Attorney: Teacher may be mean and loud, but that doesn't make him legally liable

A Nelsonville-York gym teacher who is involved in two separate lawsuits for allegedly bullying students has asked a judge to rule in his favor in both cases.

Even if the allegations district parents have made against teacher Anthony C. Mollica are believed, his attorney wrote in a recent motion, the worst conclusion one could reach is that Mollica "œyells and screams and is mean," not that he tried to deliberately inflict emotional distress on two elementary-school boys.

Mollica, who teaches physical education at Nelsonville-York Elementary School, sued Robert and Tia Chubb of Nelsonville in November 2007. He claimed the couple had defamed him, by making public allegations that he screamed at and got physically rough with their 6-year-old son during a gym class in October 2007.

The Chubbs counter-sued, and later a second set of district parents, Daniel and Melissa Maccabee, filed their own lawsuit against Mollica, containing similar allegations in connection with their 9-year-old son, stemming from a January 2007 incident.

The district and the Nelsonville Police investigated, and found insufficient evidence to support the parents' allegations. The district did reprimand Mollica for insubordination during the investigations, however, and placed him on paid leave. He has filed a grievance against the discipline, though the grievance is stayed while the lawsuits are pending.

In motions filed Monday, Mollica's attorney, Richard W. Ross, asked Athens County Common Pleas Judge L. Alan Goldsberry to grant the teacher summary judgment in both suits.

The Chubbs have alleged that in the October 2007 incident, Mollica grabbed their son's shirt and screamed into his face so vehemently that the teacher sprayed the boy with saliva.

In an affidavit filed with the court, Mollica offered his version of the event. He claimed students from his class were lining up to leave and return to homeroom, when one student told him another student had pushed him.

Upon learning that the student who allegedly did the pushing was the Chubbs' son, Mollica wrote, he "leaned in toward the student and instructed (the Chubb child) to go to the end of the line." He only learned of a complaint being made "several days later," he added. He has also denied flouting an order from the school principal to stay away from the boy after the parents lodged a complaint.

In both motions seeking summary judgment, Ross has argued that Mollica, as a public employee, enjoys limited immunity from liability under Ohio law.

Because neither set of parents has alleged that Mollica acted "outside the course and scope of his official duties," or that Ohio law specifically imposes liability, Ross argued, the only way the teacher would lose his immunity is if he acted "with malicious purpose, in bad faith, or in a wanton or reckless manner."

The attorney maintained that the facts don't come anywhere near supporting this conclusion, even if the allegations of the students are believed. He noted that Mollica teaches elementary-school physical education, which typically involves a lot of noise and confusion.

"So, does Mr. Mollica raise his voice to be heard? Undoubtedly so," Ross wrote. "Does he get down to the level of a student to get in front of the face of a student when speaking to him or her? Undoubtedly so. Might he grab or touch a student to get his or her attention? Perhaps. Do such actions overcome statutory immunity as a public employee? No. Do such actions constitute assault, battery or the intentional infliction of emotional distress? No."

Ross noted that the Chubbs' son described the alleged screaming incident as lasting two to three seconds, and that he did not report it to his parents until the following day. "Although (the child) indicated he had a red mark (a dot) on the back of his neck, no medical attention was sought or received," he added.

The undisputed facts in the case, Ross maintained, "do not rise to the level of outrageousness to establish a claim of intentional infliction of emotional distress."
In the Maccabees' case, their son alleged that during a gym class, a student told Mollica that the Maccabee boy had hit him in the stomach. When Mollica questioned the Maccabee child, he denied hitting the student, and Mollica "then grabbed (the Maccabee child) by the shirt and pulled him to the hallway," according to the boy's account of events.

Mollica allegedly told the boy, "I won't tolerate fibbers in my class," or words to that effect. He also allegedly told the boy that he hoped the student who was hit in the stomach and his friends "find you and beat you up" on the playground. Mollica allegedly added, "If I see it, I will not do anything about it." While this was happening, the boy alleged, Mollica pushed him up against a wall, hurting the boy's back. However, Ross stressed, no complaint was filed until November 2007, more than nine months later.

As with the Chubb case, Ross contended that even if the allegations against Mollica are believed, they don't justify stripping him of his legal immunity. He also noted that the Maccabees have acknowledged their son "indeed did punch a classmate in the stomach and lied about it to avoid punishment... Mr. Mollica's actions herein were directed at correcting this behavior."