Ohio Patrolmen's Benevolent Ass'n v. City of Findlay

• Decision Date: 13 August 2015
• Docket Number: No. 102282.,102282.
• Citation: Ohio Patrolmen's Benevolent Ass'n v. City of Findlay, 40 N.E.3d 610 (Ohio App. 2015)
• Parties: OHIO PATROLMEN'S BENEVOLENT ASSOCIATION, et al., Plaintiffs–Appellants v. CITY OF FINDLAY, Defendant–Appellee.
• Court: Ohio Court of Appeals

40 N.E.3d 610

OHIO PATROLMEN'S BENEVOLENT ASSOCIATION, et al., Plaintiffs–Appellants

v.CITY OF FINDLAY, Defendant–Appellee.

No. 102282.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 13, 2015.

Kevin Powers, North Royalton, OH, Michelle T. Sullivan, Jonathon J. Winters, Allotta Farley Co., L.P.A., Toledo, OH, for Appellants.

Donald James Rasmussen, City of Findlay Law Director, Findlay, OH, Gary C. Johnson, William F. Schmitz, Eric M. Allain, Gary C. Johnson & Associates, Cleveland, OH, for Appellee.

Before: JONES, P.J., E.A. GALLAGHER, J., and BOYLE, J.

Opinion

EILEEN A. GALLAGHER, J.

{¶ 1}Plaintiffs-appellants, the Ohio Patrolmen's Benevolent Association(the “union”) and David Hill(collectively, “appellants”), appeal from a decision of the Cuyahoga County Court of Common Pleas vacating an arbitration award that modified disciplinary action taken by defendant-appellee the city of Findlay(the “city”) against Hill, a sergeant in its police department.Appellants contend that the arbitrator acted within his authority under the collective bargaining agreement in modifying the discipline imposed by the city from termination to a five-month suspension and reinstatement without back pay after finding that the city had just cause to discipline him for violations of various police department rules and that the trial court, therefore, erred in vacating the arbitration award under R.C. 2711.10(D).For the reasons that follow, we affirm the trial court's judgment.

Procedural History and Factual Background

{¶ 2} On November 21, 2012, Morgan Greeno, a police officer with the Findlay Police Department, filed a complaint with the department regarding an incident that had occurred following a midnight shift roll call involving her direct supervisor, Sergeant Hill on November 13, 2012.After roll call that evening, Sergeant Hill and others were discussing the upcoming Fraternal Order of Police Christmas party, and one of the officers asked Sergeant Hill who was on the committee to coordinate the party.Sergeant Hill began listing the names of the officers who had volunteered to work on the committee.When he came to Officer Greeno, he did not refer to her by name, but instead referred to her as “Whoregan,”“essentially conjugating the word[s] whore and Morgan.”Officer Greeno indicated that the comment upset her, in particular because it was made by a supervisor and the entire shift was in the room when the comment was made and because she thought the comment may have stemmed from Officer Greeno's anticipated testimony against Sergeant Hill in a disciplinary arbitration scheduled for later that month.Officer Greeno also complained that Sergeant Hill had condoned or participated in “jokes” other officers on her shift had made regarding her having a sexual relationship with the building's custodian and having become pregnant as a result.

{¶ 3}Lieutenant Robert Ring investigated Officer Greeno's claims.He interviewed Officer Greeno, Sergeant Hill and the other officers who were present at roll call that evening and questioned them regarding Sergeant Hill's alleged reference to Officer Greeno as “Whoregan.”

{¶ 4} Sergeant Hill admitted that he had referred to Greeno as “Whoregan” during roll call but claimed that it was simply a mistake, i.e., a “slip of the tongue.”He denied having ever used the term before and denied that he ever treated Officer Greeno unfairly.Sergeant Hill also denied having ever made any comments to Officer Greeno about her having a sexual relationship with the custodian.He claimed those comments came from other officers on the shift and were typical of the banter engaged in by officers following roll call.Although he claimed his reference to Officer Greeno as “Whoregan” was accidental and that he intended nothing derogatory by it, Sergeant Hill did not apologize to Officer Greeno and did not attempt to retract his comment or otherwise explain to her why he had referred to her in that way.

{¶ 5} The other officers who were present during roll call that evening told Lieutenant Ring that they had heard Sergeant Hill refer to Officer Greeno as “Whoregan” but did not believe that it was “a deliberate comment.”The officers told Lieutenant Ring that they did not think the comment was “that big of a deal” and stated that they perceived Sergeant Hill's remark as “more of a ‘tongue tie’ ” or “an attempt at humor that was taken the wrong way.”The officers stated that they had not previously heard Sergeant Hill use that term or call Officer Greeno any other derogatory names.

{¶ 6} In his report of his investigation, Lieutenant Ring stated that it was unacceptable for a male supervisor to refer to a female subordinate as a “whore” regardless of the context or setting and that he believed it was unlikely that Sergeant Hill had used the term “accidentally” because “[t]he term whore does not just come out of one's mouth as a ‘slip of the tongue.’ ”He concluded that even if the alleged comments regarding Officer's Greeno's “pregnancy” were not considered, Sergeant Hill's derogatory reference to Officer Greeno as “Whoregan” violated several department rules, including rules relating to respect of subordinates, the standard of conduct toward fellow employees and sexual harassment.

{¶ 7} As part of his investigation, Lieutenant Ring also reviewed Sergeant Hill's personnel file and disciplinary record.

This was not the first time Sergeant Hill had violated police department rules and regulations.In July 2012, Sergeant Hill was charged with violating the department's social media policy and issued a written reprimand after he tased a 14–year–old boy while the boy's father(another Findlay police officer) recorded the tasing and the video was later posted on Facebook.Sergeant Hill, who, at the time, was the department's taser instructor, had defended his actions by claiming that the child had asked to be tased and that his father had given Sergeant Hill permission to tase him.Several weeks later, Sergeant Hill was suspended for ten days for violating department rules after he expressed his displeasure at another officer's (Sergeant Harmon's) promotion to sergeant by disparaging the officer's mental health in front of his subordinates and placing the barrel of his .45 caliber service weapon into his mouth, feigning a suicide attempt, after the announcement was made.

{¶ 8} Based on his derogatory reference to Officer Greeno as “Whoregan” and his prior disciplinary issues, Lieutenant Ring recommended that Sergeant Hill be suspended for 30 days and demoted from his position as sergeant to a position of police officer.

{¶ 9} Lieutenant Ring's investigative report was forwarded to Captain Sean Young.Captain Young agreed with Lieutenant Ring's finding that Sergeant Hill's derogatory reference to Officer Greeno as “Whoregan” was more than a “slip of the tongue” and that he had allowed or participated in “jokes” by other officers regarding a fictitious relationship between Officer Greeno and the building's custodian.He determined that such actions by a supervisor constituted “gross misconduct” in violation of several department rules and regulations.Based on his prior disciplinary issues and Officer Greeno's allegations, Captain Young stated that he did not believe Sergeant Hill's unacceptable behavior was correctable and recommended that Sergeant Hill be terminated.

{¶ 10} Police Chief Gregory Horne reviewed the reports and recommendations from Lieutenant Ring and Captain Young and agreed that Sergeant Hill's conduct as set forth in the reports violated department rules and that Sergeant Hill should be terminated.Chief Horne sent Sergeant Hill a notice of disciplinary action, advising him of the rule violations he had committed and his proposed disciplinary action of termination based on Chief Horne's application of the department's “discipline matrix” to Sergeant Hill's offenses and disciplinary history.

{¶ 11} The city and the union are parties to a collective bargaining agreement (the “CBA”).The CBA incorporates the city's and police department's rules and regulations and requires that disputes between the city and the union concerning the application or interpretation of the CBA, including disciplinary issues, must be resolved through the CBA's grievance-arbitration procedure.Article 10.01 of the CBA¹ states:

The Union agrees that its membership shall comply with Police Department and City of Findlay Rules and Regulations, including those relating to working conditions, conduct, and performance.The Employer agrees that Police Department and City of Findlay Rules and Regulations, which affect working conditions, conduct, and performance shall be subject to the grievance procedure if they violate this Agreement.

{¶ 12}Article 4.01 of the CBA effective January 1, 2011 provides, in relevant part:

Unless expressly provided to the contrary by a specific provision of this Agreement, the Employer reserves and retains, solely and exclusively, all of its statutory and common law rights to manage the operation of its Department of Police.Such rights shall include, but are not limited to, the following: (a) to develop, revise, or eliminate work practices, procedures and rules in the operation of the Department of Police and to maintain discipline; * * * (c) to transfer, promote or demote employees, or to layoff, terminate or otherwise to relieve employees from duty for just cause * * *.²

Article 39.04 states that “[d]iscipline shall be imposed only for just cause.”³

{¶ 13} The discipline matrix is part of the police department's “Disciplinary/Recognition Procedures”(“disciplinary procedures”), re-issued March 1, 2012, which sets forth the department's “disciplinary system.”The stated purpose of the disciplinary procedures is “[t]o provide for compliance with Department policies and procedures by members of the Department, as well as provide for and to ensure consistency in disciplinary actions.”With respect to ...