[Cite as Stanley v. Ohio State Univ., 2015-Ohio-5555.]

                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us


R. PETER STANLEY

            Plaintiff

            v.

THE OHIO STATE UNIVERSITY

            Defendant

Case No. 2013-00388

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶1} On September 30, 2014, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On November 7, 2014, with leave of court, plaintiff filed a
response. The motion for summary judgment is now before the court for a non-oral
hearing. L.C.C.R. 4.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
Case No. 2013-00388                         -2-                                       ENTRY



       {¶4} Plaintiff’s claims arise from his employment with defendant The Ohio State
University (OSU) as a maintenance worker for the College of Dentistry. In late July
2012, maintenance staff reported to Joe Pennington, a maintenance supervisor, that
plaintiff’s behavior had been “very erratic.” Pennington learned that plaintiff had been
observed staggering and he appeared drunk. On August 24, 2012, one of plaintiff’s
co-workers told Pennington that he had discovered a bottle in the freezer of the staff
refrigerator, that he believed the bottle belonged to plaintiff, and that the contents of the
bottle smelled like alcohol. Pennington inspected the bottle and, later that afternoon,
he observed plaintiff put something back in the freezer and walk away with a cup
containing clear liquid.    Pennington called Scott Burlingame, a human resources
representative, and then confronted plaintiff.      After first denying that he had been
drinking alcohol, plaintiff admitted he had been drinking alcohol at work; however, he
refused to submit to a drug and alcohol screening test. Plaintiff related that he had an
appointment with a counselor immediately after work.
       {¶5} Plaintiff was placed on administrative leave and a corrective action hearing
was held, which resulted in plaintiff being removed from his position, effective October
11, 2012, pursuant to defendant’s Drug-Free Workplace policy.              OSU’s Drug-Free
Workplace policy bans the “unauthorized use of alcohol by university employees on
university premises,” and it bans employees from “working under the influence of
alcohol.” (Exhibit A, Affidavit of David Simpson.) Plaintiff’s removal was subject to a
collective   bargaining    agreement    (CBA);    however,    upon      review   of   plaintiff’s
pre-arbitration referral, plaintiff’s union notified him that it had decided not to advance
the matter through the arbitration process based upon consideration of, among other
things, the probability of winning the case. (Plaintiff’s Exhibit 1.)
 Case No. 2013-00388                                                              -3-                                                                   ENTRY



             {¶6} In             his       complaint,               plaintiff         alleges           wrongful             termination,               disability
discrimination and invasion of privacy.1 Defendant contends that the court does not
have jurisdiction to consider plaintiff’s claims inasmuch as those claims are subject to
the CBA.


COLLECTIVE BARGAINING AGREEMENT
             {¶7} R.C. Chapter 4117 establishes a framework for resolving public sector labor
disputes by creating procedures and remedies to enforce those rights.                                                                                     A CBA
between a public employer and the bargaining unit “controls all matters related to the
terms and conditions of employment and, further,                                                            when the collective bargaining
agreement provides for binding arbitration, R.C. 4117.10(A) recognizes that arbitration
provides the exclusive remedy for violations of an employee’s employment rights.”
Gudin v. Western Reserve Psychiatric Hosp., 10th Dist. Franklin No. 00AP-912 (June
14, 2001).
             {¶8} The CBA at issue contains a detailed grievance procedure culminating in
final and binding arbitration of complaints or disputes between defendant and union
members. (CBA Article 10.5). In his complaint, plaintiff acknowledges that he has
“exhausted his administrative remedies through the collective bargaining process.”
(Complaint, ¶ 21.)
             {¶9} Inasmuch as plaintiff’s employment was subject to a CBA, R.C.
4117.09(B)(1) specifically creates a right of action over such claims and limits the
jurisdiction over those claims to the common pleas courts. Id. Accordingly, this court
has no jurisdiction to decide matters that are subject solely to a final and binding



             1
                 In his response to defendant’s motion for summary judgment, plaintiff states that he is no longer alleging invasion of privacy. Therefore, that claim is
dismissed.
 Case No. 2013-00388                           -4-                                     ENTRY



grievance procedure. Crable v. Ohio Dept. of Youth Servs., 2010-Ohio-788, ¶ 12 (10th
Dist.).


DISABILITY DISCRIMINATION
          {¶10} “There are several theories upon which a plaintiff may base [his] disability
discrimination claims, including; (1) disparate treatment, or intentional discrimination;
(2) disparate impact; (3) failure to permit reasonable modifications, and (4) failure to
make reasonable accommodations.” Reid v. Plainsboro Partners, III, 2010-Ohio-4373,
¶ 43 (10th Dist.). Plaintiff alleges both disparate treatment and that OSU failed to offer
a reasonable accommodation for his alcoholism.
          {¶11} To establish a prima facie case of disability discrimination pursuant to R.C.
4112.02, plaintiff must demonstrate: “(1) that he or she was disabled; (2) that an
adverse employment action was taken by an employer, at least in part, because the
individual was disabled, and; (3) that the person, though disabled, can safely and
substantially perform the essential functions of the job in question.”            Yamamoto v.
Midwest Screw Products, Lake App. No. 2000-L-200, 2002-Ohio-3362, citing Hazlett v.
Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281 (1986).
          {¶12} Absent direct evidence, an employee can prove disability discrimination
circumstantially, using the method of proof established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). If plaintiff establishes a prima facie case, the burden of
production shifts to defendant to “articulate some legitimate, nondiscriminatory reason
for [its action].” Id, at 802. If defendant succeeds in doing so, then the burden shifts
back to plaintiff to demonstrate that defendant’s proffered reason was not the true
reason for the employment decision. Id.
          {¶13} With regard to plaintiff’s alleged disability, plaintiff relates that he has been
diagnosed with PTSD, depression, anxiety, and dissociative disorder; however, he
contends that OSU discriminated against him based upon alcoholism.
 Case No. 2013-00388                        -5-                                     ENTRY



       {¶14} Federal and state disability discrimination claims, whether brought under
the Americans with Disabilities Act, 42 U.S.C. 12112 et seq. (ADA) or Ohio’s anti
discrimination statute, R.C. 4112, are subject to the same evidentiary standards and
may be evaluated concurrently. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201
(6th Cir. 2010). In order to establish a claim for disability discrimination, the plaintiff
must first establish that he is “disabled” within the meaning of the ADA. McKay v.
Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 371 (6th Cir. 1997). The Americans
With Disabilities Act Amendments Act of 2008 (ADAAA) applies in cases where the
alleged discriminatory acts occurred after January 1, 2009.           Milholland v. Sumner
County Bd. of Educ., 569 F.3d 562, 566 67 (6th Cir. 2009).
       {¶15} Under the ADAAA, “disability” means:
       {¶16} “(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
       {¶17} “(B) a record of such an impairment; or
       {¶18} “(C) being regarded as having such an impairment (as described in
paragraph (3)).” 42 U.S.C. 12102(1).
       {¶19} Although plaintiff contends that defendant knew that his alcoholism was
related to his underlying mental health issues, as reported by his treating psychologist
after the incident, plaintiff’s testimony shows that his alcohol use did not substantially
interfere with his major life activities. Plaintiff testified that he continued to perform his
work adequately while he was drinking, and that he received good evaluations during
the period of time he drank alcohol at work. (Deposition, page 44.) Plaintiff related
that the only impact drinking alcohol had on his personal life was that it “would slow
[him] down at the end of the day” and that he would not have as much energy in the
evening. (Deposition, page 45.) Plaintiff testified that, up through the time that he
was confronted for drinking at work, he did not believe he was an alcoholic.
(Deposition, page 45.)
Case No. 2013-00388                         -6-                                    ENTRY



       {¶20} Based on plaintiff’s testimony, the only reasonable conclusion that can be
drawn from the undisputed evidence is that plaintiff’s alleged alcoholism does not
constitute a disability under the ADAAA. The evidence presented does not support an
inference that plaintiff was removed from his position, at least in part, because of the
alleged disability. Plaintiff testified that he did not tell anyone at work that he was an
alcoholic, nor had he been diagnosed as such prior to August 24, 2012. Therefore,
plaintiff failed to demonstrate a genuine issue of material fact with regard to a prima
facie case of disability discrimination.
       {¶21} Even if plaintiff’s alcoholism were a disability, he was terminated for
drinking at work in violation of OSU’s policy, rather than for alcoholism or a mental
disability. The U.S. 6th Circuit Court of Appeals has noted that “there is a distinction
between taking an adverse job action for unacceptable misconduct and taking such
action solely because of a disability, even if the misconduct is ‘caused’ by the disability.”
 Martin v. Barnesville Exempted Village School Dist. Bd. Of Educ., 209 F.3d 931,
934-935 (6th Cir. 2000), citing Maddox v. University of Tennessee, 62 F.3d 843, 847
(6th Cir. 1995). “The ADA specifically provides that an employer may hold an alcoholic
employee to the same performance and behavior standards to which the employer
holds other employees ‘even if any unsatisfactory performance is related to the
alcoholism of such employee,’ thereby clearly distinguishing the issue of misconduct
from one’s status as an alcoholic. 42 U.S.C. § 12114(c)(4).” Id. “The ADA does not
protect plaintiff from his own bad judgment in drinking on the job.” Id.
       {¶22} Defendant submitted the affidavit of David Simpson, the Labor Relations
Manager in OSU’s Office of Human Resources. Simpson avers that OSU’s Drug-Free
Workplace policy bans the “unauthorized use of alcohol by employees on university
premises” and that drinking by employees during their work hours is unauthorized.
(Simpson affidavit, Exhibit A.) Plaintiff admitted both that he had been drinking vodka
during working hours on August 24, 2012 and that prior to the date in question, he
Case No. 2013-00388                          -7-                               ENTRY



would take “breaks” during work to drink a couple of beers at nearby pubs or bars.
(Plaintiff’s Deposition, pages 38-39.) Based upon plaintiff’s testimony, the court finds
that defendant had a legitimate, non-discriminatory reason to remove plaintiff from his
position.   Furthermore, plaintiff has not presented any evidence which supports an
inference that the legitimate reasons offered by OSU were not its true reasons, but
were a pretext for discrimination. Therefore, defendant is entitled to judgment as a
matter of law on plaintiff’s claim that defendant failed to make reasonable
accommodations for his alleged disability.


DISPARATE TREATMENT
       {¶23} “At its most basic level, a disparate treatment claim alleges that an
individual is being treated differently than others.” Reid, supra, at ¶ 45 (10th Dist.),
citing Teamsters v. United States, 431 U.S. 324, 335-36 (1977).        “As a result, an
aggrieved plaintiff must demonstrate that [he] was treated differently than similarly
situated individuals who do not have disabilities.” Id.
       {¶24} Plaintiff contends that OSU failed to discipline a co-worker, Ernie White,
after OSU received a report that staff had smelled the odor of alcohol on White.
White’s deposition and the evidence attached thereto shows that White was confronted
about those allegations and he received a warning letter on February 11, 2011. As
noted above, prior to August 24, 2012, OSU had received reports that plaintiff had
smelled of alcohol during working hours. However, plaintiff was not confronted and
placed on administrative leave until he was observed with alcohol and admitted that he
had been drinking at work. More significantly, plaintiff refused to submit to a drug and
alcohol screening test.
       {¶25} The undisputed evidence demonstrates that plaintiff and White were not
similarly situated in the relative severity of their violations of OSU’s Drug-Free
Workplace policy. Moreover, OSU demonstrated that plaintiff cannot satisfy his initial
 Case No. 2013-00388                        -8-                                    ENTRY



burden of establishing a prima facie case of disability discrimination. Plaintiff has not
reciprocally demonstrated that a genuine issue exists for trial on that issue. Therefore,
defendant is entitled to judgment as a matter of law on plaintiff’s disparate treatment
claim.
         {¶26} For the foregoing reasons, and construing the facts most strongly in
plaintiff’s favor, the court finds that there is no genuine issue as to any material fact and
that defendant is entitled to summary judgment as a matter of law.              Accordingly,
defendant’s motion for summary judgment is GRANTED and judgment is rendered in
favor of defendant. All previously scheduled events are VACATED. Court costs are
assessed against plaintiff. The clerk shall serve upon all parties, notice of this judgment
and its date of entry upon the journal.



                                          _____________________________________
                                          PATRICK M. MCGRATH
                                          Judge

cc:


Daniel H. Klos                                Randall W. Knutti
4591 Indianola Avenue                         Assistant Attorney General
Columbus, Ohio 43214                          150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Filed January 6, 2015
Sent To S.C. Reporter 12/31/15
