I concur in the judgment and opinion reversing the judgment of the trial court which directed a verdict in favor of appellee, but I respectfully dissent from that portion of the judgment and opinion entering final judgment pursuant to App. R. 12(B) in favor of appellant. In *Page 226 effect, the majority opinion holds that the trial court erred in failing to grant appellant's motion for a directed verdict where there was "ample evidence" that the sick leave was vested and utilized for a proper purpose and where Superintendent Dan Russell demanded proof of appellant's incapacity.
Civ. R. 50(A)(4) provides as follows:
"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
If all the evidence relating to an essential issue is sufficient to permit only a conclusion by reasonable minds against a party, after construing the evidence most favorably to that party, it is the duty of the trial court to instruct a finding or direct a verdict on that issue against that party.Grau v. Kleinschmidt (1987), 31 Ohio St. 3d 84, 90, 31 OBR 250, 255, 509 N.E.2d 399, 404; Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469, 189 N.E. 246. The trial court must not consider the weight of the evidence or the credibility of the witnesses when ruling upon a motion for a directed verdict.TLT-Babcock, Inc. v. Service Bolt Nut Co. (1984), 16 Ohio App. 3d 142,143, 16 OBR 149, 151, 474 N.E.2d 1223, 1225.
R.C. 3319.141 provides, in pertinent part, as follows:
"Each person who is employed by any board of education in this state shall be entitled to fifteen days sick leave with pay, for each year under contract, which shall be credited at the rate of one and one-fourth days per month. Teachers and non-teaching school employees, upon approval of the responsible administrativeofficer of the school district, may use sick leave for absence due to * * * pregnancy * * *." (Emphasis added.)
A school administrative officer has the discretion pursuant to the provisions of R.C. 3319.141 either to grant or to refuse a request for the use of sick leave for pregnancy. Hoeflinger v.West Clermont Local Bd. of Edn. (1984), 17 Ohio App. 3d 145, 17 OBR 245, 478 N.E.2d 251. The school administrator has discretion to deny the use of sick leave if it is determined that such use is not for a proper statutory purpose. Cf. State, ex rel.Runyan, v. Henry (1986), 34 Ohio App. 3d 23, 25,516 N.E.2d 1261, 1263. The school administrator herein was Superintendent Russell.
The dispositive issue with regard to whether the trial court erred in failing to direct a verdict in favor of appellant is thus whether Superintendent Russell abused his discretion in denying appellant credit for sick leave by determining that it was not being utilized for the proper stated statutory purpose herein, i.e., pregnancy. The term "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.Beacon Journal Publishing Co. v. Stow (1986), 25 Ohio St. 3d 347,349, 25 OBR 399, 401, 496 N.E.2d 908, 910; Joseph J. Freed Associates v. Cassinelli Apparel Corp. (1986), 23 Ohio St. 3d 94,97, 23 OBR 255, 257, 491 N.E.2d 1109, 1112.
In the case at bar, Superintendent Russell testified that the usual and accepted period of recovery for childbirth is six weeks, that he took appellant off the payroll on November 27, 1984, after he had several conversations with her, that appellant had told him *Page 227 that she was thirty-seven years old and "didn't feel" like coming back to work, and that it had been school district policy to deny sick leave benefits for time beyond six weeks after birth, absent evidence of complications resulting therefrom. Dr. Humphrey testified that appellant was able to return to work in the normal six-week period in that he felt that she had no medical or obstetrical complications from her delivery. Dr. Humphrey further testified that at the November 27, 1984 examination, he felt that appellant seemed well enough at that time that she could work and told appellant that it made no personal difference to him when she went back to work. Furthermore, appellant never listed the health of her child as a written reason for use of sick leave, relying instead solely on "maternity."
Appellant and the majority opinion cite Hoeflinger, supra, in support of their position that Superintendent Russell abused his discretion by requiring a doctor's statement. However, as both the trial court and appellee have noted, unlike Hoeflinger, there was no adopted policy requiring such statement and, more importantly, there was evidence suggesting that Superintendent Russell's determination to disallow appellant's use of sick leave benefits beyond the six-week term following delivery was made on November 27, 1984, prior to any request for such statement.
For the foregoing reasons, in that reasonable minds could come to different conclusions as to whether Superintendent Russell abused his discretion in denying appellant's use of sick leave by determining that it was not being used for the stated reason of her pregnancy, after construing the evidence adduced below most strongly in favor of appellee, the trial court did not err in failing to direct a verdict in favor of appellant and appellant is not entitled to judgment as a matter of law pursuant to App. R. 12(B). Accordingly, I would reverse and remand for a new trial. *Page 228