                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0615n.06

                                           No. 09-4492

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                          FILED
S. JAMES ZAFIRAU,                                      )                             Aug 24, 2011
                                                       )
                                                                               LEONARD GREEN, Clerk
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )   ON APPEAL FROM THE
                                                       )   UNITED STATES DISTRICT
C LEVELAND          M UNIC IP AL       S CHOOL         )   COURT FOR THE NORTHERN
DISTRICT,                                              )   DISTRICT OF OHIO
                                                       )
       Defendant-Appellee.                             )
                                                       )
LIVESTEEN CARTER, Individually and in her              )
former capacity as Chief Academic Officer,             )
                                                       )
       Defendant-Appellee.                             )
                                                       )
LISA RUDA, Individually and in her capacity as         )
Chief Legal Counsel,                                   )
                                                       )
       Defendant-Appellee.                             )


Before:        KEITH, GIBBONS, and WHITE, Circuit Judges.

       PER CURIAM. Plaintiff-Appellant S. James Zafirau, a public employee with the Cleveland

School District, appeals the grant of summary judgment to Defendant-Appellee Cleveland Municipal

School District in his action for breach of contract. The district court, on a motion for summary

judgment, dismissed the claim based upon Zafirau’s failure to exhaust his administrative remedies

prior to bringing this suit. For the reasons that follow, we AFFIRM the district court’s ruling.
No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

                                          BACKGROUND

        Zafirau’s breach of contract claim arises from the desegregation of the Cleveland Public

Schools, ordered by Judge Frank Battisti in 1976. The parties to the suit, pursuant to Judge Battisti’s

order, created a comprehensive plan through settlement conferences, including educational programs

and methods to assess compliance. In 1994, the parties reached a settlement agreement, which was

approved and converted into an enforceable consent decree. In 1995, and in light of poor financial

conditions, Circuit Judge Robert Krupansky, sitting on the district court by designation, ordered the

State of Ohio Superintendent of Schools to take control of the Cleveland School District’s day-to-day

operations. See Ohio Rev. Code § 3311.71 (converting a school district placed under state control

by a federal court into a “municipal school district”). In March 1998, Chief Judge George White of

the United States District Court for the Northern District of Ohio held that the School District had

substantially complied with the remedial orders and consent decree and eliminated the effects of

segregation to the extent practicable. He therefore granted the School District unitary status, in effect

releasing it from state control. Under the provisions of § 3311.71, when a school district is released

from state control, a new board of education is appointed by the mayor to take control. Accordingly,

“the treasurer, business manager, superintendent, assistant superintendents, and other administrators

of the school district shall submit their resignations to the board.” Ohio Rev. Code § 3311.72(A)

(emphasis added). Following the resignations, the appointed Chief Executive Officer (“CEO”)

appoints any administrators he or she determines to be necessary to serve “at the pleasure” of the

CEO. Ohio Rev. Code § 3311.72(C)-(D). In this instance, Louis Erste was appointed interim CEO

when the state relinquished control of the Cleveland Schools on September 9, 1998.

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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

        Dr. S. James Zafirau obtained his Ph.D. in psychology from Notre Dame in 1975. In 1980,

he became employed by the Board of Education of the Cleveland City School District. He was

originally employed as a “Consultant Teacher.” His title changed in or around 1983 to “Supervisor”

in the “Policy Planning and Analysis Section.” In May 1983, he entered into a “teacher’s continuing

contract” with the School District. Pursuant to his contract, Zafirau would be “employed in the

public schools of the [School District] until, in accordance with law, [he] resigns, elects to retire, is

retired, or until, as provided by law, this contract is amended, terminated or suspended.” He further

agreed to complete those duties and obligations, including teaching, required under the agreement

reached between the School District and the Cleveland Teachers Union (CTU), irrespective of the

“unusual nature” of his assignment. The contract recognized him as a “certificated employee

working a classified position.”

        In early September 1998, a number of Zafirau’s colleagues working in the District’s

administrative building began receiving letters from CEO Erste informing them that their

resignations were required by law, and on September 9, 1998, they would be offered “at-will”

employment contracts along with “other employees whose resignations [were] mandated by statute.”

The letter also stated that if one did not submit a letter for resignation by the deadline, the Board

would deem that the resignation had been submitted anyway.

        Zafirau did not receive a letter like his colleagues, but he was unsure whether this was

purposeful or an oversight. Accordingly, he conducted his own legal research on the definition of

his employment to determine whether he was an “other administrator” required to tender his

resignation. Upon reviewing the sections, he determined that he was not an “other administrator”

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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

because he was not a “supervisor” or “management level employee” as defined by Ohio Revised

Code §§ 4117.01(F) and (L). Rather, he considered himself a “professional employee” as defined

in Ohio Revised Code § 4117.01(J). Zafirau wrote a letter to the Board of Education setting forth

his understanding of the statutory language on September 8, 1998. On September 10, 1998, he

executed his at-will employment contract. Zafirau added an addendum to his contract, which stated

in relevant part:

        I thoughtfully and respectfully submit that I do not believe that I am required to
        submit a resignation or an ‘At Will Employment Contract’ . . . (as detailed in my
        prior September 8, 1998 dated letter, also attached hereto). I submit the above
        conditioned signature to this ‘contract’ subject to the following two understandings:
        (1) Said signature is valid only if I am required to submit the same under a definitive
        and clear legal determination that H.B. 269 . . . requires that a person with my
        restricted authority and functioning (i.e., no fiscal, personnel, or policy making
        authority, only intellectual contribution responsibilities — with no certificate
        required) submit a resignation, and (2) That I hereby forward my
        conditioned/provisional signature only under extreme duress not of my making and
        only under clear written threat of termination and/or of at least being taken off of the
        payroll. Furthermore, in no case is this signature to be construed as a resignation
        from my tenured/continuing contract status within the school district. I have earned
        and still hold tenure/continuing contract status in the Cleveland City/Municipal
        School District, and under no circumstances do I give up my tenure/continuing
        contract rights as either a teacher . . . or those I have similarly earned and hold as a
        classified/civil service employee.

No one at the Board responded to Zafirau’s September 8 letter or his addendum to the executed at-

will employment contract. Erste, as CEO of the Board, executed all contracts, including Zafirau’s,

prior to circulating them to employees.




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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

        Zafirau continued working for the School District in the same capacity he had before

executing the at-will contract.1 On October 2, 1998, Zafirau was called into a meeting with his boss,

Dr. James Lanese, where they were both discharged by Chief Academic Officer Dr. Livesteen Carter.

Carter gave the two men letters from Erste. Zafirau’s letter stated that his at-will administrative

contract was terminated upon the recommendation of Carter, that he would be immediately escorted

from the building upon gathering his personal belongings, and that he would not be permitted to

return. Zafirau brought up the fact that he had a continuing teaching contract and asked Carter where

he should report for work on Monday. Carter responded she was not at liberty to discuss this matter

with him. Security guards thereafter escorted him from the building.

        On October 5, 1998, Zafirau contacted the human resources department to inquire about open

teaching positions in the School District. They would not inform him of any open positions. He

then contacted the Continuing Teachers Union (“CTU”), who did give him a list of schools with

positions. Zafirau inquired about an open teaching position at Lincoln-West High School; the school

principal said he could fill it.

        On October 13, 1998, Zafirau wrote a handwritten letter to the Civil Service Commission

formally complaining of his discharge, asserting his status as a classified civil servant, and contesting

his “at-will” employment because he was not an administrative employee. According to Zafirau, the

Commission never followed up on his complaint or filed a grievance on his behalf.



        1
        During this period, several statements were made which caused Zafirau, 58, to later believe
he was discharged because of his age. However, because the age discrimination claim was not raised
on appeal to this court, these facts are not set forth in detail here.

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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

        During this same time period, a security guard allegedly witnessed Zafirau repeatedly peering

into the window of the administrative building towards Chief Legal Counsel Lisa Ruda’s office, and

walking around the building at night. Zafirau concedes that he continued going to the Cleveland

Public Library across from the administrative building every day to “maintain” his pattern, but denies

that he ever peered into Ruda’s window or exhibited any other strange behavior to justify a

psychological examination.

        On October 21, 1998, Russell Gifford, the Chief Operating Officer of the District, wrote a

letter to Zafirau indicating that he had been recommended for a job at Lincoln-West teaching

mathematics. The letter requested that he respond no later than October 26, 1998, with his intention

to accept or decline the position. Zafirau indicates that he did not receive the letter, as the letter was

sent to the wrong address. Nevertheless, on October 29, 1998, Zafirau wrote a letter to Gifford,

indicating that he received the offer letter on the 29th and that he accepted the teaching position. On

October 30, 1998, Gifford wrote another letter to Zafirau, again offering the position, only this time

the letter contained the following additional condition:

        This teaching position is contingent on your passing a medical examination which
        has been scheduled for 1:00 p.m. on November 1, 1998, at the MetroHealth Medical
        Center on 2500 MetroHealth Drive. We are concerned for the health, safety and
        welfare of our students in light of the behavior that we have observed since the
        District terminated your administrative employment contract on October 2, 1998. In
        particular, the District has observed you loitering around the administration building
        during late evening hours. We have also observed you peering into office windows
        during your visits.

The letter requested his acceptance by November 4, 1998. The letter was postmarked November 2,

1998; Zafirau did not receive it until November 6, 1998.


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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

       The other eight employees whose at-will contracts were terminated but who still held

continuing teacher’s contracts were offered classroom teaching positions, and none were conditioned

on the successful completion of fitness for duty examinations. Zafirau, through his attorney,

negotiated the details of the psychological exam but never actually completed it. Correspondence

concerning the medical examination ended in February 1999, around the same time that Zafirau’s

attorney stopped representing him due to Zafirau’s inability to pay fees.

       Zafirau never completed the examination, and the School District never placed Zafirau in a

teaching position. Nevertheless, the School District asserts that it did not terminate Zafirau’s

employment. From October 1998 until January 1999, Zafirau was not paid. The CTU filed a

separate grievance on behalf of a group of teachers laid off for a period during the restructuring

concerning non-payment during that period. Zafirau was included in this class action even though

his teaching position was somewhat unique. The CTU reached a settlement on behalf of Zafirau and

others on September 20, 1999. The “Stipulated Award” was entered by an arbitrator and provided

that, within 45 days of that date, all grievants would be “placed on and receive compensation per the

Teacher’s Salary Schedule based on years of completed Cleveland Municipal School district service

(administrative and teaching) and/or continuing contract status.” Thereafter, Zafirau received a

check on October 29, 1999, for his total net unpaid compensation from October 2, 1998 to December

31, 1998.

       Zafirau received bi-weekly checks from the School District beginning in January 1999 and

continuing until October 29, 1999. He received an additional payment in November 1999 for an

adjustment in salary corresponding to his previous payments. He received a final “supplemental

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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

pay” check on December 24, 1999. Zafirau has not been paid since, nor has he received any

notification as to why the payments stopped. In November 1999, Zafirau contacted the School

District’s payroll department about his missing checks. He was informed that the checks had been

confiscated by Ruda. He has not received a W-2 form from the School District since 1998. The

School District asserts that he has not been terminated; rather his pay has been suspended until his

psychological examination is completed. Zafirau contends that he never received notification of

such action, nor has he been notified again about a psychological examination. Zafirau alleges that,

after his compensation ended, he “went to the CTU to inquire and complain about the fact and was

told, basically, that they would not file any more grievances for [him].” Zafirau has subsequently

obtained work in the Toledo Public Schools as a guidance counselor.

        Zafirau filed an original complaint against the School District in the Court of Common Pleas

of Cuyahoga County on October 2, 2000. The case was subsequently dismissed without prejudice

because a settlement had been reached. However, Zafirau filed a motion for relief asserting that a

settlement had not been reached in November 2002. Zafirau then dismissed his own motion and

refiled the case anew on December 20, 2002. The School District opted to remove the case to the

United States District Court for the Northern District of Ohio. In Zafirau’s amended complaint

before the district court, he asserted the following claims against the School District: (1) that it

violated his due process rights by denying him his constitutionally protected property interest in his

classified position and his continuing contract with the District; (2) that it discriminated against him

on the basis of his age (including a claim against Carter specifically), in violation of the Age

Discrimination in Employment Act (ADEA); (3) that it discriminated against him based upon his

                                                   8
No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

hearing handicap; (4) that it unlawfully retaliated against him for asserting disability claims; and (5)

that the District “breached the continuing contract by failing to put [him] in a teaching position after

he was discharged on October 2, 1998 from the classified position.” Additionally, Zafirau asserted

a state-law invasion of privacy claim against Ruda individually.

        On May 2, 2003, the School District, along with Ruda and Carter, moved to dismiss the

amended complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). The district court

granted in part the motion, dismissing the due process and invasion of privacy claims on December

10, 2003. On May 6, 2004, the School District filed a motion for summary judgment as to all

remaining claims. The district court referred the case to a magistrate judge, who prepared a report

on August 27, 2004, recommending that the district court grant the School District summary

judgment as to the discrimination claims but deny the motion as to the breach of contract claim and

retain jurisdiction over the matter. Each party filed objections, and, on March 31, 2005, the district

court granted the School District’s summary judgment motion as to the retaliation claim, disability

claim, and dismissed the breach of contract claim for lack of subject matter jurisdiction because

Zafirau failed to exhaust his administrative remedies. The district court denied the motion for

summary judgment as to the age discrimination claim based upon the School District’s failure to

provide a proper witness for examination. However, upon further review and subsequent discovery,

the district court granted the School District’s motion for summary judgment as to the age

discrimination claim on October 28, 2009. Zafirau timely appealed to this court, arguing that the

district court erred in dismissing his breach of contract claim for lack of subject matter jurisdiction.



                                                   9
No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

                                            ANALYSIS

         We review a district court’s decision regarding subject matter jurisdiction de novo. Grand

Trunk W. R.R. Inc. v. Bhd. of Maint. of Way Emps. Div., 497 F.3d 568, 571 (6th Cir. 2007). Whether

the court has subject matter jurisdiction is an issue that may be raised at any time, as it goes to the

power of the court to adjudicate the merits of the case. United States v. Cotton, 535 U.S. 625, 630

(2002). Here, the district court raised the issue while considering the School District’s motion for

summary judgment. While the district court had supplemental jurisdiction to consider the breach

of contract claim pursuant to 28 U.S.C. § 1331, it abstained from reaching the merits of the claim

because Zafirau failed to exhaust his administrative remedies prior to filing this suit.

         When a public employee and an employer have entered into a collective bargaining

agreement and a dispute arises, Ohio Revised Code § 4117 controls. State ex rel. Ramsdell v.

Washington Local Sch. Bd., 556 N.E.2d 197, 200 (Ohio Ct. App. 1988). If a party’s claims “arise

from or depend on the collective bargaining rights created by [Ohio Revised Code] Chapter 4117,

the remedies provided in that chapter are exclusive.” Franklin Cnty. Law Enforcement Ass’n v.

Fraternal Order of Police, 572 N.E.2d 87, 91 (Ohio 1991). Chapter 4117 “provides that if a

collective bargaining agreement provides for a final and binding arbitration of grievances, public

employers, employees, and employee organizations are subject solely to that grievance procedure.”

Blair v. Milford Exempted Vill. Sch. Dist. Bd. of Educ., 575 N.E.2d 1190, 1197 (Ohio Ct. App.

1989).

         If an appellant believes a grievance was not properly pursued by the State Commissioners

or the Union, that complaint is essentially an allegation of an unfair labor practice pursuant to Ohio

                                                  10
No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

Revised Code § 4117.11(B). Shamrock v. Trumbull Cnty. Comm’rs, 593 N.E.2d 28, 31 (Ohio Ct.

App. 1990). Under § 4117.11(B) (2010),

       [i]t is an unfair labor practice for an employee organization, its agents, or
       representatives, or public employees to: (1) Restrain or coerce employees in the
       exercise of their rights guaranteed in Chapter 4117 . . . ; [or] (3) Refuse to bargain
       collectively with a public employer if the employee organization is recognized as the
       exclusive representative or certified as the exclusive representative of public
       employees in a bargaining unit; . . . [or] (6) Fail to fairly represent all public
       employees in a bargaining unit[.]

Additionally, as acts which constitute unfair labor practices under § 4117 are subject to the exclusive

jurisdiction of the State Employment Relations Board (“SERB”), the courts cannot review such

claims on primary jurisdiction. Shamrock, 593 N.E.2d at 30-31; Franklin Cnty. Law Enforcement

Ass’n, 572 N.E.2d at 90. SERB, not the courts, resolve unfair labor practice charges in two general

areas: “(1) where one of the parties filed charges with SERB alleging an unfair labor practice under

R.C. § 4117.11 and (2) where a complaint brought before the common pleas court alleges conduct

that constitutes an unfair labor practice specifically enumerated in R.C. § 4117.11.” State ex rel.

Ohio Dep’t of Mental Health v. Nadel, 786 N.E.2d 49, 54 (Ohio 2003). An appellant may only seek

relief from the courts after he or she has exhausted the administrative remedy provided through

SERB. Shamrock, 593 N.E.2d at 31.

       Here, Zafirau agreed in his continuing teaching contract to representation by the CTU.

Additionally, he submitted himself to the representation of the CTU when he agreed to the Stipulated

Award bargained for by the CTU on behalf of aggrieved teachers laid off during the transition period

from state to municipal authority in 1998, despite his unique employment situation. Accordingly,



                                                  11
No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

the collective bargaining agreement (“Agreement”) between the School District and the CTU

controls Zafirau’s claim.

        The Agreement, effective from September 1, 1996 through August 31, 1999 (during which

period Zafirau alleges injury due to his being terminated in October 1998 in violation of his

continuing teacher’s contract), defines a grievance as “any matter concerning the interpretation,

application, or alleged violation of any currently effective Agreement between the District and the

CTU, or which alleges any employee represented by the Union has been discharged or disciplined

without just cause, or has been treated unfairly or in a discriminatory manner.” The Agreement

further states that “[n]othing shall preclude the Union or an individual from the right to file an Unfair

Labor Practice in accordance with Ohio Revised Code 4117.”

        All of Zafirau’s alleged injuries on appeal arise in relation to his rights guaranteed by his

contract and are dependent upon the Agreement he entered upon accepting the position with the

School District. The Agreement guaranteed him employment. Accordingly, Zafirau alleges that the

School District’s requirement that he subject himself to a psychological examination before working

violates this Agreement.

        On appeal to this court, Zafirau does not dispute that he has not exhausted his contractual

remedies in failing to file a grievance with SERB. Rather, he argues that any attempt to file a

grievance with the CTU and follow the grievance procedure would be futile, as both the CTU and

the Commissioners already expressed disinterest or even hostility towards his previous attempts to

bring a grievance forward. However, the issue of futility does not pertain to Zafirau’s relief through

SERB. He has not sought relief from the union’s alleged unfair labor practice, nor has he even

                                                   12
No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

pursued a grievance concerning the School District’s requirement that he submit to a psychological

examination in order to work as a teacher pursuant to his Stipulated Award. This court cannot

speculate on the result of such proper complaints. Accordingly, futility cannot avoid the requirement

that Zafirau must first exhaust his contractual remedies before seeking relief in court. See Fasone

v. Clinton Twp., No. 97APE06-845, 1997 WL 710584, at *2 (Ohio Ct. App. 1997) (“[E]ven if

appellant’s efforts during the grievance procedure were arguably in vain, the proper course of action

was still to file a charge with SERB. Hence, the failure-to-exhaust rule and its accompanying

exception do not even apply here.”); Shamrock, 593 N.E.2d at 31 (“[I]f appellants believe that the

grievance was wrongfully withdrawn and the Commissioners wrongfully refused to arbitrate, then

appellants must pursue the alleged unfair labor practices through SERB pursuant to R.C. Chapter

4117, prior to appealing to this court.”).

        Zafirau attempts to avoid the issue of exhaustion of administrative remedies by reframing the

issue on appeal as whether the district court has jurisdiction to enforce the arbitration award

negotiated by the CTU on his behalf, in that the Stipulated Award indicated that he would be

employed within forty-five days and did not explicitly require a psychological examination as a

prerequisite to his employment. This argument is not only waived because Zafirau failed to raise it

below, but is unpersuasive. See Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006)

(“It is well-settled that this court’s function is to review the case presented to the district court, rather

than a better case fashioned after an unfavorable order.” (internal punctuation and citation omitted)).

The Stipulated Award guaranteed that Zafirau would be employed by the School District. The

School District did attempt to employ Zafirau in the appropriate time frame subject to the additional

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No. 09-4492
S. James Zafirau v. Cleveland Municipal School District, et al.

requirement that he complete the psychological examination. The terms of Zafirau’s employment

were guaranteed by the Agreement. That the School District required the psychological examination,

however, arguably amounted to an unfair labor practice on the part of the School District against

Zafirau by interfering with his ability to teach. See Ohio Rev. Code § 4117.11(A)(1) (“It is an unfair

labor practice for a public employer, its agents, or representatives to: (1) interfere with, restrain, or

coerce employees in the exercise of the rights guaranteed under Chapter 4117.”). Such a practice

should be grieved by Zafirau to, or through, the CTU or directly to SERB prior to filing suit in court.

Accordingly, as Zafirau’s claim stemmed from a grievance originating from his rights guaranteed

by the Agreement, any attempt to consider this as a matter of arbitration enforcement disguises the

underlying issue.

        Finally, because we do not reach the merits of Zafirau’s breach of contract claim, we need

not address the issue of whether Zafirau appealed from his continuing teacher’s contract alone, or

if he additionally appealed from breach of his classified status as well. We have previously held that

“if a court does not have jurisdiction, ipso facto, it cannot address the merits of a case.” Charter

Twp. of Muskegon v. City of Muskegon, 303 F.3d 755, 764 (6th Cir. 2002) (quoting Rogers v.

Stratton Indus. Inc., 798 F.2d 913, 917 (6th Cir. 1986)). Accordingly, we abstain from reaching the

merits of this claim as well.

                                           CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s dismissal of Zafirau’s breach of

contract claim because he failed to exhaust his administrative remedies prior to filing his claims in

the lower court.

                                                   14
