Steven Hank v. Great Lakes Constr. Co. ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0535n.06
Case No. 19-3118
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 18, 2019
STEVEN M. HANK, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
GREAT LAKES CONSTRUCTION COMPANY; ) DISTRICT OF OHIO
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL 18, )
) OPINION
Defendants-Appellees. )
BEFORE: MOORE, McKEAGUE, and LARSEN, Circuit Judges.
McKEAGUE, Circuit Judge. This court once observed, “[w]hen a party comes to us with
nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortg.
Co. v. Chi. Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012). Steven Hank comes to us with twenty-
seven.
Hank’s case involves his termination from Great Lakes Construction Company.
Defendants are Great Lakes and Hank’s union, Local 18, International Union of Operating
Engineers. Hank claims that his termination was discrimination and retaliation. Great Lakes and
the Union claim it was because Hank falsified his daily timecards. They also point out that Hank
signed a release that bars his claims. The district court agreed with Great Lakes and the Union and
granted them summary judgment. Hank now comes to us with twenty-seven grounds on which the
Case No. 19-3118, Hank v. Great Lakes Construction Co. et al.
district court erred. We find none of Hank’s grounds persuasive and therefore AFFIRM the
judgment of the district court.
I.
Before his termination, Hank worked as a sandblaster for Great Lakes. He was also a
member of the Union. He began working for Great Lakes in October 2007.
In March 2012, Hank was injured on the job. He tore his meniscus and eventually needed
knee surgery. A few months after the accident, he filed a claim with the Ohio Bureau of Worker’s
Compensation. That claim became a source of tension between Hank and Great Lakes.
Hank wanted more recovery time than Great Lakes was willing to grant him. He alleged
that it would take six weeks to recover from his knee surgery, but Great Lakes let him have only
thirteen days of unpaid leave. Hank came back to work after only a week and a half of unpaid
leave, and he continued to have problems with his knee after he did.
Going back to the Ohio Bureau, Hank requested that Great Lakes cover his prescribed
therapies for the complications he experienced after returning to work, including gel injections and
occupational therapy. Great Lakes rejected these requests.
Around October and November of 2015, Hank allegedly told his supervisor that he would
be filing additional worker’s compensation claims. According to Hank, this is when Great Lakes
started spying on him to catch him in some act that would justify terminating him.
Then on January 22, 2016, Hank was called into a meeting. There were six other people in
the room: five were Great Lakes managers and the other was Hank’s union representative. The
managers alleged that Hank had falsified some of his employee timecards, meaning he had been
paid for work he did not do. They presented Hank with the timecards and offered to show him
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video-surveillance footage, which allegedly showed Hank showing up for work later than the time
listed on his cards. Hank declined to watch.
The Great Lakes managers then stepped out of the room to give Hank time to consult with
his union representative, which he did. When the managers came back, they presented him with a
release, entitled the “Acknowledgement and Agreement.” The release reads, in its entirety:
The Great Lakes Company (“Great Lakes”) agrees that instead of terminating
Steven Hank for falsification of time records, it will place him on lay-off status with
no right to recall. In return, Hank agrees that he will not file a grievance under the
Collective Bargaining Agreement and that he will not pursue or file any sort of
claim against either Great Lakes or his Local 18 of the International Union of
Operating Engineers (“Union”). Mr. Hank agrees that he will not seek
reemployment at any time in the future with Great Lakes. The Union agrees that it
will not pursue or file any grievances on Mr. Hank’s behalf.
Hank allegedly asked for clarification, wanting to know what difference it made to be put
on layoff status. Great Lakes informed him that if he signed the release and took the layoff status,
then he could get unemployment benefits. Shortly after, Hank signed the release, and the meeting
ended. Sure enough, Great Lakes placed Hank on layoff status and then paid him unemployment
benefits.
About a week later, Hank filed a union grievance. In it, he alleged that he had been
terminated because of his ongoing worker’s compensation claim with Great Lakes. The Union
reviewed the evidence against Hank, including the timecards and the surveillance footage, and
determined not to pursue the grievance because Great Lakes had sufficient evidence to terminate
Hank for cause.
Hank then sued. He brought claims against both Great Lakes and the Union in the
Cuyahoga Court of Common Pleas. Most of the claims were under Ohio state law: disability and
age discrimination under Ohio Rev. Code § 4112.02 and § 4112.14, along with worker’s
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compensation retaliation under Ohio Rev. Code § 4123.90. The one federal claim was “Count IV,”
which was labeled “Company Breach of Collective Bargaining Agreement / Union Breach of Duty
of Fair Representation (Hybrid Section 301 Infraction).” Defendants then removed the case to the
Northern District of Ohio, which had federal-question jurisdiction over Count IV under Section
301 of the Labor Management Relations Act, 28 U.S.C. § 185 (even though Hank didn’t cite the
statute in his complaint), and supplemental jurisdiction over the remaining claims under 28 U.S.C.
§ 1367.
On July 17, 2018, the court granted summary judgment in favor of Great Lakes. It found
that Hank was barred from raising any of the claims against Great Lakes because he knowingly
and voluntarily signed a valid release. A few months later, the court also granted summary
judgment in favor of the Union, dismissing the federal Section 301 claim. It found that Great Lakes
had not breached the collective bargaining agreement and the Union had not breached its duty of
fair representation. The court then declined to continue exercising supplemental jurisdiction over
the remaining state-law claims. Hank then filed this appeal, challenging the grants of summary
judgment.
Standard of Review
We review grants of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614,
620 (6th Cir. 2009). Summary judgment is proper when “there is no genuine dispute as to any
material fact” and the moving party is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). We look at the facts in the light most favorable to the nonmoving party and determine
whether a reasonable jury could find in his favor. Bennett v. City of Eastpointe, 410 F.3d 810, 817
(6th Cir. 2005).
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II.
Hank asserts claims against two defendants: Great Lakes and the Union. We proceed by
looking first at the claims against Great Lakes, then at those against the Union.
A. Great Lakes
Great Lakes succeeded on its motion for summary judgment because the district court
found that all the claims against the company were barred by the release. Accordingly, our review
of those claims is limited to one question: can the release be validly enforced against Hank? Hank
gives several reasons why the answer should be no: (1) the release illegally waives nonwaivable
rights, (2) the release is not supported by consideration, and (3) Hank did not sign the release
knowingly and voluntarily. We find that each of these arguments is without merit.
1. Nonwaivable Rights
Hank first contends that the release is void ab initio, meaning it was void “from the
beginning” and thus was never enforceable. Black’s Law Dictionary (11th ed. 2019). This is
because, he argues, the release purports to waive some of Hank’s nonwaivable rights—
specifically, his rights to file claims for unemployment benefits, worker’s compensation, and
future discrimination. But this argument fails because Hank is not asserting any of those rights in
this case. Instead, he is asserting claims that were waivable and that he in fact did waive by signing
the release: a Section 301 claim, a retaliation claim, and two discrimination claims.
As a general rule of Ohio law, personal rights—whether contractual or statutory—can be
waived. Oliver v. Nat’l Collegiate Athletic Ass’n, 920 N.E.2d 196, 201 (Ohio Ct. Com. Pl. 2008)
(quoting State ex rel. Hess v. City of Akron, 7 N.E.2d 411, 413 (Ohio 1937)). Waivers will
generally be upheld as long as they do not violate public policy. Id. Accordingly, a release waiving
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the right to bring legal claims “is ordinarily an absolute bar to a later action on any claim
encompassed within that release.” Haller v. Borror Corp., 552 N.E.2d 207, 210 (Ohio 1990).
Here, Hank signed a release, saying he would not “pursue or file any sort of claim” against
Great Lakes or the Union. Hank brought several claims anyway, alleging discrimination,
retaliation, and labor-related theories. Yet he does not point to any public policy declaring these
claims nonwaivable, nor do we know of any such policy.1 From there it seems straightforward:
Hank signed a release that waived “any sort of claim” against Great Lakes and the Union, and he
now brings waivable claims that fall under the release, so under Ohio law he should be barred from
bringing those claims.
But Hank charts a different course. Instead of arguing that his claims in this case were not
waivable, he argues that the release is worded so generally that it could be applied to waive claims
that are in fact nonwaivable as a matter of public policy. Specifically, he argues that it could be
applied to bar claims for unemployment benefits, see Ohio Rev. Code § 4141.32, worker’s
compensation, see id. § 4123.80, and claims arising out of future discrimination, see Adams v.
Philip Morris, Inc., 67 F.3d 580, 584 (6th Cir. 1995). And because the release could be read to
waive certain nonwaivable claims, the release is void on its face and cannot be applied to bar
Hank’s claims. In other words, because the release could conceivably be applied in a way that
would be illegal, it cannot be applied under any circumstances.
That proposition is not reflected in Ohio law. An examination of how similarly worded
releases are applied will illuminate why. Consider, for example, the case of Bader v. Ferri, No. 1-
1
Moreover, several Ohio cases enforce similarly worded waivers under several of Hank’s chosen causes of action.
See Turner v. Salvagnini Am., Inc., No. CA2007-09-233, 2008 Ohio App. LEXIS 3036, at *14 (Ohio Ct. App. July
21, 2008) (“It is well-established that a party can waive claims of discrimination under R.C. 4112.02 in a release.”);
Cole v. Temple Israel, No. 23243, 2007 Ohio App. LEXIS 224, at *16–17 (Ohio Ct. App. Jan. 24, 2007) (enforcing a
release of worker’s compensation retaliation claim under Ohio Rev. Code § 4123.90).
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13-01, 2013 Ohio App. LEXIS 3122, at *17–22 (Ohio Ct. App. July 15, 2013). In Bader, the
plaintiff signed a release that waived “any and all claims” against the plaintiff’s university that
“may arise, grow out of, or be incident to” a medical diagnosis or treatment related to illness or
injury the plaintiff might sustain as a college athlete. Id. at *19. A release worded this generally
could conceivably be applied to claims of willful and wanton conduct, which the court noted were
nonwaivable. Id. Yet the court in Bader enforced the release to bar the plaintiff’s negligence
claims—claims that could properly be waived. Id. at *21–22.
In contrast, a similarly worded release was not enforced in G & J Pepsi-Cola Bottlers, Inc.
v. Ohio St. Dep’t of Job & Family Servs., No. 11AP-444, 2011 Ohio App. LEXIS 5543 (Ohio Ct.
App. Dec. 27, 2011). There, the plaintiff signed a general release, waiving his right to raise “any
and all claims . . . of whatever type or nature” against his former employer. Id. at *2. The court
construed this release to apply to his unemployment-benefits claim. Id. at *10. But under Ohio
statutory law, parties cannot legally waive their right to claim unemployment benefits. Id. (citing
Ohio Rev. Code § 4141.32). So the court refused to apply the release to bar the plaintiff’s
unemployment-benefits claim. Id. Ohio courts engage in similar analysis for worker’s-
compensation-claim waivers, see McHenry v. Mihm, No. 2829, 1992 Ohio App. LEXIS 1769, at
*4, 6–10 (Ohio Ct. App. Apr. 3, 1992), and prospective waivers of future discrimination claims,
see Adams, 67 F.3d at 584–85.
From these cases we can extract a simple rule: a generally worded release can bar claims
that are waivable, but it cannot bar claims that aren’t waivable. A general release is not void on its
face; rather, its enforceability depends on the claim that is to be released. If we were to reject this
rule and instead adopt Hank’s position, then practically every generally worded release would be
facially void, since any such release could conceivably be applied to claims where waiver is barred
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by statute. But this cannot be true, because Ohio courts routinely uphold and enforce general
releases. See, e.g., State ex rel. County of Cuyahoga v. Jones Lang Lasalle Great Lakes Co., No.
104157, 2017 Ohio App. LEXIS 4129, at *44–51 (Ohio Ct. App. Sept. 21, 2017).
Here, the release is generally worded, but it is being applied to claims that can be waived
without violating public policy. Therefore, the release was not void from the beginning.
2. Consideration
Hank next contends that the release is invalid for lack of consideration. According to Great
Lakes and the Union, there was consideration: Great Lakes would grant Hank layoff status instead
of firing him for cause, and in return Hank would release his claims against the company and the
union. Hank considers this insufficient. His theory boils down to five different arguments:
(1) granting the right to file for unemployment benefits is not consideration because Hank already
had the statutory right to file, (2) the exact consideration was not recited in the contract, (3)
granting layoff status is insufficient consideration because Hank was going to be laid off anyway,
(4) Hank signed the release under duress, and (5) there was a mutual mistake of material fact over
whether Great Lakes could prevent Hank from filing an unemployment-benefits claim.2 We find
each of these arguments unavailing.
To be enforceable under Ohio law, a contract must be supported by consideration. Lake
Land Emp’t Grp. of Akron, LLC v. Columber, 804 N.E.2d 27, 32 (Ohio 2004). “Consideration is a
bargained for exchange between parties.” Cuspide Props., Ltd. v. Earl Mech. Servs., Inc.,
53 N.E.3d 818, 830 (Ohio Ct. App. 2015). The exchange can involve “either a detriment to the
promisee or a benefit to the promisor.” Columber, 804 N.E.2d at 32. Here, Hank was receiving the
benefit of layoff status, as opposed to being fired for cause. In exchange, he was incurring the
2
Some of these are affirmative defenses to contracts, but Hank presents them as one umbrella consideration argument.
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detriment of waiving his right to bring claims against Great Lakes and the Union.3 Hank now
contests whether Great Lakes granting him layoff status is sufficient consideration.
Forbearance from exercising a legal right is sufficient consideration. HomEq Servicing
Corp. v. Schwamberger, No. 07CA3146, 2008 WL 2151996, at *5 (Ohio Ct. App. May 20, 2008).
And under the collective bargaining agreement, Great Lakes had the legal right to terminate Hank
for cause. Great Lakes retained the right to “discharge any employee whose work is
unsatisfactory.” The company could also terminate employees for “fail[ure] to observe the safety
precautions or other rules and regulations prescribed . . . for the health, safety, and protection of
its employees.” Moreover, in its employee manual, Great Lakes prohibits “[f]alsification of
company . . . forms, documents or records” and “[f]ailure to provide a fair day’s work for a fair
day’s pay.” Both actions are “misconduct” under the manual, and misconduct “will result in
disciplinary action, up to and including termination.” We therefore agree with the district court
that Great Lakes had the right under the agreement to fire employees for falsifying timecards, so
giving up that right is sufficient consideration for the release.
Moreover, in the employment context, promises to help facilitate a former employee’s
unemployment-benefits application are sufficient consideration. Bruner-Cox v. Dimengo, No.
17732, 1997 WL 72095, at *2–3 (Ohio Ct. App. Feb. 12, 1997). In Bruner-Cox, the court upheld
a settlement contract in which an employer promised not to challenge any unemployment-benefits
claim that the former employee brought. Id. As the district court correctly observed, such a promise
not to dispute an application for unemployment benefits is consideration under Ohio law.
3
Promising not to bring a colorable legal claim is sufficient consideration. Coate v. Harley, 52 N.E.2d 672, 674 (Ohio
Ct. App. 1943).
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Here, Great Lakes declined to terminate Hank for cause—forbearing something it had the
legal right to do—and granted him layoff status to facilitate his potential unemployment-benefits
claim. We agree with the district court that this is sufficient consideration under Ohio law.
Hank makes several arguments to the contrary, none of which are persuasive. He grounds
his first argument in the fact that he was already entitled to file for unemployment benefits under
Ohio statutory law. If Great Lakes was offering to allow Hank to file for unemployment benefits,
then that could not be consideration, because Hank would not be gaining any benefit; he already
could have filed for those benefits. See Ohio Rev. Code § 4141.32. True, but that’s not what Great
Lakes was offering. Great Lakes was not offering to allow Hank to file for unemployment benefits.
Instead, it was offering to facilitate his future claim by placing him on layoff status. And that
facilitation provided him with a benefit because it made it more likely that he would succeed on
his claim. Without layoff status, Hank’s chances of obtaining benefits were lower. Previous Ohio
cases illustrate why: claimants who filed for benefits after being fired for cause—specifically for
falsifying their timecards—have been denied. See, e.g., Schneider v. United Parcel Serv., Inc., No.
98504, 2013 WL 1183326, at *1–2 (Ohio Ct. App. Mar. 21, 2013). So that argument fails.
Second, Hank argues that the release was silent as to unemployment claims and benefits.
Effectively, this boils down to an argument that the consideration for a written agreement must be
stated in the agreement itself. But Hank cites no authority for this proposition, and it turns out that
quite the opposite is true in Ohio. “[C]onsideration for a contract need not necessarily be recited
or expressed in writing; instead, the consideration may be proved by parol evidence or may be
inferred from the terms and obvious import of the contract.” Harvest Land Co-Op, Inc. v. Hora,
No. 25068, 2012 WL 6554728, at *2 (Ohio Ct. App. Dec. 14, 2012) (citing 17 Ohio Jurisprudence
3d, Contracts, § 40). And here, Great Lakes has provided parol evidence of the consideration. As
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Great Lakes points out in its brief, both Hank and Great Lakes’ vice president of operations (who
was in the meeting with Hank) acknowledged in their depositions that the layoff status was granted
so that Hank could successfully get unemployment benefits. Therefore, we agree with the district
court that there was consideration even though the release did not facially mention unemployment
benefits.
Third, Hank argues that the consideration was a “sham” because he was going to be laid
off anyway. He points to internal emails from Great Lakes employees saying that the company
“may be parting ways with [Hank] soon” because “Lay-off season” was approaching. And because
Great Lakes was already going to lay him off, so the argument goes, offering to lay him off now
would amount to a “something-for-nothing” waiver. We disagree. Even if Hank is right that Great
Lakes already decided to lay him off months ago, that still does not make this a “something-for-
nothing” waiver, because the consideration for the release was laying him off instead of firing him
for cause. And as we’ve already discussed, foregoing the right to fire Hank for cause was both a
detriment to Great Lakes and a benefit to Hank.
Fourth, Hank argues that there was a mutual mistake of material fact that defeats
consideration. He claims that he only signed the release because Great Lakes said he “couldn’t
collect unemployment if [he] didn’t.” But this statement means that Hank and Great Lakes were
on the exact same page. As discussed above, if Hank filed for unemployment benefits after being
fired for falsifying his timecards, odds are he would have been denied. So in that sense, Hank
would not have been able to collect unemployment benefits unless he signed the release. That
means both parties knew exactly what the consideration was: placing Hank on layoff status so that
he could successfully collect the benefits. We thus agree with the district court that there was no
mutual mistake of fact.
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Finally, Hank argues that he signed the release under duress. He again cites no authority
for this argument. Under Ohio law, to succeed on a claim of economic duress, plaintiffs need to
show that they were subjected to a “wrongful or unlawful act” that deprived them of their
“unfettered will.” Blodgett v. Blodgett, 551 N.E.2d 1249, 1251 (Ohio 1990) (quoting 13 Williston
on Contracts § 1617, at 704 (3d ed. 1970)). It is not generally a “wrongful or unlawful act” if the
defendant threatens to do something that it is legally entitled to do. Togo Int’l v. Mound Steel
Corp., 665 N.E.2d 1160, 1164 (Ohio 1995). And because Great Lakes was entitled to fire Hank
for cause for falsifying timecards, threatening to do so is not a “wrongful or unlawful act,” so
Hank’s duress argument fails.
3. Knowing and Voluntary
In one final challenge to the release, Hank argues that he did not sign it knowingly and
voluntarily. We assume, as the district court did, that the five-part “knowing and voluntary”
standard is applicable for assessing whether a waiver is valid, and like the district court, we
conclude that Hank signed the release knowingly and voluntarily.
Under Sixth Circuit precedent, courts look to five factors when assessing whether a waiver
was knowing and voluntary:
(1) plaintiff's experience, background, and education; (2) the amount of time the
plaintiff had to consider whether to sign the waiver, including whether the
employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver;
(4) consideration for the waiver; as well as (5) the totality of the circumstances.
Seawright v. Am. Gen. Fin., Inc., 507 F.3d 967, 974 (6th Cir. 2007) (quoting Morrison v. Circuit
City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003) (en banc)). Accordingly, we will assess each
of these factors in turn.
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First, Hank has sufficient experience, background, and education. Hank is a forty-nine-
year-old man with a GED, post-high-school level proficiency in reading and word comprehension,
and high-school-level spelling skills.
On the first factor, Hank focuses on his lack of business or legal experience. But courts
have upheld releases signed by plaintiffs with even less experience. For example, as the district
court noted, in Sako v. Ohio Department of Administrative Services, the court upheld a release
even though the plaintiff, like Hank, had only the equivalent of a high school diploma and no
business or legal experience—plus, English was not his first language. No. 2:06-cv-0728, 2007
WL 1500905, at *6–7 (S.D. Ohio May 21, 2007). Although Hank attempts to distinguish Sako on
other bases, he does not dispute that the plaintiff there had less education and English
comprehension skills than he has.4 Instead, he points to cases in which the court upheld a release
as knowing and voluntary where the plaintiff was more qualified than him. These cases
demonstrate what could qualify as sufficient levels of experience and education, but nothing in the
cases establishes the levels described as the minimum levels necessary for a release to be knowing
and voluntary.
Second is the amount of time Hank had to consider the waiver, including whether he had
the opportunity to consult a lawyer. Hank argues that Great Lakes never informed him that he
could take additional time or consult an attorney. But Great Lakes didn’t need to. Factor two
weighs in favor of finding a knowing and voluntary waiver if the plaintiff simply does not request
more time to either review the waiver or consult an attorney. Shupe v. Asplundh Tree Expert Co.,
4
Hank’s best case on factor one comes from the Southern District of New York, a case called Grant-Hyndman v.
Olivetti Management of America, No. 95 Civ. 7736 (CSH), 1997 U.S. Dist. LEXIS 15690, at *7 (S.D.N.Y. Oct. 9,
1997). There, the court found that the plaintiff had the advantage under factor one because she had only a high school
diploma and, as a secretary, she did not have “substantial business experience.” Id. But that case is distinguishable:
the court there found that the release’s wording both was “misleading” and did not “in any way make clear the terms
of the bargain,” so someone with the plaintiff’s education and experience would not have understood it. Id. at *8–9.
In contrast, here the release was shorter and written in plain English.
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566 F. App’x 476, 482–83 (6th Cir. 2014). See also Schambon v. Orkin, LLC, No. 1:16-CV-00130-
GNS, 2017 WL 1319834, at *4 (W.D. Ky. Apr. 5, 2017); Moore v. Ferreligas, Inc., 533 F. Supp.
2d 740, 749 (W.D. Mich. 2008). Hank does not allege that he asked for either, so this factor weighs
in favor of finding a knowing and voluntary waiver.
Third is the clarity of the waiver. The district court concluded (and we agree) that because
the release was written in plain English and only one paragraph long, it was entirely possible for
someone of Hank’s ability to understand. There was no technical legal or business jargon, and it
made the terms of the bargain clear.
Fourth is the consideration for the waiver. As we already determined, this release was
supported by adequate consideration.
Finally, the court may consider the totality of the circumstances, meaning any additional
factors relevant to whether a release was knowing and voluntary. Hank does not cite any additional
circumstances under this factor; instead, he restates his previous arguments. We therefore find no
additional circumstances weighing in Hank’s favor.
Therefore, considering the five factors, we find that Hank signed the release knowingly
and voluntarily.5 We accordingly conclude that Hank knowingly and voluntarily signed a valid
release. Doing so barred his claims against Great Lakes, so summary judgment in its favor was
proper.
5
Hank also contends that he was constructively discharged and that the release he signed violated the Older Workers
Benefit Protection Act (OWBPA). On the constructive discharge point, all the cases he cites deal with employees
given the choice between termination and voluntary resignation, which was not the choice Hank was given. As the
district court noted, Hank does not explain why the constructive-discharge standard should be applied to his case.
Moreover, the analysis under constructive discharge, like that under waivers, turns on whether the employee’s actions
were voluntary. Because we have already concluded that Hank signed the release knowingly and voluntarily, we see
no reason engage in another duplicative discussion of voluntariness under a standard that does not apply to this case.
On the OWBPA point, that statute’s protections are irrelevant here. OWBPA “amended the Age Discrimination in
Employment Act (‘ADEA’), to set forth specific requirements for the release of ADEA claims.” Southworth v. N.
Trust Sec., Inc., 960 N.E.2d 473, 478 n.1 (Ohio Ct. App. 2011). Plaintiff has not alleged any violation of the ADEA,
and he does not argue that Ohio Rev. Code § 4112 incorporates the OWBPA’s protections.
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B. The Union
We now turn to the judgment in favor of the Union. The district court reached a merits
decision only on one claim, the “Hybrid Section 301” claim. Once it determined that the claim
should be dismissed, it then remanded the remaining state-law claims to the Ohio state court. Thus,
our review is limited to the Section 301 claim.
Hank alleges that the Union breached its duty of fair representation to him. His complaint
refers to this claim as a “Hybrid Section 301,” meaning Section 301 of the Labor Management
Relations Act (LMRA). 28 U.S.C. § 185. But Hank now alleges that his claim against the Union
also arises under Section 9(a) of the National Labor Relations Act (NLRA). 29 U.S.C. § 159(a).
Which raises a preliminary question: what’s the difference?
Both Section 9(a) of the NLRA and Section 301 of the LMRA deal with unions breaching
their duties of fair representation to their members. Courts have interpreted Section 9(a) to impose
on unions a freestanding duty of fair representation, not connected to any collective bargaining
agreement. Vencl v. Int’l Union of Operating Eng’rs, Local 18, 137 F.3d 420, 424 (6th Cir. 1998).
In contrast, claims under Section 301 must be connected to a collective bargaining agreement; to
succeed, plaintiffs must show both that the employer breached the agreement and that the union
breached its duty of fair representation. Id.In his complaint, Hank mentioned only Section 301. But he now argues that he can survive
summary judgment under Section 9(a) as well. The district court determined that his complaint
was really one under Section 301, so it declined to hear his Section 9(a) argument. We agree.
To be sure, Hank is correct that he did not need to cite Section 9(a) in his pleadings in order
to assert a Section 9(a) argument at some point in the case. Under the Federal Rules of Civil
Procedure, a complaint need only contain “a short and plain statement” setting out the grounds for
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relief. Fed. R. Civ. P. 8(a)(2). Accordingly, plaintiffs need not expressly cite a cause of action in
their complaint for it to sufficiently raise a claim under that cause of action. Knapp v. City of
Columbus, 93 F. App’x 718, 720 (6th Cir. 2004) (“The Federal Rules of Civil Procedure simply
do not require any magic words or recitations to be made in a complaint . . . .”).
But the Federal Rules of Civil Procedure are not the only relevant authority. Also
applicable here is White v. Anchor Motor Freight, Inc., 899 F.2d 555, 561–62 (6th Cir. 1990). That
case dealt with a claim that, according to the plaintiff, arose under both Section 9(a) of the NLRA
and Section 301 of the Labor Management Relations Act. Id. When faced with such a claim, the
White court instructed courts to look to the complaint’s “essential nature” to determine whether
the claim properly falls under Section 9(a) or Section 301. Id. at 562. Accordingly, if the complaint
states a “colorable claim” under the collective bargaining agreement, then it should be construed
as a Section 301 claim. Pratt v. UAW, Local 1435, 939 F.2d 385, 389 (6th Cir. 1991); Cavanaugh
v. UAW Int’l Union, No. 15-13223, 2017 WL 445599, at *6 (E.D. Mich. Feb. 2, 2017).
Here, not only is there a colorable claim under the collective bargaining agreement, the
complaint itself alleges that the Union breached its duty of fair representation under the agreement.
See Vencl, 137 F.3d at 425. Accordingly, we agree with the district court that this case properly
falls under Section 301 of the Labor Management Relations Act.
Under Section 301 of the LMRA, plaintiffs can sue for “violation of contracts between an
employer and a labor organization,” more often called collective bargaining agreements. 28 U.S.C.
§ 185(a). Often, as here, plaintiffs will bring so-called “hybrid” claims under Section 301, which
implicate both the employer and the union. See Hines v. Anchor Motor Freight Co., 424 U.S. 554,
570–71 (1976). To succeed on a hybrid claim against either the employer or the union, the plaintiff
“must show that the Company breached the Agreement and that the Union breached its duty of
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Case No. 19-3118, Hank v. Great Lakes Construction Co. et al.
fair representation.” Id. Unless the plaintiff “demonstrates both violations, he cannot succeed
against either party.” Bagsby v. Lewis Bros. of Tenn., 820 F.2d 799, 801 (6th Cir. 1987).
Accordingly, if Great Lakes did not breach the collective bargaining agreement, then Hank’s
Section 301 claim against both Great Lakes and the Union must fail.
Under the agreement, Great Lakes had the authority to “discharge any employee whose
work is unsatisfactory.” Great Lakes was to be the “sole judge” of whether an employee’s work
was satisfactory. Great Lakes also retained “its inherent rights to manage its business.”
Hank, for his part, points to the same provision of the agreement, just to different language
in that provision. The language Hank cites gives Great Lakes the right to discharge employees who
“fail[] to observe the safety precautions or other rules and regulations prescribed by [Great Lakes]
for the health, safety and protection of its employees.” Although Great Lakes maintained that its
rule against timecard falsification (in the employee handbook) fell under the “rules and
regulations” provision, Hank argues that this provision applies only to those rules or regulations
that are designed for the “health, safety and protection” of Great Lakes employees—and timecard
falsification has nothing to do with health, safety, or protection. Maybe. But we need not decide
how to read “rules and regulations” under the agreement, because Hank does not rebut Great
Lakes’ argument on the other grounds. He does not explain why falsifying timecards shouldn’t
count as “unsatisfactory” work performance—at least beyond his own conclusory statement that
such falsification is not “work performance.” Nor does he explain why firing an employee for
“stealing time” from the company wouldn’t fall under Great Lakes’ retained “inherent right to
manage its business.” Therefore, we conclude that Great Lakes had the right to fire Hank for
falsifying his timecards under the collective bargaining agreement.
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Case No. 19-3118, Hank v. Great Lakes Construction Co. et al.
Hank also claims that his termination violated the collective bargaining agreement because
it was in retaliation for filing a worker’s compensation claim. However, we agree with the district
court that Hank has not produced any evidence to make out a prima facie case of retaliation, beyond
his own conclusory statements in his affidavit. Therefore, his retaliation claim also fails. Because
we find that there was no breach of the collective bargaining agreement, we need not address the
question of whether the Union breached its duty of fair representation. See Bagsby, 820 F.2d at
803.
III.
For those reasons, we AFFIRM the judgment of the district court.
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