Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Barbara A. Langhenry Director of Law
City of Cleveland By: Drew A. Carson Austin T. Opalich
Assistant Directors of Law City of Cleveland.
ATTORNEYS FOR APPELLEE Joseph J. Guarino Basil William
Mangano Mangano Law Offices Co., L.P.A.
BEFORE: Keough, A.J., McCormack, J., and Stewart, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.
Appellant, the city of Cleveland (the "city"),
appeals from the trial court's judgment denying its
motion to vacate an arbitrator's award and granting the
motion of the Municipal Foreman and Laborers' Union,
Local 1099 (the "union"), to affirm the award.
Finding no merit to the appeal, we affirm.
Factual and Procedural History
Traci Pierson is a bargaining unit member of the union, and
covered by the collective bargaining agreement between the
city and the union effective April 1, 2011 through March 31,
2013. Prior to her termination, Pierson was employed by the
city for 15 and a half years as a real estate maintenance
worker in the city's department of public works, division
of park maintenance.
In the two years prior to her discharge, the city took three
disciplinary actions against Pierson. On March 27, 2013, she
was suspended for one day for conduct unbecoming an employee
and insubordination after she walked out of a predisciplinary
conference. This suspension was held in abeyance and was to
be rescinded if no further violations occurred.
However, on August 14, 2013, after Pierson swiped in to work
with her electronic timecard and then left for 30 minutes,
the city suspended her for 30 days for neglect of duty,
conduct unbecoming an employee, and unethical conduct while
on duty. On December 16, 2013, the city again suspended
Pierson for 30 days for violence in the workplace; conduct
unbecoming an employee; disorderly, immoral, or unethical
conduct while on duty; offensive conduct or language toward
another employee, superior, or the public in the course of
employment; and failure of good behavior. This suspension
followed a workplace altercation in which Pierson called her
superior and coworkers extremely derogatory names and
threatened another employee that she would "kick his
In July 2014, the city issued an attendance policy that
required employees who were sick to call in to a dedicated
telephone line at least one hour before their scheduled
starting time. Under the policy, employees who failed to call
in and report to work would be considered absent without
leave. Further, park maintenance employees would not be
permitted to work if they reported to work more than one hour
late after the start of their shift.
On August 5, 2014, Pierson called the dedicated phone line at
5:40 a.m. and left a message requesting four hours of sick
leave for that day. At 9:40 a.m., more than two hours after
her 7 a.m. scheduled start time, she arrived at the station
and reported to her supervisor, Larry Robinson, for her work
assignment. At the hearing before the arbitrator, Robinson
testified that he told Pierson not to swipe in because she
was more than an hour late. He then called his supervisor,
Todd Alexander, manager of the division of park maintenance
and properties, who told Robinson to tell Pierson to go home.
Robinson said that Pierson refused to go home and told him
she "didn't have to" under the collective
bargaining agreement. Robinson then called Alexander again,
who told him that he would talk to Pierson. Robinson
testified that he did not tell Pierson that she would be
disciplined if she did not leave the premises as instructed.
Alexander testified that before going to the station, he
spoke with Robin Leftridge, acting commissioner of the
division of park maintenance and properties. Leftridge
testified that she advised Alexander to go to the site and
tell Pierson that she must leave, and that if she did not do
so, the city would consider her to be a trespasser and call
Alexander testified that he arrived at the site at 10:41
a.m., and advised Pierson he had been told to ask her to
leave for the day. Alexander stated that he read the
divisional attendance procedure to Pierson, told her that she
could not work that day, and asked her to go home. After
Pierson refused, Alexander told her that if she did not
leave, he would call the police and have her charged with
trespassing. Pierson responded, "do it, " and
refused to leave. Alexander then called the police. Pierson
remained on the scene but finally left at 11:30 a.m.,
immediately before the police arrived. Alexander admitted
that he did not advise Pierson that she would be discharged
if she did not leave the premises. On August 22, 2014, after
a predisciplinary conference, the city terminated
Pierson's employment, the next step in the city's
progressive discipline policy. The termination notice advised
Pierson that her ...