Williams v. Omnisource Corporation et al

Filing 45

Memorandum Opinion: Defendants' OmniSource and Dawson's motion for summary judgment (Doc. No. 35) is granted. Additionally, Defendant Local 20's motion for summary judgment (Doc. No. 37) is also granted. 35 37 Judge Jeffrey J. Helmick on 1/9/2018. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

James Williams,

Case No. 3:14-cv-718
Plaintiff

v.

MEMORANDUM OPINION

OmniSource Corporation, et al.,
Defendants

I. BACKGROUND
James G. Williams was hired by OmniSource Corporation in March 2007. Williams was
employed as a maintenance mechanic at the company’s Hill Avenue facility in Toledo, Ohio. He
became a member of the International Brotherhood of Teamsters Local 20 after being employed
with OmniSource for sixty days. As a member of Local 20, Williams received a copy of the
applicable collective bargaining agreement between OmniSource and the Union. David Dawson
was hired by OmniSource in December 2012 and was the maintenance supervisor for the Hill
Avenue facility during the events at issue.
Williams contends he was harassed by Dawson and other employees as summarized in the
complaint’s statement of relevant facts:
6. Plaintiff states that he was employed by Omnisource as a maintenance
worker/mechanic. At times, his supervisor, Dave Dawson, has grabbed, pushed and
pulled him while working. He has screamed at Plaintiff and chased him with his
arms extended. Specifically, Plaintiff states on one occasion, David Dawson put his
hands on Plaintiff from behind when Plaintiff was holding a lit torch.

7. Plaintiff states that on another occasion, Dave Dawson chased Plaintiff around
with a forklift. In the past, Hector Munoz, a co-worker, has told Plaintiff he is an
“asshole,” and is “worthless,” told Plaintiff to “suck my penis,” and threated
Plaintiff that he would “screw” Plaintiff “in the anus,” in the presence of Dave
Dawson, who took no action as a result. Management was aware of Munoz’s
harassment, which occurred on a daily basis.
8. Plaintiff states that despite these actions being witnesses by other employees and
his supervisor and Plaintiff’s reports of the conduct to the Plant Manager, no
disciplinary action was taken against Defendant Dawson.
9. Thereafter, on September 17, 2013, Defendant Dawson was following Plaintiff
and harassing him. Dawson approached Plaintiff and demanded his resignation.
Plaintiff states that he refused to resign, and felt cornered by Dawson and another
employee. He smacked a nearby railed [sic] and stated that Dawson made him sick.
10. Another Supervisor then was paged and appeared with an off duty Toledo
Police Officer, who escorted Plaintiff from the property. Plaintiff was suspended
until the situation was “figured out.” Plaintiff then suffered a panic attack, and was
hospitalized for four days.
11. Nine days later, Plaintiff states that he was again requested to resign his
employment. He refused.
12. The following day, Plaintiff was arrested at his home following a police report
being filed by Dawson and Omnisource. Plaintiff states that the statements
contained in the police report are false.
(Amended Complaint, Doc. No. 24 at pp. 3-4).
Plaintiff was subsequently terminated from employment from OmniSource and contends
Local 20 did nothing to assist him.
Based upon this background, Williams initiated this litigation asserting the following claims:
(1) assault and battery against OmniSource and Dawson; (2) negligent hiring, detention, and
supervision against OmniSource; (3) disability discrimination under the ADA, 42 U.S.C. § 12112(a)
and O.R.C. § 4112.02(a)(13) against OmniSource; (4) negligent or intentional infliction of emotional
distress, or both against OmniSource and Dawson; (5) defamation against OmniSource and
Dawson; (6) invasion of privacy against OmniSource and Dawson; (7) breach of the collective
bargaining agreement under 29 U.S.C. § 185(a) against OmniSource; and (8) breach of duty of fair
representation against Local 20.
2

This matter is before me on the Defendants’ motions for summary judgment (Doc. Nos. 35
and 37), Plaintiff’s opposition (Doc. Nos. 38 and 39), and Defendants’ replies (Doc. Nos. 43 and
44). This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, the
Defendants’ motions are granted.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the movant demonstrates there is no genuine dispute of
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). All
evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare Corp.,
533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences are drawn in the nonmovant’s favor.
Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is genuine if a
reasonable jury could resolve the dispute and return a verdict in the nonmovant’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if its resolution might
affect the outcome of the case under the governing substantive law. Rogers v. O’Donnell, 737 F.3d 1026,
1030 (6th Cir. 2013).
III. RELEVANT FACTS
Williams testified he taught Dawson how to do work orders after Dawson began working at
OmniSource. (Doc. No. 36-9 at p. 67) Williams stated he did not like Dawson. (Id. at p. 73). He
also testified the harassment by Dawson began about several months after Dawson became his
supervisor. (Id. at p. 79). Williams stated he was harassed by Dawson beginning in the spring of
2013 at which time Dawson’s father was dying. (Id.) Dawson’s father passed away on June 6, 2013.
(Id.) All of the relevant events occurred in 2013.
Williams complained that Dawson would harass him by getting “right in his ear,” follow him
around, and startle him. These incidents were described by Angelo Alfaro, a former co-worker:

3

Q:
All right. Did you every observe anything as to how, regarding how Mr.
Dawson treated Jim Williams?
A:
All I seen was – I called Jim on the radio and said I needed hydraulic fluid in
my forklift. He said, bring it up. I took it up there. We opened it up together, a
little chitchat, bullshit, and then Jim went over to grab some hydraulic fluid and Dave
Dawson walked up and squatted down when Jim was putting oil in and, I mean, got
right in his ear. You could say, what, not even 18 inches from his ear. It was not a
whisper. It was not a yell, but it was like, Jim, how long is this going to take. Is it
going to take you long. I need you over here. I need you to do this. I put you to do
that. Jim was like, give me a minute. Let me put the oil in here and I will be right
with you.
Dawson continued to be in his ear and telling him, hey, how long is this
going to take Jim. Can Angelo do it. I am like, I can’t do it. I’m not a maintenance
man. Jim got up and walked around to the other side of the lift. Dawson was right
on his tail. He came right around again, 18 inches away from his ear and started
going again. Jim, how long is this going to take you. Jim, how long is this going to
take you. Jim said, just let me get this done. I will be right with you. So Jim walks
around and he comes back over. Dawson, again, still on his tail and this probably
went on – he went on the lift probably three times.
Q:

Did Mr. Williams get loud or –

A:

No.

(Doc. No. 36-1 at p. 2). Alfaro also described a second incident:
A:
Another time, I will say this is probably a couple of days later, maybe, a week
at the most, I was driving the forklift in to get serviced. Jim was on the left side of
the maintenance room. He was torching something. I don’t know what he was
torching but he was cutting something with a torch. Mr. Dawson come up on him.
He wasn’t running or anything or anything like that. He just walked up to him and
grabbed Jim and startled him and said Jim. And then Jim fell back with the torch.
That’s when Jim got mad. He said, you can’t be grabbing people like that. I could
have hurt somebody or hurt myself with this. That’s when I just turned and walked
out.

(Id. at pp. 2-3). Mr. Alfaro also testified he experienced being startled by Dawson and advised him
to stop this behavior. (Id.) Alfaro agreed that Williams never complained to him about being
mistreated by Dawson. (Id. at p. 4).
The same incident with the torch was described by plant manager, Jon Kinsman:
4

A:
I was doing my normal rounds with the golf cart and then I had, Dave
Dawson was on the golf cart. And we were coming up. I usually take rounds all
around the yard. That particular day we came across – Jim was sitting and torching
and I stopped the cart and told Dave that again he needed to have a shield on. He
didn’t have his shield on. He came back from behind and tapped James on the
shoulder. And as soon as he touched him on the shoulder James jumped up, turned
around, and got really, really – his demeanor was just really, like mad, just that quick
and I said, James I says, look, you need to calm down. He said something like, the
guy does not have to grab you. I said, James, he didn’t grab you. He tapped you.
I said, if anything, I said, he should have went around to your peripheral
vision or come straight on to get your attention. Because I used to be an operator. I
know when somebody came up from behind me and tapped me usually believe it or
not, I came around with a full swing, if somebody came up behind me. That’s a
reflex for me. I told him he had to be peripheral or in front. He kept getting loud.
Obviously, there were some other people inside of the maintenance shop. I said,
James, let’s go inside the office. Let’s talk in there.
So we all went in there. James was saying, well, you know, you didn’t have to
grab me. I said, look, he didn’t grab you. I asked him if he wanted his union steward
at the time, too, and he said, no, not really. I want to get back to work. I said ok.
But I said, are you sure you don’t want your steward because, I said, obviously you’re
pretty upset about this. But usually when these guys get upset, the first thing I -- if I
take them in the room I ask them if they want their steward there. He said, no, I just
want to get back to work.

(Doc. No. 36-5 at p. 2).
On September 13th, Williams recounted an incident with a baler getting jammed. Williams
was directed by Dawson to remove the belt from the baler. (Id. at 84). Williams asked who was
responsible for the situation and was given an explanation by co-worker Ken Samples. (Id.)
Williams testified there was a discussion regarding the baler and that he (Williams) became “loudly
verbal but I wasn’t yelling.” (Id. at p. 4).
The incident was reported to Krista Zsiros, the Human Resources Manager for
OmniSource. Zsiros investigated and collected statements by employees who witnessed the
incidents. (Doc. No. 36-11 at ¶ 5). The unsigned statement of employee Jon Dale indicated the
arguing between Williams, Hector Munoz, and Ken Samples lasted 45 minutes and that Dawson
tried to stop Williams from arguing. (Id. at Exh. A, p. 1). Statements by Munoz and Samples
5

characterized Williams as “getting out of control going off on everybody,” and “unprofessional and
belligerent.” (Id. at pp. 3-4).
Williams called off work on Monday, September 16th to take care of issues related to his
father’s estate. (Id.) He returned to work on Tuesday, September 17th.
Upon his return to work, Williams contends he was confronted about resigning. (Doc. No.
36-9 at p. 23). Williams could not recall telling other employees he was quitting his job. (Id.)
Williams testified that Dawson wanted his resignation:
A: Him [Dawson] and Hector had me cornered in the kitchen area and they was
both screaming at me, give us your resignation, and that’s when I felt threatened and
I was backed into a corner by two employees.
Dave Dawson, he doesn’t ask for nothing. No. He was just screaming his
head off at me. He just didn’t know what – you know, I wasn’t resigning and I
wasn’t quitting. Man is trying to grab me. I’m just trying to get away from you
before something happens. I’m trying to quell the situation by me taking points off
my record to get away from you.

(Id.)
Q:
Okay, when Mr. Dawson asked you if you were quitting, did you say I’m sick
of your ass, let’s do it?
A:
Yeah, I told him – I told him he literally made me sick. I literally told him he
makes me sick.
Q:

Did you have tools in your hand during this conversation?

A:
I had stuff, a couple things out my locker, like screw drivers and stuff like
that. No big crowbar.
Q:

Okay. What did you have in your hands?

A:
I had a screwdriver, I had a Stanley knife, I had a nail puller, and I had my
laser level, because my waterline in my house broke and my corner -- corner of my
porch sunk down almost two-and-a-half foot. It almost crashed on the ground. I
had to re-block it up, so I needed some specialty tools to get it back in order. So I
needed these for the weekend. My tools are at work.
....
6

Q:
Did you bang anything on the steel railing as Dawson and Hector were
walking down the stairs?
A:
Dave Dawson turned around to scream at me one more time and I had a nail
puller about this big. I smacked it on the railing and I said you literally make me sick.
And that’s all that happened right there. Then he went running like a little girl, Tom,
Tom. And it was, like, you can’t handle a man situation. Why are you in my face six
times in four hours?
Q:

Well, he wasn’t in your face as he was walking down the steps, was he?

A:
Well, no, I made sure Hector was between us. I put space between us. They
wanted me to go first and they wasn’t pushing me off that 24 - - two-and-a-half foot
story set of steps. So Dave was holding the door saying come on, come on. I said,
no. I said, you go. I said, I will go with you to your office, no problem. Then I said,
come on, Hector, let’s go. So I created space between me and Dave, because I didn’t
want him to turn around and punch at me after being - - you know, and my mindset
right there was like, hey, dude, six times you tried to grab me in four hours. I’m
putting space between - - even if I walked with him, I would wait till he got to the
bottom of the steps and I would walk out –down then.

(Id. at p. 24). Upon descending the stairs, Williams sat down in a golf cart and waited. Another
supervisor, Tom Meredith, approached him along with an off-duty police officer and advised
Williams he was suspended until further notice. Williams then left the premises and went home. (Id.
at p. 25).
Dawson’s account of the incident was as follows:
A:
I came in and did my regular duties. I check in with the guys. I got caught
up with something on my desk that I needed. I had to get away from my desk at
approximately 9:30 in the morning. I went down walking through the plant and
went to the balers’ area and I saw Jim. I do believe it was around the balers’
conveyer and feed, and I had walked up to Jim and asked him what he was doing.
And he told me to get out of his face and then I approached Jim again, as he started
walking away. And he told me to leave him alone, to get out of his face.
So I went up to the - - I left that area and went up to the operator’s station
and I spoke with the operator about, you know, how the operation of the balers was
going. I left that area. I was going back through the plant up to the shop. I had
been spoken to by a couple of different people, did you know James was quitting.
Doug was one of those people. I do believe Doug Mulligan was one of those people
and Hector Munos. As I was going back to the shop, I ran into Tom Meredith and
Hector Munos and I mentioned to Tom about James quitting. So Tom Meredith
asked me if James was filling out a letter of resignation, then, if he was quitting. If
that is what you heard.
7

So I then asked Hector if he would go up to the maintenance department
with me to speak with James. I was not sure if James was up there. When I first
went into the shop, you know, I was - - James, you know, saying, James out loud, to
see if he was in the shop area. He was not in the shop area. So I then went upstairs
to their break room area. When I opened up the door, me and Hector, I walked in
the room and James was not there. I peeked around the corner into their locker
room and James was in their locker room. I asked James if he would come out in
this room and I would like to speak to him.
And I asked James if it was true, I heard that you are quitting, and he said,
did you hear that from me. And I said no., But I need to know if that statement is
true. If you are quitting I need you to fill out a letter of resignation, and he was
upset. Then he said, I’m sick of your ass. Let’s go do it. So I left the room and
Hector was behind me as I started down the stairway. I heard this loud bang on the
guard rail. I left the area. He never looked back. I was concerned for my safety, and
when I got outside I think I ran into Tom Meredith and I told him what had
happened, real briefly. So then I left and I went up front to get security, the on-duty
police officer, And then we went back and spoke with James.

(Doc. No. 36-3 at pp. 6-7).
The Union steward, Robert Vasquez testified that he was summoned to speak with Williams
before Meredith and the police officer arrived.
Q:

Do you remember the discussion and what went on when you got there?

A:
For me to go upstairs and try to calm Jim down and from what they told me
to ask him what happened. They said he was being mad, I guess.
Q:
All right. And when you got there did you have a discussion with Jim
Williams?
A:

Yes.

Q:

Okay. And what did you observe about him at that time?

A:
That he had his work clothes on. He had a wrench in his hand and that he
was upset because of what – his supervisor was wanting to talk to him and he didn’t
want to talk to the supervisor.
Q:

Okay. And his supervisor at the time was Dave Dawson; is that correct?

A:

Yes.

Q:
Okay. Do you remember any specifics of what he said the supervisor was
doing or saying to him?

8

A:
Just that he was following him and he wouldn’t leave him alone. That is
what he was upset about and what he told me is why he was mad. He wouldn’t leave
him alone. He kept saying, what’s wrong. Get away from me.

(Doc. No. 36-8 at p. 2). After Williams settled down, Vasquez reported:
A:
Well, then he wanted me to go to talk to the manager and tell them that he
was done. If they would just leave his unemployment alone and he will go his way
and they go their way and just call it over. They would be done.

(Id.) Vasquez also advised him of the suspension and that he had three days to file a grievance. (Id.
at p. 3). Meredith arrived with the off-duty police officer. Vasquez advised Meredith of Williams’
wishes. (Id. at p. 2). Williams was suspended and left the premises.
After Williams went home, he experienced symptoms he believed to be a heart attack. He
proceeded to St. Charles Hospital and was admitted into the psychiatric ward for four days. (Doc.
No. 36-9 at pp. 25-26). Dawson testified that Debra Williams, Mr. Williams’ wife, called in his
absence on September 18th, indicating he had been admitted to the hospital. (Doc. No. 36-3 at p.
7).
After this incident, HR Manager Zsiros conducted an investigation in which she interviewed
Dawson and Munoz. She asked Munoz to write his account of the September 17th incident.
Williams was diagnosed with adjustment disorder and placed on several medications. Zsiros
acknowledged receiving a facsimile from Mr. Williams’ doctor seeking short-term disability. (Doc.
No. 36-10 at p. 10).
On September 25, Zsiros called Williams to discuss the incident. During the telephone
interview, Zsiros was concerned at Williams’ agitated state and troubling statements, including:



“I am going to kill that guy (David Dawson) when I see him.”
“I almost hit him in the face with a crowbar.”
9



“This is the same day that someone went into work and killed 17 people. I don’t want that
to happen so I need to stay away.”

(Doc. No. 36-11 at ¶ 7). Williams also complained about asking Dawson to get away from him and
grabbing people. Zsiros talked to Williams’ co-workers about Dawson’s actions but was unable to
find any corroborating conduct. (Doc. No. 36-10 at pp. 23-24).
After Zsiros spoke with Williams on September 25, she spoke with management. A decision
was made to terminate Williams’ employment. (Id. at pp. 26-28). The next day a conference call to
Williams was put together by Zsiros and included the plant manager, Kinsman, the union
representative, Vasquez, among others. Zsiros explained the options on leaving the company, either
resignation or termination, to Williams. She advised Williams that OmniSource would not contest
his seeking unemployment benefits. (Id. at pp. 29-30). Zsiros stated Williams became agitated at
her comment and hung up on the conference call. (Id. at pp. 31-32).
After the call ended with Williams, Zsiros stated that the business agent, Norm Lewallen
suggested getting a temporary protection order noting a potential workplace safety issue. (Id. at pp.
33-34). Zsiros and Dawson then filed a police report and obtained a temporary protection order to
prevent Williams from coming onto OmniSource property. (Doc. No. 36-11 at ¶ 10).
Williams was notified by a letter, dated October 1, 2013, of his termination effective
September 26, 2013. (Doc. No. 36-9 at p. 120). He set up a meeting with the Union’s business
representative, Norm Lewallen at Lewallen’s office. Williams went to the Lewallen’s office but
never met with Lewallen. Williams did not file a grievance.
IV. OMNISOURCE AND DAWSON’S MOTION FOR SUMMARY JUDGEMENT
A. Assault and Battery
Under Ohio law, assault and battery is defined as “the willful threat or attempt to harm or touch
another offensively, [where that] threat or attempt reasonably places the other in fear of such
contact.” Harris v. United States, 422 F.3d 322, 330 (6th Cir. 2005) (citations omitted). An assault
10

constitutes the beginning of the act, which completed, constitutes battery. See Love v. City of Port
Clinton, 37 Ohio St.3d 98, 99 (1988). Assault requires the actor knew with substantial certainty their
act would bring about harmful or offensive contact. Smith v. John Deere Co., 83 Ohio App.3d 398,
406 (1993). “Contact which is offensive to a reasonable sense of personal dignity is offensive
contact.” Love, at 99, citing Restatement of the Law 2nd, Torts at Section 19.
There is no dispute Dawson touched or tapped Williams on the shoulder to get his attention
on more than one occasion. Angelo Alfaro, Williams’ former co-worker testified Dawson touched
employees in order to get their attention. Williams conceded he did not like being touched but
agreed Dawson did not engage in slapping, punching, or kicking. Williams testified that Dawson
should not have put “his hands on me,” emphasizing, “[y]our employees, you don’t touch your
employees.” (Doc. No. 36-9 at p. 109). Williams did not complain about Dawson’s behavior to
other employees or the HR manager.
At the September 13 incident, Jon Kinsman testified Dawson touched Williams to get his
attention on a safety issue. According to Dawson, Williams told him not to touch him and recalled
one other occasion in which he attempted to get Williams’ attention while in his work area. (Doc.
No. 36-3 at pp. 14-15).
Placing one’s hands on someone’s shoulder to get their attention does not constitute an
assault and battery. See Rice v. Reed, 117 N.E.2d 183, 66 Ohio Law Abs. 385 (1951) (evidence
disclosing merely that defendant placed hands on plaintiff’s shoulder was insufficient to warrant
submitting case to jury). In the context of the workplace and under the circumstances presented,
tapping one’s shoulder to get their attention in a noisy setting does not rise to a willful and harmful
touching. Monrean v. Higbee Dept. Stores, Inc., No. 99-T-0099, 2001 WL 20808 *5 (Ohio App. 2000)
(contact that is offensive to a reasonable sense of personal dignity may be deemed offensive contact),
citing Love, 37 Ohio St.3d at 99. In addition, there is no evidence Dawson intended to injure

11

Williams. See e.g. Matlock v. Ohio Dept. of Liquor Control, 77 Ohio Misc.2d 13, 18 (1996) (intent to
inflict injury is an essential element to assault and battery).
As Williams is unable to establish a viable cause of action for assault and battery based on
the evidence presented, I find the Defendants are entitled to summary judgment on this claim.
B. Negligent Hiring, Detention, and Supervision
To establish a claim for negligent hiring, retention, and supervision, a plaintiff must
demonstrate: “(1) the existence of an employment relationship; (2) the employee’s incompetence;
(3) the employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or
omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the
employee as the proximate cause of his injuries.” Retuerto v. Berea Moving Storage and Logistics, 28
N.E.3d 392, 404 (Ohio App. 2015) (citation omitted). Establishing evidence as to each factor is
necessary to survive a summary judgment challenge.
The harassment alleged by Plaintiff includes Dawson tapping him on his shoulder or
following him around to question him on what he was doing.

Mr. Alfaro testified he saw Dawson

following Williams on one occasion but that Williams never complained about being harassed.
While the behavior by Dawson may have constituted annoying or unprofessional behavior, it does
not rise to the level of incompetence for purposes of a negligent hiring and supervision claim.
Beckloff v. Amcor Rigid Plastics, USA, LLC, __N.E.3d__, 2017 WL 2709808 at *10 (Ohio App. Jun.
23, 2017). But see Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 493 (1991) (finding sexual harassment
to be per se incompetent behavior).
Assuming arguendo that Dawson’s conduct rose to the level of harassment, there is
insufficient evidence presented that OmniSource was aware or should have been aware of this
“harassment.” Williams did not complain to HR or co-workers about this behavior. Nor does the
Plaintiff present any evidence that OmniSource should have been aware of Dawson’s alleged

12

propensity of harassing behavior. See Herndon v. Torres, 249 F.Supp.3d 878, 888-89 (N.D. Ohio
2017).
As the Plaintiff’s evidence falls short on several of these factors, the Defendants are entitled
to summary judgment on this claim.
C. Disability Discrimination under the ADA and Ohio Law
A claim for a perceived disability exists under the Americans with Disabilities Act, 42 U.S.C. §
12112(a) and Ohio Revised Code § 4112.02(A). Both the ADA and Ohio statute prohibit
discrimination based upon a disability. Federal and state claims are considered in tandem on this
issue. See Knapp v. City of Columbus, 192 Fed. Appx. 323, 328 (6th Cir. 2006). The burden-shifting
framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973) is the analysis
implemented in a discrimination cause of action.
To establish a prima facie case of discrimination, Williams must establish that OmniSource (1)
regarded him as disabled; (2) he was otherwise qualified for the job, with or without reasonable
accommodation, and (3) he suffered an adverse action because of his disability. Johnson v. University
Hospitals Physicial Services, 617 Fed. Appx. 487, 490-91 (6th Cir. 2015), citing Demyanovich v. Cadon
Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014). Assuming a prima facie case can be
established, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason
for its action. If the defendant can meet this factor, the burden shifts back to the plaintiff to
establish the proffered reason was a pretext for discrimination.
As noted by the Sixth Circuit in Johnson, “[A] person is ‘regarded as’ disabled within the
meaning of the ADA if a covered entity mistakenly believes that the person’s actual, nonlimiting
impairment substantially limits one or more major life activities.” 617 Fed. Appx. at 491, quoting
Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22 (1999).
Here, Williams’ amended complaint states:
Defendant perceived him as having a disabling mental disease. Plaintiff states that
the harassment he endured from Dawson caused Plaintiff great anxiety, which
13

Defendant perceived as a disability. After the September 17, 2013 harassment and
assault by Dawson, Plaintiff suffered a panic attack and was hospitalized for four
days. Following his hospitalization, Defendant OmniSource terminated Plaintiff
allegedly because he was menacing to other workers.
(Doc. No. 24 at ¶ 25).
Williams’ claim of being “regarded as” having a disability is undermined by timing and his
own conduct. First, Williams’ hospitalization occurred after his suspension by OmniSource. It is
undisputed that Debra Williams, his wife, contacted Dawson to advise her husband had been
hospitalized following the September 17th incident.
Next, Williams’ conversation with the HR Manager Zsiros on September 25 raised
continued concerns about workplace safety such that she conferred with management and the
decision was made to terminate Williams’ employment. In a conference call with Williams on
September 26, Zsiros offered him an opportunity to resign and indicated the Defendant would not
challenge unemployment benefits. Williams became angry and hung up on the call. At the time of
Williams’ suspension, he told the Union representative, Vasquez, that he was ready to be done.
Third, an employee’s illness or incapacity does not automatically translate to a disability. As
noted by this Circuit, an “employer’s perception that health problems are adversely affecting an
employee’s job performance is not tantamount to regarding that employee as disabled.” Johnson, 617
Fed. Appx at 491, citing Sullivan v. River Valley Sch. Dist., 197 F.3d at 810.
Based on the record before me, I do not find the Defendant perceived Williams as disabled.
See Neely v. Benchmark Family Servs., 640 Fed. Appx. 429, 436-36 (6th Cir. 2016) (“it is not enough that
the employer is simply aware of the plaintiff’s symptoms, rather the plaintiff must show that the
employer regarded the individual as ‘impaired’ within the meaning of the ADA”) (citation omitted).
The Plaintiff’s express wish at the time of his suspension was that he “was done,” and this
information was conveyed to the HR Manager. Williams’ misconduct and resulting suspension
does not exempt him from the Defendant’s workplace rules. See Dockery v. City of Chattanooga, 134

14

F.3d 370 at *3 (6th Cir. 1997) (“[e]mployers must be allowed to terminate their employees on account
of misconduct ‘irrespective of whether the employee is handicapped’ ”) (citations omitted).
Therefore, as Williams is unable to establish a prima facie case of disability discrimination,
the Defendant is entitled to summary judgment on this branch of its motion.
D. Negligent and Intentional Infliction of Emotional Distress
Ohio recognizes independent causes of action for negligent infliction of emotional distress and
intentional infliction of emotional distress. Winkle v. Zettler Funeral Homes, Inc., 182 Ohio App.3d
195, 206 (2009). The elements of negligent infliction of emotional distress include: (1) the plaintiff
experiencing a real or impending danger; (2) the defendant’s conduct negligently caused the
dangerous incident; and (3) the defendant’s conduct was the proximate cause of the serious and
reasonably foreseeable emotional distress. Paugh v. Hanks, 6 Ohio St.3d 72, 80 (1983). The elements
of intentional infliction of emotional distress include: (1) the defendant intended to cause serious
emotional distress; (2) that defendant’s conduct was extreme and outrageous; and (3) the defendant’s
conduct was the proximate cause of the resulting serious emotional distress. Phung v. Waste Mgmt.,
71 Ohio St.3d 408, 410 (1994).
The conduct at issue involves claims of assault and battery, false statements in a police
report, and being escorted off the Defendant’s premises by an off-duty police officer.
Ohio’s Sixth District Court of Appeals recently addressed conduct underlying a claim
sounding in intentional infliction of emotional distress:
[M]ajor outrage is essential to the tort; and the mere fact that the actor knows that
the other will regard the conduct as insulting, or will have his feelings hurt, is not
enough. Only conduct that is truly outrageous, intolerable and beyond the bounds
of decency is actionable; persons are expected to be hardened to a considerable
degree of inconsiderate, annoying and insulting behavior. Insults, foul language,
hostile tempers, and even threats must sometimes be tolerated in our rough and
tumble society. (Internal citations omitted.)
Beckloff v. Amcor Rigid Plastics USA, LLC, __N.E.2d__, 2017 WL 2709808 at *9 (Ohio App. June 23,
2017) (citation omitted).
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Having determined Dawson’s conduct did not constitute assault and battery, I do not find
his conduct to be outrageous or intolerable. The same is true for the statements in the police report
as Williams testified he hit the steel railing with one of his tools. His animosity towards Dawson was
reflected in his discussion with the HR Manager in their conversation of September 25, 2013. In
addition, the termination of employment in this circumstance does not rise to the level of
outrageous conduct. See Beckloff, 2017 WL at *9-10 (no outrageous behavior where employee was
counseled about his performance, his supervisor did not physically assault him, but the employee
was ultimately terminated).
Accordingly, Defendants OmniSource and Dawson are entitled to summary judgment on
this claim as a matter of law.
E. Defamation
“Defamation is a false publication that injures a person’s reputation, exposes him to public
hatred, contempt, ridicule, shame or disgrace; or affects him adversely in his trade or business.”
Sygula v. Regency Hosp. of Cleveland E., 64 N.E.3d 458, 465 (Ohio App. 2016) (citation omitted). To
establish defamation a plaintiff must set forth the following elements: “(1) a false and defamatory
statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting to
at least negligence on the part of the publisher; and (4) the existence of special harm caused by the
publication.” Graham v. Best Buy Stores, L.P., 298 Fed. Appx. 487, 498 (6th Cir. 2008). A qualified
privilege exists as follows:
[C]ircumstances exist, or are reasonably believed by the defendant to exist, which
cast on him the duty of making a communication to a certain other person to whom
he makes such communication in the performance of such duty, or [where] the
person is so situated that it becomes right in the interests of society that he should
tell third persons certain facts, which he in good faith proceeds to do. A & B-Abell
Elevator Co. v. Columbus/Cent. Ohio Bldg & Constr. Trades Council, 73 Ohio St.3d 1, 651
N.E.2d 1283, 1290 (1995); see also Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299,
313 (6th Cir. 2000).

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Id. Where a qualified or conditional privilege exists, the burden shifts to the plaintiff to establish
the defamatory statements were made with “actual malice.” Lakota Loc. School Dist. Bd. of Edn. v.
Brickner, 108 Ohio App.3d 637, 647 (1996).
In his amended complaint, Williams contends he was falsely accused of: (1) “menacing” in a
police report; (2) banging a metal crowbar against a railing; (3) threating to “kill that guy [Dawson]
when he sees him,”; (4) threatening to hit Dawson in the face with a crowbar; and (5) referencing
mass shooting incidents when speaking with the HR Manager. (Doc. No. 24 at ¶ 33). The
defamatory statements alluded to are contained in the police report of September 25, 2013. (Doc.
No. 36-9 at p. 121-22).
At the time of the September 17 incident, Williams was suspended and escorted from the
premises due to threatening behavior towards Dawson. In his deposition, Williams acknowledged
hitting his tool on the railing as he walked behind Dawson and another supervisor. Williams denied
making threatening statements towards Dawson or alluding to mass shootings during his
conversation with the HR Manager on September 25.
As Williams’ employer, OmniSource had concerns about workplace violence and suspended
the Plaintiff on September 17. An investigation was conducted by the HR Manager during Williams’
absence. Zsiros spoke with Williams on September 25 for approximately 29 minutes about the
incident and a plan to move forward. During a conference call with Zsiros the following day,
Williams was given a choice between resigning and being terminated, at which time he became
agitated and hung up on the call. It was after this call that Zsiros and Dawson met with the
OmniSource off-duty police officer.
The record before me supports a privilege argument. Statements to law enforcement which
“bear some reasonable relation to the activity reported” are deemed privileged. Lasater v. Vidahl, 979
N.E.2d 828, 831 (Ohio App. 2012) citing DiCorpor Inc. v. Sweeney, 69 Ohio St.3d 497, 506 (1994).
The burden shifts to Williams to establish that the defamatory statements were made with “actual
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malice.” As the Plaintiff has failed to establish the statements were made by the Defendants with
actual malice, the Defendants are entitled to judgment on the claim of defamation.
F. Invasion of Privacy
Ohio recognizes a common-law action for invasion of privacy under either a false light invasion
theory or one of unreasonable intrusion. As the Plaintiff’s amended complaint and response to the
summary judgment motion focus on the false light invasion variant, I analyze the Defendants’
motion under that theory.
The Supreme Court of Ohio characterizes a claim for false light invasion of privacy as
follows:
One who gives publicity to a matter concerning another that places the other before
the public in a false light is subject to liability to the other for invasion of privacy if
(a) the false light in which the other was placed would be highly offensive to a
reasonable person and (b) the actor had knowledge of or acted with reckless
disregard as to the falsity of the publicized matter and the false light in which the
other would be placed. (Restatement of the Law 2d, Torts (1977), Section 652E,
adopted.)

Welling v. Weinfeld, 113 Ohio St.3d 464 at syllabus (2007). The Welling Court also recognized the
difficulty in proving a false light claim. Id at. 471.
In his amended complaint, Williams alleges the “Defendants held Plaintiff in a false light
and/or wrongfully intruded into his private activities in such a manner as to cause outrage or mental
suffering, shame, humiliation to a person of ordinary sensibilities. Defendants invaded Plaintiff’s
privacy to his damage.” (Doc. No. 24 at ¶ 39). Williams argues publicizing an attack on another
employee impairs his ability to be hired by a new employer. Additionally, the Plaintiff contends he
was greatly offended and damaged by the public remarks in the police report, which is available as a
public record. I disagree.
Publicity has been defined in the following manner:
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[T]he matter is made public, by communicating it to the public at large, or to so
many persons that the matter must be regarded as substantially certain to become
one of public knowledge. The difference is not one of the means of communication,
which may be oral, written or by other means. It is one of a communication that
reaches, or is sure to reach, the public.

Id. at 471-72, citing Restatement of the Law 2d, Torts, Section 652D, Comment a. While a police
report is available to those seeking that information, I do not find it is a communication that is
necessarily certain to reach the public. See Linetsky v. City of Solon, Case No. 1:16-cv-52, 2016 WL
6893276 *15 (N.D. Ohio 2016).
Assuming the police report is considered certain to reach the public, the statements therein
are subject to a qualified privilege as they concerned matters of a common business interest and
were relevant to the safety of their employees. See Evely v. Carlton Co., 4 Ohio St.3d 163, 165 (1983).
See also Lasater v. Vidahl, 979 N.E.2d at 831. Finally, the Plaintiff has failed to establish the
statements made in police report were objectively false. See Dautartas v. Abbott Laboratories, 2012Ohio-1709, 2012 WL 1344030 *15 (Ohio App. 2012).
For these reasons, the Defendants are entitled to summary judgment on the invasion of
privacy claims.
V. OMNISOURCE AND LOCAL 20’S MOTIONS REGARDING THE HYBRID CLAIMS
A.

The Claim Against OmniSource-Breach of Contract
Under Section 301 of the Labor-Management Relations Act, an employee may bring an

action against his employer for breach of the contract and simultaneously institute suit against a
union for breach of the duty of fair representation in a hybrid action:
Such a suit, as a formal matter, comprises two causes of action. The suit against the
employer rests on § 301, since the employee is alleging a breach of the collective
bargaining agreement. The suit against the union is one for breach of the union’s
duty of fair representation, which is implied under the scheme of the National Labor
Relations Act. “Yet the two claims are inextricably interdependent. ‘To prevail
19

against either the company or the Union, . . . [employee-plaintiffs] must not only
show that their discharge was contrary to the contract but must also carry the burden
of demonstrating a breach of duty by the Union.’ ” Mitchell, 451 U.S. at 66-67, 101
S.Ct. at 1565-1566 (Stewart, J., concurring in the judgment), quoting Hines, 424 U.S.
at 570-571, 96 S.Ct. at 1059.
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
In this case, OmniSource seeks summary judgment on the hybrid action as Williams failed to
file a grievance as required by the CBA. The Plaintiff charges OmniSource terminated him in
violation of the company’s work rules and without a hearing.
OmniSource’s employee guideline sets forth a list of 35 categories of prohibited conduct. One
of those categories includes “[t]hreatening, fighting or instigating a fight on Company premises.”
(Doc. No. 36-9 at p. 67-68). The guidelines on work rules also state “[a]n employee who fails to
maintain proper standards of conduct or who violates any of the following rules shall be subject to
disciplinary action, up to and including termination.” (Id.)
The CBA between OmniSource, Toledo Yard Division and Local 20 addresses the grievance
procedure as follows:
ARTICLE VII
GRIEVANCE PROCEDURE
Section 1. Grievance Procedure. Should differences arise between the
Company and the Union or any employee of the Company as to the meaning or
application of the provisions of this Agreement, such differences shall be settled in
the following manner:
Step 1. The aggrieved employee or employees shall take their
grievance up with their supervisor within three (3) working days of its occurrence.
Employees may have the Shop Steward present on any grievance. If a satisfactory
settlement is not effected with the supervisor within three (3) working days, the
employee shall submit such grievance to the Chief Steward in writing within three (3)
working days of the supervisor’s answer.
Step 2. If no satisfactory adjustment is agreed upon, the matter shall
be referred by the Chief Steward to the General manager of the Company or some
other executive officer of the Company, with authority to act, who shall review the
alleged grievance and offer a decision within ten (10) working day after receipt of the
same and shall give its answer in writing to the Chief Steward and Grievant.
....
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Section 2. If such claim or controversy is not submitted to the Grievance
Procedure within three (3) working days after the happening (or knowledge thereof)
giving rise thereto, such claim, dispute, or controversy shall be considered as barred and
completely disposed of both from the standpoint of the Union and the affected
employee or employees. However, appeal from discharge must be made in writing with a
copy to the Company and one to the Union within three (3) working days.
Section 3. Since the parties have hereby provided for the sole and exclusive
method by which to resolve their differences, there shall be no strikes, slowdowns,
lockouts or work stoppage of any kind during the term of this Agreement.
Section 4. No employee shall be discharged, except for dishonesty, being
under the influence of liquor, illegal drugs, or possession or firearms and/or deadly
weapons, without first being given a hearing by the Company, with a representative
of the Local Union.
(Doc. No. 36-9 at pp. 88-89). (Emphasis added).
Under the terms of the CBA and in order to challenge OmniSource’s decision to suspend or
terminate him, Williams had to avail himself of the grievance procedure. He failed to do so.
Even assuming he filed a timely grievance, Williams has not established that OmniSource
breached the contract. OmniSource’s employee guideline expressly warns of disciplinary action for
disobeying proper standards of conduct, “up to and including termination.” (Doc. No. 36-9 at p.
67). Article II of the CBA also speaks to management rights as follows:
Except as explicitly limited by a specific provision of this Agreement, the Company
reserves, and shall continue to have, the right to manage the plant and direct the
work force in accordance with its judgment including, but not limited to, the rights
to reprimand, suspend, discharge, or otherwise discipline employees for cause; . . . .
(Doc. No. 36-9 at p. 80).
In this instance, exhausting grievance procedures is a requirement. Winston v. General Drivers,
Warehouseman & Helpers, Local Union No. 89, 93 F.3d 251, 255 (6th Cir. 1996). There is no evidence of
a grievance being filed after the suspension or termination nor is it argued the grievance would have
been futile. Accordingly, I find OmniSource is entitled to judgment as a matter of law on the breach
of contract claim.

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B. The Claims Against Local 20-Breach of Duty of Fair Representation
The duty of fair representation by a bargaining representative includes serving “the interests of
all members without hostility or discrimination toward any, to exercise its discretion with complete
good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967).
A union’s behavior is arbitrary where “the union’s behavior is so far outside a ‘wide range of
reasonableness.’” . . . “as to be irrational.” Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 76 (1991)
(internal citations omitted).

Actions constituting bad faith have been characterized as “ ‘act[ing]

with an improper intent, purpose, or motive . . . encompassing[ing] fraud, dishonesty, and other
intentionally misleading conduct.” Merritt v. International Ass’n of Machinists and Aerospace Workers, 613
F.3d 609, 619 (6th Cir. 2010) (citations omitted). The grievance process, however, need not be
“error-free.” Garrison v. Cassens Transport Co., 334 F.3d 528, 538 (6th Cir. 2003), cert. denied, 540 U.S.
1179 (2004).
In his amended complaint, Williams contends he never met with the Union’s business agent
despite appearing in person at his office and making multiple attempts to reach him by phone. He
states that “the Union acted negligently, arbitrarily, and in a perfunctory fashion and in a manner
devoid of rational basis.” (Doc. No. 24 at ¶ 47).
After receiving his termination letter, Williams testified as follows:
Q: After receiving this correspondence, did you contact anyone at OmniSource
to discuss it?
A: No. Norm Lewallen called me for a meeting about that that following
Monday. I forgot which date it would have been, after I received it. Set up an
appointment for me to file a grievance over it. I went to the office. I signed the
ledger in. He wouldn’t come out of his office and I tried to call him ten times after
that and he wouldn’t return my calls. That’s where I failed to have union help and I
couldn’t understand why my name is not on this as having a meeting about my
termination. My name should be on here if we had a formal meeting.
Q: Well, there’s nothing in this letter indicating you had a formal meeting, is
there?
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A: I said I should have had that option.

(Doc. No. 36-9 at p. 32). Williams further testified:
Q: Who at the company did not let you file a grievance?
A: Bob Vasquez.
Q: Okay.
A: Norm Lewallen. But they are union officials.
Q: Okay.
A: Norm don’t work there.
Q: I understand.
A: Norm is the one that called me up and said meet me Monday and wouldn’t
come out of his office. I called him ten times afterwards, and I figured, well - - then
I got the letter with his name on it that I was terminated, so why did he even call me?
Q: To your knowledge, did anyone associated with the company, like the
supervisors, managers, human resources prevent you from filing a grievance?
A: Bob Vasquez.
Q: Okay.
A: And Norm Lewallen.

(Id. at p. 50). Norm Lewallen testified there was an arranged meeting:
Q: All right. And do you know how that meeting was set up?
A: I told him to come in my office at 9:00 a.m. and that would be the time we
would met with him and discuss what’s going on.
Q: Did he call you a few days prior or do you know?
A: That’s how we set the meeting up. He called me. Until today, I have never
seen him.
Q: Okay. Do you remember talking with him about anything before you called
and set up the meeting?
A: Yes.
Q: What do you recall that you said?
23

A: I told him your time is limited for filling out a grievance and you need to get
that done.
Q: Did he make a comment once you told him that?
A: Just, I said, come and see me.
Q: All right. Now, on the day you set for the meeting, did you meet with Mr.
Williams then?
A: I was there. He didn’t show up.
Q: All right. So you were at the Teamsters hall?
A: Yes.
Q: All right. And your testimony is that Mr. Williams didn’t show up at all?
A: Correct.
Q: All right. Did you look for him in the hall at that point or –
A: No.
Q: Okay. All right. And if he were to show up, would there be a receptionist
that he would talk to to say that he was there or how would - A: There are several people to direct you to the office you got to go to.
Q: Okay. All right. So you’re saying no one called you to say he was there, no
one directed him to you?
A: No.
Q: Okay.
A: I was just in my office all morning that day.
Q: Okay. Do you have any - - did you have any other contact with Mr. Williams
after that day.
A: I don’t think so.
Q: Okay. And you’re saying that no grievance was ever filed?
A: Correct.
Q: Okay.
A: We keep every signed grievance every filed at our Local. They all go in the
same place so.

(Doc. No. 36-6 at p. 3).
24

There is no dispute that a meeting was set up as between the Union representative and the
Plaintiff. Lewallen advised Williams of the timeline in which to file the grievance. There is also no
dispute the parties failed to meet. This failure to meet, without more, is not “so far outside a wide
range of reasonableness that it is ‘wholly irrational.’” O’Neill, 499 U.S. at 78. It does not rise to the
level of constituting arbitrary conduct by the Union. See Burneson v. Thistledown, Inc., 2007 WL
1339839 *3 (6th Cir. 2007). See Garrison, 334 F.3d at 538 (“[m]ere negligence on the part of a union
does not satisfy this requirement,” citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73
(1990)).
Finally, Williams does not present arguments or evidence that the filing of a grievance would
have been futile, thereby relieving him of the grievance procedure. See Glover v. St. Louis-San
Francisco Ry. Co., 393 U.S. 324, 330 (1969). Accordingly, I find the Defendant Union is entitled to
summary judgment on the breach of duty of fair representation as a matter of law.
VI. CONCLUSION
For the reasons stated above, Defendants’ OmniSource and Dawson’s motion for summary
judgment (Doc. No. 35) is granted. Additionally, Defendant Local 20’s motion for summary
judgment (Doc. No. 37) is also granted. This case is closed.

So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

25