Frazier v. Richland Pub. Health, et al., (6th Cir. 2017) – Retaliation

Frazier v. Richland Pub. Health, et al., (2:14-cv-2735, 2016 WL 3182671, at *2-5 (S.D. Ohio June 8, 2016) – Sex Discrimination

Plaintiff Jennifer Frazier began working for Richland Public Health, a combined city/county health district, in October 2000 in the Environmental Health division. RPH’s Health Commissioner is its highest ranking employee. Defendant Stanley Saalman held that title until September 20, 2013, when he entered into a separation and release agreement with RPH under which he retired. Martin Tremmel succeeded Saalman as RPH Health Commissioner. RPH management was at all pertinent times predominantly male.

From 2010 until approximately July 2013, Frazier was President of AFSCME3 Local 3469, with which RPH had a collective bargaining agreement. In January 2013, while Frazier was president, RPH employee Julie Ciesla filed a retaliation charge with the EEOC against Human Resources and Information Technology Director Rick Grega, claiming that he sexually harassed her and that she was demoted in retaliation for reporting Grega’s harassment. Frazier participated in the internal investigation of Ciesla’s harassment complaint by serving as a witness for Ciesla. The investigator wrote in a letter to Saalman dated November 16, 2012, that he had spoken with Ciesla, Frazier, and Grega. The EEOC concluded its investigation of Ciesla’s charge in April 2015.

On June 19, 2013, three female RPH employees individually complained to Frazier that a video camera in the office of RPH information technology manager Phillip Nichols was aimed at the women’s restroom, which was only six or seven feet away. After Frazier verified that there was a video camera in Nichols’ office so aimed, she reported it to Ciesla. Ciesla in turn informed Health Commissioner Saalman. By letter dated June 28, 2013, addressed to RPH’s Personnel Committee from Local 3469’s executive committee, of which Frazier was a member, the union complained. Angered by this letter, Saalman confronted Frazier as she arrived at work on the morning of July 11, 2013, called her over to the women’s restroom, screamed at her repeatedly asking whether she could see the camera, shoved her inside the restroom, and blocked her access to the exit. Frazier reported Saalman’s assaultive conduct internally to her immediate supervisor, Director of Environmental Health Matthew Work, and to Human Resources Director Grega. Frazier also reported the incident to the local Sheriff’s office, on the advice of her AFSCME representative, whom she called right after the incident.

At her doctor’s recommendation Frazier took FMLA leave, returning to work on September 5, 2013. A co-worker informed Frazier that while Frazier was out on leave, her supervisory mosquito-control duties were reassigned permanently to Weston Engelbach, a Sanitarian supervisor who, like Frazier, reported directly to Matt Work. Frazier then emailed Work several times, seeking clarification of her duties and specifically asking whether he had assigned her supervisory mosquito-control duties to Engelbach permanently. Work answered none of Frazier’s emails until April 2014, after more than six months had passed. His email responded simply “You will be part of the 2014 Mosquito program.” Frazier testified that when she was promoted in 2006, her role in mosquito control increased and included supervision of the mosquito-control duties of two RPH employees.

Engelbach testified at his deposition that he and Work met in August or September 2013, at which time Work transferred to Engelbach all mosquito-control supervisory duties. As mentioned, Frazier returned from FMLA leave on September 5, 2013. Work limited Frazier’s involvement in the 2014 mosquito-control program to performing scheduling and, in 2015, Frazier had no mosquito-control duties at all. Frazier’s declaration states that she had performed mosquito-control duties for nine years and that after Work took her duties away, he required Frazier to perform food-safety inspections, which she had not performed in ten years. Frazier testified that Work never explained why he took away her mosquito control duties.

Mahaffey v. Dept. of Youth Services, Circleville Juvenile Correctional Facility, State Personnel Board of Review, 2012-REM-05-0088 – Wrongful Termination/Disparate Treatment

Appellant Tim Mahaffey was removed from his Operations Administrator position at the Ohio Department of Youth Services Circleville Juvenile Correctional Facility; essentially based on the allegation that Mahaffey improperly released a youth under the care and custody of the Department of Youth Services. The record reflects that the youth in question lacked proper post-release supervision, lacked release rules in place at the time of release, and lacked the requisite Journal Entry of the pertinent Juvenile Court Judge to effectuate that release.

Mr. Mahaffey has been asked to bear sole responsibility for a release problem that involved multiple participants at several locations. It is noted that Mahaffey may have initiated the release of the youth in question through his actions. It is also noted that Mahaffey could perhaps have been more attentive in seeking out additional details on this situation before initiating said release.

The record further reflects that Mahaffey bore the sole and most extreme of disciplines for this matter. Neither the first Operations Manager (who fielded the telephone call from the Transportation Officer on scene) nor the second Operations Manager (who sat perhaps six feet away from the first Operations Manager in the Operations Center at this time) received any discipline. Both of the Operations Manager positions share administrative management responsibilities with the Operations Administrator and both of these Operations Managers occupy classifications that are only one pay range below Mahaffey’s Operation’s Administrator classification. As well, Mahaffey’s Operations Administrator position has a similar or close job description to the institution’s Operations Managers. Indeed each of these positions shares responsibility for a number of job duties performed at the institution.

Further, all Department security employees at the institution, including those under collective bargaining, undergo the same training on youth release and must follow the same rules regarding youth release. Yet, neither of these two Youth Specialists suffered any disciplinary consequences from this release.

Ross v. City of Dublin, (2:14-cv-02724 S.D. Ohio 2016) – Race Discrimination: Disparate Treatment/Constructive Termination

Plaintiff Michael Ross alleges that Defendant City of Dublin, Ohio discriminated on the basis of race when it disciplined him with a ten-day suspension. Plaintiff also alleges that Dublin constructively discharged him.

The City has a policy that prohibits employees from using City vehicles for personal use, except as authorized. Even when authorized, personal use must be de minimus, which Mr. Burns defines to mean stopping somewhere en route to a legitimate destination, or approved use in an emergency. Mr. Ross had to sign off on the policy before he could use a City vehicle.

On July 12, 2012, Mr. Burns held a pre-disciplinary conference with Mr. Ross, where he advised Mr. Ross of the “charges” against him and provided Mr. Ross with an opportunity to explain himself. Following that conference, Mr. Burns decided to suspend Mr. Ross from work without pay for ten days.

Ross appealed Mr. Burns’ findings to Deputy City Manager McDaniel, stating in a July 24, 2012 email: “I was disciplined, I believe too harshly. . . . I believe that the discipline, given my work history and personal file was very extreme and discriminatory, seeing as we have members of this management team that have done seemingly far worse and have received a far less action.” Mr. McDaniel met with Mr. Ross and Mr. Burns on August 8, 2012 to conduct the appeal. During this meeting, Mr. Ross admitted to purchasing fencing material for his personal use during working hours. Mr. Ross also admitted to having used a City vehicle to take Luke Browning to his home to look at his pool. Mr. McDaniel dismissed certain charges, including the charge that Mr. Ross went home in a City vehicle during work hours to retrieve personal items, but he upheld the ten-day suspension. Mr. McDaniel disagreed that the discipline was “too harsh”.

Mr. Ross did not discuss race with Mr. McDaniel during his appeal, and he did not appeal Mr. McDaniel’s findings. Mr. Ross also admitted that taking Luke Browning to his home to look at his pool was inappropriate, and he admitted to telling Mr. Burns during the investigation that he did not take Luke Browning to his house to “work on” his pool.

Around lunchtime on January 31, 2014, Mr. Ross was getting ready to leave the office. Mr. Grubaugh walked in and asked Mr. Ross: “where are you going, to get you some chicken?”

Ms. Beth Lozier witnessed this remark and indicated that Mr. Grubaugh had just come back from a dentist appointment, such that his mouth was numb and he did not speak normally. Ms. Lozier was nonetheless surprised by Mr. Grubaugh’s use of the word “chicken,” and she asked him to explain what he meant. Mr. Grubaugh responded that he was asking about food because he wanted lunch.

On February 4, 2014, Mr. Ross wrote an email to then-Human Resources Director Tim Wagner, stating that, “being through what I’ve gone through here, (being referred to as a monkey, or nigger or the infamous yard-ape)”, he was “deeply offended” by Mr. Grubaugh’s comment. He wondered, “when do we say as a group seeking to change old hearts and minds, that enough is enough, and this will not be tolerated here? Are we supposed to accept this as still being the norm?” He stressed that he was “open to meeting with [Mr. Wagner] any day and any time. Someone famous once stated that if you don’t remember the past, you are doomed to repeat it. I pray that we as a City can get a grip on this, because my past here is not something that I’m willing to repeat, nor should I have to.” Streets and Utilities had had past issues with racist comments, including relating to food groups. Mr. Wagner responded that he understood Dublin’s past, which he did not want to repeat, and assured Mr. Ross that they would “be diligent in investigating[.]”

Following Mr. Ross’s letter, Mr. Wagner met with Ms. Lozier and Mr. Grubaugh, and then asked Mr. Grubaugh to be sensitive to other people’s perceptions. Mr. Wagner did not interview Mr. Ross.

Mr. Ross resigned by letter on February 24, 2014. His letter stated that he still did not feel that the City was addressing his “concerns on racial issues[.]” The City accepted his resignation the same day. When asked why he quit, Mr. Ross replied that he had no choice.

The City has two types of policies: Codified Orders and Administrative Orders. Both types of orders address discrimination, harassment, and discipline at the City. Codified Order 33.09 and Administrative Order 2.663 prohibit discrimination that affects the terms and conditions of employment. Codified Order 33.69 prohibits disrespectful conduct and harassment more generally, and contains provisions for how the City disciplines violations of City Codified Orders. Administrative Order 2.49 also prohibits disrespectful conduct and harassment. To a certain extent, the City’s policies on discrimination and harassment overlap.

The City’s policy related to discipline allows, but does not require, progressive discipline. The City uses progressive discipline to handle minor violations. For more serious violations, like a supervisor abusing its supervisory authority, the City would conduct a partial investigation to verify facts before levying any accusations. The City policies provide for discipline “appropriate to the nature of the offense.” If the City cannot prove an allegation sufficiently, it may find a lower level of discipline to be appropriate. The seriousness of the offense is the most important factor to the City in doling out discipline.

To HR Director Harding’s knowledge, Dublin has not investigated a single complaint under the discrimination Administrative Order 2.66. Counsel conceded as much at oral argument. The City did receive complaints of discrimination, however, from at least three sources: Michael Cave, Mr. Ross, and Crew Supervisor Mike Riley.