Gurish v. Ohio Dep't of Mental Retardation & Developmental Disabilities, CASE NO. 1:10CV02292

• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
• Writing for the Court: Benita Y. Pearson
• Parties: DANIEL GURISH, Plaintiff, v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, et al., Defendants.
• Decision Date: 18 July 2012
• Docket Number: CASE NO. 1:10CV02292

DANIEL GURISH, Plaintiff,
v.
OHIO DEPARTMENT OF MENTAL RETARDATION
AND DEVELOPMENTAL DISABILITIES, et al., Defendants.

CASE NO. 1:10CV02292

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: July 18, 2012

PEARSON, J.

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND ORDER (Resolving ECF Nos. 39, 46, 71, 73, 78, & 84)

I. Background.................................................................4

A. The Parties.......................................................5
B. Factual Background................................................6
C. Plaintiff's Causes of Action..........................................8

II. Discussion................................................................10

A. Judgment on the Pleadings..........................................10

1. Defendant Gregory Patterson is Absolutely Immune from Civil Liability...................................................10
2. Plaintiff's § 1981, § 1982, and ADA Claims against ODDD, ODAS, and OCSEA in their Official Capacities are Barred by the Eleventh Amendment................................................12

a. Counts One, Three, & Five: §§ 1981 and 1983 Claims Against

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ODDD,ODAS,andOCSEA ............................13
b. Count Two: ADA Claim Against ODDD and OCSEA........14

3. ODDD Defendants and ODAS Defendants in their Individual Capacities are Entitled to Qualified Immunity from Plaintiff's Due Process allegation in Count One and Wrongful Termination allegation in Count Three. ... 15

a. Count One: Deprivation of Procedural Due Process against ODDD Defendants...........................................16
b. Count Three: Wrongful Termination Claim against ODDD.....20

4. Plaintiff's Individual Capacity Claims Alleged in Counts Two, Three, Four, and Five are Dismissed for Failure to State a Claim ...........21

a. Plaintiff's ADA Claim in Count Two and Wrongful Termination Claim pursuant to §§ 1981, 1983, and 2000d in Count Three.. . .22

1. ADA & Wrongful Termination pursuant to § 1983...... 23
2. Wrongful Termination Claim pursuant to §§ 1981 and 2000d and Title VII Retaliation Claim pursuant to § 1981......................................24

b. Fair Representation Labor Management Relations Act.........25

1. Collective Bargaining Agreement...................25
2. Duty of Fair Representation .......................26

c. Title VII Retaliation Claim ..............................27

1. Title VII Individual Capacity.......................27
2. Title VII Official Capacity.........................28

5. Exhaustion of Administrative Remedies: EEOC Charge and Right to Sue Letter Requirements.........................................29

a. Plaintiff Adequately Satisfied his EEOC Charge Requirement.. . 29

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b. Plaintiff's Right to Sue Letter Requirement is Waived.........30

B. Subject Matter Jurisdiction over Plaintiff's Fair Representation Labor Management Relations Act Section 301(a)..............................31

III. Conclusion................................................................33

APPENDIX A................................................................36

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I. Background

Pro se Plaintiff Daniel Gurish ("Gurish" or "Plaintiff"), a former employee of Ohio Department of Developmental Disabilities,¹ filed the present employment discrimination and retaliation action against the following: (1) Ohio Department of Developmental Disabilities ("ODDD")² and its employees John Martin, Ginnie Whisman, Laura Frazier, Randy Russell, Wendy DiGregorio, Karen Reich, Donna Adams, and David Montgomery (collectively "ODDD Defendants"); (2) Ohio Department of Administrative Services ("ODAS") and its employees Hugh Quill, Bonnie Cross, and Susan Bythwood Russell (collectively "ODAS Defendants"); (3) Ohio Civil Service Employees Association (collectively "OCSEA") and its employee Robert Robinson ("OCSEA Defendants"); and, (4) Ohio Assistant Attorney General Gregory Patterson. ECF No. 28 at 4-7 (Second Amended Complaint).

Before the Court are ODDD Defendants, ODAS Defendants, and Defendant Gregory Patterson's Motion for Judgment on the Pleadings, pursuant to Fed. R. Civ. P. 12(c) (ECF No. 39); OCSEA Defendants' Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ECF No. 46); Plaintiff's Amended Motion for Summary Judgment (ECF No. 71); Plaintiff's motions to amend his Complaint and add the Ohio Office of Attorney General as a Defendant (ECF Nos. 73; 84); and ODDD Defendants and ODAS Defendants' Motion to Strike Plaintiff's

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Exhibits and Motion for Leave to File Sur-Reply (ECF No. 78).

The Court grants ODDD Defendants, ODAS Defendants, and OCSEA Defendants' motions, in part. Plaintiff's Amended Motion for Summary Judgment and motions to amend his Complaint are denied as moot. ODDD Defendants and ODAS Defendants' Motion to Strike Plaintiff's Exhibits and Motion for Leave to File Sur-Reply is denied as moot.

A. The Parties

ODDD is an agency of the State of Ohio. ECF Nos. 28 at 4; 29 at 2-3. John Martin is the Director of ODDD. ECF Nos. 28 at 5; 29 at 3. Ginnie Whisman is the Deputy Director of Development Centers at ODDD. ECF Nos. 28 at 5; 29 at 3. Laura Frazier is the Labor Relations Administrator at ODDD. ECF Nos. 28 at 5; 29 at 3. Randy Russell is the former Director of Operations at ODDD. ECF Nos. 28 at 6; 29 at 3. Wendy DiGregorio is the Superintendent at ODDD, Warrensville Developmental Center. ECF Nos. 28 at 6; 29 at 3. Karen Reich was employed within Human Resources at ODDD. ECF Nos. 28 at 6; 29 at 3. Donna Adams is a Human Capitalist Management Analyst at ODDD. ECF Nos. 28 at 7; 29 at 4. David Montgomery is the Labor Relations/EEO Officer at ODDD, Warrensville Developmental Center. ECF Nos. 28 at 7; 29 at 4.

ODAS is an agency of the State of Ohio. ECF No. 28 at 5. Hugh Quill is the former Director of ODAS. ECF Nos. 28 at 5; 35 at 1, 3. In its Answer, ODAS explains that Defendant Robert Blair is the current Director of ODAS, Defendant Quill's successor, and thus automatically substitutes Defendant Quill in his official capacity, pursuant to Fed. R. Civ. P.

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25(d).³ Bonnie Cross is the Benefits Coordinator at ODAS. ECF Nos. 28 at 6; 35 at 3. Susan Bythwood Russell is employed at ODAS. ECF Nos. 28 at 6-7; 35 at 4.

OCSEA is an "employee organization," pursuant to Ohio Revised Code § 4117.01(D), which "means any labor or bona fide organization in which public employees participate and that exists for the purpose, in whole or in part, of dealing with public employers concerning grievances, labor disputes, wages, hours, terms, and other conditions of employment." ECF Nos. 28 at 4; 30 at 2 (quoting R.C. § 4117.01(D)). Robert Robinson is a Staff Representative at OCSEA. ECF Nos. 28 at 7; 30 at 3.

Gregory Patterson is an Assistant Attorney General at the Ohio Attorney General's Office. ECF Nos. 28 at 7; 29 at 4.

B. Factual Background

Plaintiff began his employment with ODDD in July 2003 as a "Maintenance Repair Worker II," which is a position subject to a collective bargaining agreement entered into between the State of Ohio and OCSEA. ECF Nos. 28 at 8; 29 at 2; 30 at 2. In November 2008, the ODDD employees elected Plaintiff as President of the Union. ECF No. 28 at 8-9. As Union President, Plaintiff filed a safety complaint with ODDD high-level management and the Occupational Safety and Health Administration ("OSHA") alleging that the employees were improperly operating the Bobcat equipment due to a lack of training. ECF No. 28 at 9.

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Plaintiff claims that, on February 19, 2009, he sustained an injury while operating a Bobcat to remove snow from the sidewalk. As a result of these injuries, he did not return to work for five weeks and filed a workers' compensation claim. ECF No. 28 at 10. Plaintiff further alleges that various Defendants approved of unsafe working conditions, engaged in unethical behavior, and created a hostile environment. ECF No. 28 at 11-12. As a result, Plaintiff resigned as President of the Union. ECF No. 28 at 12.

On October 2, 2009, ODDD issued Plaintiff a non-disciplinary incident Fact Finding Report. ECF No. 28 at 13. The Report indicated that Plaintiff failed to inspect the fire extinguishers in September 2009. ECF No. 28 at 13. Plaintiff contends that Defendant Russell "removed the tags prior to Plaintiff['s] [] inspection and then returned the tags afterwards." ECF No. 28 at 13. Plaintiff alleges that Defendant Russell's actions caused him "great emotional distress, emotional pain and suffering, mental anguish and suicidal thoughts," resulting in Plaintiff taking a two month medical leave. ECF No. 28 at 13. Plaintiff explains that prior to his return, ODDD required him to take a psychological evaluation. ECF No. 28 at 13.

Upon Plaintiff's return and in light of his worker's compensation claim, Plaintiff requested "light duty" accommodations, pursuant to his doctor's advisement. ECF No. 28 at 14. ODDD placed Plaintiff on light-duty work for thirty (30) days. ECF No. 28 at 14. Plaintiff complains that ODDD did not accommodate him with a new position, such as an Account Clerk II position. ECF No. 28 at 14. After thirty (30) days, ODDD denied Plaintiff any further "light duty" accommodations because his condition had not improved. ECF No....