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McGee v. Armstrong

United States Court of Appeals, Sixth Circuit

October 29, 2019

KEVIN V. MCGEE, Plaintiff-Appellant,

          Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:11-cv-02751-Sara E. Lioi, District Judge.

         ON BRIEF:

          Michael J. McGee, HARRINGTON, HOPPE & MITCHELL LTD, Warren, Ohio, for Appellant.

          Stephen P. Postalakis, David S. Kessler, HAYNES KESSLER MYERS & POSTALAKIS, INCORPORATED, Worthington, Ohio, for Appellees.

          Before: COLE, Chief Judge; MERRITT and LARSEN, Circuit Judges



         This appeal arises from Plaintiff Kevin McGee's termination from the Summit County Board of Developmental Disabilities, an institution of local government in Ohio. In this appeal, Plaintiff argues that the District Court erred in granting Defendants' motion to compel arbitration; denying Plaintiff's motion to vacate the arbitration award; and granting Defendants' motion for summary judgment regarding Plaintiff's breach of contract claims. For the reasons below, we AFFIRM.


         Plaintiff is a terminated former management employee of Defendant Summit County Board of Developmental Disabilities (the Board) as Director of Marketing, Public Relations, and Specialty Businesses. Plaintiff is also a Second Lieutenant in the Ohio Army National Guard, in which he has been an active member since 2008.

         Defendant Thomas Armstrong is the Board's Superintendent. He hired Plaintiff and was his immediate supervisor. Defendant Lisa Kamlowsky is the Board's Assistant Superintendent and Chief Legal Counsel. Armstrong and Kamlowsky are both management-level employees.

         Plaintiff worked under renewable one-year employment agreements from his hiring in 2002 until his termination in 2012. The employment agreement contains a broad arbitration provision in the "Contract Termination-Employee Discipline" section, which states:

During the term of the Contract, the Employee may be removed, suspended or demoted for cause pursuant to ORC 5126.23 . . .
In consideration for the compensation and other benefits set forth herein, and after specifically considering his WAIVER OF RIGHTS, the Employee agrees that the parties shall not use the statutory procedures set forth in ORC 5126.23 for the resolution of any matter regarding the removal, suspension or demotion of the Employee. Any dispute, claim or cause of action arising out of such removal, suspension or demotion shall be submitted to binding arbitration under the then existing rules of the American Arbitration Association.
The question of arbitrability must be raised by either party before the arbitrator hears the merits of the dispute. If a question of arbitrability is raised, the arbitrator may either rule on this issue or reserve ruling and hear the merits of the dispute before issuing a ruling on this question.
The decision of the arbitrator shall be final and binding upon the Board and the Employee. The parties expressly waive the procedures for appeal set forth in Ohio Revised Code Chapter 5126 in order to engage in this expedited, binding arbitration procedure.

(Emphasis added).[1]

         When Plaintiff joined the Ohio Army National Guard in 2008, his contract provided for "military leave in accordance with Board Policy." The Board policy regarding military leave, found in Plaintiff's employee handbook, [2] provided:

Non-bargaining unit employees who are members of the Ohio National Guard, Ohio Defense Corps, the Ohio Naval Militia, or other armed forces reserves are entitled to a military leave of absence from their duties without loss of pay for such time as they are in the military service, on field training, or active duty, for a period not to exceed thirty-one (31) days in any calendar year.
Employees must apply for military leave in advance by completing an Application for Leave form and submitting it, along with a copy of their orders, for approval.
The maximum number of hours for which the Agency must compensate an employee on military leave during any calendar year is one hundred and seventy-six (176) hours.

         Plaintiff asked Armstrong for up to ten weeks of military leave. After consulting the Board Personnel Committee, Armstrong declined Plaintiff's request but decided that, for service beyond 176 hours, Plaintiff would receive differential pay.[3] Plaintiff's 2008-09 contract[4]reflected this change:

5. Military Leave - The Employee shall be entitled to thirty-one (31) days of military leave. In the event the Employee is called or ordered to the uniformed services for longer than one month, Employee is entitled, during the period designated in the order, to a leave of absence and to be paid, during each monthly pay period of that leave of absence, the difference between the Employee's gross monthly salary and the sum of the Employee's gross uniformed pay and allowances received that month.

         In 2008, Ruth Pemberton, the Board's Payroll Supervisor, noticed that Plaintiff was going to exceed 176 hours of military leave at full pay for the calendar year. Pemberton notified Plaintiff of the issue, but Plaintiff maintained he was entitled to 31 days of military leave, not 176 hours. The Board mistakenly continued ...

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