Tomety v. Columbus City Schools

[Cite as Tomety v. Columbus City Schools, 2018-Ohio-937.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Folly G. Tomety, :
Plaintiff-Appellant, : No. 17AP-697
(C.P.C. No. 16CV-8544)
v. :
(REGULAR CALENDAR)
Columbus City Schools et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on March 13, 2018
On brief: Folly G. Tomety, pro se. Argued: Folly G. Tomety.
On brief: Loren L. Braverman, for appellees. Argued:
Loren L. Braverman.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Folly G. Tomety, appeals pro se from a judgment of the
Franklin County Court of Common Pleas granting a motion for judgment on the pleadings
filed by defendants-appellees Columbus City Schools Board of Education ("CCS"), Cassady
Alternative Elementary School ("Cassady"), Victoria Frye, Dianne McLinn, and Paula
Baldwin (collectively, "appellees"). Because we conclude the trial court did not err by
finding Tomety was an at-will employee as a casual or day-to-day substitute teacher and,
therefore, appellees were entitled to judgment as a matter of law on Tomety's claim for
wrongful termination, we affirm.
I. Facts and Procedural History
{¶ 2} Tomety filed a pro se complaint in the Franklin County Court of Common
Pleas on September 9, 2016. Although the complaint did not explicitly set forth a cause of
No. 17AP-697 2
action, the trial court ultimately concluded Tomety sought to assert a claim for wrongful
termination. In the complaint, Tomety asserted he began working for CCS in 2004 and
that on September 14 and 15, 2015, he was assigned as a substitute teacher for a special
education teacher at Cassady. Tomety claimed that while preparing his lunch on the second
day of that assignment, Baldwin, who was the principal at Cassady, asked him to leave the
building. Tomety asserted that when he asked why, Baldwin told him that two students
alleged they had seen him looking at something inappropriate on his cellular phone.
Tomety claimed CCS subsequently conducted a hearing, presided over by McLinn. Tomety
claimed no formal decision was issued following the hearing, but his employment was
terminated.
{¶ 3} Appellees filed an answer admitting that Tomety was employed by CCS as a
substitute teacher, he was assigned to Cassady on September 15, 2015, and he was asked to
leave the school building on that date after two students reported he was looking at
inappropriate pictures on his cellular phone. Appellees further admitted that Tomety was
given a hearing concerning his conduct and that, following the hearing, he was informed
that CCS would no longer use him as a substitute teacher. Appellees' answer asserted
multiple defenses, including Tomety was an at-will employee whose employment was
subject to termination at any time for any reason, with or without notice.
{¶ 4} Appellees subsequently moved for judgment on the pleadings, pursuant to
Civ.R. 12(C), asserting the complaint failed to allege any set of facts that would entitle
Tomety to relief. Tomety filed a memorandum in opposition that included various exhibits
purporting to support his claim that he was improperly terminated. On August 29, 2017,
the trial court issued a decision and entry granting appellees' motion for judgment on the
pleadings.
II. Assignments of Error
{¶ 5} Tomety appeals and assigns the following two assignments of error for our
review:
[I.] The Court of Common Pleas erred in granting s (appellee)
Columbus City Schools et al, judgment by stating that I didn't
provide proof that I request an independent investigation.
[II.] The Court of The Common Pleas erred in granting
defendants, Columbus City Schools et al, judgment based on
No. 17AP-697 3
the fact that I had two days assignment at Cassady Elementary
Schools so I was considered as Casual substitute so I felt in the
category of "casual" or day-to-day substitute.
(Sic passim.)
III. Discussion
{¶ 6} Pursuant to Civ.R. 12(C), a party may move for judgment on the pleadings
after the pleadings have closed but within such time as not to delay trial. A motion for
judgment on the pleadings tests the allegations contained in the complaint and presents
questions of law. Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-
2048, ¶ 5 (10th Dist.). In reviewing the motion, the court must construe all material
allegations in the complaint, and any reasonable inferences drawn from those allegations,
as true and in favor of the non-moving party. Id. The court may grant a motion for
judgment on the pleadings only if no disputes of material fact exist and the pleadings
demonstrate the moving party is entitled to judgment as a matter of law. Curtis v. Ohio
Adult Parole Auth., 10th Dist. No. 04AP-1214, 2006-Ohio-15, ¶ 24. We review de novo a
decision granting a motion for judgment on the pleadings. Franks at ¶ 5.
{¶ 7} The trial court granted appellees' motion for judgment on the pleadings based
on its conclusion that Tomety was a casual or day-to-day substitute teacher and was not
entitled to written notice of non-renewal of employment. The trial court further concluded
that as a casual or day-to-day substitute teacher, Tomety was an at-will employee subject
to termination with or without cause. Taking the facts alleged in the complaint as true, the
trial court concluded that CCS's termination of Tomety was permissible under the law and,
therefore, appellees were entitled to judgment as a matter of law.
{¶ 8} In his first assignment of error, Tomety asserts the trial court erred by
granting CCS's motion for judgment on the pleadings because it concluded he failed to
provide proof that he requested an independent investigation. As discussed more fully
below, the trial court concluded Tomety was an at-will employee subject to termination
with or without cause. Although Tomety asserted in his complaint that he requested that
CCS conduct a technical investigation into the students' allegations, this issue formed no
part of the trial court's decision in granting the motion for judgment on the pleadings. The
question of whether Tomety requested an independent investigation of the students'
No. 17AP-697 4
allegations was not material to determining whether he was an at-will employee and this
argument is not well-taken.
{¶ 9} Accordingly, we overrule Tomety's first assignment of error.
{¶ 10} In his second assignment of error, Tomety claims the trial court erred by
concluding he was a casual or day-to-day substitute teacher. Tomety asserts in his brief on
appeal that he had a long-term substitute license and had previously held long-term
substitute assignments.
{¶ 11} Generally, under Ohio law, "absent an employment contract, an employee is
an employee-at-will and may be terminated at any time for any lawful reason or for no
reason at all." Blackburn v. Am. Dental Ctrs., 10th Dist. No. 10AP-958, 2011-Ohio-5971,
¶ 7. With respect to substitute teachers, R.C. 3319.10 provides that "[t]eachers may be
employed as substitute teachers for terms not to exceed one year for assignment as services
are needed to take the place of regular teachers absent on account of illness or on leaves of
absence or to fill temporarily positions created by emergencies; such assignment to be
subject to termination when such services no longer are needed." The statute expressly
states that "[t]eachers employed as substitutes on a casual or day-to-day basis shall not be
entitled to the notice of nonre-employment prescribed in section 3311.81 or 3319.11 of the
Revised Code." R.C. 3319.10. Based on this provision, the Supreme Court of Ohio has
concluded there is a distinction between long-term substitute teachers, who are entitled to
written notice of non-renewal of employment and casual or day-to-day substitute teachers,
who are not entitled to written notice of non-renewal. State ex rel. Dennis v. Bd. of Edn.,
28 Ohio St.3d 263, 266 (1986). See also State ex rel. Menzie v. State Teachers Retirement
Bd. of Ohio, 10th Dist. No. 09AP-1194, 2010-Ohio-3485, ¶ 19 ("R.C. 3319.10 refers to two
types of substitute teachers: (1) long-term substitute teachers, and (2) 'casual or day-to-day'
substitute teachers."). In Dennis, the court determined the teacher was a long-term
substitute teacher because he was "employed during the 1984-1985 school year for clearly
defined periods to replace specific individuals," "[u]nlike substitute teachers employed on
a casual basis, his classroom assignments did not vary day by day," and he was not paid on
a per diem basis but was compensated according to the regular teachers' pay schedule.
Dennis at 266.
No. 17AP-697 5
{¶ 12} As explained above, in reviewing CCS's motion for judgment on the
pleadings, the trial court was required to construe all material allegations in the complaint,
and any reasonable inferences drawn from those allegations, as true and in favor of Tomety,
as the non-moving party. Judgment on the pleadings may only be granted if no disputes of
material fact exist and the pleadings demonstrate that the moving party is entitled to
judgment as a matter of law. With respect to his employment status, Tomety's pro se
complaint contained only two material factual assertions: (1) he began working for CCS in
September 2004, and (2) he was assigned to Cassady for September 14 and 15, 2015, as a
substitute teacher for a special education teacher. Tomety did not assert he had an
employment contract with CCS. Thus, the only evidence set forth in the complaint
pertaining to the Dennis factors was that Tomety had a two-day assignment at Cassady.
This suggests Tomety's assignments were variable and, therefore, he was employed as a
casual or day-to-day substitute teacher. To the extent Tomety seeks to argue on appeal that
he held a long-term substitute license or was previously employed as a long-term substitute
teacher in prior years, those claims were not contained in his complaint and are not
properly before the court. Under these circumstances, construing the assertions contained
in the complaint in Tomety's favor, we cannot conclude the trial court erred by holding that
Tomety was a casual or day-to-day substitute teacher. Further, we cannot conclude the trial
court erred by holding Tomety was an at-will employee subject to termination for any lawful
reason and CCS was entitled to judgment as a matter of law on Tomety's wrongful
termination claim. See Menzie at ¶ 20 ("As a 'casual or day-to-day' substitute teacher,
Menzie was employed for each day the Toledo City School District needed her services. Her
employment terminated when the day's final school bell rang because, at that point, the
district no longer needed her services.").
{¶ 13} Accordingly, we overrule Tomety's second assignment of error.
IV. Conclusion
{¶ 14} For the foregoing reasons, we overrule Tomety's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and HORTON, JJ., concur.