To establish a prima facie case of disability discrimination under the ADA and the PWDCRA, Plaintiff is required to prove that she is disabled within the meaning of the statutes. Bradshaw v. Goodyear Tire & Rubber Co., 485 F.Supp.2d 821, 82627 (N.D. Ohio 2007) (collecting cases). To establish a prima facie case for failure to accommodate, Plaintiff also needed to show that

An allegation of failure to call a witness that the grievant requests be called during the processing of a grievance does not state a claim for breach of a union's DFR. See id. at 714 ("Although Lemaster maintains that other witnesses should have been called and other evidence presented, it is not the Court's role to second guess - with the benefit of hindsight - USW's tactical decisions"); see also Bradshaw v. Goodyear Tire & Rubber Co., 485 F. Supp. 2d 821, 828 (N.D. Ohio 2007) (finding no arbitrary or perfunctory handling of plaintiff's grievance where plaintiff complained of failure to introduce witnesses). Absent any allegation of wholly irrational conduct on the part of Defendant Union that seriously flawed the grievance procedure, the Complaint fails to state a claim that Defendant Union breached its DFR with respect to Plaintiff.

An employee "who is subject to a collective bargaining agreement that limits the employer's power to terminate union members is not an employee-at-will and therefore falls outside the class of employees for whom Greeley provides protection." York v. AK Steel Corp., No. C-1-04-250, 2005 U.S. Dist. LEXIS 31846, *23 (S.D. Ohio Dec. 8, 2005); see also Haynes, 652 N.E.2d at 951 (finding that the plaintiff could not bring a Greeley cause of action because she was a member of a union, and "the terms of her employment relationship were governed by a collective bargaining agreement"); Klepsky v. United Parcel Serv., Inc., 489 F.3d 264, 270-71 (6th Cir. 2007) (finding that plaintiff, a union member, could not maintain a Greeley claim because he was not an employee at-will); Bradshaw v. Goodyear Tire and Rubber Co., 485 F.Supp.2d 821, 830 (N.D. Ohio 2007) (declining to extend the public policy tort where plaintiff's employment was governed by a union-backed CBA).

Under McDonnell Douglas, a plaintiff must first allege facts to establish a prima facie case of race discrimination. Bradshaw v. Goodyear Tire and Rubber Co., 485 F. Supp. 2d 821, 826-27 (N.D. Ohio 2007) (citing McDonnell Douglas 411 U.S. 792, 802, (1973)). Once a plaintiff has made such a showing, "the burden shifts to the [defendant] to articulate a legitimate, non-discriminatory reason for its decision.

This case is properly analyzed under the McDonnell Douglas burden shifting analysis established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Bradshaw v. Goodyear Tire and Rubber Co., 485 F. Supp. 2d 821, 826-27 (N.D. Ohio 2007) (outlining the McDonnell Douglas burden shifting analysis). Under McDonnell Douglas, a plaintiff must first allege facts to establish a prima facie case of disability discrimination. Id. (citing McDonnell Douglas 411 U.S. 792, 802). Once a plaintiff has made such a showing, "the burden shifts to the [defendant] to articulate a legitimate, non-discriminatory reason for its decision.

To show disability discrimination, Plaintiff must show: (1) that he is an individual with a disability; (2) that he is otherwise qualified for the position he seeks or holds; and (3) that he was excluded from the position under circumstances that raise a reasonable inference of unlawful discrimination.” Bradshaw v. Goodyear Tire & Rubber Co., 485 F.Supp.2d 821, 826 (N.D. Ohio 2007) (citing Pesterfield v. Tenn. Valley Auth., 941 F.2d 437, 441 (6th Cir. 1991)). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to show a legitimate and non-discriminatory reason for its actions.

"In order to establish a prima facie case of disability discrimination in the employment context, a plaintiff must allege and prove (1) that he is an individual with a disability; (2) that he is otherwise qualified for the position he seeks or holds; and (3) that he was excluded from the position under circumstances that raise a reasonable inference of unlawful discrimination." Bradshaw v. Goodyear Tire and Rubber Co., 485 F.Supp.2d 821, 826 (N.D. Ohio 2007) (citing Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 441 (6th Cir. 1991)). Here, there is no indication that Plaintiff was terminated because of any alleged disability.

Furthermore, to hold the union liable under the ADA, Plaintiff must allege facts suggesting that the Union breached its duty of fair representation and that her employer breached the collective bargaining agreement. Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573 (6th Cir.1994); Bradshaw v. Goodyear Tire & Rubber Co., 485 F. Supp. 2d 821, 828 (N.D. Ohio 2007)(citing Section 301 of the Labor Management Relations Act , 29 U.S.C. § 185). Without factual allegations, the Complaint fails to suggest that either of these things occurred when her benefits were coded as early retirement rather than disability.

As summed up in another case, "[m]ost elements of [a negligent hiring, retention and supervision] claim make reference in some way to the employer-employee relationship . . . [and] [t]he employer-employee relationship in this case is governed entirely by the CBA. There is no way to apply these elements to the facts of this case without interpreting the CBA." Bradshaw v. Goodyear Tire & Rubber Co., 485 F. Supp. 2d 821, 830 (N.D. Ohio 2007). Because plaintiff's proof of his negligent supervision and gross negligence claims requires an interpretation of the CBA, those claims are minor disputes preempted by the RLA.

Plaintiff objects to the Magistrate Judge's conclusion. Plaintiff points out that, during the deposition of Defendant Philip Dunn, it was disclosed that the terms of his employment are not governed by the CBA because he holds a managerial position. Thus, Plaintiff argues, the Magistrate Judge's reliance on the case of Bradshaw v. Goodyear Tire Rubber Co., 485 F.Supp.2d 821, 830 (N.D. Ohio 2007), in resolving the preemption issue, is misplaced. The deposition was taken on June 29, 2010, i.e., after the Report and Recommendation was issued.