory schemes governing employment relationships and

the grievance procedures in [the CBA] provide him with sufficiently broad and inclusive

remedies for the Board’s alleged wrongs,” thus it lacked jurisdiction to consider his claim

for tortious violation of rights.

       {¶ 36} We find that the trial correctly dismissed Spitulski’s claim, but we reach

this conclusion for the more basic reason offered by the Board: a claim for “tortious

violation of rights” is not a recognized cause of action under Ohio law. To the extent that




17.
Spitulski alleges that the Board violated the disciplinary procedures and pre-hearing

notice requirements contained in the CBA or in R.C. 3319.16, these alleged violations are

properly considered in determining whether Spitulski was afforded a fair hearing (which

we review within Spitulski’s assignment of error “F” herein). Martin v. Bd. of Edn. of the

Bellevue City School Dist., 6th Dist. Huron No. H-12-002, 2013-Ohio-4420, ¶ 30 (“[I]f

substantial and credible evidence is presented to support the charges of the board, and a

fair administrative hearing is had, the common pleas court cannot substitute its judgment

for that of the Board.”); Kitchen v. Bd. of Edn., 12th Dist. Butler No. CA2006-09-234,

2007-Ohio-2846, ¶ 17, citing Bertolini v. Whitehall City School Dist. Bd. of Edn., 139

Ohio App.3d 595, 604, 744 N.E.2d 1245 (10th Dist.2000) (“‘[A]bsent a claim that the

school board violated a statutory right or constitutional obligation, a trial court may not

substitute its judgment for that of the board.’”). These alleged violations do not,

however, provide a basis for an independent cause of action.

       {¶ 37} We, therefore, find Spitulski’s second assignment of error (Error “B”) not

well-taken.

              C. Dismissal of Spitulski’s Disability Discrimination Claim.

       {¶ 38} Spitulski was on medical leave from March 1, 2007, to September 1, 2008,

after developing “a temporarily incapacitating disability” that allegedly resulted from the

stress he experienced while previously serving as the principal of two of the District’s

schools. Upon his return from leave, Spitulski was “relegated” to the position of




18.
supervisor of the pupil personnel center—rather than a principal position. It was agreed,

however, that his salary and “working days level” would be maintained for five years.

       {¶ 39} On September 13, 2013, after the chief human resources officer allegedly

attempted to coerce him to sign a retirement agreement, Spitulski “excused himself and

went to a nearby hospital’s emergency room.” He took FMLA leave until October 17,

2013, which he attributes to a “serious health condition brought on by the District’s

unwarranted conduct.”

       {¶ 40} In Count 4 of his complaint, Spitulski alleged that his termination and the

alleged attempt to coerce him into signing a retirement agreement were on account of his

disability and performed with knowledge that his five-year salary and working-day-level

protections were set to expire. He also alleged that he was “unlawfully suspended from

his professional work; wrongfully barred from Board property, school functions and

athletic events; and was humiliated in the eyes of his peers and the community.”

       {¶ 41} In a judgment dated October 3, 2016, the trial court granted summary

judgment to the Board on Spitulski’s claim for disability discrimination. Although the

court found that Spitulski had offered evidence that he suffered from a disability, it

concluded that Spitulski failed to offer evidence showing that the Board’s stated reason

for terminating him was pretext for disability discrimination. While it recognized that

Spitulski had asserted that he was punished more harshly than non-disabled employees,

the court found this assertion “unavailing.” In his third assignment of error (Error “C”),

Spitulski argues that the trial court erred by holding that pretext could not be proven by




19.
comparing Spitulski’s discharge to the lesser discipline received by non-class members

who had committed unprofessional conduct.

       {¶ 42} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

       (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., 54 Ohio St.2d 64, 67, 375 N.E.2d 46

       (1978), Civ.R. 56(C).

       {¶ 43} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.




20.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

       {¶ 44} To establish a prima facie case of disability discrimination under Ohio law,

a plaintiff must show: (1) that he was disabled; (2) that an adverse action was taken by

the employer, at least in part, because the person was disabled; and (3) that the person,

though disabled, can safely and substantially perform the essential functions of the job in

question. Hilbert v. Ohio DOT, 2017-Ohio-488, 84 N.E.3d 301, ¶ 48 (10th Dist.), citing

Taylor v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-385, 2011-Ohio-6060,

¶ 13. If the plaintiff establishes a prima facie case, the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id.,

citing Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174,

¶ 14, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36

L.Ed.2d 668 (1973). Once the employer does that, the burden shifts back to the plaintiff

to show “‘that the proffered reason was not the true reason’ for the adverse employment

action.” Id., quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).




21.
       {¶ 45} “A plaintiff may prove disability discrimination with either direct or

indirect evidence.” Anderson v. Ohio Bell Tel. Co., 8th Dist. Cuyahoga No. 104858,

2017-Ohio-7318, ¶ 47, citing Markham v. Earle M. Jorgensen Co., 138 Ohio App.3d

484, 495, 741 N.E.2d 618 (8th Dist.2000). To demonstrate that the proffered reason for

an adverse employment action was not the true reason—in other words, that it was

pretextual—“‘the plaintiff must show one of the following: (1) that the proffered reasons

had no basis in fact, (2) that the proffered reasons did not actually motivate the adverse

employment action, or (3) that the employer’s reasons were insufficient to motivate the

adverse employment action.’” Dunn v. GOJO Industries, 2017-Ohio-7230, 96 N.E.3d

870, ¶ 15 (9th Dist.), quoting Chiancone v. City of Akron, 9th Dist. Summit No. 26596,

2014-Ohio-1500, ¶ 18. The court in Dun explained:

              Under the first method, the plaintiff provides evidence that the

       alleged reason for [his or] her discharge is “factually false.” * * * Under the

       second method, the plaintiff “admit[s] the factual basis underlying the

       employer’s proffered explanation and further admit[s] that such conduct

       could motivate dismissal[, but] attempts to indict the credibility of [his or

       her] employer’s explanation by showing circumstances which tend to prove

       that an illegal motivation was more likely than that offered by the

       defendant.” * * * Under the third method, the plaintiff presents evidence

       “that similarly situated employees were treated differently.”




22.
Dunn at ¶ 15, citing Dukes v. Associated Materials, L.L.C., 9th Dist. Summit No. 27091,

2014-Ohio-4322, ¶ 21.

       {¶ 46} The Board claims that it terminated Spitulski’s employment because he

acted unprofessionally towards parents, witnesses, and a non-attorney parent advocate

who regularly appeared at disciplinary hearings; he failed to maintain accurate hearing

records, and he lost several months of audio-taped hearings—reasons that Spitulski

claims were pretextual. The Board also denies that Spitulski suffered from a disability,

that he was replaced by a non-disabled employee, or that he was treated less favorably

than other similarly-situated, non-disabled employees.

       {¶ 47} The trial court found that Spitulski presented evidence that he was

disabled—he suffered chest pain for which he was hospitalized—but held that he failed

to establish pretext. Specifically, the court acknowledged Spitulski’s claim that he was

treated more harshly than similarly-situated, non-disabled employees, but found his claim

“unavailing in that regard.”

       {¶ 48} Spitulski argued in his May 11, 2016 summary-judgment opposition that

other employees received less severe punishment for disciplinary infractions. He claimed

to have disciplinary information for 12 additional employees who he alleged were treated

more favorably. In other words, Spitulski sought to show that the Board’s reasons for

discharging him were insufficient given that similarly-situated employees were treated

differently.




23.
       {¶ 49} Spitulski argues here that “there was no question [that he] possessed valid

evidence that similarly-situated non-disabled employees had been disciplined less

severely than he,” and he claims that he “advised the court in intricate detail regarding his

evidence that four Board employees who had engaged in ‘unprofessional conduct’ had

not been discharged.” While this may be true, we find that Spitulski wholly failed to

provide proper summary-judgment evidence in support of these assertions as required by

Civ.R. 56(C) and (E).

       {¶ 50} Civ.R. 56(C) provides, in pertinent part:

              Summary judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, 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 or stipulation may be considered except as stated in this rule.

       {¶ 51} Civ.R. 56(E) provides:

              Supporting and opposing affidavits shall be made on personal

       knowledge, shall set forth such facts as would be admissible in evidence,

       and shall show affirmatively that the affiant is competent to testify to the

       matters stated in the affidavit. Sworn or certified copies of all papers or

       parts of papers referred to in an affidavit shall be attached to or served with

       the affidavit.




24.
       {¶ 52} To establish pretext based on an employer’s more favorable treatment of

similarly-situated, non-protected employees, the plaintiff must present evidence to show

that those non-protected employees are, in fact, “comparables” who are similarly-situated

in all relevant respects. Smith v. ExpressJet Airlines, Inc., 8th Dist. Cuyahoga No.

101336, 2015-Ohio-313, ¶ 20; Speller v. Toledo Pub. Schools Bd. of Edn., 2017-Ohio-

7994, 98 N.E.3d 1066, ¶ 26 (6th Dist.) Some factors to be considered in determining

whether comparables are similarly-situated are “whether the comparable employees have

the same supervisor, have been subject to the same standards, have engaged in the same

conduct, and have mitigating or distinguishing factors.” Greene v. City of Cincinnati, 1st

Dist. Hamilton No. C-070830, 2008-Ohio-4908, ¶ 18.

       {¶ 53} Here, Spitulski offered no documents and no affidavit from any witness

with personal knowledge who could attest to other employees’ discipline or to the facts

establishing that those employees were, in fact, similarly-situated. Spitulski presented

only the argument of counsel. Argument of counsel is not “evidence,” and is not

sufficient to defeat summary judgment. See Haase v. Mather Co., 6th Dist. Lucas No.

L-84-095, 1984 Ohio App. LEXIS 10649, *4-5 (Aug. 24, 1984) (reversing summary

judgment in favor of employee where only basis for key finding by court was written

argument of counsel, which is not evidence). Grove v. Fresh Mark, Inc., 156 Ohio

App.3d 620, 2004-Ohio-1728, 808 N.E.2d 416, ¶ 24 (7th Dist.) (“Passionate argument of

counsel is not evidence.”).




25.
         {¶ 54} Because Spitulski failed to present proper summary-judgment quality

evidence in support of his contention that other similarly-situated employees were treated

more favorably, we conclude that the trial court properly granted summary judgment in

favor of the Board as to Spitulski’s disability discrimination claim.

         {¶ 55} We find Spitulski’s third assignment of error (Error “C”) not well-taken.

      D. Dismissal of Spitulski’s Intentional Infliction of Emotional Distress Claim.

         {¶ 56} In Count 6 of his complaint, Spitulski alleged that the Board inflicted

emotional distress upon him when it “outrageously ignor[ed] his due process rights under

the [CBA],” “outrageously ignor[ed] his statutory rights at the R.C. 3319.16 hearing,”

“attempt[ed] to coerce him into signing an unlawful so-called retirement agreement,”

“threaten[ed] to convert his paid suspension to an unpaid suspension before the DOE

referee had issued any decision,” and “retaliat[ed] against him following his filing of

charges with the [OCRC].” The trial court granted summary judgment in favor of the

Board on this claim, holding that the claim was preempted by R.C. Chapter 4117 because

it arises from or depends on rights created by the CBA. In his fourth assignment of error

(Error “D”), Spitulski claims that this was error insofar as the trial court relied upon

“inapplicable private sector contract preemption law.”

         {¶ 57} Spitulski argues that the notion of “contract preemption” originates in

federal law developed under the National Labor Relations Act, which is explicitly

inapplicable to state political subdivisions. The Board argues that Ohio courts regularly




26.
apply R.C. Chapter 4117 preemption in cases involving public sector employees,

including public school districts.

       {¶ 58} “Ohio courts will dismiss IIED claims for lack of subject-matter

jurisdiction when the allegations underlying the claim are governed by a collective

bargaining agreement with a grievance procedure requiring final and binding arbitration.”

Marzano v. Struthers City School Dist. Bd. of Edn., 2017-Ohio-7768, 97 N.E.3d 1116,

¶ 17 (7th Dist.). Whether a common-law IIED claim is preempted by a CBA must be

determined on a case-by-case basis taking into account the factual conduct alleged in

support of the plaintiff’s claim. Id. at ¶ 20, citing Gudin v. W. Res. Psych. Hosp., 10th

Dist. Franklin No. 00AP-912, 2001 Ohio App. LEXIS 2634,*3 (June 14, 2001). An IIED

claim “predicated on allegedly wrongful acts directly related to the terms and conditions

of a plaintiff’s employment are generally preempted by the collective bargaining

agreement.” Gudin at *10. On the other hand, an IIED claim “premised upon personally

abusive conduct by the employer and its supervisors (or conduct that is not arguably

sanctioned by the labor contract),” is not preempted. Id. at *11.

       {¶ 59} While some courts have dismissed IIED claims under preemption

principles, we find here that Spitulski’s IIED claim must be dismissed for a more basic

reason that was also raised by the Board: his IIED claim fails as a matter of law. See id.

at *14 (finding that trial court erred in ruling that it lacked jurisdiction to consider

appellant’s IIED claim, but finding error not prejudicial because employee’s factual

allegations did not support IIED claim as a matter of law).




27.
        {¶ 60} To prevail on his claim for IIED, a plaintiff must prove (1) that the actor

intended to cause emotional distress or knew or should have known that his or her actions

would result in serious emotional distress to plaintiff; (2) that the actor’s conduct was so

“extreme and outrageous” as to go “beyond all possible bounds of decency” and was such

that it can be considered as “utterly intolerable in a civilized community”; (3) that the

conduct proximately caused psychic injury to the plaintiff; and (4) that the mental

anguish suffered by the plaintiff is serious and of a nature that no reasonable man could

be expected to endure it. Id. at *14-15. “Mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities” are insufficient to sustain an IIED claim.

McJennett v. Lake Waynoka Property Owners, 12th Dist. Brown No. CA2013-05-006,

2013-Ohio-5767, ¶ 33. Generally, the facts must be such that upon hearing a recitation of

those facts, an average member of the community would exclaim, “Outrageous!” Jones

v. Wheelersburg Local School Dist., 4th Dist. Scioto No. 12CA3513, 2013-Ohio-3685,

¶ 39.

        {¶ 61} The issue of whether conduct rises to the level of “extreme and outrageous”

is a question of law. Meminger v. Ohio State Univ., 10th Dist. Franklin No. 17AP-489,

2017-Ohio-9290, ¶ 14, citing Jones at ¶ 41. A number of courts have dismissed IIED

claims where the facts alleged were not sufficiently extreme and outrageous.

        {¶ 62} For example, in Shepard v. Griffin Services, Inc., 2d Dist. Montgomery No.

19032, 2002-Ohio-2283, ¶ 80-88, the court found the employer’s conduct not sufficiently

extreme and outrageous where it (1) purposefully discriminated against the employee




28.
based on her sex by treating her less favorably than other similarly-situated male

employees; (2) denied her the opportunity to upgrade her position and increase her pay

level; (3) maliciously and recklessly defamed her reputation and character by accusing

her of fraud, falsification of records, and deception, without properly ascertaining the

truth of the accusations; (4) published private and confidential information about the

employee’s counseling; (5) retaliated against the employee for making complaints of

discrimination; (6) terminated her employment based upon false accusations and an

incomplete investigation of events; and (7) breached its contract with the employee.

       {¶ 63} In Smith v. Lebanon City Schools, 12th Dist. No. CA99-02-024, 1999 Ohio

App. LEXIS 5241 (Nov. 8, 1999), the court concluded that the employer’s conduct was

not sufficiently extreme and outrageous where the employer (1) screamed and yelled at

the employee; (2) falsely accused the employee of causing problems in the treasurer’s

office and of stealing money; (3) repeatedly berated the employee in front of other

people; (4) called the employee “moronic and uneducated”; and (5) berated the employee

for being a woman.

       {¶ 64} In Branan v. Mac Tools, 10th Dist. No. 03AP-1096, 2004-Ohio-5574,

¶ 15-17, 30-31, the court concluded that the employer’s conduct was not sufficiently

extreme and outrageous where it (1) interrogated the employee for several hours, twice

refusing his requests to leave; (2) shouted and exhibited some degree of physical

intimidation; (3) repeatedly called the employee a liar and a corporate spy; (4) threatened

the employee by telling him that he would never get another job in the industry and




29.
would be unable to feed his newborn child; (4) went through the employee’s personal

belongings in his office and briefcase; and (5) observed the employee’s home and took

pictures of the home and vehicles parked in front of the home.

       {¶ 65} And in Jones, 4th Dist. Scioto No. 12CA3513, 2013-Ohio-3685, ¶ 49, the

court concluded that the employer’s conduct was not sufficiently extreme and outrageous

where it (1) failed to act in a professional manner when terminating her; (2) badgered her

for over four hours concerning allegedly misappropriated funds; (3) denied her request

for an attorney and sarcastically informed her that she did not need a lawyer if she was

innocent; (4) denied her request to permit her husband to be present during the four-hour

questioning; and (5) falsely accused her of theft.

       {¶ 66} Given the holdings in these cases, we find that the Board’s conduct in

allegedly ignoring Spitulski’s due process rights under the CBA and R.C. 3319.16,

attempting to coerce him into signing an unlawful retirement agreement, threatening to

convert his paid suspension to an unpaid suspension (although never actually doing so),

and retaliating against him following his filing of an OCRC charge, was not sufficiently

extreme and outrageous as a matter of law.

       {¶ 67} We, therefore, find Spitulski’s fourth assignment of error (Error “D”) not

well-taken.

                     E. Dismissal of Spitulski’s Retaliation Claim.

       {¶ 68} In Count 5 of his complaint, Spitulski alleges that the Board retaliated

against him for filing his September 20, 2013 charge with the OCRC by (1) threatening to




30.
convert his paid suspension into an unpaid suspension, and (2) rejecting the referee’s

decision which recommended against termination. He later elaborated that his refusal to

sign the retirement agreement on September 13, 2013, and his request of the right-to-sue

letter issued on October 16, 2014, constituted additional protected activity in which he

engaged, and that his suspension constituted an additional adverse employment action

committed by the Board in retaliation for engaging in that protected activity.

       {¶ 69} Spitulski brought this claim under R.C. 4112.02(I), which provides that it is

unlawful “[f]or any person to discriminate in any manner against any other person

because that person has opposed any unlawful discriminatory practice defined in this

section or because that person has made a charge, testified, assisted, or participated in any

manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of

the Revised Code.” To establish a prima-facie case of retaliation, a plaintiff must show

that “(1) he or she engaged in a protected activity, (2) the employer was aware that the

plaintiff had engaged in that activity, (3) the employer took an adverse employment

action against the plaintiff, and (4) there is a casual (sic) connection between the

protected activity and adverse action.” Smith at ¶ 48. Importantly, “to prevail on a

retaliation claim, a plaintiff must show that retaliation is a determinative factor—not just

a motivating factor—in the employer’s decision to take adverse employment action.”

(Internal citations and quotations omitted.) Little York Tavern v. Lane, 2017-Ohio-850,

86 N.E.3d 715, ¶ 15 (2d Dist.).




31.
       {¶ 70} “Once an employee establishes a prima facie case, the burden shifts to the

employer to ‘articulate some legitimate nondiscriminatory reason for’ its action.”

(Citations omitted.) Id. at ¶ 19. If the employer carries its burden, the burden then shifts

back to the employee to prove that the employer’s stated reason is pretextual. Id.

       {¶ 71} The timeline of events relative to Spitulski’s retaliation claim is as follows:

        May 31, 2013: Gault requested internal disciplinary hearing

        August 19, 2013: Heldt conducted internal disciplinary hearing

        September 9, 2013: Heldt issued her written recommendation of termination

        September 13, 2013: Spitulski refused to sign proposed retirement agreement

        September 20, 2013: Spitulski filed his OCRC charge

        October 3, 2013: Spieldenner wrote letter indicating her concurrence with

          Heldt termination recommendation and informing Spitulski of suspension with

          pay

        October 11, 2013: Spitulski requested to arbitrate termination recommendation

        February 14, 2014: Spieldenner sent letter advising of her intent to

          recommend unpaid suspension

        May 5-6, 2014: Referee conducted hearing

        July 17, 2014: OCRC granted Spitulski’s request to withdraw his charge

        August 14, 2014: Referee issued his recommendation against termination

        October 16, 2014: Spitulski received notice of right to sue




32.
        December 16, 2014: Board passed resolution rejecting referee’s

           recommendation and terminating Spitulski’s employment

       {¶ 72} In a decision dated November 13, 2017, the trial court granted summary

judgment to the Board on Spitulski’s retaliation claim, finding that he failed to show a

causal connection between his protected activity and any adverse employment action. It

found that Spitulski offered no evidence that would raise an inference of retaliation

because too much time had passed between when Spitulski engaged in the protected

activity (the filing of his OCRC charge) and when the adverse employment action (his

termination) occurred. It also found that Spitulski’s allegedly-biased supervisors (Baker

and Gault) had no further involvement in his disciplinary matter after he filed his OCRC

charge. While the court acknowledged that Spitulski was notified that Spieldenner

intended to recommend that his paid suspension be converted to unpaid, it emphasized

that this never happened. And with respect to the right-to-sue letter, it observed that even

assuming that requesting this letter constituted protected activity, the Board reached its

decision without knowing that the letter had been received by its attorney.

       {¶ 73} In his fifth assignment of error (Error “E”), Spitulski claims that the trial

court erred because in dismissing his claim, it “relied on dicta in a case that supposedly

rejected the ‘cat’s paw’ theory of liability.”

       {¶ 74} “A ‘cat’s paw’ is a person used by another to accomplish the other’s

purposes.” Smith v. Ohio Dept. of Pub. Safety, 2013-Ohio-4210, 997 N.E.2d 597, ¶ 55

(10th Dist.), citing EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th




33.
Cir.2006). Under a “cat’s paw” theory of liability, an “unbiased decisionmaker is a cat’s

paw in situations where a biased subordinate, who lacks decisionmaking power, uses the

unbiased decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory or

retaliatory employment action.” Id. Even when considering a retaliation claim under a

“cat’s paw” theory, courts require the plaintiff to demonstrate a direct causal connection

between the subordinate’s discriminatory animus and the decisionmaker’s adverse

employment action. Crawford v. Notar, 11th Dist. Trumbull No. 2015-T-0133, 2016-

Ohio-3010, ¶ 34, citing Staub v. Proctor Hosp., 562 U.S. 411, 422, 131 S.Ct. 1186, 179

L.E.2d 144 (2011).

       {¶ 75} Although Spitulski’s stated assignment of error specifically challenges

what he characterizes as the court’s rejection of the cat’s paw theory of liability, his

argument in support of his assignment of error identifies the following three issues to be

resolved: (1) whether his refusal to sign “the unlawful retirement agreement” was

protected activity; (2) whether receipt by the Board’s attorney of the notice of right to sue

is knowledge of protected activity that may properly be imputed to the Board; and (3)

whether there exists an issue of material fact that his protected activity was the but-for

causation of his termination.

       {¶ 76} Even accepting that Spitulski’s refusal to sign the retirement agreement and

request of the right-to-sue letter constituted protected activity, Spitulski has failed to

establish a prima facie case of retaliatory discharge for the following reasons.




34.
       {¶ 77} First, we agree with the trial court that Spitulski cannot show a causal

connection because the time between the protected activity and the adverse employment

action is too remote. “In establishing whether there is a causal connection between the

protected activity and the adverse employment action, courts have looked at the amount

of time between the two events.” Baker v. Buschman Co., 127 Ohio App.3d 561, 568,

713 N.E.2d 487 (12th Dist.1998). To warrant an inference of retaliatory motivation, the

adverse employment action must have occurred sufficiently close in time to the

employee’s engagement in protected activity. Id., citing In Neal v. Hamilton County, 87

Ohio App.3d 670, 622 N.E.2d 1130 (1st Dist.1993). Courts have found intervals of even

two to four months insufficient to show a causal connection. See Mendlovic v. Life Line

Screening of Am., Ltd., 173 Ohio App.3d 46, 2007-Ohio-4674, 877 N.E.2d 377, ¶ 41 (8th

Dist.) (“Courts have repeatedly held that intervals of two to four months between the

protected activity and the adverse action are insufficient to show a causal connection.”).

See also Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672,

¶ 50 (finding no causal connection where protected activity occurred on August 7, 2006,

and purported adverse action occurred on September 27, 2006).

       {¶ 78} Here, Spitulski’s termination was not finalized until December of 2014—

two months after Spitulski last engaged in arguably protected activity. While Spitulski

argues that, effectively, only two business days had passed (given the Board’s monthly

meeting schedule), we find this argument unpersuasive. Spitulski’s termination was




35.
simply too remote in time from his engagement in protected activity to establish the

causal connection necessary to support his retaliation claim.

       {¶ 79} We also acknowledge that Spitulski claims that his suspension was an

adverse employment decision that occurred within days of his engaging in protected

activity. However, in Perez v. Theller, 6th Dist. Sandusky No. S-10-053, 2011-Ohio-

2176, ¶ 16, we held that “[t]he material adversity of a suspension is determined by the

context under which it is imposed. Duration and lost income are the critical factors.

Suspensions with pay are not deemed to be adverse, but if imposed even temporarily

without pay, they are.” Here, despite Spieldenner’s later recommendation to convert

Spitulski’s paid suspension to an unpaid one, Spitulski’s suspension was entirely with

pay. We, therefore, find that it did not constitute an adverse employment action.

       {¶ 80} In addition to failing to establish a causal connection, we conclude, as did

the trial court, that Spitulski cannot show that the Board was aware of the notice of right

to sue. The Board’s attorney clearly was aware of the notice letter, but it is undisputed

that the Board members themselves were unaware. Spitulski claims that the Board’s

attorney’s knowledge must be imputed to the Board members. But the Board cites Bahar

v. City of Youngstown, 7th Dist. Mahoning No. 09 MA 55, 2011-Ohio-1000, ¶ 40, to

support its contention that the Board’s attorney’s knowledge cannot be imputed to the

individual Board members in this case.

       {¶ 81} In Bahar, the appellant claimed that the city law director knew she had

engaged in protected activity in the ten days before her discharge by city council. The




36.
appellant sought to establish that the law director’s knowledge should be imputed to

council members because “the Law Director indisputably had knowledge of [her]

protected activity during the ten days immediately before [her] discharge[, and] [a]s legal

counsel to the City Council, [the law director] would have been derelict in her duties had

she not informed the council members of [Appellant's] complaints that had been made so

close in time to the legislative act of firing her.” Id. at ¶ 40. The court held that the

inference appellant was asking it to make was directly contradicted by evidence that the

law director considered her conversations with appellant to be privileged, and, therefore,

did not repeat her statements to the members of city council. Accordingly, it held that the

appellant failed to establish that any member of council knew of her protected activity.

       {¶ 82} Here, too, there is no evidence that the Board members knew of the right-

to-sue letter. To the contrary, the Board presented affidavits from its Board members

indicating that they were not told of the right-to-sue letter. Under these circumstances,

Spitulski has failed to show that the Board was aware of the protected activity at issue.

       {¶ 83} Because Spitulski has failed to establish a prima facie case that he was

terminated for engaging in protected activity, we find that the trial court properly

dismissed his retaliation claim. We, therefore, find Spitulski’s fifth assignment of error

(Error “E”) not well-taken.

       F. The Trial Court’s Disposition of Spitulski’s Administrative Appeal.

       {¶ 84} In its judgment dated September 10, 2015, the trial court affirmed the

Board’s decision terminating Spitulski’s employment contract. In his sixth assignment of




37.
error (Error “F”), Spitulski argues that in doing so, the trial court improperly “assess[ed]

the Board’s resolution, rather than the referee’s findings of fact, and then appl[ied] an

incorrect evidentiary standard in that assessment.”

       {¶ 85} The trial court found that the Board complied with applicable law when it

rejected a number of the referee’s findings of fact as against the weight of the evidence

and when it rejected his recommendation based on its interpretation of the significance of

his factual findings. It further found that the Board presented substantial and credible

evidence to support its charges against Spitulski and that Spitulski had a fair

administrative hearing. As such, the court refused to substitute its judgment for the

Board’s “even if it disagrees with the Board’s ultimate decision, which it does not.”

       {¶ 86} Spitulski maintains that the trial court applied an improper standard of

review and erred in concluding that he had received a fair administrative hearing. R.C.

3319.16 provides that the contract of any teacher3 employed by a board of education may

not be terminated “except for good and just cause.” Before terminating a teacher’s

contract, “the employing board shall furnish the teacher a written notice signed by its

treasurer of its intention to consider the termination of the teacher’s contract with full

specification of the grounds for such consideration.” R.C. 3319.16. The teacher may


3
  Although R.C. 3319.16 refers to any “teacher,” R.C. 3319.09(A) defines “teacher” to
include “all persons licensed to teach and who are employed in the public schools of this
state as * * * supervisors,” and R.C. 3319.02(D)(3) provides that the termination of
school administrators “shall be pursuant to section 3319.16 of the Revised Code.”
Spitulski was licensed to teach and employed by the District as supervisor of the pupil
personnel center.




38.
then file with the treasurer a written demand for a hearing before the board or before a

referee. Id. Where the hearing is conducted by a referee, he or she must file a report

within ten days after the hearing. Id. “After consideration of the referee’s report, the

board, by a majority vote, may accept or reject the referee’s recommendation on the

termination of the teacher’s contract.” Id. The order of termination must state the

grounds for termination. Id.

       {¶ 87} The Ohio Supreme Court—applying an earlier iteration of R.C. 3319.16—

explained in Aldridge v. Huntington Local School Dist. Bd. of Edn., 38 Ohio St.3d 154,

157, 527 N.E.2d 291 (1988), that “the decision to terminate a teacher’s contract is

comprised of two parts: (1) the factual basis for the allegations giving rise to the

termination; and (2) the judgment as to whether the facts, as found, constitute [good and

just] cause as defined by statute.” The referee is primarily responsible for making

findings of fact, however, the school board has “the right and the responsibility to review

those findings.” Id. at 158. A school board must accept the referee’s findings of fact

unless they are “against the greater weight, or preponderance, of the evidence.” Id. It

then has the discretion to accept or reject the recommendation of the referee “unless such

acceptance or rejection is contrary to law.” Id.

       {¶ 88} In weighing the evidence, “the board must give deference to the fact that it

is the referee who sees and hears the witnesses.” Id. If the board does not accept the

referee’s recommendation, it must indicate whether it rejected the referee’s findings as

being against the preponderance of the evidence, or whether it accepted the referee’s




39.
factual findings but rejected the recommendation based upon a different interpretation of

the significance of those facts. Id.

       {¶ 89} After the board has rendered a decision to terminate a teacher’s contract,

the teacher may then appeal the decision by filing an original action in the court of

common pleas. R.C. 3319.16. “The court shall examine the transcript and record of the

hearing and shall hold such additional hearings as it considers advisable, at which it may

consider other evidence in addition to the transcript and record.” Id. It may then grant or

deny the relief requested in the teacher’s complaint. Id. In doing so, however, the

common pleas court “may not reverse the Board’s termination order unless it finds that

the order is not supported by or is against the weight of the evidence.” Speller v. Toledo

Pub. School. Dist. Bd. of Educ., 2015-Ohio-2672, 38 N.E.3d 509, ¶ 21 (6th Dist.). It

“cannot substitute its judgment for the judgment of the board where a fair administrative

hearing is had and there is substantial and credible evidence in the record to support the

board’s decision.” Fox v. Bd. of Edn. of the Huron City School Dist., 6th Dist. Erie Nos.

E-16-076, E-16-077, 2017-Ohio-7984, ¶ 18.

       {¶ 90} The teacher or the board may appeal the decision of the court of common

pleas to a court of appeals. Our review of the trial court’s decision is narrow: absent an

abuse of discretion, we must affirm the trial court’s decision. Speller at ¶ 43.

       {¶ 91} In this case, the Board rejected the referee’s recommendation. It found that

“the Referee’s findings of fact are against the manifest weight of the evidence, and * * *

the Referee wrongly concluded that TPS lack[ed] good and just cause to terminate Mr.




40.
Spitulski’s employment.” In other words, it disagreed with both the referee’s factual

findings and his findings concerning the significance of the facts. In an eight-page

resolution, with numerous references to the lengthy hearing transcript, it explained why.

       {¶ 92} The Board found that (1) contrary to the referee’s conclusion, Spitulski had

prior discipline insofar as he was “buff-sheeted” on February 13, 2012, for his treatment

of a parent advocate; (2) the referee indicated that the district had received five other

complaints about Spitulski’s lack of professionalism, but left out a sixth incident—that it

characterized as the most serious—during which Spitulski swore at a student; (3) the

referee incorrectly concluded that the other five complaints were “without merit”;

(4) despite the referee’s opinion to the contrary, the directive that Spitulski maintain

records of hearings was not unreasonable; and (5) evidence of Spitulski’s wrongdoing

constituted “good and just cause” to terminate his employment. It characterized

Spitulski’s instances of misconduct as “serious matters that are directly related to [his]

professional responsibilities, directly involve students, and are hostile to the school

community.”

       {¶ 93} Spitulski argues that the trial court applied an inapplicable standard of

review here. He maintains that a board’s decision is reviewed under a “preponderance-

of-the-evidence” standard, and not a “substantial and credible evidence” standard. We

conclude that Spitulski is mistaken. In fact, while the Board reviews the referee’s

findings of fact under a “preponderance-of-the-evidence” standard, the trial court

reviews the Board’s decision under a “substantial-and-credible-evidence” standard. See




41.
Bertolini, 139 Ohio App.3d at 604, 744 N.E.2d 1245 and Strohm v. Reynoldsburg City

School Dist. Bd. of Edn., 10th Dist. Franklin No. 97APE07-972, 1998 Ohio App. LEXIS

1375, *12 (Mar. 31, 1998) (“If substantial and credible evidence is presented to support

the charges of the board, and a fair administrative hearing is had, the reviewing court

cannot substitute its judgment for the judgment of the administrative authorities.”). The

trial court did not apply an incorrect standard. And under the narrow, abuse-of-discretion

standard that this court is required to apply, we cannot say that the trial court abused its

discretion given the detailed explanation provided by the Board for rejecting the referee’s

factual findings and reaching a different conclusion as to the significance of the facts.

       {¶ 94} Spitulski also claims that he was not afforded a fair hearing because the

hearing was not “confined to the grounds stated in the notice thereof.” He contends that

the Board presented evidence at the refereed hearing about several parent encounters

about which he had not been provided notice.

       {¶ 95} R.C. 3319.16 requires a board to furnish a teacher written notice signed by

its treasurer of its intention to consider termination of the teacher’s contract “with full

specification of the grounds for such consideration.” “While the term ‘full specification’

is not defined in the statute, it has been found that evidence of other instances of alleged

misconduct which are ‘interrelated’ to the grounds stated in the notice are permissible at

the hearing.” Speller 2015-Ohio-2672, 38 N.E.3d 509, at ¶ 26. “The purpose of R.C.

3319.16 is to provide the essential requirements of due process: notice and an




42.
opportunity to respond.” Id., citing Badertscher v. Liberty-Benton School Dist. Bd. of

Edn., 2015-Ohio-1422, 29 N.E.3d 1034 (3d Dist.).

       {¶ 96} It is clear from the transcript of the refereed hearing that Spitulski’s counsel

was well-prepared and was able to effectively cross-examine all parent witnesses who

testified at the refereed hearing. What’s more, he presented testimony from his own

witnesses who countered the Board’s allegations. Indeed, the referee was persuaded that

the Board’s allegations lacked merit. Under these circumstances, we cannot say that

Spitulski did not receive a fair hearing.

       {¶ 97} We find Spitulski’s sixth assignment of error (Error “F”) not well-taken.

      G. Dismissal of Spitulski’s Claim for Punitive Damages and Attorney Fees.

       {¶ 98} In his seventh assignment of error (Error “G”), Spitulski claims that the

trial court erred in dismissing his claims for punitive damages and attorney fees. Given

our resolution of the preceding six assignments of error, it is unnecessary for us to

address Spitulski’s seventh assignment of error (Error “G”).

                                      III. Conclusion

       {¶ 99} The trial court properly dismissed Spitulski’s age-discrimination claim for

lack of subject-matter jurisdiction because Spitulski elected to pursue an administrative

remedy by filing an OCRC charge. We reach this conclusion notwithstanding the fact

that he later withdrew his charge. We, therefore, find Spitulski’s first assignment of error

(Error “A”) not well-taken.




43.
       {¶ 100} Ohio does not recognize a cause of action for tortious violation of rights

under a CBA or R.C. 3319.16. We, therefore, find Spitulski’s second assignment of error

(Error “B”) not well-taken.

       {¶ 101} Spitulski failed to offer proper summary-judgment quality evidence in

support of his assertion that similarly-situated non-class members were treated more

favorably. His disability discrimination claim was, therefore, properly dismissed. We

find Spitulski’s third assignment of error (Error “C”) not well-taken.

       {¶ 102} Spitulski’s claim for intentional infliction of emotional distress fails as a

matter of law because the conduct alleged was not sufficiently extreme and outrageous.

We, therefore, find Spitulski’s fourth assignment of error (Error “D”) not well-taken.

       {¶ 103} Spitulski’s claim for retaliation was properly dismissed where he failed to

demonstrate a causal connection between his termination and his engagement in

protected activity, and failed to show that the individual Board members knew of his

most recent engagement in protected activity. We, therefore, find Spitulski’s fifth

assignment of error (Error “E”) not well-taken.

       {¶ 104} The trial court did not abuse its discretion in affirming the Board’s

termination of Spitulski’s employment where there existed competent and credible

evidence to support its decision and he was afforded a fair hearing. We, therefore, find

Spitulski’s sixth assignment of error (Error “F”) not well-taken.

       {¶ 105} And given our resolution of Spitulski’s first six assignments of error, we

need not address his seventh assignment of error (Error “G”).




44.
       {¶ 106} Accordingly, we affirm the judgments of the Lucas County Court of

Common Pleas dated May 28, 2015, September 10, 2015, February 3, 2016, October 3,

2016, August 23, 2017, September 13, 2017, and November 13, 2017. Spitulski is

ordered to pay the costs of this appeal under App.R. 24.


                                                                      Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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