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Dana Paul v. Kaiser Foundation Health Plan of Ohio

October 13, 2011

DANA PAUL PLAINTIFF
v.
KAISER FOUNDATION HEALTH PLAN OF OHIO DEFENDANT.



The opinion of the court was delivered by: United States District Judge Lesley Wells

MEMORANDUM OF OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

Plaintiff Dana Paul, a member of the Office & Professional Employees International Union ("OPEIU"), initiated this employment discrimination lawsuit in Cuyahoga County Court of Common Pleas after she was terminated from her position at Kaiser Foundation Health Plan of Ohio ("Kaiser"). Ms. Paul's Complaint alleges state law claims of disability discrimination and retaliation against Kaiser underO.R.C. §4112.02(A) and §4112.99. (Docket. #1). Defendant Kaiser removed the case to this Court and now seeks Judgment on the Pleadings. (Docket # 4). A response and reply have been filed. (Docket # 7, 8).

This Court will first address the jurisdictional question of whether Ms. Paul's state law claims are preempted by the Labor Management Relations Act (LMRA). Kaiser claims its removal to this Court was proper, asserting that Section 301 of the LMRA preempts Ms. Paul's state law claims and that this preemption provides the Court with subject matter jurisdiction. (Docket #4). Ms. Paul contends there is no preemption and seeks to have her state law claims remanded to the Cuyahoga County Court of Common Pleas. (Docket #7).

Kaiser next seeks the dismissal of Ms. Paul's newly converted LMRA claims, asserting that Ms. Paul failed to exhaust the grievance procedures enunciated in the governing CBA. (Docket #4).*fn1 Ms. Paul maintains that she did exhaust the grievance procedures, specifically contending that she was not required to arbitrate her claim. (Docket #7).

For the reasons set forth below, the Court will find as a matter of preemption that it possesses subject matter jurisdiction. Furthermore, the Court will dismiss Ms. Paul's LMRA claims pursuant to Rule 12(c) for failure to exhaust her administrative remedies under the CBA.

1. Background

Ms. Paul worked for Kaiser as a Radiology Technologist from 1997 to 2002 primarily responsible for performing diagnostic x-rays, and then as a CT Technologist from 2002 to 2009 primarily responsible for performing CT scans. (Dolbin Aff., ¶6). In 2006, Paul suffered work-related injuries, which limited her ability to move and lift heavy objects. (Paul Aff., ¶4).

In January of 2009, Kaiser decided to abolish the CT Technologist position and create a new position entitled CT Rad Tech, which combined the duties of Radiology Technologist and CT Technologist. (Dolbin Aff., ¶7). This new position would require Ms. Paul to perform diagnostic x-rays, which, due to her injuries, she could not perform by herself. (Paul Aff., ¶4). In anticipation of transferring to this new position, Ms. Paul completed a form entitled "Request for an Accommodation" in which she stated:

Unable to lift pts. to position for Diagnostic X-ray. Very physically demanding job. X2-fusion of cervical spine, I am afraid of harming a member for an exam or harming myself. Unable to work without assistance. Can not work 3rd shift or whenever I would be the only Diagnostic technologist. In cat scan there is no multiple positioning and lifting. I am able to perform my current job. In near future being told to work in diagnostic Area. Can not do this with my disability. Ask for accommodations. (Supp. Dolbin Aff. ¶2; Exhibit 14).

Upon receiving the above form, Kathy Dolbin, Senior Human Resources Consultant at Kaiser, informed Ms. Paul that she could not simply perform the functions of her former position as CT Technologist. (Dolbin Aff., ¶13; Exhibit 6). Ms. Dolbin did indicate, however, that Kaiser wanted to explore other accommodations, such as transferring Ms. Paul to the heavily staffed day shift and exempting her from working the least staffed shifts. (Dolbin Aff., ¶13; Exhibit 7). Ms. Dolbin relayed this information to OPEIU, Ms. Paul's union, in early June 2009. (Dolbin Aff., ¶16). However, OPEIU notified Ms. Dolbin that the proposed transfer and exemption for Ms. Paul might violate the CBA between the parties. (Dolbin Aff., ¶18). On 24 July 2009, Kaiser asked Ms. Paul's colleagues if they would change shifts with Ms. Paul and work holidays and weekends for her. (Dolbin Aff., ¶19; Exhibit 9). None of Ms. Paul's colleagues volunteered. (Dolbin Aff., ¶19).

On 12 August 2009, Ms. Dolbin informed Ms. Paul that Kaiser could not accommodate her and placed her on a leave of absence. (Dolbin Aff., ¶20; Exhibit 10). Ms. Dolbin's stated reason was that Ms. Paul could not perform the functions of the newly formed CT Rad Tech position. Id.

On 26 August 2009, Ms. Paul filed a Step One grievance with her supervisor challenging Kaiser's decision to place her on a leave of absence. (Dolbin Aff., ¶22; Exhibit 11). Kaiser denied the grievance. Id. Ms. Paul appealed to the Second Step, alleging Kaiser discriminated against her based on her handicap, but Kaiser denied the grievance. (Dolbin Aff., ¶23; Exhibit 12). Ms. Paul appealed to the Third Step where her grievance was also denied. Id. Although the CBA provides for arbitration after the Third Step, Ms. Paul never arbitrated her claim. (Dolbin Aff. ¶24; Exhibit 12). Ms. Paul was placed on "unpaid status," effective on 5 September 2009. (Paul Aff., ¶12; Exhibit 6).

Even though the above facts are undisputed, Ms. Paul and Kaiser disagree about the events surrounding Ms. Paul's termination. Ms. Paul claims that she was capable of performing the essential duties of the CT Rad Tech position and the only 'accommodation' she requested was to stay on second shift and maintain the status quo. (Paul Aff., ΒΆ5; Dolbin Aff., Exhibit 2). Ms. Paul alleges that Kaiser intentionally misinterpreted her requests as unreasonable accommodation requests in order to justify her ...


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