Just Cause Policy Requires Some Fault Before Immediate Termination

Last month, the Franklin County Court of Appeals reversed an employer’s trial verdict on the discharge of an unclassified university employee on the grounds that the basis for his termination – that the university president believed that he had engaged in visa fraud based on a federal investigation which did not result in an indictment – did not constitute documented “just cause” based on applicable laws, rules and regulations. Fendley v. Wright State Univ., 2019-Ohio-1963.  The university’s policy required "documented just cause  as provided in applicable laws, rules or regulations.”  However, the belief of the university president was never documented and merely being under investigation for potential wrongdoing does not violate any law, rule or regulation.


According to the Court’s opinion, the plaintiff was an unclassified staff member for 11 years.  He and two other employees were administratively suspended in May with pay pending a federal and internal investigation into alleged visa fraud. After meeting with the federal investigators, the president believed that the plaintiff had engaged in visa fraud and decided to terminate his employment in August. The plaintiff was never indicted or charged with visa fraud.  Under university policy, an employee with 11 years of service could be terminated without cause with 9 months notice and could be immediately terminated “for documented just cause as provided in applicable laws, rules, and regulations or because of financial exigency.”  The trial court and magistrate determined that the University had just cause because of the ongoing federal investigation and the belief formed by the university president after meeting with federal investigators.  The Court of Appeals reversed.


The Court found that the policy did not permit the university to simply fire the employee for any lawful reason as would exist in employment at will.   The policy did not provide that the employee could be immediately terminated “as provided at law.”  The Court rejected the belief of the university president as a basis for the termination decision because it was not mentioned in either letter that suspended the plaintiff or in the letter terminating his employment.   Accordingly, the belief of the university president was not “documented” as required by the university policy.  It also refused to find the federal investigation into potential wrongdoing to be sufficient to constitute just cause because it was not indicative of any fault by the plaintiff.  No identified law, rule or regulation is violated by being under investigation for potential wrongdoing.   The university’s internal investigation likewise never documented any violation by plaintiff of any law, rule or regulation.


The dissent would have affirmed on the basis of the belief of the university president.

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.

Appeals Court Guarantees Higher Salary of Classified Employee Who Was Demoted Without Cause from Unclassified Position to Former Classified Position

In late June, the Hamilton County Court of Appeals held that a civil servant carrying the full protections of a classified employee but employed in an unclassified position is entitled to retain the pay of that unclassified position after a demotion back to a civil service job when the demotion was not based upon cause and the employer failed to obtain a signed waiver from the employee (in accordance with its own rules) when temporarily promoting him to the unclassified position (which was later abolished). Gissiner v. City of Cincinnati, No. 2008-Ohio-3161 (6/27/08). The Court held that only O.R.C. § 124 protected a classified employee from a pay cut for no-cause demotion, although it did not provide him with bumping rights because the unclassified position was not covered by the statute.

By way of background, the plaintiff was "temporarily promoted" from classified position of Senior Human Resources Analyst to the unclassified position of acting municipal investigations manager for the City. However, although he received a raise with the promotion he “did not did not sign a waiver giving up his classified status when he changed positions.” When the managerial position was later abolished in a reorganization, he was returned to his former classified position and the lower pay rate.

In the first phase of litigation, the plaintiff appealed both the demotion and his pay cut to the civil service commission, which dismissed the claim for lack of jurisdiction. However, the court of appeals reversed “because Rule 1.4(2)(A) of the city's Personnel Policies and Procedures Manual required a written waiver of classified status, and because the City had not secured [the plaintiff’s prior] waiver in accordance with [that] rule.” Accordingly, “[t]he case was remanded for an administrative hearing so that the commission could determine whether [the plaintiff’s] demotion was contrary to his property right to maintain his pay during ‘good behavior and efficient service.’”

At the next civil service hearing in the second phase of the litigation, the plaintiff “testified that he was reduced in pay by $32,106.86, that he had served as Manager for over 15 months in good behavior, and that he had received the assurances of several city officials, including two city managers, that he would not be reduced in pay. His testimony was not refuted.” Nonetheless, the civil service commission again affirmed the plaintiff’s demotion and pay cut, but on different grounds. The Court then held that “c]lassified civil servants have tenure during ‘good behavior and efficient service,’ can be discharged or reduced only for cause as set forth in R.C. 124.34, and have displacement rights if their jobs are abolished. Because [the plaintiff] did not waive these rights, he carried them with him to his unclassified position.”

While the Court acknowledged that O.R.C. § 124 did not apply to make the unclassified position a permanent classified position or to give the plaintiff bumping rights, “[o]ne could only conclude from the evidence presented to the commission that [the plaintiff] was reduced in pay and that this reduction contravened his rights as an employee with classified status.” In addition, “the City is estopped from opposing an award of back pay because it created this anomaly by failing to secure [the plaintiff’s] written waiver of his classified status, as required by its own rule, and by promising that [the plaintiff] would not be reduced in pay. We will not penalize [the plaintiff] under these circumstances.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-3161.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.