Stewart v. Steward Trumbull Memorial Hospital, Inc. et al

Filing 55

Memorandum of Opinion and Order For the reasons set forth herein, Local 2804 is dismissed from the litigation, and the remaining Defendants' Motions for Summary Judgment (ECF Nos. 44 , 45 ) are granted. A judgment entry shall issue. Judge Benita Y. Pearson on 7/25/2019. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JUANA STEWART,
Plaintiff,
v.
STEWARD TRUMBULL MEMORIAL
HOSPITAL, INC., et al.
Defendants.

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CASE NO. 4:18-CV-1154

JUDGE BENITA Y. PEARSON

MEMORANDUM OPINION AND
ORDER [Resolving ECF Nos. 44, 45 ]

Pending are two motions for summary judgment, one by Defendant Steward Trumbull
Memorial Hospital, Inc (the “Hospital”) (ECF No. 44) and the other by Defendants Ohio Council
8, American Federation of State, County and Municipal Employees, AFL-CIO (“OC8”) and
Local 2804, American Federation of State, County and Municipal Employees, AFL-CIO (“Local
2804”) (ECF No. 45). Additionally, Local 2804 moves to dismiss for failure to state a claim.
ECF No. 45. The matters have been fully briefed. See ECF Nos. 51, 52, 53, 54.
Against the Hospital, Plaintiff advances claims of wrongful termination in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 634, and the Collective
Bargaining Agreement, ECF No. 1-1; see 29 U.S.C. § 185. Against OC8 and Local 2804,
Plaintiff alleges a breach of the duty of fair representation, 29 U.S.C. § 158(b).
For the reasons set forth below, Local 2804 is dismissed from the litigation, and the
remaining Defendants’ motions for summary judgment are granted.

(4:18CV1154)
I. Background
Plaintiff was employed by the Hospital for about 25 years until her discharge on July 7,
2017. ECF No. 43 at PageID#: 633. Plaintiff was at or near the top of her pay grade and earned
the maximum, or close to the maximum, that a nurse in her position could make. ECF No. 43-3
at PageID#: 813-15; see ECF No. 51-1 at PageID#: 1253.
Plaintiff was party to a collective bargaining agreement between the Hospital and the
Unions (OC8 and AFSCME Local 2026),1 effective from May 31, 2016, until September 30,
2019. ECF No. 43-3 at PageID#: 745. The CBA explicitly incorporates the Hospital’s
Substance Testing and Fitness Policy. ECF No. 1-1 at PageID#: 95. That Policy specifies a
random drug testing procedure. ECF No. 43-2 at PageID#: 699-702. Section 11.0 of the Policy
(“Employee Voluntary Advance Disclosure Option”) provides that, “on a one time basis, a post
introductory period employee may choose to disclose the use of any Substance that may result in
a positive test result.” Id. at PageID#: 702. To exercise this option, the employee must disclose
the relevant substance before a drug-test urine specimen is taken. Id.
If an employee tests positive for a controlled substance without a prescription and does
not provide advance disclosure, the employee “shall be separated immediately” from
employment and is ineligible for rehire. Id. at PageID#: 704. Even in the event an employee
exercises the option to disclose a substance in advance, she may still be “immediately separated”

1

Plaintiff was represented by Local 2026, not Local 2804. As discussed below,
Local 2804 was incorrectly named in the Complaint, and Plaintiff has not moved to
amend her pleading.
2

(4:18CV1154)
from employment, but separation is not mandatory. Id. If an employee who discloses a
controlled substance and tests positive remains employed, the employee must take rehabilitative
steps at the employer’s discretion. Id. at PageID#: 704-05.
Employment actions taken according to the Substance Testing and Fitness Policy are
subject to the CBA’s four-step grievance procedure. ECF No. 1-1 at PageID#: 95. Discharge
grievances advance immediately to Step Three of the grievance procedure. ECF No. 49 at
PageID#: 1188. At Step Three, a meeting is held between the Hospital’s Human Resources
Director and a Union Representative to address the grievance. ECF No. 1-1 at PageID#: 24. If,
after Step Three, the grievance is not “satisfactorily resolved,” Local 2026 refers the grievance to
OC8 for review of the merits. ECF No. 45-3 at PageID#: 1055. If OC8 finds the grievance
meritorious, it pursues arbitration on the employee’s behalf. Id. If OC8 declines arbitration, then
Local 2026 may choose to withdraw the grievance or proceed to arbitration on its own. Id.
On June 5, 2017, the Director of Nursing Services, Charlotte Matash was advised which
five employees had been selected for random testing for the month. ECF No. 44-2 at PageID#:
904. On June 21, about two or three hours after beginning her shift, Plaintiff ingested one of her
husband’s hydrocodone pills.2 ECF No. 41 at PageID#: 399. Several hours later, Nurse Manager
Judy Antonchak notified Plaintiff that she had been selected for random drug testing and Plaintiff
was escorted to the drug testing location. ECF No. 44-2 PageID#: 905. Prior to giving a urine
sample, Plaintiff signed relevant papers, including the Voluntary Advance Disclosure Option

2

Plaintiff has had a valid prescription for Oxycodone since 2013. ECF No. 41 at
PageID#: 372-74. Her husband had a prescription for Hydrocodone. Id. at PageID#: 383.
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form (Form 26), but she did not disclose that she had taken a hydrocodone pill. ECF No. 51-1 at
PageID# 1256; ECF No. 43-4 at Page ID#: 854. Plaintiff says she did not review the paperwork
before she signed it. ECF No. 41 at PageID#: 396.
On June 30, 2017, Robert C. Morrow, M.D., a Certified Medical Review Officer,
examined the results of the drug test and identified a positive result for opiates, specifically
hydrocodone and oxycodone. ECF No. 44-2 at PageID#: 905. About a week later, Janelle
Jaworski, M.D., another Certified Medical Review Officer, verified a positive result for the
opiate hydrocodone and reported a negative result for oxycodone because Plaintiff had a valid
prescription. Id.
On July 7, 2017, Plaintiff’s employment was terminated. The Hospital notified Plaintiff
of her discharge in the presence of the Union president, Tom Connelly, for violating the
Substance Testing and Fitness Policy with a positive drug test. ECF No. 44-2 at PageID#: 905;
ECF No. 51-1 at PageID#: 1257. The Notice of Discharge was signed by Matash. ECF No. 43-4
at PageID#: 844. Plaintiff asked Connelly to grieve the discharge, and Connelly assigned Union
Representative Dori Talstein to guide Plaintiff through the grievance process. ECF No. 45-3 at
PageID#: 1045-46; ECF No. 51-1 at PageID#: 1257.
Ten days later, Union Representative Talstein met with Plaintiff, Plaintiff filled out a
Grievance Fact Sheet, and Local 2026 filed a grievance on her behalf. ECF 45-3 at PageID#:
1048, 1058. After the Step Three meeting, the Hospital denied Plaintiff’s grievance and upheld
the discharge. ECF No. 43-4 at PageID#: 847-48. Thereafter, OC8 and Local 2026 concluded,

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“based on review . . . the grievance does not have sufficient merit to warrant an appeal to
arbitration.” ECF No. 43-4 at PageID#: 849-50.
II. Standard of Review
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F. 3d 868, 873 (6th Cir. 2005). The moving party is not
required to file affidavits or other similar materials negating a claim on which its opponent bears
the burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees, 980 F. 2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
resolved by a jury.” Cox. v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995). To defeat
the motion, the non-moving party must “show that there is doubt as to the material facts and that
the record, taken as a whole, does not lead to a judgment for the movant.” Guarino, 980 F.2d at
403. In reviewing a motion for summary judgment, the Court views the evidence in the light
most favorable to the non-moving party when deciding whether a genuine issue of material fact
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exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Aickes
v. S.H. Kress & Co., 398 U.S. 144 (1970).
“The mere existence of some factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment . . . .” Scott v. Harris, 550 U.S. 372,
380 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The fact
under dispute must be “material,” and the dispute itself must be “genuine.” A fact is “material”
only if its resolution will affect the outcome of the lawsuit. Scott, 550 U.S. at 380. In
determining whether a factual issue is “genuine,” the Court assesses whether the evidence is such
that a reasonable jury could find that the non-moving party is entitled to a verdict. Id.
(“[Summary judgment] will not lie . . . if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.”).
III. Law and Analysis
Plaintiff advances three claims

two against the Hospital and one against the Unions.

A. Claims Against the Hospital
1. Age Discrimination
The ADEA prohibits an employer from discharging an individual “because of such
individual’s age.” 29 U.S.C. § 623(a)(1). “[A] plaintiff bringing a disparate-treatment claim
pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’

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cause of the challenged adverse employment action.” Gross v. FBL Financial Servs., Inc., 557
U.S. 167, 180 (2009). Employing the McDonnell Douglas burden-shifting framework,3 a
plaintiff carries “the initial burden under the statute of establishing a prima facie case.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff establishes a
prima facie case, the burden shifts to the employer to refute the initial inference that the adverse
employment action was discriminatory. Id. at 802-03. Once the employer produces a
nondiscriminatory reason for the adverse employment action, the plaintiff must “demonstrate that
the proffered reason was not the true reason for the employment decision.” Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 255 (1981).
a. Prima Facie Burden
To satisfy her prima facie burden, Plaintiff must prove (1) that she was a least 40 years
old at the time of the alleged discrimination; (2) she was subjected to an adverse employment
action, (3) she was otherwise qualified for the position, and (4) she was replaced by a younger
worker or the position remained open and the Hospital continued to seek applicants from persons
of Plaintiff’s qualifications. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008)
(citing Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 317 (6th Cir. 2007)); McDonnell
Douglas, 411 U.S. at 802 (footnote omitted). In this case, the first, second, and fourth elements

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“McDonnell Douglas and subsequent decisions have ‘established an allocation
of the burden of production and an order for the presentation of proof in . . .
discriminatory-treatment cases.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).
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(4:18CV1154)
are undisputed. The Parties dispute only whether Plaintiff was qualified to occupy her position at
time of her termination.
The answer, intuitively, is yes. Plaintiff worked as a registered nurse at the Hospital for
25 years, and the Hospital points to nothing during the course of her career to suggest that she did
not live up to her job description. Rather, the Hospital argues that, by testing positive for a
controlled substance without a prescription, Plaintiff disqualified herself from her position. ECF
No. 44 at PageID#: 874-77.
Such an argument, however, “improperly conflat[es] the distinct stages of the McDonnell
Douglas inquiry.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000).
“[W]hen assessing whether a plaintiff has met her employer’s legitimate expectations at the
prima facie stage of a termination case, a court must examine plaintiff’s evidence independent of
the nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff.”
Id. at 660-61. The Hospital will have its opportunity to identify a just motivation for terminating
Plaintiff’s employment, but it may not do so at the prima facie stage. “Rather . . . [courts] look
instead at whether an employee met her employer’s legitimate expectations prior to the event(s)
that sparked the termination, even if the event is as seemingly objective as . . . violating clear
rules.” Id. at 663 n.7.
The Hospital acknowledges Cline but urges, in essence, a “hospital exception” or “public
safety exception” to its rule. In Benjamin v. Schuller, a hospital physician’s clinical privileges
were revoked when, after thorough review over the course of almost five years, the hospital
grievance committee concluded he “[did] not conform to the standards of a University
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practitioner.” 400 F. Supp. 2d 1055, 1061-62 (S.D. Ohio 2005). The district court articulated
Cline’s rule that “a court must look at a plaintiff’s qualifications before the unacceptable
performance began,” id. at 1083 (quoting Cline, 206 F.3d at 662-63), but it nevertheless
concluded that “Cline’s analysis is inapplicable in the case of a physician whose hospital
privileges were revoked.” Id. at 1084 (footnote omitted). Explaining further, the court opined,
“[T]o apply Cline in this case would be to negate the importance of allowing a medical facility to
determine what must be done to run most effectively.” Id. at 1084 n.32.
Benjamin can be distinguished on several fronts. First, the court in Benjamin paid
specific attention to physicians with clinical privileges, not all hospital employees who are
responsible for patient care. Id. at 1083 (“[I]t is not a court’s province to review the merits of the
charges against a physician . . . . ‘[C]ourts generally afford great deference to the decision of the
hospital’s governing body concerning the granting of hospital privileges.’”) (quoting Yashon v.
Hunt, 825 F.2d 1016, 1022 (6th Cir. 1987)); id. at 1084 (a physician’s “paper qualifications” do
not “confer[ ] an unconditional right to hospital privileges”) (quoting Sosa v. Bd. of Managers of
Val Verde Mem’l Hosp., 437 F.2d 173, 176 (5th Cir. 2005)). Its conclusion was narrow: “Cline’s
analysis is inapplicable in the case of a physician whose hospital privileges were revoked.” Id. at
1084 (footnote omitted).
Additionally, Cline’s rule would have been difficult to apply in Benjamin as a practical
matter. In Benjamin, suspicions about the plaintiff’s substandard patient care were reported as
early as December 1996, but despite consistent, repeated reviews of his performance, his clinical
privileges were not revoked until July 2001 (at one location) and April 2002 (at another). Id. at
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1059-62. The plaintiff sued in December 2002. Id. at 1063. Applying Cline’s rule to the letter
(“a court must look at a plaintiff’s qualifications before the unacceptable performance began”)4
would have required the court to assess the plaintiff’s qualifications from more than six years
before the litigation commenced. Such an assessment would have been difficult to conduct and
likely irrelevant to the merits of the plaintiff’s case.
In this case, Plaintiff is not a physician, and clinical privileges are not at stake.
Benjamin’s concern for “great deference” to hospitals is thus not implicated. See id. at 1083
(quoting Yashon, 825 F.2d at 1022). Additionally, unlike in Benjamin, assessing Plaintiff’s
objective qualifications for her position would not require the Court to overlook more than a half
decade of her recent job performance. Whereas the plaintiff in Benjamin asked the court to
ignore all reports of his performance between 1996 and 2002 at the prima facie stage of his case,
Plaintiff in this matter asks the Court to look past the results of a single drug test on a single day.
There is no practical or theoretical difficulty in applying Cline’s rule to Plaintiff’s case.
Finally, to whatever extent Benjamin’s reasoning, if adopted, would logically apply to this
case, the Court is not persuaded that it is consistent with Cline. The court in Cline recognized
“the surface-level appeal” of addressing a defendant’s “objective and neutral” reason for
termination at the prima facie stage, but it ultimately rejected that order of operations. 206 F.3d
at 663 n.7; see id. at 662-64. It acknowledged, for example, the intuitive logic that a truck driver
who loses her driver’s license is not “qualified” to persist in her job. Id. at 663 n.7. But if the

4

Benjamin, 400 F. Supp. 2d at 1083 (citing Cline, 206 F.3d at 662-63).
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employee’s “lack of a license comprises defendant’s nondiscriminatory reason for firing her, she
cannot lose at the prima facie stage on that ground, even though she would lose on summary
judgment anyway barring evidence showing discrimination.” Id. Cline shows no disregard for
public safety, nor does it foreclose judicial deference to an employer’s expertise. It simply points
out that those considerations can be accounted for at the rebuttal stage (the “pretext stage”) of the
McDonnell Douglas inquiry. Plaintiff is entitled to “an adequate ‘opportunity to demonstrate
that the proffered reason was not the true reason for the employment decision.’” Id. at 662
(quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 n.5 (1983)).
Gauging by the “minimum objective criteria required for employment in the relevant
field,” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003), and ignoring
the results of Plaintiff’s random drug test, Plaintiff was manifestly qualified for her position. She
has satisfied her prima facie burden under the McDonnell Douglas inquiry.
b. Pretext
The Hospital insists that Plaintiff’s positive result for a controlled substance without a
prescription was a legitimate, nondiscriminatory reason for termination. ECF No. 44 at PageID#:
877-80. In rebuttal, Plaintiff urges that reasoning is pretextual.
Plaintiff tested positive for hydrocodone on the job even though she had no prescription
for it. ECF No. 44-2 at PageID#: 905. She admits that she ingested hydrocodone at work
without a prescription. ECF No. 41 at PageID#: 399. She did not disclose that she had taken any
medication, either informally to a supervisor or coworker or when explicitly given the
opportunity to make such a disclosure prior to giving a urine specimen. Id. at PageID#: 396, 399.
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A Hospital employee who tests positive for a prohibited substance without making an advance
disclosure “shall be separated immediately” and “is ineligible for rehire.” ECF No. 43-2 at
PageID#: 704.
Plaintiff purports to identify a similarly situated, younger coworker (“Jen”) who
habitually consumed a prohibited substance but was not terminated. ECF No. 51 at PageID#:
1242; ECF No. 41 at PageID#: 406-07. But Plaintiff displays no personal knowledge about Jen.
ECF No. 41 at PageID#: 406 (“All I know is her name was like Jen I believe.”) Based on her
deposition testimony, Plaintiff appears never to have met Jen, and all she knows about Jen she
learned by “[t]alking to other coworkers.” Id. at PageID#: 407. When asked whether Jen had
taken a random drug test, Plaintiff replied, “I would imagine they finally found out, but, yeah, I
don’t know.” Id. Asked about her understanding of Jen’s circumstances, Plaintiff answered,
“[S]he was able to get rehab and come back.” Id. at PageID#: 406.
Plaintiff’s evidence concerning Jen would be inadmissible at trial because it is not based
on personal knowledge. Fed. R. Evid. 602; see Fed. R. Civ. P. 56(c). But even if evidence about
Jen were admissible, it would not place a material fact in dispute because it does not tend to
show that Jen was situated similarly to Plaintiff. According to the CBA (which may or may not
have been in effect when Jen was employed at the Hospital), an employee who gives notice of
her drug consumption “prior to the sample being taken . . . may be immediately separated. If the
employee is allowed to continue employment, the employee will be required . . . to obtain
rehabilitation treatment . . . .” ECF No. 43-2 at PageID#: 704-05 (emphasis added). Plaintiff
does not know whether Jen disclosed a controlled substance in advance of a random drug test.
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See ECF No. 41 at PageID#: 406-07. Plaintiff does not know whether Jen took a random drug
test at all. Id. at PageID#: 407. Plaintiff cannot dispute whether Jen was similarly situated to her
because she produces no witnesses that can testify about Jen.
In short, Plaintiff does not deny that she was treated precisely in accordance with the
terms of the CBA Substance Testing and Fitness Policy, and she does not produce an example of
another employee who was treated differently. By contrast, it is undisputed that, between 2015
and 2017, the Hospital discharged four other employees “for testing positive for controlled
substances without a valid legal prescription and without providing voluntary advanced [sic]
disclosure . . . .” ECF No. 44-1 at PageID#: 887. Two such employees were over 40 and two
were under 40. Id.
The Hospital’s Substance Testing and Fitness Policy is clear, and the Hospital adhered
strictly to the Policy for employees both over and under age 40. Plaintiff’s positive result for a
prohibited substance mandated her immediate termination regardless of her age. In light of that
undisputed evidence, Plaintiff cannot show that her “age was the ‘but-for’ cause” of her
termination. Gross, 557 U.S. at 180. Plaintiff’s suggests that (1) her supervisor, at some
uncertain point in the past, made an offensive, age-related comment, ECF No. 51-1 at PageID#:
1255-56 (“Why don't you just retire?”), and that (2) in recent years, Plaintiff was sometimes
reprimanded more harshly than younger employees for similar conduct. Id. at PageID#: 1253-55
(several disciplinary incidents). But Plaintiff’s evidence, even if fully credited, suggests at most
“that age was one motivating factor” in the Hospital’s decision to terminate her employment.

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Gross, 557 U.S. at 180. As a matter of law, such a showing is insufficient to support Plaintiff’s
claim. Id. (requiring a showing of “but-for” causation).
Plaintiff’s claim of age discrimination presents no genuine dispute of material fact, and
the Hospital is entitled to judgment on the claim.
2. Hospital: Violation of the CBA
Plaintiff also alleges that the Hospital violated the CBA when it terminated her
employment. She argues that, although she declined to make advance disclosure of the
prohibited substance she had consumed, her failure to do so should not be treated as a “waiver”
of her “right” to make such a disclosure. ECF No. 51 at PageID#: 1245-46. She asserts she was
never made aware of her opportunity to disclose the substance she had taken, and “waiver cannot
be established by a consent given under a mistake or misapprehension of fact.” Id. at PageID#:
1245; see 28 Am. Jur. 2d, Estoppel and Waiver, § 192 (May 2019 Update)).
Plaintiff’s opportunity to make advance disclosure is not described in the Substance
Testing and Fitness Policy as a “right,” but rather an “option.” ECF No. 43-2 at PageID#: 70203. Advance disclosure would have guaranteed nothing; at most, it would have strengthened
Plaintiff’s argument that termination was unnecessary or inappropriate, but it would not have
guaranteed her retention. Id. at PageID#: 704-05; ECF No. 49 at PageID#: 1169-71. It is
difficult to speak in terms of “waiver,” therefore, because there is seemingly no “right” at issue.
Plaintiff declined to exercise an option at her disposal that might have made it possible to stay on
as a Hospital employee.

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Even if the advance disclosure option is construed as a “right,” however, Plaintiff waived
it. As a general matter, it is true that waiver does not occur based on “mistake or
misapprehension of fact.” But even in the absence of actual knowledge, a right can be waived if
a person has “constructive knowledge” that her right exists and she actually intends to relinquish
it. Weaver v. Weaver, 522 N.E.2d 574, 576 (Ohio Ct. App. 1987). In this case, Plaintiff insists
she did not have actual knowledge of her right to make advance disclosure, but she does not
show that she lacked constructive knowledge of such a right. Constructive knowledge of a given
thing exists when a person “should have discovered it through the exercise of reasonable
diligence.” Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 388 (6th Cir. 2016) (citation
omitted).
Plaintiff confirms that she received a copy of the Hospital’s Substance Testing and
Fitness Policy during her employment. Id. at PageID#: 339. Plaintiff also agrees that she was
given the two-page advance disclosure form immediately before her urine sample was taken.
ECF No. 41 at PageID#: 396-97. Asked whether she read that form, she stated, “I just read the
one about

I glanced at it, saw something odd about the name of a medication.” Id. at PageID#:

396. Asked why she chose not to read the papers she was asked to sign, she said, “Because I
was

I wasn’t

didn’t know there was something else for me to read. She just told me to sign

so I could do the drug test.” Id. at PageID#: 397. “[I]t is axiomatic that ‘a person of ordinary
mind cannot be heard to say that he was misled into signing a paper which was different that
what he intended, when he could have known the truth by merely looking when he signed.’”
Spectrum Networks, Inc. v. Plus Realty, 878 N.E.2d 1122, 1125 (Ohio Ct. App. 2007) (quoting
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McAdams v. McAdams, 88 N.E. 542, 544 (Ohio 1909)). Indisputably, reasonable diligence
would have revealed Plaintiff’s opportunity to disclose, in advance of her drug test, whether she
had consumed a prohibited substance. Plaintiff declined to exercise reasonable diligence. Such
an omission is waiver.
Plaintiff’s claim that the Hospital violated the CBA presents no genuine dispute of
material fact, and the Hospital is entitled to judgment on the claim.
B. Claims Against the Unions
1. Local 2804: Motion to Dismiss
Local 2804 asserts that it is not a correctly named defendant and, accordingly, it moves
the Court to dismiss the count against it for failure to state a claim on which relief can be granted.
ECF No. 45 at PageID#: 1011-12. Local 2804 represents custodial and maintenance workers at
the Hospital; it does not represent registered nurses and it has never represented Plaintiff. Rather,
Local 2026 represents registered nurses at the Hospital (including Plaintiff), and Local 2026 filed
the grievance at issue in this action. ECF No. 43 at PageID#: 631-32. Despite being made aware
of her mistake, Plaintiff did not move to amend her pleading. ECF No. 52 at PageID#: 1260 n.1.
Plaintiff admits that she has failed to state a claim against Local 2804 and that she has made no
effort to cure that failure. Id. Accordingly, Local 2804’s motion to dismiss is granted.
2. OC8: Breach of Duty to Fairly Represent
Finally, Plaintiff claims that OC8 breached its duty to fairly represent her because it
“arbitrarily ignore[d] a meritorious grievance or processes[ed] it in [a] perfunctory fashion.” Int’l

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Broth. of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979) (quoting Vaca v. Sipes, 386 U.S. 171,
190-91 (1967)). But a claim against a union for breach of duty to represent depends necessarily
on an employer’s violation of the relevant bargaining agreement. DelCostello v. Int’l Broth. of
Teamsters, 462 U.S. 151, 164-65 (1983); Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625,
630 (6th Cir. 2009) (“Liability attaches to neither employer nor union unless fault can be proved
as to both.”) (citation and footnote omitted).
Because the Court concludes that there is no genuine dispute that the Hospital did not
breach the CBA in this case, OC8 cannot be liable as a matter of law. Accordingly, OC8 is
entitled to judgment in its favor.
IV. Conclusion
For the reasons stated herein, Local 2804 is dismissed from the litigation, and the
remaining Defendants’ motions for summary judgment (ECF Nos. 44, 45) are granted. A
judgment entry shall issue.

IT IS SO ORDERED.

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

July 25, 2019
Date

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