[Cite as Green v. Ohio Lottery Comm., 2012-Ohio-3647.]




                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us



JEFFREY W. GREEN

       Plaintiff

       v.

OHIO LOTTERY COMMISSION

       Defendant

Case No. 2009-02961

Judge Joseph T. Clark

DECISION

        {¶ 1} Plaintiff brought this action alleging discrimination based upon race.1 The
issues of liability and damages were bifurcated and the case proceeded to trial on the
issue of liability.
        {¶ 2} Plaintiff, an African-American male, began his employment with defendant,
Ohio Lottery Commission (OLC), on May 24, 1993, as a Lottery Sales Representative.
Plaintiff was subsequently promoted to the position of Assistant Regional Sales
Manager in Youngstown, Ohio, where he was responsible for supervising 13 sales
representatives.
        {¶ 3} In 2003, the Office of Inspector General (OIG) received an anonymous
written complaint alleging that plaintiff had inappropriately used his state-issued
telephone.      Following an investigation by both the OIG and OLC, plaintiff made
restitution for telephone expenses that were determined to be “personal business” and
an investigatory report was forwarded to defendant’s Labor Relations Officer to conduct
a pre-disciplinary hearing. (Defendant’s Exhibit C.) As a result of the investigation and
hearing, on June 3, 2004, plaintiff received a letter of “verbal reprimand” from Dan
Metelsky, OLC’s Deputy Director of Sales, wherein plaintiff was advised that the letter
served as “a cautionary warning and any further actions of this nature may lead to more
serious discipline up to and including termination.” (Defendant’s Exhibit D.)
       {¶ 4} On August 25, 2005, OLC received an anonymous letter which contained
allegations that plaintiff was calling a political talk radio show “on a daily basis” during
working hours. (Plaintiff’s Exhibit 3.) On September 6, 2005, plaintiff met with OLC
managers, including Deputy Director Nancy Minco and Assistant Deputy Director
Kenneth Adams.       (Defendant’s Exhibit G.) During the meeting, plaintiff was asked
whether he called radio talk shows during business hours and plaintiff adamantly denied
making such calls; however, approximately ten days later, plaintiff agreed to sign a
statement that he had made one such call. Minco and Personnel Services Manager
Elizabeth Popadiuk met with plaintiff’s supervisor, Regional Manager Laurie Tall and
other OLC staff. Based upon information obtained during the meeting, Thomas Hayes,
OLC’s director, authorized Minco to secure records showing calls made from plaintiff’s
telephone line for the period January 1, 2005 to August 31, 2005. OLC conducted an
investigation and notified plaintiff that a pre-disciplinary meeting would be held on
October 4, 2005, to determine whether discipline should be imposed based upon
plaintiff’s use of the state-issued telephone.
       {¶ 5} The pre-disciplinary notice cited 12 work rules which were applicable to
plaintiff’s telephone usage, including the following: abuse of OLC telephones; failure to
follow polices, procedures, and directives; conducting non-work related business on
OLC time; using OLC property for reasons other than its intended use; misusing an
employee’s position for gain; dishonesty; engaging in prohibited political activity; neglect
of duty; and insubordination. (Plaintiff’s Exhibit 4.) The notice advised plaintiff that he
had the right to present evidence at the meeting and that discipline for violation of the
cited rules included “removal.” As a result of the pre-disciplinary meeting, OLC Labor
Relations Officer Bruce Trakas prepared a report for Director Hayes wherein he stated
that he agreed with the joint recommendation of Minco, Adams, and Popadiuk that

       1
       On May 19, 2011, the court rendered judgment in favor of defendant on plaintiff’s claim of age
plaintiff’s employment with OLC should be terminated for his “lack of veracity” during the
course of the investigation of his use of the OLC telephone system, in addition to
violations of work rules concerning nonfeasance and insubordination.                       (Defendant’s
Exhibit G.) On October 27, 2005, Hayes notified plaintiff that his employment with OLC
was terminated effective October 28, 2005. (Plaintiff’s Exhibit 6.)
        {¶ 6} R.C. 4112.02 provides, in part:              “It shall be an unlawful discriminatory
practice: (A) For any employer, because of the race [or] color * * * of any person, to
discharge without just cause, to refuse to hire, or otherwise to discriminate against that
person with respect to hire, tenure, terms, conditions, or privileges of employment, or
any matter directly or indirectly related to employment.” Case law interpreting Title VII
of the Civil Rights Act of 1964 is also applicable to R.C. Chapter 4112. Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio
St.2d 192, 196.
        {¶ 7} To establish a Title VII employment discrimination claim, a plaintiff is
required to either “present direct evidence of discrimination or introduce circumstantial
evidence that would allow an inference of discriminatory treatment.” Johnson v. Kroger
Co. (C.A.6, 2003), 319 F.3d 858, 864-865.                       If there is no direct evidence of
discrimination, the burden-shifting framework established in McDonnell Douglas Corp.
v. Green (1973), 411 U.S. 792, will apply.                  Under McDonnell Douglas, a plaintiff
establishes a prima facie case of race discrimination by establishing that plaintiff: 1) was
a member of a protected class; 2) suffered an adverse employment action; 3) was
qualified for the position held; and 4) that comparable, nonprotected persons were
treated more favorably. Id. at 802.
        {¶ 8} If plaintiff establishes a prima facie case, the burden of production shifts to
defendant to “articulate some legitimate, nondiscriminatory reason for [its action].” Id. If
defendant succeeds in doing so, then the burden shifts back to plaintiff to demonstrate
that defendant’s proffered reason was not the true reason for the employment decision.
Id. at 804.
        {¶ 9} Although plaintiff has not brought forth direct evidence of racial
discrimination, an inference of discrimination has been shown circumstantially inasmuch


discrimination; plaintiff’s claims based upon violation of public policy were dismissed.
as he was a member of a protected class (African-American), he was discharged, he
was qualified for the position, and he was replaced by a person outside the class.
Defendant contends that the decision by plaintiff’s supervisors to place plaintiff on a
performance improvement plan establishes that he was not qualified for his position.
However, plaintiff’s evaluations show that he met the majority of defendant’s
expectations for his position and the performance improvement plan was instituted to
address deficiencies in his performance. Upon review of the evidence, the court finds
that plaintiff was qualified for the position held. Accordingly, the court must determine
whether OLC presented legitimate, nondiscriminatory reasons for its actions and, if so,
whether plaintiff has shown that the reasons proffered were a mere pretext for race
discrimination.
       {¶ 10} According to Hayes’ letter, the decision to terminate plaintiff was “primarily”
based upon his excessive personal use of the OLC telephone and his actions during the
investigation, both of which “were determined substantially egregious.”             (Plaintiff’s
Exhibit 6.)   Adams testified that plaintiff had been cautioned on “numerous” occasions
by his supervisors about making excessive personal phone calls during working hours
and that he had personally warned plaintiff several times.            According to Adams,
although it was not a part of the investigation that resulted in the termination of plaintiff’s
employment, plaintiff’s excessive use of his personal cell phone also interfered with his
work. Adams testified that, after plaintiff had received his letter of termination, plaintiff
acknowledged that Adams had previously warned him about making personal phone
calls. Adams related that he had no doubt that plaintiff was “less than truthful” during
the investigation in responding to questions about his telephone usage. Adams testified
that there was no mention of plaintiff’s race during the investigation.
       {¶ 11} Popadiuk testified that she interviewed OLC staff in the Youngstown office
who confirmed that plaintiff had received numerous warnings from both his current and
former managers about making personal calls while at work.                Based upon those
interviews, Popadiuk received authorization from Hayes to obtain plaintiff’s telephone
records and she testified that a review of the records revealed that the majority of the
calls were not related to OLC business. Popadiuk testified that plaintiff also reviewed
the telephone records and plaintiff conceded that he had not been honest during the
course of the investigation. Popadiuk stated that plaintiff admitted he made personal
long-distance phone calls and that he called and participated in radio shows during
working    hours.      According    to   Popadiuk,    plaintiff’s   violations   of   OLC’s
telecommunications policy were numerous and egregious. Popadiuk testified that, in
light of plaintiff’s “insubordination” and false statements, termination was an appropriate
discipline under these circumstances. Popadiuk was adamant that plaintiff’s race was
never an issue during either the investigation or the discussions concerning discipline.
       {¶ 12} Based upon the testimony and evidence presented, the court finds that
defendant clearly established a legitimate, nondiscriminatory basis for termination of
plaintiff’s employment. To the extent that plaintiff argues that he should have received a
form of discipline other than termination, the court has previously acknowledged that it
may not substitute its judgment for that of an employer and may not second-guess the
business judgments of employers making personnel decisions. Dodson v. Wright State
Univ. (1997), 91 Ohio Misc.2d 57. The evidence supports OLC’s determination that
plaintiff made an excessive number of private calls and he was warned by his
supervisors that such calls could result in disciplinary action, including discharge.
Indeed, plaintiff acknowledged that he received written notice that further misuse of his
state-issued telephone could result in removal. In short, defendant has met its burden.
       {¶ 13} The court must next determine whether plaintiff demonstrated by a
preponderance of the evidence that the reasons offered by defendant were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, supra, at 804. The
court must find either: “‘(1) that the proffered reason had no basis in fact, (2) that the
proffered reason did not actually motivate the discharge, or (3) that the proffered reason
was insufficient to motivate the discharge.’” Owens v. Boulevard Motel Corp. (Nov. 5,
1998), Franklin App. No. 97APE12-1728, quoting Frantz v. Beechmont Pet Hosp.
(1996), 117 Ohio App.3d 351, 359.
       {¶ 14} Upon review, the court finds that the totality of the evidence demonstrates
that defendant’s proffered reasons were based in fact, that they were not a pretext, and
that   they were clearly sufficient to justify plaintiff’s discharge.    Both Adams and
Popadiuk testified credibly that they carefully reviewed the evidence gathered during the
investigation and that plaintiff’s race was not an issue in either the investigation or the
decision to discharge him.     Simply stated, plaintiff did not present any convincing
evidence that OLC’s decision was based upon plaintiff’s race. Thus, plaintiff has failed
to persuade the court that defendant’s motive for terminating his employment was
based upon his race.
      {¶ 15} For the foregoing reasons, the court finds that plaintiff has failed to prove
his claim of discrimination by a preponderance of the evidence. Accordingly, judgment
shall be rendered in favor of defendant.
                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us



JEFFREY W. GREEN

      Plaintiff

      v.

OHIO LOTTERY COMMISSION

      Defendant

Case No. 2009-02961

Judge Joseph T. Clark

JUDGMENT ENTRY


      {¶ 16} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Elizabeth H. Farbman                Velda K. Hofacker
James E. Roberts                    Assistant Attorney General
John A. McNally IV.                 150 East Gay Street, 18th Floor
100 Federal Plaza East, Suite 600   Columbus, Ohio 43215-3130
Youngstown, Ohio 44503-1893

004

Filed February 27, 2012
To S.C. Reporter August 13, 2012
