United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER [RESOLVING ECF NOS. 44,
Y. Pearson United States District Judge.
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.
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.
reasons set forth below, Local 2804 is dismissed from the
litigation, and the remaining Defendants' motions for
summary judgment are granted.
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.
was party to a collective bargaining agreement between the
Hospital and the Unions (OC8 and AFSCME Local 2026),
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.
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.
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.
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. 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#:
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.
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.
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#:
Standard of Review
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).
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
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