                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0434n.06

                                          No. 20-3025


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 JOSEPH CAIMONA,                                        )
                                                        )                        FILED
        Plaintiff-Appellant,                            )                   Jul 27, 2020
                                                        )              DEBORAH S. HUNT, Clerk
 v.                                                     )
                                                        )
 OHIO   CIVIL    SERVICE    EMPLOYEES                   )
 ASSOCIATION, AFSCME LOCAL 11, AFL-CIO,                 )
                                                        )      ON APPEAL FROM THE
        Defendant-Appellee,                             )      UNITED STATES DISTRICT
                                                        )      COURT     FOR      THE
 PUBLIC   EMPLOYEES  REPRESENTATIVE                     )      NORTHERN DISTRICT OF
 UNION LOCAL 5; BUFFY ANDREWS;                          )      OHIO
 DOUGLAS SOLLITO; CHRISTOPHER MABE;                     )
 JEFF FREEMAN; PRUDENTIAL INSURANCE                     )
 COMPANY OF AMERICA,                                    )
                                                        )
        Defendants.                                     )
                                                        )


BEFORE:       SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Plaintiff Joseph Caimona was terminated from his job

with Defendant Ohio Civil Service Employees Association (OCSEA) when he failed to return to

work after his short-term disability ended. On appeal Caimona contends that the district court

erred in granting summary judgment to OCSEA as to his claims for quid pro quo sexual harassment

under Title VII, 42 U.S.C. § 2000e et seq., and breach of the collective bargaining agreement for

discharge without cause under 29 U.S.C. § 185. We do not agree.
No. 20-3025, Caimona v. Ohio Civil Service Employees, et al.


         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). We review the district court’s grant of summary judgment de novo, viewing all the evidence

in the light most favorable to the nonmoving party and drawing “all justifiable inferences” in his

favor.   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).           Under this generous

formulation, the central question is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Id. at 251–52. This case is the latter.

         As the district court explained in its 32-page opinion, see Caimona v. OCSEA, No. 4:18-

CV-00785 (N.D. Ohio Dec. 3, 2019), Caimona’s quid pro quo sexual harassment claim fails

because all of the alleged harassing incidents (which are detailed in that opinion and incorporated

by reference here) are based entirely on Caimona’s subjective opinions and conjectures, which do

not satisfy his burden as the nonmovant on summary judgment. See Arendale v. City of Memphis,

519 F.3d 587, 605 (6th Cir. 2008) (“Conclusory assertions, supported only by Plaintiff’s own

opinions, cannot withstand a motion for summary judgment.”). Furthermore, as the district court

pointed out, Caimona “specifically admitted that [his supervisor, Buffy] Andrews never made any

sexual propositions to him or made any sexually suggestive comments about the two of them

getting together.” Additionally, “Caimona admitted at his deposition that Andrews never said

anything to him directly or indirectly indicating she had any sexual interest in him, never kissed

him or tried to do so, never told Caimona that she wanted to have a sexual relationship with him,

never sent him any text messages, emails, photographs, letters, notes, or cards indicating she

wanted to have a sexual relationship with him, never made any sexual propositions to him, never

made any sexually suggestive comments to him about the two of them getting together, and never



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No. 20-3025, Caimona v. Ohio Civil Service Employees, et al.


engaged in any teasing, kidding, or practical jokes with Caimona of a sexual nature.” Thus, as the

district court correctly concluded, “Caimona cannot show that any of the alleged harassment by

Andrews was based on Caimona’s sex,” an essential element of his quid pro quo sexual harassment

claim. See Highlander v. K.F.C. Nat’l Mgmt. Co., 805 F.2d 644, 648 (6th Cir. 1986) (noting that

one of the elements of a quid pro quo sexual harassment claim is “that the harassment complained

of was based on sex”).             Even assuming as we must on summary judgment that Andrews

“deliberately” brushed her breasts against Caimona on one occasion and made one salacious

statement about her ex-boyfriend, this does not change the calculus, because Caimona admitted

that Andrews never indicated, directly or indirectly, that she wanted to have a sexual relationship

with Caimona. Nothing in Caimona’s brief on appeal makes a dent in the district court’s thorough

analysis of this issue (or his Title VII hostile work environment claim, which is not challenged on

appeal).

           Although Caimona no longer pursues his 29 U.S.C. § 185 claim against Public Employees

Representative Union, Local 5 (PERU) on appeal, he still must establish that the union breached

its duty of fair representation to him in order to pursue his claim that OCSEA breached the

collective bargaining agreement. See Chapman v. United Auto Workers Local 1005, 670 F.3d 677,

682 (6th Cir. 2012) (explaining that “[t]he employee must prove both claims to recover from either

defendant”). Again, the district court’s detailed account of the steps taken by PERU to grieve

Caimona’s termination fully support the conclusion that Caimona failed to raise a genuine issue

of material fact that PERU’s actions were arbitrary. See Crampton v. Kroger Co., 709 F. App’x

807, 808–09 (6th Cir. 2017); Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 (6th Cir. 2003).1

PERU’s decision not to submit Caimona’s grievance to arbitration was not “wholly irrational,” see



1
    Caimona does not assert that PERU’s actions were discriminatory or in bad faith.

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No. 20-3025, Caimona v. Ohio Civil Service Employees, et al.


id. at 539, given that Caimona refused to provide the medical documentation requested by the

Arbitration Committee. If anything, the request for additional medical documentation verifies that

the union was attempting to fulfill its representational duties.

        After all, Caimona’s short-term disability had been terminated as of May 1, 2017, and

OCSEA had ordered Caimona to return to work when it found that out. The union’s request for

something more than a handwritten doctor’s note, allegedly stating that he was unable to return to

work until July 11, 2017, for unknown reasons, submitted to a third party, seems pretty reasonable.

Thus, as the district court determined, “PERU . . . had rational grounds for not proceeding with

Caimona’s case, as OCSEA presented evidence that Caimona failed to respond to its notice that

he had to return to work or risk being terminated . . . [and] [t]here is no evidence that [the grievance]

process was performed in a perfunctory manner.” And, as the district court further concluded,

Caimona cannot proceed on his claim against OCSEA because he cannot prevail on his claim

against PERU. See Crampton, 709 F. App’x at 808–09.

        In sum, the district court’s thorough opinion provided a well-reasoned basis for rejecting

each of Caimona’s claims and we therefore AFFIRM the grant of summary judgment to OCSEA

for the reasons stated therein and augmented here.




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