David A. Bentkowski v. Ohio Lottery Commission, Case No. 2014-00651

The Ohio Lottery Commission legally terminated the former mayor of Seven Hills who claimed his dismissal from the state agency was the result of retaliation by his boss, the Ohio Court of Claims recently ruled.

The Court of Claims concluded David A. Bentkowski failed to prove a connection between his alleged warnings to his supervisor that she made discriminatory comments about lottery commission employees and her decision to end his job as a labor relations officer. The court found the seven-month gap between the conversations regarding discrimination and the actual firing means it was unlikely the termination was retaliatory.

Mayor Resigns to Join Commission
Bentkowski was elected mayor of Seven Hills near Cleveland in 2003 and served until his resignation in October 2011 when he took the position with the lottery. Bentkowski served as the agency’s liaison between management and the lottery’s employee labor union, and was responsible for facilitating labor relations, holding disciplinary hearings, and representing management in labor matters.

He was terminated in November 2012. He then filed a lawsuit in the Court of Claims alleging Elizabeth Popadiuk, his supervisor and the lottery’s director of human resources, engaged in discriminatory practices. Bentkowski suggested Popadiuk made racist comments about some lottery employees she wanted to fire and was “irritated” about having to make reasonable accommodations for an employee with diabetes. Popadiuk testified that she did not make any racist comments, and Bentkowski never conveyed to her that he thought her remarks were racist.

Popadiuk also noted that it was a natural part of the human resources disciplinary process to discuss race, but not for the purpose of taking discriminatory actions. She told the court that dealing with Bentkowski was difficult and exhausting, and he would state that because he was a lawyer she should listen.

The court noted that Bentkowski in his complaint also stated the reason for his firing was the negative publicity he received from Cleveland news media, particularly the Plain Dealer newspaper, regarding his reporting of crimes against him. Plain Dealer opinion columns criticized Bentkowski especially for his role in initiating a police investigation in 2009 to find the individuals who made negative comments about him in the comment sections of cleveland.com articles.

Bentkowski and Seven Hills officials have been involved in years of litigation surrounding the matter and he told the lottery leadership he would be the subject of more negative coverage about his reporting the actions of Seven Hills officials to the FBI.

Retaliation Claim Required Opposing Employer’s Discriminatory Behavior
Court of Claims Judge Patrick McGrath explained Ohio law protects an employee from retaliation if the employee can prove the firing was payback for claiming the employer was engaged in discriminating practices. In Bentkowski’s case, he had to show he informed his supervisor that he believed she was discriminating and that he opposed it, and that Popadiuk knew of his opposition. He would also have to prove how his concerns about her behavior led to his termination.

Judge McGrath found that Bentkowski may have expressed concerns or frustration over some of his employer’s comments, but he didn’t take enough action to demonstrate his opposition to Popadiuk’s alleged behavior such as filing a complaint against her at the time of the incidents.

Judge McGrath wrote that the last discriminatory comment he discussed with Popadiuk happened seven months before he was fired. Such time lapse between an employer’s questionable behavior and termination, the employee must “produce other evidence of retaliatory conduct,” Judge McGrath explained. Bentkowski didn’t allege any other retaliation other than his firing.

Judge McGrath concluded Bentkowski did not prove his opposition to Popadiuk’s alleged discrimination was the cause of his release.

Bentkowski had sought $1 million in damages from the lottery and reinstatement to his position.

Court of Claims Jurisdiction
The Court of Claims has exclusive jurisdiction over claims against the state. To access information on other cases visit the Court of Claims website.

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