Employment Section Case Highlights

Bereatha Kyle-Eiland v. Albert Neff, et al. (Ohio State University).  (United States Court of Appeals for the Sixth Circuit).  Kyle-Eiland, an administrative assistant employed by Ohio State University, brought Title VII and 42 U.S.C. §1983 claims of race discrimination and retaliation against four individually named employees of OSU.  The essence of Kyle-Eiland’s claims is that she was not promoted, and ultimately was terminated, due to her race, African-American, and in retaliation for having filed numerous charges with the Ohio Civil Rights Commission.  The District Court granted summary judgment for the Defendants, holding that there was no direct evidence that Defendants discriminated against Kyle-Eiland based upon her race, nor did Kyle-Eiland establish that she was treated less favorably than any similarly situated employee outside of the protected class.  The Court also found that the Defendants possessed legitimate non-discriminatory reasons for terminating Kyle-Eiland.

On appeal to the Sixth Circuit, Kyle-Eiland raised only the claim of Title VII retaliation as to Defendant Albert Neff, her direct supervisor.  Kyle-Eiland pointed to the fact that Neff placed her on a performance improvement plan as the primary basis for her claim of retaliation.  The Sixth Circuit affirmed the decision of the District Court, holding that Kyle-Eiland failed to establish that Neff had knowledge of her OCRC charges, and even if he did, she clearly did not meet his legitimate expectations for her performance.  Section Chief Timothy Lecklider and AAG Timothy Miller.

• Scott Savage v. E. Gordon Gee, et al.  (United States Court of Appeals for the Sixth Circuit).  Scott Savage, Head of Reference and Library Instruction at Ohio State University’s Mansfield campus, was assigned to participate with a faculty panel to select a book for incoming freshman to read and discuss.  Savage suggested a book by an author named Kupelian, who maintained that America’s growing acceptance of homosexuality was due to a marketing campaign orchestrated from Madison Avenue.  Several professors questioned Savage’s judgment regarding scholarly literature, while Savage questioned the professors’ credentials.  Several faculty then filed a complaint with OSU’s Human Resources Office alleging that Savage’s conduct created a hostile work environment on the basis of sexual orientation.  OSU/HR investigated, but Savage refused to cooperate and instead resigned before the investigation exonerated him.

Savage claims that he was constructively discharged and “harassed” when faculty complained to OSU/HR in retaliation for constitutionally protected speech that was religiously motivated.  He claims OSU’s harassment policy is unconstitutionally vague and overbroad.  The District Court granted summary judgment to the Defendants on Savage’s speech claim based upon the U.S. Supreme Court’s holding in Garcetti v. Ceballos, 547 U.S. 410 (2006).  The Court held that while the subject matter of Savage’s speech arguably was a matter of public concern, the speech in question was made pursuant to his job duties, and not as a citizen.  Further, the Court found that there was no “academic freedom” exception where the speech in question could not be classified as “scholarship or teaching.”  Finally, the Court held that Savage lacks standing to challenge the constitutionality of the harassment policy due to the fact that he no longer is employed by OSU.

In a published opinion, the Sixth Circuit affirmed the decision of the District Court holding that Savage’s First Amendment retaliation claim failed because he did not suffer an adverse action.  More specifically, Savage’s working conditions did not rise to the level of a constructive discharge.  As Savage failed to establish an adverse action, the Court did not reach the issue of whether an “academic freedom” exception to Garcetti exists.  Also of note, the Sixth Circuit held that the Leaman waiver doctrine (plaintiffs waive claims for damages against state officers or employees by bringing a related suit in the Ohio Court of Claims) remains good law in this Circuit.  Senior AAG Drew Piersall.

• Dawn Bishop, et al. v. Ohio Department of Rehabilitation and Correction – London Correctional Institution (United States Court of Appeals for the Sixth Circuit – pending).  Four female corrections officers, Dawn Bishop, Brandi Henry, Denise Marsh and Cheri Gause, alleged that ODRC violated Title VII of the Civil Rights Act of 1964 by subjecting them to a discriminatory hostile work environment based on their sex and by retaliating against them after they engaged in protected activity.  The plaintiffs’ claims primarily focused on their female lieutenant who they alleged gave female relief officers undesirable assignments and treated female officers rudely.  After submitting a complaint to the Warden, the plaintiffs alleged the lieutenant engaged in retaliatory conduct.  Thereafter, Marsh transferred to Toledo Correctional Institution.  Gause laterally transferred to a health care administrator position and then took disability leave, which Gause characterized as a constructive discharge.  Plaintiffs Bishop and Henry, who were probationary employees, were both terminated by the Warden. Bishop and Henry put forth a “cat’s paw” theory, alleging that the lieutenant’s retaliatory action led to the Warden’s decision to terminate plaintiffs. 

The District Court granted summary judgment holding that the conduct plaintiffs complained of was not severe and pervasive enough to rise to the level of a hostile work environment under Title VII, but rather consisted of simple teasing, offhanded comments and isolated incidents.  Further, the Court held that the plaintiffs did not suffer from a retaliatory hostile work environment and that neither Marsh nor Gause suffered an adverse employment action.  Finally, the Court held that Bishop and Henry’s terminations were based on legitimate business reasons founded on the Warden’s independent investigations of their poor performances.  Consequently, the lieutenant’s retaliatory animus could not be imputed to the Warden. 

Plaintiffs Marsh and Gause appealed pro se to the Sixth Circuit wherein the District Court’s decision was upheld.  Plaintiffs Bishop and Henry’s appeal to the Sixth Circuit centered on their claim of retaliation.  Among other claims, the plaintiffs argued that the United States Supreme Court’s recent ruling in Staub v. Proctor Hospital vitiated the lower court’s cat’s paw analysis.  Specifically, plaintiffs argued the Warden’s decision to terminate was tainted by the lieutenant’s retaliatory animus despite the Warden’s independent investigation.  The appeal has been fully briefed, argued and is pending a decision.  Associate AAG Mahjabeen F. Qadir.

• Dayna Newton v. Ohio Department of Rehabilitation and Correction – Toledo Correctional Institution.  (United States Court of Appeals for the Sixth Circuit-pending).  Corrections Officer Dayna Newton alleged that she was the victim of workplace sexual harassment perpetrated by Sergeant Kevin Logan after Logan allegedly grabbed Newton’s wrist and ejaculated into her hand.  Warden Welch of Toledo Correctional Institution (“ToCI”) placed both parties on administrative leave pending the outcome of an investigation.  ToCI’s investigation determined that the incident was consensual and both Newton and Logan were removed from employment.  An investigation by the Ohio State Highway Patrol also determined that the incident was consensual and Newton eventually pled guilty to a charge of attempted dereliction of duty.

Newton filed an action in the United States District Court for the Northern District of Ohio, Western Division, alleging that she was the victim of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et. seq.  The District Court granted summary judgment to ToCI, finding that ToCI promptly responded to Newton’s complaint of sexual harassment and took appropriate corrective action.  Indeed, the Court found that ToCI’s response was “more than adequate.”  Moreover, the Court found no evidence that Newton’s termination was in retaliation for her filing of an earlier charge with the Ohio Civil Rights Commission.

Newton appealed the District Court’s decision to the Sixth Circuit, where it has been fully briefed and the parties await the scheduling of oral argument.  Section Chief Timothy Lecklider and AAG Julie Smith.

• Terry L. Janke v. Department of Job and Family Services.  (State Personnel Board of Review).  Janke held the unclassified position of ODJFS Program Administrator 1 (PA1) in the Office of Workforce Development, Ohio Department of Family Services until it was revoked for failure to adequately preform his job duties and responsibilities.  Janke claims that his PA1 position was revoked because of numerous reports to then Director Lumpkin, including a written memorandum, in which he reported a violation of the Jobs for Veterans Act, (2002), 38 U.S.C. § 4103.  The Act requires that ODJFS, as a grantee through the U.S. Department of Labor, maintain a specified number of Disabled Veterans Outreach Program Specialists to carry out the mandate of the Act.  ODJFS did not maintain the required staffing levels and was notified of a $525,000 cut in funding.  Janke brought a Whistleblower action at the State Personnel Board of Review claiming that the revocation of this position was in retaliation for his reporting a violation of the above-referenced federal statue. Janke’s Whistleblower claim received prominent coverage in the Columbus Dispatch.

A three-day record hearing followed at the State Personnel Board of Review.  The Administrative Law Judge issued a Report and Recommendation to dismiss the whistleblower appeal because Janke failed to meet his burden of proof to demonstrate by a preponderance of the evidence that the revocation of Janke’s PA1 position was a result of his making a whistleblower report under R.C. 124.34(A).  The Full Board adopted the Administrative Law Judge’s Report and Recommendation and issued a final Order dismissing Janke’s Whistleblower appeal.  Senior AAG Joseph Rosenthal. 

 

Employment Law Section Publications

1. Callahan, Rory, Supreme Court Upholds “Cat’s Paw” Theory Labor and Employment News, Spring 2011, Ohio State Bar Association
2. Fekete, Robert, Employers Should Not Concede Defeat To Facebook Just Yet Labor and Employment News, Spring 2011, Ohio State Bar Association