[Cite as Humphries v. Lorain City School Dist. Bd. of Edn., 2019-Ohio-2263.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

ALICESON HUMPHRIES                                         C.A. No.            18CA011380

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
LORAIN CITY SCHOOL DISTRICT, et al.                        COURT OF COMMON PLEAS
                                                           COUNTY OF LORAIN, OHIO
        Appellees                                          CASE No.   16CV188922

                                 DECISION AND JOURNAL ENTRY

Dated: June 10, 2019



        SCHAFER, Judge.

        {¶1}    Plaintiff-Appellant, Aliceson B. Humphries, appeals the judgment of the Lorain

County Court of Common Pleas affirming the decision of Defendant-Appellee, the Lorain City

School District Board of Education (“Board”), terminating Ms. Humphries’ employment with

the Board. This Court affirms.

                                                      I.

        {¶2}    This court previously summarized the relevant facts and history of this case in a

prior appeal:

        Ms. Humphries was employed by the Board in various positions from
        approximately 1996 until her termination in 2016. At the time of her termination
        Ms. Humphries served as the Director of Lorain Digital Academy, pursuant to a
        two-year administrative limited contract, and also held a continuing teaching
        contract. The Board’s decision to terminate Ms. Humphries stems from her
        conduct at a Lorain City School District track meet and senior athlete recognition
        ceremony, which took place on school property at George Daniel Field on May 6,
        2015.
                                         2


Ms. Humphries attended the May 6, 2015 track event along with her sister,
Natalie. Natalie’s daughter, Ms. Humphries’ niece, was a Lorain City School
District student being recognized as a senior track athlete. At the track event the
niece refused to participate in the recognition ceremony. This angered her
mother, Natalie, and the two began to argue. Ms. Humphries intervened in this
argument, which ultimately turned physical as a “brawl” ensued, involving Ms.
Humphries, Natalie, and the niece. Security officers eventually escorted the niece
to the parking lot. While she was being escorted, Ms. Humphries went up and
“struck” or “bopped” her niece on the head.

Ms. Humphries was placed on paid administrative leave, but directed to stay off
school property as of May 7, 2015 pending the Board’s investigation of her
conduct during the track incident. Upon the conclusion of the investigation, the
Board issued notice to Ms. Humphries of a hearing to address the Board’s
anticipated recommendation to initiate termination proceedings against Ms.
Humphries. After that hearing, which took place on July 22, 2015, the Board
approved a resolution to initiate termination proceedings. In addition to finding
that she engaged in inappropriate verbal and physical aggression toward a
student—her niece—during the track incident, the Board also considered Ms.
Humphries’ conduct concerning an unrelated incident in June 29, 2009, wherein
Ms. Humphries was disciplined for her use of profanities and physical
confrontation with a student.

On August 19, 2015, the Board issued a notice of intention to consider
termination based on its August 17, 2015 resolution, and suspended Ms.
Humphries’ contract without pay or benefits. Ms. Humphries made a timely
demand for a hearing to be conducted before a referee. The hearing commenced
on November 16, 2015, concluded with the parties’ submission of post-hearing
briefs in January, and the referee thereafter issued a report and recommendation
on January 22, 2016. The referee’s report summarized the proceedings and the
testimony spanning the four-day long hearing, and issued findings of fact. Based
on these findings of fact, the referee’s conclusion of law stated:

   [Ms. Humphries]’s actions in physically involving herself in attempting to
   get her niece to participate in the recognition ceremony, in involving
   herself physically in the ensuing brawl at the gate rather than involve
   security and in “bopping” her niece while the niece was being escorted by
   the security officer, constitute “just cause” under the statute for discipline.

However, the referee made a recommendation that, while “[d]iscipline is
warranted,” “termination of this high performing administrator is excessive.”

The Board considered the referee’s report and, by a four-to-one vote, issued a
resolution on February 4, 2016 that rejected the referee’s recommendation. The
Board found that it was “both against the greater weight of the evidence presented
and incorrectly concludes that although Ms. Humphries’ conduct ‘constitutes “just
                                                 3


       cause” under the statute for discipline,’ ‘termination * * * is excessive.’” The
       Board’s resolution also terminated Ms. Humphries’ employment contracts
       effective February 5, 2016. The resolution detailed the Board’s consideration of
       the referee’s report and articulated the various reasons for rejecting the referee’s
       recommendation on termination. Essential to its rejection of the recommendation
       was the Board’s conclusion that the referee’s findings of fact omitted or ignored a
       number of “material and undisputed facts concerning Ms. Humphries’
       misconduct,” and the Board’s rejection of many of the referee’s findings of facts
       as being against the greater weight of the evidence.

Humphries v. Lorain City School Dist., 9th Dist. Lorain No. 16CA011074, 2017-Ohio-8429, ¶ 2-

6 (“Humphries I”).

       {¶3}    Ms. Humphries appealed the Board’s determination to the court of common pleas.

The lower court affirmed the Board’s decision finding that the Board had not rejected the factual

findings of the referee, and further finding that the Board did reject the referee’s

recommendation and that such rejection was not contrary to law. Ms. Humphries then appealed

the trial court’s decision. This Court determined that the trial court abused its discretion when it

erroneously found that the Board did not reject the factual findings of the referee. Consequently,

we remanded for the trial court to determine whether the Board properly rejected and altered the

referee’s findings of fact and, upon due consideration, whether the Board properly resolved to

terminate Ms. Humphries’ contracts. Humphries I, ¶ 17-18.

       {¶4}    Following our remand, the trial court issued another decision affirming the

Board’s decision to terminate Ms. Humphries’ employment. Ms. Humphries timely appealed the

trial court’s decision, presenting a single1 assignment of error for our review.



       1
          In the statement of assignments of error, in the introduction to her merit brief, Ms.
Humphries listed two assignments. The body of her brief, however, presents only one
assignment of error. Pursuant to App.R. 12(A)(2) this Court “may disregard an assignment of
error presented for review if the party raising it * * * fails to argue the assignment separately in
the brief, as required under App.R. 16(A).” See Loc.R. 7(B)(7). Accordingly, we will limit our
review to the assignment presented in the brief.
                                                 4


                                                II.

                                      Assignment of Error

       The lower court committed reversible error by failing again to employ due
       deference to the hearing referee.

       {¶5}    Ms. Humphries contends that, in reviewing the Board’s resolution, the lower court

recognized the obligation to defer to the factual findings, but “failed to employ the application of

the deference.” (Emphasis sic.). Initially we note that Ms. Humphries was required to include in

her brief an argument containing the contentions with respect to her assignment of error and

include the standard or standards of review applicable to that assignment of error under a

separate heading placed before the discussion of the issues. Loc.R. 7(B)(7). However, the

contentions in support of her assigned error are only vaguely discernable, and Ms. Humphries

has not clearly identified the applicable standard of review. Nevertheless, we are guided by the

statutory standard of review for this administrative proceeding set forth in R.C. 3319.16.

A. Procedure for termination of a teacher’s contract

       {¶6}    R.C. 3319.16 is the statutory mechanism for the board of education to terminate a

teacher’s contract. That statute pronounces that “[t]he contract of any teacher employed by the

board of education of any city * * * school district may not be terminated except for good and

just cause.” R.C. 3319.16. Procedurally, prior to terminating a 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” and then wait until the tenth day after the teacher has received notice before

proceeding with formal action to terminate. Id. The teacher has a period of ten days from the

receipt of this notice to make a written demand for a hearing before the board or a referee. Id. If
                                                  5


either the teacher or the board demands a referee to conduct the hearing, one shall be appointed

pursuant to R.C. 3319.161. Id.

   1. Board’s consideration of the referee’s report

       {¶7}    Within ten days from the conclusion of the hearing, R.C. 3319.16 requires the

referee to file a report. “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”

and “may enter its determination upon its minutes.” R.C. 3319.16. “The referee’s findings of

fact must be accepted unless such findings are against the greater weight, or preponderance, of

the evidence[.]” Aldridge v. Huntington Local School Dist. Bd. of Edn., 38 Ohio St.3d 154

(1988), paragraph one of the syllabus. However, a board “has the discretion to accept or reject

the recommendation of the referee unless such acceptance or rejection is contrary to law.” Id., at

paragraph two of the syllabus.

   2. Appeal to the court of common pleas

       {¶8}    Pursuant to R.C. 3319.16, any teacher affected by a contract termination has the

right to appeal the order of termination to the court of common pleas. “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.” R.C.

3319.16. The scope of the common pleas court’s review does not provide for a trial de novo.

Graziano v. Bd. of Edn., 32 Ohio St.3d 289, 293 (1987). The common pleas court may reverse a

board’s order terminating a teacher’s contract “where it finds that such order is not supported by

or is against the weight of the evidence.” Id., quoting Hale v. Bd. of Edn., 13 Ohio St.2d 92

(1968), paragraph one of the syllabus (construing and applying R.C. 3319.16).
                                                  6




   3. Appellate court review

       {¶9}    Either the teacher or the board may appeal the common pleas court’s decision

granting or denying the relief prayed for in the complaint. R.C. 3319.16. The appellate court’s

review of this special proceeding is rather narrow and limited to a review for abuse of discretion.

Graziano at 294. “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 in an

R.C. 3319.16 proceeding.” Id. The abuse of discretion standard, therefore, applies to our review

of Ms. Humphries’ assignment of error.

B. Manifest weight of the evidence

       {¶10} One argument asserted by Ms. Humphries is that the “lower court disregarded the

manifest weight of the evidence.” Although a manifest weight of the evidence argument is

clearly distinguishable from the assigned error contending that the lower court failed to employ

due deference to the hearing referee, Ms. Humphries attempts to weave this argument into her

assignment of error without arguing it separately as required by App.R. 12(A)(2) and Loc.R.

7(B)(7). That issue aside, Ms. Humphries has not explained how this argument fits within the

framework of this Court’s very limited and narrow scope of review, which does not permit

review as to whether the trial court’s decision is contrary to the manifest weight of the evidence.

Accordingly, we decline to consider this unsupported contention.

C. Due deference to the referee’s findings of fact

       {¶11} Ms. Humphries also argues that the “lower court simply failed to apply the due

deference standard.” She contends that the lower court failed to “utilize[] the appropriate legal

standard of deferring to the hearing referee on disposition of this case.”
                                                 7


        {¶12} While the Board was not bound by the referee’s recommendations, “due

deference must be accorded to the findings and recommendation of the referee * * * especially

where there exist evidentiary conflicts, because it is the referee who is best able to observe the

demeanor of the witnesses and weigh their credibility.” Graziano, 32 Ohio St.3d at 293, citing

Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (1980). The Board was required to accept the

referee’s findings of fact to the extent that they were not contrary to the greater weight of the

evidence, but the Board’s primary duty was to interpret the significance of those facts and so it

was vested with the discretion to accept or reject the referee’s recommendation. Aldridge, 38

Ohio St.3d at 158. There is a distinction between rejecting a referee’s findings as against the

weight of the evidence, and accepting the factual findings but rejecting the referee’s

recommendation based upon a different interpretation of those facts: a board “‘should, in the

spirit of due process, articulate its reasons’ for rejecting a referee’s recommendation.” Id.

quoting Graziano at 293.

        {¶13} In its decision, the trial court determined that the Board gave “due deference” to

the referee’s findings of fact and recommendation. Specifically, the trial court found that the

Board made an “extensive review of the record and afforded substantial deference to the

referee.” Further, the trial court found that the Board recognized “numerous examples of the

referee ignoring key testimony of four independent, unbiased witnesses as well as several

admissions by [Ms. Humphries].” The trial court concluded that the greater weight of the

evidence of record supported the Board’s rejection of some findings of fact and its inclusion of

additional findings of fact in its resolution.

        {¶14} Regarding the referee’s recommendation, the trial court noted that the referee’s

report found just cause for discipline under R.C. 3319.16. The trial court found that the Board
                                                   8


accepted the referee’s conclusion that just cause existed, but disagreed with the opinion

expressed by the referee that terminating Ms. Humphries was too harsh a punishment.

Accordingly, the trial court determined that the Board properly considered the significance of the

findings of fact in concluding that good and just cause existed for termination.

       {¶15} Based on the foregoing, this Court concludes that Ms. Humphries’ argument that

the trial court failed to utilize the correct legal standard is without merit. The trial court applied

the correct standard in determining that the Board’s order terminating Ms. Humphries’ contract

was supported by the weight of the evidence. See Graziano, 32 Ohio St.3d at 293. Therefore,

we do not find that the trial court abused its discretion in its application of law.

       {¶16} Ms. Humphries’ assignment of error is overruled.

                                                  III.

       {¶17} Ms. Humphries’ assignment of error is overruled, and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                   Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                9


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

AVERY FRIEDMAN, Attorney at Law, for Appellant.

ANTHONY GIARDINI, Attorney at Law, for Appellees.

EMILY GRANNIS, Attorney at Law, for Appellees.

TODD MARTI, Office of the Attorney General, for Apellees.
