Greene v. Cincinnati

[Cite as Greene v. Cincinnati, 2012-Ohio-5393.]
IN THE COURT OF APPEALS FIRST
APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
EDWARD GREENE, : APPEAL NO. C-120079
TRIAL NO. A-0706066
Plaintiff-Appellant, :
vs. : O P I N I O N.
CITY OF CINCINNATI, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 21, 2012
Bruce B. Whitman, for Plaintiff-Appellant,
John P. Curp, City Solicitor, and Augustine Giglio, Assistant City Solicitor, for
Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
[Cite as Greene v. Cincinnati, 2012-Ohio-5393.]
HILDEBRANDT, Presiding Judge.
{¶1} Plaintiff-appellant Edward Greene appeals the judgment of the Hamilton
County Court of Common Pleas confirming an arbitration award in favor of defendant-appellee
city of Cincinnati. The arbitration was conducted after the city had terminated Greene’s
employment as a police sergeant.
Greene’s Alleged Misconduct
{¶2} Greene was employed as a sergeant in the city’s Telephone Crime Reporting
Unit. In that capacity, he oversaw a number of employees, whose essential task was to answer
citizen calls and provide proper response. In 2004, Lieutenant Jeffrey Butler was transferred
into Greene’s unit and became his supervisor. Almost immediately, their working relationship
was tumultuous.
{¶3} At the arbitration hearing, the city presented evidence that Greene had failed to
follow even the most routine requests made by Butler. The record is replete with instances of
Greene’s failure to respond to Butler’s emails, failure to properly discipline employees, refusal
to follow the proper chain of command in submitting requests for leave, failure to inspect
equipment, being absent without leave, and numerous other derelictions of duty. In response to
these lapses, Butler prepared a number of “ESLs,” which were log entries that documented the
instances of misconduct.
{¶4} Butler testified that on many occasions, he had attempted to amicably resolve
these issues with Greene, only to be met with resistance and even outright hostility. On March
16, 2005, Butler called Greene into his office to discuss a new report-tracking procedure for the
unit. According to Butler, Greene had said that he did not “accept” the new policy and began
to leave Butler’s office. When Butler ordered Greene to remain, Greene said, “Go ahead and
charge me with insubordination,” and he left the office.
{¶5} Then, on May 24, 2005, Butler called Greene into his office to discuss a
memorandum that Greene had failed to submit on time. Butler testified that Greene had
[Cite as Greene v. Cincinnati, 2012-Ohio-5393.]
become belligerent, approaching Butler with his hands raised. After Butler ordered Greene to
leave his office, Greene walked away, but he repeatedly stated in a loud voice, “You look like
you want to beat me down. Do you want to beat me down?” Butler stated that he felt
threatened by Greene’s tone of voice and his body posture.
{¶6} Although Greene contended that his termination was the result of racial
discrimination, the arbitrator found that contention unpersuasive. The arbitrator concluded that
the city had proved its allegations of insubordination and that termination was the appropriate
penalty.
{¶7} Greene filed a motion with the trial court to vacate the arbitrator’s award.
After a hearing before a magistrate, the magistrate recommended that the award be upheld. On
October 1, 2010, the trial court issued a decision denying the motion to vacate the award, and
Greene appealed. But because the trial court had not explicitly ruled on the objections to the
magistrate’s report, this court dismissed the appeal for lack of a final appealable order. Greene
v. Cincinnati, 1st Dist. No. C-100715 (Aug. 5, 2011).
{¶8} Following our dismissal, the trial court issued an entry overruling the
objections, and Greene filed the instant appeal.
The Trial Court’s Compliance with Civ.R. 53
{¶9} In his first assignment of error, Greene argues that the trial court erred by
failing to properly rule on his objections to the magistrate’s decision.
{¶10} As we stated in the first appeal of this matter, Civ.R. 53(D)(4)(d) mandates
that a trial court rule on objections before entering judgment. In this regard, we have noted that
“[a]n essential component of a trial court’s judicial function is to review and ratify a
magistrate’s decision before it becomes effective.” Coors v. Maceachen, 1st Dist. No. C-
100013, 2010-Ohio-4470, ¶ 27, citing Yantek v. Coach Builders Ltd., Inc., 1st Dist. No. C-
060601, 2007-Ohio-5126, ¶ 10. Although an unstated disposition of objections in a “bare-
bones” judgment entry is inconsistent with Civ.R. 53(D)(4)(d), a trial court does have latitude
[Cite as Greene v. Cincinnati, 2012-Ohio-5393.]
in the manner in which it demonstrates compliance with the rule. Chan v. TASR, 1st Dist. No.
C-070275, 2008-Ohio-1439, ¶ 10.
{¶11} In the case at bar, the trial court complied with Civ.R. 53(D)(4)(d). In its
judgment entry, the court stated, “[a]fter hearing oral arguments on August 19, 2009, reviewing
the written memorandum presented by the parties, and considering the evidence and transcript
of proceedings before Arbitrator Joseph A. Alutto of the American Arbitration Association, the
Court finds that Plaintiff-Appellant’s objections are not well taken.” Thus, contrary to
Greene’s assertion that the trial court had issued a “bare-bones” entry, the judgment explicitly
indicated that the court had relied on the record in finding the objections to be without merit.
The court therefore demonstrated that it had fulfilled its judicial function in reviewing the
relevant material before finding the objections to be without merit. Accordingly, we overrule
the first assignment of error.
The Finding of “Just Cause” to Terminate
{¶12} In his second and final assignment of error, Greene contends that the trial
court erred in overruling his objections. He maintains that the arbitrator exceeded his authority
in determining that he had been discharged with just cause.
{¶13} Because the resolution of disputes through arbitration is favored, judicial
review is limited. Goodyear Rubber Co. v. Local Union No. 200, 42 Ohio St.2d 516, 520, 330
N.E.2d 703 (1975). Thus, a court cannot vacate the decision of an arbitrator except under the
narrow circumstances set forth in R.C. 2711.10. Id. at paragraph two of the syllabus. An
arbitrator exceeds his authority under a collective-bargaining agreement only if the award does
not “draw its essence” from the agreement. Id. at 519-520, citing United Steelworkers of
America v. Ent. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
{¶14} Under the “essence” test, the arbitrator’s award must be confirmed “when
there is a rational nexus between the agreement and the award, and where the award is not
arbitrary, capricious, or unlawful.” Mahoning Cty. Bd. of Mental Retardation and Dev.
OHIO FIRST DISTRICT COURT OF APPEALS
Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 488 N.E.2d 872 (1986),
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[Cite as Greene v. Cincinnati, 2012-Ohio-5393.]
paragraph one of the syllabus. On the other hand, an arbitrator’s decision departs from the
essence of an agreement where it conflicts with the express terms of the agreement or cannot be
rationally derived from those terms. Ohio Office of Collective Bargaining v. Civil Serv. Emp.
Assn., Local 11, AFSCME, AFL-CIO, 59 Ohio St.3d 177, 572 N.E.2d 71 (1991), syllabus;
Amalgamated Transit Union, Local 627 v. Southwest Ohio Regional Transit Auth., 190 Ohio
App.3d 679, 2010-Ohio-5494, 943 N.E.2d 1075, ¶ 8.
{¶15} The collective-bargaining agreement in this case granted the city the right to
discharge an officer for “just cause.” Although the agreement did not define the term, courts
have devised a two-part test to determine if an employer has demonstrated “just cause” to
terminate an employee. The inquiry is “(1) whether a cause for discipline exists and (2)
whether the amount of discipline was proper under the circumstances.” Cincinnati v. Queen
City Lodge No. 69, Fraternal Order of Police, 164 Ohio App.3d 408, 2005-Ohio-6225, 842
N.E.2d 588, ¶ 20, quoting Bd. of Trustees of Miami Twp. v. Fraternal Order of Police, Ohio
Labor Council, Inc., 81 Ohio St.3d 269, 271-272, 690 N.E.2d 1262 (1998).
{¶16} In this case, the record supports the arbitrator’s conclusion that Greene had
been terminated for just cause. The city documented a litany of instances in which Greene had
been resistant, and at times outright defiant, in response to Butler’s reasonable orders. The
misconduct culminated in Greene’s abusive and threatening tirade in response to Butler’s
questions about a routine memorandum. As the arbitrator aptly held, such conduct could not be
tolerated in an organization that relies on discipline and order for its effectiveness.
{¶17} Nonetheless, Greene contends that the award did not draw its essence from the
collective-bargaining agreement because the arbitrator did not require the city to impose
progressive discipline. He argues that the issuance of the “ESLs” did not put him on notice that
his employment was in jeopardy and did not provide him with an opportunity to dispute
Butler’s allegations of misconduct.
{¶18} We find no merit in this argument. First, Greene has failed to cite any
OHIO FIRST DISTRICT COURT OF APPEALS
provision of the collective-bargaining agreement that precluded termination for serious
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[Cite as Greene v. Cincinnati, 2012-Ohio-5393.]
misconduct. Thus, it cannot be said that the arbitrator’s award conflicted with the express
terms of the agreement. Second, the record reflects numerous instances in which Greene was
put on notice that his behavior was inappropriate, and his misconduct only escalated. Under
these circumstances, we cannot say that the arbitrator’s award was arbitrary, capricious, or
unlawful. Accordingly, we overrule the second assignment of error.
Conclusion
{¶19} The judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry this date.