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Engineer to be personally liable in lawsuit

WARREN — A visiting judge ruled that Trumbull County Engineer Randy Smith is personally not immune from liability in a sexual harassment lawsuit filed by Smith’s former safety compliance officer, Ken Kubala.

Retired Ashtabula County Judge Gary L. Yost ruled in favor of Kubala in a lawsuit against Smith as an individual, but the judge also ruled that Trumbull County and Smith in his role as engineer are immune from liability.

A trial before a civil jury is set for Oct. 17 in a second-floor courtroom at the Trumbull County courthouse with Yost presiding.

In his ruling filed Thursday, Yost ruled that there ample evidence upon which a jury could conclude that (Smith’s) conduct was malicious or in bad faith.”

“Most of the incidents alleged by (Kubula) occurred during the work day, but some even occurred outside of work time or when (Kubala) was at home. Whether Smith was acting within the scope of his employment is a question of fact to be decided by the jury,” Yost wrote.

Kubala’s attorney, David Engler, said he looks forward to putting Smith’s “childish, unprofessional, rude behavior” before jurors.

Smith referred all comments about the lawsuit to his attorney. Attorney Jeff Stankunas, who is representing Smith on the matter, did not return a request for comment.

Kubala first filed the civil case against Smith in 2018, claiming Smith perpetuated sexual harassment and First Amendment right violations while Kubala was employed by the county.

BACKGROUND

Kubala worked for Smith in the engineer’s office from Oct. 11, 2011, to May 11, 2018. On May 7, 2018, Kubala wrote a letter resigning from the position of safety manager, stating he was making the move “due to an unhealthy work environment, for my health and well-being.”

According to the civil complaint, from about 2015 through Kubala’s last day of employment, Smith subjected him to “sexually harassing conduct and created a sexually hostile work environment.”

Among the allegations set forth in the lawsuit:

* Smith asked Kubala whether Kubala was a homosexual;

* On multiple occasions, Smith asked Kubala to remove his shirt in his office in the presence of others;

* The engineer asked to see Kubala’s hands saying, “You have nice, soft hands.”

Kubala’s civil complaint claims Smith subjected him to ridicule in public places, making sexually suggestive comments and implications about his sexual orientation.

“On dozens of occasions,” Smith licked the top of a can of pop “in an uncomfortable manner while looking at Kubala,” the lawsuit states.

According to the lawsuit, Smith’s sexually oriented conduct toward Kubala was unwanted by Kubala, who made that fact known to Smith on numerous occasions.Because of this conduct, Kubala has suffered economic losses including loss of salary and fringe benefits, plus emotional and psychological injuries, the suit states.

The lawsuit seeks compensatory and punitive damages plus economic losses, which because of Yost’s ruling could be paid by Smith personally and not by county taxpayers.

The case was moved to federal court, where a magistrate in Youngstown dismissed the claims at the end of 2019. Through Engler, Kubala filed an appeal of the decision to dismiss the claim.

The Sixth District Court of Appeals ruled in a January 2021 decision the magistrate was correct in dismissing the First Amendment claims Kubala made, but that the issue of sexual harassment should be settled in state court, not in federal court, because the claim falls under Ohio Revised Code, not federal law.

Kubala then refiled a lawsuit in county Common Pleas Court in June 2021, and Yost received the case in January after the judges in the county recused themselves.

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