An Ohio appeals court has affirmed the ruling of a lower court, which found that Kent State University’s (KSU) decision to reassign an assistant football coach constituted a breach of contract because KSU had to employ the coach as a defensive coordinator under the contract.
The contract in question called for plaintiff James A. Fleming to be employed by KSU as its defensive coordinator for a period of 28 months through June 30, 2012. Fleming’s starting salary was $71,500 per year, but he could receive cost of living or merit-based raises. In addition, the contract provided if the football team achieved certain accomplishments, Fleming would receive bonuses of specific amounts depending on the type of accomplishment.
As part of the contract, Fleming agreed to abide by all National Collegiate Athletic Association (NCAA) rules and, “on an annual basis, report all athletic-related income from sources other than KSU, including but not limited to, income from annuities, sports camps, housing benefits, complimentary ticket sales, television and radio programs, endorsements or consultation Contracts with athletic shoe, apparel, or equipment manufacturers.”
Also, the contract provided that, subject to Fleming’s continuing compliance with NCAA and KSU rules, if the contract was terminated prior to June 30, 2012, except for cause, the initiating party had to pay the other party an “agreed upon early termination cost.” KSU agreed if it was the initiator, “it shall pay the balance of the then in effect base salary due for the remaining term.”
At the trial court level, Fleming testified that KSU hired him as an assistant defensive coach in the last year of the previous head coach’s contract. After a new head coach was hired, Fleming interviewed for a position on his staff. Fleming testified that sometime in the first two weeks of January 2011, Tom Kleinlein, KSU’s executive associate athletic director, orally told him, “as a courtesy,” that Hazell had “completed his staff” and “there would be no football coaching job available for (him) at (KSU).” On January 21, 2011, Kleinlein sent Fleming a letter stating: “With the new leadership of the football program in the Athletic Department, your position in the department is being reassigned. Attached is the position description for your reassignment. Your reassignment is effective on Monday, February 14, 2011. Should you choose not to accept your new assignment, we will consider your decision as your resignation.”
The description was for assistant to the athletic director, a non-coaching position.
Fleming did not accept the new position.
On February 18, 2011, Joel Nielsen, KSU’s director of athletics, sent Fleming the following letter: “Our attorney has been in communication with your attorney but despite our attorney trying to somewhat accommodate your situation, those negotiations failed. It is now necessary to make KSU’s final, formal position regarding your status clear.
You are expected to show up for work at 9:00 a.m. Monday, February 21 at the office of Thomas Kleinlein. I have attached the job description which outlines the duties you are to undertake and for which we will provide you an office space and phone. You will continue to receive the same salary and health and welfare benefits that you have been receiving. We will provide you appropriate release time for job interviews and travel to them. Be advised that failure to report for work would be an act of insubordination for which you would be disciplined up to and including termination. Termination would include removing you from the payroll and cancellation of all benefits.”
Fleming did not go to work on February 21, 2011.
On March 7, 2011, Lester Lefton, KSU’s president, sent Fleming a termination letter.
Fleming sued. The Court of Claims found Fleming “could reasonably anticipate reassignment within the coaching staff, but not to a non-coaching position. The Court of Claims found the reassignment amounted to a constructive discharge, so KSU breached the contract, and Fleming was entitled to judgment.”
KSU appealed, arguing, among other things, that it could reassign Fleming because the contract did not address reassignment. Furthermore, “KSU maintains Fleming’s new duties were consistent with his qualifications and not so unpleasant as to amount to a constructive discharge,” wrote the court.
In considering the university’s argument, the appeals court considered “the test for determining whether an employee was constructively discharged,” or “whether the employer’s actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign.” Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 1996 Ohio 265, 664 N.E.2d 1272 (1996)
The appeals court went further, noting that “it is apparent KSU breached the contract on February 14, 2011, the effective date of Fleming’s reassignment.
Even so, KSU had to employ Fleming as a football defensive coordinator under the contract. Regardless of how tolerable his new position would be, KSU’s reassignment of Fleming breached the contract because KSU was no longer employing Fleming in the position to which it had agreed to employ him. Thus, the Court of Claims correctly found the act of reassignment constituted a breach of contract even if the court’s constructive discharge analysis was in error.”
James M. Fleming v. Kent State University; Ct. App. Ohio, 10th App. Dist.; No. 13AP-942; 8/12/14
Attorneys of Record: (for appellant) John F. Myers. (for appellee) Michael DeWine, Attorney General, Randall W. Knutti and Christopher P. Conomy,
