[Cite as Matheny v. Norton, 2015-Ohio-3451.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
NICHOLAS MATHENY, et al. C.A. No. 27242
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF NORTON, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellants CASE No. CV 2011 01 0603
DECISION AND JOURNAL ENTRY
Dated: August 26, 2015
HENSAL, Presiding Judge.
{¶1} The City of Norton and Mayor David Koontz appeal a judgment of the Summit
County Court of Common Pleas that ordered Nicholas Matheny and the Ohio Patrolmen’s
Benevolent Association to submit certain issues to arbitration. For the following reasons, this
Court affirms.
I.
{¶2} Mr. Matheny was a part-time police officer for the City from March 2004 to
February 2008. Although he left the department briefly, it rehired him as a part-time officer in
April 2008.
{¶3} According to Richard Ryland, the City’s former administration officer, in July
2009, the City was down to only two or three full time police officers and there was no one
available to hire who had passed a civil service exam. The City, therefore, made Mr. Matheny a
full-time officer with the understanding that he would take the civil service exam that September.
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{¶4} The personnel order that Mr. Ryland prepared regarding Mr. Matheny’s change in
employment indicated that he would “be assigned temporary Full-Time Police Officer status.”
Mr. Ryland later learned that the pension department had no classification for a temporary full-
time officer. He, therefore, revised the personnel order to indicate that Mr. Matheny would “be
assigned probationary Full-Time Police Officer status.” According to Mr. Matheny, he received
a copy of the new order and was told that it replaced the original one.
{¶5} In August 2009, Mr. Matheny applied to take the civil service exam. The
application advised Mr. Matheny that an “appointed candidate shall serve a one-year
probationary period.” The application also advised Mr. Matheny that he would receive bonus
points on the exam if he was a part-time police officer for the City. According to Mr. Matheny,
Thad Hete, the City’s police chief, told him that, even though he was already working full-time,
he should mark that he was a part-time officer on the application so that he would receive the
bonus points. Chief Hete also wrote a letter to the civil service commission to explain that Mr.
Matheny should receive the bonus points.
{¶6} After the City received Mr. Matheny’s results on the civil service exam, it
retained him as a full-time police officer. On November 13, 2009, Mr. Ryland issued a
personnel order that indicated that Mr. Matheny was “hereby hired as Full-Time Police Officer
employee[ ] of the City of Norton Police Department.” The order stated that Mr. Matheny’s
“effective date[ ] of full-time employment” was November 14, 2009.
{¶7} In July 2010, Chief Hete notified the City’s finance department that, because Mr.
Matheny’s “full-time employment start date [was] July 28, 2009[,] [h]e is eligible to be moved to
the Patrol 2[nd] Year rate * * * on July 28, 2010.” Mr. Matheny continued to serve as a full-time
police officer until October 27, 2010, when he was terminated, allegedly for disciplinary reasons.
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{¶8} In January 2011, Mr. Matheny and the Association filed a complaint and petition
to compel arbitration against the City and Mr. Koontz. They alleged that they had attempted to
file a grievance with the City because it did not have “reasonable and good cause” to terminate
Mr. Matheny, but the City failed to act on it. They, therefore, argued that they were entitled to
proceed to arbitration under the terms of their collective bargaining agreement (CBA). After the
City and Mr. Koontz filed their answer, the parties submitted briefing on the issue. The trial
court granted the petition, but this Court reversed on appeal, explaining that the court had been
required to hold a hearing before ruling on the petition. Matheny v. Norton, 9th Dist. Summit
No. 26166, 2012-Ohio-2283, ¶ 8.
{¶9} On remand, the trial court scheduled a hearing on the petition. Before the date of
the hearing, however, the City and Mr. Koontz moved for summary judgment, noting that Mr.
Matheny had filed a discrimination action in federal court. The City and Mr. Koontz argued that,
under the terms of the CBA, by filing “a discrimination action in a judicial forum,” Mr. Matheny
“waived and forfeited any remedies provided by the [g]rievance [p]rocedure,” which would
include the right to arbitration. Mr. Matheny and the Association opposed the motion, but the
trial court granted it, concluding that there was no genuine issue of material fact that Mr.
Matheny’s filing of a discrimination action waived any right he might have to proceed with his
grievance. On appeal, this Court reversed, concluding that, because the waiver language was
ambiguous, it was improper for the trial court to grant summary judgment to the City and Mr.
Koontz. Matheny v. Norton, 9th Dist. Summit No. 26666, 2013-Ohio-3798, ¶ 11.
{¶10} On remand, the trial court held a hearing on the petition to compel arbitration.
Following the hearing, it referred the matter to arbitration, concluding that, under the terms of the
CBA, the parties’ disagreements over Mr. Matheny’s status at the time of his termination and
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whether he waived his right to arbitrate by filing a federal discrimination lawsuit were issues for
an arbitrator to resolve. The City and Mr. Koontz have appealed, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE
MATHENY’S PETITION TO COMPEL ARBITRATION BECAUSE, AS A
PROBATIONARY EMPLOYEE, HE WAS NOT ENTITLED TO AVAIL
HIMSELF OF THE GRIEVANCE PROCESS RELATED TO DISCIPLINARY
ACTIONS THAT IS FOUND IN ARTICLE 8, SECTION 1 OF THE
APPLICABLE COLLECTIVE BARGAINING AGREEMENT.
{¶11} The City and Mr. Koontz note that it is undisputed that the City’s full-time police
officers are subject to a one-year probationary period and that officers who are still under
probation cannot use the CBA’s grievance procedure to contest disciplinary actions against them.
They argue that, because the City did not hire Mr. Matheny as a full-time officer until November
2009, he was still under his one-year probation period when the City terminated him for
disciplinary reasons eleven months later. Mr. Matheny and the Association, however, argue that,
because Mr. Matheny began working as a full-time police officer in July 2009 and was accorded
“probationary Full-Time Police Officer status” at that time, he finished his one-year probationary
period in July 2010, a few months before he was terminated. They, therefore, argue that he may
use the grievance procedure to seek review of his termination. The trial court, citing Stow
Firefighters, IAFF Local 1662 v. Stow, 9th Dist. Summit No. 25090, 2011-Ohio-1558, ordered
the parties to submit the dispute over Mr. Matheny’s status as either a probationary or non-
probationary employee to arbitration because it could not say with “positive assurance” that the
matter is not subject to the arbitration provision. Id. at ¶ 12, quoting Council of Smaller Ents. v.
Gates, McDonald & Co., 80 Ohio St.3d 661, 666 (1998).
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{¶12} “The question of whether a controversy is arbitrable under a contract is a question
of law for the Court to decide upon an examination of the contract.” Biondi v. Oregon Homes,
L.L.C., 9th Dist. Summit No. 26543, 2013-Ohio-1770, ¶ 7, quoting VIS Sales, Inc. v. KeyBank,
N.A., 9th Dist. Summit No. 25366, 2011-Ohio-1520, ¶ 8. This Court’s review is de novo. Id.
“Ohio has a ‘strong public policy favoring arbitration, which is consistent with federal law
supporting arbitration.’” Id. at ¶ 9, quoting Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d 411,
2011-Ohio-5262, ¶ 18. “Nonetheless, ‘when deciding motions to compel arbitration, the proper
focus is whether the parties actually agreed to arbitrate the issue, i.e., the scope of the arbitration
clause, not the general policies of the arbitration statutes.’” Id., quoting Taylor at ¶ 20.
Accordingly, “Ohio courts recognize a presumption in favor of arbitration when a claim falls
within the scope of an arbitration provision.” Id., quoting Taylor at ¶ 21. “[A]n order to arbitrate
the particular grievance should not be denied unless it may be said with positive assurance that
the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id.,
quoting Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-
Ohio-657, ¶ 14. “[A]rbitration is a matter of contract and a party cannot be required to submit to
arbitration any dispute which [it] has not agreed so to submit.” Id., quoting Taylor at ¶ 20.
{¶13} Article 8 of the CBA, entitled “Discipline,” provides, in part, that “[a]ny
disciplinary action against a non-probationary employee may be processed in accordance with
the dispute resolution procedure in Article 10 of this Agreement * * *.” Article 10 provides that
“[e]very employee shall have the right to present his grievance in accordance with the procedures
provided herein * * *.” “Grievance” is defined “as a dispute or controversy arising from the
misapplication or misinterpretation of the specific and express written provisions of this
Agreement.” Article 10 also provides that “any and all disputes arising out of the application
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and interpretation of this Agreement shall be resolved solely by this Agreement’s Grievance and
Arbitration Procedures.”
{¶14} The City and Mr. Koontz argue that Mr. Matheny may not use the grievance
procedure to contest his termination because he was a probationary employee at the time of his
termination. Mr. Matheny and the Association, however, argue that they may proceed under the
CBA because Mr. Matheny finished his one-year probationary period in July 2010. The CBA
itself does not define “non-probationary employee” or provide any criteria for determining
whether an employee falls within that class. The parties also have not pointed this Court to any
statute, regulation, or contract provision that resolves Mr. Matheny’s status at the time of his
termination. We, therefore, conclude that, under the terms of the CBA, the question of whether
Mr. Matheny was a probationary or non-probationary employee at the time of his discharge is a
dispute “arising out of the application and interpretation of [the CBA.]” Accordingly, it “shall be
resolved solely by [the CBA’s] Grievance and Arbitration Procedures.” See Stow Firefighters,
2011-Ohio-1558, at ¶ 12.
{¶15} The City and Mr. Koontz argue that the dispute is not arbitrable because this case
raises the same issues as Donini v. Fraternal Order or Police, 4th Dist. Scioto No. 08CA3251,
2009-Ohio-5810. In Donini, Linda Shannon filed a grievance pursuant to a collective bargaining
agreement after she was terminated from the Scioto County Sheriff’s office. After an arbitrator
ruled in favor of Ms. Shannon, the sheriff filed an action in the common pleas court, requesting
that the court vacate the arbitration award. The court complied, concluding that the arbitrator
had exceeded his authority because the dispute was not arbitrable. The Fourth District Court of
Appeals affirmed, explaining that, because Ms. Shannon was a probationary employee at the
time of her termination, she did not have the right to file a grievance under the collective
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bargaining agreement. Donini is distinguishable from this case, however, because there was no
question in that case “that [Ms. Shannon] was removed during [her] probationary period * * *.”
Id. at ¶ 15. In this case, the parties strongly disagree on whether Mr. Matheny was a
probationary employee at the time of his termination. Donini, therefore, is not instructive.
{¶16} Upon review of the CBA, we agree with the trial court that it cannot be said with
“positive assurance that the arbitration clause is not susceptible of an interpretation that covers”
the issue of whether Mr. Matheny was a probationary employee at the time of his termination.
Academy of Medicine of Cincinnati, 108 Ohio St.3d 185, 2006-Ohio-657 at ¶ 14, quoting
Council of Smaller Ents, 80 Ohio St.3d at 666. Mr. Matheny’s status as either a probationary or
non-probationary employee is a preliminary question that must be resolved under Article 10 and
11 of the CBA before it can be determined whether Mr. Matheny and the Association may
arbitrate the merits of Mr. Matheny’s improper-termination grievance. The City’s and Mr.
Koontz’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE
MATHENY’S PETITION TO COMPEL ARBITRATION BECAUSE HIS
FILING OF AN EMPLOYMENT DISCRIMINATION LAWSUIT IN
FEDERAL COURT PRECLUDED HIM, UNDER ARTICLE 12, SECTION 3
OF THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT, FROM
ALSO PURSUING A GRIEVANCE RELATED TO THE SAME ISSUES
UNDER THAT AGREEMENT’S GRIEVANCE PROCEDURE.
{¶17} Alternatively, the City and Mr. Koontz argue that Mr. Matheny and the
Association are prohibited from pursuing arbitration of Mr. Matheny’s grievance because he
filed a discrimination action in federal court. Article 12, Section 3 of the Agreement provides:
The Grievance Procedure set forth at Article 10 shall not be deemed to constitute
a waiver of an individual employee’s rights, if any, to a judicial forum for claims
alleging such discrimination under antidiscrimination statutes. However, an
employee who pursues a discrimination claim in a judicial forum shall
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automatically have waived and forfeited any remedies provided by the Grievance
Procedure.
The City and Mr. Koontz argue that, under the terms of that section, Mr. Matheny and the
Association waived their right to seek arbitration of his termination grievance by filing his
federal action.
{¶18} This Court previously determined that the language of Article 12, Section 3 is
ambiguous. Matheny, 2013-Ohio-3798, at ¶ 11. At the hearing that the trial court held on
remand, neither side presented extrinsic evidence regarding the intended meaning of Article 12’s
language. The trial court, therefore, concluded that the issue should be determined by an
arbitrator, consistent with the “any and all disputes” provision in Article 10.
{¶19} The City and Mr. Koontz again argue that the plain language of the CBA
precludes Mr. Matheny and the Association from seeking arbitration because Mr. Matheny filed
a discrimination action in federal court. We conclude, however, that, consistent with this Court’s
prior decision, Article 12, Section 3 is ambiguous. Accordingly, we agree with the trial court
that the parties’ dispute over the interpretation of the waiver language must “be resolved solely
by [the CBA’s] Grievance and Arbitration Procedures.” The City’s and Mr. Koontz’s second
assignment of error is overruled.
III.
{¶20} The trial court correctly determined that, under the terms of the CBA, the parties’
disputes about the interpretation and application of its grievance and waiver provisions must be
resolved through arbitration. The judgment of the Summit County Court of Common Pleas is
affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
CARR, J.
DISSENTING.
{¶21} When the City of Norton terminated Mr. Matheny, OPBA attempted to file a
grievance on his behalf. In doing so, OPBA articulated the issue as follows: “All three instances
of discipline were issued without just case, did not comport with the principles of progressive
discipline, and demonstrated disparate treatment toward Grievant.” According to its own words,
OPBA filed a disciplinary grievance. When the employer refused to process the grievance based
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on Matheny’s probationary status, OPBA could have grieved the employer’s interpretation and
application of the contract in its classification of Matheny. OPBA did not do so. I dissent from
the majority’s opinion because under the plain language of the collective bargaining agreement,
Matheny’s discipline should not be arbitrated.
{¶22} The majority correctly notes the well-settled principle that “where [a collective
bargaining agreement] contains an arbitration clause, there is a presumption of arbitrability in the
sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be
said with positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.’” AT&T Technologies, Inc. v. Communications Workers of Am., 475
U.S. 643, 650 (1986). Courts are guided by the express language of the collective bargaining
agreement in making this determination. See id., quoting United Steelworkers of Am. v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 584-585 (1960).
{¶23} The CBA at issue in this case contains a grievance procedure that culminates in
final and binding arbitration, as contemplated by R.C. 4117.10(A). Two types of grievances are
subject to the grievance procedure: disputes “arising from the misapplication or misinterpretation
of the specific and express written provisions” of the collective bargaining agreement and
disciplinary action. The grievance procedure has three steps: the employee’s immediate
supervisor, the Chief of Police, and finally, the Administrative Officer or his designee. A
disciplinary grievance proceeds in the same manner, except that the grievance is first heard at the
level at which the discipline was imposed. A grievance may be submitted to arbitration only
“[i]n the event a grievance is unresolved after being processed through all steps of the Grievance
Procedure unless mutually waived[.]” The grievance procedure does not contain language that
advances a grievance to arbitration in the event that the City does not act on a grievance.
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{¶24} In this case, the OPBA grieved Mr. Matheny’s termination. In the cover letter
that accompanied the grievance form, the OPBA proposed that the grievance be heard at Step
Three of the grievance procedure. The City declined to process the grievance altogether, instead
issuing a letter that applied the probationary limitation on Article 8, Section 1 of the CBA to Mr.
Matheny. Neither party has waived the grievance procedure with respect to Mr. Matheny’s
discipline altogether: the City has interpreted the CBA to his detriment, and the OPBA wants the
disciplinary grievance to be considered as if he were a nonprobationary employee. The OPBA’s
remedy is to grieve the City’s purported “misapplication or misinterpretation of the specific and
express written provisions” of the CBA. That grievance might ultimately culminate in final,
binding arbitration – but that grievance has not been filed. It is certainly not before the Court in
this case. The only grievance at issue now is Mr. Matheny’s disciplinary grievance, which has
not progressed through the grievance procedure.
{¶25} We can, therefore, conclude with positive assurance that nothing in the CBA
provides support for the conclusion that the CBA requires a grievance to go directly to
arbitration without progressing through the grievance procedure in the absence of waiver by both
the City and OPBA. Because the express terms of the CBA, which must control our analysis,
require a different result, I would reverse the decision of the Court of Common Pleas.
{¶26} I respectfully dissent.
APPEARANCES:
PAUL L. JACKSON and KAREN D. ADINOLFI, Attorneys at Law, for Appellants.
JOSEPH W. DIEMERT, JR., THOMAS M. HANCULAK and DANIEL A. POWELL,
Attorneys at Law, for Appellee.
MAX RIEKER, Attorney at Law, for Appellee.
Matheny v. Norton
Combined Opinion