Franklin County Appellate Court Rejects Discrimination Claims Based on Criminal Conviction and Non-Substantially Limiting Impairments

[Editor's Note:  On August 3, 2023, the Court deleted its original opinion and re-issued it after a request for reconsideration on the issue (noted below) about whether a request for a reasonable accommodation may constitute protected activity for purposes of a retaliation claim.  Without resolving that issue, the Court deleted the paragraph discussing that issue (as noted below) and modified the opinion, but not the result: " In light of appellant’s reconsideration motion and the accompanying amicus brief filed with this court, we reissue our June 20, 2023 decision without original paragraph 102 and with a slight modification to original paragraph 103 (now 102). Whether a request for accommodation constitutes protected activity under Ohio law is a question that warrants full briefing before definitive resolution by this court."]

Last month, a unanimous Franklin County Court of Appeals affirmed an employer’s summary judgment where the plaintiff had alleged that he had been terminated on account of his race, disability and in retaliation for engaging in protected conduct.  Childs v. Kroger Co., 2023-Ohio-2034.  The plaintiff had been hired into a bargaining unit position despite a murder conviction from when he was a juvenile and was ultimately promoted to a salaried assistant manager position before he was fired when management learned about his prior murder conviction.  The Court found that he was unqualified for his position because the company policy at the time of his termination precluded the employment of convicted murderers.

According to the Court’s opinion, the plaintiff was convicted of murder in 1996 from when he was a juvenile.  He was hired by Kroger into an hourly bargaining unit position in 2014.  He had truthfully reported that he had a criminal conviction on his employment application and claimed to have explained the details to his interviewer.  The background check only reviewed the prior 7 years and so did not pick up the earlier murder conviction.   His job history listed his prison employment as well as his current job.  It apparently did not occur to the individuals reviewing his job application that his prison employment was as a prisoner instead of as a private contractor.  In 2015, he applied for and was selected for a management training position.  In 2017, he began suffering panic attacks after the store was robbed and he was physically threatened.  He was given a poor performance evaluation a couple of months later and put on a performance plan.  He then accused his manager a few months later of being racist based on observed favoritism.  A month later, he then submitted a medical statement about his depression and asked to be transferred to another store.  He then complained again in October 2017 about his manager, who was then transferred.  The plaintiff was also transferred from Reynoldsburg to Sunbury in February 2018 and he received a better performance evaluation.

While in Sunbury, the plaintiff learned in April 2018 that an employee had been convicted as a sexual offender.  He recommended termination and participated in the union grievance process that resulted in the employee’s termination as a risk to minor employees.  Shortly thereafter, an employee was searching for information about the plaintiff’s recent motorcycle accident and discovered his 1996 murder conviction.  It was reported to management and he was fired at the end of May 2018 because company policy provided that it was a disqualifying offense.  More than a year later, the plaintiff filed suit alleging race and disability discrimination and retaliation and wrongful discharge in violation of public policy, as well as unlawful aiding and abetting and defamation.  The trial court eventually granted summary judgment to the defendants on all claims and it was affirmed on appeal.  Much of the lengthy appellate decision involves procedural and discovery issues.

The Court concluded that, despite the fact that the plaintiff had worked more than three years at Kroger and been promoted, he could not satisfy his prima facie case and show that he was qualified for his position before being fired because his 1996 murder conviction rendered him unqualified.  The plaintiff “is unable to establish the third element of his prima facie case, because his murder conviction rendered him unqualified for employment at Kroger.” Evidence was presented that the company refused to hire individuals with certain convictions and fired them if a disqualifying conviction was later discovered.   Even if murder was not a disqualifying conviction at the time he was hired, it was at the time he was terminated.

The Court also rejected his claim for disability discrimination, which was based on his depression, anxiety and PTSD.  The Court found that the plaintiff failed to show that his depression substantially limited any major life activities because he admitted that he was able to continue to work and the remaining limitations were relatively insignificant.  Although the plaintiff

 indicated that his depression impacted his ability to sleep and do household chores on some days, he did not claim that his depression affected his ability to sleep or do chores for significant amounts of time. [The plaintiff] presented no evidence indicating that his depression substantially limited his ability to think or otherwise engage in major life activities, and he affirmed that he could hold a job despite his depression. Accordingly, [he] failed to demonstrate that his depression occurred in sufficient duration and with sufficient severity to significantly limit any major life activity.

In any event, even if the plaintiff could show that he were statutorily disabled, he “also could not establish that he was qualified for his assistant store manager position either with or without a reasonable accommodation, because his murder conviction rendered him unqualified for any position of employment with Kroger.”

As for his retaliation claim, the Court initially rejected his argument that he was retaliated against for requesting a transfer as a reasonable accommodation. “A request for reasonable accommodation does not amount to “participation in any manner in any investigation, proceeding, or hearing” or “opposition to an unlawful discriminatory practice” under R.C. 4112.02(I).” In other words, Ohio law does not consider a reasonable accommodation request to be protected activity for purposes of asserting a retaliation claim.  However, the Court withdrew that part of its opinion on August 3, 2023 as noted in the Editor's Note above. 

Similarly, the Court concluded that it was not protected conduct under ORC 4112 to report the sexual offender conviction of a subordinate to management when he asserted that his termination was motivated by reporting the sexual offender despite the store manager’s resistance.

Nonetheless, his other retaliation claim had more merit.  He claimed that he was placed on a performance improvement plan after asking his supervisor if he was racially biased against him.  However, the company contended that it was based on his earlier, year-end performance evaluation.  Sadly for the plaintiff, his own comments on his performance evaluation acknowledged that his performance needed to improve and commented on specific mistakes or shortcomings that he had shown.  He also could not disprove that the company always placed low-performing employees on performance plans.  Therefore, the Court dismissed the retaliation claim.

Because all of his ORC 4112 claims were dismissed, the aiding and abetting allegations against the individual employees and managers were similarly dismissed.

The Court also dismissed the wrongful discharge claim on the basis that his murder conviction motivated his termination and not his earlier report of the sex offender employee.  He could not show that public policy was jeopardized by his reporting of the sex offender to management.  Even if that report had motivated his termination, he could not identify a public policy which was violated by his termination:

[His] termination would not have jeopardized the public policy expressed in R.C. 2950.034(A). The statute prohibits sexually oriented offenders from residing in specific locations; it does not prohibit sexually oriented offenders from working at specific locations.

Finally, the Court dismissed the defamation claim based on the incorrect report that he had failed to previously disclose his murder conviction.  He claimed – without contradiction – that he had disclosed it in his job interview.  However, he could not prove that the HR employee passed that information along to management or that the individuals who allegedly defamed him knew that he had previously disclosed it in a 2014 interview.   Further, management has a qualified privilege to discuss other employees.

Furthermore, “ ‘a communication made in good faith on a matter of common interest between an employer and an employee, or between two employees concerning a third employee, is protected by qualified privilege.’ ” . . . “Once the defense of qualified privilege attaches, a plaintiff can only defeat the privilege with clear and convincing evidence that the defendant made the statements at issue with actual malice.”

Ms. Gray and Mr. Shepard were both managers at Kroger, and their communication regarding [the plaintiff’s] failure to disclose his murder conviction was a matter of common business interest between them. As such, Ms. Gray’s statement to Mr. Shepard was subject to a qualified privilege. Because the evidence demonstrates that [he] failed to disclose his murder conviction to Kroger [in writing], Mr. Childs cannot establish that Ms. Gray made her statement to Mr. Shepard with actual malice.

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.

Sixth Circuit Affirms Dismissal of Defamation and Hybrid §301/Fair Representation Claims Against Chillicothe Employer

On Friday, the Sixth Circuit Court of Appeals affirmed a summary judgment entered in favor of a Chillicothe employer on defamation and hybrid §301/fair representation claims brought by a terminated union employee. Blesedell v. Chillicothe Telephone Co., No. 15-354 (6^th Cir. 1-22-16).   In that case, the plaintiff had been terminated after an investigation revealed potential misconduct and then an attempted cover-up by the employee (as well as additional allegations).  His union ultimately decided not to pursue arbitration of the decision after its own investigation.  The plaintiff challenged the termination and also alleged defamation based on what the Human Resources Manager allegedly told the union and the sheriff’s office.  The trial court granted summary judgment because the union did not breach its duty of fair representation and because the statements made by the HR Manager could not be proven to be false and/or were protected by a qualified privilege.   Although the employee provided the union with written statements from witnesses (who were not interviewed by the union) and was prevented from attending grievance meetings, he could not show unfair representation by the union.    The Court of Appeals affirmed.

According to the Court’s opinion, the employer frequently recorded conversations between employees and with customers.  The plaintiff was suspected of shirking work and falsifying his time card on December 4.  An investigation could not substantiate that he had performed the work he claimed on his time card to have performed on the afternoon in question.  After he was questioned, he requested another employee to modify a work ticket to reflect that he had performed certain work recorded on December 9 on December 4.  However, there were recorded conversations about the December 9 work which called that version into question.  Then, the employee claimed that he had performed the work on both dates. 

Then, a caller reported that the plaintiff had performed work on their property on December 4 (and later substantiated that with a written statement).  However, after listening to a recording of that conversation, the employer and union believed that the plaintiff was the caller.  Then, the plaintiff reported to the union that he had performed a third work request on that afternoon as well.   A union officer attempted to recreate the plaintiff’s version of events, but found it to be physically impossible to have occurred as he had described.  For instance, it believed that he would have had to have driven his truck to have gotten all of the work done as described, but the GPS showed that his truck never moved that afternoon.   In the meantime, another employee accused him of inappropriate conduct, and of trading company equipment for illegal drugs.   The Company decided to terminate his employment and the grievance process ensued.  The plaintiff was awarded unemployment compensation, but the union officers voted to not pursue arbitration of his claim because they believed that it would be fruitless and never provided the employer with written statements it had obtained from the plaintiff or his alleged witnesses. 

Finally, the plaintiff reported to the Sheriff’s office that he had been threatened by the co-worker who had accused him of inappropriate conduct and taking illegal drugs.   A deputy contacted the HR manager and wrote down that she was told that the plaintiff had been fired because there had been allegations that he was trading parts for illegal drugs.  The plaintiff filed suit claiming that he had been terminated without just cause under the bargaining agreement (the §301 claim), that the union had failed to fairly represent him, and that the HR manager had defamed him by statements made to the union and to the deputy sheriff.  The trial court granted summary judgment to the employer.

In order to prevail on his hybrid claim against the employer and the union, the plaintiff was required to prevail on both his §301 claim and his fair representation claim.  Because the plaintiff could not prevail on his fair representation claim, the court never addressed whether his termination had been for “just cause” under the bargaining agreement.   “A plaintiff may prove breach of duty by showing that ‘the union’s actions or omissions during the grievance process were arbitrary, discriminatory, or in bad faith.’”   With respect to a union acting arbitrarily, a plaintiff must prove that the union’s “conduct “is so far outside a wide range of reasonableness as to be irrational.”  Because the union here had conducted its own investigation, reviewed and reasonably weighed the evidence and consulted with the international union, its actions could not be deemed arbitrary.  Its internal investigation need only be reasonable, not perfect.  “[U]nion agents are not lawyers,” and “mere negligence or poor judgment” alone is not sufficient to prove breach of duty.  The union had requested and reviewed all of the employer’s evidence, attempted its own re-creation of the alleged events and reasonably determined that the plaintiff’s version was not credible even if supported by written witness statements and even if the union did not personally interview those witnesses.   There was no evidence that a more thorough investigation by the union would have changed its decision. 

The Court also rejected the plaintiff’s argument that he was unfairly excluded from the grievance process.  The union’s policy was to exclude grievants from the step 3 meetings and the employer refused to permit him back onto its property after his termination.   Otherwise, the grievant was kept informed of the process and was regularly updated.  In any event, a “union’s mere negligence in keeping the grievant informed about the grievance process was not enough to prove breach of duty.”

The union’s refusal to contest more vigorously the employer’s evidence was also not inappropriate.  The recordings of the telephone conversations which attempted to substantiate the plaintiff’s version of events reasonably “posed an insurmountable hurdle” to prevailing in any arbitration.  It was not irrational to believe that none of the evidence provided by the plaintiff would have caused the employer to reconsider its decision.  

There was also no evidence that the union’s actions were motivated by discrimination or that he was treated differently than substantially similar grievants.  The Court also rejected the bad faith argument even though the plaintiff had been removed as a union steward because of a belief that he was undermining the union’s business manager.  The Court also found that the union officer’s desire for a non-union management position at the employer was insufficient evidence of bad faith in the absence of proof of personal animosity. 

As for the defamation claims, the court found that the alleged statements to the deputy sheriff by the HR Manager could not be defamatory because the plaintiff himself had relayed substantially similar information to the deputy approximately 30 minutes earlier.  “A plaintiff may therefore prove defamation only if the third party receiving the publication understands its defamatory meaning.”  Because the deputy could not have understood the statements to be defamatory after hearing much the same information earlier from the plaintiff, the alleged statement is not actionable.   Further, it was true that allegations about drug use had been made against the plaintiff and there is no indication that the HR Manager conveyed that he believed those allegations to be true or that he simply conveyed that the plaintiff had been trading company equipment for drugs.  Instead, he relayed that such allegations had been made.  

In addition, the HR Manager’s statements to the union officers during the grievance meetings about the plaintiff’s alleged misconduct were protected by qualified privilege.  In any event, playing recordings for the union officers – of the co-worker’s allegations about inappropriate conduct and trading company equipment for drugs --  is not actionable as a defamatory statement.   The HR Manager never indicated that he believed the allegations, but was simply informing the union that the allegations had been made.  

Finally, telling the union officers that the plaintiff falsified a company record was protected by a qualified privilege because the HR Manager – while probably incorrect – had interviewed a couple of employees to determine if someone else had amended the work ticket to reflect that the work had been performed on December 4 instead of or in addition to the work performed on December 9. “Ohio extends a privilege to statements made in good faith, where ‘an interest [is] to be upheld, [the] statement [is] limited in its scope to this purpose, [there is] a proper occasion, and publication [is] in a proper manner and to proper parties only.’”  In this case, his “statement about the ticket was published only to necessary parties, the Union officers in charge of the grievance.  Finally, [his] statement was limited in scope because it was couched as a “belief.”  The plaintiff could not overcome this privilege without evidence of actual malice, i.e., evidence that the HR manager knew or recklessly disregarded that the information was false.  

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 be changed or 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.

Defamation and Privilege in the Workplace

Last month, the Ohio Court of Appeals affirmed the dismissal of most of the claims of defamation and tortious interference brought by a discharged supervisor against the employees’ and union officials whose allegations had led to his termination. Gintert v. WCI Steel, Inc., 2007-Ohio-6737 (12/14/07). In that case, the supervisor had been accused over the course of a couple of years of, among other things, sexually harassing two male co-workers, making racial slurs and leaving work early without permission to begin his vacation. He then brought suit against the employees who made the allegations and the union stewards who brought the allegations to the attention of management, which terminated. (The lawsuit against the employer was stayed when the employer filed for bankruptcy).

The Court dismissed all but one of the claims because the challenged statements were reasonably connected with the union grievance procedure and, therefore, were protected by a qualified privilege. “Under the doctrine of qualified privilege, statements made in good faith on a matter of common interest between an employer and an employee, or between two employees, concerning a third employee are protected in an action for defamation. . . . If the requirements for the qualified privilege are established, then the burden falls on the plaintiff to show by clear and convincing evidence that the statements were made with actual malice, i.e., that the statements were made with knowledge or reckless disregard for their truth or falsity.” In addition, Ohio recognizes “that "union officers and employees are immune from personal liability for acts undertaken as union representatives, on behalf of the union."

However, the court found that one of the sexual harassment accusations could have been made with actual malice because the plaintiff supervisor denied categorically to having made any of the alleged sexually harassing statements and this raised a question of fact as to whether the defendant made the accusation with knowledge or reckless disregard for the truth. Nonetheless, the court dismissed the tortious interference claims because of the same privilege and held that the accusations were not outrageous enough to sustain an emotional distress claim.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/11/2007/2007-ohio-6737.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.