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WARREN -- A former employee of the Trumbull County Engineer's Office will be able to sue his boss personally, alleging sexual harassment and other sexual innuendo made in the workplace.
Three judges of the 11th District Court of Appeals have ruled that Ken Kubala has grounds to sue his old boss, Engineer Randy Smith, as an individual -- not in his official capacity, upholding an earlier common pleas court ruling.
In a filing dated March 27, Judge Eugene Lucci ruled on the appeal of Smith, who objected to a common pleas judge's denying dismissal of Kubala's case, citing that Smith didn't have immunity in his individual capacity.
From October 2011 until May 2018, Kubala worked as a safety manager for the engineer's office. He resigned May 11, 2018.
In 2021, Kubala filed a complaint against Trumbull County and Smith as engineer, alleging Smith created a sexually hostile work environment. When the defendants moved for judgment, the judge ruled the county and Smith could be immune from litigation in their official capacity, but there was no immunity for Smith as an individual.
Smith appealed, citing court errors, saying the court ruled wrongly by ruling whether the engineer was acting in a malicious and reckless manner. The appeals judges, however, disagreed.
Kubala's attorney, David Engler, said the decision now sets the stage for a civil jury trial before Judge Andrew D. Logan in common pleas court.
"We look forward to having Randy Smith in front of a jury answering for what we believe was creating a sexually hostile work environment," Engler said. "However, we still remain hopeful the matter can be resolved before trial."
Smith's attorney, Jeffrey Stankunas, statement in an email:
"The decision reflects the court of appeals' opinion of the law as applied to Mr. Kubala's allegations, and the decision appropriately assumed that Mr. Kubala's allegations are true. From the very beginning, Engineer Smith has consistently disputed these allegations. We remain confident that a jury would ultimately rule in favor of Engineer Smith," Stankunas stated.
The appeal had canceled an Oct. 17, 2022, jury trial set in Logan's courtroom. No new trial date has been set.
THE COMPLAINT
In the complaint, Kubala detailed sexually hostile acts allegedly made by Smith "continuously from on or about 2015 through May 11, 2018," including other allegations such as:
• Smith asking Kubala whether he is a homosexual;
• On multiple occasions, Smith asked Kubala to remove his shirt in his office, in the presence of other workers.
• Smith encouraged Kubala to come and visit Smith's renter named Richard, whom Smith said "was waiting for Kubala while lying on a bear skin rug;"
• Smith asked if Kubala had ever seen a male elected county official nude;
• During a meeting, Smith encouraged Kubala to place his private part in the ear of another high-ranking employee who appeared to be sleeping;
• On hundreds of occasions, Smith was accused of licking the top of his can of pop in a sexually suggestive way while looking at Kubala;
• On numerous occasions, Smith made comments about Kubala's hands with a distinct sexual connotation;
• During visits to restaurants, Smith would make gratuitious comments to wait staff about Kubala's sexual preference and / or orientation.
THE APPEAL
In his appeal, Smith contended Kubala had no evidence that Smith's conduct and comments were made maliciously or in a reckless manner.
Smith used Kubala's deposition testimony in the case, wherein the former employee admitted he never complained about Smith's alleged actions or requested Smith to stop.
The appellate judges, however, said evidence exists that Smith acted maliciously, in bad faith or in a wanton or reckless manner.
Also the judges ruled "the record is not devoid of evidence, when viewed in the light most favorable to Kubala, that Smith's conduct and comments were made to intentionally cause harm or at least with a conscious disregard of, or indifference to, a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct," Lucci wrote.
Lucci was joined in his opinion by 11th District Judges John J. Eklund and Matt Lynch.