Firing for Drinking at Middle-School Dance Not Malicious; Workers Can’t Sue Manager
By Anne A. Marchessault
Three Wyoming, Ohio, workers who were fired or forced to resign for drinking alcohol while working at a middle-school dance cannot sue the city manager for discriminatory discharge, an appellate court in the state ruled June 28 (Pearl v. Wyoming, Ohio Ct. App., No. C-120563, 6/28/13).
Reversing the county court’s denial of city manager Robert Harrison’s claim to immunity under Ohio Revised Code §2744.03, the court found he did not act with malicious intent or in bad faith in deciding to terminate the workers’ employment.
Michael Pearl, Monica Miller, and Cathy Deters failed to establish that an exception to immunity should apply because none of the alleged comparators consumed alcohol in a workplace context, the court said, and they did not present evidence of Harrison’s discriminatory animus.
Judge Patrick Dinkelacker wrote for the Court of Appeals, First Appellate District of Ohio, Hamilton County, joined by Judges Sylvia Sieve Hendon and R. Patrick DeWine.
Discharged for Drinking During Dance
On Aug. 28, 2009, the city of Wyoming held a “Teen Splash Dance” for middle-school children.
Pearl, Miller, and Deters worked at the dance, and all three consumed alcohol while at the front desk.
Harrison learned of the incident a few days later.
In an effort to bring objective, outside analysis into an investigation of the incident, the city hired a Springfield Township police officer to ask questions of the employees using voice-stress analysis.
All three employees admitted to drinking alcohol at the dance.
The next day, Harrison told Pearl, Miller, and Deters that they had the option of resigning or the city would fire them. Pearl and Miller chose to resign, and Deters was fired.
Pearl, Miller, and Deters then filed discrimination claims against the city and Harrison, in which Miller and Deters alleged they were fired because they are female and Pearl claimed he was fired because he is a disabled African American.
The trial court denied Harrison’s claim of immunity under state law, and he appealed.
Misconduct Outside Work Context Not Comparable
The court decided that Harrison’s discharge of the three city employees could not be considered “malicious” under state law.
Under Section 2744.03(A)(6), the court said, an employee of a political subdivision is entitled to immunity from liability for conduct in connection with a governmental function unless his conduct was “malicious, in bad faith, or wanton or reckless.”
The former city workers argued that Harrison’s decision to fire them demonstrated a malicious intent to discriminate against them because he did not similarly discharge employees outside of their protected classes, but the court disagreed.
To be deemed “similarly situated” under Sixth Circuit precedent, the court said, the alleged comparators must have dealt with the same supervisor, have been subject to the same standards, and have engaged in the same conduct without such differentiating or mitigating circumstances as to distinguish their conduct or the employer’s treatment of them based on that conduct.
“None of the examples cited by Pearl, Miller, and Deters meet this test,” Dinkelacker said.
The court found that all of the incidents pointed to by the former employees could be distinguished because they involved employees who were found to have consumed alcohol or taken drugs outside of work.
One incident involved a public works employee who consumed beer while attending a private pool party.
“But there was no evidence that the employee was working or was in any way engaged in an area or acting in a way in which it could be said that he was acting as an employee,” Dinkelacker wrote.
“Absent any evidence that the employee was working or acting in some official capacity, the situation is not comparable,” he said.
Seeking Outside Counsel Shows Good Faith
The former employees also did not present competent evidence that Harrison acted in bad faith, the court decided.
Under Ohio law, the court said, bad faith indicates a “dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.”
Pearl and Miller claimed that Harrison’s behavior implicated the dishonest portion of the bad faith definition because he allegedly broke a promise that he would not disclose to prospective employers the circumstances surrounding their resignations if they chose to resign rather than be fired.
The court found, however, that there was no evidence that Harrison actually breached their agreement.
“Therefore,” Dinkelacker wrote, “the former employees have made no showing of bad faith on the part of Harrison.”
The court also concluded that Harrison did not act in a wanton or reckless manner under Section 2744.
During an investigation into the drinking incident, the court noted, Harrison hired an outside consultant to provide a voice-stress analysis to ensure that the employees were not disciplined based solely on hearsay.
Furthermore, the court said, Harrison consulted with city council members, the city’s general counsel, and the heads of all the city departments before making the discharge decision. All of the department heads agreed that they would fire employees who had engaged in such misconduct.
“Therefore,” the court concluded, “Harrison was entitled to immunity.”
Randolph H. Freking and Brian Gillan of Freking & Betz represented Pearl, Miller, and Deters. Nicholas E. Subashi and Tabitha Justice of Subashi & Wildermuth and Franklin A. Klaine of Strauss & Troy represented Harrison.
Text of the opinion is available at http://about.bloomberglaw.com/files/2013/07/Pearl-Ruling.pdf.