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Breech v. Scioto County Regional Water District #1

August 21, 2006

ANDREW BREECH, PLAINTIFF,
v.
SCIOTO COUNTY REGIONAL WATER DISTRICT #1 DEFENDANT.



The opinion of the court was delivered by: Judge Michael R. Barrett

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon Defendant's Motion for Summary Judgment (Doc. 16). Plaintiff has filed a Response in Opposition (Doc. 23) and Defendants have filed a Reply (Doc. 27). Both parties have submitted supplemental authority and responses (Docs. 28, 29, 30, 41, 42 and 43) which will be considered in this opinion and order. This matter is now ripe for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

In his Amended Complaint, Plaintiff Andrew M. Breech ("Breech") brought claims of retaliation and age discrimination under Title VII of the Civil Rights Act of 1964 and Ohio Revised Code §§4112.02 and 4112.99 against Defendant, Scioto County Regional Water District #1 ("Water #1"), his former employer (Doc. 4).*fn1 Plaintiff also alleges retaliation in violation of 42 U.S.C. §1983. Plaintiff, in his Response to Defendant's Motion for Summary Judgment, withdraws his claims of age discrimination. Thus, Defendant's Motion for Summary Judgment as to Counts V and VI will be granted.

Breech was hired by Water #1 on March 17, 1997 as a plant operator and later worked as a maintenance man. He was terminated on June 16, 2003. (Breech Decl. ¶1-6,95). Water #1 is the water treatment plant for Scioto County and is governed by a Board of Directors. Jonathan King is the General Manager and Rich Bradford is the Supervisor of the Operations Department. (Goldman Decl. Exhibit 7).

It is undisputed that Breech had no disciplinary incidents or notations in his personnel file from the date of his hire through August, 2001. In May, 2001 Breech reported what he perceived was a safety concern wherein he witnessed another employee painting in a confined area without a respirator. However, in his deposition Breech could not recall the details of any complaints he made or when they occurred. (Breech Depo. 103, 107 and 110).

On June 8, 2001 Breech was informed that he was to work four ten-hour work days instead of the five eight-hour work days that he had been working. (Breech Depo. Exhibit C). On June 12, 2001 Breech filed a grievance regarding this change. The Board of Directors denied this grievance. (Breech Depo. Exhibit C).

In July of 2001 Breech reported to the Board of Directors what he perceived to be as sexual harassment against two female employees. (Breech Decl. ¶14). On August 14, 2001 the two female employees filed an OCRC complaint against Water #1 and named Breech as a witness. (Goldman Decl. Exhibit 1). Breech was unable to work from mid-August, 2001 to September 9, 2001 due to an illness. On September 21, 2001 Breech was told he would be moved to a newly created position on the second shift, effective October 1st. He was told this new position was created for security reasons in the wake of the September 11th terrorist attacks. (Breech Depo. Exhibit H). Breech was again unable to work from October 27, 2001 - January 7, 2002 due to a previously scheduled surgery.

On February 5, 2002 Breech was informed that he would be interviewed by OCRC as part of the sexual harassment investigation on February 15th. On February 13th Breech and another employee, Kevin Marshall, were reprimanded for "lack of effort and poor workmanship." (Breech Depo. 115 and Exhibit J). He and Marshall were told to remove a bolt. In an attempt to remove the bolt, the bolt was rounded off and they were unable to complete the task. (Goldman Decl. Exhibit 8). On March 20, 2002 Breech filed a retaliation complaint with the OCRC and EEOC. (Breech Decl. Exhibit B).

On July 1, 2002 Breech was given two formal reprimands. The first was for insubordination for failure to follow instructions with respect to the operation of machinery which resulted in burns to Breech's arms on June 10th. The second reprimand was for leaving work without informing his supervisor. Breech became ill at work on June 18, 2002 and did not inform his supervisor that he left the plant until after he arrived home 30 minutes later. (Breech Decl. ¶41-42; Goldman Decl. Exhibit H). On July 9th Breech was given a three day suspension for violating company policy on June 18th when he left work early without first informing his supervisor. Breech was given an opportunity to speak on his own behalf at the disciplinary committee meeting but failed to do so. (Breech Depo. 147).

On July 16, 2002 Breech filed a grievance with Water #1 claiming retaliation for being a witness in the sexual harassment matter. (Breech Depo. Exhibit L). This grievance was denied by King on July 18, 2002 because the grievance did not provide specific information upon which to substantiate a claim of retaliation and because King concluded that the write-ups or other discipline administered to Breech were appropriate and that Breech had failed to appropriately respond to the disciplinary actions at the time he received them. (Breech Depo. Exhibit R).

On September 11, 2002 Breech was reassigned to an operator position rather than a maintenance position, a reassignment that Breech saw as less desirable. Breech was also informed that Water #1 had a new policy which required all plant operators to pass a licensing test by June 15, 2004. (Breech Depo. Exhibit U). Water #1 paid for Breech to take a correspondence course for the licensing test. Breech failed to complete the course and failed the test three times, never obtaining the required license. (Breech Depo. p 91, 93-94). On October 12, 2002 Breech was moved to the third shift due to his lack of license seniority. (Bradford July 14, 2004 Depo. 308, King May 17, 2004 Depo. 236).

On December 6, 2002 Water #1 denied Breech's request to take vacation on December 24th because two other employees had previously requested that date off and Water #1's policy for vacation is a "first come first served" policy. Breech threatened to take the day off anyway. (Breech Depo. 176). Breech received a letter from King directing him to work on December 24th. (Breech Depo. Exhibit X). On December 11, 2002 King and Bradford asked Breech to attend a meeting to discuss what they believed to be Breech's violation of company policy of not washing a filter on his shift and for what physical threats made by Beech. Breech admitted that he said "I was tired of it and I was going to do something." (Breech Depo. 177). On December 12, 2002 King wrote a letter to Breech informing him that threats of any kind to managers would not be tolerated. (Breech Depo. Exhibit Y).

On March 12, 2003 Breech received written reprimand for not washing a filter during his shift. (Breech Decl. ¶64, Breech Depo. Exhibit BB). In his deposition, Breech admitted that he had made a mistake. (Breech Depo, 194). On April 7, 2003 Breech filed an EEOC complaint alleging age discrimination. (Breech Decl. Exhibit H). On April 25, 2003, Breech's attorney notified Water #1 that it would file suit if the matter could not be resolved. (Goldman Decl. Exhibit 3).

On May 2, 2003 Breech was instructed to remove magnetic stirrers from a sink drain, a task Breech had never performed before. Breech removed 12 stirrers. Breech was unsure of what to do with the stirrers so he placed them in a bag and kept them in various areas around the plant. (Breech Decl. ¶73-75 and Goldman Decl. Exhibit 14). Apparently Bradford had planned to use the stirrers for chemical testing on May 14th.

On May 15, 2003 the Board of Directors held their monthly meeting. During his meeting the Board adjourned into executive session to discuss Breech. (Goldman Decl. Exhibit M). It is unclear from the record what was discuss in this executive session. On May 16th another meeting was held between Breech, King and Bradford. King and Bradford discussed Breech's alleged improper maintenance of a gear box on April 9, 2003 and his harassing of co-worker Kevin Marshall. Breech was also asked about the stirrers and whether or not he completed that task. Breech informed King and Bradford that he did complete that assigned task and he produced the 12 stirrers to them. King repeated asked Breech where the stirrers were being kept. Breech would only respond that they were kept "at the plant". Because Breech would not provide the exact location of the stirrers after Breech removed them he was accused of insubordination and dismissed. (Goldman Decl. Exhibit N, Breech Decl. ¶73-86). The next day Breech was informed that he was suspended until further notice. On May 19, 2003 Breech was formally notified that he was suspended without pay pending a disciplinary hearing on May 22. (Breech Decl. ¶90-91, King July 22, 2004 Depo. Exhibit 31).*fn2

At Breech's request the hearing before the Disciplinary Committee was rescheduled to May 28, 2003. At the hearing Breech's personnel file was provided to the committee and the physical threats made by Breech were also discussed. (King May 17, 2004 Depo. 121-123). Breech also read a prepared statement accusing Water #1 of retaliation for his participation in the sexual harassment matter and asserting that he was nervous in the May 16th meeting as he had not taken his medication that day. (Breech Decl. ΒΆ94-99, King May 17, 2004 Depo. 117). The Committee allowed Breech until June 9th to provide medical evidence to support his claim. (Breech Depo. Exhibit JJ). On June 6th Breech provided a hand written response to the medical evidence request stating that without his medication he became shaky and that the "prescription is strictly or mainly for the purpose of helping me to rest and to improve my appetite..." (King July 22, 2004 Depo. Exhibit 29). The letter did not ...


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