Kunkle’s lawsuit claims Gentile threatened employees with termination last year if President Obama was re-elected and that Obama supporters would be the first to be terminated if he were re-elected. Kunkle’s suit said her voting preferences came up in conversation the day after the election and that she was fired Nov. 9 for what the suit claims Gentile said was in the “best interest of the company.”
“Whether you’re a Democrat or a Republican, taking it to the extreme of impairing somebody’s career because they disagree with your political choices is just wrong,” said Kunkle’s attorney, Karen Dunlevey. “We’re hoping that the court will recognize that and adopt a public policy exception for her.”
Gentile’s attorney, Brian Wildermuth, disputed the lawsuit’s premise.
“Ms. Kunkle was laid off for economic reasons – nothing more,” Wildermuth wrote as part of a prepared response to the Dayton Daily News. ” I am sure you and your readers are familiar with the ongoing uncertainties regarding defense spending, and thus the economic environment confronting defense contractors. The allegation that Q-Mark discharged Ms. Kunkle because of her vote is simply false.”
Wildermuth said Kunkle’s position was not filled.
The suit claims Kunkle started as a temporary worker with the small company in April 2012 and became full-time in May 2012. It also says she performed her duties “efficiently and effectively,” never received any disciplinary action or negative performance evaluations. The suit also said Kunkle was paid $12 per hour, was not paid overtime for hours she worked in excess of 40 hours and is not exempt from OT pay requirements under the Fair Labor Standards Act.
The suit also said Gentile engaged Q-Mark employees in conversations aimed at discovering employees’ political affiliations and repeatedly disparaged Obama supporters.
Dunlevey said she typically represents employers in employment litigation but made an exception for this case, which pits at-will employment against Ohio Revised Code 3599, which guards against employers’ intimidation, coercion and retaliation involving elections.
“This case, if they find in our favor, will be making new law,” Dunlevey said. “But there is what’s called wrongful termination/violation of public policy in employment law cases.”
University of Dayton School of Law professor Richard Saphire said that if the plaintiff can successfully argue that she wasn’t fired due to economic reasons that there is a question involving Ohio limiting the scope of the at-will employment doctrine.
“It’s just a question of if you have a statute that affects, or to some extent, modifies, an employment relationship and what does the statute say and does the statute apply in this situation and can she claim the protection of the statute,” Saphire said. “She either can or she can’t. The court’s going to interpret the statute in light of what it sees as the relevant facts in this case and decide one way or the other.”
Defense attorneys have until mid-March to respond to the case that was randomly assigned to Judge Dennis Langer.
About the Author