Franklin County Court of Appeals Denies Unemployment Compensation to Non-Profit Employee for Failing to Properly Supervise Client While on Cell Phone.

Last week, the Franklin County Court of Appeals affirmed the denial of unemployment compensation to the former employee of a non-profit organization after the employee disregarded the employer’s interests by taking a personal cell phone call while on duty and while a client youth sitting next to the employee then injected himself with an epipen. Brooks v. Ohio Dept. of Job & Family Servs., 2009-Ohio-817. The court rejected the employee’s arguments that other employees engaged in similar misconduct without being disciplined or terminated, that he had not violated any established policy and that he was treated more harshly than the new employee who was responsible for the epipen being unsecured.

According to the court’s decision, the employee had taken a number of youth clients to a camp when one of the youths returned to the van and sat in the front passenger seat. The employee joined him, chatted a while and then took a brief personal cell phone call. Another, new employee was responsible for the epipen being left out on the front seat console. The youth apparently opened the epipen and injected himself, requiring a trip to the hospital. Only the employee was fired. The ODJFS initially granted his application for benefits, but the hearing referee and, on appeal, the trial court, denied benefits:

“While claimant testified that he was not formally trained by UMCH [the employer] on the use of an EpiPen, he admitted that he knew that an EpiPen contains a spring-loaded needle to quickly deliver a dose of medication to someone who goes into shock as a result of severe allergies. He admitted that he knew that an EpiPen had been left resting on a console within the youth's reach. He admitted that he knew that he was not permitted to take personal cell phone calls while on duty, yet still turned his head for approximately thirty seconds to speak on his personal cell phone while he was supervising this youth. He admitted that the youth opened the EpiPen and injected it into finger while claimant was talking on his personal cell phone.”

The employee had argued that the Referee’s “just cause determination is unreasonable because the employer did not have a rule or policy prohibiting staff members from accepting or initiating personal calls while supervising youths.” However, the Court noted that the employee’s “own testimony belies his assertion, as he acknowledged that the employer had such a policy and that he knowingly violated it. Moreover, Ms. Roper testified that the employer ‘[has] a policy that the staff should not actively be supervising the kids while they're on their personal cell phone.’ Furthermore, ‘the critical issue is not whether the employee has technically violated some company policy or rule, but whether the employee by his actions [or inactions] demonstrated an unreasonable disregard for his employer's interests.' Here, the employer's best interests were served by appellant performing his duty to adequately supervise the youths in his charge and shield them from danger.” The employee “admitted that he was aware that an EpiPen containing potent and potentially harmful medication lay within reach of the youth; nonetheless, he did not confiscate the EpiPen and averted his attention from the youth to answer a personal telephone call. Appellant's actions and inactions potentially subjected the employer to liability had the youth suffered serious injury stemming from the injection of the medication. Thus, the [Referee] reasonably could view appellant's actions and inactions as detrimental to the employer's interests.”

The Court also rejected the claimant’s arguments that he was treated more harshly than the new employee who was responsible for the medications in the van and who was given only a written warning instead of being terminated. However, the Court agreed with the employer that he was treated differently because he had not received as much training as the claimaint and was not present to directly supervise the client youth at the time of the incident. As the most senior employee, the claimant also could have directed the newer employee to remove the epipen from the console, but he did not.

Finally, the court rejected the claimant’s testimony that other employees who had injured or placed client youths in danger were treated less harshly because he offered no evidence to support the other incidents aside from his own testimony.

Insomniacs may read the full court decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-817.pdf.

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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Court Dismisses Physical Therapist's Public Policy and Whistleblower Claims Against Non-Profit Employer For Not Alleging Criminal Misconduct.

Late last month, the Montgomery County Court of Appeals affirmed the summary judgment entered for a non-profit employer of a physical therapist who had claimed that she had been wrongfully discharge in violation of public policy and Ohio’s Whistleblower statute. Duvall v. United Rehabilitation Servs. of Greater Dayton, 2008-Ohio-6231. The court held that the public policy claim failed because the Ohio statute which prohibited professional associations from interfering with the professional judgment of a physical therapist did not apply to non-profit employers. In addition, the court held that the whistleblower statute only applied to allegations of criminal conduct, which the plaintiff had not raised before being terminated.

According to the court’s opinion, the plaintiff provided hydrotherapy to patients in a heated swimming pool. Before being terminated, she had complained to her employer about the temperature of and amount of chlorine in the pool. She also complained “about the fact that URS required her to obtain a supervisor’s approval in order to suspend or discontinue hydrotherapy regimen for patients.” She ultimately was fired for placing “a patient with cerebral palsy in a supine position in the pool despite her knowledge that the patient was afraid of being placed in such a position” in violation of a “policy which prohibited staff from using “idiosyncratic aversives that are frightening to the consumer.’”

In her claim, the plaintiff alleged that the employer violated Ohio Revised Code § 1785.03, which provides in pertinent part that “[n]o professional association formed for the purpose of providing a combination of the professional services *** of *** physical therapists authorized under sections 4755.40 to 4755.56 of the Revised Code ***shall control the professional clinical judgment exercised within accepted and prevailing standards of practice of a licensed *** physical therapist *** rendering care, treatment, or professional advice to an individual patient.” As mentioned, the court rejected this claim because the non-profit employer was not subject to R.C. 1785.02 and no similar statute applied to non-profit organizations. Further, the court likewise rejected the plaintiff’s claim that the employer’s attempt to supervise her violated Ohio Administrative Code. §4755-27-02, which precluded licensed physical therapists from delegating their professional duties and responsibilities. Rather, the court noted that there is no statutory or administrative prohibition on all supervision of physical therapists.

Finally, the court followed prior interpretations of Ohio Revised Code § 4113.52, which prohibits an employer from taking disciplinary or retaliatory action against an employee for reporting criminal violations of certain laws. Because none of the complaints made by the plaintiff about the pool’s temperature or chlorine level involved criminal actions, none of those complaints were protected by the whistleblower statute.

Insomniacs may read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-6231.pdf.

Sixth Circuit: First Amendment Protects Public Employee’s Interview with Reporter About Boss’s Alleged Sexual Harassment of Co-Worker

On Monday, the Sixth Circuit reversed summary judgment in favor of an employer on the employee’s allegations that she had been discharged for exercising her First Amendment rights to comment on matters of public concern. Hughes v. Region VII Area Agency on Aging, Nos. 07-1570/1647 (9/8/08). In that case, the plaintiff was fired after she was sought out and interviewed by a newspaper reporter about a sexual harassment lawsuit which had been filed against her boss by a co-worker, about her belief that another employee was fired for advocating an independent investigation and about other arguably inappropriate conduct. The plaintiff also objected to disciplinary action and an unpaid suspension imposed against her for discussing with a colleague the affect of possible budget cuts at the agency. Following her termination, she filed suit under § 1983.

First, the court found that the agency was not a private non-profit, but was, in fact, a government agency because of its corporate structure, funding and federal statutes. In other words, the agency was subject to § 1983 because it acted “under color of state law due to the pervasive entwinement of governmental entities in the management and control of” the agency. The Supreme Court previously “noted that ‘a challenged activity may be state action . . . when it is ‘entwined with governmental policies’ or when government is ‘entwined in [its] management or control.’” However, the Supreme Court has also stated that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974). Nonetheless, in this case, the extensive statutory and regulatory provisions “show that government is deeply “‘entwined in [the] management or control’” of the agency employer: government entities are the sole members of [the agency] and they appoint eleven members of [the agency’s] board of directors, with their chosen representatives appointing the final member of the board. Furthermore, virtually every act that [the agency] performs must receive approval from a state agency, and the very existence of [the agency employer] as a “designated” area agency on aging depends upon [the agency] being “under the supervision or direction of the state agency.” MICH. COMP. LAWS § 400.589(1) (emphasis added). The entwinement of government in the management and control of [the defendant agency] is thus a matter of statutory policy, in addition to the fact that the membership of [the defendant agency] consists entirely of governmental entities.”

Once the court determined that the agency employer was required to comply with the federal constitution, it examined whether it violated the employee’s First Amendment rights. “[I]n determining whether a public employer has violated the First Amendment by firing a public employee for engaging in speech, the Supreme Court has instructed courts to engage” in a multiple-step inquiry. First, a court “must ascertain whether the relevant speech addressed a matter of public concern.” Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003). In conducting this inquiry, the court “must assess ‘the content, form, and context of a given statement, as revealed by the whole record.” In this case, the court had no difficulty in finding that comments about a sexual harassment lawsuit against the agency’s Executive Director and his alleged retaliation against a complaining employee constituted a matter of public concern. “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’ . . . In Connick, the Supreme Court offered examples of speech that would involve matters of public concern, such as statements “inform[ing] the public that [a governmental entity] was not discharging its governmental responsibilities” or statements “seek[ing] to bring to light actual or potential wrongdoing or breach of public trust on the part of” government employees. . . . . The Court in Connick also described an individual’s “right to protest racial discrimination” as “a matter inherently of public concern.” . . . Likewise, we have stated that “it is well-settled that allegations of sexual harassment, like allegations of racial harassment, are matters of public concern.” . . . Finally, in Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988), we observed that our “finding of public concern is here strengthened by the fact that the plaintiff did not solicit the attention of the media, but simply responded to questions regarding an existing controversy.” In Matulin, we described the Third Circuit’s decision in Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), as holding “that statements relating to charges of discrimination leveled at public employers and reported upon by newspapers clearly involved matters of public concern.”

The court did not reach a conclusion about whether the plaintiff’s comments to a co-worker about budget cuts necessarily constituted a protected matter of public concern. On one hand, her comments about trying to influence the political budget process could be constitutionally protected. On the other hand, comments adversely affecting employee morale by highlighting possible layoffs could be the subject of disciplinary action. The Supreme Court has found that even when employee speech “touches upon matters of public concern” to a limited extent, the employee’s discharge “did not offend the First Amendment” because that “limited First Amendment interest . . . d[id] not require that [the employer] tolerate action which [it] reasonably believed would disrupt the office . . . and destroy close working relationships.” Therefore, the trial court was instructed to reexamine this issue upon remand.

In the second step of the inquiry, the court considered “whether the employee’s expressions were made ‘pursuant to his or her official responsibilities” or whether the “statements or complaints . . . [were] made outside the duties of employment . . . . In Garcetti, the Supreme Court held that “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities” and thus concluded that the plaintiff’s First Amendment retaliation claim failed given that “the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.’” However, in this case, the agency never argued that the plaintiff made any of the challenged statements in connection with her official duties.

The third step of the inquiry requires to the court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” With respect to the employee’s comments to her co-worker about budget cuts, the Court instructed the trial court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Interestingly, it did not discuss any balancing test in connection with the sexual harassment discussion.

Finally, the multiple-step inquiry requires the court to “determine whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.” In this case, the actual motivation of the employer was in question because it failed to conduct even a cursory investigation before imposing the disciplinary action. “[T]he district court should analyze as a separate retaliation claim whether [the plaintiff’s] comments to her co-workers in June 2004 were a substantial or motivating factor in imposing the reprimand and two-day unpaid suspension; the district court should also then determine whether, under Waters, Defendants conducted a reasonable investigation into the nature of [the plaintiff’s] alleged statements.

Insomniacs can read this decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0341p-06.pdf.

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.