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Deshuk v. G4S Secure Solutions (USA) Inc.

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

October 24, 2017

Ronald Deshuk, Plaintiff,
v.
G4S Secure Solutions USA Inc., Defendant.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN UNITED STATES DISTRICT COURT CHIEF JUDGE

         Introduction

         This matter is before the Court upon defendant's Motion for Summary Judgment (Doc. 24). For the following reasons, the motion is GRANTED.

         Facts

         Plaintiff 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.[1] Count Two alleges age and sex discrimination, as well as retaliation, under state law.

         Art 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.[2] 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 week.

         In late 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.

         On 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.)

         Plaintiff 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)

         Plaintiff 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 shift.

         As 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.

         About 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 radar.”

         Plaintiff 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.)[3]

         Plaintiff 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.)

         Casto 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.)

         This matter is now 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. 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).

         The 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 ...


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