Ohio Appeals Court: Fire Chief Properly Terminated for Inappropriate Comments

Last week, the Fairfield County Court of Appeals affirmed the termination of a Township Fire Chief for making a racially insensitive joke while still on probation for an earlier, unrelated event.  Mathias v. Pleasant Twp. Bd. of Trustees, 2014-Ohio-3019.   The Court made clear that management can be held to a higher standard of conduct than subordinates and enforcement of an anti-harassment/discrimination policy does not require the existence of a specific victim.  In particular, the Court found that the terminated chief had made a joke in the presence of three white firefighters that he did not have a problem with black people because “everyone should own one” or “everyone should have one.”  One of the firefighters reported it to the Assistant Chief, who mentioned it to a Township Trustee.  Written statements were taken and the Chief was confronted.   He later explained that he and the department’s lone black employee had a friendly and joking relationship where they made jokes with each other about historical racism, including segregated parking, bathrooms and drinking fountains.  The black employee testified as a witness in support of the terminated chief. There was no evidence that anyone had felt offended or harassed by the Chief’s statements or that anyone thought he was a racist.  The Chief also pointed out that other firefighters had made similar statements without any complaint or investigation.  Nonetheless, the Court agreed that the Chief had violated Department policy against making such statements and for engaging in unbecoming and undignified behavior.

While appellant contends that he committed no act pursuant to such section which would justify his termination, we disagree. Appellant admittedly made a racially derogatory comment. While appellant argues that [the sole black firefighter] and other firefighters also made similar jokes, appellant was the Chief of the Fire Department and set the tone and morale for the department as a whole. During the hearing, appellant himself admitted that it was probably not appropriate for him, as the Acting Fire Chief, to make the racial statements that he did.

In addition, the Court agreed that the Chief had “clearly” violated the Department’s anti-harassment/discrimination policy, which could justify dismissal on a first offense – even without the existence of a specific victim.  The policy provided:

 

“316.02 - Sexual, ethnic, racial and religious harassment is an offense first against this department and second an offense against the employee or group of employees. Offense refer to physical, verbal or implied actions that have the purpose or effect of creating a hostile, offensive or intimidating working environment or has an ethnic, racial, religious or sexual basis, or both. Examples would include but are not limited to: physical contact of sexual nature; sexual, racial, ethnic, or religious jokes, comments, insults, audio/visual material, cartoons, innuendoes or personal conduct or mannerisms that could be construed as offensive.”

The Court also rejected the Chief’s procedural arguments about, for instance, the timing of his suspension, consideration of documents about the earlier event which caused him to be placed on probation,  and the conduct of the investigation by the Assistant Chief who was made Acting Chief and ultimately promoted to replace him.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.