Joseph Caimona v. Ohio Civil Service Employees ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0434n.06
No. 20-3025
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH CAIMONA, )
) FILED
Plaintiff-Appellant, ) Jul 27, 2020
) DEBORAH S. HUNT, Clerk
v. )
)
OHIO CIVIL SERVICE EMPLOYEES )
ASSOCIATION, AFSCME LOCAL 11, AFL-CIO, )
) ON APPEAL FROM THE
Defendant-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
PUBLIC EMPLOYEES REPRESENTATIVE ) NORTHERN DISTRICT OF
UNION LOCAL 5; BUFFY ANDREWS; ) OHIO
DOUGLAS SOLLITO; CHRISTOPHER MABE; )
JEFF FREEMAN; PRUDENTIAL INSURANCE )
COMPANY OF AMERICA, )
)
Defendants. )
)
BEFORE: SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Plaintiff Joseph Caimona was terminated from his job
with Defendant Ohio Civil Service Employees Association (OCSEA) when he failed to return to
work after his short-term disability ended. On appeal Caimona contends that the district court
erred in granting summary judgment to OCSEA as to his claims for quid pro quo sexual harassment
under Title VII, 42 U.S.C. § 2000e et seq., and breach of the collective bargaining agreement for
discharge without cause under 29 U.S.C. § 185. We do not agree.
No. 20-3025, Caimona v. Ohio Civil Service Employees, et al.
Summary judgment is appropriate if “the movant shows 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). We review the district court’s grant of summary judgment de novo, viewing all the evidence
in the light most favorable to the nonmoving party and drawing “all justifiable inferences” in his
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Under this generous
formulation, the central question is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Id. at 251–52. This case is the latter.
As the district court explained in its 32-page opinion, see Caimona v. OCSEA, No. 4:18-
CV-00785 (N.D. Ohio Dec. 3, 2019), Caimona’s quid pro quo sexual harassment claim fails
because all of the alleged harassing incidents (which are detailed in that opinion and incorporated
by reference here) are based entirely on Caimona’s subjective opinions and conjectures, which do
not satisfy his burden as the nonmovant on summary judgment. See Arendale v. City of Memphis,
519 F.3d 587, 605 (6th Cir. 2008) (“Conclusory assertions, supported only by Plaintiff’s own
opinions, cannot withstand a motion for summary judgment.”). Furthermore, as the district court
pointed out, Caimona “specifically admitted that [his supervisor, Buffy] Andrews never made any
sexual propositions to him or made any sexually suggestive comments about the two of them
getting together.” Additionally, “Caimona admitted at his deposition that Andrews never said
anything to him directly or indirectly indicating she had any sexual interest in him, never kissed
him or tried to do so, never told Caimona that she wanted to have a sexual relationship with him,
never sent him any text messages, emails, photographs, letters, notes, or cards indicating she
wanted to have a sexual relationship with him, never made any sexual propositions to him, never
made any sexually suggestive comments to him about the two of them getting together, and never
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No. 20-3025, Caimona v. Ohio Civil Service Employees, et al.
engaged in any teasing, kidding, or practical jokes with Caimona of a sexual nature.” Thus, as the
district court correctly concluded, “Caimona cannot show that any of the alleged harassment by
Andrews was based on Caimona’s sex,” an essential element of his quid pro quo sexual harassment
claim. See Highlander v. K.F.C. Nat’l Mgmt. Co., 805 F.2d 644, 648 (6th Cir. 1986) (noting that
one of the elements of a quid pro quo sexual harassment claim is “that the harassment complained
of was based on sex”). Even assuming as we must on summary judgment that Andrews
“deliberately” brushed her breasts against Caimona on one occasion and made one salacious
statement about her ex-boyfriend, this does not change the calculus, because Caimona admitted
that Andrews never indicated, directly or indirectly, that she wanted to have a sexual relationship
with Caimona. Nothing in Caimona’s brief on appeal makes a dent in the district court’s thorough
analysis of this issue (or his Title VII hostile work environment claim, which is not challenged on
appeal).
Although Caimona no longer pursues his 29 U.S.C. § 185 claim against Public Employees
Representative Union, Local 5 (PERU) on appeal, he still must establish that the union breached
its duty of fair representation to him in order to pursue his claim that OCSEA breached the
collective bargaining agreement. See Chapman v. United Auto Workers Local 1005, 670 F.3d 677,
682 (6th Cir. 2012) (explaining that “[t]he employee must prove both claims to recover from either
defendant”). Again, the district court’s detailed account of the steps taken by PERU to grieve
Caimona’s termination fully support the conclusion that Caimona failed to raise a genuine issue
of material fact that PERU’s actions were arbitrary. See Crampton v. Kroger Co., 709 F. App’x
807, 808–09 (6th Cir. 2017); Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003).1
PERU’s decision not to submit Caimona’s grievance to arbitration was not “wholly irrational,” see
1
Caimona does not assert that PERU’s actions were discriminatory or in bad faith.
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No. 20-3025, Caimona v. Ohio Civil Service Employees, et al.
id. at 539, given that Caimona refused to provide the medical documentation requested by the
Arbitration Committee. If anything, the request for additional medical documentation verifies that
the union was attempting to fulfill its representational duties.
After all, Caimona’s short-term disability had been terminated as of May 1, 2017, and
OCSEA had ordered Caimona to return to work when it found that out. The union’s request for
something more than a handwritten doctor’s note, allegedly stating that he was unable to return to
work until July 11, 2017, for unknown reasons, submitted to a third party, seems pretty reasonable.
Thus, as the district court determined, “PERU . . . had rational grounds for not proceeding with
Caimona’s case, as OCSEA presented evidence that Caimona failed to respond to its notice that
he had to return to work or risk being terminated . . . [and] [t]here is no evidence that [the grievance]
process was performed in a perfunctory manner.” And, as the district court further concluded,
Caimona cannot proceed on his claim against OCSEA because he cannot prevail on his claim
against PERU. See Crampton, 709 F. App’x at 808–09.
In sum, the district court’s thorough opinion provided a well-reasoned basis for rejecting
each of Caimona’s claims and we therefore AFFIRM the grant of summary judgment to OCSEA
for the reasons stated therein and augmented here.
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