IN THE UNITED STATES DISTRICT COURT - Amazon S3 › s3.documentcloud.org › ... · 5. Defendant, JOHN NOLAN, is the superintendent of the Wellington Exempted Village Schools and

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANTOINETTE NOVOTNY ) Civil Action Number: 420 South Main Street Wellington, OH 44090

)

Plaintiff, )

-vs- )

)

JOHN NOLAN, individually and in his official capacity as Superintendent, Wellington Exempted Village Schools 201 South Main Street Wellington, OH 44090

and

STANLEY MOUNTS, solely in his official capacity as Interim Superintendent, Wellington Exempted Village Schools 201 South Main Street Wellington, OH 44090

and

WELLINGTON EXEMPTED VILLAGE SCHOOLS 201 South Main Street Wellington, OH 44090 and

) ) )

) )

)

)

) ) ) ) )

VERIFIED COMPLAINT Trial by Jury Endorsed Hereon

Case: 1:15-cv-00013-DAP Doc #: 1 Filed: 01/05/15 1 of 32. PageID #: 1

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JOE CALFO, President, Board of Education of the WELLINGTON EXEMPTED VILLAGE SCHOOLS 201 South Main Street Wellington, OH 44090 and JACQUIE DOVIN, Member, Board of Education of the WELLINGTON EXEMPTED VILLAGE SCHOOLS 201 South Main Street Wellington, OH 44090 and AYERS RATLIFF, Member, Board of Education of the WELLINGTON EXEMPTED VILLAGE SCHOOLS 201 South Main Street Wellington, OH 44090 and SALLY STEWART, Member, Board of Education of the WELLINGTON EXEMPTED VILLAGE SCHOOLS 201 South Main Street Wellington, OH 44090 and LOIS WULFHOOP, Member, Board of Education of the WELLINGTON EXEMPTED VILLAGE SCHOOLS 201 South Main Street Wellington, OH 44090

) ) ) ) ) ) ) ) ) ) ) ) ) )

)

Defendants. )


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INTRODUCTION

1. This is an action brought to secure enforcement of federally protected

rights of free expression arising out of governmental restriction, punishment and

retaliation in violation of the First and Fourteenth Amendments to the Constitution

of the United States and in its application. The plaintiff seeks declaratory and

injunctive relief and damages.

CLAIMS AND JURISDICTION

2. This action is initiated pursuant to the Civil Rights Act of 1871, 42

U.S.C. §1983, to redress the deprivation under color of statue, ordinance, regulation,

custom or usage of rights, privileges and immunities secured to plaintiff under the

First and Fourteenth Amendments to the United States Constitution. Jurisdiction is

invoked pursuant to 28 U.S.C §§ 1331 and 1343(3) and (4). To the extent declaratory

relief is sought, claims are asserted pursuant to 28 U.S.C. §§ 2201 and 2203.

3. At all times relevant to this complaint, defendants have acted and

continue to act under color of law and under color of the statutes, ordinances, charter,

regulations, customs and usages governing the government of Wellington, Ohio’s

public education system.

PARTIES

4. Plaintiff, ANTOINETTE NOVOTNY, is a citizen of the United States

and has been a lifelong resident of the Village of Wellington, Ohio.


4

5. Defendant, JOHN NOLAN, is the superintendent of the Wellington

Exempted Village Schools and chief executive officer of the public school district

obligated to operate in accordance with the Constitution of the United States, the

State of Ohio, the United States Code, the Ohio Revised Code and the rules and

regulations governing the conduct of a public official and is responsible for the

implementation and enforcement of all policies, practices, procedures, acts, and

conduct regarding the administration of matters affecting the school district, its

administrators, faculty and students of the school district in a manner consistent with

the Constitution of the United States. Defendant Nolan is believed to be on FMLA as

of the end of December, prior to rescheduling the termination of the plaintiff on

Wednesday, January 7, 2015.

6. Defendant, STANLEY MOUNTS, is the “temporary” superintendent of

the Wellington Exempted Village Schools and chief executive officer of the public

school district obligated to operate in accordance with the Constitution of the United

States, the State of Ohio, the United States Code, the Ohio Revised Code and the

rules and regulations governing the conduct of a public official and is responsible for

the implementation and enforcement of all policies, practices, procedures, acts, and

conduct regarding the administration of matters affecting the school district, its


the Constitution of the United States.


5

7. Defendant, WELLINGTON EXEMPTED VILLAGE SCHOOLS is a

public entity created by statute under the laws of the State of Ohio and which must

operate in accordance with the laws of the State of Ohio which, inter alia, relating to all

policies, practices, procedures, acts, and conduct regarding the administration of

matters affecting the school district, its administrators, faculty and students of the

school district in a manner consistent with the Constitution of the United States.

8. Defendant, JOE CALFO, is the president of the board of education of

the Wellington Exempted Village Schools and is responsible for all policies in order

to have the school district to operate in accordance with the Constitution of the

United States, the State of Ohio, the United States Code, the Ohio Revised Code and

the rules and regulations governing the conduct of a public official and is responsible

for the implementation and enforcement of all policies, practices, procedures, acts,

and conduct regarding the administration of matters affecting the school district, its



9. Defendant, JACQUIE DOVIN, is a member of the board of education

of the Wellington Exempted Village Schools and is responsible for all policies in

order to have the school district to operate in accordance with the Constitution of the





6




10. Defendant, AYERS RATLIFF, is a member of the board of education









11. Defendant, SALLY STEWART, is a member of the board of education










7

12. Defendant, LOIS WULFHOOP, is a member of the board of

education of the Wellington Exempted Village Schools and is responsible for all

policies in order to have the school district to operate in accordance with the

Constitution of the United States, the State of Ohio, the United States Code, the Ohio

Revised Code and the rules and regulations governing the conduct of a public official

and is responsible for the implementation and enforcement of all policies, practices,

procedures, acts, and conduct regarding the administration of matters affecting the

school district, its administrators, faculty and students of the school district in a

manner consistent with the Constitution of the United States.

COUNT I – FIRST AMENDMENT FREEDOM OF EXPRESSION RELATING TO PUBLIC CONCERN OVER DEFENDANTS’ PROPOSED

CUTS IN PUBLIC SCHOOL MUSIC EDUCATION

13. Plaintiff reasserts the foregoing allegations and incorporates them by

reference as if fully set forth herein.

14. Plaintiff Toni Novotny is a native of Wellington, Ohio, is a product of

its public school system and has devoted her entire life to music and music education.

15. Plaintiff Toni Novotny has been acknowledged by the Wellington

community and music educational professionals statewide as a passionate, devout and

highly competent music educator, being a music advocate and educator for 25 years.

16. Wellington has maintained a superlative band educational program for

over forty (40) years, originally under the Wellington High “Dukes”

Marching/Concert Band leadership under John Watkins from 1976 through 1999.


8

17. Toni Novotny succeeded the leadership of the Wellington High

“Dukes” Marching/Concert Band and continues to require student precision, student

commitment and a student competitive drive, maintaining Wellington’s statewide

reputation for and on behalf of Wellington which included Ms. Novotny during her

years as part of the Wellington band in the 1980’s under the direction of John Watkins

18. The Wellington Marching Band went to the state finals in 1996, 1997

and 1998, at which point Ms. Novotny took over the program in 1999.

19. Plaintiff Toni Novotny has remained the face and persona of the

Wellington High “Dukes” Marching/Concert Band and continues to bring statewide

and national recognition to the small Northeast Ohio school district requiring her to

raise funds for the band from a supportive Wellington community and even appearing

at Wellington Exempted Village School board of education meetings as the

education’s public advocate in her zealous battles in recent years with Defendant John

Nolan, Wellington’s present superintendent who had advocated music personnel cuts.

20. Under Ms. Novotny’s direction and leadership, the Wellington High

“Dukes” Marching Band again went to the state finals in 2000, 2002 and 2003 and has

qualified every year thereafter since 2005, ten (10) straight years, and received Superior

Ratings in 2003, 2009 and 2012.

21. In addition, under Ms. Novotny’s direction and leadership, the

Wellington Concert Band has qualified for the state large group competition every

year since 2005 and received a Superior Rating in 2013.


9

22. Also under Ms. Novotny’s direction and leadership, the Wellington High

“Dukes” Marching Band became the 2006 Grand Champions at the Amherst

competition and the 2008 Best Marching and Maneuvering Overall at Brunswick

beating out marching bands from schools three (3) or more times the size of

Wellington High School.

23. In addition to her advocacy at public meetings and her leadership at the

high school level, for 13 years Ms. Novotny, with music teaching teammate Gayle

Hughes, also led the McCormick Middle School beginner band program which has

served in part as a predicate from a statewide recognized music education program.

24. In addition, as part of her leadership as the face of Wellington’s

recognized music education programs, Ms. Novotny created and directs the

Wellington Jazz Band without compensation and performs at churches, the local

Eagles Club, for businesses, Wellington’s Relay for Life and at the town gazebo.

25. Plaintiff Toni Novotny has become a fixture before the board of

education and before seven (7) succeeding school superintendents, including the

latest, defendant John Nolan, as lobbying the public concern for the preservation and

maintenance of Wellington’s preeminence as a statewide power in high school music

education.

26. Because of the high success achieved with students by Ms. Novotny,

defendants sought to have the community generate $2,500,000.00 for a new


10

performing arts auditorium which could showcase the award-winning efforts of Ms.

Novotny and the recognition she has amassed on behalf of the community.

27. On May 10, 2014, the parents of a band student scheduled to graduate

from Wellington High School on June 1, 2014, filed a complaint against Toni

Novotny, which is now known as the Kim Meyers report (Meyers Report).

28. The student graduated on June 1, 2014.

29. Defendants undertook no investigation of the actual student harassment

on November 18, 2013, including cyberbullying by band members of the student, did

not contact police and took no disciplinary action against students or Ms. Novotny,

whom the parented claimed harassed their daughter because of her failure to show up

for various performances.

30. Rather because of the deteriorating economic state of affairs defendant

Wellington Exempt Village Schools finds itself in under the administration of

defendant John Nolan and defendant board members and the continuing battle with

Ms. Novotny whose fight to retain music education as a priority is inconsistent with

defendant Nolan’s desire to cut a music staff member at the beginner level (Band

grades 5/6). Nolan, under color of state law, chose to ignore Wellington High School

students’ harassment of another student in order to punish Toni Novotny and

diminish her ability and standing over budget cuts proposed by Defendant John

Nolan for Wellington music education.


11

31. On October 9, 2014, the local newspaper, the Wellington Enterprise,

trumpeted a headline “Band Changes Called A ‘Travesty’,” expressing outrage over

music instruction. [Exhibit 1]

32. The “travesty” quote criticizing defendant Nolan and others and the

public concern about cutting one of the successful programs for which Wellington is

known was Ms. Novotny.

33. The controversy over the public concern about Wellington’s major

recognition as a significant music powerhouse under the direction of Plaintiff Toni

Novotny was contrasted by the public position by Defendant Nolan forthrightly

identifying what has occurred under the direction of Defendant Nolan: “This district

is going to be bankrupt.” [Exhibit 1]

34. Notwithstanding the public remarks setting up the public concern battle

between defendant Nolan and plaintiff Novotny, between May 10, 2014 through

October 31, 2014, defendants authorized public school funds to conduct an

investigation under color of state law solely against Ms. Novotny as a means to end

her 16-year teaching and leadership relationship with Wellington middle and high

schools student by firing her.

35. The five and one half (5 ½)-month investigation created under color of

state law intentionally ignored student cyberbullying and, at the direction of defendant

Nolan, sought to blame student bullying solely on Ms. Novotny as a distraction to

defendant Nolan’s budget overrun, even though, when she learned about the alleged


12

allegations against band students, she addressed the issues with band officers first and

then affirmatively admonished the entire band against any bullying or harassment.

36. In prejudging allegations against Plaintiff Toni Novotny, Defendant

Nolan gave himself away by openly expressing that he could use the allegations to

“nail” her under color of state law Ms. Novotny by terminating her in in 2014 (now

set for January 7, 2015) because of her public stance in supporting music education by

using a 2013 student complaint (Meyers Report) who had graduated with the objective

of ending Ms. Novotny’s public employment and silence any further music education

advocacy and budget cut challenges generated by defendant Nolan.

37. In November, 2013, Ms. Novotny reported to the proper administrative

authority of the Wellington High School that the same student, six (6) months prior

to the complaint, (Meyers Report), threatened suicide.

38. The parents of the student at the time were provided information about

Applewood, a non-profit organization addressing potential teen-suicide issues.

39. By September 2013, defendant John Nolan, who was responsible as

superintendent for generating substantial debt for the school district, came to plaintiff

to ask that she use her substantial community influence to generate funds from the

Wellington Band Boosters.

40. Ms. Novotny did so and the Wellington Band Boosters were recognized

at the October 15, 2013 board meeting for their $5000 donation.


13

41. In January 2014, with the deadline for accumulated funds approaching,

defendant John Nolan again came to the plaintiff to ask her a second time to use her

substantial community influence to generate an additional $5000 in funds from the


42. Ms. Novotny made no guarantees but would approach the booster club

with his request. The band boosters denied the request, enraging defendant John

Nolan.

43. With Ms. Novotny’s public opposition relative to the public concern of

cutting music education and defying Defendant Superintendent John Nolan’s request

that Ms. Novotny’s ask for more money from the Wellington Band Boosters,

Defendant Nolan sought to punish Ms. Novotny under color of state law because of

her support for the public concern of her distinguished music education programs, a

centerpiece of Wellington’s exemplary reputation.

44. Even though an allegation from 2013 involving a student who graduated

in June 2014 was unfounded and rendered moot by the graduation, Defendant Nolan

suspended Toni Novotny in the middle of the first semester of the next school year

after her refusal to seek additional funding, in November, 2014, with a disposition

under color of state law to terminate her public employment.

45. The suspension by Defendant Nolan under color of state law was and

continues to be in retaliation for her zealous advocacy of music education and


14

defendant Nolan’s anger over Novotny’s to garner for Nolan additional funds from

the Wellington Band Boosters.

46. The Wellington community was and continues to be outraged at the

actions of the defendants over the apparent retaliation by the defendants.

47. Ms. Novotny’s zealous advocacy of Wellington’s music programs,

despite Nolan’s opposition because he has failed to manage budgetary issues and

because he has been embarrassed that Ms. Novotny’s strong direction and leadership

which he perceives as defiance in his role as the top government school official in

Wellington, has not deterred Ms. Novotny from advocating for Wellington’s students.

48. In an additional retaliatory move in November, 2014 and December,

2014 under color of state law, defendants’ suspension of Toni Novotny suspended all

Wellington High “Dukes” public appearances at athletic events and holiday affairs,

triggering broad community anger and outrage.

49. In their rush to punish Plaintiff Novotny, defendant brought on an

“interim” band director with a troubled public education background and, shortly

after hiring him, fired him.

50. All the band activities outside the normal school day, which benefit

students and the community, remain shut down, punishing Wellington students

because Defendants are solely focused in discharging under color of state law Plaintiff

Toni Novotny.


15

51. A front-page banner headline on December 18, 2014, “Anger Over

Novotny Suspension,” in the Wellington Enterprise best captured the sentiment of the

community while, at the same time, defendant John Nolan aggressively pursued

efforts under color of state law, to end Ms. Novotny’s career and destroy over forty

(40) years of the Wellington High “Dukes” Marching Band, among other programs.

[Exhibit 2]

52. The “Anger Over Novotny Suspension,” is subtitled “Band MIA As Director

[Novotny] Awaits Hearing.” [Exhibit 2]

53. On November 18, 2014, Defendants were so anxious to employ

governmental authority in ending Toni Novotny’s public employment that they

permitted private parties into Executive Session to discuss Ms. Novotny’s

employment and allegations set forth from the Meyers Report but which barred the

public from their deliberations.

54. Defendant John Nolan misrepresented the continuing delay of firing

Toni Novotny as caused by the teachers’ union when the delay was caused by

Defendant Nolan’s attorney on December 5, 2014.

55. Defendant John Nolan also misled the community and media by

volunteering to the media materials which had not been in the public employment file

of Ms. Novotny and otherwise failing to disclose that the bullying of a formerly

graduated student was by other students which defendants did nothing about.


16

56. In order to discredit Toni Novotny, defendants released allegations that

Toni Novotny was engaged in “bullying” before she ever had a hearing, resulting in a

front-page headline, “Band Director Accused of Bullying,” in the December 20, 2014 Elyria

Chronicle Telegram.

57. Defendants hid from the public that one student who had already

graduated had been bullied by other students and that Ms. Novotny, when it came to

her attention, admonished students about bullying a fellow student.

58. Defendants, fully aware of the students were who were involved in

bullying, took no actions against the students.

59. To chill Toni Novotny from further expression concerning her

opposition to music education cuts and to punish her for not soliciting more money

for the proposed $2,500,000.00 performing arts auditorium, defendants, under color

of state law and with governmental authority, has engaged and continues to engage in

a campaign to seek community support to discharge Toni Novotny which has

backfired because of Ms. Novotny’s commitment to excellence and acknowledgement

of her success.

60. Defendants freely underwrote with public funds nearly six months of an

investigation about one graduated student which had a pre-conceived conclusion

based on discredited allegations and wrongheadedness that Novotny was bullying a

student.


17

61. By spending government funds on a way to get rid of Toni Novotny

instead of searching for ways to cut Wellington’s distinguished music education

programs, defendants could use their governmental authority to chill Ms. Novotny’s

free expression relative to her advocacy for the Wellington High “Dukes”

Marching/Concert Band and other programs.

62. Because defendants continue to act under color of state law, plaintiff has

been and continues to be chilled in her free expression because of the jeopardy arising

out of the unconstitutional actions of the defendants.

63. Plaintiff believes that the irreparable injury she faces is exacerbated

because defendant Nolan seeks to punish her for her constitutional exercise of her

very public comments before the board and in the local news.

64. Plaintiff has no adequate remedy at law and suffers continuing

irreparable injury because she faces jeopardy for her exercise of free speech which is

perceived by the defendants to be adverse to their interests.

Plaintiff reasonably believes that defendant Nolan and communicated with defendant

Mounts whose first official school day started on Monday, January 5, 2015 concerning

defendant Nolan’s efforts to terminate the plaintiff.

65. With no adequate remedy at law now in 2015 with preconceived

decisions to remove Plaintiff Toni Novotny from public employment, plaintiff is

barred from further expression because defendants seek to remove her as a public

school teacher over allegations of students’ bullying another student back in 2013 and


18

the allegations from the Meyers Report, attempting to place exclusive blame on

Plaintiff Toni Novotny.

66. Defendants know and have known that, if any bullying occurred, they

had a responsibility to investigate the actual persons involved, rather than the teacher,

but wholly disregarded their responsibility to do so in order to punish Plaintiff Toni

Novotny for her expression against cuts in music education.

67. As a result of the acts and conduct of the defendants, plaintiff has been

denied and continues to be denied the future right of expression and assembly.

68. As a result of the acts and conduct of the defendants, plaintiff has

suffered emotional distress, personal injury and deprivation of rights not to be

retaliated against for asserting protected rights insured under the Constitution of the

United States.

69. In order to restore plaintiff’s federally protected rights, defendants will

suffer no loss in the event injunctive relief is granted.

COUNT II – PROCEDURAL AND SUBSTANTIVE DUE PROCESS CLAIMS UNDER THE FOURTEENTH AMENDMENT RELATING TO DEFENDANTS’ INTENDED DISCHARGE OF THE PLAINTIFF FROM

PUBLIC EMPLOYMENT

70. Plaintiff reasserts the foregoing allegations and incorporates them by

reference as if fully set forth herein.

71. Plaintiff Toni Novotny is a native of Wellington, Ohio, is a product of

its public school system and has devoted her entire life to music and music education.


19

72. Plaintiff Toni Novotny has been acknowledged by the Wellington

community and music educational professionals statewide as a passionate, devout and

highly competent music educator, being a music advocate and educator for 25 years.

73. Wellington has maintained a superlative band educational program for

over forty (40) years, originally under the Wellington High “Dukes”

Marching/Concert Band leadership under John Watkins from 1976 through 1999.

74. Toni Novotny succeeded the leadership of the Wellington High

“Dukes” Marching/Concert Band and continues to require student precision, student

commitment and a student competitive drive, maintaining Wellington’s statewide

reputation for and on behalf of Wellington which included Ms. Novotny during her

years as part of the Wellington band in the 1980’s under the direction of John Watkins

75. The Wellington Marching Band went to the state finals in 1996, 1997

and 1998, at which point Ms. Novotny took over the program in 1999.

76. Plaintiff Toni Novotny has remained the face and persona of the

Wellington High “Dukes” Marching/Concert Band and continues to bring statewide

and national recognition to the small Northeast Ohio school district requiring her to

raise funds for the band from a supportive Wellington community and even appearing

at Wellington Exempted Village School board of education meetings as the

education’s public advocate in her zealous battles in recent years with Defendant John

Nolan, Wellington’s present superintendent who had advocated cuts.


20

77. Under Ms. Novotny’s direction and leadership, the Wellington High

“Dukes” Marching Band again went to the state finals in 2000, 2002 and 2003 and has

qualified every year thereafter since 2005, ten (10) straight years, and received Superior

Ratings in 2003, 2009 and 2012.

78. In addition, under Ms. Novotny’s direction and leadership, the

Wellington Concert Band has qualified for the state large group competition every

year since 2005 and received a Superior Rating in 2013.

79. Also under Ms. Novotny’s direction and leadership, the Wellington High

“Dukes” Marching Band became the 2006 Grand Champions at the Amherst

competition and the 2008 Best Marching and Maneuvering Overall at Brunswick

beating out marching bands from schools three (3) or more times the size of

Wellington High School.

80. In addition to her advocacy at public meetings and her leadership at the

high school level, for 13 years Ms. Novotny, with music teaching teammate Gayle

Hughes, also led the McCormick Middle School beginner band program which has

served in part as a predicate from a statewide recognized music education program.

81. In addition, as part of her leadership as the face of Wellington’s

recognized music education programs, Ms. Novotny created and directs the

Wellington Jazz Band without compensation and performs at churches, the local

Eagles Club, for businesses, Wellington’s Relay for Life and at the town gazebo.


21

82. Plaintiff Toni Novotny has become a fixture before the board of

education and before seven (7) succeeding school superintendents, including the

latest, defendant John Nolan, as lobbying the public concern for the preservation and

maintenance of Wellington’s preeminence as a statewide power in high school music

education.

83. Because of the high success achieved with students by Ms. Novotny,

defendants sought to have the community generate $2,500,000.00 for a new

performing arts auditorium which could showcase the award-winning efforts of Ms.

Novotny and the recognition she has amassed on behalf of the community.

84. On May 10, 2014, the parents of a band student scheduled to graduate

from Wellington High School on June 1, 2014, filed a complaint that other band

students and the teacher harassed the student.

85. The student graduated on June 1, 2014.

86. Defendants undertook no investigation of the actual student harassment

on November 18,, 2013, including cyberbullying by band members of the student, did

not contact police and took no disciplinary action against students or Ms. Novotny,

whom the parents claimed harassed their daughter because of her failure to show up

for various performances.

87. Rather because of the deteriorating economic state of affairs defendant

Wellington Exempt Village Schools finds itself in under the administration of

defendant John Nolan and defendant board members and the continuing battle with


22

Ms. Novotny whose fight to retain music education as a priority is inconsistent with

defendant Nolan’s desire to cut a music staff member at the beginner level (Band

grades 5/6), Nolan, under color of state law, chose to ignore Wellington High School

students’ harassment of another student in order to punish Toni Novotny and

diminish her ability and standing over budget cuts proposed by Defendant John

Nolan for Wellington music education.

88. On October 9, 2014, the local newspaper, the Wellington Enterprise,

trumpeted a headline “Band Changes Called A ‘Travesty’,” expressing outrage over

music instruction. [Exhibit 1]

89. The “travesty” quote criticizing defendant Nolan and others and the

public concern about cutting one of the successful programs for which Wellington is

known was Ms. Novotny.

90. The controversy over the public concern about Wellington’s major

recognition as a significant music powerhouse under the direction of Plaintiff Toni

Novotny was contrasted by the public position by Defendant Nolan forthrightly

identifying what has occurred under the direction of Defendant Nolan: “This district

is going to be bankrupt.” [Exhibit 1]

91. Notwithstanding the public remarks setting up the public concern battle

between defendant Nolan and plaintiff Novotny, between May 10, 2014 through

October 31, 2014, defendants authorized public school funds to conduct an

investigation under color of state law solely against Ms. Novotny as a means to end


23

her 16-year teaching and leadership relationship with Wellington middle and high

school students by firing her.

92. The five and one half (5 ½)-month investigation created under color of

state law intentionally ignored student cyberbullying and, at the direction of defendant

Nolan, sought to blame student bullying solely on Ms. Novotny as a distraction to

defendant Nolan’s budget overrun, even though, when she learned about alleged

allegations against band students, she addressed the issues with band officers first and

then affirmatively admonished the entire band against any bullying or harassment.

93. In prejudging allegations against Plaintiff Toni Novotny, Defendant

Nolan gave himself away by openly expressing that he could use the allegations to

“nail her” under color of state law Ms. Novotny by terminating her in in 2014 (now

set for January 7, 2015) because of her public stance in supporting music education by

using a 2013 student complaint (Meyers Report) who had graduated with the objective

of ending Ms. Novotny’s public employment and silence any further music education

advocacy and budget cut challenges generated by defendant Nolan.

94. In November, 2013, Ms. Novotny reported to the proper administrative

authority of the Wellington High School that the same student, six (6) months prior

to the complaint (Meyers Report), threatened suicide.

95. The parents of the student at the time were provided information about

Applewood, a non-profit organization addressing potential teen-suicide issues.


24

96. By September 2014, defendant John Nolan, who was responsible as

superintendent for generating substantial debt for the school district, came to plaintiff

to ask that she use her substantial community influence to generate funds from the


97. Ms. Novotny did so and the Wellington Boosters were recognized at the

October 15, 2013 board meeting for their $5,000 donation.

98. In January 2014, with the deadline for accumulated funds approaching,

defendant John Nolan again came to the plaintiff to ask her a second time to use her

substantial community influence to generate an additional $5,000 in funds from the


99. Ms. Novotny made no guarantees but would approach booster club with

his request. The band boosters denied the request, enraging defendant John Nolan.

100. With Ms. Novotny’s public opposition relative to the public concern of

cutting music education and defying Defendant Superintendent John Nolan’s request

that Ms. Novotny’s ask for more money from the Wellington Band Boosters,

Defendant Nolan sought to punish Ms. Novotny under color of state law because of

her support for the public concern of her distinguished music education programs,

the centerpiece of Wellington’s exemplary reputation.

101. Even though an allegation from 2013 involving a student who graduated

in June 2014 was unfounded and rendered moot by the graduation, Defendant Nolan

suspended Toni Novotny in the middle of the first semester of the next school year


25

after her refusal to seek additional funding, in November, 2014, with a disposition

under color of state law to terminate her public employment.

102. The suspension by Defendant Nolan under color of state law was and

continues to be in retaliation for her zealous advocacy of music education and

defendant Nolan’s anger over Novotny’s to garner for Nolan additional funds from

the Wellington Band Boosters.

103. The Wellington community was and continues to be outraged at the

actions of the defendants over the apparent retaliation by the defendants.

104. Ms. Novotny’s zealous advocacy of Wellington’s music programs,

despite Nolan’s opposition because he has failed to manage budgetary issues and

because he has been embarrassed that Ms. Novotny’s strong direction and leadership

which he perceives as defiance in his role as the top government school official in

Wellington, has not deterred Ms. Novotny from advocating for Wellington’s students.

105. In an additional retaliatory move in November, 2014 and December,

2014 under color of state law, defendants’ suspension of Toni Novotny suspended all

Wellington High “Dukes” public appearances at athletic events and holiday affairs,

triggering broad community anger and outrage.

106. In their rush to punish Plaintiff Novotny, defendant brought on an

“interim” band director with a troubled public education background and, almost

immediately after hiring him, fired him.


26

107. All the band activities outside the normal school day, which benefit

students and the community, remain shut down, punishing Wellington students

because Defendants are solely focused in discharging under color of state law Plaintiff

Toni Novotny.

108. A front-page banner headline on December 18, 2014, “Anger Over

Novotny Suspension,” in the Wellington Enterprise best captured the sentiment of the

community while, at the same time, defendant Jon Nolan aggressively pursued efforts

under color of state law, to end Ms. Novotny’s career and destroy over forty (40)

years of the Wellington High “Dukes” Marching Band, among other programs.

[Exhibit 2]

109. The “Anger Over Novotny Suspension” and subtitled “Band MIA As Director

[Novotny] Awaits Hearing.” [Exhibit 2]

110. On November 18, 2014, Defendants were so anxious to employ

governmental authority in ending Toni Novotny’s public employment that they

permitted private parties into Executive Session to discuss Ms. Novotny’s

employment and allegations set forth from the Meyers Report barred the public from

their deliberations.

111. Defendant John Nolan misrepresented the continuing delay of firing

Toni Novotny as caused by the teachers’ union when the delay was caused by

Defendant Nolan’s attorney on December 5, 2014.


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112. Defendant John Nolan also misled the community and media by

volunteering to the media materials which had not been in the public employment file

of Ms. Novotny and otherwise failing to disclose that the bullying of a formerly

graduated student was by other students which defendants did nothing about.

113. In order to discredit Toni Novotny, defendants released allegations that

Toni Novotny was engaged in “bullying” before she ever had a hearing, resulting in a

front-page headline, “Band Director Accused of Bullying,” in the December 20, 2014 Elyria

Chronicle Telegram.

114. Defendants hid from the public that one student who had already

graduated had been bullied by other students and that Ms. Novotny, when it came to

her attention, admonished students about bullying a fellow student.

115. Defendants, fully aware of the students were who were involved in

bullying, took no actions against the students.

116. To chill Toni Novotny from further expression concerning her

opposition to music education cuts and to punish her for not soliciting more money

for the proposed $2,500,000.00 performing arts auditorium, defendants, under color

of state law and with governmental authority, has engaged and continues to engage in

a campaign to seek community support to discharge Toni Novotny which has

backfired because of Ms. Novotny’s commitment to excellence and acknowledgement

of her success.


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117. Defendants freely underwrote with public funds nearly six months of an

investigation about one graduated student which had a pre-conceived conclusion

based on discredited allegations and wrongheadedness that Novotny was bullying a

student.

118. By spending government funds on a way to get rid of Toni Novotny

instead of searching for ways to cut Wellington’s distinguished music education

programs, defendants could use their governmental authority to chill Ms. Novotny’s

free expression relative to her advocacy for the Wellington High “Dukes”

Marching/Concert Band and other programs.

119. Because defendants continue to act under color of state law, plaintiff has

been and continues to be chilled in her free expression because of the jeopardy arising

out of the unconstitutional actions of the defendants.

120. Plaintiff believes that the irreparable injury she faces is exacerbated

because defendant Nolan seeks to punish her for her constitutional exercise of her

very public comments before the board and in the local news.

121. Plaintiff has no adequate remedy at law and suffers continuing

irreparable injury because she faces jeopardy for her exercise of free speech which is

perceived by the defendants to be adverse to their interests.

122. With no adequate remedy at law now in 2015 with preconceived

decisions to remove Plaintiff Toni Novotny from public employment, plaintiff is

barred from further expression because defendants seek to remove her as a public


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school teacher over allegations of students’ bullying another student back in 2013 and

allegations from the Meyers Report, attempting to place exclusive blame on Plaintiff

Toni Novotny.

123. Defendants know and have known that, if any bullying occurred, they

had a responsibility to investigate the actual persons involved, rather than the teacher,

but wholly disregarded their responsibility to do so in order to punish Plaintiff Toni

Novotny for her expression against cuts in music education.

124. As a result of the acts and conduct of the defendants, plaintiff has been

denied and continues to be denied the future right of expression and assembly.

125. As a result of the acts and conduct of the defendants, plaintiff has

suffered emotional distress, personal injury and deprivation of rights not to be

retaliated against for asserting protected rights insured under the Constitution of the

United States.

126. In order to restore plaintiff’s federally protected rights, defendants will

suffer no loss in the event injunctive relief is granted.

WHEREFORE, plaintiff urges this Court to grant the following relief:

A. Declare the acts and conduct of the defendants constitute violations of the First and Fourteenth Amendments to the Constitution of the United States and the Civil Rights Act of 1871, 42 U.S.C. §1983; B. Temporarily restrain and preliminarily enjoin the defendants, their agents, employees or any persons


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acting independently or in concert with the defendants, from barring the plaintiff from future expression concerning issues of public concern as a private citizen until a hearing may be had; C. Temporarily restrain and preliminarily enjoin the defendants, their agents, employees or any persons acting independently or in concert with the defendants, from proceeding with any conduct under color of state law to terminate, discharge, further suspend or further bar plaintiff from public employment until a hearing may be had D. Permanently enjoin the defendants, their agents, employees or any persons acting independently or in concert with the defendants, from retaliating against the plaintiff for the assertion of federally protected rights and to enjoin any act or conduct which has the purpose or effect of restricting the right of free speech in contravention of the First Amendment to the Constitution of the United States; E. Permanently enjoin the defendants, their agents, employees or any persons acting independently or in concert with the defendants, from proceeding with any conduct under color of state law to terminate, discharge, further suspend or further bar plaintiff in contravention of procedural and substantive due process rights insured under the Fourteenth Amendment to the Constitution of the United States; D. Direct that defendants establish rules and regulations with respect to procedures which afford and insure fundamental notions of fairness and due process as they apply to the plaintiff and others with respect to rights insured under the First Amendment to the Constitution of the United States with respect to public expression; E. Grant to the plaintiff and against the defendants, jointly and severally, appropriate compensatory damages, appropriate punitive damages (except for


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defendant Wellington Exempted Village Schools) with respect to defendants along with the costs and reasonable fees as expressly provided by federal statute; F. Grant any additional relief the Court deems just, equitable and in the public interest.

s/Avery S. Friedman

AVERY S. FRIEDMAN (0006103) Avery Friedman & Associates 701 The City Club Building 850 Euclid Avenue Cleveland, Ohio 44114-3358 (216)-621-9282 FAX 621-9283 avery@lawfriedman [email protected] Attorney for Plaintiff Antoinette Novotny

TRIAL BY JURY DEMANDED

Plaintiff demands trial by jury.

s/Avery S. Friedman AVERY S. FRIEDMAN



IN THE UNITED STATES DISTRICT COURT - Amazon S3 › s3.documentcloud.org › ... · 5. Defendant, JOHN NOLAN, is the superintendent of the Wellington Exempted Village Schools and

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