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Eads v. Cinergy Corp.

September 29, 2006

JOHN EADS, PLAINTIFF,
v.
THE CINERGY CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Timothy S. Black

MEMORANDUM OPINION AND ORDER

Plaintiff John Eads initiated this action on June 9, 2004, by filing a complaint against Cinergy Corporation ("Cinergy"), Cincinnati Gas and Electric ("CG&E"), and the International Brotherhood of Electrical Workers, Local 1347 (Local 1347), alleging age discrimination, wrongful termination, and breach of contract. (Doc. 1, Ex. 1.) On July 4, 2004, Defendants removed the case to this Court. (Doc. 1.)

The case is now before the Court on Local 1347's motion for summary judgment (doc. 33),*fn1 Cinergy and CG&E's motion for summary judgment (doc. 34), and the parties' responsive memoranda (docs. 43, 44, 50, 51).*fn2 The parties have consented to disposition by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Doc. 45.)

BACKGROUND AND PROCEDURAL POSTURE

Plaintiff was hired by CG&E*fn3 on or about March 19, 1979 as a janitor at its Miami Fort Generating Station. (Eads Dep. at 22-24.) Plaintiff received several promotions and held a number of position at Miami Fort. From April 1, 1998, until his discharge on September 8, 2003, Plaintiff held the position of Material Services Team Member. (Id. at 31-32, 48-50, 51, 57-59, 63-64, 68-70, 85-89, 92-94.) Plaintiff was a member of the labor union, Local 1347, from the time of his initial employment to the date of his discharge. (Id. at 28.)

CG&E employees who work at its power generating stations, such as Miami Fort, are subject to certain federal Department of Transportation ("DOT") workplace drug and alcohol testing regulations, as well as CG&E drug policies and procedures. (Burck Aff., ¶¶ 1-10; Ex. A-F.) On May 29, 2001, Plaintiff tested positive for cocaine during a random DOT test. Pursuant to CG&E procedure regarding Coast Guard/DOT drug testing, Plaintiff received at 14-day suspension, was subject to follow-up drug testing for 60 months from the date of his positive drug test, and was notified that a positive drug test in the future would result in discharge.

Plaintiff, however, denies that he used cocaine, and he blames his positive test result on his use of Oragel, thereby asserting that the test result was a "false positive." Plaintiff did not originally challenge his positive drug test and/or 14-day suspension, however, and he returned to work after the suspension.

Plaintiff was tested again on October 24, 2002, and the results were negative. Plaintiff was not tested in the second or third years of probation.

Plaintiff asserts further that in August 2003, he was harassed by two employees, Jim Racke and Jeff Fiess. According to Plaintiff, Racke wanted Plaintiff to run his conveyors for him, and after he declined, he was "taunted and goaded" because "they wanted Plaintiff to replace Racke at his job for an unexplained reason." (Doc. 43.) Fiess and Racke continued to pester Plaintiff on August 27, 28, and 29, 2003 about "why [plaintiff] didn't want to go up [on the conveyers.]" (Doc. 17, ¶ 11.) On the third day of teasing, Plaintiff complained to his supervisor, Mark Smith ("Smith"). After Plaintiff complained, the teasing ceased. (Eads Dep. at 121-28; Smith Aff.)

When Plaintiff arrived at work on September 3, 2003, he was met by Smith and instructed to go to Bethesda Care Queensgate (Bethesda Care) for follow-up drug testing. The CG&E handbook provided that an employee required to have a drug test is to be driven to the designated facility by his supervisor or Company designee. (Eads Dep. Ex. 20). However, Plaintiff drove himself to Bethesda Care for the drug test.

Plaintiff tested positive for marijuana. On September 5, 2003, the Medical Review Officer at Midwest Toxicology notified Plaintiff of his positive test results. Plaintiff's supervisor, Smith, then notified Plaintiff that he was suspended indefinitely. Subsequently, at a meeting held on September 8, 2003, Tim Thiemann, Smith's supervisor, told Plaintiff he was terminated as a result of his second positive drug test.

Plaintiff's termination was also confirmed in writing by letter dated September 9, 2003. (Eads Dep., Vol 2, Ex. 27.)

Plaintiff asserts, however, that his positive test was the result of inhaling secondary smoke from his wife, a daily marijuana smoker. (Eads Dep. at ¶ 31; Monica Eads Dep at ¶¶ 3-11.)

On March 4, 2004, Plaintiff filed a charge of discrimination against Cinergy with the Ohio Civil Rights Commission ("OCRC") and with the Equal Employment Opportunity Commission ("EEOC"), alleging that he was forced to take a drug test because of his age.

After receiving his right to sue letters, Plaintiff initiated this action on October 9, 2004, in the Hamilton County Court of Common Pleas. (Doc. 1, Ex.1). The action was removed to this Court (see doc. 1), and an amended complaint was filed on December 1, 2004. (Doc. 17.)

Plaintiff's amended complaint alleges that he was discriminated against based on age in violation of Ohio Revised Code Chapter 4112, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. ยงยง 623, et seq.Plaintiff further alleges wrongful terminationin violation of Ohio public policy and breach of contract/breach of the duty of fair ...


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