Former Village of Chauncey Major, Ginger Mender, was voter-elected in 2008. That was the beginning of the end, according to Mender’s claim in Mender v. Village of Chauncey, 2015-Ohio-4105, decided September 25, 2015. In a complaint reminiscent of the 17th century witch trials, Mender alleged that there had been a Village conspiracy to run her out of office. She alleges conduct ranging from seemingly petty jibs (laughing at her at council meetings, withholding basic office equipment, and withholding keys to buildings) to serious (defamation including filing petitions for her removal based on allegedly false claims that she had tried to dissolve the Village, prevented compliance with federal agencies, texted excessively on the Village cell phone, and secured unapproved water adjustments). She alleged that Village councilmembers intentionally caused her emotional distress by ridiculing her, including questioning her about her husband’s drinking habits at council meetings and playing pranks on her by moving all of her office furniture to a back room.
Mender claimed that the Village officials’ and employees’ acts were so severe that they constituted defamation and gender discrimination, and intentionally inflicted emotional distress upon her (and, by extension, her two daughters and husband, who brought loss of consortium claims). She resigned in 2009.
The case proceeded to a jury trial. At the end of Mender’s case-in-chief, the Village moved for a directed verdict. As to gender discrimination, the Village argued that Mender failed to present sufficient evidence of gender discrimination. First, the Village argued, Mender was not an “employee” of the Village. Second, she presented no evidence that her hiring or conditions of employment discriminated against Mender on the basis of gender. As to her defamation claim, the Village asserted that, as a public official, she was required to prove actual malice and failed to do so. As to her intentional infliction of emotional distress claim, the Village argued that Mender presented no evidence to the jury that the Village’s conduct was so extreme and outrageous that it went all possible bounds of decency.
The trial court granted the directed verdict, and Mender appealed to the Ohio Supreme Court.
On appeal, Mender alleged that the trial court erred by granting a motion against the manifest weight of the evidence, which she claims presented an issue of material fact for the jury. The Supreme Court upheld the trial court’s verdict on all counts.
To establish a prima facie case of gender discrimination, Mender must have shown that she is a member of a protected class, that she was subject to an adverse employment action, that she is qualified for the position, and that she was replaced by a person of comparable qualifications outside the protected class (in this case, a man).
The question of whether Mender, as an elected public official, was an “employee,” is an unsettled area of law in Ohio, with public officials sometimes being considered employees and other times treated as non-employees in Ohio cases. And, unlike Title VII, which specifically excludes elected public officials from the definition of “employee,” (40 USCS 2000e, subd. (f)), the Ohio anti-discrimination statute is not clear.
Previously, in 2010, the Village had earlier brought a motion to dismiss the gender discrimination claim on the ground that elected officials such as mayors were not “employees.” At that early state, the trial court had found that while some Ohio laws specifically exclude elected officials such as mayors from the ranks of employees for some purposes, state law does treat elected officials as employees. The trial judge (Goldsberry, J.) had also noted that he had found no Ohio case law addressing whether an elected official can pursue a gender discrimination case against a political subdivision or its officials.
When the Village renewed the argument at the directed verdict stage, the trial court had again noted that the issue was unsettled, but found alternate grounds to grant the Village’s directed verdict (that Mender had failed to present sufficient evidence of the fourth element of her claim). Disappointingly, the Ohio Supreme Court did not take what seemed like a ripe opportunity to clarify this unsettled issue. Instead, after a scant paragraph acknowledging the trial court’s comments regarding the apparent lack of clarity in the law, the Supreme Court decision picked the low-hanging fruit, affirming the trial court’s gender discrimination findings on the fourth element of her gender discrimination claim.
The trial court had found that, even assuming a Mayor is an “employee,” she presented no evidence that she was replaced by, or her discharge permitted the retention of, a person of comparable qualifications outside the protected class,” e.g., a male. The Supreme Court affirmed, holding that even if Mender had testified that her successor was a male, the Court reasoned, if a male was voted into office by the voters, this would have been the act of the voters, not an affirmative act by the Village to replace her with a male.
The balance of the Court’s opinion reaffirmed that, while the “rough edges” of society and, apparently, the Village, are “still in need of a good deal of filing down,” none of the conduct was sufficiently outrageous and the Mayor simply needed to toughen up.
It appears the Ohio Supreme Court did not find the Mender case a suitable opportunity to clarify whether public officials can pursue employment discrimination claims, but perhaps the Ohio legislature will take the opportunity next term to bring the Ohio anti-discrimination statute in line with Title VII.