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Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
BRENDA HARRINGTON,
Plaintiff, : Case No. 11-CV-6773
v. : JUDGE BEATTY
CITY OF COLUMBUS, et al.,
Defendants.
DEFENDANTS’ REPLY TO PLAINTIFF, BRENDA HARRINGTON’S “MOTION
CONTRA” TO DEFENDA( MOTION FOR SUMMARY GMENT
From the onset, it must be noted that Plaintiff has improperly styled her response as a
“Motion Contra” when clearly it is a Memo Contra to Defendants’ Motion for Summary
Judgment. It is further noted that Plaintiff’s “motion” is absent of any case law or legal authority
to support her position that this Court has subject matter jurisdiction to hear her claim that
Defendants breached the terms of her collective bargaining agreement (“CBA”) when it
terminated Plaintiff from her employment with the City of Columbus. Instead, Plaintiff’ s
“motion” relies on blanket assumptions and baseless opinions. This Court lacks subject matter
jurisdiction to hear Plaintiff’s breach of contract claim.
There is no question that pursuant to Revised Code 4117.10(A) when a collective
bargaining agreement “provides for a final and binding arbitration of grievances, public
employers, employees, and employee organizations are subject only to that grievance
procedure...” R.C. 4117.10(A). It is well established that if an employee “asserts claims that
arise from or depend on the collective bargaining rights created by R.C. Chapter 4117, the
remedies provided in that chapter are exclusive.” Franklin Cty. Law Enforcement Assoc. v.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773
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F.O.P. Capital City Lodge No. 9, 59 Ohio St. 3d 167, 170, 572 N.E.2d 87 (1991); see also,
Fraternal Order of Police, Ohio Labor Council, Inc. y. Franklin Cty. Court of Comments Pleas
76 Ohio St.3d 287, 1996 Ohio 424 (1996); State ex. Rel. Cleveland v. Sutula, 127 Ohio St.3d
131, 937 N.E.2d 88 (2010).
In the case before this Court, the parties do not dispute that Plaintiff's CBA provided a
grievance and arbitration procedure. Plaintiff readily admits that her “claims do arise from the
Defendants’ breach of the collective bargaining agreement and the implementation of this
agreement.” Pltf’s Mtn. Contra p.2'. Plaintiff further admits that despite the availability of the
grievance and arbitration procedure under her CBA, “she pursued other avenues of recourse.”
Id., p.3. Plaintiff explains that because of prior issues she had with her union, she “chose to file
her cause with the Franklin County Common Pleas Court and forgo the grievance procedure.”
Id., p.3. The law does not provide Plaintiff with the option to choose between filing with this
Court or filing a grievance. Plaintiff is not entitled to select whichever option she prefers.
Because the CBA provides for final and binding arbitration of grievances, Plaintiff is subject to
the exclusive remedy of the grievance and arbitration procedure under the CBA. Garrett v. City
of Columbus, 2012-Ohio-3271, J 21, 2012 Ohio App. LEXIS 2873 (10" Dist. 2012).
Plaintiff's citation to R.C. 4117.09 (B)(1) for the premise that she is a party to the CBA
is erroneous. The case law is clear; a union member is not considered a party to the CBA. United
Electrical v. Delaware City Sch. Dist. Bd. of Educ., 2001 Ohio App. LEXIS 2796, *5-6 6" Dist.
2001); Brondes y. International Unions of Police Assoc., 2002 Ohio 5800, *12, 2002 Ohio App.
LEXIS 5660 (3 Dist.). See also, Leon v. Boardman Township, 100 Ohio St. 3d 335, 339-340,
2003 Ohio 6466. While the Ohio Supreme Court in Leon determined that a public employee is
' Plaintiff’ s “motion” does not contain any identifying page numbers. References made to specific pages from
Plaintiffs “motion” have been identified in Defendants’ Reply by manually counting each page.
2Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773
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not a “party” under R.C. § 2711.10, the analysis used to reach that determination is also
applicable when construing the term “party” under R.C. § 4117.09(A). United Electrical, *8.
The Court went on to hold that “an aggrieved worker whose employment is governed by a
collective bargaining agreement that provides for binding arbitration will generally be deemed to
have relinquished his or her right to act independently of the union in all matters related to or
arising from the contract, except to the limited extent that the agreement explicitly provides to
the contrary.” Leon, at 340. Thus, Plaintiff in the instant matter, is not a “party” to the CBA.
She has no standing as an individual union member to file suit before this Court for her breach of
contract claim. Revised Code § 4117.09(B)(1) is irrelevant to the case at bar.
Furthermore, it is unequivocally clear from Plaintiff's “motion” that her dissatisfaction
lies directly with her union and its inability to fairly represent her. As she unapologetically
claims in her “motion,” “Plaintiff, based upon the union’s performance in the immediate past,
did not believe she would receive the full benefit of the grievance procedure and chose those
remedies available to her in a court of law. The union’s conduct dictated her actions and forms
the basis of her appeal.” Pltf’s Mtn.Contra p.4. She goes on to note that she “was totally misled
by her union” and “the union did not want to go through another hearing with Plaintiff on a
disciplinary action. The union in effect threw Plaintiff under the bus.” /d. It is apparent that
Plaintiff’ s issues at best may amount to a failure to fairly represent action against her union.
Pursuant to R.C. section 4117.11, “it is an unfair labor practice for an employee
organization, its agents, or representatives, or public employees to ...[fJail to fairly represent all
public employees in a bargaining unit.” R.C. 4117.11(B)(6). In turn, section 4117.12 provides
that “[w]hoever violates section 4117.11 of the Revised Code is guilty of an unfair labor practice
remediable by the state employment relations board as specified in this section.” R.C. 4117.12.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773
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“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.” Shmrock v. Trumbull Cnty. Commrs., 593 N.E.2d 28, 30-31, 71 Ohio
App.3d 54 (11" Dist.1990); Pulizzi v. City of Sandusky, 2003 Ohio 5853, 13, (6" Dist. 2003).
As it remains undisputed that Plaintiff failed to utilize the grievance and arbitration
process provided under her CBA, this Court lacks subject matter jurisdiction to consider
Plaintiff’ s breach of contract claim.
Lastly, Defendants are compelled to note Plaintiff’s improper reliance on what appears to
be excerpts of Plaintiff's deposition from a prior 2009 case before this Court, designated as case
number 09-CV-181219. Plaintiff filed a 2009 complaint alleging a breach of contract claim
against Defendants that was later voluntarily dismissed without prejudice by Plaintiff's current
counsel on January 28, 2011. Exhibit 1, Notice of Voluntary Dismissal. The Ohio Supreme
Court has held that a “dismissal without prejudice leaves the parties as if no action had been
brought at all.” Denham v. City of New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 443
(1999). The instant matter was subsequently refiled by Plaintiff’s counsel on June 1, 2011.
Depositions were not taken in the current action. Neither counsel for Plaintiff, nor counsel for
Defendants requested a transfer of the pleadings and/ or evidence filed in the prior case to the
instant matter. Thus, this Court may not consider any excerpts of Plaintiff's deposition from the
prior action. See, Greenwood Rehab., Inc. v. Boxell, 2005-Ohio-2492, 2005 Ohio App. LEXIS
2373 (6" Dist., 2005) (Appellate Court held that where a party does not file a deposition or other
evidentiary materials in the refiled cause of action, that court may not consider the deposition or
evidentiary material filed in the prior case in the instant matter). Defendants accordingly request
this Court to strike references to Plaintiff's deposition from the record.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773
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For all the foregoing reasons, there is no genuine issue of fact and Defendants City of
Columbus, Philip Harrison and Anthony Bush are entitled to judgment as a matter of law.
Respectfully submitted,
CITY OF COLUMBUS, DEPARTMENT OF LAW
RICHARD C, PFEIFFER, JR., CITY ATTORNEY
/s/ Susan E. Thompson
Susan E. Thompson (0073375)
Natalia S. Harris (0072431)
Assistant City Attorneys
77 North Front Street, 4" Floor
Columbus, Ohio 43215
Voice: (614) 645-7385
Fax: (614) 645-6949
Email: sethompson @ columbus. gov
Email: asharris@ columbus goy
Attorneys for Defendants
CERTIFICATE OF SERVICE
This will certify that a copy of the foregoing Defendants’ Reply To Plaintiff, Brenda
Harrington’s “Motion Contra” To Defendants’ Motion For Summary Judgment was sent via the
Court’s electronic filing system to Byron L. Potts, Esq., Attorney for Plaintiff, at 415 East Broad
Street, Ste. 112, Columbus, Ohio 43215, this 1* day of July, 2015.
/s/ Susan E. Thompson
Susan Thompson
Assistant City Attorney
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773 0C572 - N75 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO BRENDA HARRINGTON, Plaintiff, : Case No. 11-CV-6773 v. : JUDGE BEATTY CITY OF COLUMBUS, et al., Defendants. DEFENDANTS’ REPLY TO PLAINTIFF, BRENDA HARRINGTON’S “MOTION CONTRA” TO DEFENDA( MOTION FOR SUMMARY GMENT From the onset, it must be noted that Plaintiff has improperly styled her response as a “Motion Contra” when clearly it is a Memo Contra to Defendants’ Motion for Summary Judgment. It is further noted that Plaintiff’s “motion” is absent of any case law or legal authority to support her position that this Court has subject matter jurisdiction to hear her claim that Defendants breached the terms of her collective bargaining agreement (“CBA”) when it terminated Plaintiff from her employment with the City of Columbus. Instead, Plaintiff’ s “motion” relies on blanket assumptions and baseless opinions. This Court lacks subject matter jurisdiction to hear Plaintiff’s breach of contract claim. There is no question that pursuant to Revised Code 4117.10(A) when a collective bargaining agreement “provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject only to that grievance procedure...” R.C. 4117.10(A). It is well established that if an employee “asserts claims that arise from or depend on the collective bargaining rights created by R.C. Chapter 4117, the remedies provided in that chapter are exclusive.” Franklin Cty. Law Enforcement Assoc. v.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773 0C572 - N76 F.O.P. Capital City Lodge No. 9, 59 Ohio St. 3d 167, 170, 572 N.E.2d 87 (1991); see also, Fraternal Order of Police, Ohio Labor Council, Inc. y. Franklin Cty. Court of Comments Pleas 76 Ohio St.3d 287, 1996 Ohio 424 (1996); State ex. Rel. Cleveland v. Sutula, 127 Ohio St.3d 131, 937 N.E.2d 88 (2010). In the case before this Court, the parties do not dispute that Plaintiff's CBA provided a grievance and arbitration procedure. Plaintiff readily admits that her “claims do arise from the Defendants’ breach of the collective bargaining agreement and the implementation of this agreement.” Pltf’s Mtn. Contra p.2'. Plaintiff further admits that despite the availability of the grievance and arbitration procedure under her CBA, “she pursued other avenues of recourse.” Id., p.3. Plaintiff explains that because of prior issues she had with her union, she “chose to file her cause with the Franklin County Common Pleas Court and forgo the grievance procedure.” Id., p.3. The law does not provide Plaintiff with the option to choose between filing with this Court or filing a grievance. Plaintiff is not entitled to select whichever option she prefers. Because the CBA provides for final and binding arbitration of grievances, Plaintiff is subject to the exclusive remedy of the grievance and arbitration procedure under the CBA. Garrett v. City of Columbus, 2012-Ohio-3271, J 21, 2012 Ohio App. LEXIS 2873 (10" Dist. 2012). Plaintiff's citation to R.C. 4117.09 (B)(1) for the premise that she is a party to the CBA is erroneous. The case law is clear; a union member is not considered a party to the CBA. United Electrical v. Delaware City Sch. Dist. Bd. of Educ., 2001 Ohio App. LEXIS 2796, *5-6 6" Dist. 2001); Brondes y. International Unions of Police Assoc., 2002 Ohio 5800, *12, 2002 Ohio App. LEXIS 5660 (3 Dist.). See also, Leon v. Boardman Township, 100 Ohio St. 3d 335, 339-340, 2003 Ohio 6466. While the Ohio Supreme Court in Leon determined that a public employee is ' Plaintiff’ s “motion” does not contain any identifying page numbers. References made to specific pages from Plaintiffs “motion” have been identified in Defendants’ Reply by manually counting each page. 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773 0C572 - N77 not a “party” under R.C. § 2711.10, the analysis used to reach that determination is also applicable when construing the term “party” under R.C. § 4117.09(A). United Electrical, *8. The Court went on to hold that “an aggrieved worker whose employment is governed by a collective bargaining agreement that provides for binding arbitration will generally be deemed to have relinquished his or her right to act independently of the union in all matters related to or arising from the contract, except to the limited extent that the agreement explicitly provides to the contrary.” Leon, at 340. Thus, Plaintiff in the instant matter, is not a “party” to the CBA. She has no standing as an individual union member to file suit before this Court for her breach of contract claim. Revised Code § 4117.09(B)(1) is irrelevant to the case at bar. Furthermore, it is unequivocally clear from Plaintiff's “motion” that her dissatisfaction lies directly with her union and its inability to fairly represent her. As she unapologetically claims in her “motion,” “Plaintiff, based upon the union’s performance in the immediate past, did not believe she would receive the full benefit of the grievance procedure and chose those remedies available to her in a court of law. The union’s conduct dictated her actions and forms the basis of her appeal.” Pltf’s Mtn.Contra p.4. She goes on to note that she “was totally misled by her union” and “the union did not want to go through another hearing with Plaintiff on a disciplinary action. The union in effect threw Plaintiff under the bus.” /d. It is apparent that Plaintiff’ s issues at best may amount to a failure to fairly represent action against her union. Pursuant to R.C. section 4117.11, “it is an unfair labor practice for an employee organization, its agents, or representatives, or public employees to ...[fJail to fairly represent all public employees in a bargaining unit.” R.C. 4117.11(B)(6). In turn, section 4117.12 provides that “[w]hoever violates section 4117.11 of the Revised Code is guilty of an unfair labor practice remediable by the state employment relations board as specified in this section.” R.C. 4117.12.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773 0C572 - N78 “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.” Shmrock v. Trumbull Cnty. Commrs., 593 N.E.2d 28, 30-31, 71 Ohio App.3d 54 (11" Dist.1990); Pulizzi v. City of Sandusky, 2003 Ohio 5853, 13, (6" Dist. 2003). As it remains undisputed that Plaintiff failed to utilize the grievance and arbitration process provided under her CBA, this Court lacks subject matter jurisdiction to consider Plaintiff’ s breach of contract claim. Lastly, Defendants are compelled to note Plaintiff’s improper reliance on what appears to be excerpts of Plaintiff's deposition from a prior 2009 case before this Court, designated as case number 09-CV-181219. Plaintiff filed a 2009 complaint alleging a breach of contract claim against Defendants that was later voluntarily dismissed without prejudice by Plaintiff's current counsel on January 28, 2011. Exhibit 1, Notice of Voluntary Dismissal. The Ohio Supreme Court has held that a “dismissal without prejudice leaves the parties as if no action had been brought at all.” Denham v. City of New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 443 (1999). The instant matter was subsequently refiled by Plaintiff’s counsel on June 1, 2011. Depositions were not taken in the current action. Neither counsel for Plaintiff, nor counsel for Defendants requested a transfer of the pleadings and/ or evidence filed in the prior case to the instant matter. Thus, this Court may not consider any excerpts of Plaintiff's deposition from the prior action. See, Greenwood Rehab., Inc. v. Boxell, 2005-Ohio-2492, 2005 Ohio App. LEXIS 2373 (6" Dist., 2005) (Appellate Court held that where a party does not file a deposition or other evidentiary materials in the refiled cause of action, that court may not consider the deposition or evidentiary material filed in the prior case in the instant matter). Defendants accordingly request this Court to strike references to Plaintiff's deposition from the record.Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Jul 01 12:34 PM-11CV006773 0Cc572 - N79 For all the foregoing reasons, there is no genuine issue of fact and Defendants City of Columbus, Philip Harrison and Anthony Bush are entitled to judgment as a matter of law. Respectfully submitted, CITY OF COLUMBUS, DEPARTMENT OF LAW RICHARD C, PFEIFFER, JR., CITY ATTORNEY /s/ Susan E. Thompson Susan E. Thompson (0073375) Natalia S. Harris (0072431) Assistant City Attorneys 77 North Front Street, 4" Floor Columbus, Ohio 43215 Voice: (614) 645-7385 Fax: (614) 645-6949 Email: sethompson @ columbus. gov Email: asharris@ columbus goy Attorneys for Defendants CERTIFICATE OF SERVICE This will certify that a copy of the foregoing Defendants’ Reply To Plaintiff, Brenda Harrington’s “Motion Contra” To Defendants’ Motion For Summary Judgment was sent via the Court’s electronic filing system to Byron L. Potts, Esq., Attorney for Plaintiff, at 415 East Broad Street, Ste. 112, Columbus, Ohio 43215, this 1* day of July, 2015. /s/ Susan E. Thompson Susan Thompson Assistant City Attorney