Stanley v. Ohio State Univ. , 2015 Ohio 5555 ( 2015 )


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  • [Cite as Stanley v. Ohio State Univ., 2015-Ohio-5555.]
    
                                                             Court of Claims of Ohio
                                                                              The Ohio Judicial Center
                                                                      65 South Front Street, Third Floor
                                                                                 Columbus, OH 43215
                                                                       614.387.9800 or 1.800.824.8263
                                                                                  www.cco.state.oh.us
    
    
    R. PETER STANLEY
    
                Plaintiff
    
                v.
    
    THE OHIO STATE UNIVERSITY
    
                Defendant
    
    Case No. 2013-00388
    
    Judge Patrick M. McGrath
    Magistrate Anderson M. Renick
    
    ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
    
            {¶1} On September 30, 2014, defendant filed a motion for summary judgment
    pursuant to Civ.R. 56(B). On November 7, 2014, with leave of court, plaintiff filed a
    response. The motion for summary judgment is now before the court for a non-oral
    hearing. L.C.C.R. 4.
            {¶2} Civ.R. 56(C) states, in part, as follows:
            {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
    depositions, answers to interrogatories, written admissions, affidavits, transcripts of
    evidence, and written stipulations of fact, if any, timely filed in the action, show that
    there is no genuine issue as to any material fact and that the moving party is entitled to
    judgment as a matter of law. No evidence or stipulation may be considered except as
    stated in this rule. A summary judgment shall not be rendered unless it appears from
    the evidence or stipulation, and only from the evidence or stipulation, that reasonable
    minds can come to but one conclusion and that conclusion is adverse to the party
    against whom the motion for summary judgment is made, that party being entitled to
    have the evidence or stipulation construed most strongly in the party’s favor.” See also
    Gilbert v. Summit Cty., 
    104 Ohio St. 3d 660
    , 2004-Ohio-7108, citing Temple v. Wean
    United, Inc., 
    50 Ohio St. 2d 317
     (1977).
    Case No. 2013-00388                         -2-                                       ENTRY
    
    
    
           {¶4} Plaintiff’s claims arise from his employment with defendant The Ohio State
    University (OSU) as a maintenance worker for the College of Dentistry. In late July
    2012, maintenance staff reported to Joe Pennington, a maintenance supervisor, that
    plaintiff’s behavior had been “very erratic.” Pennington learned that plaintiff had been
    observed staggering and he appeared drunk. On August 24, 2012, one of plaintiff’s
    co-workers told Pennington that he had discovered a bottle in the freezer of the staff
    refrigerator, that he believed the bottle belonged to plaintiff, and that the contents of the
    bottle smelled like alcohol. Pennington inspected the bottle and, later that afternoon,
    he observed plaintiff put something back in the freezer and walk away with a cup
    containing clear liquid.    Pennington called Scott Burlingame, a human resources
    representative, and then confronted plaintiff.      After first denying that he had been
    drinking alcohol, plaintiff admitted he had been drinking alcohol at work; however, he
    refused to submit to a drug and alcohol screening test. Plaintiff related that he had an
    appointment with a counselor immediately after work.
           {¶5} Plaintiff was placed on administrative leave and a corrective action hearing
    was held, which resulted in plaintiff being removed from his position, effective October
    11, 2012, pursuant to defendant’s Drug-Free Workplace policy.              OSU’s Drug-Free
    Workplace policy bans the “unauthorized use of alcohol by university employees on
    university premises,” and it bans employees from “working under the influence of
    alcohol.” (Exhibit A, Affidavit of David Simpson.) Plaintiff’s removal was subject to a
    collective   bargaining    agreement    (CBA);    however,    upon      review   of   plaintiff’s
    pre-arbitration referral, plaintiff’s union notified him that it had decided not to advance
    the matter through the arbitration process based upon consideration of, among other
    things, the probability of winning the case. (Plaintiff’s Exhibit 1.)
     Case No. 2013-00388                                                              -3-                                                                   ENTRY
    
    
    
                 {¶6} In             his       complaint,               plaintiff         alleges           wrongful             termination,               disability
    discrimination and invasion of privacy.1 Defendant contends that the court does not
    have jurisdiction to consider plaintiff’s claims inasmuch as those claims are subject to
    the CBA.
    
    
    COLLECTIVE BARGAINING AGREEMENT
                 {¶7} R.C. Chapter 4117 establishes a framework for resolving public sector labor
    disputes by creating procedures and remedies to enforce those rights.                                                                                     A CBA
    between a public employer and the bargaining unit “controls all matters related to the
    terms and conditions of employment and, further,                                                            when the collective bargaining
    agreement provides for binding arbitration, R.C. 4117.10(A) recognizes that arbitration
    provides the exclusive remedy for violations of an employee’s employment rights.”
    Gudin v. Western Reserve Psychiatric Hosp., 10th Dist. Franklin No. 00AP-912 (June
    14, 2001).
                 {¶8} The CBA at issue contains a detailed grievance procedure culminating in
    final and binding arbitration of complaints or disputes between defendant and union
    members. (CBA Article 10.5). In his complaint, plaintiff acknowledges that he has
    “exhausted his administrative remedies through the collective bargaining process.”
    (Complaint, ¶ 21.)
                 {¶9} Inasmuch as plaintiff’s employment was subject to a CBA, R.C.
    4117.09(B)(1) specifically creates a right of action over such claims and limits the
    jurisdiction over those claims to the common pleas courts. Id. Accordingly, this court
    has no jurisdiction to decide matters that are subject solely to a final and binding
    
    
    
                 1
                     In his response to defendant’s motion for summary judgment, plaintiff states that he is no longer alleging invasion of privacy. Therefore, that claim is
    dismissed.
     Case No. 2013-00388                           -4-                                     ENTRY
    
    
    
    grievance procedure. Crable v. Ohio Dept. of Youth Servs., 2010-Ohio-788, ¶ 12 (10th
    Dist.).
    
    
    DISABILITY DISCRIMINATION
              {¶10} “There are several theories upon which a plaintiff may base [his] disability
    discrimination claims, including; (1) disparate treatment, or intentional discrimination;
    (2) disparate impact; (3) failure to permit reasonable modifications, and (4) failure to
    make reasonable accommodations.” Reid v. Plainsboro Partners, III, 2010-Ohio-4373,
    ¶ 43 (10th Dist.). Plaintiff alleges both disparate treatment and that OSU failed to offer
    a reasonable accommodation for his alcoholism.
              {¶11} To establish a prima facie case of disability discrimination pursuant to R.C.
    4112.02, plaintiff must demonstrate: “(1) that he or she was disabled; (2) that an
    adverse employment action was taken by an employer, at least in part, because the
    individual was disabled, and; (3) that the person, though disabled, can safely and
    substantially perform the essential functions of the job in question.”            Yamamoto v.
    Midwest Screw Products, Lake App. No. 2000-L-200, 2002-Ohio-3362, citing Hazlett v.
    Martin Chevrolet, Inc., 
    25 Ohio St. 3d 279
    , 281 (1986).
              {¶12} Absent direct evidence, an employee can prove disability discrimination
    circumstantially, using the method of proof established in McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
     (1973). If plaintiff establishes a prima facie case, the burden of
    production shifts to defendant to “articulate some legitimate, nondiscriminatory reason
    for [its action].” Id, at 802. If defendant succeeds in doing so, then the burden shifts
    back to plaintiff to demonstrate that defendant’s proffered reason was not the true
    reason for the employment decision. Id.
              {¶13} With regard to plaintiff’s alleged disability, plaintiff relates that he has been
    diagnosed with PTSD, depression, anxiety, and dissociative disorder; however, he
    contends that OSU discriminated against him based upon alcoholism.
     Case No. 2013-00388                        -5-                                     ENTRY
    
    
    
           {¶14} Federal and state disability discrimination claims, whether brought under
    the Americans with Disabilities Act, 42 U.S.C. 12112 et seq. (ADA) or Ohio’s anti
    discrimination statute, R.C. 4112, are subject to the same evidentiary standards and
    may be evaluated concurrently. Jakubowski v. Christ Hosp., Inc., 
    627 F.3d 195
    , 201
    (6th Cir. 2010). In order to establish a claim for disability discrimination, the plaintiff
    must first establish that he is “disabled” within the meaning of the ADA. McKay v.
    Toyota Motor Mfg., U.S.A., Inc., 
    110 F.3d 369
    , 371 (6th Cir. 1997). The Americans
    With Disabilities Act Amendments Act of 2008 (ADAAA) applies in cases where the
    alleged discriminatory acts occurred after January 1, 2009.           Milholland v. Sumner
    County Bd. of Educ., 
    569 F.3d 562
    , 566 67 (6th Cir. 2009).
           {¶15} Under the ADAAA, “disability” means:
           {¶16} “(A) a physical or mental impairment that substantially limits one or more
    major life activities of such individual;
           {¶17} “(B) a record of such an impairment; or
           {¶18} “(C) being regarded as having such an impairment (as described in
    paragraph (3)).” 42 U.S.C. 12102(1).
           {¶19} Although plaintiff contends that defendant knew that his alcoholism was
    related to his underlying mental health issues, as reported by his treating psychologist
    after the incident, plaintiff’s testimony shows that his alcohol use did not substantially
    interfere with his major life activities. Plaintiff testified that he continued to perform his
    work adequately while he was drinking, and that he received good evaluations during
    the period of time he drank alcohol at work. (Deposition, page 44.) Plaintiff related
    that the only impact drinking alcohol had on his personal life was that it “would slow
    [him] down at the end of the day” and that he would not have as much energy in the
    evening. (Deposition, page 45.) Plaintiff testified that, up through the time that he
    was confronted for drinking at work, he did not believe he was an alcoholic.
    (Deposition, page 45.)
    Case No. 2013-00388                         -6-                                    ENTRY
    
    
    
           {¶20} Based on plaintiff’s testimony, the only reasonable conclusion that can be
    drawn from the undisputed evidence is that plaintiff’s alleged alcoholism does not
    constitute a disability under the ADAAA. The evidence presented does not support an
    inference that plaintiff was removed from his position, at least in part, because of the
    alleged disability. Plaintiff testified that he did not tell anyone at work that he was an
    alcoholic, nor had he been diagnosed as such prior to August 24, 2012. Therefore,
    plaintiff failed to demonstrate a genuine issue of material fact with regard to a prima
    facie case of disability discrimination.
           {¶21} Even if plaintiff’s alcoholism were a disability, he was terminated for
    drinking at work in violation of OSU’s policy, rather than for alcoholism or a mental
    disability. The U.S. 6th Circuit Court of Appeals has noted that “there is a distinction
    between taking an adverse job action for unacceptable misconduct and taking such
    action solely because of a disability, even if the misconduct is ‘caused’ by the disability.”
     Martin v. Barnesville Exempted Village School Dist. Bd. Of Educ., 
    209 F.3d 931
    ,
    934-935 (6th Cir. 2000), citing Maddox v. University of Tennessee, 
    62 F.3d 843
    , 847
    (6th Cir. 1995). “The ADA specifically provides that an employer may hold an alcoholic
    employee to the same performance and behavior standards to which the employer
    holds other employees ‘even if any unsatisfactory performance is related to the
    alcoholism of such employee,’ thereby clearly distinguishing the issue of misconduct
    from one’s status as an alcoholic. 42 U.S.C. § 12114(c)(4).” Id. “The ADA does not
    protect plaintiff from his own bad judgment in drinking on the job.” Id.
           {¶22} Defendant submitted the affidavit of David Simpson, the Labor Relations
    Manager in OSU’s Office of Human Resources. Simpson avers that OSU’s Drug-Free
    Workplace policy bans the “unauthorized use of alcohol by employees on university
    premises” and that drinking by employees during their work hours is unauthorized.
    (Simpson affidavit, Exhibit A.) Plaintiff admitted both that he had been drinking vodka
    during working hours on August 24, 2012 and that prior to the date in question, he
    Case No. 2013-00388                          -7-                               ENTRY
    
    
    
    would take “breaks” during work to drink a couple of beers at nearby pubs or bars.
    (Plaintiff’s Deposition, pages 38-39.) Based upon plaintiff’s testimony, the court finds
    that defendant had a legitimate, non-discriminatory reason to remove plaintiff from his
    position.   Furthermore, plaintiff has not presented any evidence which supports an
    inference that the legitimate reasons offered by OSU were not its true reasons, but
    were a pretext for discrimination. Therefore, defendant is entitled to judgment as a
    matter of law on plaintiff’s claim that defendant failed to make reasonable
    accommodations for his alleged disability.
    
    
    DISPARATE TREATMENT
           {¶23} “At its most basic level, a disparate treatment claim alleges that an
    individual is being treated differently than others.” Reid, supra, at ¶ 45 (10th Dist.),
    citing Teamsters v. United States, 
    431 U.S. 324
    , 335-36 (1977).        “As a result, an
    aggrieved plaintiff must demonstrate that [he] was treated differently than similarly
    situated individuals who do not have disabilities.” Id.
           {¶24} Plaintiff contends that OSU failed to discipline a co-worker, Ernie White,
    after OSU received a report that staff had smelled the odor of alcohol on White.
    White’s deposition and the evidence attached thereto shows that White was confronted
    about those allegations and he received a warning letter on February 11, 2011. As
    noted above, prior to August 24, 2012, OSU had received reports that plaintiff had
    smelled of alcohol during working hours. However, plaintiff was not confronted and
    placed on administrative leave until he was observed with alcohol and admitted that he
    had been drinking at work. More significantly, plaintiff refused to submit to a drug and
    alcohol screening test.
           {¶25} The undisputed evidence demonstrates that plaintiff and White were not
    similarly situated in the relative severity of their violations of OSU’s Drug-Free
    Workplace policy. Moreover, OSU demonstrated that plaintiff cannot satisfy his initial
     Case No. 2013-00388                        -8-                                    ENTRY
    
    
    
    burden of establishing a prima facie case of disability discrimination. Plaintiff has not
    reciprocally demonstrated that a genuine issue exists for trial on that issue. Therefore,
    defendant is entitled to judgment as a matter of law on plaintiff’s disparate treatment
    claim.
             {¶26} For the foregoing reasons, and construing the facts most strongly in
    plaintiff’s favor, the court finds that there is no genuine issue as to any material fact and
    that defendant is entitled to summary judgment as a matter of law.              Accordingly,
    defendant’s motion for summary judgment is GRANTED and judgment is rendered in
    favor of defendant. All previously scheduled events are VACATED. Court costs are
    assessed against plaintiff. The clerk shall serve upon all parties, notice of this judgment
    and its date of entry upon the journal.
    
    
    
                                              _____________________________________
                                              PATRICK M. MCGRATH
                                              Judge
    
    cc:
    
    
    Daniel H. Klos                                Randall W. Knutti
    4591 Indianola Avenue                         Assistant Attorney General
    Columbus, Ohio 43214                          150 East Gay Street, 18th Floor
                                                  Columbus, Ohio 43215-3130
    
    Filed January 6, 2015
    Sent To S.C. Reporter 12/31/15