NICHOLAS MATHENY, et al. Appellants
CITY OF NORTON, et al. Appellees
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2011-11-0603
JOSEPH W. DIEMERT, JR., THOMAS M. HANCULAK, and DANIEL A. POWELL, Attorneys at Law, for Appellant.
MAX RIEKER, Attorney at Law, for Appellant.
PAUL L. JACKSON and KAREN D. ADINOLFI, Attorneys at Law, for Appellees.
DECISION AND JOURNAL ENTRY
(¶1} Nicholas Matheny and the Ohio Patrolmen's Benevolent Association ("the Association") appeal a judgment of the Summit County Common Pleas Court that granted summary judgment to the City of Norton and Mayor David Koontz on Mr. Matheny's and the Association's petition to compel arbitration. For the following reasons, this Court reverses.
(¶2} Mr. Matheny was working as an officer for the City's police department when the City terminated him in the fall of 2010. According to the City, his termination was for disciplinary reasons. A few days after Mr. Matheny was fired, the Association filed a grievance on his behalf Under the City and the Association's collective bargaining agreement ("the Agreement"), if a grievance is unresolved after being processed through all the steps of the grievance procedure, it may be submitted to arbitration. When the City failed to take action on the Association's grievance, therefore, the Association attempted to initiate the Agreement's arbitration procedure. When the City refused to participate in the arbitration procedure, Mr. Matheny and the Association filed a petition to compel arbitration in the trial court. The City opposed the petition, arguing that, under the terms of the Agreement, Mr. Matheny was not entitled to use the grievance procedure because he was a probationary employee and only non-probationary employees may use the procedure to challenge disciplinary actions. Following briefing by the parties and without a hearing, the court granted the petition, concluding that the question of whether Mr. Matheny was a probationary or non-probationary employee was for an arbitrator to determine. On appeal, this Court reversed, explaining that, "pursuant to the plain language of R.C. 2711.03, a trial court is explicitly required to hold a hearing on a motion to compel arbitration." Matheny v. City of Norton, 9th Dist. Summit No. 26166, 2012-Ohio-2283, ¶ 8, quoting Boggs Custom Homes, Inc. v. Rehor, 9th Dist. Summit No. 22211, 2005-Ohio-1129, ¶ 16. This Court remanded the action to the trial court "for a hearing" under Section 2711.03(A). Id. . at ¶ 10.
(¶3} On remand, the trial court scheduled a hearing on the petition to compel arbitration. Before the date of the hearing, however, the City and Mr. Koontz moved for summary judgment, noting that Mr. Matheny had recently filed a discrimination action in federal court. They argued that, under the terms of the Agreement, by filing "a discrimination action in a judicial forum, " Mr. Matheny "waived and forfeited any remedies provided by the [g]rievance [p]rocedure, " including 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 his right to proceed with his grievance. Mr. Matheny and the Association have appealed, assigning three errors. We have rearranged the assignments of error for ease of consideration.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT.
(¶4} Mr. Matheny and the Association argue that the trial court incorrectly concluded that Mr. Matheny waived his right to arbitration by filing a discrimination action in federal court. They argue that, under the terms of the Agreement, Mr. Matheny's filing of a discrimination action only waived his right to resolve discrimination claims through the grievance procedure, not his claim that the City terminated him without just cause. They also argue that, under the terms of the Agreement, the issue of whether Mr. Matheny's filing of a discrimination action waived his rights under the grievance procedure is an issue for an arbitrator to determine, not the trial court. They further argue that the trial court's interpretation of the Agreement's waiver provision is against public policy.
(¶5} Article 10 of the Agreement, entitled "Grievance Procedure, " provides that "[e]very employee shall have the right to present his grievance in accordance with the procedures provided herein * * *." It defines a "[g]rievance" as any "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 and interpretation of this Agreement shall be ...