{¶ 38} I concur in judgment only because I would affirm the trial court on the basis that Scott should have filed a grievance pursuant to his collective-bargaining agreement ("CBA") and had no right to appeal through the civil service process.
{¶ 39} Scott's termination letter of May 18, 2005, informed him that he could appeal the city's decision through the grievance procedure. Scott's collective-bargaining agreement, Article 38, provides that a grievance is defined as a dispute or difference between the city and an employee concerning compliance with any provision of that contract, including any and all disciplinary actions. If the grievance is not satisfactorily settled at step three as outlined in the CBA, the union/employee may, within 30 calendar days in the case of a grievance appealing an employee discharge, submit the matter to final and binding arbitration. *Page 148
{¶ 40} This court upheld the applicability of the grievance process in an analogous case, Brown v.Cleveland, Cuyahoga App. No. 84708, 2005-Ohio-514,2005 WL 315429, in which the city had mistakenly informed the employee of her right to pursue a civil service appeal. However, the case cited by the majority, Johnson v. Metro Health Med.Ctr. (Dec. 20, 2001), Cuyahoga App. No. 79403,2001 WL 1685585, is easily distinguished from the instant case. InJohnson, the employee chose to have her union represent her in filing a grievance. Therefore, she had no standing to pursue a further appeal because she was not a party in the underlying action.
{¶ 41} Here, Scott had a right to pursue a grievance under the CBA, with or without union representation. He incorrectly pursued a civil service appeal. Therefore, I would affirm the trial court's decision upholding his termination.