Schaffer v. Covington Exempted Village School Dist. Bd. of Edn.

2022 Ohio 1189

• Court: Ohio Court of Appeals
• Decided: April 8, 2022
• Docket: 2021-CA-27
• Status: Published

Opinion

[Cite as Schaffer v. Covington Exempted Village School Dist. Bd. of Edn., 2022-Ohio-1189.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

SHON SCHAFFER : : Plaintiff-Appellee : Appellate Case No. 2021-CA-27 : v. : Trial Court Case No. 2021-CV-70 : COVINGTON EXEMPTED VILLAGE : (Civil Appeal from SCHOOL DISTRICT BOARD OF : Common Pleas Court) EDUCATION : : Defendant-Appellant

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OPINION

Rendered on the 8th day of April, 2022.

JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 & SERAH E. SIEMANN, Atty. Reg. No. 0088687, 130 West Second Street, Suite 460, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

JESSICA K. PHILEMOND, Atty. Reg. No. 0076761, ELIZABETH A. BRAVERMAN, Atty. Reg. No. 0088454, 250 East Broad Street, Suite 900, Columbus, Ohio 43215 & BRYAN A. NIEMEYER, Atty. Reg. No. 0068255, 100 South Main Avenue, Suite 300, Courtview Center, Sidney, Ohio 45365 Attorneys for Defendant-Appellant

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LEWIS, J. -2-

{¶ 1} Defendant-Appellant Covington Exempted Village School District Board of

Education (“the Board”) appeals from the trial court’s judgment disaffirming the Board’s

decision to terminate the employment of Plaintiff-Appellee Shon Schaffer.

I. Facts and Course of Proceedings

{¶ 2} Schaffer had been employed by the Covington Exempted Village School

District as a bus driver for over 15 years. During this time, Schaffer had a good

employment record and his job opportunities at the school district were expanding. But

this changed abruptly. On January 10, 2021, Schaffer’s grandson was bitten by a dog

owned by Schaffer’s daughter. Schaffer took possession of the dog. On January 11,

2021, Schaffer was informed by a sheriff’s deputy that the dog had to be quarantined for

10 days according to health department regulations. Schaffer ignored this direction and

euthanized the dog on January 19, 2021. Schaffer then told a sheriff’s deputy that he

had disposed of the dog’s remains in a dumpster at the local high school. However,

Schaffer had actually disposed of the remains in his own garbage.

{¶ 3} On the afternoon of January 21, 2021, Schaffer voluntarily met with the

School District’s Superintendent, Gene Gooding, about the dog incident. According to

Gooding’s notes from the meeting, Schaffer admitted to killing the dog on day eight of

quarantine and then lying to the sheriff’s deputy about knowing when the quarantine

expired “because he was scared and did not want to get in trouble.” Id. Schaffer also

admitted to lying to the sheriff’s deputy about where he had disposed of the remains of

the dog, because he thought that disposing of the remains in his own garbage was illegal -3-

and he was “trying to prevent himself from getting into trouble.” Id. Later that day,

Gooding alerted Schaffer that he would be contacting the authorities to tell them what

Schaffer had admitted to him.

{¶ 4} On January 25, 2021, Gooding placed Schaffer on administrative leave and

gave him a letter that stated, in part:

Please meet with me on January 28 at 3:30 in my office. At that time, we will

discuss the following:

Mr. Schaffer is currently under investigation for criminal activity related to the

manner in which he euthanized and ultimately disposed of a dog prior to the period

of time that he was authorized by authorities to do so. Mr. Schaffer admitted to

me on January 21, 2021, that he had lied to the Sheriff’s deputy about not knowing

that the ten-day waiting period, which was required prior to euthanizing the dog,

had not expired. He also advised me that he had lied to the Sheriff’s deputy about

how he disposed of the dog’s carcass. He had advised the Sheriff’s deputy that

he had disposed of the carcass by placing it in a dumpster located at Bradford

Schools. However, Mr. Schaffer advised me that he actually disposed of the

carcass in his own trash receptacle. [Covington Exempted Village School District]

has reason to believe that Mr. Schaffer will likely face criminal charges as a result

of his conduct. Mr. Schaffer’s conduct could constitute grounds for termination.

These issues will be discussed during the disciplinary hearing on Thursday,

January 28, 2021, during which Mr. Schaffer will be given an opportunity to

address his conduct and present any other evidence or written explanation if he so -4-

chooses. Mr. Schaeffer has the right to union representation at the disciplinary

hearing.

{¶ 5} The disciplinary hearing referenced in the letter was rescheduled to January

27th at Schaffer’s request. There is no transcript from the disciplinary hearing in the

record before us. Rather, the record contains some typewritten and handwritten notes

from Gooding and a staff member. According to these notes, Schaffer began the hearing

by backpedaling on whether he had lied to or even spoken to a sheriff’s deputy about the

killing and disposing of the dog. But he then conceded again that he had lied to the

sheriff’s deputy. According to Gooding, on the advice of counsel, Schaffer did not plan

to call the sheriff’s deputy and explain what really happened. Schaffer gave an undated

letter to Gooding and the Board apologizing for his conduct and offering to be put on

unpaid leave and take as many ethics courses as the Board saw fit.

{¶ 6} The Board met on February 17, 2021, and voted unanimously to terminate

Schaffer’s contract. On February 18, 2021, Gooding sent a letter by certified mail to

Schaffer’s home address. The letter stated that the Board had terminated Schaffer’s bus

driver contract and that “[t]he Board’s decision was based on your dishonesty and

immoral conduct, as summarized in the Notice of Disciplinary Hearing that was provided

to you on January 25, 2021.” The USPS tracking computer printout associated with the

certified mail indicated that the letter was delivered to an individual at Schaffer’s address

at 4:09 P.M. on February 20, 2021. But no signature was provided on the green card

returned by the postal employee charged with delivering the certified mail. According to

Schaffer, no postal employee delivered any certified mail to him on Saturday, February -5-

20th, and he did not locate the certified mail in his mailbox until Monday, February 22nd.

Memo in Opp. to Motion for Judgment on Pleadings (Apr. 28, 2021).

{¶ 7} On March 3, 2021, Schaffer appealed the Board’s termination of his contract

to the court of common pleas. On April 12, 2021, the Board filed a motion for judgment

on the pleadings, contending that the common pleas court lacked jurisdiction over the

appeal because Shaffer failed to timely file his appeal within ten days of receiving the

certified mail from the Board, as required by R.C. 3319.081(C). On June 10, 2021, the

trial court overruled the Board’s motion for judgment on the pleadings, finding that

Schaffer did not receive the Board’s decision until he found it in his mailbox on February

22, 2021, which was less than ten days before he filed his appeal on March 3, 2021.

{¶ 8} On August 31, 2021, based on its review of the evidence of record and

arguments of the parties, the trial court found that the Board’s January 25, 2021 notice of

pre-termination hearing “did not apprise [Schaffer] of all of the R.C. 3319.081 charges

against him” and therefore violated his due process rights and was unconstitutional.

Consequently, the court disaffirmed the Board’s decision of termination. The Board

appeals from the trial court’s decision.

II. Schaffer Timely Filed His Appeal Within Ten Days of Receiving The

Board’s Decision Via Certified Mail

{¶ 9} The Board’s first assignment of error states:

THIS UNTIMELY TERMINATION APPEAL MUST BE DISMISSED

BECAUSE IT WAS NOT FILED WITHIN 10 DAYS OF APPELLEE’S -6-

RECEIPT OF THE TERMINATION NOTICE BY CERTIFIED MAIL.

{¶ 10} The parties agree that R.C. 3319.081(C) sets forth the ten-day period in

which Schaffer must have filed his appeal from the Board’s termination decision. R.C.

3319.081(C) provides, in relevant part: “The action of the board of education terminating

the contract of an employee or suspending or demoting the employee shall be served

upon the employee by certified mail. Within ten days following the receipt of such notice

by the employee, the employee may file an appeal, in writing, with the court of common

pleas of the county in which such school board is situated.” (Emphasis added.)

{¶ 11} Notably, R.C. 3319.081(C) requires the notice to be served by certified mail

and, once the notice is received by the employee, the ten-day time period for filing an

appeal begins to run. The Board contends that the trial court lacked jurisdiction over

Schaffer’s appeal, because Schaffer received the notice from the Board on February 20,

2021, and did not file his appeal until March 3, 2021, eleven days after receipt of the

notice. The Board based its time calculation on a United States Postal Service (USPS)

computer printout that stated an individual at Schaffer’s address had signed for the

certified mail on February 20, 2021.

{¶ 12} Schaffer responds that the trial court correctly found that he did not receive

the certified mail until he found it in his mailbox on February 22nd, which would mean his

appeal was filed timely nine days after receipt of the Board’s notice. The record contains

an affidavit of Schaffer stating that he did not receive the certified mail until he found the

letter in his mailbox on Monday, February 22, 2021. Memo in Opp. to Motion for

Judgment on Pleadings (Apr. 28, 2021).According to Schaffer, on Saturday, February 20, -7-

2021, no postal worker came to his residence and no individual at the residence was

given any certified mail or signed any certified receipt green card.

{¶ 13} The trial court resolved this factual issue in favor of Schaffer. The court

explained: “The instant record supports [Schaffer’s] affidavit that he was not served with

the Notice until he found it in this mailbox on February 22. The USPS documents do not

evince service; rather, the USPS’ conclusion in its printout that ‘an individual’ was served

is not supported by the Green Card, which bears no individual’s signature.” Motion for

Judgment on the Pleadings, p. 9.

{¶ 14} The Board contends that the trial court improperly “expand[ed] the statute

of limitations” and the ten-day statutory period in R.C. 3319.081(C) through its use of the

Rules of Civil Procedure relating to service. We do not agree. R.C. 3319.081(C) plainly

states that the Board’s termination decision “shall be served upon the employee by

certified mail” and that the employee must file his appeal within ten days following the

“receipt” of such notice. The Board’s evidence that Schaffer received the Board’s

decision by certified mail on February 20th rested on the presumption that the certified

mail was received by Schaffer or a representative of Schaffer at Schaffer’s house on that

day. But Schaffer responded with an affidavit stating that neither he nor his

representative received the certified mail on February 20th. And the green card returned

by the postal employee in charge of delivering the certified mail did not contain any

signature identifying a person who signed for the certified mail. The statute is clear that

the ten-day period for filing an appeal does not begin to run until the certified mail is

received. Schaffer received the certified mail on Monday, February 22nd, when he found -8-

the certified mail in his mailbox.

{¶ 15} Finally, the Board contends that the trial court should have found the appeal

untimely based on the Board’s evidence that Schaffer received a hand-delivered copy of

the termination letter through a union representative more than ten days before he filed

his appeal in the court of common pleas. The trial court rejected this argument due to

the fact that this argument and evidence was raised for the first time in a reply brief.

Moreover, hand delivery is not the method of service specifically mandated by R.C.

3319.081(C), which requires service by certified mail.

{¶ 16} Schaffer timely filed his appeal within the ten-day period provided by R.C.

3319.081(C). The first assignment of error is overruled.

III. The Trial Court Erred In Finding The Board’s Decision Was

Unconstitutional

{¶ 17} The Board’s second assignment of error states:

THE BOARD PROVIDED APPELLEE SUFFICIENT PROCEDURAL DUE

PROCESS BEFORE TERMINATING HIS EMPLOYMENT BY PROVIDING

APPELLEE ORAL AND WRITTEN NOTICE OF THE CHARGES AGAINST

HIM IN BOTH THE PRE-TERMINATION NOTICE AND IN THE PRE-

TERMINATION HEARING.

{¶ 18} The parties agree that Schaffer’s termination is governed by R.C.

3319.081(C), which provides, in part: “contracts may be terminated only for violation of

written rules and regulations as set forth by the board of education or for incompetency, -9-

inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous

treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance,

or nonfeasance.”

{¶ 19} Ultimately, the Board cited dishonesty and immoral conduct from the list of

acceptable reasons for termination in R.C. 3319.081(C). The trial court found that the

Board’s decision was unconstitutional, because the Board failed to provide Schaffer with

due process prior to terminating his employment. In particular, the trial court found that

the Board failed to provide adequate notice of the charges against Schaffer. The Board

contends that the trial court erred in finding the Board’s decision unconstitutional.

According to the Board, Schaffer was provided sufficient procedural due process before

his employment was terminated when the Board provided him with oral and written notice

of the charges against him in both the pre-termination notice and in the pre-termination

{¶ 20} It is well-established that Schaffer was “entitled to oral or written notice of

the charges against him, an explanation of the employer’s evidence, and an opportunity

to present his side of the story.” (Citation omitted.) Cleveland Bd. of Edn. v. Loudermill,

470 U.S. 532, 546, 105 S. Ct. 1487, 84 L.Ed.2d 494 (1984). It is undisputed that Schaffer

was provided with notice of the Board’s evidence and an opportunity to present his side

of the story. The parties dispute whether Schaffer received oral or written notice of the

charges against him.

{¶ 21} The trial court agreed with Schaffer, stating that the January 25, 2021 notice

of the pre-termination hearing “failed to include all of the charges against [Schaffer.]” -10-

Decision and Judgment Entry (Aug. 31, 2021), p. 11. According to the trial court, “[e]ven

if the listing of the Director’s evidence in the January 25 notice may have apprised

[Schaffer] that he would be responding to a dishonesty charge, the Court concludes that

it would not be reasonable for [Schaffer] to conclude he was being charged with ‘immoral

conduct.’ ” Id. at 10-11. We do not agree.

{¶ 22} The January 25, 2021 pre-termination notice was clear that Schaffer’s

potentially criminal actions involving the killing of a dog, the disposal of the dog’s carcass,

and the subsequent attempt to cover up those actions through lying were the bases for

considering termination of Schaffer’s employment. The Board’s identification of this

particular conduct was sufficient to alert Schaffer of the charges against him and allow

him to adequately prepare for the pre-termination hearing. While including the words

“dishonesty” and “immoral conduct” in the January 25, 2021 notice would have more

cleanly tracked the language in R.C. 3319.081(C), there is no due process requirement

to include these exact words.

{¶ 23} The Board satisfied the due process standards enunciated in Loudermill.

Therefore, the trial court erred in finding that the Board’s decision was unconstitutional.

The second assignment of error is sustained.

IV. The Cause Must Be Remanded to Allow The Trial Court To Complete Its

Review of The Board’s Decision Under R.C. 2506.04.

{¶ 24} The Board’s third assignment of error states:

THE BOARD’S TERMINATION OF APPELLEE’S EMPLOYMENT WAS -11-

SUPPORTED BY A PREPONDERANCE OF RELIABLE, PROBATIVE,

AND SUBSTANTIAL EVIDENCE.

{¶ 25} When resolving an appeal from a Board of Education’s decision under R.C.

3319.081(C), the trial court, after considering the whole record, may determine that the

Board’s “order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of substantial, reliable, and

probative evidence * * * .” R.C. 2506.04. Due to the trial court’s finding that the Board’s

decision was unconstitutional, the trial court did not address whether the Board’s decision

was illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable and probative evidence. Therefore, on remand, the trial court will

have the opportunity, in the first instance, to review the whole record and make a finding

on whether the Board’s decision was illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable, and probative evidence. R.C.

2506.04. Based on its finding, the trial court will determine whether to affirm, disaffirm,

or modify the Board’s decision.

{¶ 26} The third assignment of error is overruled.

V. Conclusion

{¶ 27} Having sustained the Board’s second assignment of error, the decision of

the trial court is reversed, and the cause will be remanded for the trial court to make a

determination whether the Board’s decision to termination Schaffer’s employment was

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of -12-

substantial, reliable, and probative evidence.

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Jeffrey M. Silverstein Serah E. Siemann Jessica K. Philemond Elizabeth A. Braverman Bryan A. Niemeyer Hon. Stacy M. Wall