Ohio Court Finds Former Employee In Contempt for Refusing to Remove Employer's Confidential Information From Website

Last week, the Cuyahoga County Court of Appeals affirmed a contempt order against a former employee who posted confidential and trade secret information of his employer on his website for pecuniary gain in violation of a prior non-disclosure agreement and in violation of an agreed/consent order entered by the trial court after a preliminary settlement conference.  Combs v. Sherwin-Williams Co., 2026-Ohio-562.  The plaintiff argued that his attorney did not have authority to agree to the terms of the consent order, but the court of appeals disagreed.   Refusing to consider his substantive challenges to the order because the TRO and PI were not final orders at that time, the Court found that the employee had failed to show why he should not be held in contempt for violating the agreed/consent order. 

According to the Court’s opinion, the plaintiff filed a complaint against the employer alleging, among other things, breach of contract and tortious interference.  The employer filed similar counterclaims as well as conversion, unjust enrichment, theft of trade secrets and conversion.   In particular, the employer alleged that the plaintiff’s severance agreement contained non-disclosure terms that he violated by posting its trade secrets and confidential information on a personal website for personal monetary gain.   After he refused to remove the information, it filed for a temporary protective order, which he opposed, largely on the grounds that the information was not confidential.   The attorneys and court held a conference, where an interim order was entered agreeing to at least temporarily remove the employer’s information pending an evidentiary hearing on the merits, and scheduled settlement conference.   

However, the plaintiff refused to remove the information and, after initially opposing the employer’s motion for contempt,  his attorney withdrew representation.  The plaintiff continued pro se.  Another settlement conference was held (after much drama) and the case again was not resolved. An evidentiary hearing was held on the motion for contempt and TRO.   The trial court found the plaintiff to be in contempt of the order, granted both a TRO and preliminary injunction and the plaintiff appealed.  The Court of Appeals refused the appeal of the TRO and PI because they were not final orders, but affirmed on appeal the contempt order.

An “agreed order” or “consent order” is based upon the agreements reached by the parties and is considered a contract between those parties as well as an order of the court. . . . Moreover, courts have held that “‘[i]t is beyond question that a duly authorized attorney may enter into an agreed judgment entry[,] the terms of which will be binding on his or her client.’”

In opposing the contempt motion, the plaintiff had focused entirely on the merits of the allegations – challenging that the information was confidential and trade secret – and not on whether he was bound by his former attorney’s in-court agreement:

[Plaintiff] claims that he was excluded from the status conference and his “coerced attorney[’s]” approval of the order should not be akin to his consent. However — despite numerous filings and the opportunity to offer testimony and present evidence at the show-cause hearing — [he] presented no evidence that he was unaware of his counsel’s strategy for the status conference or the May 1, 2025 order issued thereafter. Nor did [he] offer any evidence to establish that he did not approve of or agree to that strategy or the conditions set forth in the order. Without any testimony or evidence indicating that his attorney was not authorized to enter into such an agreement at the status conference or that [he] had no knowledge of the May 1, 2025 order, we decline to find that [he] was not bound by its terms. Since [he] did not challenge the allegation that he “blatantly disregard[ed]” the terms of the May 1, 2025 order by failing to remove any information from his website or otherwise rebut [the employer’s] initial showing of contempt, the trial court did not abuse its discretion when it found [him] in contempt of court.

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.

When Enough Is Enough: Sixth Circuit Affirms Dismissal When Employer's Actions and Belief Were Sufficient

Yesterday, the Sixth Circuit affirmed an employer’s summary judgment dismissing a workplace harassment and retaliation claim.  Hamm v. Pullman SST, Inc., No. 25-1617 (6^th Cir. 2-12-26).   The plaintiff alleged that he was harassed by his co-workers and the construction superintendent and then was fired in retaliation for complaining.  The Court found that the employer’s actions to respond to his complaints were sufficient based on the information provided and his repeated failure to accept alternative work assignments gave the employer an honest belief that he was not interested in continuing his employment, justifying his termination. 

According to the Court’s opinion, the plaintiff was hired by the construction manager and reported to the superintendent.  After a few months, he mentioned that he was bi-sexual to a co-worker, who told others.  Starting in November, he was called derogatory names by his co-workers and the superintendent.   He finally reported to the manager in mid-February that unnamed co-workers were calling him homophobic slurs, but did not mention that he was bi-sexual.   Thinking it was merely a personality conflict, the manager spoke to the crew and the problem was resolved for a couple of weeks.  However, when it started again, he complained again to the manager in mid-March about two co-workers and the superintendent referring to him with homophobic slurs.  The manager said he would take care of it, still without any knowledge that this was a sexual harassment complaint because of the vagueness of the complaint.  The plaintiff claimed that the mistreatment continued, culminating in him leaving the worksite never to return on April 29 because of an anxiety attack.

He finally formally reported the problem on April 29 to HR, which conducted a thorough investigation.  Everyone – including the allegedly neutral witnesses – denied his allegations, except for the superintendent losing his temper with him on April 29.  Instead, he was described as lazy.   The superintendent was formally warned.  All of the supervisors were required to submit to anti-harassment training and the employees were required to re-read and re-sign the anti-harassment policy.  Nonetheless, the plaintiff refused to return to work and began a medical leave for his anxiety.  Throughout the month of May, he was offered five different re-assignments to different work locations, but he objected to all of them for reasons other than his medical leave or anxiety.  While he never technically refused, he never accepted them either and had secretly recorded at least one of job offers.   After twice extending his medical leave, he inquired about returning to work and was told that his employment had been terminated.

The Court declined to address a number of potential issues and others the parties chose to not dispute, including whether this constituted harassment prohibited by Title VII, whether the periodic comments were sufficient to create a hostile work environment, etc.

The Court rejected the argument that the employer was automatically liable for any comments by the superintendent because the plaintiff failed to produce any evidence that the superintendent took or could take any tangible employment actions, making him a supervisor whose actions would bind the employer. Instead, the superintendent was treated as a co-worker.

Employers are only held liable for co-worker harassment if it was negligent – i.e., it knew or should have known about the harassment and unreasonably failed to stop it. 

Or, as our own caselaw puts it, the employer’s response must “manifest[] indifference or unreasonableness in light of the facts the employer knew or should have known.”  . . .  If, then, an employer takes “prompt and appropriate corrective action” after learning of the harassment, employees cannot tie the harassment to the employer.  . . .

The Court concluded that the plaintiff failed to show manifest indifference by the employer.  The manager took immediate and effective action in response to his first (February) vague complaint (which had not identified any specific individuals because he had not wanted to get anyone in trouble).   The manager’s action about the second (March) complaint were still deemed sufficient since the plaintiff still had not provided information indicating that this was a sexual discrimination issue.   The HR Department conducted an immediate investigation which failed to corroborate his allegations and was not required to believe him, particularly when none of his own witnesses corroborated his allegations.  Moreover, the employer took action in any event to prevent future harassment, including training and counseling.  When the manager learned the details of the problem in early May, he immediately agreed to reassign the plaintiff and approved the medical leave and extensions.  He also offered the plaintiff alternative assignments which addressed his stated objections.

The Court rejected the plaintiff’s arguments that he had never actually refused the alternative work assignments.  However, based on his own secret recordings of the conversations, it was clear he had raised objections and never actually accepted the job offers.  Thus, the employer had an honest belief that he had rejected them:

And during the call with [the manager] (that [the plaintiff] secretly recorded), [the plaintiff] said he was “not at all” good at this type of work.  . . . [His] response to this offer came as close to an express denial as it could. All this said, we agree that [he] did not expressly deny most of the jobs. For example, he did not say “No” to driving to Toledo or Cincinnati. Rather, he asked a question: “Isn’t that a hike?”  . . . .  And he did not say “No” to the overhead demolition work; he simply said that this work “hurts [his] shoulder.”  . . .  Given his clear reluctance to take these jobs, we doubt that any reasonable jury could rely on this lawyerly argument to prove [the employer’s] pretext.

At day’s end, though, we need not resolve this debate over whether [the manager] made formal offers or whether [the plaintiff] gave formal denials. When an employee claims that an employer’s reason for an adverse action had no basis in fact, the employer does not need to prove that reason in court.  . . . . It just needs to prove that it held an “honest belief” that the reason was true.  . . . . . So, for example, an employer who fires an employee for fraud does not need to establish that the employee committed the fraud—just that it honestly believed the employee did so.  . . . .  And the employee cannot show pretext merely by showing that the reason was false.  . . . .. This rule applies here. Whether or not [the plaintiff] actually declined these many offers, [the employer] at least held an “honest belief” that he did.  . . .  And [his] “own assertions” that he never denied any assignment do not suffice to overcome this honest-belief rule.

The Court also rejected the plaintiff’s argument that he was not required to accept the alternative assignments because he was on medical leave.  He never once raised his medical leave or his anxiety as a reason that he rejected the five possible re-assignments.  Instead, he “raised concerns that the worksite was too far away, or too high in the air, or too demanding on his shoulders, or too late in the day given other appointments.” Moreover, the assignments were offered before he extended his medical leave.

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.

Political Beliefs Will Not Save Title VII Claims Without Comparator or Replacement Evidence

Last month, the Sixth Circuit affirmed summary judgment for an employer despite claims that the receptionist  had been fired, at least in part, for expressing her political beliefs about law enforcement officers.  Hightower-Mathis v. NextCare Michigan Providers, PLLC, No. 25-1623 (6^th Cir. Jan 16, 2026).  The plaintiff receptionist made comments to police officers seeking treatment at the clinic, which made them uncomfortable providing personal information to the clinic.    She was fired after they complained and an investigation.  She admitted that she was fired for the disputed comments and not because of her race or gender, dooming her Title VII claims. 

According to the Court’s opinion, the terminated medical clinic receptionist alleged that she had been fired on account of her race and gender after she had been fired for making unprofessional comments to a police officer who was there seeking medical treatment.  She admitted to making small talk with the officer when he checked in, including asking whether he had ever killed anyone (which was confirmed by her co-worker).  The officer then texted his supervisor about her rude comments to him about his uniform and asking if he was going to kill anyone tonight.   His sergeant then immediately came to the clinic and she allegedly asked him if he was going to beat up anyone tonight (which she denied).  He asked to speak with her supervisor, the clinic manager, who he immediately called to report her comments.  She, in turn, emailed her supervisor about the “grumpy old man” who was complaining about her because she had been joking with his police officer and asked to leave early to move her car with unregistered tags so that he did not give her a ticket.   She and her co-worker were asked by the Clinic Manager for statements about the incident.   The Police Chief called the next day to demand her termination or he would cancel the department’s contract with the clinic.  She was then fired for unprofessional conduct.

The courts found that she could not even prove a prima facie case of discrimination.  Not only could she not identify any replacement, she could not identify anyone who had engaged in similar conduct and not been fired.   She never complained about harassment and admitted in her deposition that she was fired because of her alleged comments to the police officers, which was investigated by her employer, and not because of her race or gender.  The courts did not address whether she was able to prove pretext because she did not produce sufficient evidence to carry her prima facie burden of proof.

 

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.

Appeals Court Remands Age Discrimination Discharge Claim for Trial Based on Decisionmaker Comments About Retirement Plans and Proximity to Retirement Age

Last month, the Cuyahoga County Court of Appeals reversed an employer’s summary judgment on an age discrimination claim on the basis that the decisionmaker’s comments about the plaintiff’s repeated retirement equivocations constituted direct evidence of discrimination when he was laid off shortly after the comments were made.  Selzer v. Union Home Mortgage, 2026-Ohio-38.   While the mere use of the word, “retire” is insufficient by itself to constitute evidence of age discrimination, the frequent inquiries about the plaintiff’s retirement plans and consideration of his proximity to retirement age as a factor in his selection for the reduction in force, and comments by decisionmakers, etc. was sufficient to create an disputed issue of material fact about the reasons for his termination. 

The plaintiff was laid off in a reduction in force at the age of 64.  He alleged that his age was a factor because the employer retained a 31 year old in the same position hired five months earlier.   The trial court granted the employer summary judgment and the Court of Appeals reversed on the grounds that he presented sufficient evidence to show that his age may have been a factor in his termination. 

To support his argument that he had presented sufficient evidence to survive the employer’s summary judgment motion, the plaintiff

points to frequent comments inquiring as to his retirement plans; the comments were made by numerous UHM employees who had supervisory authority over [him]. [He[ further points to an email from  . . . a vice president with UHM who was involved in the decision to terminate [him], in which [she] stated that [he] “keeps saying he will retire but hasn’t.” According to UHM senior vice president of mortgage operations  . . . , the purpose of [that] email containing this statement was to “communicate the reasons that [[he] was] being included on the termination list.”

[Plaintiff] argues that other courts have concluded that an employer’s consideration of an employee’s potential longevity with the company “is nothing more than a proxy for age” and therefore constitutes direct evidence of age discrimination . . . .  

We reiterate that in this context, “‘[d]irect evidence is evidence that, if believed requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.’”  . . . In determining whether an employer’s statements constitute direct evidence of age discrimination, courts must consider the following four factors:

(1) whether the statements were made by a decision-maker or by an agent within the scope of his employment; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination.

 . . .

This court has held that the use of the word “retire” by itself is not sufficient direct evidence of age discrimination.  . . .  Here, however, the record contains evidence that [his] supervisors frequently asked him about his retirement plans, and moreover, a UHM representative testified in her deposition that [his] proximity to retirement was a factor UHM considered in [his] termination. The comments were made by UHM decision makers in the scope of their employment, the comments were related to the decision-making process, and they were made close in time to the decision. Further, considering the pattern of [his] supervisors inquiring about and commenting on his retirement plans, the statement in [that] email was not isolated or ambiguous.

Viewing the evidence in the light most favorable to [the plaintiff] as we are required to do pursuant to Civ.R. 56, Selzer has created a genuine issue of material fact such that reasonable minds could disagree as to whether [he] suffered age discrimination. Therefore, the trial court erred in granting summary judgment in favor of UHM.   . . . 

(bolding added for emphasis).  The Court declined to rule on the arguments about whether the evidence was sufficient to show a circumstantial burden of proof or pretext.

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.

Interesting FLSA and FMLA Issues Arise in 2026 as well as Remote Workers Working Hours

Earlier this month, the Department of Labor issued a few interesting opinion letters which will be of interest to both employers and employees.  One involved the FMLA and the others the FLSA.  In FMLA2026-2, the DOL instructed that FMLA time off includes time travelling to and from the medical provider office, which should not have been necessary to explain.  In FLSA2026- 2, the DOL confirmed that the regular rate must include the generous safety/punctuality bonus when calculating overtime pay.  In FLSA2026-4 (1/5/26), the DOL explained that the federal exemption for commissioned workers in section 7(i) only requires that the pay be more than the federal minimum wage, but that the employer could still be in violation of similar exemptions under state  law if the pay was not sufficiently higher than the higher state minimum wage and that tips only count towards the pay if the employer utilizes the tip credit.  Finally, in September, the federal district court in Columbus issued an opinion on when a work-from-home employee’s working hours begin and end each day. 

In Opinion FMLA2026-2  (1-5-26), the inquiry asked about how much time off the FMLA would require when the medical provider indicated that the employee needed time off for 45-minute medical appointments, but the employee claimed that s/he needed 1 hour travel each way from home to the office of the medical provider.  “For the reasons set forth below, an employee may use FMLA-protected leave that counts against his or her FMLA entitlement to travel to or from a medical appointment for a serious health condition.” Additionally, a health care provider need not provide an estimate of an employee’s travel time to or from an appointment for the medical certification to be complete and sufficient under the Act. “

In Opinion FLSA2026- 2 (1-5-26), the inquiry involved whether the regular rate (used to calculate overtime pay) must include the safety/punctuality bonus (up to $9.50/hour) on top of the $12/hour wage contractual rate when calculating overtime anytime it is earned.    The answer was yes.  “[T]he rule for determining the regular rate of pay is to divide the wages actually paid by the hours actually worked in any workweek[.]”

In FLSA2026-4 (1/5/26), the inquiry involved the commissioned employee’s exemption under section 7(i) when state minimum wage exceeds federal minimum wage.   The DOL explained “an employee of a qualifying retail or service establishment paid more than one and one-half times the federal minimum wage satisfies the minimum pay standard in section 7(i)(1). “  Therefore, “the exemption currently requires that the employee’s regular rate exceed $10.875 per hour ($7.25 × 1.5)—or, for practical purposes, that the employee’s regular rate be at least $10.88 per hour—for any workweek in which the employer claims the exemption.”  That being said, this does not answer whether using the federal minimum wage could violate the state law which requires employers to pay a higher minimum wage.

Moreover, although tips are not commissions under section 7(i), in some circumstances, a portion of an employee’s tips would be compensation for purposes of determining whether an employee is primarily paid by commission under section 7(i)(2).  This would depend on whether employer utilizes the tip credit or not. 

In Lott v. Recker Consulting, LLC, 798 F. Supp. 3d 778 (S.D. Oh 2025), the Court addressed  when the workday begins for remote workers.  Plaintiffs claimed that they were not paid for time spent logging and clocking in before work and end of lunch and logging out each day – entitling them to unpaid overtime, etc.  The Court decided that

the workday starts at the moment a remote worker opens and begins operating a program or application they use as part of the principal work activities they are employed to perform. By the same token, the workday ends at the moment the employee closes out of the last such program or application. In the Court's view, this better reflects the relationship between the employee and the computer in terms of job performance.

The Court rejected the argument that the workday began as soon as the employee turned on his or her computer. 

In short, the question is not when an employee has powered on or logged into their computer. Rather, the question is when they have configured that computer to perform the tasks they are employed to perform—or stated differently, when they have loaded the first application that they use to perform their job.

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.