Sixth Circuit: No Violation of Public Policy for Firing Employee For Bringing Weapon onto Employer’s Property.

Today, the Sixth Circuit affirmed summary judgment in favor of an employer which fired an employee for keeping a concealed weapon in his car in the employer’s parking lot in violation of the employer’s policy. Plona v. UPS, No. 08-5624.

According to the court’s opinion, the employer’s policy provided: “All UPS employees are prohibited from using or possessing a firearm . . . while on UPS property or while conducting official UPS business. This includes, but is not limited to: UPS vehicles, facilities (including parking lots, customer premises, etc.) and while on duty or during personal breaks.” The plaintiff “had previously signed an acknowledgment form stating that he was aware of this policy.” After the employer contacted the local sheriff “about a package containing possible contraband,” a K-9 search was conducted of cars in the parking lot. “During the search, one of the dogs identified [the plaintiff’s] car as a vehicle to inspect. [The plaintiff] consented to the search and informed the sheriff’s deputies that he had a firearm in the vehicle. The deputies found a .22 caliber Luger pistol under the front seat and its empty ammunition magazine in the glove compartment. [The plaintiff] did not have a permit to carry a concealed weapon and had not registered the pistol. The deputies confiscated the weapon and reported their findings to UPS. Two UPS officials then met with [the plaintiff], who conceded that he was aware of UPS’s weapons policies and admitted that he had knowingly left the pistol in his car. The UPS officials accordingly discharged [the plaintiff], effective immediately.”

The plaintiff “subsequently filed a lawsuit against UPS in federal court, alleging wrongful discharge. He claimed that his firing was in violation of the public policy regarding firearms embodied in Article I, § 4 of the Ohio Constitution.” The Sixth Circuit disagreed. “Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms:

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.

Ohio Rev. Code § 2923.126(C)(1).” UPS was thus plainly within its rights, as codified in § 2923.126(C)(1), to prohibit its employees from possessing firearms in the parking area. Because [the plaintiff] cannot show that UPS violated a clear public policy of the state of Ohio, his wrongful-termination claim fails as a matter of law.” The Court also held that the plaintiff’s arguments concerning pretext were misplaced since no law had been violated and he was not a member of a protected class. Wanting to keep his gun away from his allegedly suicidal wife, while commendable if true, did not affect the employer’s right to terminate him for violating policy.

Insomniacs can read the full court opinion at http://

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.

EEOC: Store Pays $60K and Agrees to 5-Year Consent Decree After Laying Off Black Manager in RIF and Later Hiring White Managers.

Yesterday, the EEOC announced that Shopper’s Vineyard, a wine and liquor store in Clifton, New Jersey, agreed to consent decree to resolve a race discrimination lawsuit initiated on behalf of an African-American store manager who had been laid off in 2006. Pursuant to the five-year consent decree, the store will pay $60,000 and institute new anti-discrimination policies and procedures, including appointing an equal employment opportunity coordinator to insure compliance with Title VII and other anti-discrimination statutes, training managers regarding Title VII requirements on a regular basis, posting a notice to employees at the store about the decree, providing reports to the EEOC, and permitting the EEOC to monitor its compliance with the decree.

In its lawsuit, the EEOC alleged that the manager “was the only African American front-line manager at the Clifton store. Shopper’s Vineyard told [the manager] in 2006 that he was being laid off because of economic reasons, but [he] was actually laid off because of his race. Shopper’s Vineyard retained white managers with less tenure and experience and hired many new employees, including four new white managers, within the year after [the manager] was laid off.”

Insomniacs may read the full press release at http://www.eeoc.gov/press/3-4-09a.html.

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.

IRS Explains Employers’ 2009 Payroll Tax Credit for Subsidizing COBRA Premiums for Terminated Employees.

On February 26, 2009, the Internal Revenue Service released information about how employers may claim credits against their quarterly payroll tax payments in order to subsidize continued medical insurance of terminated employees under COBRA pursuant to the American Recovery and Reinvestment Act of 2009. According to the IRS, “Form 941, Employer’s Quarterly Federal Tax Return, will also be sent to about 2 million employers in mid-March. The form is used to claim the new COBRA premium assistance payments credit, beginning with the first quarter of 2009.” The revised instructions for Form 941 will “explain how to complete lines 12a and 12b, which address the COBRA premium assistance payments.”

The IRS also announced that “[e]mployers must maintain supporting documentation for the credit claimed. This includes:
• Documentation of receipt of the employee’s 35 percent share of the premium.
• In the case of insured plans: A copy of invoice or other supporting statement from the insurance carrier and proof of timely payment of the full premium to the insurance carrier.
• Declaration of the former employee’s involuntary termination.”

Additional information is available from the IRS at http://www.irs.gov/newsroom/article/0,,id=204505,00.html, http://www.irs.gov/newsroom/article/0,,id=204709,00.html, and http://www.irs.gov/newsroom/article/0,,id=204708,00.html.

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.

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.