Franklin County Court of Appeals Affirms Removal of Civil Service Employee Because of Misuse of Employer’s Laptop Computer.

Last month, the Franklin County Court of Appeals affirmed the removal (i.e., termination) of a civil service employee on account of, among other things, failing to sufficiently protect sensitive information on his laptop computer, and failing to cooperate truthfully with the internal investigation. Long v. Ohio Dept. of Job & Family Servs., 2009-Ohio-643. However, the SPBR agreed that the employee had not violated policy by downloading AOL software in order to access his personal email or abused his telephone privileges by making personal telephone calls.

According to the court’s opinion, the employee was an audit manager and was issued a desktop and laptop computer in order to perform his duties. His “position and job responsibilities exposed him to sensitive client-based information related to Medicaid services, including Medicaid recipients' names and Social Security numbers, as well as dates and types of services provided. This information could be accessed via [his] desktop and laptap computers. All employees, including [him], were required to abide by [the employer’s] written work policies, including, as pertinent here, the ‘Standards of Employee Conduct,’ the ‘Computer and Information Systems Usage Policy,’ and the ‘Telephone Usage Policy.’” After the Ohio Inspector General received a complaint that the employee was engaged in fraud, an internal investigation was conducted. When questioned, the employee admitted “that he often permitted his staff to borrow his laptop computer while conducting field audits; however, he did not keep a written record showing to whom he loaned it. At the time of the interview, he was unsure if he had the laptop or if he had loaned it to a staff member.”

In examining the employee’s laptop, it was discovered that he had downloaded personal software onto the computer in order to access his personal email account and that pornography had been viewed. The employee also admitted that his cousin “used his laptop without his permission in early spring 2002; when he realized it was missing, he told [his cousin] to return it. He admitted that he had not properly secured the laptop, even though he suspected [his cousin] may have utilized his AOL account to send pornographic e-mails to women. [The employee] also acknowledged that he made personal long distance and local calls from his office telephone and failed to reimburse the state for those calls.” The cousin corroborated this explanation, although he contended that he sometimes had permission and did not know that the laptop computer was not the employee’s personal property. In reviewing the employee’s desktop computer, it was discovered that “e-mails with attachments containing pornographic photographs had been sent to and opened from the desktop and that at least one pornographic website had been accessed.”

The employer’s “standards of employee conduct and computer usage policies prohibited the downloading or viewing of non-work-related material, including pornographic websites, on state-issued computers.” The employee also argued that “unauthorized downloading of AOL software onto his laptop computer violated [the employer’s] computer usage policy. . . . . [which] prohibited use of computers by persons not employed by [the employer] and mandated that employees secure their computers to prohibit access by nonemployees.” In addition, the employer argued that the employee’s “personal local and long distance telephone calls from his office phone violated [the employer’s] telephone usage policy.”

The Administrative Law Judge did not agree that the employee violated the employer’s policy by downloading AOL software, accessing his personal email or making personal telephone calls. However, the ALJ agreed that the employee should be removed from his state civil service job because, among other things, he violated the employer’s policies in being evasive and providing implausible explanations during the employer’s internal investigation, in permitting and/or causing pornographic websites and other non-work related documents to be accessed on his laptop and desktop computer, in failing to take necessary precautions to prevent his laptop from being used by non-government employees when the laptop contained sensitive client information and was misused by his cousin in accessing and sending pornography, and in violating R.C. 124.34, as he engaged in dishonest and immoral conduct and neglected his duty by engaging in questionable financial dealings, being dishonest during the investigation, and engaging in the conduct described above.

The Court rejected the employee’s arguments that he was treated more harshly than similarly situated employees: “The issue of whether employees are similarly situated sufficiently to merit consideration as evidence of disparate treatment is for the trier of fact, i.e., the SPBR . . . Although the SPBR has discretion to consider evidence of disparate treatment in evaluating the appropriateness of discipline, the Ohio Administrative Code does not mandate absolute uniformity of discipline. 'An employee's discipline must stand or fall on its own merits.' " In any event, one of the allegedly comparable employees was not similarly situated because he was a non-supervisory bargaining unit employee who reported to a different supervisor, and not an exempt manager of ten people. In addition, that employee committed different rule infractions. The only other arguably comparable employee engaged in very different conduct by sending a single email falsely complaining about a subordinate.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-643.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.