Ohio Appeals Court: Arbitrator Exceeded Authority in Ignoring Parties’ Stipulation Removing Legal Issue from Consideration.

Today, the Summit County Court of Appeals vacated an arbitrator’s order reinstating a city health department employee who had been discharged for taking college classes when she was supposed to be on FMLA leave. City of Akron v. Civ. Serv. Personnel Assn., Inc., 2008-Ohio-4331. The court disagreed with the arbitrator’s rationale that the city’s pre-termination notice was constitutionally deficient because its focus seemed to announce a decision already made instead of giving her notice of her opportunity to present exculpatory evidence to preserve her employment. Instead, the court found that the arbitrator exceeded her authority by ignoring the parties' stipulation that the city had honored the employee's Loudermill rights by holding the pretermination hearing when the arbitrator ruled that the city had violated the employee's due process rights through a defective notice of termination.

According to the court’s decision, the employee “sought to attend college courses during regular working hours through the City’s “Academic Flexible Work Schedules” program, [but] withdrew her request to participate in the program . . . when management indicated that staffing shortages necessitated her working all of her regular hours. Instead, [the employee] submitted a request for Family Medical Leave Act (“FMLA”) leave time in order to care for her sick son. Health Department investigators later discovered [the employee] attending a college course during the hours that she had been approved to take her FMLA leave time.” Not surprisingly, “the City subsequently notified [the employee] that she was being recommended for discharge.” According to the City, a pretermination hearing was then held “consistent with Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532. The City further claims that [the employee’s union] sent the City a “Loudermill Response” after the hearing” on October 20, 2006. The union also filed a grievance challenging the employee’s termination. The City says that it considered all of this information and then City “finally notified [the employee] on October 23, 2006 that she was in fact being discharged, effective October 24, 2006.” The union sought arbitration on October 31, 2006.

During the March 2007 arbitration hearing, the parties “entered two stipulations before the arbitrator: (1) that the matter was properly before the arbitrator for resolution, and (2) that [the employee] had been given a Loudermill hearing.” Notwithstanding these stipulations, the arbitrator reinstated the employee in May 2007 because she determined that the City “failed to comply with Loudermill and the due process protections afforded to [the employee] as a civil servant. The arbitrator reasoned that the City’s notice of discharge, issued on October 11, 2006, clearly informed [the employee] that she was “hereby discharged” even though it preceded any response from [the union]. Therefore, the arbitrator determined that the City never gave [the employee] a pretermination opportunity to respond to the charges against her and terminated her without just cause.” When the city filed an appeal to vacate the arbitration decision, the trial court confirmed the arbitration award on the grounds that the parties’ stipulation raised factual matters which could not be reversed on appeal.

On appeal, the city argued that the arbitrator ignored the parties’ stipulation that the city had honored the employee’s Loudermill rights and the Court agreed. “An arbitrator also exceeds her authority, however, when she misinterprets or exceeds the conditions of a stipulation. Moreover, “Loudermill [only] requires a ‘classified civil service employee’ to be given a pretermination disciplinary hearing. . . . [S]uch hearing need not be elaborate, but must afford the employee the opportunity to have an explanation of the employer’s charges and evidence against [her], and an opportunity to present [her] side of the story.” The Court determined that the parties’ Loudermill stipulation removed a legal issue from the arbitrator’s consideration and was not merely a factual stipulation which was beyond the court’s jurisdiction to review on appeal. “By wholly ignoring the stipulation, the arbitrator went beyond the scope of the issue presented to her and exceeded her authority,” which is a matter determined by the contract -- and stipulations – entered into by the parties (i.e., the employer and the union).

Insomniacs can read the decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4331.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.

Ohio Appeals Court: Workers Compensation Does Not Bar Negligent Hiring Claim When Co-Worker Rapes Employee, Which Was Not Foreseeable.

Yesterday, the Butler County Court of Appeals affirmed the dismissal of a negligent hiring claim against a residential facility for the mentally disabled. Prewitt v. Alexson Servs., Inc., 2008-Ohio-4306 (8/25/08). In that case, an employee raped a co-worker, who then argued that the employer was negligent in its hiring and supervision of the rapist. Although the trial court dismissed the lawsuit on the grounds that her claim was covered and barred by the workers compensation statutes and his crime was not foreseeable based on the rapist’s prior criminal history, the Court of Appeals affirmed only on the grounds that the rape was not reasonably foreseeable under the circumstances.

The plaintiff employee argued that the employer was negligent in hiring and supervising the rapist and that her rape was reasonably foreseeable because the rapist had been convicted of disorderly conduct (for exposing himself in a public park) before he had been hired. He had also been investigated (and cleared) by the county MR/DD department and the local police after he was hired for assaulting a client by striking her with pillows. He had also been investigated twice by the local police for sexually assaulting patients. During these investigations, the rapist informed the police (who, in turn, informed the employer) that he suffered from bi-polar, was borderline schizophrenic and was not taking his medication. Moreover, he took a two-month FMLA leave of absence for his mental health issues and was cleared to return to work without any restrictions by his physician. Finally, another co-worker had privately claimed to the plaintiff that she had been raped twice by the rapist at work, but had never reported it because she did not want her family to know.

While the employer conducted pre-employment background and criminal checks of applicants, it relied on the employee’s honor to self- report any criminal convictions after the employee was hired. Nonetheless, the court found that this fact to be irrelevant in this case because the rapist had not been convicted of any similar crimes after being hired. Further, the pre-employment criminal check did not reveal the circumstances of the rapist’s disorderly conduct (which, in any event, was not – in the court’s opinion -- necessarily indicative of his predisposition to rape a co-worker in that it did not involve a physical assault). Because the employee had been returned to work by his physician after his FMLA leave without any restrictions, the court did not find that the rapist’s mental health issues were indicative of his future proclivity to rape a co-worker. In totality, the court found that there was no evidence that the employer possessed any knowledge which would indicate that it was reasonably foreseeable that the rapist would sexually assault a co-worker during working hours.

Nonetheless, the court reversed the trial court’s finding that the negligent supervision/hiring claims were barred by the workers compensation laws because the rape did not occur within the scope of the rapist’s duties, and therefore, was not an “accident.” Ohio Revised Code § 4123.74 provides, in pertinent part, "Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, * * * received * * * by any employee in the course of or arising out of his employment * * *." The employer argued that a prior Supreme Court decision (which held that the workers compensation laws did not bar sexual harassment claims) applied to bar this negligent hiring claim because the employee’s injury in this case was physical – not emotional as in sexual harassment cases.

However, the Court of Appeals disagreed: “Regardless of the nature of appellant's injuries suffered as a result of the rape, the controlling inquiry is whether the injury was "accidental" or occurred "in the course of or arising out of the employment." Under Ohio Revised Code § 4123.74, “an employer is not immune from liability for injuries not taking place in the course of or arising out of employment. "For an accident to 'arise out of' the employment as required under Workers' Compensation Act, it is necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs; the accident need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence . . . The controlling test of whether an injury arises out of the employment is whether the injury is a natural and probable consequence of the nature of the employment. . . . . A similar analysis in this case demonstrates that the rape did not occur "in the course of" or "arise out of" appellant's employment as a rape is not a "natural and probable consequence" of the nature of the employment. Moreover, the rape does not constitute an ‘accident’ included in the definition of ‘injury.’"

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-4306.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.

Franklin County Court of Appeals Upholds OCRC Order That Employer Retaliated Against Office Manager For Informing Employee of Discrimination.

Last week, the Franklin County Court of Appeals upheld an order by the Ohio Civil Rights Commission reinstating an office manager who had been fired in retaliation for telling an African-American employee that he had been denied health insurance which was provided to white employees and for helping that employee bring a discrimination claim against the employer. HLS Bonding v. Ohio Civ. Rights Comm., 2008-Ohio-4107 (8/14/08). The court of appeals found sufficient evidence in the record to prove both a prima facie case of retaliation and that the employer’s explanation for his termination was pretextual -- i.e., a disguise to hide the true retaliatory motive.

In that case, the office manager had received nothing but positive performance evaluations and raises. Indeed, only a month before he was terminated, the managing partners asked him to join their business partnership. The office manager asked the employer to extend health insurance benefits to the company’s only full-time African-American employee, but they refused. He then told the employee how other (white) employees were provided with insurance benefits and that he thought the employee should receive similar benefits. That employee – who had requested insurance benefits in the past -- then confronted the employers (while taping the conversation with knowledge of the office manager) and filed a Charge of Discrimination with the OCRC which listed the office manager as a witness. After receiving a copy of the Charge, the employer then demoted the office manager, terminated all employee health insurance benefits, demoted the office manager again and ultimately fired him – purportedly for poor performance and insubordination.

The office manager filed a Charge with the OCRC alleging that he had been fired in retaliation for the African-American employee filing his Charge. Following a public hearing, the Commission ruled in favor of the office manager and ordered the employer to reinstate him and to pay him within ten days by certified check all back pay, benefits and interest (less his interim earnings).

Interestingly, the Court affirmed the OCRC’s ruling that the employer retaliated against the office manager under the Ohio Civil Right Act’s participation clause, rather than the opposition clause. Ohio Revised Code § 4112.02(I) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section ["opposition clause"] or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code ["participation clause"]." (emphasis added). This is probably because, as noted in my June 28, 2008 blog, “’[t]he distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).”

The Franklin County Court then noted that “reliable, probative, and substantial evidence supports the finding that [the office manager] engaged or participated in a protected activity. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity. [The office manager] alerted [the African-American employee] to the health care issue. [The office manager] told [the African-American employee] that he would testify on [the employee’s] behalf before the Commission. [The employee] named [the office manager] as a witness when he brought his claim. [The office manager] told his employer that it should offer [the employee] health care benefits [and] was present and knew [the employee] was "wired," when [he] then asked their employer for health care benefits.”

The court failed to explain why the office manager’s conduct was not protected opposition. As recently noted by the Sixth Circuit in Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08), “’The opposition clause . . . covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers. . . . We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.” In contrast, the Sixth Circuit has noted that the participation clause “extends to persons who have participated in any manner in Title VII proceedings.” In this case, the Franklin County Court rejected the employer’s arguments that the office manager’s conduct could not constitute protected participation because it pre-dated the filing of the OCRC/EEOC Charge and any government investigation because the court considered "the instigation of proceedings leading to the filing of a complaint or a charge * * * is a prerequisite to protection under the participation clause” under Sixth Circuit precedent. It seems more likely that the OCRC and the court did not want to address the reasonableness of the office manager’s conduct under the opposition clause precedent.


The court found the evidence also showed that there was a causal connection between the filing of the OCRC Charge and the demotions and eventual termination of the office manager because the office manager’s first demotion – removing his authority over the benefit plans – took place only two weeks after the employer’s receipt of the OCRC Charge.

The court also agreed with the conclusion of pretext from the employer’s articulated explanation for why it demoted and terminated the office manager. First, the employer never counseled the office manager about his supposed poor performance before his demotion. On the contrary, they had recently asked him to become one of their business partners. In addition, the OCRC hearing officer office did not find the witness to be credible that the office manager was fired because he scared the managing partner during a conversation. Finally, the weight of the circumstantial evidence presented in the prima facie case was much more convincing as to why the office manager was fired.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-4107.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.

Butler County Court of Appeals Holds that Continuous Violation Doctrine Does Not Extend CBA Deadline for Filing Grievances.

Earlier this month, the Butler County Court of Appeals overruled an arbitration decision in favor of the union which had ordered the city employer to fill two vacant positions with bargaining unit members. City of Fairfield v. AFSCME, Ohio Council 8, 2008-Ohio-3891 (8/4/08). In that case, the collective bargaining agreement provided that grievances must be filed within 3 days of the event giving rise to the grievance. However, a grievance was not filed until almost a month after the issue came to the attention of the union. Nonetheless, the arbitrator ruled that the grievance was timely because it was a continuing violation for the City to continue to staff the duties of the two jobs at issue with non-union employees. The Court held that it was beyond the arbitrator’s authority to ignore the clear and unambiguous language in the CBA. In fact, the arbitrator lacked jurisdiction to even consider the grievance under the circumstances.

As stated by the court, “[t]he arbitrator was not authorized to ignore or modify plain and unambiguous provisions of the CBA. . . . Rather, the arbitrator was restricted to the interpretation and application of the CBA. . . . The CBA's three-day time limitation upon the filing of grievances was plain and unambiguous. The arbitrator's "continuing violation" determination did not comport with, and in fact defeated, the plain and unambiguous three-day time limitation upon grievances. This amounted to an impermissible extension of the arbitrator's powers. . . . The arbitrator cannot vest jurisdiction in himself. Holding that the arbitrator's assumption of jurisdiction is not subject to judicial review would permit the arbitrator unfettered discretion in assuming jurisdiction over a matter, even where none exists. Where an arbitrator's assumption of jurisdiction is unlawful, it is not an unassailable finding of fact or legal interpretation immune from the purview of a reviewing court. . . . Were it so, the arbitrator's determination of jurisdiction would be infallible even where contrary to the bargain contemplated by the terms of the CBA.” (citations omitted).

The Court “conclude[d] that the arbitrator's assumption of jurisdiction over the grievance was unlawful. Id. The award departed from the essence of the CBA in that it conflicted with an express, unambiguous term of the agreement. . . . The arbitrator thus exceeded his powers as contemplated by R.C. 2711.10(D) when he exercised jurisdiction over the grievance.” (citation omitted).

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-3891.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.

Sixth Circuit Affirms Employer’s Summary Judgment on Race and Retaliation Claims Despite Messy Termination and Possible Evidence of Pretext

Today, the Sixth Circuit Court of Appeals affirmed the summary judgment entered by the federal court in Columbus in favor of an employer who terminated an African-American employee three times without always following all of its written procedures because the plaintiff was unable to show that any similarly-situated white employee was treated better. Moreover, the court affirmed dismissal of the plaintiff’s retaliation claims because there was no temporal proximity between his termination and when he filed his EEOC and OCRC Charges and no additional acts of retaliation. Gibson v. Shelly Co., No. 07-3009 (8/20/08). Nonetheless, the Court indicated that (i) it would still consider retaliation claims despite the passage of one year between the protected conduct and the adverse employment action; (ii) that the court could consider actions taken by the employer against the plaintiff outside the limitations period and (iii) that a plaintiff need not always show that similarly situated employees reported to the same supervisor if the supervisor’s role in termination decisions was minor.

Plaintiff was hired in 2003 (and in prior years) to assist with highway paving projects. As in other years, he received copies of the employer’s safety manual which provided for the Safety Committee terminating employees for one (and no more than two) serious safety violations (i.e., those which could result in serious injury or death) and for two (and no more than four) non-serious safety violations in a year. The manual also provided for conducting prompt investigations, including interviews with the violating employee, and that employees could be terminated at will (although, as a practical matter, because of union contracts, employees, such as plaintiff, could only be terminated for just cause). Employees who are terminated are not eligible for reemployment for at least one year.

Plaintiff’s first termination took place in May 2003 after he had been observed on three separate occasions driving the roller into moving traffic (which could have killed commuters) and after the employer received a sexual harassment complaint about inappropriate comments Plaintiff had made to a female co-worker. However, the decision was not made by the Safety Committee and the employer never completed its investigation of the sexual harassment complaint by, for instance, interviewing the Plaintiff. The employer also gave differing accounts of the reasons for his termination, at times citing only the safety violations and at others also referring to the sexual harassment allegations. Plaintiff filed a Charge of Discrimination with the EEOC and the OCRC (which were dismissed in February 2004) and a union grievance (which resulted in his reinstatement and back pay almost two years later). Plaintiff did not file a lawsuit after receiving his right-to-sue letters, and was inadvertently hired in June 2004, but was terminated two days later on account of his prior termination and the failure of the arbitrator to render a decision in the union grievance. Plaintiff again filed Charges of Discrimination and Retaliation with the OCRC and EEOC, but they were dismissed in April 2005.

Honoring the arbitration decision, Plaintiff was again hired in Spring 2005, but was again fired on May 12, 2005 following two serious safety violations. In one incident, he almost ran into a co-worker with the roller, and in another, he ran the roller off the road and almost into a ditch while grabbing something out of his lunch bag. An investigation was conducted, but again, the Plaintiff was not interviewed. This time, however, the Safety Committee considered the investigation report and voted to terminate Plaintiff. Plaintiff again filed a Charge of Discrimination and Retaliation with the OCRC and, again, it dismissed it in February 2006. Plaintiff then filed suit.

Although the employer’s failure to follow its own procedures, shifting and inconsistent explanations for his 2003 termination and failure to interview Plaintiff during its several investigations may have constituted evidence of pretext in connection with the parties’ respective burden of proof (and entitling Plaintiff to a jury trial of his claims), the trial and appellate courts concluded that it did not need to evaluate the sufficiency of the employer’s explanation for the termination – or Plaintiff’s evidence of pretext – because Plaintiff failed to satisfy his prima facie burden of proving that he was treated differently than similarly-situated employees. In particular, the courts found that the Plaintiff failed to identify any white employees who committed two serious safety violations who were not fired.

In addition, the courts found that the plaintiff failed to show that he was terminated for filing Charges of Discrimination in May 2003 or 2004 because he was not fired until June 2004 and May 2005 – approximately a year after the Charges had been filed. While the Sixth Circuit pointed out that it has found sufficient evidence of retaliation in cases where a year had passed between the adverse employment action and the filing of the Charge, those cases also possessed other evidence of retaliation – unlike this case. “We have never suggested that a lack of temporal proximity dooms a retaliation claim. In fact, we have previously found retaliation when the termination followed the complaint by over a year. . . . However, in order to overcome a lack of temporal proximity, the plaintiff must present sufficient evidence supporting the causal connection. “[W]here some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0507n-06.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.