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Stewart v. Steward Trumbull Memorial Hospital, Inc.

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

July 25, 2019



          Benita Y. Pearson United States District Judge.

         Pending are two motions for summary judgment, one by Defendant Steward Trumbull Memorial Hospital, Inc (the “Hospital”) (ECF No. 44) and the other by Defendants Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO (“OC8”) and Local 2804, American Federation of State, County and Municipal Employees, AFL-CIO (“Local 2804”) (ECF No. 45). Additionally, Local 2804 moves to dismiss for failure to state a claim. ECF No. 45. The matters have been fully briefed. See ECF Nos. 51, 52, 53, 54.

         Against the Hospital, Plaintiff advances claims of wrongful termination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 634, and the Collective Bargaining Agreement, ECF No. 1-1; see 29 U.S.C. § 185. Against OC8 and Local 2804, Plaintiff alleges a breach of the duty of fair representation, 29 U.S.C. § 158(b).

         For the reasons set forth below, Local 2804 is dismissed from the litigation, and the remaining Defendants' motions for summary judgment are granted.

         I. Background

         Plaintiff was employed by the Hospital for about 25 years until her discharge on July 7, 2017. ECF No. 43 at PageID#: 633. Plaintiff was at or near the top of her pay grade and earned the maximum, or close to the maximum, that a nurse in her position could make. ECF No. 43-3 at PageID#: 813-15; see ECF No. 51-1 at PageID#: 1253.

         Plaintiff was party to a collective bargaining agreement between the Hospital and the Unions (OC8 and AFSCME Local 2026), [1] effective from May 31, 2016, until September 30, 2019. ECF No. 43-3 at PageID#: 745. The CBA explicitly incorporates the Hospital's Substance Testing and Fitness Policy. ECF No. 1-1 at PageID#: 95. That Policy specifies a random drug testing procedure. ECF No. 43-2 at PageID#: 699-702. Section 11.0 of the Policy (“Employee Voluntary Advance Disclosure Option”) provides that, “on a one time basis, a post introductory period employee may choose to disclose the use of any Substance that may result in a positive test result.” Id. at PageID#: 702. To exercise this option, the employee must disclose the relevant substance before a drug-test urine specimen is taken. Id.

         If an employee tests positive for a controlled substance without a prescription and does not provide advance disclosure, the employee “shall be separated immediately” from employment and is ineligible for rehire. Id. at PageID#: 704. Even in the event an employee exercises the option to disclose a substance in advance, she may still be “immediately separated” from employment, but separation is not mandatory. Id. If an employee who discloses a controlled substance and tests positive remains employed, the employee must take rehabilitative steps at the employer's discretion. Id. at PageID#: 704-05.

         Employment actions taken according to the Substance Testing and Fitness Policy are subject to the CBA's four-step grievance procedure. ECF No. 1-1 at PageID#: 95. Discharge grievances advance immediately to Step Three of the grievance procedure. ECF No. 49 at PageID#: 1188. At Step Three, a meeting is held between the Hospital's Human Resources Director and a Union Representative to address the grievance. ECF No. 1-1 at PageID#: 24. If, after Step Three, the grievance is not “satisfactorily resolved, ” Local 2026 refers the grievance to OC8 for review of the merits. ECF No. 45-3 at PageID#: 1055. If OC8 finds the grievance meritorious, it pursues arbitration on the employee's behalf. Id. If OC8 declines arbitration, then Local 2026 may choose to withdraw the grievance or proceed to arbitration on its own. Id.

         On June 5, 2017, the Director of Nursing Services, Charlotte Matash was advised which five employees had been selected for random testing for the month. ECF No. 44-2 at PageID#: 904. On June 21, about two or three hours after beginning her shift, Plaintiff ingested one of her husband's hydrocodone pills.[2] ECF No. 41 at PageID#: 399. Several hours later, Nurse Manager Judy Antonchak notified Plaintiff that she had been selected for random drug testing and Plaintiff was escorted to the drug testing location. ECF No. 44-2 PageID#: 905. Prior to giving a urine sample, Plaintiff signed relevant papers, including the Voluntary Advance Disclosure Option form (Form 26), but she did not disclose that she had taken a hydrocodone pill. ECF No. 51-1 at PageID# 1256; ECF No. 43-4 at Page ID#: 854. Plaintiff says she did not review the paperwork before she signed it. ECF No. 41 at PageID#: 396.

         On June 30, 2017, Robert C. Morrow, M.D., a Certified Medical Review Officer, examined the results of the drug test and identified a positive result for opiates, specifically hydrocodone and oxycodone. ECF No. 44-2 at PageID#: 905. About a week later, Janelle Jaworski, M.D., another Certified Medical Review Officer, verified a positive result for the opiate hydrocodone and reported a negative result for oxycodone because Plaintiff had a valid prescription. Id.

         On July 7, 2017, Plaintiff's employment was terminated. The Hospital notified Plaintiff of her discharge in the presence of the Union president, Tom Connelly, for violating the Substance Testing and Fitness Policy with a positive drug test. ECF No. 44-2 at PageID#: 905; ECF No. 51-1 at PageID#: 1257. The Notice of Discharge was signed by Matash. ECF No. 43-4 at PageID#: 844. Plaintiff asked Connelly to grieve the discharge, and Connelly assigned Union Representative Dori Talstein to guide Plaintiff through the grievance process. ECF No. 45-3 at PageID#: 1045-46; ECF No. 51-1 at PageID#: 1257.

         Ten days later, Union Representative Talstein met with Plaintiff, Plaintiff filled out a Grievance Fact Sheet, and Local 2026 filed a grievance on her behalf. ECF 45-3 at PageID#: 1048, 1058. After the Step Three meeting, the Hospital denied Plaintiff's grievance and upheld the discharge. ECF No. 43-4 at PageID#: 847-48. Thereafter, OC8 and Local 2026 concluded, “based on review . . . the grievance does not have sufficient merit to warrant an appeal to arbitration.” ECF No. 43-4 at PageID#: 849-50.

         II. Standard of Review

         Summary judgment is appropriately granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden of proof at trial.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 403 (6th Cir. 1992).

         Once the movant makes a properly supported motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox. v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995). To defeat the motion, the non-moving party must “show that there is doubt as to the material facts and that the record, taken as a whole, does not lead to a judgment for the movant.” Guarino, 980 F.2d at 403. In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party when deciding whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Aickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

         “The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . .” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The fact under dispute must be “material, ” and the dispute itself must be “genuine.” A fact is “material” only if its resolution will affect the outcome of the lawsuit. Scott, 550 U.S. at 380. In determining whether a factual issue is “genuine, ” the Court assesses whether the evidence is such that a reasonable jury could find that the non-moving party is entitled to a verdict. Id. (“[Summary judgment] will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”).

         III. ...

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