Elbert Hogan v. Kokosing Construction Company ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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