McGee v. Armstrong, et al

Filing 161

Memorandum Opinion and Order: Plaintiff's motion to reopen and to appeal the arbitrator's decision (Doc. No. 156 ) is granted in part and denied in part. Plaintiff's request for reconsideration of, and/or to alter or amend, the July 3, 2014 Memorandum Opinion and Order is denied. Further, plaintiff's appeal from the arbitrator's decisions is also denied and those decisions are confirmed. This case is reopened for the sole purpose of addressing the portions of the second amended complaint that were not referred to arbitration, as set forth above. (Related Doc. No. 151 ). Judge Sara Lioi on 8/15/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN V. McGEE,
PLAINTIFF,
vs.
THOMAS L. ARMSTRONG, et al.,

DEFENDANTS.

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CASE NO. 5:11CV2751
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

Before the Court is plaintiff’s motion to reopen the case and to appeal an arbitrator’s
decision. (Doc. No. 156 [“Mot.”].) Defendants filed their opposition (Doc. No. 158 [“Opp’n”]),
and plaintiff filed a reply (Doc. No. 160 [“Reply”]). For the reasons and to the extent set forth
herein, the motion is granted in part and denied in part.
I. PROCEDURAL BACKGROUND
This case arose out of the termination of plaintiff’s employment by defendant County of
Summit Developmental Disabilities Board. Because plaintiff served in the Ohio Army National
Guard and was, upon occasion, called to active duty during his employment,1 his complaint alleged
not only wrongful termination of employment and various breaches of the employment contract,
but also discrimination and retaliation based upon his military status and service.
On July 3, 2014, this Court issued a Memorandum Opinion and Order (Doc. No. 151
[“MOO”]) granting defendant’s motion to compel arbitration with respect to most of the fourteen

1

Plaintiff was also called to active duty during the course of these proceedings. (See Doc. No. 10; Doc. Nos. 145,
148 and 150.)

causes of action in plaintiff’s second amended complaint, carving out only two claims2 that “do
not arise out of [his] removal, suspension or demotion[.]” (MOO at 20173 n.4, internal quotation
marks omitted.)4 The Court directed the clerk to mark the docket as “stayed” pending the
arbitration. (Id. at 2024.) On February 24, 2015, the Court directed the clerk to close the case for
administrative purposes, “subject to reopening if necessary, following arbitration.” (See, Order,
Doc. No. 155.)
According to the parties’ briefing on the instant motion, on March 9, 2016, the arbitrator
determined that all of the claims this Court previously identified as possibly subject to arbitration
were arbitrable, and, on January 25, 2017, the same arbitrator granted summary judgment in favor
of defendant as to all claims. (See Doc. Nos. 158-08 and 158-10.)
On February 21, 2017, plaintiff filed the instant “Motion to Re-Open Case and Appeal of
Arbitrator’s Decision.” Notwithstanding how plaintiff’s motion may be captioned, he makes three
requests of this Court: (1) to reconsider and vacate the MOO; (2) to vacate both the March 9, 2016
and the January 25, 2017 decisions of the arbitrator;5 and (3) to lift the stay and reopen the case
for purposes of addressing all claims, or, in the alternative, the two claims that were previously
retained by the Court.

The “carve out” involved the sixth cause of action and a portion of the twelfth cause of action alleging a breach of
contract with respect to plaintiff’s military leave pay and pay differential.
2

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
3

4

Plaintiff attempted to appeal from this order (see Doc. No. 152), but the court of appeals dismissed the appeal,
holding that, because the underlying case was stayed, not dismissed, it lacked jurisdiction. (Doc. No. 154) (McGee v.
Armstrong, No. 14-3750, slip op. at 2028 (6th Cir. Feb. 19, 2015) (quoting Bates v. 84 Lumber Co., L.P., 205 F. App’x
317, 325 (6th Cir. 2006) (“[O]ur court has held that the FAA permits appeals of orders compelling arbitration only
when they are issued in tandem with dismissals of the underlying litigation.”) (further citation omitted).)
Plaintiff’s motion very generally seeks to appeal “the Arbitrator’s decision.” (Mot. at 2030.) It appears that this
encompasses both decisions because his arguments attack not only the grant of summary judgment, but also the initial
determination that the claims were arbitrable.
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II. DISCUSSION
As a preface to any discussion of plaintiff’s motion, the Court notes that much of what is
contained therein is verbatim repetition of arguments raised and rejected at various stages of these
proceedings,6 right down to the typographical and grammatical errors.7 Plaintiff’s simple
disagreement with the Court’s previous order is insufficient reason to revisit issues that have
already been decided, and the Court declines any invitation to do so.
A.

Motion to Reconsider or to Alter or Amend the Judgment
Plaintiff’s motion clearly seeks either reconsideration of this Court’s ruling of July 3, 2014,

or to alter or amend that order. Essentially, plaintiff wants this Court to vacate the order and start
over. Plaintiff cites no rule of procedure and no case law that would entitle him to such relief at
this juncture.8
Sections 1.a. and 1.b. of plaintiff’s motion reassert that the arbitration clause in his
employment contract was erroneously applied to this dispute by the Court and, further, that it was
error to decide that the issue of arbitrability was an issue for the arbitrator himself to decide.

This verbatim repetition of arguments is plaintiff’s pattern, a practice previously noted by the Court. (See, e.g., MOO
at 2020, n.6.) It is apparent that plaintiff has one view of this case and has no intention, at any stage of the proceedings,
to respond to contrary views with anything but his pre-formulated arguments.
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For example, in the March 6, 2016 decision of the arbitrator, he states that:
Claimant asserts that merely because “USERRA and FMLA claims are legally permitted be [sic]
subject to an arbitration does not mean that that [sic] they must to be [sic] arbitrated.”

(Doc. No. 158-8 at 2103, errors noted in original.) This statement, with all the identical errors, is contained in both
plaintiff’s opposition to defendants’ motion to compel arbitration and the instant motion. (Compare Doc. No. 102 at
1231 and Mot. at 2034.) It is also contained in the plaintiff/appellant’s brief on jurisdiction filed in the Sixth Circuit
Court of Appeals. (See Case No. 14-3750, Document 16 at 15.)
The Federal Rules of Civil Procedure make no mention of motions to “reconsider.” Typically, such a motion is
treated as a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e), which must be filed “no later than 28
days after the entry of the judgment.” Plaintiff’s current request for reconsideration of the MOO entered on July 3,
2014 is untimely. Plaintiff’s other possible alternative is Fed. R. Civ. P. 60(b). A Rule 60(b) motion must be filed
“within a reasonable time” and, for certain enumerated reasons, “no more than a year after the entry of the judgment
or order[.]” Plaintiff has made no argument that this motion, filed two years and seven months after the challenged
judgment, is timely.
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Identical arguments were raised in plaintiff’s opposition to defendant’s motion to compel
arbitration (see Doc. No. 102), and were rejected by Court in the MOO. Plaintiff has failed to
identify any legal or factual error in the Court’s analysis. He merely disagrees with the decision,
as is evidenced by the fact that he has simply repeated his original arguments verbatim.
In Section 1.c. of his motion, plaintiff argues that the arbitration clause in his employment
contract is unconscionable, suggesting that all of the proceedings to date must, therefore, tumble
like a house of cards. In opposition, defendants argue that this issue was waived and is now moot
because it was raised for the first time in plaintiff’s objections to the Report and Recommendation
regarding defendants’ motion to compel arbitration, not in plaintiff’s actual opposition to that
motion to compel (nor, for that matter, in the complaint). In reply, plaintiff asserts that he “objected
to the Arbitration clause on the grounds of unconscionability in great detail in [his] Objection to
Magistrate’s Report and Recommendation of November 14, 2012 (Doc. #143) and in the Brief on
Jurisdiction of the Court of Appeals (Doc. #15)[.]” (Reply at 2134.)
What plaintiff argues may be true, but it is nonetheless unavailing. In the MOO on the
motion to compel arbitration, this Court noted:
Plaintiff also asserts that, if the employer contemplated that “[r]etaliation for
protected free speech and petition for redress of grievances would be encompassed
by the arbitration clause, then the clause “should be held unconscionable.”
(Objections at 1965.) This argument need not be addressed because it was never
raised before the magistrate judge.
(MOO at 2021, n.7, emphasis added.) It was plaintiff’s burden to timely raise the issue of
unconscionability and he did not do so, a fact pointed out in the R&R.9 Plaintiff has pointed to no

9

When addressing the first factor of the four-part test to compel arbitration set forth in Stout v. J.D. Byrider, 228 F.3d
709, 714 (6th Cir. 2000), the R&R found it satisfied “because Plaintiff admits the existence of the Employment
Contract and the arbitration provision and does not contend that the arbitration provision is unconscionable.” (R&R
at 1899.) This triggered a three-page argument in the objections as to unconscionability. Prior to that, there was not
even a whisper of unconscionability.

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case law in support of his position that he can untimely raise an issue, without suffering waiver.
This is not the law, and this Court still need not consider this belated argument. See, e.g., Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (“[b]ecause
[plaintiffs] could have, but did not, raise their argument before the district court ruled on the motion
to compel compliance, the argument is barred[]” and “[a] motion under Rule 59(e) is not an
opportunity to re-argue a case[]” (citing FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992));
Russell v. GTE Gov’t Sys. Corp., 141 F. App’x 429, 434 (6th Cir. 2005) (“motion to alter or amend
is not the proper vehicle to raise arguments that should have been made before judgment[]”)
(further citations omitted).
To the extent plaintiff’s motion seeks reconsideration of, or to alter or amend, the MOO of
July 3, 2014, it is denied.
B.

Motion to Appeal/Vacate Arbitrator’s Decisions
Plaintiff’s motion also seeks to “appeal” the arbitrator’s decisions, which is equivalent to

asking this Court to vacate the decisions.
Review of an arbitration award “is one of the narrowest standards of judicial review in all
of American jurisprudence.” Way Bakery v. Truck Drivers Local No. 164, 363 F.3d 590, 593 (6th
Cir. 2004) (internal quotation marks and citation omitted); see also Merrill Lynch, Pierce, Fenner
& Smith v. Jaros, 70 F.3d 418, 421 (6th Cir. 1995) (“If a court can find any line of argument that
is legally plausible and supports the award then it must be confirmed. Only where no judge or
group of judges could conceivably come to the same determination as the arbitrators must the
award be set aside.”)

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Ohio Rev. Code § 2711.1010 provides four circumstances when an arbitration award may
be vacated:
(A)

The award was procured by corruption, fraud, or undue means.

(B)

There was evident partiality or corruption on the part of the arbitrators, or
any of them.

(C)

The arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence
pertinent and material to the controversy; or of any other misbehavior by
which the rights of any party have been prejudiced.

(D)

The arbitrators exceeded their powers, or so imperfectly executed them that
a mutual, final, and definite award upon the subject matter submitted was
not made.

Plaintiff’s argument relies primarily upon sections (C) and (D), asserting that the arbitrator refused
to consider pertinent and material evidence, and displayed “manifest disregard of the law[.]” (Mot.
at 2046.)11
Interestingly, plaintiff supplied no copy of either decision of the arbitrator and no
administrative record. Notably, since the arbitrator’s January 25, 2017 decision granted summary
judgment, presumably, a motion for summary judgment and supporting and opposing briefs were
filed; but that record has not been provided to this Court. Were it not for defendants, who attached
uncertified copies of the arbitrator’s orders to their opposition brief, this Court would have nothing
to go on but the bald assertions of error in plaintiff’s motion, which provide no basis for review.

The Ohio Supreme Court has noted: “This statute is substantively equivalent to the analogous provisions of the
Federal Arbitration Act [9 U.S.C. § 10(a)], and we have often used federal law in aid of our application of the statute.”
Cedar Fair, L.P. v. Falfas, 19 N.E.3d 893, 895 (Ohio 2014) (citations omitted).
10

“Whether ‘manifest disregard of the law’ may still supply a basis for vacating an arbitrator’s award as ‘a judicially
created supplement to the enumerated forms of FAA relief’ after Hall Street is an open question.” Samaan v. Gen.
Dynamics Land Sys., Inc., 835 F.3d 593, 600 (6th Cir. 2016) (referencing Hall St. Assoc., L.L.C. v. Mattel, Inc., 552
U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008)); see also Assoc. of Cleveland Fire Fighters, Local 93 v.
Cleveland, No. 94361, 2010 WL 4684736, at *3 (Ohio Ct. App. Nov. 18, 2010) (rejecting the “manifest disregard”
standard as “incompatible with the very limited grounds for review set forth in R.C. 2711.10[]”).
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See, e.g., Samaan, 835 F.3d at 604 (“failure to substantiate his assertions with record evidence is
fatal to [plaintiff’s] claims[]”) (citing cases, including Jamoua v. CCO Invest. Servs. Corp., No.
09-13604, 2010 WL 891148, at *1, 5 (E.D. Mich. Mar. 10, 2010) (“Where, as here, the party
moving to vacate the award provides no transcript or record evidence, but presents only selfserving and conclusory allegations unsupported by any record evidence, it is impossible for this
Court to determine that the [arbitration] Panel was guilty of misconduct.”)).
Even if the copies of the orders supplied by defendants could be a proxy for an
administrative record for this Court’s review (which this Court does not assume), the strict
standards for vacating an arbitrator’s decision are not met. Plaintiff’s motion merely challenges
the outcome, arguing that “the [a]rbitrator disregarded a clearly established legal precedent in
making his determination[,]” (Mot. at 2047),12 and that “the [a]rbitrator exceeded his powers and
imperfectly performed his powers by refusing to hear substantial evidence that was pertinent and
material to the controversy and by ignoring explicit facts of military discrimination and animus
presented by the [d]efendant and proposed to be demonstrated during the arbitration hearing
through extensive witness testimony.” (Id. at 2047-48.)
Again, there is no record, but plaintiff’s argument seems to be no more than a dispute over
the arbitrator’s treatment of whatever facts were before him to support the elements of plaintiff’s
claims on which he bore the burden of proof.13
Plaintiff asserts: “That precedent was definite, clearly defined, and spelled out in [p]laintiff’s brief submitted to the
[a]rbitrator.” (Mot. at 2047.) Since plaintiff supplied no administrative record to back up this assertion, apparently this
Court is supposed to take plaintiff’s word for it that he both spelled out the precedent in his brief and that it was the
correct precedent.
12

The closest plaintiff comes to presenting an actual “fact” is his assertion that defendants sent him a notice before
his pre-disciplinary conference stating he had “conducted business for the U.S. Military during [his] regular working
hours for the Board[,]” and that disciplinary action was being taken for his “failure to timely complete various tasks
as directed.” (Mot. at 2049-50, 2051, citing “Ex. 1-J, Disciplinary Notice, dated April 2, 2012.”) The referenced exhibit
is not provided. It may or may not already be in the voluminous record of this Court. But the Court has no duty to
search the record on plaintiff’s behalf to help him make his case. See, e.g., Street v. J.C. Bradford & Co., 886 F.2d
13

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Plaintiff fails to meet the strict standard for vacating an arbitrator’s decision. To that extent,
his motion is denied.
C.

Motion to Reopen
Finally, plaintiff’s motion seeks to reopen the case to address all of the claims, or, in the

alternative, to address the two claims that were not sent to arbitration.
This portion of the motion is granted as to its request to reopen the case for adjudication of
the two remaining breach of contract claims: the sixth cause of action and a portion of the twelfth
cause of action dealing with his military leave pay and pay differential.
III. CONCLUSION
For the reasons set forth herein, plaintiff’s motion to reopen and to appeal the arbitrator’s
decision (Doc. No. 156) is granted in part and denied in part.
Plaintiff’s request for reconsideration of, and/or to alter or amend, the July 3, 2014
Memorandum Opinion and Order is denied. Further, plaintiff’s appeal from the arbitrator’s
decisions is also denied and those decisions are confirmed.
This case is reopened for the sole purpose of addressing the portions of the second amended
complaint that were not referred to arbitration, as set forth above.
IT IS SO ORDERED.

Dated: August 15, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

1472, 1480-81 (6th Cir. 1989) (it is not the district court’s duty “to search the entire record to establish that it is bereft
of a genuine issue of material fact.”). Plaintiff is expecting this Court to draw inferences and reach conclusions based
upon nothing. The Court declines.

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