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Griffin v. International Union of Operating Engineers. Local 18

United States District Court, N.D. Ohio, Eastern Division

May 30, 2017

Sean Griffin, Plaintiff,
International Union of Operating Engineers. Local 18, Defendant.


          PATRICIA A. GAUGHAN United States District Judge


         This matter is before the Court upon defendant's Motion for Summary Judgment (Doc. 25). This case alleges discrimination in employment. For the following reasons, the motion is GRANTED.


         Plaintiff Sean Griffin filed this Complaint against defendants Local 18 Ohio Operating Engineers (Local 18 or the Union) and International Union of Operating Engineers, Local 18 (IUOE).[1] Local 18 represents its members who work in the building and heavy highway construction industries in Ohio and Kentucky. Local 18 negotiates collective bargaining agreements (CBAs) which govern the terms and conditions of the members' employment. These include the CEA Building Agreement, the AGC Building Agreement, and the OCA Highway Heavy Agreement. IUOE also negotiated the National Maintenance Agreement (NMA).

         The following background facts are submitted by defendant as supported by the affidavits (and supporting exhibits) of Lisa Cianciolo (the Union's Medical Review Officer) and Donald Taggart (the Union's District 1 Representative in 2013 and 2014). Local 18 maintains five district offices in Ohio, each of which is responsible for covering a specific geographic area and each maintaining a hiring hall for signatory employers seeking to hire operating engineers. The NMA also provides for the referral of operating engineers through the appropriate hiring hall. The hiring hall system operates on a “first-in, first-out” basis.” Operating engineers register, indicating, inter alia, the type of equipment they are capable of operating. The applicant's registration card is then time- and date-stamped and placed in the referral deck. Signatory employers requiring the services of operating engineers call the appropriate Union district office indicating the type of equipment to be operated. The Union fills the work order by referring a qualified applicant who has been out of work the longest.

         Construction projects are generally completed in phases, and the work is seasonal in nature. Thus, all of the Union's job referrals are temporary assignments and the employers do not always advise Local 18 once an operating engineer is discharged due to a project's completion or lack of work. Union members usually advise the hiring hall of their unemployment and desire to re-register for employment.

         Local 18's CBAs contain a nearly identical mandatory Alcohol and Drug Policy (Policy) implemented in recognition of the potentially disastrous results that drug and alcohol use can have on the job site considering the equipment being used. Under the Policy, employees may be subject to a drug test within two weeks of reporting to a job, may be subject to random drug screening at any point in their employment, and may be subject to massive drug screening at any point in their employment. Additionally, employees involved in workplace accidents or whose behavior raises suspicion of illegal drug or alcohol impairment may be subjected to a drug test (after signing a consent) as a condition of continued employment. The employer has the sole discretion as to when an employee is subject to drug testing.

         Under the Policy, a positive test result will render the employee subject to disciplinary action by the employer, up to and including immediate discharge. The employee is also temporarily prohibited from registering with the hiring hall or from being dispatched to work. The employee is granted a maximum 30-day leave to complete a drug and alcohol rehabilitation program. Upon completion of the program, the employee must present a certificate of completion to the Union to be restored to work with his previous employer or to be permitted to re-register in the hiring hall. Thereafter, the employee must present a monthly certification of negative alcohol and drug tests to the Union for the next 12-month period. Failure to do so will result in the employee losing the right to maintain his registration card within the referral deck, to be dispatched to work, or to remain employed with his current employer. Under the Policy, an employee's refusal to take a mandated drug and alcohol test and/or refusal to sign a consent form constitutes an automatic positive result. Under the CEA agreement, a third positive drug or alcohol test results in an employee being permanently barred from registering for employment in the hiring hall. Under the AGC and the OCA agreements, any positive drug and/or alcohol test after the second rehabilitation procedure will result in the employee being permanently banned from the hiring hall. The NMA contains a five step grievance and arbitration procedure which covers all disputes arising out of work performed under the agreement.

         Defendant also submits the following facts regarding plaintiff's work history with the Union as supported by plaintiff's deposition (with exhibits) and answers to requests for admission, as well as the affidavits of Cianciolo, Taggart, and Steve DeLong (the Union's District 1 Representative in 2005 and 2007) with accompanying exhibits. Plaintiff graduated from a Union apprenticeship program in 1995 and remained consistently employed through the hiring hall through 2005. In August 2005, plaintiff was referred through the appropriate hiring hall to perform work covered by the OCA with Soda Construction. On August 22, 2005, he was subjected to an alcohol and drug test, and tested positive for cocaine. The Union received the results in November 2005 and immediately informed plaintiff of the results, the ramifications thereof, and the steps necessary to complete rehabilitation under the Policy. In May 2006, plaintiff successfully completed a rehabilitation program and provided the certificate to the Union. But, between May and October 2006, plaintiff only submitted two certificates of negative alcohol and drug tests. As a result, a Union representative informed plaintiff by letter of October 12, 2006 of the failure to timely submit monthly certification and that monthly certification for the next 12 months must be submitted to obtain complete rehabilitation under the Policy. Plaintiff then successfully completed a rehabilitation program in January 2007, provided a certificate to the Union, and submitted certifications of negative drug tests between March and July 2007.

         On August 2, 2007, plaintiff was scheduled, through the appropriate hiring hall, to begin employment with the Ruhlin Company for work covered under the OCA. On that date, the employer requested that he submit a pre-employment drug test under the Policy. He failed to do so (an automatic positive result) and left the job site. The next day, the Union representative informed plaintiff by letter that due to the failure, he was not in compliance with the Policy. Like before, plaintiff was informed of the ramifications and necessary steps to complete rehabilitation. On November 29, 2007, plaintiff successfully completed a rehabilitation program and provided the certificate. He thereafter timely submitted the 12 certificates of negative drug tests.

         On September 5, 2013, Mr. Griffin was referred to employment with Glasrock-OMI through the hiring hall to perform forklift work covered by the NMA. Within a couple weeks, the Union learned that plaintiff had quit his job after a meeting with his supervisors precipitated by safety infractions committed by plaintiff including leaving his forklift running with the forks in the air, driving the forklift too fast, and wearing tinted safety glasses at night. At the meeting, plaintiff refused to sign a written warning form memorializing his infractions, became very angry at his supervisors, swore at them, and walked off the job. Plaintiff also refused to return the forklift keys to his supervisors. Shortly after quitting, plaintiff contacted the Union to report that he had been retaliated against by his supervisors for complaining about racially derogatory remarks by a co-worker. The Union drafted a grievance in that regard. Plaintiff also reported that Glasrock-OMI had failed to pay him for his final pay period prior to quitting. The Union filed this second grievance. The Union held Step 1, 2, and 3 meetings with Glasrock-OMI over the discrimination and wage grievances, but the grievances were not resolved. A Step 4 grievance hearing was held before the grievance subcommittee in Washington D.C. in January 2014 as to both grievances. At the hearing, the discrimination grievance was denied, but the wage grievance was granted and plaintiff was awarded 28 hours of straight-time pay.

         On July 2, 2014, plaintiff was scheduled to begin employment with Chieftain Trucking, a job he obtained through the appropriate hiring hall. On the day prior, the employer subjected plaintiff to an alcohol and drug test, pursuant to the Policy. He tested positive for cocaine. Plaintiff was again informed by letter from the Union of the test results, the ramifications of a positive drug test, and the steps necessary to successfully complete rehabilitation under the Policy. Shortly after the positive drug test, plaintiff obtained employment with a Union signatory employer, Utilicon, outside of the Union's hiring hall. In mid-August 2014, the Union discovered that plaintiff had engaged in “referral jumping” (violating the rules of the referral hall and the referral procedure) by obtaining work outside of the hiring hall procedures. A Union representative met plaintiff at the Utilicon site at that time and informed him of his referral violation. Plaintiff was required to leave the job site and threw garbage in the face of the Union official. Several days later, plaintiff visited the hiring hall to re-register, but was reminded that the positive drug test result prevented him from doing so. Plaintiff yelled at the Union officer and left. Plaintiff thereafter completed a rehabilitation program and provided his certificate.

         On May 20, 2015, plaintiff was referred to employment with Sitetech, Inc. through the Union hiring hall to perform work covered by the AGC agreement. A week later, he was involved in a work place accident while operating equipment. Sitetech requested that he submit to an alcohol and drug test. Plaintiff was driven to a medical facility, but refused the test or to sign a consent form for the test. Sitetech informed the Union of such and the Union informed plaintiff that he was not in compliance with the Policy. The refusal constituted a positive result. By letter of May 29, 2015, plaintiff was informed by the Union that he had three documented cases of positive drug tests and, therefore, was permanently barred from registering for work in the Union hiring hall. Plaintiff did not file a grievance regarding the permanent bar.

         Plaintiff submitted his own declaration, with no attached exhibits or evidence, wherein he states the following. He is an African American male. In 2014, plaintiff filed an EEOC charge alleging that he was being discriminated against by the Union because he had complained about derogatory and racially related remarks made to him by co-workers at Glassrock. Plaintiff did not file a lawsuit because he needed to continue his employment through the Union. The Union continued its racial discrimination and retaliation against him.

         Before beginning his employment at Cheiftain Trucking, plaintiff passed a drug test. But, a week later, a Union agent told him he needed to re-take it at his own expense. Plaintiff responded that he had to work to earn the money to pay for the test. As a result, the Union sent him home. Plaintiff was unable to obtain work from the Union and so contacted Utilicon- an employer he knew personally. Plaintiff was hired and began working. However, a week later, a Union agent, Bill Russell, arrived at the site and spoke to the job foreman. Russell then informed plaintiff that he could not work there and needed to put in “a 10 day referral.” Russell told plaintiff to get his “black monkey ass off the machine.” The next day, plaintiff went to the hiring hall to put in the referral. Plaintiff was informed by Russell that the refusal to take the drug test was considered a positive result. Plaintiff enrolled in a treatment program and presented the certificate of completion.

         The Union then sent plaintiff to work at Precision Engineer assigned to Public Square in Cleveland. (No date is identified.) Upon arrival, Russell told plaintiff he needed to take a drug test. He did so, but before receiving the results, the job foreman told plaintiff to get off the equipment. A week later, the drug test returned negative. The next day, plaintiff was laid off by Precision Engineer. Plaintiff drove by the work site and saw white operators doing his job. Plaintiff went to the Union hiring hall and was told that although the drug test result was negative, he had been laid off because there was no work at the Public Square site.

         Subsequently, the Union offered plaintiff a job with high retention lines. Plaintiff declined because he had no experience with that work. The Union referred him to a job in Sandusky[2]- 100 miles from his house. Plaintiff took the job. He was injured when a machine struck his arm, but plaintiff was told he needed to first take a drug test before receiving treatment for his arm. He passed the drug test and was then assigned to work at Thistledown. Russell then contacted plaintiff and informed him that the drug test was considered “a failure” and plaintiff was permanently banned from the Union.

         After filing a second EEOC charge and receiving a Right to Sue letter, plaintiff filed this Complaint. He sets forth four claims. Count One alleges race discrimination under Title VII. Count Two alleges retaliation under Title VII. Count Three alleges a violation of 42 U.S.C. § 1981. Count Four alleges race discrimination under the Ohio statute.

         This matter is before the Court upon defendant's Motion for Summary Judgment

         Standard of Review

         Summary Judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed.R.Civ.P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, ” if any, which it believes demonstrates the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323 (citing Fed.R.Civ.P. 56(c)). A fact is “material only if its resolution will affect the outcome of the lawsuit.” Anderson v. ...

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