The Akron Legal News

Dublin's decision not to rehire man after he made racial comments upheld

JESSICA SHAMBAUGH
Special to the Legal News
Published: November 20, 2013

The 10th District Court of Appeals recently upheld the city of Dublin’s decision not to rehire a man based on his racial slurs and budget cuts and rejected his argument that it constituted age discrimination.

On appeal, Drew Tilley argued that the city’s decision to terminate him and its subsequent refusal to hire him constituted age discrimination.

The three-judge appellate panel overruled that argument after finding that the city based its decision on Tilley’s racist comments and budget cuts that forced it to dissolve Tilley’s position.

The facts of the case state that Tilley worked as a sewer and maintenance worker for more than 18 years before he was fired in October 2009.

Prior to his termination, a streets and utilities crew supervisor complained that the city’s maintenance workers were making racially derogatory remarks.

The complaint was filed in 2008 and the city interviewed 24 of its employees to investigate the allegations.

It found that Doug Ballinger, Adam Parker, Skip Moerch, Matt McDade and Randy Otis had used racially offensive language in the workplace or participated in conversations including such language.

The city terminated Ballinger, Moerch, McDade and Otis and suspended Parker for 30 days.

The terminated employees then grieved their terminations as allowed under the collective bargaining agreement and grievances from Ballinger, Moerch, McDade and Otis all proceeded to arbitration.

During arbitration, it came to the city’s attention that Tilley had also used racially offensive words when addressing a former utilities maintenance worker.

The city investigated the allegations against Tilley and after interviewing 15 individuals it determined that Tilley’s use of racial slurs violated part of the collective bargaining agreement and the city’s core values.

It then terminated Tilley’s employment and he filed a grievance but that grievance did not go forward to arbitration.

Meanwhile, McDade and Moerch received final and binding arbitrator’s decisions and the city was ordered to reinstate them with back pay.

Otis received a similar verdict and was also reinstated with back pay.

The city also entered a settlement agreement with Ballinger and reinstated him with back pay.

In January 2010, Tilley wrote a letter to city officials stating that he would like to have his job back. The city thanked Tilley for his interest but informed him that it could not rehire him.

Tilley then filed a complaint against the city and argued that he was 60 years old at the time of his termination, while the other employees were under 50 and the city’s decision not to rehire him was based on his age.

The city filed a motion for summary judgment and claimed that Tilley was unable to establish a prima facie case because it had terminated him based on his use of racial slurs and refused to rehire him because his job no longer existed due to economic conditions.

The Franklin County Court of Common Pleas granted the city’s motion for summary judgment and Tilley appealed to the 10th District.

Upon review, the appellate judges held that to establish a prima facie case, Tilley had to show that he was replaced by someone “substantially younger” and that “a comparable non-protected person was treated better.”

“The (trial) court found that the city had not replaced plaintiff with a substantially younger person, as it had not hired anyone to refill Tilley’s position with the city,” Judge John Connor wrote for the court.

The 10th District judges agreed with that finding after finding that budget cuts had caused the city to abolish Tilley’s former position and it had therefore not hired anyone to replace him.

They also determined that Tilley failed to show that younger, comparable employees were treated better than Tilley.

Tilley argued that the other men who were terminated for racial comments were reinstated and given backpay.

The judges conceded that he was similarly situated in that he was terminated for violating the same code by participating in similar behavior.

However, it found that there were differences between Tilley and the reinstated group.

“After the terminations, the situations of the four other employees took very different courses from Tilley’s situation. The union forwarded the grievances of the other employees to arbitration. The union refused to forward Tilley’s grievance to arbitration,” Judge Connor stated.

The judges stated that the city reinstated the other men based on an arbitrator’s award or the significant risk that it would lose a case at arbitration.

Because Tilley did not take his case to arbitration, the city had no such threat in his case.

Finally, the judges found that Tilley failed to present any reasonable evidence that the city’s refusal to rehire him was based on his age.

“In the final analysis, Tilley failed to establish the fourth element of either prima facie case, as he failed to present evidence indicating that he was replaced by a substantially younger person, that a comparable non-protected employee was treated better, or that other reasonable evidence existed to raise an inference that the city refused to rehire him because of his age,” Judge Connor stated.

Overruling Tilley’s assignments of error, the judge affirmed the lower court’s ruling.

Judge Lisa Sadler and retired Judge John McCormac concurred.

The case is cited Tilley v. Dublin, 2013-Ohio-4930.

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