Continued Acts Of Misconduct Make Employee No Longer ‘Similarly Situated’

When Clark County, Ohio terminated the probationary period of corrections officer Jocelyn Smith, she filed a lawsuit claiming that she was the victim of race discrimination. Smith, who is African-American, argued that she was treated differently than a similarly situated, white male probationary employee, Deputy Bryan Beller, who was caught downloading and viewing pornography on a computer at the Sheriff’s office. Deputy Beller’s employment was not terminated for this conduct, but he was suspended for five days. Smith contended that the different treatment of Beller raised an inference that her termination was racially motivated.

The Ohio Court of Appeals rejected Smith’s argument that Beller was similarly situated. As the Court saw it, “Sheriff Kelly testified that Deputy Beller admitted that he viewed pornography on a computer at the Clark County Jail during his probationary period. For his inappropriate conduct, Deputy Beller was given a five-day suspension. Sheriff Kelly testified that Smith was initially disciplined for showing a topless picture of herself to three co-workers while at work. For her inappropriate conduct, Smith was ultimately given a ten-day suspension, and her probationary period was extended. Smith admitted during her deposition that she was not suing over the ten-day suspension or the extension of her probationary period.

“Unlike Smith, however, Deputy Beller did not engage in any further inappropriate conduct during his probationary period. In addition to sending a topless picture of herself to co-workers, further instances of Smith’s inappropriate conduct include: (1) Unprofessional confrontations with Springfield Police clerk, Robin Carter; (2) unprofessional conversations with inmates regarding co-workers; (3) citizen complaints regarding Smith’s lack of professionalism; (4) pointing pepper spray at an inmate’s face while she was “playing around;” (5) inappropriate conduct with inmates and former inmates; (6) deficiencies noted in a performance evaluation conducted on September 24, 2008; (7) memorandum drafted by Deputy A. Trego on September 24, 2008 containing a negative assessment of Smith; (8) suspicion that Smith faked being sick in order to avoid temporary transfer to third shift; and (9) requesting sick leave and/or a light-duty assignment in order to obtain elective plastic surgery.

“As a result of the extensive pattern of inappropriate conduct engaged in by Smith, she was ultimately terminated from her position as a Clark County Deputy. More importantly, when compared with Smith’s numerous instances of bad conduct, Deputy Beller’s single instance of punishable behavior is clearly distinguishable such that Smith is not similarly situated to him. Accordingly, Smith is unable to establish a prima facie case for race or gender discrimination.”

Smith v. Kelly, 2012 WL 2061947 (Ohio App. 2012).