News
Franklin County Court of Appeals fails to address role alcohol played in plaintiff’s “consent”
Browning v. Ohio State Highway Patrol, 151 Ohio App.3d 798 (2003).
Dena Browning entered the Highway Patrol Academy in October 1997. She graduated from the Academy on May 8, 1998 and became a probationary trooper. After working in the field for several weeks, she returned to the Academy for postgraduate training for five days. During this time, the instructors informed Browning and other probationary troopers of a ritual in which the instructors and the troopers would go out for drinks at Columbus area bars. Browning attended the ritual along with other troopers and instructors including Trooper Edward Meija. After having a few drinks, Browning sat with Meija who bought her more drinks. Meija ended up giving Browning a ride back to the Academy afterwards. Meija and Browning later had sexual intercourse at the Academy that evening although Browning was unable to remember doing so. The Highway Patrol terminated Browning for conduct unbecoming an officer. Browning brought suit alleging sexual harassment.
As part of a sexual harassment claim, a plaintiff must establish that the harassment was unwelcome. The correct inquiry is whether by her conduct, Browning indicated that the sexual advances were unwelcome and not whether her actual participation in sexual intercourse was voluntary. The appeals court reviewed the record and determined that Browning had presented insufficient evidence to prove the sexual advances were unwelcome. The appeals court, however, failed to mention what consideration it gave to Browning’s state of inebriation and whether she was unable to indicate that the sexual advances were unwelcome as a result.
Attorney’s contact with employees of defendant did not warrant disqualification
In Smith v. Cleveland Clinic Foundation, 151 Ohio App.3d 373 (2003), the Eighth District Court of Appeals reversed the trial court’s decision disqualifying attorney, Ellen E. Simon, for violation DR 7-104(A)(1) which states: “When litigation is contemplated or after a lawsuit is filed a lawyer representing an interest adverse to a corporation must notify opposing counsel when seeking to interview management employees who can speak for the corporation and employees whose opinions form the basis of management decisions.”
Simon was representing Tamara Smith on a wrongful discharge claim against the Cleveland Clinic. Before filing suit on Smith’s behalf, Simon contacted and interviewed several clinic employees. The appeals court recognized the trial court’s broad power to supervise members of the bar practicing before it, however, the appeals court noted that a violation of a professional ethics rule does not automatically necessitate disqualification. Correlative prejudice must be demonstrated to justify disqualification. In this case the Clinic failed to show any prejudice resulting from the interviews.
Employee fails to establish that employee handbook created an employment contract
In the case of Rigby v. Fallsway Equipment Co., Inc., 150 Ohio App.3d 169 (Ohio App. 8 2003), Stewart Rigby brought suit against Fallsway Equipment Company, Inc., alleging that Fallsway was in breach of contract when it terminated his employment with the company. While working for Fallsway, Rigby was injured when a dock leveler collapsed and caused severe injuries to his head. Rigby was forced to take leave from work, and Fallsway continued to pay him according to their wage continuation policy. Under that policy, they would pay him his wages in lieu of workers’ compensation benefits for a period of six months. Three doctors authorized his return to work in August 1998. Rigby did not return to work. After receiving correspondence from Rigby’s attorney, Fallsway placed Rigby on medical leave for an additional 12 weeks. At the end of the 12 weeks, Rigby did not return to work. Fallsway subsequently terminated his employment.
Rigby brought suit against Fallsway alleging that it was in breach of contract when it terminated his employment. Rigby argued that Fallsway’s employee handbook altered the employment at will status of employees who were injured on the job: “Employees who sustain work-related injuries are eligible for a medical leave of absence for the period of the disability in accordance with all applicable laws covering occupational injuries.”
To counter, Fallsway provided excerpts from the employee handbook indicating that employment was at will and an employee acknowledgement form indicating Rigby’s acknowledgement that the handbook did not create an employment contract. The appeals court found that the employee handbook did not create an implied or express contract that altered the at will contract. The disclaimer language in the handbook and the signed acknowledgement form precluded an employment contract between the parties.