Serving “Genital-Tainted Sandwich” Was Within Scope of Employment, Argues Employee

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Let us apply the "IRAC" approach to this conundrum reported recently by the Ohio Employer's Law Blog:

Issue: Does a county have a duty to provide a legal defense for a guard who has been sued for asking an inmate to place his penis on a sandwich and then feeding said sandwich to another inmate?

Rule: Under Ohio law, a political subdivision has a duty to defend an employee if the alleged act occurred while the employee was acting both in good faith and not manifestly outside the scope of employment. Ohio R.C. 2744.07. The latter determination turns on whether the employee acted or believed himself to have acted in his employer's interests.


[A]ppellant's main contention on appeal is that … it was commonplace for jokes and pranks to take place at the Franklin County jail … and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his "joke" to give [the inmate] a genital-tainted sandwich was not manifestly outside the scope of his employment….

Appellant's act of taking a photograph of an inmate's penis on a sandwich and then serving the sandwich to another inmate [and then showing said photograph to said inmate] did not further appellee's business in any manner and was plainly not in appellee's best interest. Also, although serving food to inmates is part of appellant's job duties, the acts in question did not occur during his actual serving of a meal. Instead, appellant engaged in activities that did not involve his duty to serve meals, i.e., the asking of an inmate to place his penis on a sandwich and the taking of a photograph of the inmate's genitals. Although appellant did eventually serve the sandwich to Copeland, the meal served was one plainly unauthorized by appellee and obviously outside of appellant's authorized duties.


Because reasonable minds could only conclude that appellant's actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment, appellee was entitled to judgment as a matter of law.

The sheer bravery of this argument I think will land this decision a spot in the Case Law Hall of Fame.

(Via Overlawyered)