Full opinion text
MEMORANDUM AND ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS THE CITY OF MANSFIELD, ANGELO KLOUSIADIS AND F.L. FISHER, DEFENDANTS OHIO COUNCIL 8 AND LOCAL S088 OF THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AND DEFENDANT CARLINE CURRY ON THEIR SEPARATE MOTIONS. LESLEY WELLS, District Judge. Defendants City of Mansfield, Ohio (“the City”), Angelo Klousiadis, and F.L. Fisher (the “Mansfield Defendants”) (collectively “City Defendants”), defendants American Federation of State, County, and Municipal Employees (“AFSCME”) Ohio Council 8 (“Ohio Council”) and AFSCME Local 3088 (“Local Union”) (collectively “Union Defendants”), and defendant Carline Curry (“Ms.Curry”) motion separately for summary judgment on all claims against them contained in the Plaintiffs’ Second Amended Complaint. The Plaintiffs are Michael W. Hout (“Mr.Hout”), Jeff Gibson (“Mr.Gibson”), Troy Benick (“Mr.Beniek”), Peter Neumann (“Mr.Neumann”), Lewis A. Workman (“Mr.Workman”), Tyler Merritt, Jr. (“Mr.Merritt”), and Miles H. Jes-see (“Mr.Jessee”) (collectively “Plaintiffs”). In their Second Amended Complaint the Plaintiffs, employees for the City of Mansfield’s Waste Water Treatment Plant (“WWTP”), level claims against the City Defendants of (1) race and sex discrimination under Title VII, 42 U.S.C. § 1981, and Ohio Revised Code (“O.R.C.”) § 4112; (2) retaliation in violation of Title VII; (3) race and sex harassment and hostile work environment. The Plaintiffs also assert derivative state claims of intentional inflection of emotional distress, negligent supervision and negligent retention. The Plaintiffs also bring claims against Defendants Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO and Local 3088, American Federation of State, County and Municipal Employees, AFL-CIO (collectively “Union Defendants”) alleging: failure to adequately and fairly represent them by refusing to file, or in the presentation of grievances asserting claims of discrimination; failure to fairly represent them over claims of discrimination against their supervisor in violation of Title VII, § 1981, and O.R.C. Chapter 4112; direct sex and race discrimination; hostile work environment; retaliation; intentional infliction of emotional distress; and defamation. Further, the Plaintiffs’ Second Amended Complaint levels six claims for relief against “Ms. Curry”. The Plaintiffs assert the following claims: (1) sex discrimination under O.R.C. 4112, 42 U.S.C. § 1981, 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, as amended by the Civil Rights Act of 1991 (“Title VII”); (2) race discrimination parallel to, and based upon, the same statutes as the claim of sex discrimination; (3) retaliation; (4) harassment and hostile work environment based on sex and race in violation of Title VII and O.R.C. § 4112; (5) intentional infliction of emotional distress; and (6) slander. For the reasons discussed below, the Court will grant the several Defendants’ Motions for Summary Judgment and dismiss the Plaintiffs’ claims in their entirety as a matter of law. I. BACKGROUND Waste Water Treatment Plant Structure and Personnel The City of Mansfield has approximately twenty employees working at the “WWTP” engaged in the maintenance, operations and supervision of the plant and its personnel. Plant Manager Angelo Klousiadis possessed supervisory responsibility for WWTP functions and reported to the Director of Public Works, F.L. Fisher (“Fisher”). Operations Supervisor Otto Kulda (“Kulda”) and Maintenance Supervisor Edward Lemaster (“Lemaster”) supervised, respectively, the operations and maintenance activities of the WWTP. Defendants Klousiadis, Fisher, Kulda and Le-master are all white males. Ms. Curry works the day shift from 7:00 a.m. until 3:00 p.m. as a Pretreatment Coordinator in the City of Mansfield’s “WWTP”. The position she holds is as a first-line supervisor responsible for managing the collection of waste-water samples taken by two sampling-aides. (Klousiadis Dec. ¶¶ 1, 2). During much of the time-period covered by this suit, Ms. Curry was the only African-American and the only female employee at the WWTP. Ms. Curry has worked full-time at the WWTP since 1981 and has performed the job of Pretreatment Coordinator since her promotion in 1984. Part of Ms. Curry’s job responsibilities included supervising the performance of Plaintiffs Troy Benick and Jeff Gibson. Mr. Gibson began work at the WWTP in 1994, while Mr. Benick began work at the WWTP in 2001. Four of the plaintiffs — Michael Hout, Miles Jessee Tyler Merritt, and Peter Neumann — worked the day shift at the WWTP, in Operations, and were directly supervised by Robert Coker. A fifth Plaintiff, Lewis Workman, worked on the WWTP’s third shift, from 11:00 p.m. until 7:00 a.m. Mr. Workman had only occasional interactions with Ms. Curry. (Workman Depo 29-30, 33-34). In addition, as the evidence indicates, Ms. Curry occasionally supervised the work of Plaintiffs Hout, Jessee, Merritt, Neumann, and Workman, on the rare instance the WWTP needed sampling aides to fill in for Benick or Gibson, or to perform overtime work. Otherwise, Ms. Curry’s office is located in the WWTP building apart from the five Plaintiffs not under her supervision and their paths rarely crossed. Polices and Procedures of the City and the Union Defendants The Plaintiffs belonged to and were represented by AFSCME Local 3088 (“Local Union”) affiliated with AFSCME International in Ohio. AFSCME Ohio Council (“Ohio Council”) is a statewide servicing council for over 400 local unions affiliated with AFSCME Int’l. The evidence indicates that the Ohio Council and the Local Union are separate legal entities. (Miller Dec. 2-4). Brad Miller (“Miller”) was employed by the Ohio Council and participated in labor negotiations, labor-management meetings, presented arbitration cases on behalf of the Local Union and attended Step 3 grievance procedures if requested. During the period under consideration here, Dale Blamer (“Blamer”) has been either President or Vice President and Chief Steward of the Local Union, while John Van Harlingan (‘Van Harlingan”) served as the President of the Local Union. Both the City and the Union Defendants have policies and procedures on nondiscrimination. The City’s Policy and Procedure Manual requires claims of discrimination be reported to the City EEOC Officer for investigation. In addition, the City’s policy against work place violence requires employees who experience threats of violence to immediately report the incident to their department head. The CBA prohibits the City from engaging in discrimination on the basis of race and sex with respect to wages, hours or other terms and conditions of employment. Progressive disciplinary action for violations involve: informal conferences, written reprimands, suspensions without pay, reductions in pay or position, and termination. (CBA Article 8). The CBA establishes a Health and Safety Committee to make recommendations but contains no right to grieve health and safety issues. (Miller Dec. 7, 12-13; Van Harlingen 46). Allegations of Threats by Ms. Curry A series of events in the Fall of 2003 led the City to place Ms. Curry on paid administrative leave during the course of an investigation by the City and the Mansfield Police Department over the question of whether Ms. Curry had violated the City’s policy regarding violence in the workplace. The evidence indicates that Plaintiff Jessee alleged Ms. Curry told him, “I’m going to go home and get a gun and blow your fucking head off.” In August 2003 Mr. Gibson alleged that Ms. Curry was threatening to shoot people. The evidence indicates that Mr. Gibson was referring to a comment made by Ms. Curry during a meeting with all WWTP employees when she asked if anyone knew where her house keys were. When Plaintiff Merritt gestured as if to indicate he had her keys, Ms. Curry retorted that if anyone entered her house she would shoot them. (Blamer Dec. 14). Evidence also indicates that Mr. Benick had taken personal notes of Ms. Curry’s remarks in the Fall of 2003 when she believed that employees had vandalized her car and office, had taken her keys and moved her personal belongings. On those occasions, Ms. Curry allegedly said she was going to shoot whomever was interfering with her personal property. Evidence indicates that Mr. Benick did not share his personal notes with the City Defendants or the Union Defendants until discovery in the instant matter. In the Fall of 2003, Plaintiffs Gibson, Benick, Merritt, and Jessee met with Plaintiffs Van Harlingen, Blamer, Klous-aidis and Fogt to discuss Ms. Curry’s alleged yelling and threatening employees with “write-ups.” Mr. Fogt then met with Ms. Curry. Evidence indicates that later that day, in the presence of Plaintiffs Ben-ick and Gibson, Ms. Curry asked WWTP employee Ted Lee if he was intimidated by her and gestured toward him with her hand in the shape of a gun. This incident was reported to Mr. Blamer who reported it to Mr. Klousiadis. (Blamer Dec. 16). In late November 2003, evidence indicates that one of the Plaintiffs called Mr. Van Harlingen to report that employees at the WWTP were afraid that Ms. Curry might be carrying a gun to work. (Van Harlingen 32). The evidence shows that Mr. Van Harlingen asked for, and received written statements from Plaintiffs Jessee, Benick, Gibson, and Hout regarding these allegations. Mr. Van Harlingen and Mr. Miller then met with Mr. Fogt, whereupon the City asked the Mansfield Police Department to conduct an investigation. (Van Harlingen 34; Miller 18). Evidence indicates that after the conclusion of the police investigation the City reported to the Local Union that Ms. Curry’s car and bag had been searched and further questioning had produced insufficient evidence of a criminal offense. In addition, the police interview transcripts indicate that Plaintiffs Hout, Neumann, Gibson, Benick and Workman each testified to the Mansfield police that they had never been directly threatened by Ms. Curry. The City conducted its own internal investigation. The City held a pre-diseiplin-ary hearing on the charge that Ms. Curry had violated the City’s violence in the workplace policy. The City found no evidence to support the charge and Ms. Curry was returned to work. Evidence indicates that the Local Union requested the City perform diversity training for WWTP employees, which the City conducted a few weeks after Ms. Curry’s return on 12 January 2004. Further evidence indicates that since her return, none of the Plaintiffs have reported to the Union Defendants any claims of physical threats of violence towards them by Ms. Curry. (Neumann Depo 104-06; Jessee Depo 64; Benick Depo 418-19; Merritt depo 455-56). Two weeks after Ms. Curry’s return, evidence indicates that the Plaintiffs sent a joint letter to the Local Union asking what it intended to do to protect them from threats made by Ms. Curry. Mr. Van Harlingen responded in writing to the Plaintiffs that he would “be happy to pursue the matter” in the form of a grievance with documentation of dates, times and witnesses. (Van Harlingen 41-43). Evidence indicates that Ms. Curry was suspended for one day without pay for confronting Plaintiffs Gibson and Benick during the work day on 6 May 2004 when she was off duty. In the confrontation, Ms. Curry demanded Benick and Gibson explain the statements they had made to the Mansfield Police during its investigation. While neither Plaintiffs Benick nor Gibson were disciplined by Ms. Curry, upon her return there was continued tension which, evidence indicates, Mr. Klousiadis sought to alleviate by issuing new Pretreatment Procedures. (Klousiadis 15). The directive limited Mr. Benick and Mr. Gibson’s contact with Ms. Curry and narrowed Ms. Curry’s supervisory authority, requiring that: Ms. Curry provide written daily work assignments to Mr. Gibson and Mr. Benick each morning; Mr. Benick and Mr. Gibson would leave the plant for field work no later than 7:30 a.m.; no discipline would issue on the basis of work performance unless Mr. Kulda concurred and he would make himself available during the course of the day to answer questions regarding Mr. Benick’s and Mr. Gibson’s work performance. Mr. Klousiadis’ directive also required Ms. Curry to perform her work in her private office and outside of the Pretreatment Room which had become a gathering place for employees. Evidence indicates that Ms. Curry was suspended without pay for one day for failing to follow the directive to perform her work in her private office. The City also implemented new work rules for all WWTP employees. These rules included: new sick leave usage rules; restricted employees from talking to one another about non-work related matters on the job; restricted the use of personal cell phones while on the job; and prohibited employees from tape recording each others conversations on the job. The Union Defendants grieved the new policies and the City rescinded the new sick leave rules and retained the other restrictions. On 3 November 2005, the Plaintiffs signed a petition asking the Local Union to file an unfair labor practice charge against the City for implementing these rules. The Ohio Council legal department denied the request upon review. (Van Harlingen Dec. 50-51). Workplace Treatment of the Plaintiffs Between 1999 and 2005, Mr. Gibson received six informal conferences for work related performance from his supervisor Ms. Curry. Mr. Gibson received a written reprimand for leaving a sampling stainer in a sewer line in March 2005 and a one day suspension without pay for failing to begin work in the field as directed in June 2005. During this same period, evidence indicates that Mr. Benick received two Informal Conferences from Ms. Curry. (Van Harlingan Dec. 28). After the City’s implementation of the new Pretreatment Procedures in July 2004 all disciplinary action toward Mr. Gibson and Mr. Benick was the result of a joint finding between Mr. Kulda and Ms. Curry. (Curry Depo. 270-78). Under the auspices of the new Pretreatment Procedures, Mr. Benick was suspended for a total of thirty-four days as the result of the City’s progressive disciplinary policy. Each of these disciplinary actions related to work performance or violation of City policy, such as when Mr. Benick was suspended for fifteen days for making unauthorized photocopies of City documents for his personal use. (Benick Depo. 440-46, 502-04). Evidence indicates that in three other instances Mr. Benick was charged and found not guilty of poor work performance involving the proper handling of equipment. Following his last suspension of fifteen days Mr. Benick transferred out of the WWTP. From 2003 to 2006 the Local Union filed ten grievances against Ms. Curry on behalf of Mr. Gibson, two involving alleged unprofessional behavior on the part of Ms. Curry and the remainder involving written reprimands for work performance. (Blamer Dec. 10-12, 21). During the same period, the Local Union filed six grievances against Ms. Curry on behalf of Mr. Benick involving allegations of Ms. Curry yelling at the Plaintiff Benick about his work performance. The Local Union also grieved each of Mr. Benick’s written reprimands and suspensions. (Van Harlingan Dec. 29-31). Mr. Merritt, who works the graveyard shift at the WWTP received two informal conferences from Ms. Curry between 1981 and 2002. Mr. Merritt was suspended for one day in July 1996 for calling Ms. Curry a “bitch” among other obscenities. Mr. Merritt received discipline from his supervisor, Mr. Coker, on seven occasions and four other disciplinary actions at the direction of Mr. Kulda. Evidence indicates that each of these actions involved work performance or violation of City performance. In the most egregious instances, Mr. Merritt was charged in September 2005 with providing a false statement to the City at a pre-disciplinary hearing where he was accused of reading personal material while on duty. (Merritt Depo. 98). The City recommended termination and through negotiation with the Union Defendants at Step Three of the grievance procedure Mr. Merritt accepted a one-day suspension instead of the discharge. Id. 105-07. In November 2005, the City again sought to terminate Mr. Merritt after he allegedly failed to perform his duties and misrepresented his actions. The Union Defendants appealed the termination and, in July 2006, an arbitrator found that Mr. Merritt had failed to perform his duties, that he had engaged in a cover-up of his conduct, and that while his conduct “clearly justified discipline being imposed,” it was sufficient to reinstate Plaintiff Merritt without back pay. (Klousiadis Dec. 23). Testimonial evidence from Plaintiffs Workman, Neumann, Jessee, and Hout indicate they have not received any discipline from Ms. Curry. (Workman Depo. 42-44; Neumann Depo. 30-33; Jessee Depo. 33-34; Hout Depo. 18). With regard to actions in general against Plaintiffs Hout, Jessee, Neumann, and Workman, the four Plaintiffs received a total of five informal conferences and two written reprimands for minor work performance issues since 1995. None of these actions resulted in the loss of pay, position, or employment status. The Plaintiffs did testify to alleged adverse consequences with regard to their willingness to accept overtime duty in the pretreatment facility. (Workman Depo. 75; Hout Depo. 293; Jessee Depo. 47; Neumann Depo. 35). With regard to the grievance activity of Plaintiffs Jessee, Workman, Neumann, and Hout, the evidence indicates the following: Mr. Jessee filed one grievance against Ms. Curry in 1994, he filed a group grievance in 2005 over the implementation of the new cell phone policy, and he did not approach the Union Defendants to grieve alleged threats or other alleged conduct by Ms. Curry. (Jessee Depo. 221-252). Mr. Workman admitted to grieving only for lost overtime. (Workman Depo. 221-23). His testimony indicates that he never filed a grievance against Ms. Curry, that he did not inform the Union Defendants of Ms. Curry’s alleged threats or ask the Union Defendants to file a grievance regarding any of her alleged conduct. (Workman Depo. 225, 227, 232, 234). Plaintiff Neu-mann testified that he has never filed nor asked the Union Defendants to file a grievance against Ms. Curry for her alleged conduct. Mr. Neumann testified that he has not filed a grievance since 1997 except for the group grievance regarding the new cell phone policy. (Neumann Depo. 114-118, 130, 136). Mr. Hout testified that he requested the Local Union to file a grievance over the City’s 2004 policy prohibiting the use of tape recorders on the job. The Local Union proceeded with that grievance through Step Three but determined it did not have sufficient merit to warrant an appeal to arbitration. Mr. Hout also filed a grievance over a dispute about pay for his time as a witness at a grievance hearing. Mr. Hout admitted that he never asked the Union Defendants to file grievances over alleged threat or conduct from Ms. Curry. (Hout Depo. 185, 187, 254-58). The Union Defendants appealed the City’s cell phone usage policy to arbitration. (Van Harlingan Dec. 48). II. SUMMARY JUDGMENT STANDARD 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, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 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) (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, “[ojnce 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 motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 56. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). Once the burden of production has 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) (marking as standard that 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’). The nonmovant must “present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Id. (quoting in part Anderson, 477 U.S. at 257, 106 S.Ct. 2505); see Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.1994). The non-moving party “must present significant probative evidence in support of its complaint to defeat the motion for summary judgment.” Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6 th Cir.1993). Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the non-movant fails to present such affirmative evidence, then there is no need for a trial since there are no “genuine factual issues that properly can be resolved only by a finder of fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505; see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. 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). III. LAW AND ARGUMENT A. Statute of Limitations In deferral states such as Ohio, § 2000e-5(e)(1) requires plaintiff to file a complaint with the EEOC within 300 days of the allegedly unlawful employment practice. Amtrak v. Morgan, 536 U.S. 101, 109-10, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also, Alexander v. Local 496, Laborers’ Intern. Union of North America, 177 F.3d 394, 407 (6th Cir.1999) (“[I]f the alleged unlawful practice occurs in a ‘deferral state,’ in this case Ohio, which has enacted its own laws prohibiting discrimination in employment, the plaintiff must file suit within 300 days of the alleged discriminatory act.”). The 300-day limitation period begins to run “[o]nce the employee is aware or reasonably should be aware” of the allegedly unlawful employment decision, “not when the plaintiff learns that the employment decision may have been discriminatorily motivated.” Amini v. Oberlin College, 259 F.3d 493, 498-99 (6th Cir.2001). Pursuant to National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-09, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and notwithstanding the Plaintiffs’ arguments (Doc. 163, p. 13), the Court determines the Plaintiffs may file suit on events that fall outside the 300-day limitation period for filing a charge with the EEOC only for events alleging “hostile work environment claims.” Id. at 110, 122 S.Ct. 2061. Whether those events outside of the 300-day limitation, which fall within an allegation of a hostile work environment claim may be considered, hinges upon whether, pursuant to the 6th Circuit’s decision in Sharpe v. Cureton 319 F.3d 259, 268-69 (6th Cir.2003), the preponderance of the evidence establishes that “intentional discrimination against the class of which plaintiff was a member was the company’s standard operating procedure.” Id. For Title VII actions which are construed as “discrete discriminatory acts” such as “termination, failure to promote, denial of transfer, or refusal to hire,” each of which “starts a new clock for filing charges alleging that act,” the Court will exercise the 300-day statute of limitations from the date of Plaintiffs’ filing with the EEOC. Morgan, 536 U.S. at 113-14, 122 S.Ct. 2061. Accordingly, with regard to the Plaintiffs’ claims of “discrete discriminatory acts” against the Union Defendants, pursuant to Title VII, the Court will only consider alleged acts of discrimination by the Union Defendants occurring after 28 April 2004, as that date falls 300 days prior to the Plaintiffs’ 22 February 2005 EEOC filing against the Union Defendants. Similarly, the Plain-tiffs allege filing their EEOC complaints against the City of Mansfield in March 2004. Considering the Plaintiffs filed their EEOC complaint on 1 March 2004, the Court concludes that Title VIPs statute of limitations has run against the Plaintiffs’ claims against the City Defendants on any discrete acts of discrimination alleged to have occurred prior to 9 April 2003. B. Plaintiffs’ Race and Sex Discrimination Claims Under Title VII, § 1981, and O.R.C. Chapter 4112 1. Initial Determination of the Scope of the Claims: Individual Liability & Section 1981 (i) Title VII As an initial matter, the individual City Defendants are not subject to liability under Title VIL Wathen v. General Electric, 115 F.3d 400, 404-05 (6th Cir.1997) (holding that an individual employee/supervisor, who does not otherwise qualify as an “employer,” may not be held personally liable under Title VII). Accordingly, neither the individual City Defendants nor Ms. Curry are liable under Title VII as these individuals are not employers as the term is defined under Title VII. Mr. Fisher, Mr. Klousiadis, and Ms. Curry are entitled to summary judgment as a matter of law on Plaintiffs’ Title VII claims of race and sex discrimination, as well as Plaintiffs’ Title VII harassment/hostile work environment claim. (ii) O.R.C. Chapter 4112 Under Ohio law, an individual employee may be liable for employment discrimination. Ohio Rev.Code § 4112; Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293, 703 N.E.2d 782 (1999); Cheek v. Indus. Powder Coatings, Inc., 84 Ohio St.3d 534, 706 N.E.2d 323 (1999). In Genaro, the Ohio Supreme Court noted: R.C. 4112.02 provides that “[i]t shall be an unlawful discriminatory practice: (A) [f]or any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry 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.” R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.” (Emphasis added.) Further, the term “person” is defined very broadly by R.C. 4112.01(A)(1) as including “one or more individuals, * * * any owner, lessor, assignor, * * * agent, [and] employee.” It is clear that the R.C. 4112.01(A)(2) definition of “employer,” by its very terms, encompasses individual supervisors and managers whose conduct violates the provisions of R.C. Chapter 4112. Moreover, R.C. 4112.08 mandates that “[t]his chapter [4112] shall be construed liberally for the accomplishment of its purposes.... ” Genaro, 84 Ohio St.3d at 296, 703 N.E.2d 782. See also Cheek, 84 Ohio St.3d at 534, 706 N.E.2d 323 (Ohio 1999) (holding that “an individual employee, not otherwise deemed to be an ‘employer’ under the statute, may be individually liable for alleged violations of the employment discrimination provisions of the Ohio Civil Rights Act, Ohio Rev.Code §§ 4112.01(A)(2), 4112.02(A) & 4112.99”). Ohio courts have refused to extend Genaro to non-supervisory employees. See Hale v. City of Dayton, No. 18800, 2002 WL 191588, at * 2 (Ohio Ct.App.Feb.8, 2002) (unpublished disposition). Accordingly, the only claim of sex discrimination and harassment/hostile work environment to survive, at this juncture, against the individual defendants — Mr. Fisher, Mr. Klousiadis, and Ms. Curry— does so under O.R.C. Chapter 4112. (iii) Plaintiffs’ Claims Under 42 U.S.C. § 1981 Plaintiffs first raise several claims under § 1981, which provides: [a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). While § 1981 does not expressly afford a cause of action to private parties, the United States Supreme Court held in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), that private defendants may be held liable under its provisions. Id. at 174-175, 96 S.Ct. 2586. Plaintiffs’ claim that § 1981 contains an implicit cause of action against municipalities that engage in racial discrimination in employment. In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), however, the United States Supreme Court held that § 1981’s implicit cause of action does not extend to suits brought against state actors. Id. at 732, 109 S.Ct. 2702. See Arendale v. City of Memphis, 519 F.3d 587 (6th Cir.2008). Accordingly, the City of Mansfield is entitled to summary judgment as a matter of law as to the entirety of Plaintiffs’ claims brought pursuant to 42 U.S.C. § 1981. Further, as a matter of law, § 1981 only provides relief for employment discrimination where the employment decision is motivated on the basis of race rather than upon the basis of sex. In this instance, the Plaintiffs’ complaints are race and sex discrimination. However, it is long settled that claims of sex discrimination are not cognizable under § 1981. Clark v. Morgan’s Austintown Foods, Inc., 405 F.Supp. 1008, 12 FEP Cases 708 (N.D.Ohio 1976). Accordingly, all Defendants are entitled to summary judgment as a matter of law with regard to the Plaintiffs’ sex discrimination claims brought pursuant to 42 U.S.C. § 1981. 2. Sex and Race Discrimination under Title VII and O.R.C. 4112, and Race Discrimination under Section 1981. The Plaintiffs first charge the City Defendants with discrimination based on sex (male) and race (white) pursuant to Title VII, 42 U.S.C. § 1981, and O.R.C. 4112. Courts have recognized the elements of the prima facie case and the allocations of the burden of proof remain the same for each of these statutory pleadings — Title VII, Section 1981, and O.R.C. 4112. Johnson v. University of Cincinnati, 215 F.3d 561, 573 (6th Cir.2000); Williams v. Ford Motor Co., 187 F.3d 533, 538 (6th Cir.1999); Bucher v. Sibcy Cline, Inc., 137 Ohio App.3d 230, 738 N.E.2d 435, 442 (2000) (noting that Ohio courts examine state employment discrimination claims in accordance with federal case law). As the elements and burdens required in each of these statutes mirror each other, the Court will discuss the discrimination claims brought pursuant to these three statutes under the general rubric of Title VII. Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001) (A claim under 42 U.S.C. § 1981 fails where plaintiff is unable to establish a prima facie case under Title VII). Title VII provides that “it shall be an unlawful employment practice for an employer” to discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). A person aggrieved by such discrimination may bring a civil action against the “employer.” 42 U.S.C. § 2000e-5(b). In the absence of direct evidence, to establish a prima facie case of discrimination, plaintiffs must use the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To succeed in their sex or race discrimination claims, the Plaintiffs must prove their prima facie case, by a preponderance of the evidence, establishing: (1) they were members of a protected class; (2) they were qualified for their positions; (3) they suffered an adverse employment action; and, (4) circumstances indicated that their race or sex played a role in the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817; Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir.2001). In Title VII “reverse discrimination” cases where, as here, a member of the majority is claiming discrimination on the basis of race and sex, the Sixth Circuit has held that to satisfy the first element of the McDonnell Douglas test, the plaintiff must demonstrate “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Grizzell v. City of Columbus, Div. of Police, 461 F.3d 711, 719 (6th Cir.2006); Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249, 255 (6th Cir.2002) (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985)). Under the fourth element of the McDonnell Douglas test, Plaintiffs must show that they were treated differently from other similarly-situated employees who were not members of the protected class of, in this instance, white males. Zambetti supra. Therefore, the appropriate modified version of the McDonnell Douglas framework for a reverse discrimination case is that a plaintiff must show: “(1) background circumstances supporting the suspicion that the defendant is the unusual employer who discriminates against the majority; and (2) that the employer treated employees who were similarly situated, but not members of the protected group, more favorably.” Bushman, 107 Ohio App.3d at 662, 669 N.E.2d 305; see also Murray, 770 F.2d at 67 (modifying the McDonnell Douglas framework to accommodate reverse discrimination). In this burden shifting test, if the Plaintiffs make such a prima facie showing of discrimination, the Defendants then have the burden “to articulate some legitimate, nondiscriminatory reason” for the adverse employment action. See McDonnell Douglas at 802, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Braithwaite, 258 F.3d at 493. Finally, if the Defendants successfully articulate a legitimate, nondiscriminatory reason for the adverse employment action, the Plaintiffs have the burden to show that the Defendants’ reason for the adverse employment action is pretext for what is, in essence, unlawful discrimination. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817, 36 L.Ed.2d 668; Braithwaite, 258 F.3d at 493. The Plaintiffs “can demonstrate pretext by showing that the [Defendants’] proffered reason: (1) has no basis in fact, (2) did not actually motivate the [Defendants’] challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000). The Sixth Circuit has adopted an approach that for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1998). Pursuant to Smith, the “key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Id. at 807. 3. Plaintiffs’ Prima Facie Case No Adverse Employment Action — Plaintiffs Hout, Jessee, Neumann, and Workman. Upon review of the record, the claims of race and sex discrimination by Plaintiffs Hout, Jessee, Neumann, and Workman fail as a matter of law because they admittedly suffered no adverse employment action. (Hout Depo. 18; Jessee Depo. 33-34; Neumann Depo. 30-33; Workman Depo. 42-44). The record indicates that Plaintiffs Hout, Jessee, Neu-mann, and Workman received a total of five informal conferences and two written reprimands for minor job infractions between 1995 and the present. Ms. Curry initiated none of this disciplinary action and, further, none of the action resulted in the loss of any pay, benefits, duties, responsibilities, position or employment status. See Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999) (defining “adverse employment action” for purposes of a Title VII discrimination claim as a “materially adverse change in the terms and conditions of [plaintiffs] employment”). Accordingly, the Title VII claims of race and sex discrimination brought by Plaintiffs Hout, Jessee, Neumann, and Workman against the City of Mansfield fail as a matter of law. Further, the Section 1981 race claim brought by Plaintiffs Hout, Jes-see, Neumann, and Workman against the City Defendants and Ms. Curry fails as a matter of law. Finally, the Section 4112 claim of race and sex discrimination brought by Plaintiffs Hout, Jessee, Neumann, and Workman against the City Defendants and Ms. Curry fails as a matter of law. (See Second Amended Complaint, ¶¶ 38-39, 41, 47 & 65). See Mitchell v. Vanderbilt University, 389 F.3d 177, 182-83 (6th Cir.2004); Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539, n. 1 (6th Cir.2002). Background Circumstances requirement of the prima facie case — Plaintiffs Gibson, Benick, and Merritt. The Sixth Circuit has not developed a bright line test for what constitutes “background circumstances” for the purpose of the first McDonnell Douglas element in a reverse discrimination case. Therefore, the Court looks to prior decisions for guidance. In Zambetti v. Cuyahoga Community College, 314 F.3d 249 (6th Cir.2002), the court found inadequate plaintiffs evidence that the community college police chief disregarded the Selection Advisory Committee’s recommendation only the three times the plaintiff was not promoted because no evidence was presented as to how many times the committee recommended the hiring of someone with less seniority. 314 F.3d at 257. The court also determined that no inference could be drawn from the fact that the chief hired only one white person for ten to fifteen vacancies in six years because no evidence was presented concerning the racial composition of the applicant pools for those positions. Id. Nonetheless, the court found sufficient evidence to create an issue of fact as to the “background circumstances” element because the chief was himself African-American. “This is sufficient, in our opinion, to satisfy Murray’s ‘background circumstances’ requirement.” Id. The composition of the workforce and the sex of the plaintiffs supervisor were similarly held to constitute sufficient “background circumstances” to satisfy the first element of the McDonnell Douglas test in Turner v. Grande Pointe Healthcare Community, 2007 WL 2601386 (N.D.Ohio Sept.10, 2007), a reverse gender discrimination case. In Turner, the court found the fact that the majority of the workforce and management at Grande Pointe, as well as all of the decision makers in the plaintiffs case, were females “support[s] the suspicion that the defendant is the unusual employer who discriminates against the majority.” Id. at *13. In this instance, the composition of the workforce at the WWTP, was overwhelmingly white and male, as well as the fact that the decision-makers were also white and male, do not constitute sufficient “background circumstances” to satisfy the necessary first element of the prima facie case, modified to accommodate the reverse discrimination characteristics of this case. Also, militating against such a finding is the fact, brought forth in the evidence, that Ms. Curry is the only African American employee at the WWTP and for the bulk of time under consideration in this action she was also the only female employee. Similarly Situated requirement of the prima facie case — Plaintiffs Gibson, Benick, and Merritt. The second element of the modified prima facie case requires the Plaintiffs show “that the employer treated employees who were similarly situated, but not members of the protected group, more favorably.” Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985). Crucial to this element is the establishment of a “similarly situated” comparator who is not a member of the protected group. In Mitchell, the Sixth Circuit held that the employee with whom the plaintiff wishes to compare his treatment with must be “similarly-situated in all respects.” Mitchell, 964 F.2d at 583 (quoting Stotts v. Memphis Fire Department, 858 F.2d 289 (6th Cir.1988)). The Sixth Circuit has since clarified this to mean that the employee with whom the plaintiff wishes to compare his treatment with must be “nearly identical” in “all of the relevant aspects of his employment situation.” Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994). In determining what the relevant aspects are, courts are to “make an independent determination as to the relevancy of a particular aspect of the plaintiffs employment status and that of the non-protected employee.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). The Court finds no evidence that Plaintiffs Gibson, Benick and Merritt were treated differently from similarly situated employees who were not part of the protected group — white and male — with regard to the relevant aspects of any adverse employment decision. The Court recognizes the Plaintiffs’ deposition evidence as either inadmissible or not material. (Benick Depo. 197-200; Gibson Depo. 139-142). While not “nearly identical,” Ms. Curry, the only African-American employee at the WWTP, was subject to the same progressive disciplinary policies as each of the white, male Plaintiffs including Gibson, Benick, and Merritt. Ms. Curry was placed on administrative leave for several months while the City and Mansfield Police Department investigated the Plaintiffs’ allegations that Ms. Curry came to work with a firearm. (Klousiadis Dec. 4, 5). The City and the Mansfield Police Department found a lack of evidence to support the Plaintiffs’ allegations. Id. Ms. Curry was further disciplined by being suspended without pay on 6 May 2004 for improper conduct when she came to the WWTP at other than her regular work hours to seek an explanation from Plaintiffs Gibson and Benick for their prior statements to the Mansfield Police Department that she was carrying a firearm. Ms. Curry was again suspended in July 2004 for not moving her office to a remote location as part of a policy designed to ease tensions between herself and the Plaintiffs. Id. 14. Finally, Ms. Curry was the only female employee for the majority of the relevant time under consideration. The Plaintiffs have provided no admissible evidence that any other similarly situated female was treated differently with regard to disciplinary policies at the WWTP. Plaintiffs Ben-ick, Gibson and Merritt have failed to present credible evidence that they were treated less favorably than any similarly-situated non-white or female employee. “The plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered ‘similarly-situated.’ ” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (considering claim under the Age Discrimination in Employment Act). Taking all of their allegations as true, the Court concludes that Plaintiffs Benick, Gibson and Merritt have failed to make out a prima facie case of sex or race discrimination because they have not shown that they were treated differently from any other similarly situated employee as they have provided no comparable employee in their sex and race discrimination claims. 4. Lack of Pretext in Plaintiffs’ Race and Sex Discrimination Claims Even if the Plaintiffs had met their prim a facie burden, the City has articulated legitimate, non-discriminatory reasons for the disciplinary action toward Plaintiffs Benick, Gibson and Merritt. McDonnell Douglas v. Green, 411 U.S. at 802-03, 93 S.Ct. 1817; see also Lautermilch v. Findlay City Sch., 314 F.3d 271, 275-76 (6th Cir.), cert. denied, 540 U.S. 813, 124 S.Ct. 63, 157 L.Ed.2d 27 (2003); Diehl v. Tele-Solutions, Inc., 57 F.3d 482, 483 (6th Cir.1995). Specifically, the City points to its progressive discipline policy and the implementation of that policy, for legitimate non-discriminatory reasons, with regard to Plaintiffs Gibson, Benick, and Merritt. The disciplinary action taken against Mr. Gibson from June 1998 through June 2004 consisted of six informal conferences initiated by Ms. Curry for minor workplace infractions. Mr. Benick received two informal conferences in September and October 2003 from Ms. Curry for minor workplace infractions. These informal conferences are the lowest level of disciplinary action and do not weigh toward adverse employment action. With the implementation of the new Pretreatment Procedures in July 2004, any disciplinary action taken toward Mr. Gibson or Mr. Benick ushered from the joint decision of Ms. Curry and her supervisor Mr. Kulda. Mr. Gibson received progressive discipline for workplace performance issues on two occasions: a written reprimand for leaving a sampling strainer in a sewer line in March 2005 and a one-day suspension for failing to begin work as ordered in June 2005. Between March and November 2005 Mr. Benick faced progressive disciplinary action that resulted in his suspension for an accumulated total of thirty-four days as a result of workplace performance issues and for violating City policy by using City equipment for his personal use. (Benick depo 440-46, 502-04). The evidence indicates both Plaintiffs received predisciplinary hearings which established the charges and supported the discipline. Between 1998 and 2005, Mr. Merritt received discipline on twelve occasions. Mr. Merritt received an informal conference from Ms. Curry in 2002 for failing to report to work on time. From his supervisor, Mr. Coker, he received five informal conferences, one written reprimand for absenteeism and a fifteen-day suspension (later stayed by agreement) for failing to turn off electric blowers. From Mr. Coker’s supervisor, Otto Kulda, Mr. Merritt received an informal conference, and was initially terminated and instead received a one-day suspension, by agreement between Merritt, the City and the Union, for denying at a predisciplinary hearing that he was reading a personal book while on duty. Mr. Merritt was again disciplined with termination in November 2005 for failing to carry out a workplace assignment and for denying any responsibility. The City’s action went to arbitration where the arbitrator reinstated Mr. Merritt without backpay but found the Plaintiff Mr. Merritt had failed to carry out the task, had tried to cover-up his failure, had lied during the predisciplinary hearing, and engaged in conduct which justified the imposition of discipline. The Court finds the City has provided legitimate non-discriminatory reasons for these actions. See Duggan v. Orthopaedic Inst. of Ohio, Inc., 365 F.Supp.2d 853, 861 (N.D.Ohio 2005) (“The determination of whether an employer reasonably relied on the facts before it does not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action”). The Court finds the evidence indicates the City had legitimate non-discriminatory reasons for implementing the progressive disciplinary measures and was not engaged in discriminatory animus toward Plaintiffs Gibson, Benick or Merritt. The burden then shifted to the Plaintiffs to show that the City’s articulated reasons for disciplinary action against Plaintiffs Benick, Gibson, and Merritt were a pretext for discrimination. See Allen v. Michigan Dep’t of Corrections, 165 F.3d 405, 409 (6th Cir.1999); see also Johnston v. O’Neill, No. 04-3550, 2005 WL 1027554, at *6 (6th Cir. May 3, 2005). The Plaintiffs Gibson, Benick, and Merritt have not presented evidence from which the Court could reasonably conclude there existed a genuine issue of material fact that the City Defendants’ articulated bases for carrying out disciplinary action could be considered a pretext for unlawful race or sex discrimination. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; Allen, 165 F.3d at 409. Accordingly, the City Defendants are entitled to summary judgment in their favor on the Plaintiffs’ instant claims of race and sex discrimination pursuant to Title VII. C. Plaintiffs’ State Claim of discrimination under O.R.C. 4112 brought against Curry, Fisher and Klous-iadis as Individuals The Ohio Supreme Court has held that the coverage of O.R.C. § 4112.02(A) is identical to the coverage of federal law prohibiting discrimination in the employment context. Thus, evidence sufficient to support a finding of discrimination under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act is necessary before a violation of § 4112.02(A) can be shown. Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981). While the Sixth Circuit has held that individual employees cannot be held liable under Title VII, Wathen v. General Electric Co., 115 F.3d at 405, under Ohio law, a supervisor and employer may be jointly and severally hable for discriminatory conduct. Genaro v. Central Transport, Inc., 84 Ohio St.3d 293, 703 N.E.2d 782 (1999). Nevertheless, because the Plaintiffs have failed to show discrimination on the part of the City, the claims under Ohio law against Curry, Fisher, and Klousiadis as individual supervisors must also be dismissed. See Booker v. Dee Sign Co., 2008 WL 839786 (S.D.Ohio, 2008); accord Novotny v. Reed Elsevier, 2007 WL 2688171, *24 (S.D.Ohio 2007) (unpublished). Accordingly, the Court will grant summary judgment to the City on the Plaintiffs’ federal race and sex discrimination claims, and also grant summary judgment to the individual Defendants on the Plaintiffs’ state discrimination claims. D. Race and Sex Discrimination Claims Against the Union Defendants Under Title VII, § 1981 & O.R.C. 4112 The Plaintiffs bring race and sex discrimination claims pursuant to Title VII, and its state and federal analogs, against the Union Defendants in their representative capacity. Second Amended Complaint, ¶¶ 44, 90-99, 117. Title VII provides the following with regard to labor organizations: (c) Labor organization practices It shall be an unlawful employment practice for a labor organization— (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; (2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. 42 U.S.C.A. § 2000e-2(c). Except in very few instances, see Rainey v. Town of Warren, 80 F.Supp.2d 5, 14-16 (2000), in a case such as this, where plaintiff union members bring claims of race and sex discrimination against their representative labor organization, courts have crafted an analysis similar to the McDonnell Douglas framework used in the employer-employee context. See Driver v. U.S. Postal Service, Inc. 328 F.3d 863, 868-69 (6th Cir.2003); York v. A.T. & T. Co., 95 F.3d 948 (10th Cir.1996); Robinson v. Central Brass Mftrg. Co., 987 F.2d 1235, 1238-39 (6th Cir.1993); Patterson v. United Steelworkers of America, 2005 WL 1539264 (N.D.Ohio 2005). Pursuant to that analysis, as enunciated in Bugg v. Int’l Union of Allied Industrial Workers of America, Local 507 AFL-CIO, 674 F.2d 595 (7th Cir.1982) cert. denied 459 U.S. 805, 103 S.Ct. 29, 74 L.Ed.2d 43 (1982), to establish a prima facie case of discrimination against the Union Defendants for an alleged failure to assist or file grievances, the Plaintiffs must show: (1) that the City of Mansfield committed a violation of the collective bargaining agreement (“CBA”) with respect to the Plaintiffs; (2) the Union Defendants breached its own duty of fair representation; and (3) the Union Defendants’ actions were motivated by racial animus. Bugg, 674 F.2d at 599-600 & fn. 5. This Court finds the analytical framework enunciated in Bugg applicable to the disparate treatment claims forwarded in this case. Contrary to the Plaintiffs’ position (Doc. 163) the Bugg analysis is not restricted to cases of direct discrimination, and each of the three required elements in Bugg remain viable in a case of this instance. Accordingly, the Plaintiffs’ reliance upon the reasoning in Agosto v. Correctional Officers Benevolent Assn., 107 F.Supp.2d 294 (S.D.N.Y.2000), Marquart v. Lodge 837, IAMAAW, 26 F.3d 842 (8th Cir.1994) and Greenier v. PACE, L. 1188, 201 F.Supp.2d 172 (D.Me.2002) are misplaced, as these opinions do not stand for the proposition that discriminatory animus need not be shown in this discriminatory treatment case. In applying the Bugg framework to the Plaintiffs’ race and sex discrimination treatment claims under Title VII, the Court not only finds no material evidence in support of the Plaintiffs’ allegations, but also finds the Court itself lacks subject matter jurisdiction to even consider the claim as it is predicated on a violation of the Union Defendants’ duty of fair representation. See Hayner v. City of Washington Courthouse, et al. Case No. 07-3277, (unpublished) (6th Cir. Dec. 14, 2007). Federal Courts have jurisdiction to determine violations of the statutory duty of fair representation pursuant to the National Labor Relations Act (“NLRA”), but only if the labor organization alleged to have breached the duty of fair representation is subject to the NLRA. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). However, pursuant to O.R.C. Chap. 307, the City of Mansfield is a political subdivision not covered under the NLRA’s definition of “employer.” See Lander v. Montgomery Co. BCC, 159 F.Supp.2d 1044 (S.D.Ohio 2001). Rather than representing the Plaintiffs under the NLRA, the Union Defendants have been granted the exclusive right to represent employees of the City pursuant to O.R.C. Chap. 4117, the Ohio Public Employee Collective Bargaining Act. Under O.R.C. 4117 the duty of fair representation is specifically recognized as an unfair labor practice. See O.R.C. 4117.11(B)(6). Both the second element of the Bugg test and the Plaintiffs’ claim for breach of a duty of fair representation are governed by Chapter 4117, which provides for exclusive jurisdiction by the State Employees Review Board (“SERB”). See Franklin Co. Law Enforcement Assn. v. F.O.P., Capital city Lodge No. 9, 59 Ohio St.3d 167, 572 N.E.2d 87; see also Feath-erstone v. Columbus Public Schools, 39 F.Supp.2d 1020 (S.D.Ohio, 1999) (finding public school teacher’s claim that teachers’ union breached its duty of fair representation amounted to unfair labor practice claim governed by Ohio statute regulating labor relations between public employees and their employer and, thus, teacher was required by statute to first bring claim with State Employment Relations Board (SERB), not federal district court). Accordingly, Plaintiffs’ arguments to the contrary (Doc. 163), this Court has no jurisdiction to entertain a claim of breach of duty of fair representation where, as here, the plaintiffs have failed to exhaust their administrative remedies with the SERB. (Miller Dec. ¶ 42). In the alternative, the Plaintiffs allege the Union Defendants are liable for discriminatory conduct by acquiescing in the City Defendants’ and Ms. Curry’s discrimination. Plaintiffs maintain that the Union Defendants’ passive acquiescence in discrimination by their employer is, in and of itself, sufficient to result in Title VII liability, irrespective of the Union Defendants’ motives. Courts recognize that proof of inaction on the part of the union, without more, is not sufficient to establish that the union acquiesced in discriminatory conduct. “Acquiescence requires (1) knowledge that prohibited discrimination may have occurred and (2) a decision not to assert the discrimination claim.” York v. American Tel. & Tel. Co., 95 F.3d 948, 956-57 (10th Cir.1996). A union may be held liable if it purposefully acts or refuses to act in a manner which causes the employer to discriminate. Har-dison v. Trans World Airlines, Inc., 527 F.2d 33, 42 (8th Cir.1975), rev’d on other grounds, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). However, while the United States Supreme Court has left open the possibility that this is a viable theory of recovery against a union in a Title VII disparate impact case, acquiescence alone is insufficient where, as here, plaintiffs claim is one of disparate treatment. See Goodman v. Lukens Steel Co., 482 U.S. 656, 665-66 & n. 10, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987); York, supra. Further, even if an acquiescence claim could be applied in this disparate treatment case, the Plaintiffs are still required to establish discriminatory intent on the part of the Union Defendants. Yet, the Plaintiffs’ deposition testimony and the material evidence submitted to the Court establishes that the Union Defendants filed numerous grievances and further represented the Plaintiffs in disputes over Ms. Curry’s alleged threatening or harassing behavior as well as the City’s disciplinary actions that did not involve Ms. Curry. The evidence also establishes the absence of contemporary grievance claims forwarded by the Plaintiffs to the Union Defendants of discrimination based on their status as white males. The two stray comments by Ms. Curry, in which she allegedly called the Plaintiffs “lying white devils” and remarked on the benefit of “black female” workers, did not at the time the statements were uttered, according to the admissible evidence provided, rise to such a le