In October 2011, James Hoover, assistant superintendent in charge of operations at the City of Elyria’s water pumping plant, made several racially discriminatory comments toward Lamont Jackson, an African-American, part-time employee; calling him “Black Buck,” “Big Black Buck,” and “BBB” throughout the work day. These comments were made in front of several other employees, including Sam Jacobs, Jr., who admonished Mr. Hoover for making the comments and reported him to the plant superintendent.

At a subsequent pre-termination hearing, Mr. Hoover admitted to calling Mr. Jackson “Black Buck” because he was wearing another employee’s coveralls with the name “Buck” on them.  However, Mr. Hoover denied intending this comment as anything other than a “bad joke.” Mr. Hoover was immediately terminated for making racial comments in violation of Elyria Codified Ordinance 165.29, the City’s anti-discrimination policy. Elyria Codified Ordinance 165(a)(1) states that:

The City is an Equal Opportunity Employer and is committed to a consistent effort in maintaining a work environment free of discrimination, and to prohibit harassment of any kind, of and by its employees and applicants, due to race, color, religion, sex, including sexual harassment, national origin, disability, age (40 years or older) or veteran  status. In furtherance of the City’s goal to create an environment for all City employees and visitors, which is fair and free from discrimination and harassment and of sexual coercion, the City hereby adopts a discrimination, harassment and sexual harassment policy and procedures as the basis for employee education and complaint resolution. Such policy shall fully comply with applicable Federal and State laws, rules, regulations and guidelines in the area of non-discrimination and harassment in employment. Discrimination, harassment and sexual harassment shall not be tolerated and are prohibited.

Mr. Hoover appealed the City’s decision to the Elyria Civil Service Commission (“the Commission”). At the hearing before the Commission, Mr. Hoover again admitted to calling Mr. Jackson “Black Buck” because “unlike the other two Bucks, this Buck actually works.” After conducting a full hearing on the matter, the Commission vacated Mr. Hoover’s termination and instead suspended him for forty-five days without pay for violating the City’s anti-discrimination policy.

Mr. Hoover appealed the Commission’s decision to the Lorain County Court of Common Pleas. The trial court vacated Mr. Hoover’s forty-five day suspension for violating the anti-discrimination policy. In reaching its conclusion, the trial court cited Elyria Codified Ordinance 165.29(a)(1), but only analyzed a portion of the ordinance regarding harassment. In focusing on “harassment,” the trial court relied upon several Federal and Ohio cases involving Title VII actions. Based upon its analysis of Title VII cases, the trial court reasoned that “the term, harassment, regardless of motive, requires repeated behavior, or at least more than two instances of conduct that occur on the same day”; and that “although [Mr. Hoover’s] remarks to his subordinate could be viewed as racially charged, and, if repeated, could certainly give rise to a claim of harassment, [Mr. Hoover’s] conduct on October 5, 2011, was extinguished the same day, and did not constitute harassment, as the term is used in [Elyria Codified Ordinance] 165.29.” Therefore, the trial court concluded that Mr. Hoover neither engaged in the harassment of an employee by reason of his race, nor violated Elyria Codified Ordinance 165.29.

On appeal from the trail court’s decision, the City argued that the trial court erred by relying on Title VII case law, i.e., harassment case law, to determine whether Mr. Hoover’s comments to Mr. Jackson violated Elyria Codified Ordinance 165.29. (See Hoover v. City of Elyria, 2014-Ohio-1783 (Ninth Dist. April 28, 2014)). The appellate court agreed. The appellate court noted that the City never argued that Mr. Hoover should be disciplined solely because his comments created a hostile work environment, or Title VII violation; nevertheless, the trial court applied Federal Title VII law to overturn the Commission’s decision. The appellate court held that the trial court should have considered the entirety of Elyria’s anti-discrimination code and determined whether there existed a preponderance of substantial, reliable, and probative evidence in the record before it to support the Commission’s decision that Mr. Hoover should be disciplined for his discriminatory conduct.

The case will now be sent back to the trial court for adjudication consistent with the appellate court’s opinion. This is an interesting case for employers to take note of as it provides a good example of an employer’s anti-discrimination policy working in its favor to discipline a problem employee. This case is also noteworthy because although most cities and counties have similar anti-discrimination and harassment ordinances, such ordinances do not typically form the basis for employee disciplinary proceedings.

By: Alex Kipp