FHKA attorneys Marc Fishel and Michelle Lanham successfully represented the Fairfield County Sheriff’s Office in an April 2016 employment arbitration. The Grievant, a veteran Deputy Sheriff, appealed his termination for committing illegal theft and multiple violations of the Sheriff’s Rules of Conduct while the Grievant was working special duty at a retail establishment.
The Grievant alleged he was wrongfully terminated because he was not convicted of theft and did not demonstrate the requisite intent to commit the criminal offense, and thus the Sheriff’s Office did not have just cause to terminate him. The Grievant also argued he experienced disparate treatment, identifying other employees whom he believed were punished less harshly for equally or more serious offenses. The Employer contended Grievant was not similarly-situated to those individuals because the Grievant’s charged offense was characterized by dishonesty, and his prior disciplinary record included another dishonest offense. He was further distinguished from his colleagues with regard to his conduct during and following the disciplinary proceedings, years of service, and job responsibilities.
Lastly, the Grievant alleged the Employer failed to conduct a proper investigation as well as apply progressive discipline. In response, the Employer responded that, on the basis of his prior suspension, progressive discipline was followed. In the alternative, Grievant’s offense was egregious enough in and of itself to justify immediate termination.
In a June 2016 decision for the Employer, the Arbitrator held the Grievant was terminated for just cause. The evidentiary record—including video footage, financial transactions, and eyewitness accounts—showed no indication that the Grievant paid or attempted to pay for the merchandise he took from the store. There was nothing unfair or discriminatory about the investigations.
Finally, the Arbitrator agreed with the Employer there was no disparate treatment because there was no “substantial symmetry” or “equivalency” between the Grievant and his colleagues. The identified individuals had materially different circumstances which justified the differential disciplinary action. The Arbitrator opined:
The issue of honesty, the fact that the alleged misconduct occurred while in uniform and on duty, albeit special duty, and the irony and hypocrisy of taking merchandise from a store without paying for it while employed to protect the store, known to the FCSO and the public this Office serves, are factors unique to the grievant in this case.
Ohio law is well-settled that police officers are public servants and held to a higher standard of conduct than the general public. In many instances, dishonesty by a law enforcement officer constitutes a serious and terminable offense.
If you have any questions regarding this matter, feel free to contact Marc Fishel at mfishel@fishelhass.com or (614) 221-1216.