GEORGIA B. COX, Plaintiff-Appellant v. DAYTON PUBLIC SCHOOLS BOARD OF EDUCATION, Defendant-Appellee
Appellate Case No. 26382
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 20, 2015
2015-Ohio-620
FAIN, J.
Trial Court Case No. 2014-CV-1422 (Civil Appeal from Common Pleas Court)
O P I N I O N
Rendered on the 20th day of February, 2015.
GEORGIA B. COX, 4191 Mapleleaf Drive, Dayton, Ohio 45416
Plaintiff-Appellant, pro se
BEVERLY A. MEYER, Atty. Reg. No. 0063807, Cooper, Gentile, Washington & Meyer Co., 118 West First Street, Suite 850, Dayton, Ohio 45402
Attorney for Defendant-Appellee
{¶ 1} Plaintiff-appellant Georgia Cox appeals from a judgment of the Montgomery County Common Pleas Court dismissing her motion to vacate, modify or correct an arbitration decision that confirmed the termination of her employment with defendant-appellee Dayton Public Schools Board of Education. She contends that the court erred in finding no jurisdiction to consider the motion based on an untimely filing and her lack of standing.
{¶ 2} We conclude that the court erred by finding that the motion was untimely, because it was filed and served in compliance with
{¶ 3} Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings, consistent with this opinion.
I. The Course of the Proceedings
{¶ 4} This is the second appeal initiated by Cox regarding the consequences of an event that occurred on October 10, 2012 in connection with her employment as a teacher at Meadowdale High School. The first appeal, State v. Cox, 2014-Ohio-2201, 12 N.E.3d 446 (2d Dist.), affirmed a felony conviction for assault of a functionally impaired student. We concluded that “the evidence in the record permitted the jury reasonably to find that Cox hit the victim‘s upper right chest, in the area of his shoulder, and the jury could reasonably infer that she intended to cause the victim physical harm in the form of pain.” Cox at ¶ 2.
{¶ 5} All of the actions taken by the parties in response to the event that occurred on October 10, 2012, are governed by a collective bargaining agreement, referred to as a “Master Contract” between the teacher‘s union and the school board. Cox was immediately placed on paid administrative leave pending an investigation of the incident. On October 16, 2012, criminal charges were initiated against Cox in Vandalia Municipal Court. On October 16, 2012 the Director of Human Resources prepared a “Notice of Charges and Specifications,” and set it for hearing on October 30, 2012. Based on advice of counsel, Cox attempted to have the hearing continued until after the completion of the criminal case.
{¶ 6} On November 6, 2012, Cox was notified that her paid leave status would change to unpaid leave as of November 12, 2012. The union representing Cox, the Dayton Education Association (DEA), filed a grievance over the untimeliness of the Notice of Charges, alleging that the collective bargaining agreement required the notice to be issued within 24 hours of a suspension. In response, the October 16th Notice of Charges was rescinded and reissued with a statement that the hearing would be reset “on a yet to be determined date and pending the criminal charges arising out of the same.”
{¶ 7} When the hearing was set for December 19, 2012, Cox‘s attorney requested a continuance, stating that Cox would not participate in the hearing until after the completion of the criminal case. In response, the Notice of Charges was again reissued with a new hearing date of January 9, 2013. On January 8, 2013, Cox again requested a continuance because the criminal charges were still pending. Notwithstanding the request for a continuance, the hearing was conducted on January 9, 2013; Cox did not appear.
{¶ 8} Shortly before the hearing, the DEA filed two grievances, contesting the decision to convert Cox to unpaid leave and the failure to continue the hearing until after the criminal case was complete. After the hearing, Cox was served with a Notice of Intent to Terminate. The DEA elected to submit the matter to arbitration. The arbitrator made a finding that three matters were properly before him: the two grievances filed by the DEA; and the termination of Cox‘s employment.
{¶ 9} The arbitrator conducted a hearing on September 17-19, 2013. Cox appeared, represented by counsel. A representative of the DEA also participated in the hearing. The arbitrator issued a decision on December 10, 2013, finding that the District had good and just cause to terminate Cox and that the two grievances should be denied. The arbitrator‘s decision does not contain a certificate of service to identify the date or method of service of the decision, does not state that it is a final and binding order, and contains no statement regarding any post-arbitration remedies to seek judicial review of the decision. The parties have acknowledged that the decision was emailed to all parties on December 10, 2013. The record also contains a resolution of the Board, dated December 18, 2013, adopting the decision of the arbitrator, and directing that a copy of its order be served on Cox by certified mail.
{¶ 10} On March 10, 2014, Cox, pro se, filed her motion to vacate, modify or correct the arbitration decision with the common pleas court. The motion did not contain a certificate of service, but at the time of filing Cox separately filed a praecipe for service of the motion to the appellee, Dayton Public Schools Board of Education. The docket reflects that the Clerk of Courts did issue service of the motion to the Board on March 10, 2014. The certified mail receipt reflects that the Board received the motion on March 12,
II. The Standard of Review
{¶ 11} The Board moved to dismiss the motion to vacate pursuant to
{¶ 12} A complaint may be dismissed pursuant to
{¶ 13} In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted under
{¶ 14} The standard of review for a
III. Cox Complied with the Filing Requirements of R.C. 2711.13
{¶ 15} Pursuant to
(2) Service in general. A document is served under this rule by:
(a) handing it to the person;
(b) leaving it:
(i) at the person‘s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
(ii) if the person has no office or the office is closed, at the person‘s dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(c) mailing it to the person‘s last known address by United States mail, in which event service is complete upon mailing;
(d) delivering it to a commercial carrier service for delivery to the person‘s last known address within three calendar days, in which event service is complete upon delivery to the carrier;
(e) leaving it with the clerk of court if the person has no known address; or
(f) sending it by electronic means to a facsimile number or e-mail address provided in accordance with
Civ.R. 11 by the attorney or party to be served, in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person served.(Emphasis added.)
{¶ 16} The record supports that Cox complied with
{¶ 17} We recognize that the Eighth District has held that a movant‘s failure to assure that an adverse party has actually received the notice of a motion to vacate, filed pursuant to
{¶ 18} We provided an analysis of
{¶ 19} We conclude that the provisions of
IV. Cox Does Have Standing to Pursue a Judicial Review of her Termination
{¶ 20} The trial court found that Cox lacked standing to pursue a motion to vacate the arbitration decision because she was not a party to the arbitration proceeding. The court relied on Section 3.07.2(D)(1) of the Master Contract, which states that only the DEA shall have the right to appeal any grievance to arbitration. This section of the collective bargaining agreement is applicable to the two grievances that were reviewed by
The procedures the Board must follow in terminating a contract of a Professional Staff Member are outlined in Ohio Revised Code, Section 3319.16 and Article Forty-Eight. Any employee who has received a notice of intention to terminate his/her contract by the Board shall have the right, within 10 days of the receipt of the notice, to proceed with a case under Section 3319.16, Revised Code, or to have his/her case decided by an arbitrator pursuant to Article 3.07.2D (Arbitration).
Section 46.01.2 of the Master Contract further provides that: “[a]ny Professional Staff Member who has been notified of intent to dismiss under this section must be informed of his/her right to counsel or Association assistance and representation, if desired.” Article 48 of the Master Contract establishes a “due process procedure” for the disciplinary and termination process, which includes specific notices directed to the teacher and the Association, and the opportunity to be heard at a prompt hearing.
{¶ 21} Therefore, Articles 46 and 48 of the Master Contract specifically provide individual rights to a teacher to be notified of the intent to terminate, to attend an immediate hearing, to retain a personal attorney and to make a personal decision whether to arbitrate the termination action or whether to exercise her statutory rights instead of her contractual rights. Construing the intent of these sections of the Master
{¶ 22}
Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located within thirty days after receipt of notice of the entry of such order. The appeal shall be an original action in the court and shall be commenced by the filing of a complaint against the Board, in which complaint the facts shall be alleged upon which the teacher relies for a reversal or modification of such order of termination of contract.
{¶ 24} The trial court‘s reliance on Leon v. Boardman Twp., 100 Ohio St. 3d 335, 2003-Ohio-6466, 800 N.E.2d 12, for its finding that only the union had standing to appeal the arbitration decision ignores the restrictive clause in the holding of the case which makes an exception for collective bargaining agreements where the employee is given the right to choose arbitration. In the Leon case, which involved the termination of a patrolman, the court held, “when an employee‘s discharge or grievance is arbitrated between an employer and a union under the terms of the collective bargaining agreement, the aggrieved employee does not have standing to petition a court to vacate the award pursuant to
{¶ 25} The effect of holding that the teacher has no standing to pursue a judicial
{¶ 26} The record is not clear whether Cox‘s waiver of her statutory rights was clear and unmistakable. Even though the Master Contract gives Cox the right to choose the statutory process or arbitration for a review of her termination, it is not clear whether she affirmatively assigned that right to her union, DEA, or made the choice to arbitrate with the knowledge that her choice to do so would materially affect her post-hearing review rights. In addition to different filing deadlines under
{¶ 27} Therefore, based on her statutory and contractual rights, Cox does have standing to pursue judicial review of her termination. On remand, the court must review the merits of Cox‘s motion to vacate, modify or correct the arbitrator‘s award by determining if it is contrary to law, arbitrary or capricious, which should include, but is not limited to, whether Cox‘s waiver of her statutory rights was clear and unmistakable. If Cox did not clearly waive her statutory rights, the court is authorized by
V. Conclusion
{¶ 28} Upon our de novo review, the judgment of the trial court is Reversed, and this matter is Remanded for further proceedings consistent with this opinion.
DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Georgia B. Cox
Beverly A. Meyer
Hon. Michael Tucker