                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1054n.06

                                           No. 11-4194
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            Oct 05, 2012
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

ELBERT HOGAN,                                        )
                                                     )
       Plaintiff-Appellant,                          )      ON APPEAL FROM THE
                                                     )      UNITED STATES DISTRICT
v.                                                   )      COURT FOR THE SOUTHERN
                                                     )      DISTRICT OF OHIO
KOKOSING CONSTRUCTION COMPANY,                       )
                                                     )
       Defendant-Appellee.                           )
                                                     )




       BEFORE: SUTTON, GRIFFIN, and WHITE, Circuit Judges.


       PER CURIAM. Elbert Hogan appeals the entry of summary judgment for defendant,

Kokosing Construction Company (Kokosing), in this action alleging a breach of a collective

bargaining agreement (CBA), pursuant to Section 301 of the Labor Management Relations Act

(LMRA), 29 U.S.C. § 185 et seq.

       Hogan was working in construction for Kokosing and was a member of a union when, in May

2008, he injured his foot. He was off work and collecting workers’ compensation benefits when an

investigator hired by Kokosing to conduct surveillance on Hogan videotaped him performing yard

work inconsistent with the work restrictions placed on him by his doctor. At the time this video was

made in mid-July of 2008, Hogan had not yet been cleared by his doctor to return to work. When

Hogan subsequently reported to Kokosing that his doctor had cleared him to return to work, he was

not recalled. He attempted to file a grievance with the union, but was told it had no merit.
No. 11-4194
Hogan v. Kokosing Constr. Co.

       Hogan filed this action alleging that Kokosing breached the CBA. After discovery was

conducted, Kokosing filed a motion for summary judgment, and Hogan responded. The district

court granted the judgment for Kokosing, finding that Hogan had presented no evidence in support

of his claim of a breach of the CBA.

       Summary judgment is properly granted where the non-moving party lacks evidence to

support an essential element of his case. Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d

1382, 1388-89 (6th Cir. 1993) (per curiam). In order to establish his case under the LMRA, Hogan

was required to show both that Kokosing breached the CBA and that the union breached its duty of

fair representation. See Higgins v. Int’l Union, Sec., Police, Fire Prof’ls of Am., 398 F.3d 384, 387

(6th Cir. 2005).

       On appeal, Hogan claims that the district court ignored his deposition testimony, which he

asserts provided evidence of retaliation by Kokosing for Hogan’s attempt to exercise his rights and

file a grievance. (Pl. Br., 6) Hogan believes that Kokosing refused to return him to work because

of the surveillance tape. When asked to explain his belief that it was wrongful for Kokosing to hire

other employees to work ahead of him, Hogan explained: “Because I was already employed by

Kokosing. Why would they call new hires out of the union hall, when I was already prepared [to]

come back to work? I got a release to come back to work.”

       The district court properly concluded that Hogan presented no evidence that Kokosing

breached the CBA. The court quoted the agreement’s provisions, which stated that the employer was

“free to hire or recall any worker it chooses,” and was not “required to bring back its own employees

before hiring through the [union] hall.”




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No. 11-4194
Hogan v. Kokosing Constr. Co.

       Further, to the extent Hogan attempts to raise a retaliation claim, the record is clear that

Kokosing’s decision to decline to rehire Hogan was made before Hogan attempted to exercise his

rights under the CBA. Hogan points to his testimony regarding the union’s alleged breach of the

duty of fair representation, but cites no testimony in his deposition that contradicts the provisions

of the CBA quoted above. Because Hogan did not present any evidence in support of an element

essential to his case, we affirm the summary judgment for defendant.




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