00 SEP (:9 MIll: 36

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OrllO
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Plaintiff,
v. THE ESAB GROUP, INC. dba ESAB

)
1;: OOCV 2497 , ~ JuB~rGAOGliAN )

WELDING AND CUTTING PRODUCTS

~OMPLAINT

Defendant.

)

JURY TI~IAL DEMAND

)

and

) '::'l~lG . d . :'.'·_:REL·MAN

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WOf~KERS

OF AMERICA (UAW) LOCAL 1834

Rule 19 Defendant

i'JATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 alld Title I of the Civil Rights Act of 1991 to correct contilluillg unlawful employment practices on the basis of disability and to provide appropriate relief to Ivan H. Swwers. Jr.. and sililliarly situated persons, who were adversely affected by such practices The practices include, without limitation, the continuing publication and failure to keep confidential the medical condition and history of Ivan H. Stowers, Jr. and other similarly situated persons

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 USC §§ 451 1331,

1337, 1343 and 1345. This action is authorized and instituted pursuant to Section '107(a)

of the Americans witll Disabilities Act of 1990 ("ADA"), 42 US C § 12117(a), Wlllch

incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil f'<ig!1ls /\ct of

1964 ("Title VII"), 42 USC § 2000(e)-5(f)(1) and (3) and pursuant to Section 102 of the

Civil Rights Act of 1991. 42 USC §1981A

2, The employment practices alleged to be unlawful were and are beillg

committed within the jurisdiction of the United States District COLirt for the Northern District

of Ohio, Eastern Division

I:JARTIES

3. Plaintiff, the Equal Employrnent Opportunity Commission (the "Commlssloll"),

is the agency of the United States ot America charged with the administration,

interpretation and enforcement of Title I of the ADA and is expl-essly aUlllorized to briilg

this action by Seclloll 107(a) ot the ADA, 42 USC § 12117(a), Wlllch incorporales by

reference Section 706(fWI) and (3) ot Title VII, 42 USC §2000e-5lfj('l:

4. At all relevant times, Defendant. The ESAB Group Inc .. dba ESAB VJelding

& Cutting Products (the "Employer"), has continuously been an Ohio corporatloll doing

business in the State of Ohio and the City of Ashtabula, and has contillLloLisly had at least

15 employees.
5. At all relevant times, Detelldant Employer has contlnuoLisly beel: ,HI

employer engaged in an industry affecting commerce under Section 101 (5) of the ;,DA. 42

U.SC, §12111(5), and Section 101(7) of the ADA, 42 USC § 12111(7) whicll

-,
L

incorporates by reference Section 7U1 (y) and (h) of Title VII, 42 USC § 2000e (g) and

(h).

6. At all relevant times, Defendant Employer has been a covered enlllY under

Section 101 (2) of the ADA, 42 U.SC § 12111 (2)

7.

Defendant United Automobile Aerospace and Awiculturallmplement

Workers of America (UAW). Local 1834 (the "Union"), is Cl party to a coilloctive bargaining

agreement with the Defendant Employer and is therefore named as a party pUI suant to

Rule 19(a) of the Federal Rules of Civil Procedure In that, in it~ absellce CUlIlr;'l"le reilef

callnot be accorded among thuse alleady parties and it has an interest In the subject of

this action.

STATElY1ENT Of"CLAIMS

8.

More Hlan thirty days prior to the illstitution of this lawsuit Ivall H ~~lowers,

Jr. filed a charge with the Commission alleging Violations of Title I of the l\OA IJY IJetellcl:lIlt

Employer. All conditions precedent to tne institulion of this lawsuit have been fUlfilled.

9. Since at least May 1,1996. Defendant Employer has engaged in continlling

unlawful employment practices at its Ashtabula Ohio facility, in violation of Section I02(d)

of Title I of the ADA 42 USC §§12112(a) The practices include. v!lth0ut 1:::,;t3ti:lIl,

publishing and failing to confidentially l1Ialiltalil tile medical conditioll or IIlstury 01 iV:11l H.

Stowers, Jr, and other applicants and employees by

(A) failing to maintain information obtainea regarding the medical

condition or history of applicancants and employees on separate

torms and in separate medical files

(8) tailing to treat information obtained regardlrlg the medical condition or history of applicants and employees as a confidential medicoi record;
(C) tailing to use information obtained regarding the medical cOlldltion or Ilistory of an applicant or employee only ir, accOldCillCe V"iU ';iO:C of the ADA
10 The effect of the practices complained of in parawaph 9, has been to deprive Ivan H, Stowers, Jr, and similarly situated persons, of equal empio'lrnent opportunities and oHlerwise adversely affect their status as applicants and emplovees because of their disafJilities
11. The unlawful employment practices complained of in paragraplls 9 Gild I0, above, were intentional.
12. The unlawful employment practices complained of in paragraplls 9 and 10. above, were done with malice or with reckless indifference to the federally protected rights of Ivan H. Stowers. Jr, arld similarly situated persons
PRAYER FOR I,\ELlEF Wherefore, the Commission respectfully requests that this Court A. Grant a permanent injunction enjoining Defendclilt Employel' Its uf1:C("'S. successors, assig ns. and all persons In active concert or participatioll With It. frolll em; ali ing in (1) tile publication and failure to confidentially malntall1 the medlcai condition 011 'Is[ory of applicants, (2) the failure to treat infOimation obtained regarding the medical cer ,dillon or history of applicants and employees as a confidential medical record. ::lIId (3) tile t:.ilure to use information obtained regarding the medical condition or history of an applicclllt or

employee only in accordance with § 'I 02 of the ADA, and any otller elnploymellt practice which discriminates on the basis of disability
B, Order Defendant Employer to institute and carry out policies jJlac:tlces, and programs which provide equal employment opportunities for qualified individuals with disabilities, and Wllich eradicate the effects of its past and pre,;ent unlawfUl empioyment practices: and fUlthGr order uefenoarn Employer to maintaill as confidelltlai 'md on separate forms and in separate medical files the medical condition alld i11"tory of applicants and employees and that such inforrnatlon be used only in accordallce WIlli § 102 of the ADA
C. Order Defendant Employerto make whole Ivan H. Stowers. Jr., cwd similarly situated persons, by providing appruprlate afflrillative relief 1110cessary to eradicate the effects of its unlawfui employment practices.
D. Order Defendant Employerto make whole Ivan H. Stowers JI 'Jill sll11ii:lrly situated persons, by providing compensation for past and future pecuniary losses Ic?sultillg from the unlawful employment practices described in paragraphs 9 and 10. above, including past and future out-oi-pocket losses in amounts to be detefl11illed al ille]1.
E. Order Defendant Employer to make whole Ivan H. Stowers JI . :;1 ;cl Similarly situated persons, by providing compensation for past and future flOllikCUIKlly iesses resulting from the unlawful practices complained of In paragraph, 8 and 9 above. illcluding emotional pain, suffering, inconvenience, loss of enjoyment Clf life and hUllllllatlon. in amounts to be determined at trial.
F. Order Defendant Employerto pay Ivan H Stowers Jr ,Jllci sln'die;li} "ilu:,led

persons, punitive damages for its malicious and reckless conduct. as described in paragraphs 9 and 10, above, III amounts to be determined at tl-ial
G. Grant such further relief as the Court deems necessary ,md propel in the public interest.
H. Award the Commission its costs oi this action.
The Commission requests a JUlY trial on all questions offElct raised by its complaint.
C GI-egory Stewart Ceneral Counsel
Gwendolyn Young Reams Associate Gem~ral Counsel Equal Employment UfJportunity
Commission 1801'L" St. N W Washington 0 C 20507
~~
Regional Attorney CLarry. Watson@eeoc.CJov

a~ Howard R. Besser 100(8543) Trial Attorney Howard. Bessel@eeocC)Gv
EOUAL EMPLOYMEI'Jl UPPORTUNITY COrvHv11SSIOf'J
Cleveland District Off,Cl' Tower City-Skylight Olflce Tuw"" 'lG60 W Secono St ::)C:lk, (j:3IJ Clevelallo, Ohio 44:1:J- 1454 Tel. (216) 522-7675 Fax (216) 522-7430

 
 •

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION

)

)

)

Plaintiff

)

)

-vs-

)

)

THE ESAB GROUP, INC., d/b/a ESAB

)

WELDING AND CUTTING PRODUCTS )

)

Defendant

)

)

and

)

)

UNITED AUTOMOBILE, AEROSPACE

)

AND AGRICULTURAL IMPLEMENT

)

WORKERS OF AMERICA (UAW),.

)

fOCAL 1834

)

Rule 19 Defendant

)

--------------------------)

CASE NO. 1:00 CV 2497

JUDGE: PATRICIA A. GAUGH~

r-. ~._
;"""

~

- .-

C"::)

MOTION TO WITHDRAW IN ; f , A R f j

MEMORANDUM OF OPINI~N:AN

~

ORDER DATED FEBRUAR~.~~,20 /!~:;:

Plaintiff Equal Employment Opportunity Commission and Defendant ESAB Group Inc. ("the parties") jointly move this Court to withdraw section B.3 of its Memorandum of Opinion and Order dated February 19,2002. Plaintiff EEOC's Memorandum in Support of Motion to Withdraw in Part Memorandum of Opinion and Order Dated February 19, 2002 is attached and sets forth the grounds for this motion.

Pl-888053 .,,1
- - - - - - - - - - - - - - - - _. .---.--.~-

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DNISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION

)

)

)

Plaintiff

)

)

-vs-

)

)

THE ESAB GROUP, INC., d/b/a ESAB

)

WELDING AND CUTTING PRODUCTS )

)

Defendant

)

)

and

)

)

UNITED AUTOMOBILE, AEROSPACE

)

AND AGRICULTURAL IMPLEMENT

)

WORKERS OF AMERICA (UAW),.

)

LOCAL 1834

)

Rule 19 Defendant

)

--------------------------)

CASE NO. 1:00 CV 2497

JUDGE: PATRICIA A. GAUGH~
§ :l::--::~:--_..•
MOTION TO WITHDRAW IN~AR~ MEMORANDUM OF OPINI~~AN~
ORDER DATED FEBRUAR~1r-9: ~.'f";,20.J;"~'>

-"
""':::''I.'Q
;I'''~<J'M

-

Plaintiff Equal Employment Opportunity Commission and Defendant ESAB Group Inc. ("the parties") jointly move this Court to withdraw section B.3 of its Memorandum of Opinion and Order dated February 19, 2002. Plaintiff EEOC's Memorandum in Support of Motion to Withdraw in Part Memorandum of Opinion and Order Dated February 19, 2002 is attached and sets forth the grounds for this motion.

PI-8880S3 vI

-

-

WHEREFORE, the parties respectfully request that this Court withdraw section B.3 of its opmlOn.
Respectfully submitted,
NICHOLAS M. INZEO Acting Deputy General Counsel
C. LARRY WATSON Regional Attorney
JOHN D. SARGENT Supervisory Trial Attorney
~a,n1~~
SOLVITA A. MCMILLAN Bar # 0040011 solvita.mcmillan@eeoc.gov Trial Attorney U.S. Equal Employment Opportunity Commission Cleveland District Office Tower City - Skylight Office Tower 1660 West Second Street, Suite 850 Cleveland, OH 44113-1412 (216) 552-7453 Fax (216) 552-7430 Counsel for Plaintiff
Equal Employment Opportunity Commission
H~G~~
HAYES C. S OVER
PA LD. # 01388
hstover@kl.com Kirkpatrick & Lockhart LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6476 Fax (412) 355-6501 Counsel for Defendant The ESAB Group Inc.

2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

)

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION

)

)

Plaintiff,

)

)

v.

)

)

THE ESAB GROUP INC. dba ESAB

)

WELDING AND CUTTING PRODUCTS

)

)

Defendant

)

and

)

)

UNITED AUTOMOBILE, AEROSPACE AND )

AGRICULTURAL IMPLEMENT WORKERS )

OF AMERICA (UAW), LOCAL 1834

)

)

Rule 19 Defendant.

)

)

CIVIL ACTION NO.1 :00CV2497
JUDGE PATRICIA A. GAUGHAN
PLAINTIFF EEOC'S MEMORANDUM IN SUPPORT OF MOTION TO WlTHDRAWIN PART MEMORANDUM OF OPINION AND ORDER DATED FEBRUARY 19, 2002

Plaintiff EEOC and Defendant ESAB respectfully move this Court to withdraw section

B.3 of its Memorandum of Opinion and Order dated February 19,2002, a copy of which is

attached as Exhibit A. The parties have entered into a Settlement Agreement, a copy of which is

attached as Exhibit B, that resolves the EEOC's appeal in this matter. The parties agree that the

equities of the situation weigh in favor of withdrawing this section ofthe opinion and that the

public interest will be better served in so doing. As explained below, this Court has the authority

to grant such a joint motion, and the parties respectfully submit that this Court should exercise its

discretion to do so here.

1

-------------_. --

Backgrouud The EEOC brought this litigation against ESAB under the Americans with Disabilities Act (ADA). The EEOC contended that ESAB had violated the confidentiality provisions of the ADA by posting a manning schedule with a notation that one ofESAB's employees, Ivan Stowers, was receiving a reasonable accommodation. The EEOC argued that this posting revealed information about Stowers's medical condition, in violation of the ADA, 42 U.S.C. § 121l2(d)(4)(C). On February 19,2002, this Court granted ESAB's motion for summary judgment. In section B.3, the Court ruled that § 12112(d) applied only to information obtained through preemployment medical exams, voluntary exams that are part of an employee health program, or inquiries by the employer into the employee's ability to perform job-related functions. The Court concluded that none of these situations were applicable to ESAB's manning schedule. This section ofthe opinion was the only part that addressed the merits ofthe EEOC's case. The rest of the discussion concerned claims asserted by Stowers, who had intervened. Stowers has not appealed and his claims are not at issue in this motion. On April 18, 2002, the EEOC filed a notice of appeal to the United States Court of Appeals for the Sixth Circuit. The EEOC contended that this Court's reading of § 12112(d) was unduly restrictive. On April 26, 2002, the Sixth Circuit scheduled a mediation conference under Fed. R. App. P. 33 and 6th Cir. R. 33. Through this court-sponsored mediation, the EEOC and ESAB reached an agreement whereby the EEOC would move voluntarily to dismiss its appeal with prejudice. On July 30,2002, the Sixth Circuit dismissed the EEOC's appeal pursuant to the Settlement Agreement. As part of the Settlement Agreement, the EEOC and ESAB agreed to move jointly for
2

this Court to vacate section B.3 of the February 19, 2002 opinion. The Agreement provides that this Court's withdrawal ofthis portion of the opinion shall in no way be construed as a modification ofthe Court's decision, nor act in any way to affect the res judicata effect of the decision. In addition, the Settlement Agreement shall remain in force regardless of the Court's disposition ofthis joint motion.
Discussion A federal district court may exercise its discretion to vacate its judgment or opinion, in whole or in part, upon the parties' settlement. See, e.g., Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir. 1993) ("Even ifunder [Seventh Circuit precedent] the district court was not required to vacate its decision, it was authorized to do so."); Novell, Inc. v. Network Trade Ctr., 187 F.R.D. 657 (D. Utah 1999) (indicating the court's intention to grant ajoint motion to vacate in part); Lindsey v. Metro. Life Ins. Co., 929 F. Supp. 1435 (D. Wyo. 1996) (granting a joint motion to vacate); see also U.S. Bancom Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18,29 (1994) ("The determination [to grant vacatur] is an equitable one, and exceptional circumstances may conceivably counsel in favor of such a course.... Of course, even in the absence of ... extraordinary circumstances, a court of appeals presented with a request for vacatur of a districtcourt judgment may remand the case with instructions that the district court consider the request, which it may do pursuant to Federal Rule of Civil Procedure 60(b)."). In determining whether to withdraw section B.3 of its opinion, this Court must weigh the equities and balance the public interest against the interests of the parties. Thus, for example, in Motta v. District Director of INS, 61 F.3d 117, 118 (lst Cir. 1995) (per curiam), the First Circuit vacated the district court's judgment to effectuate a settlement between a federal agency and a private party after the agency lost in the district court. In that case, the INS was amenable to
3
--- -------------------------

complying with the result of the district court's judgment-granting a temporary stay of deportation proceedings-but appealed in order to seek reversal of what it viewed as "dangerous
and erroneous precedent" in the district court. rd. The First Circuit, after encouraging the parties
to settle at oral argument, found "no appreciable harm to the orderly functioning of the federal judicial system by vacating judgment." rd. The court recognized that
it can be argued that depriving the public and the judicial system of the precedential value of the district court's opinion works a kind of harm. But we do not believe that such a species of harm is entitled to take priority over the parties' best interests. Placing the former above the latter would be inequitable. This case contrasts with the usual appeal, where vacatur is only one consideration among others in a settlement. Here, the INS, as a repeat player before the courts, is primarily concerned with the precedential effect ofthe decision below.
rd.; see also Novell, 187 F.R.D. at 661 (noting that "Novell is a 'repeat player' and ... is concerned that notwithstanding the facts in the case at bar which distinguish it from other cases, a precedent could be perpetuated causing mischief in other cases and in future litigation.").
Moreover, although judicial precedents are "valuable to the legal community as a whole," U.S.
Bancom, 513 U.S. at 26, the public value of settled precedent carries "considerably less weight" when it is a district court opinion, rather than an appellate opinion, that is being vacated, as "its precedential value ... is limited to only its persuasive effect." Russman v. Bd. of Educ., 260 F.3d 114, 122 n.2 (2d Cir. 2001). Finally, although some of these cases involve settlements that
were conditioned on vacatur, the same considerations are in play even when the settlement is not so conditioned. See Microsoft v. Bristol Tech., 250 F.3d 152, 155-56 (2d Cir. 2001) (per curiam) (vacating the district court's order after the parties settled on appeal, apparently without conditioning the settlement on vacatur). [
[Much of the case law addresses motions to vacate the court's judgment entirely, thereby removing any claim- or issue-preclusive effect ofthe decision and potentially affecting the
4

-
In this case, as in Motta, the EEOC is a federal enforcement agency primarily concerned with the precedential effect of this Court's decision. As did the parties in Motta, the parties here reached their settlement with the assistance of the court of appeals. Thus, the considerations explained in Motta support this joint motion. Moreover, as this Court noted in its Order of May 2,2002, denying ESAB's motion for attorney's fees, the EEOC relied on agency Enforcement Guidance in bringing this case. The EEOC is concerned that outside observers will view its decision not to pursue an appeal as tacit agreement with this Court's legal interpretation of § 12112(d). This, in tum, might raise questions about the continuing validity of the EEOC's Enforcement Guidance or the EEOC's willingness to defend its interpretation ofthe statute. By withdrawing section B.3 ofthe opinion, this Court will ensure that there is no confusion as to the EEOC's position. It will ensure that the legal issues are "left open to be decided another day in future litigation." Novell, 187 F.R.D. at 661-62.
Conclusion For the foregoing reasons, the EEOC and ESAB respectfully request that this Court withdraw section B.3 of its Memorandum of Opinion and Order dated February 19,2002.
NICHOLAS M. INZEO Acting Deputy General Counsel
interests ofthird parties in a concrete manner. Cf. In re Memorial Hosp., 862 F.2d 1299, 1302 (7th Cir. 1988) ("A judgment also has preclusive benefits for third parties to the extent explained in Parklane HosieI)' Co. v. Shore, 439 U.S. 322 [] (1979).... To the extent an opinion permits the invocation of Parklane, it may have great value to strangers-a value that one or another party to today's case may try to appropriate in the settlement, but which is not theirs to sel!."). In this case, however, we do not ask the Court to vacate the judgment or remove the preclusive effect of its prior ruling. Rather, we ask only that the Court withdraw the part of its opinion that would have been at issue on appeal. Thus, preclusion does not need to be considered in the equitable balance here.
5

C. LARRY WATSON Regional Attorney JOHN D. SARGENT Supervisory Trial Attorney
a. '1.~
SO VITA A. MCMILLAN Bar # 0040011 solvita.mcmillan@eeoc.gov Trial Attorney U.S. Equal Employment Opportunity Commission Cleveland District Office Tower City - Skylight Office Tower 1660 West Second Street, Suite 850 Cleveland, OH 44113-1412 (216) 552-7453 Fax (216) 552-7430 Counsel for Plaintiff Equal Employment Opportunity Commission
6

--J.t-ll-ll 1111...

T-I'4 '.1l1li F-4tT

IN 1lIE UNITED STATES COUlT OF APPEALS FOR TaE SJXTH CIRCUlT

EQUAl. EMPLO\'MENT OPPOIlTUNlTY
COMMISSION.
ESAB GROUP,INC.,

)
) ) )
) ) No. 02·3431 ) ) ) )
)
)

aro.. 'l'be JWlIa \0 IbiI Sed a !If ApIIImeal ('"AIJ Em.. iii; ~ die Equal Smployalear

()pponuDiE)' o-aniuiOD ("'EEOC") IIId die ESAB

Inc. ("'ESABj. 1bis ~

RIOlvcs die iIIIa I'dIiDa OUt at_ EEOC'sla.. . .filaI'Pjur JiSAB III Jbe Umted S1atn

~ ColIn: fbrdle HarrlIaa 0isIric:I ofObio (No. 1:OO-CV·2497) and Ibe EEOC's appeal of
me disuict COUIfs 11IJIIDIAr)'J;~ Older to "!be Umted SlateS ColIn ofAppeals tbr Ihc Six1h

CIrcuit (No. 02-1431).

lu COIISiIIrnnoft ortbL: CCJVaIIDtS IPCl pmmisa • l:Inh.bel.:lW, die EEOC aDd ESAB

qreeasCollows:

.

1. WidIiIl rtmIlY cia,. of"lbl: dice ofthis Apcmall', SSAB sball teDder pa)'UieDr. by
cIIeeIc mid.: JIII)'IbIe 10h. Stowers,. iIIlbc amounr Df$5,OOO.OO. AI me JIIr'des

IFC thaI lba~ pI)'IDeDIS rcpmem "'"1'1 aISIdOr)' damaps lIDder litle VB I'I1ber

*' _loG " ••• SSAB 1lDOt reqwrcd to witbJiold WtCI (II" to make III)' employer
cGDIIl1RiliOAS FcdcnJ Jnsmmce CODlnbution Act (FICA) tIXeS, bul it must

is. ID 0lS bm 1099 b this paymcIII. 6SAB shull deliver Ibe check to Solvua

lIc:MilJlII, !!'SOC ClcveIIDd DiIuia 0fBc:e, 1660 West Secoad Slreef. SUite 8.50.

",.iII CIeYcIud, OR 44113-1412. ESAB sbaD pay 1D1erelo"t 81 die rate cak:1JJaIed UDder

21 U.S.C. , 1961 ClD lDy lamme1y

_so

2.

Wuhin

tell

~

. ofrccciviq

die

cbeclc.: '.I.'

"

'

HC"~
'"89'

from

BA

B,

Ihc

EEOC:

IIiIU JIII:M 111 dj"";.. willi prejudice ks IIppe&l oftbis ac:don (No. 02-3431)

3. Wldun leD days ofdle SixIb Circuit's djsmjslll oflhe EEOC's appeal,. EEOC
me . . ESAB sballlllOvejoinI:ly h diJtna COUIT rG v.aue IeCtlOD &3 ofill
Mv...·....,um utOpialon aDd OnIerclarcdFebnwy lSI, 2002. BEOC sbaIl drat't tile Motion, SIIbjca to SSAB's reYlCW aDd c:oncum:nce wnblbc ccmum. This
me AF:cmcrn IhlJl remaiD 111 ICpldless ofdle dist:ri= c:oun's disposinaa of
dIis joiDt mOIioIL The Coqn'. 'I¥i1bdraMl aftbis pconion orill opimon sbaII in DO

I'H'lIIllh'

Exhibit B

Jwl-'I-tz 11 :10. FrarOGC APPEI,U.lE SYCS

ZDZBB3708D -

T-tZ4 P.OliO' F-447

way be cOliliidertd as a uwdificalion oflhe CO\U't's decision, nor act in anyway to affect ~ res judicata effect of the decision.
4. Within tlIiny d;1)" oftbt date of t1us Agreement, ESAB shall review Ivan
Stowers's p,:nunnel file arid remove from It: (1) all doctor's nora, (2) any documents revI:&ling thaI Mr. Stowers is chsable4 or receiving a reasonable acCOmmodaOOll for a disabiliIY, and (3) any other documents rcvcaIing informauOl'l about Mr. Smwers's medical c.:mdition. Any documents removed from the persolLnel file dming thiS review sball be pl~ in Mr. Stowers's separate CODfidential medical file:. ESAD s!lall notify Solvita McMillau at the EEOC's CI.:velancl Dism Office when it has completed this nMew. ESAD shall pennil a r:pmenlllive from the EEOC to inspect Mr. Stowc:n's per90lUICi file II) v.mfy that ESAB has complied fUlly with the 1erms ofthis paragraph.
s. ESAB ail'C'=s tlUI it will not appMl the district coun'S Orcler dated May 2, 2002.
denying its moLion for annme:ys' fees.
6. Each patty shall bear its own cru;ts and attorneys' feel associated with this appeal.
Sianed and elated:
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
:~~Ltf:::-
Dlte: :1ly ~12.CJoZ,
ESAB GROUP. INC.
By: ff1," c, --.I~
Tule: fi~
Date: ~ d- 7, :;.. 0 0 ~

 
 208 F.Supp.2d 827 (2002)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
The ESAB GROUP, INC., dba, Esab Welding and Cutting Products, et al., Defendants.
No. 1:00 CV 2497.
United States District Court, N.D. Ohio, Eastern Division.
February 19, 2002.
828 *828 Howard R. Besser, U.S. Equal Employment Opportunity, Cleveland, OH, William E. Gerstenslager, Gerstenslager & Obert, Solon, OH, Solvita A. MacMillan, Solvita A. McMillan, John D. Sargent, C. Larry Watson, U.S. Equal Employment Opportunity, Cleveland, OH, for Plaintiff.
Joyce Goldstein, Bryan P. O'Connor, Goldstein & O'Connor, Cleveland, OH, Hayes C. Stover, Kirkpatrick & Lockhart LLP, Pittsburgh, PA, for Defendants.
Memorandum of Opinion and Order
GAUGHAN, District Judge.
Introduction
This matter is before the Court upon cross motions for summary judgment filed by Defendant United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1834 (hereafter "UAW" or "the union") (Doc. 23), Defendant the ESAB Group, Inc. dba ESAB Welding and Cutting Products (hereafter "ESAB") (Doc. 24), Plaintiff the Equal Employment Opportunity Commission (hereafter "EEOC") (Doc. 27) and Intervenor Plaintiff Ivan Stowers, Jr. (hereafter "Stowers") (Doc. 26). This case arises out of alleged unlawful employment practices at ESAB, including that ESAB failed to maintain the confidentiality of medical records concerning Stowers and denied him the opportunity to work overtime based on his disability. For the following reasons, Defendant UAW's Motion for Summary Judgment is GRANTED; Defendant ESAB's Motion for Summary Judgment is GRANTED; Plaintiff EEOC's Motion for Summary Judgment is DENIED; and Intervenor Plaintiff's Motion for Summary Judgment is DENIED.
Facts
This action was filed by the EEOC on behalf of Stowers against ESAB, generally alleging that it violated Title I of 829 the *829 Americans with Disabilities Act, (hereafter "ADA")[1] in making unauthorized disclosures of employee
medical information. While the Complaint contains no allegations against the UAW, it was named a "Rule 19 Defendant" in that as a party to a collective bargaining agreement with ESAB it is alleged that complete relief cannot be accorded in its absence. Stowers was granted leave to intervene in this action as a plaintiff. The Intervening Complaint alleges that the union has failed to protect plaintiff's "contractual rights consistent with the collective bargaining agreement." With regard to ESAB, it restates the alleged violations regarding the confidentiality of medical records contained in the EEOC's complaint and adds that ESAB "failed to allow Plaintiff the opportunity to work overtime based upon his disability and in violation of the bargaining agreement." Finally, the Intervening Complaint alleges that ESAB violated Ohio's anti-discrimination statute by "discriminat[ing] against Plaintiff based upon his disability and fail[ing] to provide him with the opportunity to work overtime in a manner in accord with the prevailing collective bargaining agreement...."

Stowers was hired by ESAB on October 19, 1992. At all relevant times, Stowers has been a member of the UAW. (Stowers Depo. at 6, 116). He was hired as an "X-man" or hourly employee who fills in for other employees and is subject to swing shifts. (Stowers Depo. at 6, 11).
Stowers subsequently learned that he had diabetes and, by early 1996, he required multiple insulin injections each day to keep his blood sugar at normal levels. (Stowers Depo. at 22, 33-35). Stowers stated that he gives himself insulin injections near his locker or in the lunchroom at ESAB and has tested his blood sugar levels in the lunchroom. (Stowers Depo. at 21-22, 167, 173).
In mid-1996, Stowers bid on and was awarded a job in the Clean Coil Department, working a straight day shift. (Stowers Depo. at 11-12, 14, 26). His position in the Clean Coil Department subsequently became subject to rotating shifts.[2] (Stowers Depo. at 14). Stowers experienced difficulty controlling his blood sugar levels while working the rotating shifts. (Stowers Depo. at 26). In May 1996, he gave Ken Goeke, ESAB's manager of employee relations, a letter from his physician, Dr. Daniel Weiss, in which Dr. Weiss indicated that Stowers had Type I diabetes mellitus and could best manage this condition by working a "stable day shift." (Weiss letter, UAW Ex. C). Stowers asked Goeke for an accommodation which would authorize him to work the day shift only. (Stowers Depo. at 24-26).
Goeke advised Stowers that the seniority provisions of the collective bargaining agreement barred the company from displacing a more senior worker in order to accommodate Stowers, but indicated that he would discuss the matter with a UAW representative. (Goeke Depo. at 25-27).
In June 1996, after consulting with union officials, ESAB assigned Stowers to a "permanent X-man job" wherein he would be required to work from 8:00 a.m. to 4:00 p.m. for varying five-day intervals filling in for other workers who were absent. (Goeke Depo. at 26-27, 50-51; UAW Ex. G). The collective bargaining agreement references a similar position but requires the replacement worker to complete the same shift as the absent employee. (Goeke 830 Aff. ¶ 5). ESAB therefore created *830 this position for Stowers in order to comply with his need for steady day shift employment and because Stowers did not have sufficient seniority to obtain any of the 8:00 a.m. to 4:00 p.m. positions listed in the collective bargaining agreement. (Goeke Aff. ¶ 5; Goeke Depo. at 31; 52-54, 85-86; Houser Depo. at 14-16; Stowers Ex. 4).[3]
In this new position, Stowers was assigned to a "hodgepodge of [tasks] to keep him occupied." (Houser Depo. at 14). The record reflects that he was generally assigned, on a weekly basis, to fill in at a specific job classification. (Stowers Ex. 1). If no job opening was available, however, he was placed on special assignment and sometimes performed one job at the beginning of his shift and a different job at the end of his shift. (Stowers Ex. 1; Ruona Depo. at 23-24).
ESAB and Stowers disagreed as to whether overtime work would be available in this new assignment. (Goeke Depo. at 52). Ultimately, ESAB prepared a document which described the permanent X-man job and indicated that Stowers would be eligible for overtime and could also bid on other positions. (UAW Ex. G, H). Stowers refused to sign the document and Goeke continued to maintain that Stowers was not eligible to work overtime in light of the forty-hour work restriction and the fact that Stowers did not work changing shifts. (UAW Ex. F, G; Goeke Depo. at 52-54).
Stowers later indicated that in addition to his daylight shift requirement, he needed to work Monday through Friday only. (Stowers Ex. 5). Harold Goeke asked Stowers to obtain additional information from his physician concerning his recommendations about Stowers's work schedule. (Goeke Depo. at 41). On September 13, 1996, Dr. Weiss submitted a letter to ESAB which provided in relevant part:
*** Although his blood sugar control is now better on an 8:00 a.m. to 4:00 p.m. shift, his varying activities during work and his varying days off prevent optimum glycemic control. Mr. Stowers' health requires him to work Monday through Friday in a similar level of activity and a similar job position. His hours should remain 8:00 to 4:00. ***
(UAW Ex. H).

It is undisputed that following ESAB's receipt of this letter, ESAB had scheduled Stowers to work only Monday through Friday, 8:00 a.m. to 4:00 p.m. (Stowers Depo. at 59).[4]
ESAB posted a "manning schedule" available to the human resources department and those with a "need to know." (Goeke Aff. ¶ 7-8). The schedule utilized designations for employee vacancies such as "`ADA' (employee working with accommodation schedule according to physician)" and "`DIS' (off work for non-occupational disability)." (Goeke Aff. ¶ 7-8). Stowers states that he was identified as "ADA," "special" and "DIS." (Stowers Depo. at 29). ESAB maintains that these terms were discontinued in the fall of 1998. (ESAB Ex. 10, Goeke Aff. ¶ 7).
831 *831 Following Stowers's assignment to the replacement worker position on the day shift, other workers indicated that they felt that Stowers was receiving preferential treatment. (Goeke Depo. at 64). Stowers claims that he was subjected to harassment by the workers who referred to his "ADA" designation as "American Dick head Association." (Stowers Depo. at 89-90). Another worker saw him checking his blood sugar level in the lunchroom and threatened to "kick his ass." (Stowers Depo. at 89). Goeke apologized for what had happened. (Stowers Depo. at 91). They briefly discussed whether the worker should be reprimanded for the remark but Goeke did not know the policy regarding harassment. (Stowers Depo. at 90-91). Disciplinary actions were not taken, however, because the production manager believed that this would exacerbate the situation. (Ruona Depo. at 17-18).[5] ESAB did not implement sensitivity training or other measures to remedy this problem. (Goeke Depo. at 65-66).
On September 24, 1997, Stowers filed a charge of discrimination against ESAB with the EEOC alleging that from January 1997 to August 1997 ESAB harassed him and denied him a reasonable accommodation because of his disability in violation of the ADA. (ESAB Ex. 2). In a related questionnaire, he asserted that he was not given a reasonable accommodation at ESAB since he was required to continually switch work activities and that the company terminated his short term disability payments because he did not report to physical therapy for an injury sustained in July 1997. In a second questionnaire, Stowers stated that the union did not support him in his endeavor to obtain a reasonable accommodation, failed to pursue two of his grievances and failed to inform him of a special contract vote. (EEOC Ex. 1, Fetzger Aff. and Ex.). Plaintiff never filed an EEOC charge against the union.
On September 28, 1998, the EEOC determined that Stowers "was not discriminated against as alleged with regards to his failure to accommodate allegation." The EEOC further determined, however, that "the Respondent [ESAB] has violated the Americans with Disabilities Act by publicly revealing disability related information on Charging party and fellow co-workers who have also been assigned `special' disability related job assignments." (EEOC Ex. 1, Fetzger Aff. and Ex). The EEOC thereafter commenced this lawsuit.

Standard of Review

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir.1993).

The moving party bears the initial burden of showing the absence of any such genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present evidence in support of the complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). As explained in Fed.R.Civ.P. 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse

832

party may not rest *832 upon the mere allegations or denials of the adverse party's pleadings, but

the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The court must afford all reasonable inferences and construe the evidence in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), but the mere existence of a scintilla of evidence to support plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); In re Morris, 260 F.3d 654 (6th Cir.2001).
Discussion
A. UAW's Motion for Summary Judgment (Re: Intervenor Plaintiff's Complaint)
(1) Breach of Duty of Representation
The Intervening Complaint does not clearly allege a breach of duty of fair representation claim.[6] Assuming such was pled, the union argues that these claims were not filed within the applicable six-month statute of limitations. The union further argues that even if timely asserted, there is no evidence of violation of duty. Finally, the union asserts that Stowers did not exhaust the administrative remedies provided in the UAW's Constitution before commencing this action against the union.
Section 9(a) of the National Labor Relations Act (hereafter "NLRA") grants unions exclusive representational status over employees that make up a bargaining unit and imposes a duty of fair representation upon the representative union. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964); 29 U.S.C. § 159(a); accord Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842 (1967). This duty requires a union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Id.; see, also, Hoskins v. Local 1853 Intern. Union, United Auto, Aerospace and Agricultural Implement Workers of America, 1999 WL 618074, 188 F.3d 507 (6th Cir.1999), citing Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 584 (6th Cir.1994).
The union's duty does not depend on the existence of a collective bargaining agreement; rather, "it flows from the union's statutory position as the exclusive representative and exists both before and after the execution of an agreement." Pratt v. United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1435, 939 F.2d 385, 388 (6th Cir. 1991), citing Storey v. Local 327, 759 F.2d 517, 523 (6th Cir.1985). Section 9(a) of the NLRA, in conjunction with 28 U.S.C. § 1337, creates a jurisdictional basis for actions for breach of the duty of fair 833 representation independent of a cause of action against an employer or a union for claims *833 resulting from breach of a collective bargaining agreement. Id.
In DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-164, 103 S.Ct. 2281, 2289-2290, 76 L.Ed.2d 476 (1983), the Court noted that breach of duty of fair representation claims are allegations of unfair, arbitrary or discriminatory treatment of workers by unions and borrowing from the most closely analogous statute of limitations period, the Court determined that such claims are subject to the six-month limitations period of § 10(b) of the NLRA, 29 U.S.C. § 160(b). See, also, Adkins v. International Union of Elec., Radio & Mach. Workers, 769 F.2d 330, 335 (6th Cir.1985) (stating that section 10(b) applies "to all unfair representation claims, regardless of the nature or presence of the section 301 claim" against the employer.). This limitations period begins to run "when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts

constituting the alleged violation." Robinson v. Central Brass Mfg. Co., 987 F.2d 1235, 1238 (6th Cir.1993), citing Adkins v. International Union of Elec., Radio & Mach. Workers, supra.

Stowers complains that Local union committee officials Tom Naykki and Harold Best harassed him and told other workers that Stowers's accommodation gave him "super seniority" to displace other workers from their jobs. Stowers also asserts that Naykki and Best failed to pursue a grievance that he filed in August 1997 and that they failed to inform him of a contract vote in 1996 or 1997. Finally, he asserts that from 1996 through 1998, union officials Bernardez and Best refused to pursue his complaint that he was not given overtime.

The undisputed facts demonstrate, however, that by June 1999, both Naykki and Best no longer worked at ESAB. (UAW Ex. I). Furthermore, Stowers fails to allege conduct beyond 1998. The Intervening Complaint was filed on January 29, 2001. Accordingly, none of the foregoing claims were filed within the six-month limitations period and all fail as a matter of law.

Stowers also claims that the union breached its duty of fair representation by failing to assist him in obtaining a reasonable accommodation for his condition, was overtly critical of his pursuit of ADA assistance at the plant and did not "stick up" for him in his pursuit of a reasonable accommodation. However, it is clear that, as early as June 1996, union officials opposed giving Stowers the accommodation he sought since they believed that it conflicted with the seniority provisions of the collective bargaining agreement. Thereafter, in July 1996, after meeting with union officials and Stowers, ESAB prepared a written agreement designating Stowers as "a permanent X-man" working 8:00 a.m. to 4:00 p.m. Although he did not sign the agreement, Stowers accepted the position. At this time he knew or should have discovered the acts constituting the alleged violation. Accordingly, Stowers's claim of breach of duty of fair representation is untimely.

Stowers contends that the union's failure to assist him in obtaining a reasonable accommodation constitutes a continuing violation. In Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1001 (6th Cir.1994) (citations omitted), the Court recognized two types of continuing violation situations:

The first is one where occurrences within the six-month limitations period in and of themselves

may constitute, as a substantive matter, unfair labor practices. There, earlier events may be

utilized to shed light on the true character of matters occurring within the limitations period; and for

834

that purpose *834 § 10(b) ordinarily does not bar such evidentiary use of anterior events. The

second situation is that where conduct occurring within the limitations period can be charged to be

an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of

the earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a

putative current unfair labor practice. Rather, it serves to cloak with illegality that which was

otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit

the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.

Although Stowers complains that the union did not permit him to bid on other positions, he fails to describe any such situation occurring within the limitations period. To the contrary, ESAB's memorialization of the terms of the accommodation position specifically indicates that Stowers could in fact bid on other positions. Therefore, Stowers fails to demonstrate a continuing violation.

Finally, Stowers cannot prevail on his claims against the union due to his failure to exhaust the internal appeals procedures provided by the union. Before a union member may sue his union for breach of the duty of fair representation, he must exhaust the grievance procedure provided by the union constitution if the internal union appeals procedures can either grant the aggrieved employee full relief or reactivate his grievance. Clayton v. International Union, UAW, 451 U.S. 679, 692-96, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Courts have discretion to decide whether to require exhaustion if any of three factors are present: (1) union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; (2) the internal union appeals procedure would be inadequate either to reactivate his grievance or to award him the full relief he seeks; or (3) exhaustion of internal procedures would unreasonably delay his opportunity to obtain a judicial hearing on the merits of his claim. Id., 451 U.S. at 689, 101 S.Ct. 2088; Monroe v. International Union, UAW, 723 F.2d 22, 24-25 (6th Cir.1983).

Stowers did not file a complaint against the union with the Public Review Board of the UAW as required by the provisions of the UAW Constitution. (UAW Ex. R, Art. 32). Although Stowers asserts that it would have been futile to do so because of the hostility of his local officials, such contention is unpersuasive given that the review would actually have occurred before the Public Review Board which is independent of the UAW. (Klein Aff. ¶ 5-7). Accordingly, the failure to exhaust the administrative procedures has not been excused in this instance.
In accordance with all of the foregoing, there are no genuine issues of material fact and the union is entitled to judgment as a matter of law on Stowers's claim that the union breached its duty of representation in this matter.
(2) ADA Claim
The Intervening Complaint does not allege that the union discriminated against Stowers on the basis of his disability in violation of the ADA. The UAW argues that, to the extent that Stowers's complaint can be construed to set forth a claim that the union discriminated against him because of his medical disability, such claim must fail as a matter of law since Stowers did not file a charge against the UAW with the EEOC prior to filing this lawsuit.
To properly commence a federal court action alleging a violation of the ADA, a plaintiff must file an EEOC charge 835 in accordance with 42 U.S.C. § 2000e-5(e)(1) *835 within 300 days of the alleged discrimination. See 42 U.S.C. §
12117(a); 42 U.S.C. § 2000e5(e)(1); Brickers v. Cleveland Bd. of Education, 145 F.3d 846, 848 (6th Cir.1998). "A charge shall be in writing and signed and shall be verified." 29 C.F.R. § 1601.9.
Stowers argues that a questionnaire he completed in connection with his EEOC charge against ESAB which relates to the union satisfies the jurisdictional prerequisite. However, it is undisputed that Stowers only filed an EEOC charge against ESAB and not the union.
In accordance with the foregoing, there are no genuine issues of material fact and the union is entitled to judgment as a matter of law on Stowers's ADA claim against it.
B. ESAB'S Motion for Summary Judgment (Re: the EEOC Complaint and the Intervening Complaint)
(1) Reasonable Accommodation Claim under the ADA
The EEOC does not allege a failure to accommodate and, in fact, rejected Stowers's failure to accommodate allegation. Nor does Stowers allege that ESAB failed to reasonably accommodate him under the ADA but only, as discussed below, that its failure to allow him to work overtime violated the ADA.
(2) Denial of Overtime Claim under the ADA
Stowers alleges that ESAB violated the ADA by "failing to allow [him] the opportunity to work overtime based upon his disability...."
The Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. ("the FLSA") defines overtime as all hours worked in excess of 40 in a work week. See 29 U.S.C. § 207. Similarly, ESAB's collective bargaining agreement with the UAW provides:
Eight (8) hours of work shall constitute a normal or basic workday and forty (40) hours shall constitute a normal or basic work week. ***
ESAB argues that it specifically created Stowers's position in order to meet his day and hour requirements, i.e., 8:00 a.m. to 4:00 p.m. Monday through Friday, and that this position was not eligible for overtime until it had been first offered to every other employee.

The undisputed facts of record demonstrate that in 1996, Stowers experienced difficulty managing his diabetes while working changing shifts. He then requested an accommodation from ESAB which would permit him to work an 8:00 a.m. to 4:00 p.m. shift from Monday through Friday. The record also demonstrates that Stowers supported this request with letters from his physician, Dr. Weiss. In that this requested work week, by definition, precludes Stowers from working more than forty hours per week, it is impossible for ESAB to assign him to work overtime without violating the medical restrictions dictated by Stowers and his physician. Accordingly, by failing to schedule Stowers to work overtime, ESAB did not discriminate against him, but rather complied with the restrictions imposed due to his disability. This claim is, therefore, without merit.
(3) Breach of Confidentiality Claim under the ADA
Stowers and the EEOC argue that at the time ESAB responded to Stowers's first request for an accommodation, ESAB disclosed the fact that he had a disability by informing the union officials and publishing and posting the 836 "manning schedule" with notations after Stowers's name alerting employees that Stowers was receiving *836 an ADA accommodation. Stowers also learned that the company nurse disclosed his condition to the one of his coworkers. EEOC and Stowers argue that the use of the notations constitutes an unauthorized disclosure of medical information in violation of § 12112(d)(4)(C).
ESAB argues that the confidentiality requirements of the ADA are limited to information obtained in three situations that are not applicable here: (1) medical information regarding a job applicant obtained through a permissibly required preemployment medical exam; (2) medical information obtained through a voluntary exam that is part of an employee health program, or; (3) information obtained through inquiries by the employer into an employee's ability to perform job-related functions. Therefore, ESAB maintains that the ADA reference in the posting of the "manning schedule" is not a statutory violation.
This Court agrees. 42 U.S.C. § 12112(d)(2) pertains to preemployment examinations and inquiries and 42 U.S.C. § 12112(d)(3) pertains to employment entrance examinations. In this matter, the information at issue was not gained in connection with a preemployment medical examination or inquiry or an employee entrance examination. As such, these provisions are clearly not applicable to this matter.
In accordance with the foregoing, the claims that ESAB disclosed confidential medical information in violation of the ADA are without merit. ESAB is entitled to summary judgment as to these claims as a matter of law.
(4) Violations of O.R.C. 4112.02
Stowers alleges that ESAB violated the O.R.C. by discriminating against him based on his disability and by failing to provide him with the opportunity to work overtime. To the extent that this is considered as a reasonable accommodation claim in addition to the overtime claim, this Court declines to exercise its jurisdiction. The Sixth Circuit has a general rule disfavoring a district court's exercise of pendent jurisdiction when the federal issues are dismissed before trial. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)., 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Gaff v. FDIC, 814 F.2d 311 (6th Cir.1987).
In accordance with the foregoing, because Stowers cannot prevail on his federal claims for relief, his pendent state law claim under O.R.C. § 4112.02 is dismissed without prejudice.
C. EEOC's Motion for Summary Judgment
As set forth previously, ESAB is entitled to judgment as a matter of law on the EEOC's claim for disclosure of information pertaining to Stowers's medical condition. Accordingly, the EEOC's Motion for Summary Judgment on that claim is not well-taken and is denied.

D. Intervenor Plaintiff's Motion for Summary Judgment
As set forth previously, ESAB is entitled to judgment on Stowers's claim for denial of overtime and the claim for disclosure of confidential information. Accordingly, Stowers's Motion for Summary Judgement on these claims is not well-taken and is denied.
With regard to Stowers's claims against the union, as set forth previously, the union is entitled to judgment as a matter of law. That is, the union is entitled to judgment on Stowers's claim for breach of duty of fair representation and Stowers's ADA claim. Accordingly, Stowers's Motion for Summary Judgment on these claims is not welltaken and is denied.
837 *837 Conclusion
For the foregoing reasons, Defendant UAW's Motion for Summary Judgment is GRANTED; Defendant ESAB's Motion for Summary Judgment is GRANTED; Plaintiff EEOC's Motion for Summary Judgment is DENIED; and Intervenor Plaintiff Ivan Stowers's Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
[1] 42 U.S.C. § 12112(a).
[2] Under this schedule, the employee works a 4:00 p.m. to 12:00 a.m. shift for seven days, then gets two days off, works from 8:00 a.m. to 4:00 p.m. for seven days, gets two days off and works for six days from 12:00 a.m. until 8:00 a.m. (Stowers Depo. at 169).
[3] Stowers admits that other workers with more seniority are required to work swing shifts. (Stowers Depo. at 55). He also admits that he bid on straight day shift jobs but these jobs were ultimately awarded to employees who had more seniority than he had. (Stowers Depo. at 61).
[4] In late 1999, or early 2000, Stowers was primarily assigned to the mezzanine area of ESAB. (Houser Depo. at 15-16, 32-34). In April 2001, he was assigned to the Mig/Vaughn area of the plant to fill in for a worker receiving long term disability. (Houser Depo. at 32-34). He admitted that Mig/Vaughn assignment satisfies all of his "requisites for an accommodation." (Stowers Depo. at 75).
[5] Stowers also testified that he experienced other verbal attacks but he could not attribute them to his accommodation. (Stowers Depo. at 93-100).
[6] The Intervening Complaint clearly does not allege a "hybrid" action against ESAB and the union.
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 Northern District of Ohio - Docket Report

https://ecf.ohnd.uscourts.gov/cgi-bin/DktRpt.pl?482850360949146-L_3...

CMECF, Cat03, Perelman, Standard, Termed
U.S. District Court Northern District of Ohio (Cleveland) CIVIL DOCKET FOR CASE #: 1:00-cv-02497-PAG

Equal Employment Opportunity Commission v. The ESAB Group, Inc. et al Assigned to: Hon. Patricia A. Gaughan Cause: 42:12131 Americans with Disabilities

Date Filed: 09/29/2000 Date Terminated: 02/19/2002 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C. Larry Watson U.S. Equal Employment Opportunity Commission - Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216-522-7455 Fax: 216-522-7430 Email: larry.watson@eeoc.gov ATTORNEY TO BE NOTICED

Howard R. Besser INVALID - U.S. Equal Employment Opportunity 850 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1454 216-522-7675 Fax: 216-522-7430 Email: Howard.Besser@eeoc.gov ATTORNEY TO BE NOTICED

John D. Sargent INVALID - Equal Employment Opportunity Commission 850 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113-1454 216-522-7438 Fax: 216-522-7430 Email: John.Sargent@eeoc.gov ATTORNEY TO BE NOTICED

Solvita A. McMillan U.S. Equal Employment Opportunity Commission - Cleveland

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7/5/2007 9:22 AM

Northern District of Ohio - Docket Report
Plaintiff/Intervenor Ivan H. Stowers, Jr.
V. Defendant The ESAB Group, Inc. doing business as ESAB Welding & Cutting Products
Defendant United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834 Rule 19 Defendant
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https://ecf.ohnd.uscourts.gov/cgi-bin/DktRpt.pl?482850360949146-L_3...
3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216-522-7453 Fax: 216-522-7430 Email: solvita.mcmillan@eeoc.gov ATTORNEY TO BE NOTICED
represented by William E. Gerstenslager Gerstenslager & Obert 6500 Creekside Trail Solon, OH 44139 440-542-1900 Fax: 440-248-2150 Email: bill@gocolex.com ATTORNEY TO BE NOTICED
represented by Hayes C. Stover Kirkpatrick & Lockhart Preston Gates Ellis - Pittsburgh 535 Smithfield Street Pittsburgh, PA 15222 412-355-6500 Fax: 412-355-6500 Email: hstover@kl.com ATTORNEY TO BE NOTICED
represented by Bryan P. O'Connor Goldstein & O'Connor 1040 Leader Bldg. 526 Superior Avenue, E Cleveland, OH 44114 216-771-6633 Fax: 216-771-7559 Email: boconnor@unionlaw.cc ATTORNEY TO BE NOTICED
Joyce Goldstein Law Office of Joyce Goldstein 1040 Leader Bldg. 526 Superior Avenue, NE Cleveland, OH 44114 216-771-6633 Fax: 216-771-7559
7/5/2007 9:22 AM

Northern District of Ohio - Docket Report

https://ecf.ohnd.uscourts.gov/cgi-bin/DktRpt.pl?482850360949146-L_3...

Email: jgoldstein@unionlaw.cc ATTORNEY TO BE NOTICED

Date Filed 09/29/2000
09/29/2000 09/29/2000 09/29/2000 10/04/2000 10/27/2000 10/31/2000 11/09/2000
11/09/2000 11/09/2000
11/15/2000 11/15/2000

#

Docket Text

1 Complaint with jury demand (waivers issued) against The ESAB Group, Inc., United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834, filed by C. Larry Watson, John D. Sargent and Howard R. Besser on behalf of the Equal Employment Opportunity Commission. Filing fee waived. (Attachments: # 1 Civil Cover Sheet)(M, K). (Entered: 10/02/2000)
2 Random Assignment of Magistrate Judge Perelman.(M, K) (Entered: 10/02/2000)
3 Case Information Statement standard track filed by Howard R. Besser of Equal Employment Opportunity Commission on behalf of Equal Employment Opportunity Commission.(M, K) (Entered: 10/02/2000)
4 Notice of Placement of case in the CM/ECF Docketing System.(M, K) (Entered: 10/02/2000)
5 Case Management Conference Scheduling Order with case management conference to be held telephonically on 12/15/2000 at 09:30 AM before Judge Patricia A. Gaughan. Judge Patricia A. Gaughan (L-C, S) (Entered: 10/16/2000)
6 Motion for admission pro hac vice filed by Hayes C. Stover of Kirkpatrick & Lockhart LLP on behalf of The ESAB Group, Inc. (V, K A) (Entered: 10/30/2000)
Order (non-document) Granting Motion to appear pro hac vice, attorney Hayes C. Stover for The ESAB Group, Inc. added to case. (Related Doc # 6) Judge Patricia A. Gaughan (L-C, S) (Entered: 11/03/2000)
7 Motion and notice of Attorney Substitution filed by Solvita A. MacMillan & Howard R. Besser of Equal Employment Opportunity Commission on behalf of Equal Employment Opportunity Commission. Solvita A. MacMillan will serve as trial attorney. Appearance of Howard Besser is withdrawn. (V, K A) (Entered: 11/13/2000)
8 Waiver of Summons Returned on 9/29/00 filed by Hayes C. Stover of Kirkpatrick & Lockhart LLP on behalf of The ESAB Group, Inc..(V, K A) (Entered: 11/13/2000)
9 Waiver of Summons Returned 9/29/00 filed by Bryan P O'Connor of Joyce Goldstein & Associates on behalf of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834.(V, K A) (Entered: 11/13/2000)
10 Answer to Complaint (Related Doc # 1) filed by Hayes C. Stover of Kirkpatrick & Lockhart LLP on behalf of The ESAB Group, Inc..(V, K A) (Entered: 11/16/2000)
11 Corporate Disclosure Statement filed by Hayes C. Stover of Kirkpatrick & Lockhart LLP on behalf of The ESAB Group, Inc..(V, K A) (Entered:

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11/27/2000 11/27/2000 12/15/2000
12/18/2000 01/29/2001 02/16/2001 03/09/2001 04/06/2001
05/08/2001 11/01/2001 11/27/2001

11/16/2000)
12 Answer to Complaint (Related Doc # 1) filed by Bryan P O'Connor of Joyce Goldstein & Associates on behalf of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834.(V, K A) (Entered: 11/28/2000)
13 Corporate Disclosure Statement filed by Bryan P O'Connor of Joyce Goldstein & Associates on behalf of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834.(V, K A) (Entered: 11/28/2000)
15 Case Management Conference Plan: Case assigned to the Standard Track; non-expert discovery due by 6/29/2001; expert reports exchanged on or before 7/15/01 for plaintiff and 8/31/01 for defendant; Parties to be Joined and Pleading Amendments due by 3/1/2001, Dispositive Motions due by 8/3/2001, with status hearing to be held on 5/8/2001 at 9:00 AM. Judge Patricia A. Gaughan (L-C, S) (Entered: 01/04/2001)
14 Report of Parties Planning Meeting filed by Solvita A. MacMillan of Equal Employment Opportunity Commission on behalf of all parties.(K, V) (Entered: 12/19/2000)
16 Motion to intervene as a party plaintiff filed by William E. Gerstenslager of Gerstenslager & Obert on behalf of Ivan H. Stowers Jr.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(M, J A) (Entered: 01/30/2001)
Order (non-document): Plaintiff Stowers Motion to intervene is unopposed and granted. Judge Patricia A. Gaughan (Related Doc # 16) (L-C, S) (Entered: 02/20/2001)
17 Answer to intervenor Ivan H. Stowers' complaint (related document(s)16) Filed by Hayes C. Stover of Kirkpatrick & Lockhart LLP on behalf of The ESAB Group, Inc..(M, J A) (Entered: 03/09/2001)
18 Answer of Rule 19 deft. UAW Local 1834 to Ivan H. Stowers Intervenor complaint (related document(s)16) Filed by Bryan P. O'Connor of Joyce Goldstein & Associates on behalf of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834.(M, J A) (Entered: 04/09/2001)
19 Minutes/Order: Status Hearing was held. Non-Expert Discovery deadline is extended to 10/30/2001. Dispositive Motion deadline is extended to 11/30/2001. Settlement conference is set 11/1/2001 at 9:00 AM. The will be no further extensions. Judge Patricia A. Gaughan (L-C, S) (Entered: 05/14/2001)
20 Minutes/Order: Settlement Conference was held. Final Pretrial is set March 4, 2002 at 9:00 AM. Trial is set March 18, 2002 at 10:00 AM. Judge Patricia A. Gaughan (L-C, S) (Entered: 11/02/2001)
21 Motion for extension of time of filing date for dispositive motion until 12/7/01 filed by The ESAB Group, Inc.. (Attachments: # 1 proposed order)(C, K A) (Entered: 11/28/2001)

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11/29/2001
11/30/2001
12/07/2001 12/07/2001 12/07/2001 12/10/2001 01/02/2002 01/02/2002
01/07/2002 01/07/2002 01/08/2002 01/08/2002 01/16/2002

22 Marginal Entry Order: Defendant The ESAB Group, Inc., dba ESAB Welding and Cutting Products' Motion to Extend Filing Date for Dispositive Motion is GRANTED to 12/7/01. However, there will be no further extensions as the motion is scheduled to be decided in January. Judge Patricia A. Gaughan (Related Doc # 21) (L-C, S) (Entered: 11/29/2001)
23 Motion for summary judgment filed by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834. (Attachments: # 1 memorandum in support# 2 evidentiary and case appendix, complete document - 120 pages, on file in Clerk's Office)(C, K A) Modified text 11/30/2001 (C, K A). (Entered: 11/30/2001)
24 Motion for summary judgment filed by The ESAB Group, Inc.. (Attachments: # 1 brief in support# 2 affidavit of counsel)(C, K A) (Entered: 12/07/2001)
25 Appendix exhibits in support of motion for summary judgment (complete document on file in Clerk's Office) filed by The ESAB Group, Inc.. (Related document(s)24) (C, K A) (Entered: 12/07/2001)
27 Motion for summary judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in support# 2 Appendix (complete document on file in Clerk's Office))(S, R) (Entered: 12/10/2001)
26 Motion for summary judgment filed by Ivan H. Stowers Jr.. (Attachments: # 1 Memorandum in Support# 2 Appendix (1 Volume, Complete document on file in Clerk's Office))(M, EJ) (Entered: 12/10/2001)
28 Opposition (Related Motion(s) 23) to UAW's motion for summary judgment (complete 109 page document, including exhibits, on file in Clerk's Office) filed by Ivan H. Stowers Jr.. (C, K A) (Entered: 01/02/2002)
29 Opposition (Related Motion(s) 26) to intervenor's motion for summary judgment filed by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834. (Attachments: # 1 case supplement)(C, K A) (Entered: 01/03/2002)
30 Opposition (Related Motion(s) 26) to intervenor Stowers' motion for summary judgment filed by The ESAB Group, Inc.. (C, K A) (Entered: 01/07/2002)
31 Opposition (Related Motion(s) 27) to EEOC's motion for summary judgment filed by The ESAB Group, Inc.. (C, K A) (Entered: 01/07/2002)
32 Opposition (Related Motion(s) 24) to the ESAB Group, Inc.'s Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (McMillan, Solvita) Modified text 1/9/2002 (C, K A). (Entered: 01/08/2002)
33 Opposition (Related Motion(s) 24) to ESAB's motion for summary judgment (complete 87 page document including exhibits is on file in the Clerk's Office) filed by Ivan H. Stowers Jr.. (C, K A) (Entered: 01/09/2002)
34 Reply (Related Motion(s) 26) To ESAB'S Opposition to Stowers' Motion for Summary Judgment filed by Ivan H. Stowers Jr. (Gerstenslager, William) Modified text 1/17/2002 (C, K A). Additional attachment(corrected reply) added on 1/17/2002 (C, K A). (Entered: 01/16/2002)

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01/16/2002 01/16/2002 01/17/2002 01/17/2002
02/19/2002
02/19/2002
02/28/2002 03/05/2002 03/15/2002 03/19/2002

35 Deposition of Cheri A. Houser taken on 10/9/01 (complete 72 page document, including exhibits, on file in Clerk's Office) filed by Equal Employment Opportunity Commission. (Related document(s)27) (C, K A) (Entered: 01/17/2002)
36 Affidavit/Declaration (s) of Ivan H. Stowers, Jr. and Kristy Stowers filed by Ivan H. Stowers Jr.. (Attachments: # 1 declaration of Kristy Stowers)(Related document(s)26, 27) (C, K A) (Entered: 01/17/2002)
37 Reply (Related Motion(s) 27) to ESAB'S brief in opposition to EEOC'S motion for summary judgment on issue of liability filed by Equal Employment Opportunity Commission. (C, K A) (Entered: 01/17/2002)
38 Reply (Related Motion(s) 23) brief in support of motion for summary judgment filed by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834. (Attachments: # 1 exhibit T# 2 exhibit U# 3 exhibit V# 4 exhibit W# 5 exhibit X# 6 exhibit Y# 7 unpublished cases cited in UAW Local 1834's reply brief in support of motion for summary judgment)(C, K A) (Entered: 01/18/2002)
39 Memorandum of Opinion and Order: Defendant UAW's Motion for Summary Judgment is GRANTED; Defenant ESAB's Motion for Summary Judgment is GRANTED; Plaintiff EEOC's Motion for Summary Judgment is DENIED; and Intervenor Plaintiff Ivan Stowers's Motion for Summary Judgment is DENIED. Judge Patricia A. Gaughan (Related Doc # 23), (Related Doc # 24), (Related Doc # 26), (Related Doc # 27) (L-C, S) (Entered: 02/19/2002)
40 Jugment Entry: This Court, having issued its Memorandum of Opinion and Order grantint the Motions for Summary Judgment filed by Defendant United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1834 (Doc. 23) and Defendant the ESAB Group, Inc. (Doc. 24) and denying Motions for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission (Doc. 27) and Intervening Plaintiff Ivan Stowers, Jr. (Doc. 26), hereby enters judgment for Defendants. Judge Patricia A. Gaughan (Related document(s)39) (L-C, S) (Entered: 02/19/2002)
41 Bill of costs in the amount of $1,582.83 filed by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 1834. (Attachments: # 1 itemization in support# 2 exhibits A, B and C)(C, K A) (Entered: 03/01/2002)
42 Motion for attorney fees filed by The ESAB Group, Inc.. (Attachments: # 1 brief in support# 2 exhibit A# 3 exhibit B# 4 exhibit C# 5 proposed order)(C, K A) (Entered: 03/05/2002)
43 Unopposed Motion for extension of time of 15 days to respond to motion for attorneys' fees filed by Equal Employment Opportunity Commission. (Related document(s)42) (McMillan, Solvita) Modified on 3/19/2002 (H, D). (Entered: 03/15/2002)
44 Marginal Entry Order: Plaintiff Equal Employment Opportunity Commission's Motion for extension of time to oppose Defendant ESAB's motion for attorneys' fees is granted to 4/5/02. Judge Patricia A. Gaughan (Related Doc # 43) (L-C, S) (Entered: 03/19/2002)

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03/19/2002 04/05/2002
04/15/2002 04/18/2002
04/24/2002 04/30/2002 05/02/2002 08/05/2002 08/14/2002 08/20/2002

45 Motion for extension of time to oppose UAW's Motion for Attorney's fees filed by Ivan H. Stowers Jr.. (Gerstenslager, William) Modified on 3/20/2002 (L-C, S). (TERMED- Filed in error per atty Gerstenslager) (Entered: 03/19/2002)
46 Memorandum in Opposition (Related Motion(s) 42) to defendant ESAB's motion for attorneys' fees and costs filed by Equal Employment Opportunity Commission. (Attachments: # 1 Attachment A# 2 Attachment B Plaintiff's First Request for Production of Documents to the ESAB Group)(B, B) Modified text on 4/8/2002 (B, B). (Entered: 04/08/2002)
47 Reply (Related Motion(s) 42) brief in support of motion for attorney fees filed by The ESAB Group, Inc.. (C, K A) (Entered: 04/15/2002)
48 Notice of Appeal to the 6th Circuit Court of Appeals from the memorandum of opinion and order and judgment entry of 2/19/02 filed by Equal Employment Opportunity Commission. (Related document(s)39) (McMillan, Solvita) Modified on 4/18/2002 (H, S P). (Entered: 04/18/2002)
49 Acknowledgment from the USCA for Sixth Circuit of receipt of Notice of Appeal [USCA# 02-3431] (Related documents(s) 48) (H, S P) (Entered: 04/24/2002)
50 Transcript Order Form received. Transcript is unnecessary for appeal purposes. filed by Equal Employment Opportunity Commission. (Related document(s)48) (H, S P) (Entered: 05/01/2002)
51 Order: Defendant ESAB's Motion for Attorneys' Fees is DENIED. Judge Patricia A. Gaughan (Related Doc # 42) (L-C, S) (Entered: 05/06/2002)
52 True copy of order from the USCA for the Sixth Circuit: Dismissing the appeal upon stipulation of the parties to voluntarily dismiss [USCA# 02-3431]. Date issued 7/30/02 (Related documents(s) 48) (H, S P) (Entered: 08/07/2002)
53 Motion for order to withdraw in part memorandum of opinion and order dated 2/19/02 filed by Equal Employment Opportunity Commission. (Attachments: # 1 Brief in Support # 2 Exhibit A# 3 Exhibit B)(C, K A) (Entered: 08/14/2002)
54 Marginal Entry Order: Plaintiff Equal Employment Opportunity Commission's Motion to withdraw in part memorandum of opinion and order dated 2/19/02 is granted. Judge Patricia A. Gaughan (Related Doc # 53) (Related documents(s) 39) (L-C, S) (Entered: 08/23/2002)

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION

)

)

)

Plaintiff

)

)

-vs-

)

)

THE ESAB GROUP, INC. dba ESAB

)

WELDING AND CUTTING PRODUCTS )

)

Defendant

)

)

and

)

)

UNITED AUTOMOBILE AEROSPACE )

AND AGRICULTURAL IMPLEMENT

)

WORKERS OF AMERICA (UAW).

)

LOCAL 1834

)

)

)

IVAN H. STOWERS, JR.

)

746 Union Avenue

)

Ashtabula, Ohio 44004

)

)

Intervening Plaintiff

)

)

CASE NO. 1:00CV2497 JUDGE: GAUGHAN
INTERVENOR STOWERS COMPLAINT
MAG. JUDGE PERELMAN

NOW COMES the Intervening Plaintiff, by and through his undersigned counsel, W. E. Gerstenslager, and for his cause of action against the Defendants states as follows:
NATURE OF THE ACTION This is an action brought under Title ~ of the Americans with Disabilities Act of 1990 and Title 1 of the Civil Rights Act of 1991 to correct continuing unlawful employment practices based upon the disability of Ivan H. Stowers, Jr., who was adversely affected by the aforementioned practices. The unlawful practices include, but are not limited to, breach ofthe applicable collective bargaining agreement, the continuing publication and failure to keep confidential the medical condition and history ofIvan H. Stowers, Jr.
JURISDICTION AND VENUE
1. The Jurisdiction of this Court is invoked pursuant to 28 U. S. C. §§ 4541, 1331, 1337, 1343, 1345 and 1367. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U. S. C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title II"), 42 U. S. C. § 2000(e)-5(f)(I) and (3) and pursuant to Section 102 of the Civil Rights Act of 1991,42 U. S. C. §1981(A).
2. The employment practices alleged to be unlawful herein were and continue to be committed within the jurisdiction of the United States District Court for the Northern District of Ohio, Eastern Division.

PARTIES 3. Plaintiff: Intervenor, Ivan H. Stowers, Jr. is a citizen who works and resides within the jurisdiction of this Court and is the subject of the EEOC's Complaint in this action. 4. The Plaintiff EEOC is the Agency ofthe United States of America charged with the enforcement ofthe ADA and Title VII, as above. 5. The Defendant, The ESAB Group, Inc., dba ESAB Welding & Cutting Products ("Employer") has at all relevant times hereto, been a valid Ohio Corporation doing business within the jurisdiction of this Court and subject to the provisions of the ADA and Title VII, as above. 6. The Defendant United Automobile Aerospace and Agricultural Implement Workers ofAmerica (UAW), Local 1834 (the "Union") is a party to a collective bargaining agreement with the Defendant Employer and is named as a Party pursuant to Rule 19(a) ofthe F. R. Civ. P. in that in its absence, complete relief cannot be accorded among those already parties and it has an interest in the subject of this action.
STATEMENT OF CLAIMS 7. Plaintiff Ivan H. Stowers, Jr. filed a charge with the EEOC more than thirty days prior to the institution of this lawsuit by the EEOC alleging violations ofthe ADA. AIl conditions precedent to the institution ofthis lawsuit have been met. 8. Plaintiff Ivan H. Stowers, Jr. is, and has been at all times relevant hereto, a member ofUAW Local 1834, the Union, and has formaIly and informally requested that the Union protect his contractual rights consistent with the collective bargaining agreement with Defendant Employer and the Union has failed to do so. 9. Since at least May 1, 1996, Defendant Employer has engaged in continuing uulawful employment practices at its Ashtabula, Ohio facility, in violation of
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Section 102 (d) of Title 1 ofthe ADA, 42 u. S. C.§ 12112(a). The practices included but
are not limited to breach of the applicable collective bargaining agreement, publishing and failing to confidentially maintain the medical condition or history ofthe Plaintiff Stowers by:
(A) Failing to maintain information obtained regarding the medical history ofthe Plaintiff Stowers on separate and confidential forms and medical files;
(B) Failing to treat medical information obtained regarding the medical condition or history ofthe Plaintiff Stowers as a confidential medical record;
(C) Failing to use information obtained regarding the medical condition or history of the Plaintiff Stowers only in accordance with §102 ofthe ADA.
(D) Failing to allow the Plaintiff the opportunity to work overtime based upon his disability and in violation of the bargaining agreement.
10. The effect of the practices complained of in paragraphs 8 and 9, above, has been to deprive the Plaintiff Stowers of equal employment opportunities and to otherwise adversely affect his status as an employee because ofhis disability.
11. The unlawful employment practices complained of in paragraphs 8 and 9, above, were intentional.
12. The unlawful employment practices complained of in paragraphs 8 and 9, above, were done with malice, or with reckless indifference to the Plaintiffs federally protected rights.
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SUPPLENENTAL STATE CLAIMS
13. The Plaintiff incorporates the allegations in paragraphs 1 to 12 above as iffully rewritten herein.
14. This Court has Supplemental Jurisdiction over the State claims arising under O. R. C. § 4112.01, et seq. pursuant to 28 U. S. C. § 1367 (a).
15. The Defendant Employer has discriminated against the Plaintiff based upon his disability and failed to provide him with the opportunity to work overtime in a manner in accord with the prevailing collective bargaining agreement and in violation of O. R. C. § 4H2.02,et seq.
PRAYER FOR RELIEF
Wherefore the Plaintiff Stowers respectfully prays that this Court:
A. Grant a permanent injunction enjoining the Employer, its officers, agents, successors, assigns and all persons in active concert or participation with said Employer, from engaging in (1) the publication and failure to confidentially maintain the medical condition and/or history of the Plaintiff, (2) the failure to treat information obtained regarding the medical condition or history of the Plaintiff Stowers as a confidential medical record, (3) the failure to use information obtained regarding the medical condition or history ofthe Plaintiff Stowers only in accordance with § 102 ofthe ADA and any other employment practice which discriminates on the basis of disability,
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and (4) any practice and/or procedure denying Plaintiffthe opportunity to work overtime in a manner consistent with the applicable collective bargaining agreement and O. R. C. § 4112.01, et. seq.
B. Order the Defendant Employer to make whole the Plaintiff Ivan H. Stowers, Jr. by providing appropriate affirmative relief necessary to eradicate the effects of its unlawful employment practices.
C. Order the Defendant Employer to make whole the Plaintiff Ivan H. Stowers, Jr. by providing compensation for past, present and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8, 9 and 15, above, in amounts to be determined at trial of this matter.
D. Order the Defendant Employer to make whole the Plaintiff Ivan H. Stowers, Jr. by providing compensation for past, present and future nonpecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9, above, including emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation in amounts to be determined at trial of this matter.
E. Order the Defendant Employer to pay the Plaintiff Ivan H. Stowers, Jr. punitive damages for its intentional, malicious and/or reckless conduct resulting from the unlawful employment practices described in paragraphs 8 and 9, above, in amounts to be determined at trial of this matter.
F. Order the Defendant Union to comply with the collective bargaining agreement and guarantee Plaintiff's rights thereunder.
G. Award the Plaintiffhis costs of this action. H. Award the Plaintiff whatever other relief this Court finds just and equitable.
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JURy DEMAND The Plaintiff hereby requests a trial by jury on all questions of fact raised
by this Complaint.

W. E. Gers ens ager (0020756) GERSTENSLAGER & OBERT CO. 1995 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 (216) 579-1900

CERTIFICATE OF SERVICE

A copy of the foregoing Complaint has been mailed to the following by

'1lia regular Uuited States Mail this the 2

y of January, 2001.

Soh-ita McMillan, Esq. Trial Attorney, EEOC Cleveland District Office Tower City-Skylight Office Tower 1660 W. Second Street (Suite 850) Cleveland, Ohio 44113-1454 (216) 522-7675

Hayes C. Stover, Esq. Kirpatrick & Lockhart LLP Henry W. Oliver Bldg. 535 Smithfield Street Pittsburgh, PA 15222-2312 (412) 355-6476

ESABGroup

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Bryan O'Connor, Esq. 526 Superior Avenue Cleveland, Ohio 44114 (216) 771-6633

United Auto Workers

W. E. Gers ens ager (0020756) Attorney for Intervenor-Plaintiff

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 Docket Summary

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US Court of Appeals for the Sixth Circuit Case Summary

Court of Appeals Docket #: 02-3431 Nsuit: 1442 Civil Rights: Jobs EEOC v. ESAB Group Inc, et al Appeal from: Northern District of Ohio at Cleveland

Filed: 4/22/02

Lower court information: District: 0647-1 : 00-02497 Trial Judge: Patricia A. Gaughan, District Court Judge

4/29/02 4/30/02 5/6/02 5/6/02 5/6/02 5/22/02 6/7/02
6/19/02 7/19/02 7/29/02
7/30/02 7/30/02

APPEARANCE filed by Attorney Hayes C. Stover for Appellee ESAB Group Inc [02-3431] (nb)
TRANSCRIPT ORDER FORM filed by Solvita A. McMillan for Appellant EEOC: Transcript not needed. [02-3431] [2544510-1] (blh)
APPEARANCE filed by Attorney Bryan P. O'Connor for Appellee UAW Local 1834 [02-3431] (nb)
APPEARANCE filed by Attorney Lorraine C. Davis for Appellant EEOC [02-3431] (nb)
PRE-ARGUMENT STATEMENT filed by Lorraine C. Davis for Appellant EEOC [02-3431] (nb)
APPEARANCE filed by Attorney Joyce Goldstein for Appellee ESAB Group Inc [02-3431] (nb)
Briefing Letter Sent by CONFERENCE ATTORNEY'S OFFICE resetting briefing schedule: appellant brief now due 7/1/02 ; appellee brief due 7/31/02; reply due 8/14/02; joint appendix due 8/21/02; all finals due 9/11/02. [02-3431] (trm)
LETTER SENT by Conference Attorney Office notifying that a brief or stipulation to dismiss is due 7/22/02 for Joyce Goldstein [02-3431] (trm)
LETTER SENT by Conference Attorney Office notifying that a brief or stipulation to dismiss is due 7/29/02 for Joyce Goldstein [02-3431] (trm)
STIPULATION filed to dismiss pursuant to FRAP 42 and local rule 33 . Stipulation filed by Joyce Goldstein for Appellee ESAB Group Inc, Hayes C. Stover for Appellee ESAB Group Inc, Lorraine C. Davis for Appellant EEOC . (trm)
ORDER filed granting stipulation to dismiss pursuant to FRAP 42 and local rule 33 filed by Joyce Goldstein, Hayes C. Stover, Lorraine C. Davis [02-3431] . (nb)
LETTER SENT TO district court by nb sending a certified copy of order filed 7/30/02 . [02-3431] (nb)

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