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Ohio: Firing Might Have Been Discriminatory Where Co-worker Was Not Disciplined
 

By Susan R. Heylman  7/29/2014
 

The firing of a hospital nurse who touched a coworker’s breast may have been discriminatory where the coworker—who had asked him to touch her breast in exchange for a narcotic—was not disciplined, an Ohio court ruled.

Background

The nurse would frequently take smoking breaks with a worker from the hospital’s food services department. The coworker reported that during one of the smoking breaks, the nurse had inappropriately touched her breast outside of her clothing. The police were called.

During the investigation, the nurse explained that the coworker offered him the opportunity to touch her breast in exchange for Vicodin, a narcotic pain reliever. He told her that he could not give her any Vicodin, but she invited him to touch her anyway, and he did so.

The nurse resigned his position at the request of the hospital’s HR director. He was charged with gross sexual imposition and pled no contest to a reduced charge of disorderly conduct. He subsequently sued the hospital, the coworker, and several hospital supervisors for breach of duty, sexual harassment, and aiding and abetting discrimination.

The trial court granted summary judgment for all the defendants, but the appeals court reversed the judgment in part, reinstating some of the claims.

Breach of Duty Claim

The nurse alleged that the hospital had breached its Employee Handbook and Code of Conduct and Ethical Behavior in that it did not fully comply with subpoenas related to his criminal case and failed to fully investigate his allegations against the coworker. The appeals court ruled that, even if the claims of an inadequate investigation and bias were accepted as true, the handbook and code of conduct did not modify the nurse’s at-will employment agreement and guarantee him continued employment. Nor was the nurse’s claim of a duty to respond to subpoenas supported by any legal extension of Ohio’s employment at-will doctrine. 

Aiding and Abetting Discrimination Claim

The nurse alleged that the defendants violated Ohio Rev. Code § 4112.02 in aiding and abetting discriminatory practices because he was constructively discharged while the coworker was not issued even a notice that she had violated any policy. The court noted that, under Ohio law, a supervisor or manager may be held jointly and/or severally liable with the employer for discriminatory conduct of the supervisor/manager. Consequently, it ruled that the trial court erred in dismissing this claim against the HR director and the hospital. 

Sexual Harassment and Discrimination Claims

The nurse argued that he had proved sexual harassment and disparate treatment of a similarly situated employee. The sexual harassment claim clearly failed, as the nurse admitted to freely touching the coworker’s breast and the coworker acknowledged that the sexual contact was consensual.

But with the sexual discrimination claim, there was a genuine issue of material fact and a clear disparity of treatment between the nurse and the coworker, the court said. It reinstated the discrimination claims only against the hospital and the HR director, however, because it found that the HR director was the only employee who made the decision to terminate.

Caiazza v. Mercy Medical Center, Ohio Ct. App., No. 2013CA00181 (May 27, 2014).

Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.

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