[Cite as Smith v. Columbus City Schools Bd. of Edn., 2017-Ohio-2870.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Pamela J. Smith,                                      :

                Plaintiff-Appellant,                  :
                                                                               No. 16AP-528
v.                                                    :                   (C.P.C. No. 16CVF03-2195)

Columbus City Schools Board                           :                 (ACCELERATED CALENDAR)
of Education,
                                                      :
                Defendant-Appellee.
                                                      :



                                           D E C I S I O N

                                      Rendered on May 18, 2017


                On brief: Cloppert, Latanick, Sauter & Washburn,
                William J. Steele and Lora A. Molnar, for appellant.
                Argued: William J. Steele.

                On brief: Wanda T. Lillis, for appellee. Argued: Wanda T.
                Lillis.


                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Appellant, Pamela J. Smith, appeals a decision of the Franklin County Court
of Common Pleas that affirmed a resolution of the appellee, Columbus City Schools Board
of Education, terminating Smith's employment as a teacher. For the following reasons,
we affirm that decision.
I. Factual and Procedural Background

        {¶ 2} Since 2000, Smith worked as an elementary school teacher at a variety of
different schools in the Columbus City School district. In 2015, she was teaching at
No. 16AP-528                                                                              2

Fairmoor Elementary School. On April 23, 2015, she was in the school's office area when
she overheard a commotion in the lobby near the school's front doors. Two second grade
students, referred to herein as Student A and Student B, were yelling at each other.
Karlynn Hornsburger, a kindergarten assistant who was working in the school's office at
the time, heard the disturbance and went to address it. Michelle Kulewicz, a general
instructional assistant who was also nearby, also heard the commotion and saw
Hornsburger attempting to settle the students down. As the disturbance continued,
Kulewicz joined Hornburger in an attempt to de-escalate the situation. Kulewicz and
Hornsburger took positions back to back, each facing one student to separate them from
one another as Hornsburger attempted to move Student B into another area of the lobby
past a set of doors. Hornsburger testified that they knew exactly what they were doing.
During this time, neither Kulewicz nor Hornsburger were concerned that either of the
second grade students posed a serious physical threat to them. Kulewicz testified that she
knew by attempting to de-escalate the situation she could get hit by Student A but, even if
that occurred, it would not really hurt her. Neither Kulewicz nor Hornsburger called for
any assistance to deal with the two students.
       {¶ 3} Upon hearing the disturbance, Smith also entered the lobby. As Kulewicz
was attempting to settle down Student A, he was swinging his arms at her. Kulewicz tried
to keep her hands down to block Student A from swinging. As he swung, Student A came
close but did not hit Kulewicz. Smith, however, thought she saw Student A hit Kulewicz.
Smith approached Student A yelling "[y]ou don’t hit a teacher." (Tr. Vol I at 11.) At this
point, the versions of events differ.
       {¶ 4} Kulewicz and Hornburger described how Smith then picked up Student A
by his shirt, lifting him up into the air and against the wall. The student began to hit and
swing at Smith. She then pushed him down to the ground, where she knelt over him with
her knee on the student's chest.        Smith denied touching the student.    Immediately
following the disturbance, Student A left the building. Kulewicz and Hornsburger called
Linda Willis, the school's principal, to the lobby. Willis followed Student A out the door,
trying to get the student to stop. With assistance from the Columbus Police Department,
Willis was able to bring the student back to the school.
No. 16AP-528                                                                                       3

           {¶ 5} As a result of this incident, a disciplinary hearing was held. Following that
hearing, appellee adopted a resolution reflecting its intent to terminate Smith's
employment contract for good and just cause. The resolution cited three grounds for the
termination: (1) her interaction with Student A; (2) her conduct upon learning that she
was being assigned to another work location pending the investigation into the Student A
incident;1 and (3) previous disciplinary actions against her.2 Smith requested a hearing in
front of a referee. At that hearing, the witnesses testified to the above versions of events.
The referee submitted a report and recommendation in which she found that Smith's
conduct was good and just cause for her termination and recommended the termination
of Smith's employment. Specifically, the referee noted that "[i]n the current situation, she
stepped into a situation that was being handled and exacerbated the situation and Student
A's behaviors. Instead of being a force of calm and control, she showed the same type of
impulsive behavior that the students were exhibiting. She affirmed through her actions
that violence was the way to get someone to be under your control." (Feb. 2, 2016 Report
and Recommendation at 6.)
           {¶ 6} Appellee accepted, approved, and adopted the referee's findings of facts,
conclusions of law, and recommendation and, accordingly, terminated Smith's
employment. Smith appealed her termination to the trial court pursuant to R.C. 3319.16.
The trial court affirmed her termination, noting that the evidence accepted by the referee
established that "prior to the Appellant's intervention, the situation was under the control
of two other staff members. It was the Appellant's unilateral decision to insert herself into
the situation that reignited the conflict. When the Appellant did insert herself into the
situation, the evidence showed that the other staff members felt that they had things
under control and that Ms. Kulewicz did not even feel threatened by Student A. The
evidence established that Appellant's intervention [led] to more flagrant acts from
Student A leading to the Appellant's confrontation with Student A." (June 22, 2016
Decision & Entry at 6.)




1   Appellee dismissed this allegation at the hearing.

2The previous disciplinary actions against her included written reprimands in 2007, 2012, and 2013 as
well as two lesser interventions entitled letters of directions in 2006 and 2012.
No. 16AP-528                                                                                 4

II. Smith's Appeal

       {¶ 7} Smith appeals the trial court's decision and assigns the following errors:
              [1.] The lower court erred in its decision to terminate
              appellant's teaching contract by failing to give proper weight
              to key evidence.

              [2.] The lower court erred in its decision to terminate
              appellant's teaching contract when Ohio law and board policy
              justify appellant's actions.

   A. Standard of Review

       {¶ 8} The standard of review in teacher contract termination cases has been
clearly set forth by the Supreme Court of Ohio. The decision to terminate a 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 gross
inefficiency, immorality, or good cause as defined by statute. Aldridge v. Huntington
Local School Dist. Bd. of Edn., 38 Ohio St.3d 154, 157 (1988). As to the differing roles of
the referee and the board of education, the Supreme Court has stated that the referee's
primary duty is to ascertain the facts. Id. at 158. The referee's findings of fact must be
accepted by the board unless such findings are against the greater weight or
preponderance of the evidence. Id. at syllabus. However, the ultimate responsibility for
the school system lies with the board. Id. at 157. The board's primary duty is to interpret
the significance of the facts, and the board has the right and responsibility to review the
referee's findings. Id. at 158. In weighing the evidence, the board must give deference to
the fact that the referee sees and hears the witnesses. Id. It is the board's responsibility to
indicate whether it rejected a referee's findings as being against the preponderance of the
evidence or accepted the referee's factual determination but rejected the referee's
recommendation based upon a different interpretation of the significance of those facts.
As to the referee's recommendation, the board has the discretion to accept or reject the
recommendation unless the acceptance or rejection is contrary to law. Id. at syllabus.
The board should articulate its reasons for rejecting the referee's recommendation. Id. at
157; Oleske v. Hilliard City School Dist. Bd. of Edn., 146 Ohio App.3d 57 (10th Dist.2001)
No. 16AP-528                                                                                  5

       {¶ 9} A teacher whose contract has been terminated may appeal the board's
decision to the local court of common pleas by filing a complaint against the board,
alleging the facts "upon which the teacher relies for a reversal or modification of such
order of termination of contract." R.C. 3319.16; Badertscher v. Liberty-Benton School
Dist. Bd. of Edn., 3d Dist. No. 5-14-27, 2015-Ohio-1422, ¶ 34. Although the common
pleas court's review of a board's decision is not de novo, R.C. 3319.16 empowers the court
to weigh the evidence, hold additional hearings, if necessary, and to render factual
determinations. Katz v. Maple Heights City School Dist. Bd. of Edn., 87 Ohio App.3d
256, 260 (8th Dist.1993); Oleske at 62. A common pleas court may reverse a board's
decision to terminate "only where it finds that the order is not supported by or is against
the weight of the evidence." Kitchen v. Bd. of Edn. of Fairfield City School Dist., 12th
Dist. No. CA2006-09-234, 2007-Ohio-2846, ¶ 17, citing Katz at 260.                  Judgments
supported by some competent, credible evidence going to all the essential elements of the
case will not be reversed by a reviewing court as being against the manifest weight of the
evidence. Elsass v. St. Marys City School Dist. Bd. of Edn., 3d Dist. No. 2-10-30, 2011-
Ohio-1870, ¶ 49, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280
(1978).
       {¶ 10} If a party to an R.C. 3319.16 proceeding appeals to an appellate court,
appellate review of the trial court's decision is " 'extremely narrow' " and " 'strictly limited
to a determination of whether the common pleas court abused its discretion.' "
Badertscher at ¶ 36, citing James v. Trumbull Cty. Bd. of Edn., 105 Ohio App.3d 392, 396
(11th Dist.1995). Absent an abuse of discretion on the part of the trial court, the court of
appeals may not engage in what amounts to a substitution of judgment of the trial court.
Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 137 Ohio St.3d 469, 2013-Ohio-
5000, ¶ 77; Graziano v. Amherst Exempted Village Bd. of Edn., 32 Ohio St.3d 289, 294
(1987). In this context, the Supreme Court of Ohio has defined the term abuse of
discretion as implying " 'not merely error of judgment, but perversity of will, passion,
prejudice, partiality, or moral delinquency.' " Id. (Douglas, J., concurring), quoting State
ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 590-91 (1953).
       {¶ 11} Because Smith's assignments of error both address the same issues, we
address them together.
No. 16AP-528                                                                                            6

    B. Smith's Assignments of Error–Justification for her Intervention

        {¶ 12} In her first assignment of error, Smith argues that the trial court failed to
give proper weight to her belief that Kulewicz was being attacked by the student and,
therefore, Smith needed to intervene in order to help Kulewicz. Similarly, she argues in
her second assignment of error that the trial court erred by not applying R.C. 3319.41(C)
because her use of force to quell a disturbance that threatened physical injury to Kulewicz
was reasonable and necessary. We find Smith's arguments unpersuasive.
        {¶ 13} The referee and the trial court concluded that Smith's intervention was
unnecessary because the situation was under control and was being appropriately
handled by Kulewicz and Hornsburger. Both the referee and the trial court placed blame
on Smith for her impulsive and unilateral decision to insert herself in a situation that was
being properly handled by two other instructional assistants. We see no basis to conclude
that the trial court abused its discretion.
        {¶ 14} Smith argues that the trial court did not properly weigh her testimony that
she intervened because she thought Student A hit Kulewicz.3 However, the appellee and
the trial court considered Smith's testimony and concluded that her intervention was
unjustified. The commotion was between two second-grade students. Neither Kulewicz
nor Hornsburger were worried for their safety during the commotion and neither called
for assistance. Hornsburger testified that they "knew exactly what we were doing." (Tr. at
75.) They had positioned themselves between the students to separate them and to move
one of them through a set of doors and into another area. (Tr. at 29, 75.) Before Smith's
intervention, Hornsburger thought the situation had been handled. (Tr. at 75.) Smith's
rash intervention only inflamed the situation and caused Student A's behavior to escalate.
We cannot say that the trial court abused its discretion when it concluded that the
appellee's decision to terminate Smith was not against the weight of the evidence.
        {¶ 15} Similarly, the trial court properly concluded that R.C. 3319.41(C) did not
apply to Smith's conduct. That statute provides that:
                Persons employed or engaged as teachers * * * may, within the
                scope of their employment, use and apply such amount of
                force and restraint as is reasonable and necessary to quell a

3Kulewicz testified that although the student did not hit her, it could have appeared to Smith that he did
hit her.
No. 16AP-528                                                                              7

              disturbance threatening physical injury to others, to obtain
              possession of weapons or other dangerous objects upon the
              person or within the control of the pupil, for the purpose of
              self-defense, or for the protection of persons or property.

       {¶ 16} The trial court did not apply this statute because, based upon the evidence
presented to the referee, the disturbance caused by the two second grade students did not
threaten physical injury to others. Again, even though Smith may have thought that
Student A hit Kulewicz, both Kulewicz and Hornsburger testified that they were not in
danger. Kulewicz testified that although she knew Student A might hit her, she knew that
it would not hurt her. Hornsburger testified that they were handling the students and
that she and Kulewicz knew exactly what they were doing. Neither of them called for any
assistance to help them with the students.      Again, the trial court did not abuse its
discretion by concluding that the evidence did not show a justification for Smith's
intervention. Accordingly, the trial court did not abuse its discretion by not applying R.C.
3319.41(C).
       {¶ 17} For these reasons, the trial court did not err by affirming appellee's
resolution. We overrule Smith's two assignments of error, and affirm the judgment of the
Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                    LUPER SCHUSTER and BRUNNER, JJ., concur.
