Hinton v. Trinity Highway Products, LLC

Filing 53

Memorandum Opinion and Order. The Court grants Defendant's 38 Motion for summary judgment, denies Plaintiff's 49 Motion for sanctions, and dismisses the complaint with prejudice. Magistrate Judge Nancy A. Vecchiarelli on 5/8/2013. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALAN HINTON,

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Plaintiff,
v.
TRINITY HIGHWAY PRODUCTS, LLC,
Defendant.

CASE NO. 4:12-cv-1063

MAGISTRATE JUDGE
NANCY A. VECCHIARELLI

MEMORANDUM OF OPINION
Docs. No. 38, 49

Before the court is the motion of defendant, Trinity Highway Products, LLC
(“Trinity”), for summary judgment. Doc. No. 38. Plaintiff, Alan Hinton (“Hinton”),
opposes Trinity’s motion. Doc. No. 45. Also before the court is the motion of Hinton for
sanctions. Doc. No. 49. Trinity opposes Hinton’s motion. Doc. No. 52. For the
reasons given below, the court GRANTS defendant’s motion, DENIES plaintiff’s motion,
and dismisses the complaint with prejudice.
I.
With respect to Trinity’s motion for summary judgment, the court views the
facts, as it must, in the light most favorable to Hinton, the party opposing the motion for
summary judgment.
Trinity employed Hinton beginning about August 2, 1993. Hinton’s employment
at Trinity was governed by a collective bargaining agreement (“Agreement”) between
Trinity and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-

Industrial and Service Workers International Union, Local 4960 (“the union”). See
Deposition of Hinton (“Deposition”), Defendant’s motion, Exh. A, pp. 51, 97; Agreement,
Exh. 2 to Declaration of Peggy Davis (“Davis Declaration”), Defendant’s motion, Exh. B.
The Agreement established a four-step process for resolving grievances: (1) meetings
with the employee’s supervisor, then plant superintendent and plant manager; (2) a
written grievance submitted to the plant manager; (3) a meeting between the
international representative of the union and executives of the company; and (4)
impartial arbitration. Agreement at 26-32. Hinton also understood that under Trinity’s
work rules, insubordination was grounds for discharge. Deposition at 41, 46.
Hinton had a history of disciplinary actions prior to January 2012. On March 22,
2000, he received a written warning and a three-day suspension fighting or attempting
to injure another employee. Deposition at 52-53 and Employee Written Warning Notice,
March 22, 2000, Deposition, Exh. 4. He received a written warning for unsatisfactory
work performance on July 2, 2010 and received a written warning for carelessness on
August 17, 2010. Deposition at 55-56, 57; Employee Written Warning Notice, July 2,
2010, Deposition, Exh. 5; Employee Written Warning Notice, August 17, 2010,
Deposition, Exh. 6. On March 18, 2011, he received a written warning and one-day
suspension for calling a co-worker a “f___ing faggot” and for insubordination.
Deposition at 59-60 and Deposition Exh. 7. On July 19, 2011, he was warned about
leaving his work area without authorization. Deposition at 65-66 and Employee
Awareness For, July 19, 2011, Deposition Exh. 8.
In January 2012, Hinton was working at Trinity as a kettle helper. A kettle
helper assists in galvanizing objects in a 42-foot long kettle filled with molten zinc. The
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kettle helper is required to clean the kettle by skimming and raking impurities from the
zinc and is required to sweep the area around the kettle to recover any stray zinc.
On January 25, 2012, Hinton’s supervisor, Larry Clay (“Clay”), told Hinton to
clean the kettle at the beginning of Hinton’s shift at about 3:15 p.m. Deposition at 72.
Hinton, upset that the kettle helper on the previous shift, Bobby Jenkins (“Jenkins”), had
left the kettle dirty, responded, “F___ Bobby Jenkins; I’ll leave him the way he left me.”
Id. at 72-73. Sometime after this response, Hinton obeyed Clay and cleaned the kettle.
Id. at 73.
Hinton’s shift was scheduled to end at midnight. Toward the end of his shift,
just before 11:30 p.m., Hinton cleaned the kettle again, but after scraping zinc from the
top of the kettle, he deliberately left the scraped zinc in the kettle for Jenkins to remove
when Jenkins started his shift. Id. at 73-75. At 11:30, Clay saw that the kettle was dirty
and that Hinton was not in the kettle area. Declaration of Clay (“Clay Declaration”),
Defendant’s Motion, Exh. C, p. 2. Clay found Hinton in the lunchroom with his safety
equipment removed and told Hinton to clean the kettle before the end of his shift. Id. At
about midnight, Clay inspected the kettle, saw that it was dirty, and learned that Hinton
had left for the day. Id. Clay reported to his supervisor, Ted Messer (“Messer”), that
Hinton had refused to clean the kettle as instructed. Id.
Upon Clay’s report, Messer watched a surveillance video of the kettle which
was time and date stamped “11:00 p.m. to 12:00 a.m.” from January 25-26, 2012 (“the
video”). Declaration of Messer (“Messer Declaration”), Defendant’s Motion, Exh. D, p. 2.
The video showed that Hinton did not clean the kettle between 11:30 p.m. and midnight
on January 25-26, 2012. Id.
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Messer consulted with Peggy Davis (“Davis”), the Human Resources Manager,
and Jerry Bennett (“Bennett”), the Plant Manager. Id. On the basis of Clay’s report and
the video, Messer and Bennett fired Hinton for insubordination. Id.
Hinton filed a grievance over his dismissal. Deposition at 33. According to
Hinton, when Clay ordered him to sweep the kettle down, he went to the kettle to obey
but found that the kettle had already been cleaned. Deposition at 74. He also
contended that the video on which Messer and Bennett relied in firing him was from
January 24, 2012, not January 25, 2012. Id.
Trinity showed the video to the union. In addition, because Hinton challenged
the date of the video, Trinity asked the company that installed and maintained Trinity’s
surveillance system, YPS Integrated Systems (“YPS”), to inspect the video system and
the video. Declaration of Davis (“David Declaration”), Defendant’s Motion, Exh. B, p. 3;
Letter of Lester T. Zatko to Dan Moore, March 19, 2012 (“Letter”), Davis Declaration,
Exh. 3; E-mail chain between Daniel Moore and Lester Zatko, March 20-21, 2012 (“emails”), Davis Declaration, Exh. 4; and Messer Declaration at 3. YPS concluded that
the surveillance system was working properly and that it properly recorded the time and
date. Letter and Messer Declaration at 3. Trinity also received a certification from
DigiMerge, the manufacturer of the video surveillance system, that if the surveillance
video displayed a date and time, that date and time had not been altered. E-Mails and
Messer Declaration at 3.
Trinity offered Hinton a last chance agreement to avoid termination, and the
union recommended that Hinton accept it. Deposition at 97-99. Hinton declined.
Deposition at 98-99. The union did not seek arbitration. Davis Declaration at 4. Hinton
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was, therefore, terminated.
Hinton filed the present action in state court on March 26, 2012, and Trinity,
relying upon diversity jurisdiction, removed the case to federal court on April 30, 2012.
Hinton asserts a single cause of action in his complaint, that Trinity discharged him
because of his age in violation of Ohio Rev. Code Ch. 4112. Trinity denies Hinton’s
allegation. On March 13, 2013, Trinity filed the instant motion for summary judgment,
and Hinton opposes Trinity’s motion.
II.
Summary judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56. The moving party can meet this burden in two ways: by presenting
sufficient evidence to indicate there is no genuine issue of material fact; or by arguing
the non-moving party, after adequate time for discovery, has failed 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.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
Once the moving party has met its burden, the non-moving party may not rest
upon the mere allegations or denials of his pleadings, but must set forth through
competent and material evidence specific facts showing that there is a genuine issue for
trial. See Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995). The nonmoving
party may oppose a proper summary judgment motion “by any of the kinds of
evidentiary material listed in Rule 56(c), except the mere pleadings themselves,” id., or
by any other evidentiary material admissible at trial, Horta v. Sullivan, 4 F.3d 2, 8 (1st
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Cir. 1993). See also Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, 10A, § 2721 (1998). Conclusory allegations of an affidavit do not create
specific fact disputes for summary judgment purposes. Lujan v. Nat’l Wildlife Fed'n, 497
U.S. 871 888-89 (1990).
The trial court has no “duty to search the entire record to establish that it is
bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472,
1476 (6th Cir. 1989). That is, the nonmoving party has an affirmative duty to direct the
court’s attention to specific evidence upon which it seeks to rely. Al-Qudhai’een v.
America West Airlines, Inc., 267 F. Supp.2d 841, 845 (S.D. Ohio 2003) (citing In re
Morris, 260 F.3d 654, 665 (6th Cir. 2001)). The lack of such a response by the
nonmoving party may result in an automatic grant of summary judgment. Reeves v.
Fox Television Network, 983 F.Supp. 703, 709 (N.D. Ohio 1997).
When evaluating a motion for summary judgment, “the inferences to be drawn
from the underlying facts . . . must be viewed in the light most favorable to . . . the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see
also Aetna Ins. Co. v. Loveland Gas & Elec. Co., 369 F.2d 648 (6th Cir. 1966). In
addition, the Court “does not weigh the evidence or make credibility determinations.” Id.
This includes taking the non-moving party’s uncontradicted allegations as true and
giving the benefit of the doubt to the nonmoving party’s assertions when they conflict
with those of the movant. Bishop v. Wood, 426 U.S. 341 (1976); Bosely v. City of
Euclid, 496 F.2d 193, 197 (6th Cir. 1974). However, “the mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be insufficient; there must
be evidence on which the jury could reasonably find for the [non-moving party].”
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Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986). In other words, the court
should determine “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. Where a nonmovant relies “merely on allegations,” the court may
not accept those allegations as fact. Chappell, 585 F.3d at 906.
III.
Hinton alleges that Trinity discharged him because of his age in violation of
Ohio Rev. Code Ch. 4112. Ohio Rev Code § 4112.02 (“§ 4112.02") provides in relevant
part as follows:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the . . . age . . . of any person, to discharge
without just cause . . . or otherwise to discriminate against that person with
respect to hire, tenure, terms, conditions, or privileges of employment, or any
matter directly or indirectly related to employment.
Ohio Rev. Code § 4112.14(B) (“§ 4114.14(B)”) provides a cause of action to enforce the
provisions of § 4112.02.
Under Ohio law, there is a statutory condition precedent to invoking the cause
of action at § 4114.14(B):
(C) The cause of action described in division (B) of this section and any
remedies available pursuant to sections 4112.01 to 4112.11 of the Revised
Code shall not be available in the case of discharges where the employee has
available to the employee the opportunity to arbitrate the discharge or where a
discharge has been arbitrated and has been found to be for just cause.
Ohio Rev. Code § 41124.14(C) (“§ 4114.14(C)”). An employee has an opportunity to
arbitrate if a collective bargaining agreement provides for arbitration and the decision to
arbitrate is vested in the employee’s union. See Cramton v. Siemens Energy &
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Automation, Inc., 2009 WL 2524689, at *4 (S.D. Ohio Aug. 17, 2009). To avoid abuses
of that authority by the union, an employee who believes that a union unfairly decided
not to arbitrate his discrimination claim may nevertheless assert a cause of action
pursuant to § 4114.14(B) by bringing the cause of action against both the employer and
the union. Sutterlin v. Mansfield Plumbing Products, Inc., 2001 WL 310633, at *1 (Ohio
App. March 26, 2001). In such a case, the employee must prevail over both the
employer and the union. Id. In the cause of action against the union, the employee
must demonstrate a breach of duty by the union. Id.
In the present case, Hinton had an opportunity to arbitrate his dispute with
Trinity, and his union declined to arbitrate. If Hinton believed that this decision was a
breach of the union’s duty to represent him, then he could have asserted his age
discrimination action pursuant to § 4114.14(B) against both Trinity and the union.
Hinton did not, however, assert such an action against the union. He is barred by §
4114.14(C), therefore, from asserting such a cause of action against Trinity. For this
reason, Hinton’s cause of action must be dismissed.
But even if Hinton were not barred from asserting his cause of action, he would
be unable to prevail on the merits on the record before the court. “In analyzing claims
arising under Ohio Rev Code § 4112, Ohio courts have adopted the framework
established in federal case law concerning Title VII and the Age Discrimination in
Employment act ("ADEA"). Peters v. Lincoln Electric Co., 285 F.3d 456, 469 (2002)
(citing Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights
Comm'n, 66 Ohio St.2d 192, 196, 421 N.E.2d 128, 131 (1981), and Mauzy v. Kelly
Servs., Inc., 75 Ohio St.3d 578, 582, 664 N.E.2d 1272, 1276 (1996)). A plaintiff may
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prove discrimination because of age by direct or circumstantial evidence. Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009).
In the present case, Hinton does not present any direct evidence of age
discrimination. Thus, if he is to establish a prima facie case of age discrimination and
avoid summary judgment, he must do so by circumstantial evidence.
A plaintiff seeking to prove discrimination by circumstantial evidence must use
the burden-shifting framework of McDonnel Douglas Corp. v. Green, 411 U.S. 792
(1973), to establish a prima facie case of discrimination. This framework requires a
plaintiff to demonstrate the following: (1) he was at least 40 years old at the time of the
alleged discrimination; (2) he was subjected to an adverse employment action; (3) he
was qualified for the position; and (4) he was either replaced by a person outside the
protected class or treated differently than similarly-situated individuals. Policastro v.
Northwest Airlines, Inc. 297 F.3d 535, 538–39 (6th Cir. 2002).
If plaintiff succeeds in establishing a prima facie case, the burden of production
shifts to the defendant to articulate a nondiscriminatory reason for its action. Harris v.
Metro. Gov't of Nashville & Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010).
The burden then shifts back to the plaintiff to demonstrate that the defendant's proffered
reason is a mere pretext for intentional age discrimination. Id. Ultimately, however,
plaintiff must demonstrate “by a preponderance of the evidence . . . that age was the
‘but-for’ cause of the challenged employer decision.“ Gross, 557 U.S. at 177–78. It is
not enough to demonstrate that age was a factor in the defendant’s decision. Plaintiff
must demonstrate that without the factor of age, the unfavorable action would not have
been taken.
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Hinton does not meet his burden in demonstrating a prima facie case of age
discrimination by circumstantial evidence, nor does the record support such a position.
Hinton meets only three of the four factors necessary to establish a prima facie case.
The evidence of record demonstrates (1) that Hinton was at least 40 years old at the
time of the alleged discrimination and (2) that he was subjected to an adverse
employment action. Moreover, defendant does not argue that Hinton was unqualified
for his position as kettle helper. Hinton does not, however, either assert or demonstrate
that he was replaced by a person outside the protected class or treated differently than
similarly-situated individuals.
Even if this court assumes that Hinton did establish a prima facie case of age
discrimination, Trinity articulates a nondiscriminatory reason for terminating Hinton, i.e.,
Hinton’s insubordination. Trinity also advances evidence tending to support
insubordination as a legitimate reason for its decision, and Hinton offers no evidence
that the reason was pretextual. In particular, Hinton offers no evidence to support his
belief that the date and time stamped on the video were incorrect.
Not only does Hinton fail to produce any evidence that Trinity’s
nondiscriminatory reason for terminating him was pretextual, Hinton conceded in his
deposition that age was not a but-for cause of his termination:
Q. But there was nothing you felt during your employment, other than getting
discharged, that was discrimination on the basis of age?
A. Well, it wasn’t nothing about age, it was about -- it had something to do
with it and the money I was making and all the overtime I was working. That
had a lot to do with it.
Q. But what I’m saying is the only facts that you have to support that is your
belief that age had something to do with it. There’s nothing anybody said -10

A. Like I say, you know, I think age had a little something to do with it and
whatnot. Like I said, because of my job, I had one of the easiest jobs in the
plant.
Q. You had an easy job that paid a lot and people wanted that job and they
wanted -A.

There you go.

Q.

I just want to make sure that I got it straight.

A.

There you go. You know what I was saying all along.

Q.

If I could testify --

A.

Come on.

Q. So you believe that you were discharged because you had a job that
everybody else wanted.
A.

A lot of people wanted my job.

Q.

Your job paid well and wasn’t that hard.

A.

Right.

Q. And so people wanted that job, and the company could save money by
getting rid of you?
A.

That’s one the reasons why [sic].

Q.

And so age was just because of seniority, you had seniority --

A.

Right.

Q.

So it wasn’t age, it was seniority?

A.

Yes.

Deposition at 107-08.
Hinton’s own testimony, therefore, rebuts any allegation that Trinity
discriminated against him on the basis of age. Morover, as Trinity points out, seniority
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and age are conceptually distinct in Title VII and ADEA analyses, and seniority may not
be used as a proxy for age in finding liability pursuant to Title VII and the ADEA. See
the discussion in Hazen Paper Co. v. Biggins, 507 U.S. 604, 608-13 (1993). Hinton’s
concession and allegation that Trinity discharged him because of his seniority, rather
than his age, is fatal to his claim pursuant to § 4114.14(B), as it precludes finding that
age was a “but-for” cause of his dismissal. Thus, the record does not support Hinton’s
claim of age discrimination.
For the reasons given above, the court grants Trinity’s motion for summary
judgment.
IV.
Hinton’s motion for sanctions alleges that Trinity ignored the court’s order to
provide him with the videotape of Hinton’s January 25, 2012 shift, showing the kettle
area from 3 p.m. through midnight. According to Hinton, the videotape offered to him
showed only the kettle area from 11 p.m. through midnight on that date. Hinton
concludes that because Trinity violated the court’s order, it should be sanctioned.1
On March 28, 2013, the court issued an order in response to Hinton’s request to
lift the protective order in place in this case and to compel defendant to provide the shift
videotape showing the kettle area from January 25, 2012. The court’s order said in
relevant part as follows:
Within seven days from the date of the entry of this order, defendant shall
contact Hinton and inform him of whether the January 25, 2012 surveillance
1

The nature of the requested sanction is difficult to determine. Hinton requests
“that defendant action be dismissed with prejudice . . . .” Plaintiff’s motion. As Hinton
filed this action, his request is puzzling.
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video covers the entire period of time, between 3 p.m. and midnight, depicting
Hinton's workstation or inform defendant of the period of time the surveillance
video depicts. Defendant shall make a copy of the January 25, 2012
surveillance video in VHS or DVD format compatible for viewing on a television.
Defendant shall then contact Hinton and arrange for a time for Hinton to come
to the offices of defendant’s attorney and view the surveillance video on a
television screen. Hinton shall go to the offices of defendant’s attorney at the
appointed time and view the prepared surveillance video. If the video plays
properly, defendant shall then provide that copy to Hinton and Hinton shall sign
a receipt stating that he received the surveillance video and that it played
properly when he viewed it in the offices of defendant’s counsel. Defense
counsel shall retain the original receipt and also provide a copy of the receipt to
Hinton. If defense counsel does not have the means to permit Hinton to view
the video in his office, defense counsel shall contact the court’s deputy and
arrange for the showing of the video in chambers.
Order, March 28, 2013, p. 2. Doc. No. 43.
Hinton and Trinity’s counsel arranged for Hinton to view the videotape from
January 25, 2012 at counsel’s office. Hinton alleges the following: “Plaintiff was led to
believe by Atty Gerak that [the] video was complete, [but] upon arrival to the law office
Atty Billington stated that the video for 1-25-12 was only from 11 p.m. to 12 a.m.”
Plaintiff’s motion (spelling and punctuation altered from the original). This allegation is
conclusory. Hinton fails to describe his conversation with attorney Gerak. Hinton then
viewed the videotape. According to Hinton, the videotape was out of his sight for ten to
fifteen minutes. When he was handed a videotape and asked to sign for it, Hinton
refused on the ground that he could not be sure that it was the same videotape that he
had just viewed, since it had been out of his sight. Plaintiff’s Response, Doc. No. 50, p.
1.
Pursuant to Federal Rule of Civil Procedure 16(f) (“Rule 16(f)”), the court may
require a party that fails to obey a scheduling or pretrial order to “pay the reasonable
expenses incurred because of any noncompliance with this rule, including attorney’s
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fees, unless the judge finds that the noncompliance was substantially justified . . . .”
Rule 16(f) also allows the Court to make any just order provided for in Federal Rule of
Civil Procedure 37(b)(2)(B), (C) or (D), including precluding a disobedient party from
proffering evidence on a certain issue or claim or rendering default judgment against the
disobedient party.
Hinton fails to demonstrate that Trinity violated the court’s order. The court did
not order Trinity to give Hinton a videotape of the entire shift from 3 p.m. to midnight.
Rather, it ordered Trinity to provide Hinton a copy of what it had. Hinton does not
demonstrate that Trinity had a videotape more extensive than the one it showed him at
the office of its counsel. As Hinton fails to demonstrate that Trinity disobeyed the
court’s order, sanctions against Trinity are not warranted.2
As Hinton fails to demonstrate that Trinity violated the court’s order, the court
denies Hinton’s motion for sanctions.
V.
Hinton fails to demonstrate that Trinity disobeyed the court’s order. For this
reason, the court DENIES Hinton’s motion for sanctions. Hinton’s claim of age

2

Moreover, with respect to the substance of this case, the time from 3 p.m. to 11
p.m. in the area of the kettle on January 25, 2012 is irrelevant. The only relevant period
is from 11:30 p.m. to midnight, during which time Clay found the kettle dirty, told Hinton
to clean it, and was obeyed or not obeyed before the end of Hinton’s shift at midnight.
Trinity showed Hinton a tape of the portion of Hinton’s January 25, 2012 shift that is
relevant to his case and offered him a videotape that it represented to be a copy of the
videotape it had shown him. Hinton could easily have aksed that Trinity’s counsel again
allow him to view a portion of the videotape it offered him to ensure that it was the
videotape he had seen before either signing or refusing to sign for the videotape or
signed a receipt after noting that the video had been out of his sight for fifteen minutes.
Hinton does not allege that he did this.
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discrimination is barred by § 4114.14(C) because he had the opportunity to arbitrate the
discharge. Alternatively, viewing the evidence in the light most favorable to Hinton,
Trinity is entitled to judgment. For these reasons, the court GRANTS Trinity’s motion
for summary judgment and dismisses Hinton’s complaint with prejudice.
IT IS SO ORDERED.

Date: May 8, 2013

s/ Nancy A. Vecchiarelli
U.S. MAGISTRATE JUDGE

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