Even terminations over “genitalia sandwiches” can generate lawsuits

The court properly granted summary judgment because reasonable minds could only conclude that appellant's actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.

I can promise you read that sentence correctly. It is the Ohio Supreme Court's digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.

The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell's employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners' subsequent civil rights lawsuits.

What could Cantwell possibly argue?

It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his "joke" to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.

The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court's dismissal of Cantwell's claim.

From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every "i" is dotted and every "t" is crossed (with the help of counsel, if needed), and let the chips fall where they may.

Lexis.com subscribers can access the Lexis enhanced version of the Cantwell v. Franklin County Bd. of Comm'rs, 2012 Ohio 2273 (Ohio Ct. App., Franklin County May 22, 2012) decision with summary, headnotes, and Shepard's.

Visit the Ohio Employer's Law Blog for more practical employment law information.


 

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