[Cite as Dayton Pub. Schools v. Cummings Elmore, 2020-Ohio-820.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 DAYTON PUBLIC SCHOOLS                              :
                                                    :
         Plaintiff-Appellee                         :    Appellate Case No. 28480
                                                    :
 v.                                                 :    Trial Court Case No. 2017-CV-3990
                                                    :
 LISA CUMMINGS ELMORE, et al.                       :    (Civil Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                            ...........

                                            OPINION

                           Rendered on the 6th day of March, 2020.

                                            ...........

JONATHAN HOLLINGSWORTH, Atty. Reg. No. 0022976, 6494 Centerville Business
Parkway, Centerville, Ohio 45459
     Attorney for Plaintiff-Appellee

SUSAN ZELLER DUNN, Atty. Reg. No. 0063893, 10921 Reed Hartman Highway, Suite
111, Cincinnati, Ohio 45242
      Attorney for Defendant-Appellant

                                            .............




TUCKER, J.
                                                                                        -2-


      {¶ 1} Lisa Cummings-Elmore1 appeals from the trial court’s judgment of June 25,

2019, in which the court essentially confirmed the award entered by the arbitrator

following the arbitration of a dispute between Plaintiff-appellee, Dayton Public Schools

(“DPS”), and Defendant-appellant, the Dayton Education Association (“DEA”).

Presenting a single assignment of error, Cummings-Elmore argues that the court erred

by confirming the award without modification. We find that Cummings-Elmore lacks

standing to challenge the court’s judgment, and this appeal is therefore dismissed.

                            I. Facts and Procedural History

      {¶ 2} Cummings-Elmore was formerly employed by DPS as a teacher. On March

9, 2016, DPS sent her a notice informing her that she had been placed on paid

administrative leave in connection with an altercation between her and the principal of the

school at which she worked. She was also informed that, until she received notice to the

contrary from DPS, she would be regarded as a trespasser were she to enter onto any

DPS property.

      {¶ 3} On or about April 1, 2016, Cummings-Elmore accepted a temporary position

teaching Spanish at Horizon Science Academy for a roughly four-month interval running

from April 4, 2016, through July 31, 2016. In a letter dated May 25, 2016, DPS notified

Cummings-Elmore that her acceptance of the temporary position at Horizon Science

Academy had been deemed a “constructive resignation” of her employment with DPS,

effective April 1, 2016. Transcript of Proceedings, Joint Exhibit E, Apr. 26 and May 26,

2017. DPS indicated further that Cummings-Elmore’s constructive resignation would “be



1
 The record is inconsistent as to whether the appellant’s name is Cummings-Elmore or
Cummings Elmore.
                                                                                        -3-


recommended to the Dayton Board of Education at [its] meeting on June 21, 2016,” and

that DPS also planned to seek recovery of compensation it had paid her between April 1,

2016, and May 25, 2016. Id. At its meeting on June 21, 2016, the board accepted the

purported resignation.

      {¶ 4} The DEA filed a grievance on Cummings-Elmore’s behalf, which DPS

denied, and the grievance was then referred to arbitration.         A hearing was held,

beginning on April 26, 2017, and concluding on May 26, 2017, after which the arbitrator

issued an award dated July 31, 2017. In the award, the arbitrator determined that DPS

had violated its collective bargaining agreement with the DEA, because that agreement

had no terms “deal[ing] with paid administrative leave [or] with constructive resignation.”

DEA’s Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A, Sept. 11, 2017.

      {¶ 5} DPS filed an application to vacate the award in the Montgomery County Court

of Common Pleas on August 28, 2017, to which the DEA responded on September 11,

2017, with a memorandum in opposition and an application to confirm the award. The

case was referred to the trial court’s magistrate, who entered a decision confirming the

award on November 20, 2018, and the trial court largely adopted the magistrate’s decision

in its judgment of June 25, 2019. On July 25, 2019, Cummings-Elmore filed a timely

notice of appeal; the DEA has apparently elected not to participate.

                                       II. Analysis

      {¶ 6} After Cummings-Elmore filed her brief on August 23, 2019, DPS filed a

motion to dismiss on September 11, 2019, in which it argued that Cummings-Elmore lacks

standing to prosecute this appeal. We entered a decision one week later overruling the

motion, though we invited DPS to “make its arguments in its brief.” Decision and Entry
                                                                                             -4-


1, Sept. 18, 2019. DPS thereafter filed a brief on October 9, 2019, recapitulating the

arguments it presented in its motion, but Cummings-Elmore did not file a brief in reply.

She did, however, address the issue of standing during oral argument.

       {¶ 7} Standing “is * * * a jurisdictional requirement” inasmuch as a prospective

party’s “lack of standing vitiates the party’s ability to invoke the jurisdiction of a court” to

hear an action. (Citations omitted.) Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75,

2014-Ohio-4275, 21 N.E.3d 1040, ¶ 22. Where “an employee’s discharge or grievance

is arbitrated between an employer and a union under the terms of a collective bargaining

agreement, the aggrieved employee does not have standing to petition a [common pleas]

court to vacate the award pursuant to R.C. 2711.10, unless the collective bargaining

agreement expressly gives the employee an independent right to submit disputes to

arbitration.” Leon v. Boardman Twp., 100 Ohio St.3d 335, 2003-Ohio-6466, 800 N.E.2d

12, ¶ 18; see also, e.g., State ex rel. Hudak v. State Emp. Relations Bd., 5th Dist. Stark

No. 2013 CA 7, 2013-Ohio-2679, ¶ 35; Rush v. United Parcel Serv., 9th Dist. Medina No.

07 CA 69-M, 2008-Ohio-1646, ¶ 10-12. The nearly identical language of R.C. 2711.11

suggests that the same would be true of a motion to modify or correct an award.

       {¶ 8} Here, Cummings-Elmore’s employment with DPS was subject to the Master

Contract Between the Dayton Education Association and the Dayton City School District

for December 21, 2013, Through June 30, 2017 (the “Master Contract”). See DEA’s

Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A. The only procedures

established by the Master Contract for resolving disputes between professional staff

members and DPS are set forth in Article 3, captioned “Grievance Procedure,” though

Article 2 and Article 32 include provisions directed at two specific types of disagreement.
                                                                                         -5-


Id. Under Section 2.08, DPS and the DEA agree “to utilize an alternate settlement

dispute procedure through the Federal Mediation and Conciliation Service” for purposes

of contract negotiations, and under Section 32.06, professional staff members have the

right to appeal decisions made by the Local Professional Development Committee to “the

districtwide appeal board.”2 Id.

       {¶ 9} Article 3, Section 3.01 defines a “grievance” as “any question or controversy

between any Professional Staff Member or the [DEA]” and the “[Dayton] Board [of

Education] [or] the Administration” regarding the “interpretation, application of,

compliance with or noncompliance with the provisions of [the Master] Contract.” 3

(Emphasis added.) Id. Section 3.02.1 defines a “concern” as “any questions [sic] or

issue between any Professional Staff Member or the [DEA]” and the “[Dayton] Board [of

Education] [or] the Administration” regarding “any complaint, dispute, problem or other

condition which is not a grievance as defined in Section 3.01.” (Emphasis added.) Id.

A concern, like a grievance, may be resolved through the “procedures set forth in Section

3.07,” except that “Level Four—Arbitration shall not be applicable * * *, and the decision

of the Superintendent shall be final.” Id.

       {¶ 10} Concerns and grievances are the only categories of dispute defined in the



2 As defined in Paragraph B of the preamble to the Master Contract, the word “board”
when typed in all capitals refers to the “Dayton Board of Education.” DEA’s
Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A. In the phrase
“districtwide appeal board” in Article 32, Section 32.06, the word is typed in all capitals,
but the context suggests that this is likely a scrivener’s error.
3 Paragraph C of the preamble to the Master Contract defines the “Administration” as the
superintendent of DPS and the superintendent’s administrative staff.              DEA’s
Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A.
                                                                                            -6-


Master Contract, and inasmuch as Article 3 establishes the only procedures for resolving

disputes between professional staff members and DPS, such a dispute must be either a

“concern” or a “grievance.”      See id.   Yet, a concern may not be resolved through

arbitration, and under Section 46.01.1, an employee facing termination of her employment

has the right “to have [her] case decided by an arbitrator pursuant to [Section] 3.07.2(D).”

Id. The unavoidable conclusion, then, is that a challenge raised to the termination of a

professional staff member’s employment constitutes a “grievance” as that term is defined

in Section 3.01.4 Id.

       {¶ 11} Under Section 3.07, a grievance may be resolved through either an informal

procedure or a formal procedure. Id. The informal procedure amounts to little more

than a conversation between the aggrieved staff member and the principal of the school

at which the staff member is employed.            See id.    The formal procedure, which

simultaneously provides an alternative to the informal procedure, as well as an

opportunity to contest the result of the informal procedure, consists of four “levels”: (1) the

submission of a written grievance to which the principal of the school concerned must

respond in writing; (2) an appeal to the superintendent, likewise requiring that the

superintendent respond with a written decision; (3) a mediation by mutual consent, at



4 Section 3.07.2(D)(1) contemplates the possibility of a single type of dispute other than
a “grievance” being submitted to arbitration. DEA’s Memorandum in Opposition to DPS’s
Motion to Strike, Exhibit A. In “the event it is claimed by the Administration [i.e. the
superintendent and the superintendent’s staff] that any matter filed as a grievance is not
a grievance as defined in Section 3.01, such issue, as such, [sic] may be appealed to
arbitration, with the arbitrator having the authority to rule on the arbitrability issue in
addition to hearing any evidence or issuing any ruling in the merits of the dispute.” Id.
Even so, only “the Administration” has the right to challenge the classification of a dispute
as a “grievance.” Id.
                                                                                             -7-


which the “grievant shall have the right to be present”; and (4) an arbitration proceeding.

Id. Section 3.07.02(D)(1) states that “[o]nly the [DEA] shall have the right to appeal any

grievance, as defined in Section 3.01[,] to arbitration.”5 Id. An employee, consequently,

is not a party to an arbitration proceeding under the Master Contract, because the Master

Contract expressly permits only the DEA to seek arbitration. See Leon, 100 Ohio St.3d

335, 2003-Ohio-6466, 800 N.E.2d 12, at ¶ 18.

       {¶ 12} The provisions of Article 46 further support this interpretation.          Under

Section 46.01.1, “[a]ny employee who has received a notice of [DPS’s] intention to

terminate [her employment] shall have the right, within ten (10) days of [her] receipt of the

notice, to either proceed with a case under [R.C.] 3319.16 * * *, or to have [her] case

decided by an arbitrator pursuant to [Section] 3.07.2(D).” The first option is expressed—

from an employee’s perspective—in the active voice, and the second in the passive voice.

In other words, Section 46.01.1 gives an employee facing termination of employment the

right to choose between two options: (1) commencing a case under R.C. 3319.16 on her

own behalf; or (2) requiring that the DEA, acting for her, submit the matter to arbitration.

Hence, the significance of Section 46.01.1 is not that it invests an employee with an

independent right to appeal a termination of employment to arbitration, but that in such a

case, the DEA is affirmatively required to seek arbitration at the employee’s request.

Otherwise, the decision whether to submit a dispute to arbitration is left, under Section



5 Section 3.07(D)(3) states that “[n]either party will be permitted to assert in any arbitration
proceeding any ground or to rely on any evidence not previously * * * disclosed to the
other party.” (Emphasis added.) DEA’s Memorandum in Opposition to DPS’s Motion
to Vacate, Exhibit A. This language indicates that the Master Contract was drafted in
contemplation of only two parties to the arbitration of grievances: the DEA and DPS.
                                                                                         -8-


3.07.2(D)(1), to the DEA’s discretion. Id.

       {¶ 13} Arguing in its brief that Cummings-Elmore lacks standing to bring the instant

appeal, DPS relies on the Ohio Supreme Court’s opinion in Leon and this court’s opinion

in Cox v. Dayton Pub. Schools Bd. of Edn., 2d Dist. Montgomery No. 26382, 2015-Ohio-

620. The Cox case involved the termination of a teacher whose employment was subject

to an earlier, albeit substantially similar, draft of the Master Contract. See Cox at ¶ 4-5.

The DEA initiated an arbitration challenging the validity of DPS’s decision to terminate the

employment of the appellant, Ms. Cox, and in the same proceeding, it argued that DPS

had, in advance of terminating Cox’s employment, violated the Master Contract by placing

her on unpaid leave and by refusing to continue a disciplinary hearing. See id. at ¶ 5-8.

Following the arbitrator’s determination that DPS “had good and just cause” for the

termination, the DEA declined to initiate an action under R.C. Chapter 2711, prompting

Cox to do so herself. See id. at ¶ 10.

       {¶ 14} DPS contends that in the Cox opinion, we “drew a distinction between * * *

grievances,” which are “governed by one provision in the Master Contract,” and

terminations, which are “governed by different provisions.” Appellee’s Brief 15. Thus,

as DPS reads the opinion, we held that Cox “had standing to pursue judicial review [of

the arbitrator’s decision regarding] her termination,” but not to pursue judicial review of

the arbitrator’s decision regarding her grievances.” Id.

       {¶ 15} We were concerned in Cox primarily with the allegation that the DEA

initiated the arbitration of Cox’s termination without her consent, which we characterized

as a violation of her statutory right to challenge her termination under R.C. 3319.16. See

Cox at ¶ 21-23 and 26. As part of our analysis, we explained that whereas Section
                                                                                         -9-


3.07.2(D)(1) of the Master Contract applied generally to all grievances, Articles 46 and 48

of the Master Contract set forth additional provisions applicable specifically to

terminations of employment.       See id. at 20.      Construing Articles 3, 46 and 48

collectively, we concluded that Cox had “standing in the termination process,” given that

Article 46 accorded her the right to choose whether to proceed with an action under R.C.

3319.16 on her own behalf, or to demand that the DEA initiate an arbitration. See id. at

¶ 23.

        {¶ 16} Although the reading of Cox suggested by DPS is partly warranted by the

text of the opinion, particularly by the assertion that “Section 46.01.1 of the Master

Contract [gave Cox] the independent right to submit her termination to arbitration,” we

recognized that the Ohio Supreme Court’s holding in Leon was controlling. Id. at ¶ 23-

24. We remarked, for instance, that “[t]here is no question that a teacher has standing

to appeal her termination to [a] common pleas court, if she chooses the statutory

procedure rather than the arbitration procedure.”       (Emphasis added.)      Id. at ¶ 23.

Unfortunately, we were not sufficiently scrupulous in differentiating between a teacher’s

standing to commence an action under R.C. 3319.16, and a teacher’s right under the

Master Contract to require that the DEA initiate an arbitration regarding the termination of

her employment.

        {¶ 17} In the latter situation, we continue to adhere to the Ohio Supreme Court’s

holding in Leon, 100 Ohio St.3d 335, 2003-Ohio-6466, 800 N.E.2d 12, according to which

a teacher whose employment is subject to a collective bargaining agreement “will

generally be deemed to have relinquished [her] right to act independently of [her] union

in all matters related to or arising from the [agreement], except to the limited extent that
                                                                                          -10-


the agreement explicitly provides to the contrary.” (Emphasis added.) Id. at ¶ 17, citing

Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Retail

Clerks Internatl. Assn., Local Unions Nos. 128 & 633 v. Lion Dry Goods, Inc., 341 F.2d

715, 720-721 (6th Cir.1965). Our opinion in Cox should not be construed to conflict with

the Court’s holding in Leon or to create an exception to that holding with respect to

terminations of employment.

       {¶ 18} Cummings-Elmore’s employment with DPS was subject to that version of

the Master Contract which was effective from December 21, 2013, until June 30, 2017.

The contract included no provision explicitly investing her with standing to seek arbitration

independently of the DEA, meaning that she was not a party to the arbitration proceeding.

As a result, Cummings-Elmore lacks standing to prosecute this appeal.              See, e.g.,

Thompson v. Summit Pain Specialists, Inc., 9th Dist. Summit Nos. 27635 & 27638, 2016-

Ohio-7030, ¶ 35.

       {¶ 19} Finally, we note that Cummings-Elmore filed a motion on December 4,

2019, in which she requests that we enter an order directing DPS “to show cause why [it]

should not be held in contempt of court” for “deliberately fail[ing] to comply” with the terms

of the arbitrator’s award. Motion for Contempt and Declaratory Judgment 3, Dec. 4,

2019. We may not consider the motion, however, in the absence of subject matter

jurisdiction, which “is the power conferred upon a court, either by constitutional provisions

or by statute, to decide a particular matter or issue on its merits.” In re B.P., 11th Dist.

Trumbull No. 2011-T-0032, 2011-Ohio-2334, ¶ 30, citing State ex rel. Jones v. Suster, 84

Ohio St. 3d 70, 75, 701 N.E.2d 1002 (1998). Because “subject matter jurisdiction defines

the competency of a court to render a valid judgment, it cannot be waived.” Id. at ¶ 31,
                                                                                          -11-


citing Time Warner AxS v. Pub. Util. Comm., 75 Ohio St. 3d 229, 661 N.E.2d 1097 (1996).

       {¶ 20} R.C. 2711.09, 2711.10 and 2711.11 allow “any party to [an] arbitration [to]

apply to the court of common pleas” for an order confirming, modifying or vacating the

award entered by the arbitrator.      (Emphasis added.)      Under R.C. 2711.16, subject

matter “[j]urisdiction [over] judicial proceedings provided for by [R.C.] 2711.01 to 2711.14,

inclusive, * * * , is generally in the courts of common pleas,” and “actions and proceedings

brought under such sections [of the Revised Code] shall be brought either in the court of

common pleas of the county designated by the parties to the arbitration agreement as

provided in [R.C.] 2711.08 * * *, or, whether or not such designation has been made, in

the court of common pleas of any county in which a party in interest resides or may be

summoned.”6 (Emphasis added.) In other words, R.C. 2711.16 “vest[s] general subject

matter jurisdiction for confirmation proceedings in the courts of common pleas of the

state,” and the jurisdiction of appellate courts is concomitantly “confined to [reviewing]

order[s] issued by * * * common pleas court[s] confirming, modifying, vacating, or

enforcing [the underlying] award[s].” United Union of Roofers, Waterproofers & Allied

Trades, Local No. 44 v. Kalkreuth Roofing & Sheet Metal, 2019-Ohio-2797, ___ N.E.3d

___, ¶ 29 (11th Dist.); Buchholz v. W. Chester Dental Group, Inc., 12th Dist. Butler No.

CA2007-11-292, 2008-Ohio-5299, ¶ 21.

       {¶ 21} Here, because “the arbitration award was confirmed by the [trial] [c]ourt,”

Cummings-Elmore asks that we “reinstate [her teacher’s and principal/administrator’s

licenses]” and “hold DPS in contempt” until it pays damages to which she “believe[s] she


6 R.C. 2711.08 permits the “parties to [an] arbitration agreement [to] designate therein
the county in which the arbitration shall be held and the award made.”
                                                                                       -12-


is entitled” pursuant to the award. Motion for Contempt and Declaratory Judgment 9-11.

We lack subject matter jurisdiction to consider the motion, and as a result, we order that

it be stricken from the record.

                                     III. Conclusion

       {¶ 22} Cummings-Elmore was not a party to the arbitration proceeding in which

the DEA challenged the termination of her employment, and she consequently lacks

standing to appeal from the trial court’s judgment of June 25, 2019. Therefore, her

appeal is dismissed. In addition, because this court lacks subject matter jurisdiction to

consider the motion filed by Cummings-Elmore on December 4, 2019, the motion is

hereby stricken.



                                    .............



WELBAUM, P.J. and HALL, J., concur.



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Jonathan Hollingsworth
Susan Zeller Dunn
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