Last month, the Court of Appeals for Auglaize County affirmed an employer’s summary judgment on a wrongful discharge in violation of public policy claim where the employee had been terminated shortly after receiving complaints about a racist meme which she had posted on Facebook in June 2020. Hall v. Kosei St. Marys Corp., 2023-Ohio-2021. The Court concluded that employees of private employers are not protected by the First Amendment or the Ohio Constitution and, thus, do not enjoy an unlimited right of free speech. Further, she could not show that her arguably protected conduct (in reporting another employee for inappropriate comments) motivated her termination when other employees also complained about her Facebook post and could not have been retaliating against her. The Court also found the passage of 25 weeks between the arguably protected conduct and her termination removed any temporal proximity needed to show causation by itself.
According to the Court’s opinion, the plaintiff had been
employed for several years when she posted a meme on her Facebook page which,
among other things, compared BLM protestors to monkeys. She denied that she had seen the entire photo
before she posted it and argued that it was more political than racial. Several of her co-workers and subordinates
saw it and complained to Human Resources.
She was then fired and brought suit, claiming that she was fired in
violation of the right of free speech. She pointed out that one of the complaining
employees was retaliating against her for reporting them twice to Human
Resources in the prior few months for making racially charged comments and
allegations (which were unfounded) about her and other employees.
The Court rejected her argument that she was fired in
retaliation for reporting one of her subordinates for making racially charged and
inappropriate comments. She could not
show causation when other employees had also complained and lacked the same
motive to retaliate against her. The
passage of 25 weeks between her arguably protected conduct and termination also
meant that she could not rely on temporal proximity to prove causation.
As for whether she could show her termination violated
public policy, she could not identify any court decisions where such a public policy
had been applied to a private employer and at-will employee. On the contrary, the court cited to a Franklin
County Court of Appeals decision finding that the right of free speech under
the U.S. and Ohio constitutions only apply to government employers. “[I]n the
absence of state action, the free speech protections of the Ohio Constitution
do not provide a basis for [plaintiff], an at-will employee, to raise a
wrongful termination in violation of public policy claim in this case against [the
defendant company], a private employer.”
we have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion. As such, [the plaintiff] cannot establish the clarity element of her wrongful termination in violation of public policy claim in this case. For this reason, we conclude that summary judgment was an appropriate method to dispose of this claim.
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.
