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Hank v. Great Lakes Construction Co.

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

July 17, 2018

STEVEN M. HANK, Plaintiff,
v.
GREAT LAKES CONSTRUCTION CO., et al., Defendants.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff Steven M. Hank's (“Plaintiff”) Objections (ECF DKT # 157) to the Report and Recommendation of the Magistrate Judge (ECF DKT # 152). For the following reasons, and after de novo review and consideration of Plaintiff's Objections, the Court accepts the Recommendation of the Magistrate Judge and grants Defendant The Great Lakes Construction Co.'s (“Defendant” or the “Company”) Limited Motion for Summary Judgment (ECF DKT # 107).

         Background Facts

         Plaintiff worked as a sandblaster for the Company from October 29, 2007 until January 22, 2016. Compl. ¶¶ 4, 16. Plaintiff is a member of the International Union of Operating Engineers, Local 18 (the “Union”).[1] Compl. ¶ 4. Accordingly, the collective bargaining agreements between the Company and the Union governed terms and conditions of Plaintiff's employment.

         Plaintiff is forty-nine years old, holds a General Equivalency Diploma (“GED”) and has post-high-school-level proficiencies in reading comprehension and word recognition, high-school-level proficiency in spelling and sixth-grade-level proficiency in arithmetic.

         Plaintiff was injured on the job on March 27, 2012 when he fell over while sandblasting a trailer. Compl. ¶ 5. On June 15, 2012, Plaintiff filed a claim (the “BWC Claim”) with the Ohio Bureau of Worker's Compensation (“BWC”) for a torn meniscus. Compl. ¶ 6. Plaintiff ultimately had knee surgery. Compl. ¶ 7.

         Plaintiff alleges that it generally requires six weeks to recover from the type of surgery that he had, but the Company only allowed Plaintiff to take thirteen days of unpaid leave. Compl. ¶ 8. Because of this, Plaintiff began experiencing complications with his knee, including constant pain and two additional knee injuries. Compl. ¶ 9.

         Plaintiff filed a C86 Motion under the BWC Claim, requesting payment for his doctor's prescribed treatment of gel injections and occupational therapy for these additional knee injuries. Compl. ¶ 10. The Company rejected these requests. Compl. ¶ 10.

         During October and November of 2015, Plaintiff allegedly informed his supervisor that he would be filing additional claims with the BWC. Compl. ¶ 13. Plaintiff alleges that the Company began spying on Plaintiff in order to “‘catch' him in some act to terminate and/or remove him from employment.” Compl. ¶ 13.

         On January 22, 2016, Plaintiff was called into a meeting with five Company managers who alleged that Plaintiff had falsified his timecards. Compl. ¶ 16. Plaintiff's Union representative, Jacob Siesel (“Siesel”), was also present at the meeting. According to the Company, Plaintiff did not dispute the accusations. Plaintiff was informed that he would be terminated. Subsequently, Plaintiff was presented with a document entitled “Acknowledgment and Agreement” (the “Release”), which stated as follows:

The Great Lakes Company (“Great Lakes”) agrees that instead of terminating Steven Hank for falsification of time records, it will place him on lay-off status with no right to recall. In return, Hank agrees that he will not file a grievance under the Collective Bargaining Agreement and that he will not pursue or file any sort of claim against either Great Lakes or his Local 18 of the International Union of Operating Engineers (“Union”). Mr. Hank agrees that he will not seek reemployment at any time in the future with Great Lakes. The Union agrees that it will not pursue or file any grievances on Mr. Hank's behalf.

         Limited Mot. for Summary Judgment (“LMSJ”) at 3-4.

         Plaintiff allegedly asked for clarification regarding the effect of being laid off rather than terminated and the Company informed Plaintiff that if he signed the Release, he could seek unemployment benefits. Id. at 4. Plaintiff then signed the Release and the meeting ended. Id. Plaintiff alleges that he was coerced into signing the Release. Compl. ¶ 18.

         Plaintiff alleges claims against both the Company and the Union, including one count for Disability Discrimination and one count of Age Discrimination in Violation of Ohio Revised Code (“R.C.”) Chapter 4112, one count of Workers Compensation Retaliation in Violation of R.C. Chapter 4123 and one count of Company Breach of Collective Bargaining Agreement/ Union Breach of Duty of Fair Representation (“Count IV”). Plaintiff did not identify a statute under which Count IV was asserted, but Defendants removed the case to federal ...


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