United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN UNITED STATES DISTRICT COURT CHIEF JUDGE
matter is before the Court upon defendant's Motion for
Summary Judgment (Doc. 24). For the following reasons, the
motion is GRANTED.
Ronald Deshuk filed an Amended Complaint against defendant
G4S Secure Solutions. The Amended Complaint sets forth two
claims. Count One alleges sex and age discrimination under
federal law. Count Two alleges age and sex
discrimination, as well as retaliation, under state law.
Jaskiewicz, defendant's Operations Manager of the
Cleveland office, avers the following. Defendant provides
security services nationally, including security
professionals. The Cleveland office provides “overhead
services” to approximately 320 G4S employees in Ohio.
On January 1, 2014, defendant began providing contract
security services at Republic Steel, a steel mill property.
Plaintiff was already employed as a security guard at the
Republic Steel site, and transferred his employment from the
previous contract security company to defendant. Jaskiewicz
approved plaintiff's hire, knowing he was male and over
40 years of age. From January to July 2014, plaintiff
worked the second shift, from approximately 3 p.m. to 11 p.m.
During this time, plaintiff worked Mondays through Fridays,
and would work Saturday and/or Sunday if there was a manpower
shortage. Plaintiff also maintained a second job managing a
car wash, where he worked in the mornings seven days per
July 2014, defendant changed its schedule at the request of
Republic Steel, and in an effort to reduce labor costs at the
site. In particular, Republic Steel eliminated a post
position to which plaintiff and other security officers had
been assigned, necessitating a consolidated labor schedule
that saved 120-180 hours per week in labor costs. This global
scheduling change affected all second and third shift
employees of defendant working at Republic Steel.
Plaintiff's schedule changed to 2 p.m. to 10 p.m. (still
the second shift), with his scheduled days off becoming
weekdays instead of weekends. Defendant offered to move
plaintiff to first shift so that he would only have to work
on weekdays, but plaintiff declined due to his car wash job.
March 31, 2016, defendant's contract with Republic Steel
terminated due to the closure of the steel mill. Defendant
then offered plaintiff alternative positions, which he
declined. (Jaskiewicz aff.)
testified at deposition that when defendant lost the contract
with Republic Steel on March 31, 2016, defendant offered
plaintiff other positions at different sites but he declined.
Plaintiff was ready to “enjoy retirement” and
already had a retirement income. Driving to the other sites
was not worth it. Plaintiff figured he would let the others
he had worked with, and who needed the income, get the
positions. But, when Randy Hicks, who was head of security at
Republic Steel, called and offered him a security guard
position (within one week after defendant lost the contract)
with the successor contractor at the Republic Steel site,
plaintiff accepted. The site was located conveniently close
to plaintiff's home and plaintiff knew “pretty much
everything about the mill.” Plaintiff lost no wages.
Plaintiff still works at the site Monday through Saturday, 3
p.m. to 11 p.m. Although the factory is no longer
operational, one guard per shift works to patrol the site.
(pltf. depo. 38-50)
presents his own affidavit, averring the following. He worked
for defendant as a security guard at the Republic Steel
Lorain Works from January 3, 2014 until March 31, 2016 when
defendant lost the contract to provide security services. He
worked the second shift (Monday through Friday, 2 p.m. to 10
p.m.), and had worked the same hours since 2008 or 2009 when
working for the two predecessors who held the security
contract at Republic Steel. The schedule changes were
announced by site supervisor Dan Laska on July 23, 2014, and
affected only the second and third shift guards who were
primarily older and male. First shift guards, who were
primarily female under age 30, were not affected by the
change. Dan Laska, in his thirties, also worked the first
plaintiff no longer had weekends off as of July 23, 2014 (he
now had Tuesdays and Wednesdays off), he could not
participate in family events including those with his
grandchildren who lived in Toledo, Ohio and southern
Michigan, as he previously did regularly. Plaintiff could no
longer attend his grandchildren's sporting and school
events, weddings, birthday parties, first communions, and
baptisms. Nor could plaintiff continue to attend Sunday mass
with his wife which he also previously did regularly.
Plaintiff did have a part-time job at a car wash which was
compatible with his second shift job with defendant. He
worked seven days a week, generally from 8 a.m. through noon.
three weeks before defendant changed the schedule, there was
a meeting during the second shift with eight or nine second
and third shift guards attending. The meeting was called
because of complaints regarding favorable treatment of the
first shift females. Plaintiff attended. Dan Laska, Ron
Cerney (Laska's supervisor), and Randy Hicks (Republic
Steel's Director of Security) were also present. It was
apparent that Laska was upset during the meeting, and said
something to the effect of “I got you on my
recalled that on another occasion when he and another older
worker complained about something, Laska said,
“Don't act like a child act like a man.”
Laska also told plaintiff, “If you don't like it
old man you can quit.” (pltf. aff.)
also submits the affidavits of Eduardo Burgos (a former EMT
and third shift supervisor with defendant) and Denver Casto
(a former third shift part-time security guard with
defendant). Burgos avers the following. He came in contact
with guards working the first and second shifts. The first
shift consisted of three women, all in their twenties, and
Daniel Laska (in this thirties) who was the first shift
supervisor and site manager for all three shifts. Burgos was
aware of the favoritism afforded the women on first shift
with regard to the terms and conditions of their employment
which was not afforded to the second and third shift guards.
As a result of complaints made by second and third shift
guards, a meeting was held in early July. Burgos attended and
so did plaintiff as well as guards from each of the shifts.
Laska was noticeably upset and told the people attending that
they “were on his radar.” Randy Hicks, Republic
Steel's Director of Security, also attended and said now
he knew who the snitches were. From the date of the meeting
until July 23, 2014, when the schedule changes were
announced, Burgos was not advised that changes were being
considered although he was consulted in the past before
changes were made. Security guards who attended the meeting
had their schedule changed. The changes did not affect the
number of guards who worked or the total hours worked. About
two weeks after plaintiff and another second shift guard
complained about the changes, Laska told Burgos, “I am
tired of these old men complaining.” Previously, Burgos
heard Laska saying that if a guard were younger, we
wouldn't have this issue. Burgos wrote a letter to
defendant before the meeting about Laska's use of
demeaning terms which he believed created a hostile work
environment especially to older male workers. He attaches a
copy of the letter. (Burgos aff.)
avers that he is a 66 year-old former part-time third shift
security guard. He was also familiar with the favorable
treatment of the women on the first shift that was not
afforded to the guards on the second and third shift. Casto
resigned in June 2014, due to his wife's health and the
company's refusal to provide time off for him to care for
her in the hospital. As a result of the complaints, a meeting
was held for second and third shift guards in early June.
Casto attended and recalled Randy Hicks (director of
security) saying that “now that I know who the snitches
are I can go ahead and weed them out.” During his
employment, Casto also recalled Dan Laska making
“snide”remarks about older workers. He provided
some examples. (Casto aff.)
matter is now before the Court upon defendant's Motion
for Summary Judgment.
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.
Liberty Lobby, 477 U.S. 242, 248 (1986). Accordingly,
the nonmoving party must present “significant probative
evidence” to demonstrate that “there is [more
than] some metaphysical doubt as to the material
facts.” Moore v. Philip Morris Cos., Inc., 8
F.3d 335, 340 (6th Cir.1993). The nonmoving party may not
simply rely on its pleading, but must “produce evidence
that results in a conflict of material fact to be solved by a
jury.” Cox v. Kentucky Dep't. of Transp.,
53 F.3d 146, 150 (6th Cir. 1995).
evidence, all facts, and any inferences that may permissibly
be drawn from the facts must be viewed in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Eastman Kodak Co. v. ImageTechnical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be ...