Kovac v. Superior Dairy, Inc., 930 F. Supp. 2d 857

Kovac, disabled due to a prior accident, was hired by Superior Dairy as a yard tractor operator in June 2006 with medical restrictions limiting certain duties.
In 2007–2010 Kovac remained under restrictions, but after a management change in 2009 he was scheduled outside his permanent restrictions and the issue was resolved after Kovac notified Superior.
In November 2009 Kovac took twelve weeks of sick leave to be re-examined by a doctor hired by Superior; the examining physician reaffirmed Kovac’s restrictions and Kovac returned to work in March 2010.
Upon return, Kovac was assigned to the line lift operator, a restricted duty, but was threatened with termination and later moved to a restricted position after issues with his leg.
On December 14, 2010, Kovac was permanently assigned to the leak check position outside his restrictions; he sought medical review and was sent home, prompting two union grievances (Dec. 16–17, 2010) and Kovac’s termination for insubordination on Dec. 16, 2010.
The union declined to pursue arbitration under the CBA; Kovac filed EEOC and OCRC charges in April 2011; OCRC found no probable cause in Sept. 2011, reaffirmed no probable cause in Jan. 2012, and the EEOC adopted the findings in February 2012.
Kovac filed suit in May 2012 in Stark County; Superior removed to federal court and moved to dismiss/compel arbitration; the matter was fully briefed and is now ripe for ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Arbitrability of federal and state claims	CBA does not clearly and unmistakably waive statutory claims.	CBA’s broad arbitration clause requires arbitration of all disputes including statutory discrimination claims under Wright/Pyett standard.	Kovac’s federal and state discrimination claims are not arbitrable under the CBA; arbitration is not clearly and unmistakably waived.
Timeliness of Kovac's federal discrimination claim	Filing within 90 days of EEOC right-to-sue letter; five-day rule applies for receipt; timely filed.	Limitation period runs from mailing; argues untimely under five-day rule plus LR 4.2(c).	Count One timeliness is timely under the five-day rule; not barred.
Timeliness of Kovac's state discrimination claim	State claim independent of OCRC review is timely under Friendship Village/Smith approach.	OCRC decision and failure to appeal should bar the claim.	Kovac not barred; state claim admissible under Ohio law as independent action.
Plaintiff's IIED claim viability	Alleges intentional and extreme conduct causing severe distress.	IIED requires more than discriminatory termination; pleadings are insufficient.	Count Three is dismissed for failure to plausibly plead the first two elements.

Wright v. Universal Maritime Serv. Corp., 525 U.S. 70 (1998) (clear and unmistakable waiver required for statutory claims)
Bratten v. SSI Servs., Inc., 185 F.3d 625 (6th Cir.1999) (post-Wright, statutes must be specifically mentioned to approach waiver)
14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) (arbitration clause can require arbitration of statutorily protected rights if clear and unmistakable)
Kennedy v. Superior Printing Co., 215 F.3d 650 (6th Cir.2000) (general anti-discrimination provisions do not compel arbitration of statutory claims)
Smith v. Bd. of Trs. of Lakeland Cmty. Coll., 746 F.Supp.2d 877 (N.D. Ohio 2010) (Ohio adopts Wright standard for CBA arbitration of statutory claims)
Haynes v. Ohio Turnpike Comm’n, 177 Ohio App.3d 1 (2008) (state-law discrimination claims and arbitration provisions analyzed similarly to Wright)