Hogan v. Kokosing Constr. Co.

• Decision Date: 29 September 2011
• Docket Number: Case No. 2:08–CV–1052.
• Citation: 836 F.Supp.2d 583
• Parties: Elbert HOGAN, Plaintiff v. KOKOSING CONSTRUCTION COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

836 F.Supp.2d 583

Elbert HOGAN, Plaintiff

v.KOKOSING CONSTRUCTION COMPANY, Defendant.

Case No. 2:08–CV–1052.

United States District Court,

S.D. Ohio,

Eastern Division.

Sept. 29, 2011.

Donald R. Murphy, Cleveland, OH, for Plaintiff.

Evelyn P. Schonberg, Ryan Neumeyer, Ross, Brittain & Schonberg Co., LPA, Cleveland, OH, for Defendant.

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

This case was originally filed October 6, 2008, as a “Complaint [for] Wrongful Termination,” Case No.08CVH01131 in the Mt. Vernon Municipal Court, Knox County, Ohio. Doc. 3–1. In it, Plaintiff Elbert Hogan sought reinstatement “to his former position and job title” with Defendant Kokosing Construction and “compensatory damages at the rate of $27.00 per hour” from August 2008. Id. By notice filed November 7, 2008 (Doc. 2), Defendant removed the case to this court on grounds that the Complaint alleged violation of Section 301 of the Federal Labor–Management Relations Act, 29 U.S.C. § 185, over which this court has jurisdiction pursuant to 28 U.S.C. § 1441. ¹

Thereafter, ruling in response to Kokosing's motion to dismiss or for summary judgment (Doc. 5), the Court concluded that removal was proper because the “LMRA, 29 U.S.C. § 185, preempts Plaintiffs state law claim” where, as here, that claim is based on rights created by his union's CBA (collective bargaining agreement) with Defendant Kokosing. Opinion and Order, Doc. 22, pp. 4–5.8. The Court further concluded, however, that the LMRA permits claims like Plaintiff's only through exhaustion of available administrative remedies (normally grievance and/ or arbitration procedures provided by the applicable CBA) or through a so-called “hybrid § 301/fair representation claim” (see Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990); DelCostello v. Int'l B'hd of Teamsters, 462 U.S. 151, 163–65, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)), in each of which the plaintiff was required to plead and prove both “that the employer's action violated the terms of the collective-bargaining agreement and also that the union breached its duty of fair representation.” Doc. 22, pp. 5–6; Chauffeurs, 494 U.S. at 564, 110 S.Ct. 1339.

Upon examination of the Complaint and other matter properly considered on Defendant's motion to dismiss, the Court then concluded that Plaintiff had failed both to include either “direct or inferential allegations that he exhausted grievance procedures and administrative remedies,” thus failing to allege violation of the applicable CBA (Doc. 22, pp. 6–7, 8), or adequately to allege his union's breach of “its duty of fair representation.” (Doc. 22, pp. 7–8, 8). The Court therefore found that “the Complaint fail[ed] to state a claim upon which Plaintiff could recover;” but the Court granted Plaintiff leave to file an amended complaint within fourteen days, only failing which would the Defendant's motion to dismiss be granted. Doc. 22, pp. 8–9, filed 9/29/09.

The above ruling eventually led to the Plaintiff's Amended Complaint [for] Wrongful Termination as filed June 10, 2010 (Doc. 35), as well as to Defendant's Answer filed June 21, 2010 (Doc. 37) and to the Defendant's Motion for Summary Judgment filed January 13, 2011 (Doc. 44) that is now before the Court for consideration together with additional memoranda in support and opposition (Docs. 48, 49) and other pertinent materials on file in the case.

In accordance with the applicable federal rule, summary judgment is appropriate here “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the nonmoving party and must refrain from making credibility determinations or weighing evidence). The movant, in this case the Defendant Kokosing, has the burden of establishing there are no genuine issues of material fact; however, that may be accomplished by demonstrating that the non-moving party, i.e. Plaintiff Hogan, lacks evidence to support an essential element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir.1993).

In support of its motion, Defendant Kokosing asserts that the record here does not contain sufficient evidence to establish a genuine issue, either that Kokosing's actions with respect to Plaintiff violated the applicable collective-bargaining agreement, or that the failure of Plaintiff's union to pursue his complaint about such actions violated the union's duty of fair representation. Doc. 44, p. 1, ff. Upon either one or both of those grounds, Defendant contends it is entitled to summary judgment dismissing Plaintiff's action. Id., p. 13.

As is made clear in the Chauffeurs and DelCostello cases cited above, as well as in this Court's earlier opinion here (Doc. 22, p. 6), those are both necessary prerequisites to Plaintiff's hybrid § 301 proceeding in this court.² Defendant has thus identified two elements essential to the Plaintiff's right to proceed elements that he, the party opposing this motion, must both plead and prove.

Summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. See Celotex Corp. at 322, 106 S.Ct. 2548; see also Matsushita Electronic Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In addition, in Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989), our circuit recognizes several further principles now applicable to summary judgment practice, among which are the following, also pertinent here. In responding to a summary judgment motion, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Ibid. (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In other words, the non-moving party (here, the Plaintiff) “must adduce more than a mere scintilla of evidence in order to overcome such a motion.” Ibid. (citing Liberty Lobby, inter alia ). Also, “[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Id. at 1479–80 (citing Frito–Lay, Inc. v. Willoughby, 863 F.2d 1029 (D.C.Cir.1988)).³

In arguing for and against the present motion, the parties both concentrate on the question of whether Plaintiff's union violated its duty of fair representation when it refused to process Plaintiff's grievance; and there is language in a number of cases which might be argued to indicate that this question of fair representation should be examined first. See, e.g., Chauffeurs, Teamsters and Helpers, Local No. 391 at 564, 110 S.Ct. 1339;⁴Alford v. General Motors Corp., 926 F.2d 528, 531 (6th Cir.1991). ⁵ However, those cases are distinguishable on their facts and/or different procedural posture from the case before the Court here; and there is ample other authority applicable to hybrid § 301 claims for a court in these circumstances to proceed directly to the question of breach of the CBA and to decide the motion on the basis that there is no genuine issue respecting the plaintiff-employee's inability to make that necessary showing. See, e.g., White v. Anchor Motor Freight, Inc., 899 F.2d 555, 560 (6th Cir.1990); ⁶Higgins v. International Union, Security, Police, Fire Professionals of America, 398 F.3d 384, 388 (6th Cir.2005).⁷

In this case, Plaintiff has elected, as he is permitted to do,⁸ to sue only his former employer and not his union. For that reason and because, here, the question of the union's fair representation logically turns in part, if not wholly, upon the existence of an arguable breach of the collective-bargaining agreement in the first place, the Court considers it more appropriate to determine first whether the record discloses a genuine issue of the Defendant employer's breach of the CBA with respect to the facts and circumstances alleged in Plaintiffs Amended Complaint.⁹

In the memorandum supporting its motion for summary judgment, Defendant Kokosing twice refers directly to, and relies on, the collective-bargaining agreement under which Plaintiff was employed (Hogan Dep., Ex. A, Doc. 42–1), asserting in effect that there was, and is, no provision of that controlling document which required it to reinstate Defendant as an active employee in the circumstances he alleges here, i.e., after completion of his medical leave receiving workers compensation benefits for his job-related injury. Doc. 44, pp. 9, 12. Defendant points specifically to the language of Article III, Sections ¹⁰ 14, 17, and 19(a) as giving it the right to “select the employees whom it desires to employ,” and “the sole discretion to determine the number of men to be employed,” without being “mandated to employ any particular worker” and leaving it “free to hire or recall any worker it chooses.” Id., p. 9. Further, at page 12 of its memorandum, Defendant relies again on the language of the same CBA provisions, as well as on Article III, Section 20, to support the assertions that it had “authority and right to layoff...