Harbolt v. Steel of West Virginia, Inc., Civil Action No. 3:07-0661.

Decision Date06 July 2009
Docket NumberCivil Action No. 3:07-0661.
Citation640 F.Supp.2d 803
PartiesJames HARBOLT, Plaintiff, v. STEEL OF WEST VIRGINIA, INC., a Delaware Corporation, Defendant.
CourtU.S. District Court — Southern District of West Virginia

Timothy P. Rosinsky, Rosinsky Law Office, Huntington, WV, for Plaintiff.

Christopher L. Slaughter, Steptoe & Johnson, Huntington, WV, H. Toney Stroud, Steptoe & Johnson, Charleston, WV, Tracy L. Turner, Steptoe & Johnson, Columbus, OH, for Defendant.


ROBERT C. CHAMBERS, District Judge.

Pending before the Court are Defendant Steel of West Virginia, Inc.'s Motion for Summary Judgment (doc. 41) and Motion to Strike (doc. 72). For the following reasons, the Court GRANTS the Motion for Summary Judgment and DENIES as moot the Motion to Strike.


Defendant hired Plaintiff to work as a laborer in 2002. Plaintiff was also a member of the Local 37 Steelworkers union. On October 27, 2005, Plaintiff was operating the saw on the universal mill, or U-mill, through which steel bars pass for final cleaning and straightening. Plaintiff's job was to make sure that the "guides" on the U-mill were functioning properly. A problem developed with the guides, and someone instructed Plaintiff to change them. Plaintiff claims that, while performing this task, he slipped on a greasy floor and slid or landed three to four feet under the U-mill, but was able to catch himself prior to falling into a pit located beneath it. Plaintiff states he injured his back and knee in the fall. According to Plaintiff, there were "gobs of grease" on the floor, so much that "sometimes you can scoop it up with a shovel," because it "flies off" the bearings of the U-mill. October 17, 2008 Deposition of James Harbolt, at 74. He further alleges that grease sometimes "splatter[ed] . . . 15, 20 feet away from [the U-mill]" and that there was grease on the floor "24/7." Id. at 75. During his deposition, Plaintiff stated that the floor next to the U-mill was "an ice rink." Id. at 74.

Defendant primarily used power washers to remove grease from the floor.1 These power washers were available throughout the steel mill, including the U-mill area, and were available for use by employees at any time. Plaintiff contends, however, that use of the power washers "makes [the situation] ten times worse" because the grease "mixe[s] with [the] water" and forms "a greasy residue," causing people to slip every day. Id. at 76, 80. Plaintiff further alleges he informed several Defendant supervisors and officials and the union president about the perceived problem. He states that, in particular, he complained to one of his supervisors, Larry Black, "a bunch of times." Id. at 84. Plaintiff further claims that Defendant officials responded, "We'll see what we can do," but ultimately did nothing regarding the grease and water problem other than place some type of posting about it on a company bulletin board. Id. at 140. Somewhat paradoxically, however, Plaintiff also complains that "[t]he floors were not power washed on a daily basis," but rather only "when the entire steel mill was shut down, or just the U-Mill was shut down." Plaintiff's Memorandum in Support of Opposition, at 2 (internal citations omitted).

Plaintiff also testified that he believed that the lack of handrails on the U-mill made it unsafe and that they would have prevented him from falling underneath it. He claims he told "probably all of [his supervisors,]" although he does not remember telling any of them in particular. October 17, 2008 Deposition of James Harbolt, at 172. Plaintiff alleges that whichever supervisors he told about the perceived need for handrails, they did not address it. He further claims that the U-mill lacked necessary handholds, although he does not indicate that he brought this supposed problem to the attention of any management personnel.

Plaintiff returned from his first injury in March or April 2006, only to suffer a second round of injuries in December of that year, this time to his shoulder, neck, and chest. Plaintiff again was unable to work. Like his first set of injuries, these injuries were also covered by workers' compensation. Plaintiff planned that he would return from his injuries in February 2007. On February 27, 2007, Plaintiff visited his treating physician, Dr. Paul Craig. Because Plaintiff had not yet had the MRI required for him to return to work, Dr. Craig was forced to continue to keep him out of work.

Defendant's Human Resources Manager, Larry Gue, contacted Dr. Craig and asked that Plaintiff be released to "light duty" work. Dr. Craig agreed and prepared light duty restrictions for Plaintiff. After receiving these restrictions, Mr. Gue contacted Dave McMellon, Superintendent of the Finish and Fabrication Department, and informed him of Plaintiff's restrictions. The two agreed that Plaintiff was able to work in the office answering telephones. Mr. Gue then contacted Plaintiff and informed him that he was to report to work at the beginning of his next regularly scheduled shift, on March 2, 2007, to answer phones in the mill office.

Sometime between Plaintiff's second injury and his return on March 2, 2007, another employee for Defendant reported to management that he had previously bought approximately fifteen to twenty pain pills for seven dollars apiece from Plaintiff. This employee made similar allegations against two other employees. After an investigation revealed the other two accused employees possessed prescription narcotics in an amount sufficient to engage in the alleged sales, both were terminated. As for Plaintiff, Mr. Gue and Mr. McMellon conferred and decided that Plaintiff should be investigated upon his return to work.

Plaintiff reported to the mill office on March 2 as directed. Three others were there: Mr. McMellon; Paul Preece, a union representative; and Christopher Artrip, Manager of Defendant's Environmental Health and Safety Program. Mr. McMellon directed Plaintiff to empty his pockets. Mr. Preece asked why Plaintiff needed to empty his pockets,2 and Mr. McMellon informed Mr. Preece and Plaintiff of the allegations made against Plaintiff. Plaintiff asked Mr. Preece if he should comply, and Mr. Preece advised Plaintiff to comply if he had nothing to hide. Plaintiff then emptied his pockets, which proved to contain no drugs. The parties dispute whether Plaintiff consented to this search. At his deposition, Plaintiff conceded that he was not physically forced to empty his pockets and that he did so only after speaking with Mr. Preece. However, he also maintained that he "really had no choice." November 3, 2008 Deposition of James Harbolt, at 32.

Mr. McMellon then told Plaintiff he wished to search his locker, to which Plaintiff consented. On the way to the locker, Mr. McMellon informed Plaintiff that he was suspended. The locker also proved to contain no drugs. Plaintiff contends that this portion of the investigation occurred during a shift change, and was therefore witnessed by "everybody." Id. at 132.

Next, Mr. McMellon advised Plaintiff that he wished to search his vehicle. Plaintiff and Mr. Preece objected on the ground that his vehicle was parked across the street on a credit union's parking lot, which the pair believed was not company property. Mr. McMellon informed them that Defendant in fact owned the lot. When they arrived at the vehicle, Plaintiff stated: "Here, I don't want you in my vehicle tearing it up. I'll get [the prescription drugs]." Id. at 38. Plaintiff explained at his deposition that at that point he "reached in [the vehicle] and got the prescription." Id. According to Plaintiff, as he was retrieving the drugs from his vehicle, Mr. McMellon opened the trunk, and perhaps a back door, and began searching on his own. Mr. McMellon then directed everyone to accompany him to Mr. Gue's office. Mr. McMellon informed Mr. Gue that Plaintiff had possessed, in his vehicle, two types of prescription narcotic drugs in quantities in excess of what Plaintiff had been prescribed to take on a daily basis. Mr. Gue then reiterated Mr. McMellon's earlier statement that Plaintiff was suspended. Initially, Mr. Gue told Plaintiff that all of his benefits were "ceased or cut or no more." Id. at 46. After speaking with Mr. Preece, however, Mr. Gue stated that he would "have to check on his medical or whatever." Id. He also kept one of each of his pills, with Plaintiff's permission, although Plaintiff claims he did not later return them as agreed.

At his deposition, Plaintiff testified that he was aware of no rule or provision of the collective bargaining agreement that prohibited an employee from possessing, on company grounds, more prescription medication than he could consume during his shift. He also stated that Defendant was aware that he had medications of these types because they had been prescribed by the company doctor.

In a letter dated April 23, 2007, Defendant terminated Plaintiff's employment. The letter gave three reasons for Plaintiff's termination. First, it claimed Plaintiff had sold drugs to a co-worker while at work. Second, it pointed out that Plaintiff had possessed, on company property, pain pills in excess of what he could consume during his shift, based on his prescription. Third, the letter observed that Plaintiff had purchased two sets of different pain pills within three days of each other in May 2006, which the letter described as "doubl[ing] up." Declaration of Larry Gue, Ex. 2. This letter was written by Bruce Groff, Defendant's Vice President of Administration. According to Plaintiff, Mr. Groff accused him of being a "drug dealer" and a "drug user" during his suspension and subsequent termination, through his reinstatement after the arbitration proceeding. November 3, 2008 Deposition of James Harbolt, at 114. Specifically, Plaintiff states that Mr. Groff made these statements during the investigation and in the...

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