Be careful what you say: Employee’s name-calling lands him in hot water

by Franck G. Wobst

An Ohio Court of Appeals recently ruled that a city’s civil service commission acted within its rights when it suspended a city employee for 45 days for jokingly calling an African-American coworker “Black Buck” and “Big Black Buck.” Shhh!

Facts

James Hoover worked at the city of Elyria’s water pumping plant as an assistant superintendent. On October 5, 2011, he noticed that one of the part-time employees, who is African-American, was wearing coveralls with the name “Buck” on them. Attempting to make a joke, Hoover told others in the room that in addition to two other employees named “Buck” at the plant, there was now “Black Buck.” Later that day, he referred to the part-time employee as “Big Black Buck.”

The employee Hoover was referring to didn’t complain about his comments, but a coworker did complain to the city’s service director. The service director determined that Hoover’s statements violated the city’s antidiscrimination policy and terminated his employment.

Lengthy legal proceedings ensued. First, Hoover appealed his termination to the Elyria Civil Service Commission. The commission found that he had breached the city’s antidiscrimination policy but reduced his termination to a 45-day unpaid suspension. Hoover then appealed the commission’s decision to the Lorain County Court of Common Pleas. The trial court determined that his statements were insufficient to constitute harassment, so it set aside the 45-day suspension.

Next, the city appealed the trial court’s decision to Ohio’s 9th District Court of Appeals. The court of appeals determined that the trial court failed to consider “the entirety of [the city's] anti-discrimination code and [determine] whether there existed a preponderance of substantial, reliable, and probative evidence in the record before it to support the Commission’s decision.” The court of appeals sent the matter back to the trial court for further consideration.

The trial court requested additional briefing and held a hearing at which it examined the city’s antidiscrimination policy. The trial court ultimately concluded that based on “the entirety” of the city’s antidiscrimination policy, there was sufficient evidence to support the commission’s decision that a 45-day suspension was warranted. Hoover again appealed the trial court’s decision to the court of appeals.

Court of appeals’ decision

Hoover raised several arguments on appeal, all of which were rejected by the court of appeals. He argued that calling someone “Black Buck” and “Big Black Buck” didn’t rise to the level of racial harassment under state or federal law. The court of appeals rejected that argument, stating the issue was whether the name-calling violated the applicable provision in the city’s antidiscrimination policy, not whether it was racial harassment.

Hoover also argued that his remarks didn’t offend the person they were directed at, they were meant as a joke, and they were uttered by one coworker to another rather than by a supervisor to a subordinate. The court of appeals rejected each of those arguments. The court noted that there was evidence in the record that at least some of Hoover’s coworkers took offense at his comments, and they testified that they understood the term “Black Buck” to be a racial slur used against African-American men following the end of slavery.

The court of appeals affirmed the trial court’s decision, and the 45-day suspension issued by the civil service commission was upheld. Hoover v. Elyria, 2016-Ohio-8092.

Takeaways

This case involves an Ohio city’s antidiscrimination ordinance rather than the state or federal antidiscrimination laws applicable to private-sector employers. Nevertheless, there are several takeaways that apply to all employers and employees.

First, it’s never a good idea to make jokes that refer to the color of a person’s skin. Second, even if the person about whom the joke was made isn’t bothered by it or even thinks it’s funny, others may not, and they also have the right to complain.

Wobst OHELLFinally, litigation can be a lengthy and costly process. Hoover made the offensive statements on October 5, 2011. The court of appeals issued the second of its two decisions regarding his suspension on December 12, 2016. Avoid litigation if you can.

Franck G. Wobst is an attorney with Porter Wright Morris & Arthur LLP, practicing in the firm’s Columbus, Ohio, office. He may be contacted at fwobst@porterwright.com.

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