[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.
                                                 2


       {¶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.
                                                 3


       {¶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
                                                 4


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).
                                                  5


       {¶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
                                                6


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
                                                   7


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
                                                  8


       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.
                                                 9




       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
                                                 10


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.
                                                11


       {¶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.
