[Cite as Dayton Pub. Schools v. Cummings Elmore , 2020-Ohio-820.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

DAYTON PUBLIC SCHOOLS Plaintiff-Appellee

v. LISA CUMMINGS ELMORE, et al. Defendant-Appellant : : : : : : : : : : Appellate Case No. 28480

Trial Court Case No. 2017-CV-3990 (Civil Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 6th day of March, 2020.

. . . . . . . . . . . JONATHAN HOLLINGSWORTH, Atty. Reg. No. 0022976, 6494 Centervill e Business Parkway, Centerville, Ohio 45459 Attorney for Plaintiff-Appellee SUSAN ZELLER DUNN, Atty. Reg. No. 0063893, 10921 Reed Hartman H ighway, Suite 111, Cincinnati, Ohio 45242 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

TUCKER, J.-2- {¶ 1} Lisa Cummings-Elmore 1 appeals from the trial court’s judgment of June 25, 2019, in which the court essentially confirmed the award entere d by the arbitrator following the arbitration of a dispute between Plaintiff-appell ee, Dayton Public Schools (“DPS”), and Defendant-appellant, the Dayton Education Associat ion (“DEA”). Presenting a single assignment of error, Cummings-Elmore argues that the court erred by confirming the award without modification. We find that Cum mings-Elmore lacks standing to challenge the court’s judgment, and this appeal is therefore dismissed. I. Facts and Procedural History {¶ 2} Cummings-Elmore was formerly employed by DPS as a teacher. On March 9, 2016, DPS sent her a notice informing her that she had been placed on paid

administrative leave in connection with an altercation between her and the principal of the school at which she worked. She was also informed that, until she received notice to the contrary from DPS, she would be regarded as a trespasser were s he to enter onto any DPS property. {¶ 3} On or about April 1, 2016, Cummings-Elmore accepted a temporary position teaching Spanish at Horizon Science Academy for a roughly four- month interval running from April 4, 2016, through July 31, 2016. In a letter dated M ay 25, 2016, DPS notified Cummings-Elmore that her acceptance of the temporary position a t Horizon Science Academy had been deemed a “constructive resignation” of her emp loyment with DPS, effective April 1, 2016. Transcript of Proceedings, Joint Exhi bit E, Apr. 26 and May 26, 2017. DPS indicated further that Cummings-Elmore’s constructiv e resignation would “be

1 The record is inconsistent as to whether the appellant’s name i s Cummings-Elmore or Cummings Elmore.-3- recommended to the Dayton Board of Education at [its] meeting o n June 21, 2016,” and that DPS also planned to seek recovery of compensation it had p aid her between April 1, 2016, and May 25, 2016. Id. At its meeting on June 21, 2016, the board accepted the purported resignation. {¶ 4} The DEA filed a grievance on Cummings-Elmore’s behalf, which DP S denied, and the grievance was then referred to arbitration. A hearing was held, beginning on April 26, 2017, and concluding on May 26, 2017, af ter which the arbitrator issued an award dated July 31, 2017. In the award, the arbitra tor determined that DPS had violated its collective bargaining agreement with the DEA, because that agreement had no terms “deal[ing] with paid administrative leave [or] wit h constructive resignation.” DEA’s Memorandum in Opposition to DPS’s Motion to Vacate, Exhib it A, Sept. 11, 2017. {¶ 5} DPS filed an application to vacate the award in the Montgomery County Court of Common Pleas on August 28, 2017, to which the DEA responded on September 11, 2017, with a memorandum in opposition and an application to con firm the award. The case was referred to the trial court’s magistrate, who entered a decision confirming the award on November 20, 2018, and the trial court largely adopted the magistrate’s decision in its judgment of June 25, 2019. On July 25, 2019, Cummings-E lmore filed a timely notice of appeal; the DEA has apparently elected not to partici pate. II. Analysis {¶ 6} After Cummings-Elmore filed her brief on August 23, 2019, DPS f iled a motion to dismiss on September 11, 2019, in which it argued tha t Cummings-Elmore lacks standing to prosecute this appeal. We entered a decision one w eek later overruling the motion, though we invited DPS to “make its arguments in its bri ef.” Decision and Entry-4- 1, Sept. 18, 2019. DPS thereafter filed a brief on October 9, 2019, recapitulating the arguments it presented in its motion, but Cummings-Elmore did n ot file a brief in reply. She did, however, address the issue of standing during oral arg ument. {¶ 7} Standing “is * * * a jurisdictional requirement” inasmuch as a prospective party’s “lack of standing vitiates the party’s ability to invok e the jurisdiction of a court” to hear an action. (Citations omitted.) Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 22. Where “an employee’s dis charge or grievance is arbitrated between an employer and a union under the terms o f a collective bargaining agreement, the aggrieved employee does not have standing to pet ition a [common pleas] court to vacate the award pursuant to R.C. 2711.10, unless the collective bargaining agreement expressly gives the employee an independent right to submit disputes to

arbitration.” Leon v. Boardman Twp. , 100 Ohio St.3d 335, 2003-Ohio-6466, 800 N.E.2d 12, ¶ 18; see also, e.g. , State ex rel. Hudak v. State Emp. Relations Bd. , 5th Dist. Stark No. 2013 CA 7, 2013-Ohio-2679, ¶ 35; Rush v. United Parcel Serv. , 9th Dist. Medina No. 07 CA 69-M, 2008-Ohio-1646, ¶ 10-12. The nearly identical lang uage of R.C. 2711.11 suggests that the same would be true of a motion to modify or c orrect an award. {¶ 8} Here, Cummings-Elmore’s employment with DPS was subject to the Master Contract Between the Dayton Education Association and the Dayto n City School District for December 21, 2013, Through June 30, 2017 (the “Master Contr act”). See DEA’s Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A. The only procedures established by the Master Contract for resolving disputes betwe en professional staff members and DPS are set forth in Article 3, captioned “Grievanc e Procedure,” though Article 2 and Article 32 include provisions directed at two spe cific types of disagreement.-5- Id. Under Section 2.08, DPS and the DEA agree “to utilize an alte rnate settlement dispute procedure through the Fe deral Mediation and Conciliatio n Service” for purposes of contract negotiations, and under Section 32.06, professional staff members have the right to appeal decisions made by the Local Professional Develo pment Committee to “the districtwide appeal board.” 2 Id. {¶ 9} Article 3, Section 3.01 defines a “grievance” as “any question or controversy between any Professional Staff Member or the [DEA]” and the “[D ayton] Board [of Education] [or] the Administration” regarding the “interpretati on, application of, compliance with or noncompliance with the provisions of [the Ma ster] Contract.” 3 (Emphasis added.) Id. Section 3.02.1 defines a “concern” as “any questions [sic] or issue between any Professional Staff Member or the [DEA]” and t he “[Dayton] Board [of Education] [or] the Administration” regarding “any complaint, d ispute, problem or other condition which is not a grievance as defined in Section 3.01.” (Emphasis added.) Id. A concern, like a grievance, may be resolved through the “proce dures set forth in Section 3.07,” except that “Level Four—Arbitration shall not be applica ble * * *, and the decision of the Superintendent shall be final.” Id. {¶ 10} Concerns and grievances are the only categories of dispute defi ned in the

2 As defined in Paragraph B of the preamble to the Master Contra ct, the word “board” when typed in all capitals refers to the “Dayton Board of Educa tion.” DEA’s Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A. In the phrase “districtwide appeal board” in Article 32, Section 32.06, the w ord is typed in all capitals, but the context suggests that this is likely a scrivener’s erro r.

3 Paragraph C of the preamble to the Master Contract defines the “Administration” as the superintendent of DPS and the superintendent’s administrative s taff. DEA’s Memorandum in Opposition to DPS’s Motion to Vacate, Exhibit A.-6- Master Contract, and inasmuch as Article 3 establishes the only procedures for resolving disputes between professional staff members and DPS, such a dis pute must be either a “concern” or a “grievance.” See id. Yet, a concern may not be resolved through arbitration, and under Section 46.01.1, an employee facing term ination of her employment has the right “to have [her] case decided by an arbitrator purs uant to [Section] 3.07.2(D).”

Id. The unavoidable conclusion, then, is that a challenge raised to the termination of a professional staff member’s employment constitutes a “grievance ” as that term is defined

in Section 3.01. 4 Id. {¶ 11} Under Section 3.07, a grievance may be resolved through either an informal procedure or a formal procedure. Id. The informal procedure amounts to little more than a conversation between the aggrieved staff member and the principal of the school at which the staff member is employed. See id. The formal procedure, which simultaneously provides an alternative to the informal procedur e, as well as an opportunity to contest the result of the informal procedure, co nsists of four “levels”: (1) the submission of a written grievance to which the principal of the school concerned must respond in writing; (2) an appeal to the superintendent, likewi se requiring that the superintendent respond with a written decision; (3) a mediation by mutual consent, at

4 Section 3.07.2(D)(1) contemplates the possibility of a single type of dispute other than a “grievance” being submitted to arbitration. DEA’s Memorandum in Opposition to DPS’s Motion to Strike, Exhibit A. In “the event it is claimed by th e Administration [i.e. the superintendent and the superintendent’s staff] that any matter filed as a grievance is not a grievance as defined in Section 3.01, such issue, as such, [s ic] may be appealed to arbitration, with the arbitrator having the authority to rule o n the arbitrability issue in addition to hearing any evidence or issuing any ruling in the m erits of the dispute.” Id. Even so, only “the Administration” has the right to challenge t he classification of a dispute as a “grievance.” Id.-7- which the “grievant shall have the right to be present”; and (4 ) an arbitration proceeding.

Id. Section 3.07.02(D)(1) states that “[o]nly the [DEA] shall hav e the right to appeal any grievance, as defined in Section 3.01[,] to arbitration.” 5 Id. An employee, consequently, is not a party to an arbitration proceeding under the Master Co ntract, because the Master Contract expressly permits only the DEA to seek arbitration. See Leon , 100 Ohio St.3d 335, 2003-Ohio-6466, 800 N.E.2d 12, at ¶ 18. {¶ 12} The provisions of Article 46 further support this interpretatio n. Under Section 46.01.1, “[a]ny employee who has received a notice of [ DPS’s] intention to terminate [her employment] shall have the right, within ten (10 ) days of [her] receipt of the notice, to either proceed with a case under [R.C.] 3319.16 * * *, or to have [her] case decided by an arbitrator pursuant to [Section] 3.07.2(D).” The first option is expressed— from an employee’s perspective—in the active voice, and the sec ond in the passive voice. In other words, Section 46.01.1 gives an employee facing termin ation of employment the right to choose between two options: (1) commencing a case unde r R.C. 3319.16 on her own behalf; or (2) requiring that the DEA, acting for her, subm it the matter to arbitration. Hence, the significance of Section 46.01.1 is not that it inves ts an employee with an independent right to appeal a termination of employment to arbi tration, but that in such a case, the DEA is affirmatively required to seek arbitration at the employee’s request. Otherwise, the decision whether to submit a dispute to arbitrat ion is left, under Section

5 Section 3.07(D)(3) states that “[n]either party will be permit ted to assert in any arbitration proceeding any ground or to rely on any evidence not previously * * * disclosed to the other party.” (Emphasis added.) DEA’s Memorandum in Oppositio n to DPS’s Motion to Vacate, Exhibit A. This language indicates that the Master Contract was drafted in contemplation of only two parties to the arbitration of grievan ces: the DEA and DPS.-8- 3.07.2(D)(1), to the DEA’s discretion. Id. {¶ 13} Arguing in its brief that Cummings-Elmore lacks standing to bri ng the instant appeal, DPS relies on the Ohio Supreme Court’s opinion in Leon and this court’s opinion

in Cox v. Dayton Pub. Schools Bd. of Edn. , 2d Dist. Montgomery No. 26382, 2015-Ohio620. The Cox case involved the termination of a teacher whose employment wa s subject to an earlier, albeit substantially similar, draft of the Maste r Contract. See Cox at ¶ 4-5. The DEA initiated an arbitration challenging the validity of DP S’s decision to terminate the employment of the appellant, Ms. Cox, and in the same proceedin g, it argued that DPS had, in advance of terminating Cox’s employment, violated the M aster Contract by placing her on unpaid leave and by refusing to continue a disciplinary hearing. See id. at ¶ 5-8. Following the arbitrator’s determination that DPS “had good and just cause” for the termination, the DEA declined to initiate an action under R.C. Chapter 2711, prompting

Cox to do so herself. See id. at ¶ 10. {¶ 14} DPS contends that in the Cox opinion, we “drew a distinction between * * * grievances,” which are “governed by one provision in the Master Contract,” and terminations, which are “governed by different provisions.” Ap pellee’s Brief 15. Thus, as DPS reads the opinion, we held that Cox “had standing to pur sue judicial review [of the arbitrator’s decision regarding] her termination,” but not to pursue judicial review of the arbitrator’s decision regarding her grievances.” Id. {¶ 15} We were concerned in Cox primarily with the allegation that the DEA

initiated the arbitration of Cox’s termination without her cons ent, which we characterized as a violation of her statutory right to challenge her terminat ion under R.C. 3319.16. See

Cox at ¶ 21-23 and 26. As part of our analysis, we explained that whereas Section-9- 3.07.2(D)(1) of the Master Contract applied generally to all gr ievances, Articles 46 and 48 of the Master Contract set forth additional provisions applicab le specifically to terminations of employment. See id. at 20. Construing Articles 3, 46 and 48 collectively, we concluded that Cox had “standing in the termin ation process,” given that Article 46 accorded her the right to choose whether to proceed with an action under R.C. 3319.16 on her own behalf, or to demand that the DEA initiate a n arbitration. See id. at ¶ 23. {¶ 16} Although the reading of Cox suggested by DPS is partly warranted by the text of the opinion, particularly by the assertion that “Sectio n 46.01.1 of the Master Contract [gave Cox] the independent right to submit her termina tion to arbitration,” we recognized that the Ohio Supreme Court’s holding in Leon was controlling. Id. at ¶ 23- 24. We remarked, for instance, that “[t]here is no question th at a teacher has standing to appeal her termination to [a] common pleas court, if she cho oses the statutory procedure rather than the arbitration procedure.” (Emphasis ad ded.) Id. at ¶ 23. Unfortunately, we were not sufficiently scrupulous in different iating between a teacher’s standing to commence an action under R.C. 3319.16, and a teache r’s right under the Master Contract to require that the DEA initiate an arbitration regarding the termination of her employment. {¶ 17} In the latter situation, we continue to adhere to the Ohio Supr eme Court’s holding in Leon , 100 Ohio St.3d 335, 2003-Ohio-6466, 800 N.E.2d 12, according to which a teacher whose employment is subject to a collective bargainin g agreement “will generally be deemed to have relinquished [her] right to act ind ependently of [her] union in all matters related to or arising from the [agreement], exce pt to the limited extent that-10- the agreement explicitly provides to the contrary.” (Emphasis added.) Id. at ¶ 17, citing Vaca v. Sipes , 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Retail Clerks Internatl. Assn., Local Unions Nos. 128 & 633 v. Lion Dry Goods, Inc. , 341 F.2d 715, 720-721 (6th Cir.1965). Our opinion in Cox should not be construed to conflict with the Court’s holding in Leon or to create an exception to that holding with respect to terminations of employment. {¶ 18} Cummings-Elmore’s employment with DPS was subject to that versi on of the Master Contract which was effective from December 21, 2013, until June 30, 2017. The contract included no provision explicitly investing her wit h standing to seek arbitration independently of the DEA, meaning that she was not a party to t he arbitration proceeding. As a result, Cummings-Elmore lacks standing to prosecute this a ppeal. See, e.g. , Thompson v. Summit Pain Specialists, Inc. , 9th Dist. Summit Nos. 27635 & 27638, 2016- Ohio-7030, ¶ 35. {¶ 19} Finally, we note that Cummings-Elmore filed a motion on Decembe r 4, 2019, in which she requests that we enter an order directing DP S “to show cause why [it] should not be held in contempt of court” for “deliberately fail [ing] to comply” with the terms of the arbitrator’s award. Motion for Contempt and Declaratory Judgment 3, Dec. 4, 2019. We may not consider the motion, however, in the absence of subject matter jurisdiction, which “is the power conferred upon a court, eithe r by constitutional provisions or by statute, to decide a particular matter or issue on its me rits.” In re B.P. , 11th Dist. Trumbull No. 2011-T-0032, 2011-Ohio-2334, ¶ 30, citing State ex rel. Jones v. Suster , 84 Ohio St. 3d 70, 75, 701 N.E.2d 1002 (1998). Because “subject m atter jurisdiction defines the competency of a court to render a valid judgment, it cannot be waived.” Id. at ¶ 31,-11- citing Time Warner AxS v. Pub. Util. Comm. , 75 Ohio St. 3d 229, 661 N.E.2d 1097 (1996). {¶ 20} R.C. 2711.09, 2711.10 and 2711.11 allow “any party to [an] arbi tration [to] apply to the court of common pleas” for an order confirming, mo difying or vacating the award entered by the arbitrator. (Emphasis added.) Under R.C. 2711.16, subject matter “[j]urisdiction [over] judicial proceedings provided for by [R.C.] 2711.01 to 2711.14, inclusive, * * * , is generally in the courts of common pleas,” and “actions and proceedings brought under such sections [of the Revised Code] shall be brou ght either in the court of common pleas of the county designated by the parties to the arb itration agreement as provided in [R.C.] 2711.08 * * *, or, whether or not such desig nation has been made, in the court of common pleas of any county in which a party in int erest resides or may be

summoned.” 6 (Emphasis added.) In other words, R.C. 2711.16 “vest[s] gene ral subject matter jurisdiction for confirmation proceedings in the courts of common pleas of the state,” and the jurisdiction of appellate courts is concomitant ly “confined to [reviewing] order[s] issued by * * * common pleas court[s] confirming, modi fying, vacating, or enforcing [the underlying] award[s].” United Union of Roofers, Waterproofers & Allied Trades, Local No. 44 v. Kalkreuth Roofing & Sheet Metal , 2019-Ohio-2797, ___ N.E.3d ___, ¶ 29 (11th Dist.); Buchholz v. W. Chester Dental Group, Inc. , 12th Dist. Butler No. CA2007-11-292, 2008-Ohio-5299, ¶ 21. {¶ 21} Here, because “the arbitration award was confirmed by the [tria l] [c]ourt,” Cummings-Elmore asks that we “reinstate [her teacher’s and prin cipal/administrator’s licenses]” and “hold DPS in contempt” until it pays damages to which she “believe[s] she

6 R.C. 2711.08 permits the “parties to [an] arbitration agreemen t [to] designate therein the county in which the arbitration shall be held and the award made.”-12- is entitled” pursuant to the award. Motion for Contempt and De claratory Judgment 9-11. We lack subject matter jurisdiction to consider the motion, and as a result, we order that

it be stricken from the record.

III. Conclusion {¶ 22} Cummings-Elmore was not a party to the arbitration proceeding i n which the DEA challenged the termination of her employment, and she c onsequently lacks standing to appeal from the trial court’s judgment of June 25, 2019. Therefore, her appeal is dismissed. In addition, because this court lacks sub ject matter jurisdiction to consider the motion filed by Cummings-Elmore on December 4, 201 9, the motion is hereby stricken.

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WELBAUM, P.J. and HALL, J., concur.

Copies sent to: Jonathan Hollingsworth Susan Zeller Dunn William Steele Hon. Michael W. Krumholtz