Greenwood v. Delphi Automotive Systems Inc. (257 F. Supp. 2d 1047, 2003)

United States District Court for the Southern District of Ohio 2003-03-17

Citations

Full opinion text

DECISION AND ENTRY SUSTAINING THE MOTIONS OF CRYSTAL LONG AND TERI ENGLEMAN FOR SUMMARY JUDGMENT (DOC. #52); OF DELPHI AUTOMOTIVE SYSTEMS, INC., FOR SUMMARY JUDGMENT (DOC. #53), AND OF IUE LOCAL 755, DAVID HEIZER, GERALD SEEGE, EDWARD HARM AND JAMES CLARK FOR SUMMARY JUDGMENT (DOC. #55); PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. # 67) SUSTAINED; JUDGMENT TO BE ENTERED ACCORDINGLY; TERMINATION ENTRY

RICE, Chief Judge.

This litigation arises out of the alleged sexual harassment, harassment, and intimidation of Plaintiff Edward J. Greenwood (“Greenwood”), an employee of Defendant Delphi Automotive Systems, Inc. (“Delphi”), by two of his co-workers, Defendants Crystal Long (“Long”) and Teri Engleman (“Engleman”) (Doc. # l). In his Complaint, Plaintiff alleges that their conduct was known by Defendant Gerald Seege (“Seege”), an alleged Delphi supervisor, but that no action was taken. Plaintiff further alleges that he filed complaints with his union, Defendant IUE Local 755, but due to the conspiracy between union representatives David Heizer (“Heizer”), Edward Harm (“Harm”) and James Clark (“Clark”), his complaints were neither investigated nor addressed.

On June 30, 2000, Plaintiff initiated this litigation in the Montgomery County Court of Common Pleas (Doc. # 1), setting forth four claims for relief, to wit: (1) a state law claim for sexual harassment and hostile work environment, in violation of Ohio Rev.Code Ch. 4112, against Defendants Delphi, Seege, Long and Engleman; (2) a claim against Defendants IUE Local 755, Clark, Heizer and Harm (“the Union Defendants”) for breach of their duty of fair representation; (3) a state law claim against Defendants Heizer, Harm, Clark, Seege, Long and Engleman for conspiracy to inflict severe emotional distress; and (4) a state law claim by Plaintiffs wife for loss of consortium. On August 2, 2000, Delphi, with the written consent of the other Defendants, removed the action to this Court, alleging that the claims against the union and its representatives, as set forth in Count Two, are preempted by § 301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185(a) (id.). On August 28, 2000, Long and Engleman filed an Answer and Counterclaim (Doc. # 9), in which they asserted claims of defamation and abuse of process against Greenwood.

Pending before the Court are Defendants’ Motions for Summary Judgment, filed by Long and Engleman (Doc. # 52), Delphi (Doc. # 53), and the Union Defendants (Doc. # 55). Also pending is Greenwood’s Motion for Summary Judgment on Long and Engleman’s counterclaims (Doc. # 67). For the reasons assigned, all of the Motions for Summary Judgment are SUSTAINED.

I. Standard Governing Summary Judgment Motions

Summary judgment must be entered “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, All U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991)(The moving party has the “burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial ”)(quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(quoting Fed.R.Civ.P. 56(e)). Thus, “[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial.” Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994)(“The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff”). Rather, Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment shall be denied “[i]f there are ... ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ ” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties’ affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Fed eral Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), “[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)(“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment....”) Thus, a court is entitled to rely, in, determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

II. Factual. Background for Defendants’ Motions for Summary Judgment

Plaintiff Edward Greenwood, a 57 year old male, was hired by Delphi’s predecessor, General Motors Corporation, on November 8, 1965, and has worked for the company for more than 37 years. Plaintiff is an hourly employee, and the terms and conditions of his employment are established by collective bargaining agreements between Delphi and his union, Defendant IUE Local 755. For the last fifteen years, Plaintiff has worked in the central tool supply area, commonly referred to as the tool crib, an area where employees request and are provided parts and supplies. Between March of 1998 and March of 1999, Plaintiff worked the third shift. Throughout his employment, he has tried to work as much overtime as possible.

Defendants Crystal Long and Teri En-gleman were both hired in the early 1990s, and they became friends. In early 1998, Long began working in the tool crib. Plaintiff and Long briefly worked the same shift. Long introduced Engleman to Plaintiff, and the three of them became friends. For most of the relevant time period, Long and Engleman worked the second shift.

Plaintiff alleges that Long and Engle-man have made sexual comments throughout their friendship, beginning in the Spring of 1998. In March of 1998, Engle-man and Long commented that Plaintiff had a “cute little butt.” (Greenwood Depo. I at 17). Plaintiff asserts that, during the Spring and Summer of 1998, Long made other comments of a sexual nature during telephone calls to Plaintiffs home (id. at 16). However, Plaintiff was not offended by these comments, and considered them to be more of a joking nature (id. 16-18). In May of 1998, Plaintiff had conversations with Engleman about her relationship with her husband (id. at 21-22). He indicates that Long had asked him to speak with Engleman about Engleman’s alleged affair with another co-worker, because Engleman’s husband had threatened to kill her (id.).

On approximately July 15,1998, Plaintiff had lunch at O’Charley’s with Engleman, Long, and Debbie Adams, another coworker. During that lunch, Engleman and Plaintiff went to the foyer to smoke a cigarette, and Engleman put her hand on Plaintiffs leg while telling a story (id. at 19). At the time, Plaintiff again did not consider this conduct to be offensive or sexually harassing (id.).

During the week of July 27, 1998, Long made a number of telephone calls to Plaintiff at home. In the first conversation, Long discussed Engleman’s involvement with other men (id. at 27-28). A few days later, Long again called Plaintiff, asking him to assist her in making telephone calls to Engleman’s husband and the wife of Engleman’s alleged lover (id. at 34). Long made other sexual comments, such as “what if I (Long) had you over some night and I had Teri here and she was lying naked on the carpet, what would you do?” (Id. at 36-37).

On August 3, 1998, Engleman approached Plaintiff from behind, and began to massage his shoulders while he was sitting at his work station. Plaintiff did not welcome this massage and considered it to be sexual harassment by Engleman. (Greenwood Depo. I at 60-65, Greenwood Depo. II at 13). Long, who was sitting nearby, began to cry, and Engleman responded “Oh, Crystal, you’re just jealous.” (Greenwood Depo. II at 31). The next day, Engleman was sitting in the crib when Plaintiff returned to his work station from the men’s room. Engleman told him, “Crystal is a pretty girl” and left (id. at 34). Later that week, Long witnessed Plaintiff talking to another female co-worker (whom he identifies as either Carrie Baker or Shelly Powers) at the crib. (id. at 38). After the female co-worker left, Long approached Plaintiff and stood very close to him, causing him to back away. Long took another step forward, and stated, “You’re- fucking her, aren’t you?” (id. at 39). Plaintiff responded by explaining to Long that nothing was going to happen between Long and him, and that he would appreciate if she would not talk to him in that manner (id. at 40). Long dropped her head and walked off (id.) Within a couple of days, Long stated to Plaintiff that he “wouldn’t be the first white man I’ve had sex with.” (id. at 100). Plaintiff mentioned these incidents to Mike Burton, his third shift supervisor (id. at 41-42). However, he did not want to get Long and Engleman in trouble, and he indicated that he wanted to handle it himsdlf (id.).

The following week, Plaintiff approached Engleman and asked to speak with her about Long’s behavior, as a means of trying to rectify same (id. at 43-49). Plaintiff and Engleman got into a crib cart, and Plaintiff drove down to the end of the aisle (id. at 45). Plaintiff then told Engleman that Long had become extremely aggressive and blatant, and sought Engleman’s help in stopping' Long’s behavior (id. at 45-46). Engleman was not supportive of Plaintiff (id at 46^47). Plaintiff drove back to the crib (id. at 47). At this point in time, Plaintiff still wanted to handle the situation himself (id. at 49).

Within the next week or two, Engle-man’s job setter, Mike Simpson, who was standing near the crib, gestured to Plaintiff to come talk with him (id. at 54). Mr. Simpson allegedly told Plaintiff that En-gleman was upset with Long and with her personal problems, such as her relationship with Larry Cyphers (id) A couple of days later, Engleman stepped in front of Plaintiffs cart as he was making deliveries, and accused him of sharing details of her personal life with Mr. Simpson (id. at 60-61). Plaintiff told Engleman that he did not want anything further to do with her (id). He mentioned this conversation with Engleman to Mr. Burton and probably to Mr. Riegle, but he thought the problem had been solved (id. at 64). Subsequent to this conversation with Engle-man, Plaintiff began to get “dirty looks” from Long. Again, he mentioned Long’s behavior, to Mr. Burton, but he did not ask management to do anything about the women, because he believed that he had “made his point” with Long and Engleman (id at 71).

In late August, Plaintiff believed that he saw Engleman at a gas station, driving with a man other than her husband (Greenwood Depo. I at 43-45). In order to avoid any embarrassment, Plaintiff pulled out of the gas station and went to a parking lot while waiting for Engleman’s truck to leave (id.). Due to traffic patterns, Plaintiff could not return to that gas station, and he drove for a short time behind the truck before pulling into another station (id). Plaintiff relayed this event to Long and subsequently to Engleman (id. at 45-49). In the beginning of September of 1998, Long visited Plaintiff at the crib and told him that Engleman believed that Plaintiff was stalking her (Engleman) and was going to hurt her or do some kind of harm to her (Greenwood Depo. I at 13; Greenwood Depo. II at 85). Long further related to Plaintiff that En-gleman was considering getting the police and her friends involved in the situation (id.). Plaintiff immediately went to Mike Burton, and told him what had occurred (Greenwood Depo. I at 14). Plaintiff told Burton that he would not tolerate the threats and accusations, and that he-wanted management to make it stop (Greenwood Depo. II at 89). Mr. Burton responded that Greenwood should inform Mr. Bill Riegle (a Delphi supervisor) and his union representative, and to keep him informed (id. at 92). Plaintiff contacted Mr. Riegle a few days later, indicating that he wanted the threats and accusations about his alleged stalking to end (id. at 93). Mr. Riegle responded that he would be. coming to the crib and checking to see if there were any problems (id. at 97). After speaking with Riegle, Plaintiff contacted Mr. Steve Elam, his union representative (id. at 104).

During the first or second week of September, Long was sitting behind a desk in the crib when she asked Plaintiff to hold out his hand. After Plaintiff showed his hand, Long took a ruler from a drawer and measured his arm from the wrist to the tip, saying “oh, you have a big.” (Id. at 144). Plaintiff understood that she was referring to the size of his penis (id. at 144-45).

Subsequent to their initial conversation, Mr. Riegle asked Plaintiff every night how the situation was (id. at 97). Mr. Elam also came to crib after Plaintiffs initial conversation with him, at which time Plaintiff informed him that Engleman was making nightly trips to the crib counter, during which she was loud and taunting, and that he considered those trips to be harassment (id. at 117, 132). He indicated that a Mend of Engleman’s, Mr. Jim Morrow, was with her and that he made catcalls toward Plaintiff to harass him (id. at 120-22). In response, Plaintiff would call Mr. Burton or Mr. Riegle, who came to the crib (id. at 133). After Mr. Burton or Mr. Riegle arrived, Engleman would leave or the comments would stop (id. at 133).

On November 10, 1998, Plaintiff was approached by Mr. Gerald Seege, a union representative, who informed him that he was investigating Plaintiffs complaints (id. at 204). According to Plaintiff, Seege indicated that a meeting would be held by Ms. Marlane Bengry and Mr. Barry Ray of Delphi Labor Relations with Plaintiff, Long, and Engleman (id. at 215). Seege further indicated that he would not be speaking with Plaintiffs witnesses or with Long and Engleman. Plaintiff asserts that he interviewed Long and Engleman’s witnesses but not his own, and that Seege spoke with Long and Engleman together, not separately (see id. at 231).

On December 10, 1998, the Labor Relations meeting occurred. Plaintiff aired his complaints about Engleman visiting Long at the crib on a nightly basis and about the spreading of rumors by Long and Engleman (id. at 251-261). At the conclusion of the meeting, Engleman, Long and Plaintiff agreed to avoid interacting with each other (Seege Aff. ¶ 5). Plaintiff has not complained of further harassment by Long and Engleman since this meeting.

III. Merits of Defendants’ Motions for Summary Judgment (Doc. # 52, Doc. # 53, Dec. # 55)

In their Motions, Defendants seek summary judgment on each of the claims against them. As a means of analysis, the Court will address the claims in the order they appear in the Complaint.

A. Individual Liability of Long, En-gleman and Seege for Sexual Harassment, Pursuant to Ohio Rev. Code Chapter 1112 (Portion of Count One)

Defendants Long, Engleman and Seege assert that Plaintiffs sexual harassment claims against them in an individual capacity must be dismissed, because they cannot be held liable, as a matter of law. Plaintiff responds that Long and Engleman engaged in sexual harassment and created a sexually hostile work environment. He does not address whether they may be held liable for that alleged conduct. In addition, Plaintiff does not specifically address whether Seege, a Union Defendant, may be held individually liable under Chapter 4112.

Ohio Rev.Code 4112.01(A)(2), defines an “employer” as “the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.” Id. In Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293, 703 N.E.2d 782 (1999), the Ohio Supreme Court held that supervisors and managers may be held individually liable, as “employers,” for their own discriminatory conduct. 84 Ohio St.3d 293, 703 N.E.2d 782 (stating that definition of employer under Chapter 4112 was broader than under Title VII). However, Ohio courts have not extended the definition of “employer” to include co-workers and, thus, they have concluded that co-workers may not be held individually liable under Ohio Rev. Ch. 4112. Hale v. City of Dayton, 2002 WL 191588 (Ohio App. 2 Dist. Feb. 8, 2002) (firefighter, as a mere co-worker, was not individually liable under Chapter 4112); Singer v. UAW Local Union 1112, 2002 WL 818887 (Ohio App. 11th Dist. Apr. 30, 2002) (co-worker could not independently violate Ohio Rev.Code Ch. 4112 “since it does not address discrimination on the part of fellow employees in non-supervisory positions.”). Herein, it is undisputed that Long, Engleman and Seege were coworkers who lacked any supervisory authority over Plaintiff. Accordingly, they cannot be held individually liable for their alleged discriminatory conduct, pursuant to Ohio Rev.Code Ch. 4112, as a matter of law. Accordingly, the Motions of Long, Engleman and Seege (the individual Union Defendant) for Summary Judgment on Count One is SUSTAINED.

B. Sexual Harassment and Hostile Work Environment Claim Against Delphi, Pursuant to Ohio Rev.Code Ch. i!12, Based on the Conduct of Long and Engleman (Portion of Coynt One)

Ohio Rev.Code § 4112.02(A) makes it an unlawful discriminatory practice “[f|or any employer, because of the * * * sex * * * of any person, * * * to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” Id. The Ohio Supreme Court has recognized two distinct categories of sex discrimination claims, to wit: (1) “quid pro quo” harassment, ie., harassment that is directly linked to the grant or denial of a tangible economic benefit, and (2) “hostile environment” harassment, ie., harassment that, while not affecting economic benefits, has the purpose or effect of creating a hostile or abusive working environment. Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 176, 729 N.E.2d 726 (2000). In order to establish a claim of hostile work environment sexual harassment, the plaintiff must show (1) that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the ‘terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment,’ and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Id. at 176-77, 729 N.E.2d 726; Harmon v. GZK, Inc., 2002 WL 191598 (Ohio App. 2 Dist. Feb. 8, 2002). Under this standard, the nature of harassment “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Bell v. Cuyahoga Community College, 129 Ohio App.3d 461, 467, 717 N.E.2d 1189 (1998), citing Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). “In analyzing sexual harassment claims, Ohio courts look to the statute, R.C. 4112.02(A), to the administrative counterpart [O.A.C. 4112-5-05(J)], and to federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42 U.S.C.” Edwards v. Dubruiel, 2002 WL 31846259 (Ohio App. 2 Dist. Dec. 20, 2002); Ohio Civ. Rights Comm’n v. Ingram, 69 Ohio St.3d 89, 93, 630 N.E.2d 669, 672 (Ohio 1994) (federal case law interpreting Title VII is generally applicable to cases involving violations of Ohio Rev.Code Ch. 4112).

1.Harassment was Unwelcome

In his Memorandum in Opposition, Plaintiff states that Delphi does not challenge his assertion that the harassment was unwelcome (Doc. # 61 at 4). This statement is incorrect. Delphi asserts that Long and Engleman’s conduct was not subjectively offensive, because “[h]ad plaintiff viewed the alleged conduct as offensive, he would not have volunteered to work with his alleged harassers” by taking his overtime during second shift. (Doc. # 53 at 10; Doc. # 66 at 3).

Construing the evidence in the light most favorable to Plaintiff, Greenwood has submitted evidence which raises a genuine issue of material fact as to whether the alleged harassment was unwelcome. He testified in his deposition that he repeatedly told Long not to make sexual comments to him (Greenwood Depo. I at 36-37, Greenwood Depo. II at 85-86), and that he filed a hostility report with Delphi against her (Greenwood Depo. I at 6). Plaintiff repeatedly testified in his deposition that Long’s statements made him uncomfortable (E.g., Greenwood Depo. II at 39-40). In addition, Plaintiff indicated that, due to Long and Engleman’s conduct, he altered his work performance in that he began to make deliveries during his overtime period rather than during his normal shift, thus avoiding Long in the crib (id. at 195-99). Based on the evidence submitted by the parties, there is a genuine issue of material fact as to whether Plaintiff subjectively found Long and Engleman’s conduct to be offensive. Accordingly, the Court concludes that Delphi is not entitled to summary judgment, on the ground that the harassment was not unwelcome.

2. Harassment is Based on Sex

Turning to the “based on sex” requirement, under Ohio law, sexual harassment has been defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Edwards, supra, citing O.A.C. 4112-5-05(J). “To be of a sexual nature, verbal conduct must be gender related.” Id. The Ohio Supreme Court has further held that harassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his or her sex. Hampel, supra, at 180, 729 N.E.2d 726; Murphy v. Eggleston-Meinert Funeral Home, Inc., 2002 WL 31630763 (Ohio App. 6 Dist. Nov. 22, 2002).

Delphi has not disputed that the alleged harassment by Long and Engleman was based on sex. Regardless, the evidence supplied by Plaintiff indicates that Long repeatedly made comments of a sexual nature, and that Engleman gave Plaintiff a massage, which could be construed as sexual act. Accordingly, the Court concludes that there is a genuine issue of material fact as to whether the alleged harassment was based on sex.

3. Harassment was Severe or Pervasive

The United States Supreme Court has stated that, “in order to be actionable under [Title VII], a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Harris, 510 U.S. at 21-22, 114 S.Ct. 367; see Hampel, 89 Ohio St.3d at 176, 729 N.E.2d at 732; Bell, 129 Ohio App.3d at 467, 717 N.E.2d 1189. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Simple teasing, offhand comments, and isolated incidents, unless extremely serious, do not give rise to an actionable claim. Faragher, 524 U.S. at 788, 118 S.Ct. 2275. This ensures that Title VII does not become a code of civility for the workplace, censuring people for behavior that is merely inappropriate. Id. “In determining whether the alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment under the Harris standard, it is well-established that the court must consider the totality of circumstances.” Williams, 187 F.3d at 562. Among the factors that the Court should consider in evaluating the pervasiveness of the alleged harassment are: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s performance. Harris, 510 U.S. at 23, 114 S.Ct. 367. “[E]ven where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation.” Hampel, 89 Ohio St.3d at 181, 729 N.E.2d at 736; Williams, 187 F.3d at 563.

In his Memorandum in Opposition to Delphi’s Motion, Plaintiff indicates that he was sexually harassed by Long and Engle-man during August and September of 1998, when:

• Engleman massaged his shoulders for a short period of time, i.e., less than ten seconds.

• Plaintiff indicates that, during the first week of August, 1998, Long “got right up in my face, I mean that (indicating) close. I took a step back and she took a step forward and I kind of laughed and I said, what is the problem? And she said, you’re fucking her, aren’t you.”

• Long sat on Plaintiffs desk and told him that Engleman thought that Plaintiff was stalking her (Engleman).

• Long measured Plaintiffs hand and stated, “Oh, you have a big one.” Plaintiff understood that she was referring to his penis size.

• Long approached Plaintiff as he was bringing wine to a female co-worker, stating “You’re taking that wine to that fucking ho in 14. You’re fucking that slut in 14.”

• Engleman stepped in front of his cart ■ and “dressed [him] down pretty good.”

• Long stated “you wouldn’t be the first white man I’ve had sex with.”

Plaintiff also points out that Long allegedly called him by nicknames, such as “honey,” “sugar,” “sweetie,” “boo,” and “lover.” (Doc. # 53 at 6; Greenwood Depo. II at 151-52). Plaintiff has also complained of Engleman visiting Long at the tool crib, when the two would “act silly.” In his Memorandum, in Opposition to Delphi’s Motion, Plaintiff further alleges that Long made repeated sexual comments during telephone conversations in July of 1998, such as asking Plaintiff what he would do if Engleman were lying naked on the carpet (Doc. # 61 at 3).

In its Motion, Delphi asserts that the alleged harassment was not objectively offensive. It contends that conduct far more severe or pervasive has been held to be insufficient to support a sexual harassment claim. Delphi further argues that there is no evidence that the alleged conduct unreasonably interfered with Plaintiffs work performance. Plaintiff argues, citing Bucher v. Sibcy Cline, Inc., 137 Ohio App.3d 230, 738 N.E.2d 435 (2000), that whether the harassment was severe or pervasive is a jury question.

In Harmon v. GZK, Inc., 2002 WL 191598 (Ohio App. 2 Dist. Feb. 8, 2002), the Second District Court of Appeals reviewed whether three female employees at a fast food restaurant had provided sufficient evidence that they had been subject to severe or pervasive sexual harassment by their male co-workers. Plaintiff Pamela Harmon provided evidence that one coworker, Larry Barrett, frequently requested anal sex from her. He also requested oral sex, told her that he would rape her, and threatened to hurt her and her children. In addition, Barrett frequently rubbed his body against Harmon, grabbed her buttocks on one occasion, and once forced her to sit on his lap. The court of appeals concluded that Harmon’s evidence was sufficient to demonstrate that the alleged harassment was “severe or pervasive.” Id. at *9. The second plaintiff, Crystal Steck, produced evidence that Barrett made frequent offensive comments to her, and that he grabbed her breast once and her buttocks once. Although the court of appeals noted that the harassment suffered by Steck was less physically threatening and intimidating than that suffered by Harmon, the court nevertheless concluded that it was more than “offensive utterances.” Thus, Steck had likewise demonstrated that the harassment was severe or pervasive. Id. at *10. The third plaintiff, Sonya Johnson, provided evidence that she had been subject to offensive comments by Barrett, which occurred at least three times a week. She further alleged that another male employee brushed up against her, often with an erection, three or four times a week. She also witnessed harassing behavior toward other female employees. As with Harmon and Steck, the court of appeals found that such conduct was severe or pervasive. Id. at *12.

In Williams v. General Motors Corp., 187 F.3d 553 (6th Cir.1999), the plaintiff alleged derogatory and profane remarks that were directed at her, sexually explicit comments directed at her, offensive comments about women in general, and denial of overtime. In particular, Williams’ supervisor once stated, “You can rub up against me anytime,” adding “you would kill me, Marilyn. I don’t know if I can handle it, but I’d die with a smile on my face.” Id. at 563. On another occasion, he put his arm around her neck and place his face close to hers, and noticing that she had written “Hancock Furniture Company” on a piece of paper, said, “You left the dick out of the hand.” Finally, while Williams was bending over, her supervisor came up behind her and said, “Back up; just back up.” The Sixth Circuit stated that, given these circumstances, summary judgment for the defendant was improper, reasoning “These incidents, which must be taken as fact for purposes of summary judgment, were not merely crude, offensive, and humiliating, but also contained an element of physical invasion.” The court also stated that evidence of that the plaintiff was the subject of pranks further supported the existence of a hostile work environment.

The holding in Williams can be contrasted with the Sixth Circuit’s prior decision in Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.1997). Therein, the Sixth Circuit reversed a jury verdict in the plaintiffs favor, holding that the sexual comments by male employees, although offensive and inappropriate, did not create an objectively hostile work environment. Black had alleged that she was subjected to various discriminatory comments made at bi-weekly meetings from July to October of 1993. At a July meeting, a manager reached for a pastry, stating “Nothing I like more in the morning that sticky buns,” while allegedly looking at Black in a suggestive manner. At the next meeting, the participants joked that a parcel of land located next to a Hooters Restaurant should be named “Hootersville,” “Tits-ville,” or “Twin Peaks.” These jokes allegedly ’ continued for several meetings. In August, Black was told by her manager that she was “paid great money for a woman.” In a September meeting, employees joked about an individual whose name is pronounced “bosom.” In October, Black was asked by the company president, “Say, weren’t you there [at a biker bar] Saturday night dancing on the tables.” Although the Sixth Circuit acknowledged that the alleged incidents occurred consistently over a period of four months, it held that the comments were “merely offensive” and were insufficient to support the jury’s verdict. The Sixth Circuit noted that many of the comments were not directed at the plaintiff. Id. at 826; see Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir.2000) (discussing Black and Williams).

In the present case, Greenwood' has presented evidence of approximately ten specific instances of sexual harassment over a two to three month period, i.e., end of July through September of 1998. Two of those instances involve close physical contact, to wit: (1) Engleman’s unwelcome massaging of Plaintiffs shoulders, and (2) Long standing very close to Plaintiff, causing him to step backward, while asking him if he were having sex with another woman. Long’s comments to Plaintiff were sexually explicit, including accusations that Plaintiff was having sex with other women and indications of her desire to be in a sexual relationship with him. Her- conduct was likewise sexually humiliating, in that she measured Plaintiffs hand, intimating the size of his penis. Given the totality of these circumstances, construed in the light most favorable to Plaintiff, the Court concludes that there is a genuine issue of material fact as to whether Long and Engleman’s conduct was severe or pervasive. The alleged harassment was almost constant for a period of approximately two months.' In addition, Plaintiffs allegations of sexual harassment, which he has supported with evidence, are analogous to the harassment suffered by Steck in Harmon and the plaintiff in Williams. As stated by the Sixth Circuit upon' reversing a granting of summary judgment in Williams, “[t]hese incidents ... were not merely crude, offensive, and humiliating, but also contained an element of physical invasion.” See also Johnson v. Booker T. Washington Broadcasting Serv., 234 F.3d 501, 508-09 (11th Cir.2000) (severe or pervasive element satisfied when fifteen instances of harassment over four months, offensive behavior included unwanted massages, standing so close to the plaintiffs body that the harasser’s body touched hers from behind; harasser pulled pants tight to reveal imprint of private parts; and conduct interfered with plaintiffs job performance). Accordingly, Delphi, Long and Engleman are not entitled to summary judgment, on the ground that the alleged harassment was not severe or pervasive.

4. Whether Delphi Knew or Should Have Known of the Harassment and Failed to Take Immediate and Appropriate Action

Employer Lability for hostile work environment harassment varies depending upon whether the alleged harasser is a supervisor or a co-worker. When the alleged harasser is a supervisor, the employer may be vicariously liable. Peterson v. Buckeye Casings, 133 Ohio App.3d 715, 723, 729 N.E.2d 813, 819 (Ohio App. 10 Dist.1999), citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763-765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). When the alleged harasser is not a supervisor but, rather, a co-worker, the employer may be liable to the plaintiff based on its own negligence. 729 N.E.2d at 819. Under this scenario, an employer may be liable where the employer knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action. Id.

Plaintiff asserts that Delphi supervisors knew of his complaints against Long and Engleman, even witnessed them, yet took no direct action. Plaintiff testified that he spoke with Mr. Mike Burton, his third shift supervisor (Greenwood Depo. II at 41), who recommended that he (Plaintiff) contact Mr. Riegle, as well as his union representative. Plaintiff further stated that the December 10, 1998, meeting, which was run by the Delphi Labor Relations Department, did not deal with any of his sexual harassment complaints.

In its Motion, Delphi contends that it took prompt corrective action on Plaintiffs complaints. It argues that Plaintiff initially wanted to handle his problems with Long and Engleman without intervention by Delphi, and that by the time Greenwood asked Delphi to intervene, Plaintiff only complained of Engleman’s visits to Long at the crib. Delphi further contends that it monitored the situation, and when no resolution could be reached, Ms. Ben-gry held a meeting with Plaintiff, Long and Engleman, which resolved the situation.

When a plaintiff fails to avail himself of the remedial procedures established by his employer, he may not later assert that his employer failed to take prompt corrective action. For example, in Courtney v. Landair Transport, Inc., 227 F.3d 559 (6th Cir.2000), the Sixth Circuit rejected the plaintiffs contention that her employer failed to take prompt corrective action when it waited until December of 1996 to act. Therein, the plaintiff had sent correspondence to management on two occasions prior to December. In her May 5, 1996, letter, the plaintiff complained about a double standard that she perceived as a result of (1) having received a reprimand for wearing inappropriate clothing to work, and (2) several loose sexual references made around the terminal, some of which were directed towards her specifically. Id. at 565. In her correspondence, the plaintiff failed to name the alleged harassers or to ask her employer to take any particular action concerning her complaints. ' Id. .The Sixth Circuit concluded that this correspondence was insufficient to put manage: ment on notice that plaintiff wanted it to intervene to stop the co-worker harassment. Id. In August of 1996, the plaintiff again wrote to management, in which she described more sexual references directed towards her but, again, she never asked management to address the problem. The Sixth Circuit concluded that the August letter likewise was not sufficient notice to her employer, reasoning that “because this correspondence is less than clear as to its purpose, it does not constitute notice to defendant.” Id. The Court further con-eluded that it was not until December 4, 1996, when the employer received correspondence asking it to stop the harassment, that the employer had notice of the harassment. Id.

Likewise, in Stepic v. Penton Media, Inc., 2000 WL 1867399 (Ohio App. 8 Dist. Dec. 14, 2000), the Eighth District Court of Appeals concluded that a plaintiff s claim against his employer was precluded when he failed to request that his employer address the alleged harassment. Therein, the plaintiff, a male, had reported in August of 1996 that he was being harassed by a female co-worker, alleging that she followed him, stared at him, had touched him on the shoulders, had asked to accompany him to a football game, and had made comments expressing an interest in him. Id. at *6. The plaintiff asked his supervisor not to discuss the matter with his alleged harasser, indicating he would handle the problem himself. He later indicated to the Human Resource Department that the matter had been resolved. Id. In January of 1997, the plaintiff again' reported the matter to management, stating that “nothing had changed.” Upon review of Plaintiffs sexual harassment claim, based on his initial August, 1996, report, the Eighth District Court of Appeals held that the plaintiff was precluded from recovering, as a matter of law, because he “unreasonably failed to avail himself of the employer’s remedial apparatus.” Id.; see also Hinkle v. Dept. of Transporation, 2002 WL 31972348 (Ohio Ct.Cl. June 11, 2002) (company took prompt corrective action when it had a policy against sexual harassment, it was disseminated to employees, it was known to plaintiff, and prompt corrective measures were taken by defendant as soon as plaintiffs complaints were made known; plaintiffs earlier complaints were generally vague, and the plaintiff stated that she could take care of her problems herself).

In the instant action, although Plaintiff informed Delphi management about a number of the alleged incidents of sexual harassment, until September of 1998, he also made clear that he did not want to file a complaint, and that he wanted to resolve the situation himself. Plaintiff testified that he mentioned the three incidents that occurred during the first week of August to “Mike Burton, Bill Riegle or somebody, but [he] didn’t make a report.” (Greenwood Depo. II at 32). He testified:

Q: Did you tell him [Mike Burton] that you didn’t want to get anyone in trouble, you didn’t want to report it?

A: I don’t recall that, but I think it was obvious.

Q: So, you believe that he [Mike Burton] understood that you wanted to try to handle this yourself?

A: Yes.

(id. at 40-42). Testifying about the massage incident, Plaintiff again stated that he wanted management to know that the incident had happened, but he did not ask his supervisor to rectify the situation (id. at 32-33). Plaintiff indicated that he did not “report” the massage incident until November 10, 1998, when he spoke with Mr. Seege (id. at 32). Plaintiff likewise testified that, although he mentioned other conversations between himself and Long and Engleman to Mr. Burton, he intended to resolve the situation without intervention by management (id. at 70-71). In fact, in late August of 1998, Plaintiff believed that he had accomplished this (id.). Plaintiff acknowledged during his deposition that he did not approach management (specifically, Mr. Burton) for assistance until Long informed Plaintiff that Engle-man believed that he was stalking her and that she may get the police and friends involved (id. at 89). He indicated that, following his conversation with Long regarding his alleged stalking, he immediately went to Mike Burton and told him that he (Greenwood) would not tolerate the threats and accusations, and that he wanted management to make it stop (id.).

Thus, even construing Plaintiffs deposition testimony in the light most favorable to him, the evidence demonstrates that, until his “stalking conversation” with Long in September of 1998, Greenwood intended to resolve his conflict with Long and En-gleman by himself, and that he had informed Mr. Burton of that intention. By making those representations to Delphi management, Plaintiff failed to take advantage of the remedial measures available to him from Delphi and, consequently, he did not trigger Delphi’s obligation to take corrective action. Accordingly, as a matter of law, Plaintiff may not hold Delphi liable for its failure to take prompt corrective action, based on his complaints of harassment pri- or to the “stalking conversation” in September of 1998.

Turning to the events subsequent to Plaintiffs “stalking conversation” with Long, Delphi may be held liable for the alleged sexual harassment if it failed to take proper remedial measures.

Once an employer is aware of and responds to charges of sexual harassment, though, mere negligence as to the content of the response cannot be enough to make the employer liable. When an employer responds with good-faith remedial action, we cannot say that the employer has itself committed an act of discrimination ... When an employer implements a remedy, it can be liable for sex discrimination in violation of Title VII only if that remedy exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination.

Blankenship v. Parke Care Cntrs., Inc., 123 F.3d 868, 873 (6th Cir.1997); see also Fenton v. HiSAN, Inc., 174 F.3d 827, 829-830 (6th Cir.1999). The appropriateness of an employer’s response depends on the frequency and severity of the alleged harassment. Blankenship, 123 F.3d at 872 (citing Bell v. Chesapeake & Ohio Ry., 929 F.2d 220 (6th Cir.1991)); Minnich v. Cooper Farms, Inc., 2002 WL 1396910, 39 Fed.Appx. 289 (6th Cir.2002). A response is generally adequate if it is reasonably calculated to end the harassment. Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir.1999).

Plaintiff complained of a whispering campaign, in which Long and Engleman told có-workers that he was stalking En-gleman. Plaintiff further complained that Engleman came by the crib on a nightly basis, during which she acted “silly,” and that Long measured his hand. In its Motion, Delphi asserts that it took Plaintiffs allegations seriously, that it monitored the situation and responded whenever Plaintiff complained about Engleman’s presence at the crib. It further notes that Plaintiff was given the opportunity to air his .complaints at a meeting on December 10, 1998, which resolved the conflict.

In his deposition, Plaintiff indicated that he contacted Mr. Burton regarding Engle-man’s stalking allegation, and that Mr. Burton responded that he (Greenwood) should inform Mr. Riegle, contact his union representative, and keep him (Burton) informed (Greenwood Depo. II at 92). Plaintiff contacted Mr. Riegle a few days later, indicating that he wanted the threats and accusations about his alleged stalking to end. (id. at 93). Mr. Riegle responded that he would be coming to the crib and checking to see if there were any problems (id. at 97). After speaking with Mr. Rei-gle, Plaintiff contacted Mr. Elam, his union representative. Plaintiff also spoke with Mr. William Monroe, his crib supervisor (id. at 44), in which Plaintiff indicated that he “was having trouble with Crystal and the other young lady in that they were putting out rumors about him in the factory.” (Monroe Depo. at 44). Specifically, Mr. Monroe was informed that Long and Engleman had stated that Plaintiff was stalking them and “had put out the word that he was a pervert.” (Monroe Depo. at 29-30). Mr. Monroe testified that, after Plaintiff spoke with him, he in turn contacted Marlane Bengry, the Personnel Director at Delphi. Ms. Bengry informed Mr. Monroe that she was already aware of the problem and that someone was investigating (id. at 25-26). After the hand-measuring incident, Plaintiff informed Mr. Monroe of that conduct as well as their comment that they (Long and Engleman) felt that Plaintiff could handle them both (id. at 29). Mr. Monroe again contacted Ms. Bengry to notify her of this occurrence (id. at 30).

Upon review of the evidence, Plaintiff has not provided evidence to create a genuine issue of material fact that Delphi failed to take prompt corrective action. The parties have provided evidence that, prior to the December 10, 1998, meeting, Plaintiff frequently contacted Mr. Riegle or Mr. Burton whenever Engleman visited the crib (Greenwood Depo. II at 126-28), and they came to the crib to monitor the situation (id.). Plaintiff testified that, on November 10, 1998, Seege, as the union representative concerned with sexual harassment complaints, came to the crib to interview Plaintiff regarding his complaints (id. at 203-04). Plaintiff and Seege spoke for approximate forty-five minutes (id. at 208). Plaintiff testified that Seege indicated that he would take Plaintiffs information to Labor Relations (specifically, Marlane Bengry and Barry Ray), and that a meeting would be scheduled with Plaintiff, Long, Engle-man, Ms. Bengry, Mr. Ray, and himself (id. at 214-15).

In his Memoranda, Plaintiff asserts that Delphi’s response was inadequate in two respects. First, he argues that his complaints concerning sexual harassment were not addressed during the December 10th meeting. Second, he asserts that Delphi’s sexual harassment policy was deficient. Beginning with Plaintiffs first argument, Greenwood has provided no evidence that, during the December 10,1998, meeting, he presented his allegations of sexual harassment, other than his complaint that Long and Engleman were spreading rumors about him and that Engleman was visiting the crib. Although Plaintiff asserts that his sexual harassment complaints were not addressed, it is undisputed that the meeting resulted in Plaintiff, Long and Engle-man’s agreement to avoid each other (Ben-gry Depo. at 79). Plaintiff has not dispute Delphi’s assertion that there have been no claims of continued harassment since that meeting.

Plaintiffs argument that Delphi failed to establish appropriate procedures for investigating or interviewing witnesses or complainants concerning sexual harassment complaints is also unavailing. In support of this argument, Plaintiff cites to Ms. Bengry’s deposition testimony, in which she discusses the procedures that a complainant should take. Ms. Bengry testified that a complainant should first try to resolve the situation by talking to the offending co-employee (Bengry Depo. at 50). If that fails to stop the harassment, the complainant should contact his or her supervisor, who should interview both employees and investigate the situation (id. at 54). If those efforts fail, the supervisor may call in the union or Human Relations (id.). Ms. Bengry acknowledged that the sexual harassment manual and training video do not state, step by step, how to investigate a sexual harassment complaint (id. at 59). Defendants have responded that Plaintiff acknowledged that Delphi had a zero tolerance sexual harassment policy, and that signs regarding sexual harassment were placed at entrances to the plant (Greenwood Depo. I at 69-70). Plaintiff further was required to attend a sexual harassment awareness program (Greenwood Depo. II at 110-11). Construing the evidence in the light most favorable to Plaintiff, the Court cannot conclude that Delphi lacks a sexual harassment policy or that the policy is so deficient that it demonstrates an indifference to sexual harassment complaints. See Idusuyi v. State of Tenn. Dept. of Children’s Servs., 80 Fed.Appx. 398, 2002 WL 220640 (6th Cir.2002). Accordingly, Plaintiff has not created a genuine issue of material fact that Delphi’s response to his complaints was inadequate.

In summary, Plaintiff has failed to create a genuine, issue of material fact that Delphi failed to take appropriate remedial measures in response to his complaints. Initially, Plaintiff indicated that he would handle the situation himself, thus failing to give Delphi proper notice of its need to take corrective action. Once Plaintiff complained of the rumors by Long and Engleman, the evidence indicates that management responded to his complaints by monitoring the situation, initiating an investigation, and ultimately holding a meeting to resolve the situation. It is undisputed that Plaintiff has made no further complaints since that meeting. Based on the foregoing, Delphi is entitled to summary judgment on Plaintiffs sexual harassment claims, on the ground that it took appropriate corrective action. Accordingly, Delphi is entitled to summary judgment on Plaintiffs sexual harassment claim, pursuant to Ohio Rev.Code Ch. 4112 (Count One).

C. Breach of the Duty of Fair Representation Claim (Count Two)

In his Complaint, Plaintiff asserts that Defendants IUE Local 755, Clark, Heizer and Harm (“the Union Defendants”) failed to investigate and to take action on his complaints of harassment. Upon removing the case, Defendants asserted that this claim was completely preempted by § 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185, and is properly construed as a § 301 claim of breach of the duty of fair representation. Plaintiff has not challenged this assertion.

In their Motion for Summary Judgment (Doc. # 55), the Union Defendants argue that Count Two must be dismissed, because it was not timely filed. They assert that claims of breach of the duty of fair representation are subject to a six month statute of limitations, and that Plaintiffs claim was filed subsequent to the expiration of that time period. Plaintiff responds that the Union Defendants’ failure to represent him continued until he filed his Complaint. He further asserts that he has stated claims against the Union Defendants, which are subject to Ohio’s four year statute of limitations, set forth in Ohio Rev.Code § 2305.09.

Plaintiffs argument that his breach of the duty of fair representation claim is governed by Ohio Rev.Code § 2305.09 is unsupportable. “The duty of fair representation relates to an area of labor law which has been so fully occupied by Congress so as to foreclose state regulation.” Maynard v. Revere Copper Prods., Inc., 773 F.2d 733, 735 (6th Cir.1985). Thus, whether stated in terms of federal or state law, a claim for breach of the duty of fair representation is governed by federal law. Moore v. International Broth. of Elec. Workers, 51 Fed.Appx. 486, 2002 WL 31056022 (6th Cir.2002) (quoting Maynard, 773 F.2d at 735)(“[W]hen a federal claim of a breach of the duty of fair representation is barred by the six-month statute of limitations, ‘it would be anomalous to hold that the same claim survived the defense of limitations because it was stated in terms of state law.’ ”).

In DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court established that claims under § 301 of the LMRA are governed by a six month statute of limitations. This six month statute of limitations applies for unfair representation claims, regardless of the presence of a section § 301 claim against the employer, i.e., a hybrid § 301 claim. 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.). A claim for breach of the duty of fair representation accrues “when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.” See Adkins v. International Union of Electrical, Radio & Machine Workers, 769 F.2d 330, 335 (6th Cir.1985); Noble v. Chrysler Motors Corp., 32 F.3d 997, 1000 (6th Cir.1994). The statute of limitations begins to run when the employee knew or should have known of the union’s final action or the employer’s final action, whichever occurs later. Robinson v. Central Brass Mfg. Co., 987 F.2d 1235, 1238 (6th Cir.1993); Schoonover v. Consol. Freightways Corp., 49 F.3d 219, 221 (6th Cir.1995); Bickers v. International Assoc. of Machinists and Aerospace Workers, 8 Fed.Appx. 514, 2001 WL 493411 (6th Cir.2001).

In support of their Motion, the Union Defendants cited to Plaintiffs deposition testimony, in which he testified that union representative Steve Elam refused to file a grievance on his behalf (Doc. # 55 at 9, 18). Plaintiff further testified that he might have mentioned his complaints of harassment to Mr. Stan Long and Mr. Heizer, but did not ask them to file a grievance (Greenwood Depo. II at 188-89). However, he further testified that, by December of 1998, he had lost hope of receiving assistance from the union. Specifically, Plaintiff testified:

Q: But as I understand your testimony, Mr. Elam refused to file a grievance concerning your problems with Ms. Engleman and Ms. Long, right?

A: Correct.

Q: When was this?

A: September.

Q: Of?

A: '98. October, November, December, he never filed a grievance.

Q: Okay. At that point did you have any hope that he would file a grievance on your behalf concerning Ms. Engleman and Ms. Long?

A: I became a little disenchanted, yes.

Q: Now, what about Stan Long ... ? ... He would have filed a grievance on your behalf?

A: If I’d ask have asked him.

Q: But you didn’t ask him?

A: No.

Q: Why not?

A: At that point in time it was beyond a grievance. I saw the Union and the company weren’t going to do anything.

Q: So you gave up on the Union?

A: I gave up on the Union, yes.

Q: Now, your wife testified that you told her that you gave up about getting any help with the Union about the time of the meeting with Marlene, is that correct?

A: Pretty close to that, yes.

‡ ‡ ‡ ‡ ‡ ‡

Q: And this would be December of '98?

A: '98.

(Greenwood Depo. IV at 47-49). Based on this testimony, the Union Defendants assert that the six month statute of limitations on Plaintiffs breach of the duty of fair representation claim began to run, at the latest, in December of 1998, because Plaintiff should have known, at that time, of the union’s decision not to pursue any grievances for him.

Plaintiff responds that the Union Defendants never represented him regarding his complaints against Long and Engleman, and that he could not get fair representation, because his complaints concerned another co-worker/union member. However, Plaintiff has not provided evidence that he was unaware of the Union Defendants’ decision not to file grievances on his behalf until January of 2000, ie., six months prior to the filing of this lawsuit. Accordingly, the uncontroverted evidence indicates that Plaintiff was aware, by December of 1998, that the union representatives would not be filing grievances on his behalf regarding his complaints of sexual harassment and hostile work environment. Thus, the statute of limitations for Plaintiffs claim of breach of the duty of fair representation began to run at that time. Plaintiffs breach of the duty of fair representation claim was filed on June 30, 2000, more than six months after December of 1998. Accordingly, that claim must be dismissed as untimely filed. The Union Defendants’ Motion for Summary Judgment on Plaintiffs breach of the duty of fair representation claim (Count Two) is SUSTAINED.

D. Negligent and Intentional Infliction of Emotional Distress (Count Three)

In Count Three, Plaintiff alleges that Heizer, Harm, Clark, Seege, Long and Engleman conspired to inflict emotional distress on him. Consequently, those Defendants seek summary judgment on Count Three, alleging, in p