AMERICAN ARBITRATION ASSOCIATION

February 18, 2019

In the Matter of:

City of Cleveland )
) Case No. 01-18-0002-0634
and ) Scott Aldridge, Grievant
)
Cleveland Police Patrolmen’s Association )

APPEARANCES

For the City:

Ami Patel, Attorney

William Menzalora, Assistant Chief Law Director
Michael McGrath, Safety Director
Calvin Williams, Chief of Police
Joellen O’Neill, Deputy Chief
Robert Tucker, Lieutenant, Inspection Unit

For the Union:

Henry Hilow, Attorney
Marissa Serrat, Attorney
Jeffrey Follmer, President
Scott Aldridge, Grievant
David Medina, Lieutenant
Stephen McGrath, Police Officer
Charles McGeever, Police Dispatcher
Rachell Bottone, Sergeant

Arbitrator:
Nels E. Nelson
 BACKGROUND

The instant dispute involves the City of Cleveland and the Cleveland Police Patrolmen’s

Association. The city maintains a Division of Police in the Public Safety Department. The

Division of Police consists of the ranks from patrol officer through chief. The union represents

the patrol officers employed by the Division of Police.

The grievant is Scott Aldridge. He completed the 124th Cleveland Police Academy and

has been a Police Officer in the City of Cleveland for over 10 years. In April 2014, the grievant

completed a training program for Field Training Officers offered by the Academy. In addition,

he took numerous other training courses, including the Cleveland Division of Police Crisis

Intervention Training, which is a 40-hour course focusing on dealing with persons in crisis using

tools such as de-escalation. The grievant also has an Associate’s Degree in Law Enforcement

from Cuyahoga Community College.

The events leading to the grievant’s suspension occurred on November 12, 2014. At 8:13

p.m. that day, a call came from Ansel Road where the caller, Joell Anderson, complained that his

sister, TA, who had a history of psychiatric problems, was acting belligerent and the family was

concerned. 1 Officers Antonio Muniz and Stephen McGrath responded at 9:31 p.m. 2 Muniz and

S. McGrath interviewed TA and her family members. They asked Joell Anderson, who was

upsetting TA, to leave the area. The officers found that TA was compliant, had taken her

medicine, and was not a threat to harm herself or others. Muniz and S. McGrath left the scene at

9:59 p.m.

1
TA was involuntarily admitted to Widener Laurelwood Center for Behavioral Medicine from July 30, 2014, to
September 3, 2014, and from September 10, 2014, to October 31, 2014. She was 37 years old, 5'6" tall, and weighed
251 pounds.
2
Muniz was a field training officer and S. McGrath was a probationary officer.

1
 At 10:46 p.m., Theresa Overton, Joell Anderson’s fiancé, called the police and

complained that TA was acting combative. At 10:51 p.m. the grievant, serving as a FTO, and

Bryan Myers, a probationary officer, arrived at the scene. The grievant spoke to TA and other

family members. The parties agree that the grievant and Myers did an excellent job de-escalating

the situation and convincing TA to go to the hospital in accordance with the Division’s policies

and his training.

The grievant and Myers attempted to place TA in the back seat of their cruiser for

transportation to the hospital. However, when Joell Anderson yelled at TA that she was going to

jail, TA began to struggle and rolled out of the cruiser onto the ground. Eventually, the grievant

and Myers were able to handcuff TA as she lay face down on the ground. Because of the use of

less than lethal force, the grievant and Myers called Sergeant Rachell Bottone, a District 3,

Section Supervisor, at 11:21 p.m. and again at 11:22 p.m.

At some point, while TA lay on the ground face down in handcuffs, she stopped

struggling and closed her eyes and starting making snoring or grunting noises. The grievant

testified that he checked TA’s breathing and pulse and found them to be normal. Joell Anderson

told the two officers that TA may be “fake sleeping” and that such was not uncommon when she

was taking her medication.

Bottone arrived at the scene at approximately 11:34 p.m. She found that TA was

unconscious but breathing. Bottone turned TA on her back to ease her breathing and immediately

ordered the grievant to call EMS. EMS arrived at 11:44 p.m. and transported TA to the

Cleveland Clinic Emergency Department where she was pronounced dead at 12:30 a.m. on

November 13, 2014.

2
 As required in the case of a death in custody, the Homicide Unit conducted a criminal

investigation and Internal Affairs conducted an Administrative Investigation. The Homicide Unit

conducted interviews, took statements, and filed reports. On January 26, 2015, the Internal

Affairs Unit issued its report recommending disciplinary charges against the grievant and Myers

for failing to timely contact EMS when a medical situation arose.

The grievant’s Garrity interview took place on November 28, 2014. During the interview,

the grievant acknowledged that TA suddenly stopped being active, closed her eyes, and started

making snoring sounds. He stated that when he asked Joell Anderson about TA’s sudden change,

Joell Anderson told him that she sometimes plays “possum.” (Joint Exhibit 30 at 34:00 minutes)

At that point, the grievant started checking TA’s pulse and breathing. He indicated that he then

called Bottone regarding the use of nonlethal force and that as soon as she arrived, she turned TA

on her back to ease her breathing and ordered the grievant to call EMS.

The Cuyahoga County Coroner issued his report on January 8, 2015. He determined that

TA’s death was a homicide caused in part by being physically restrained in a prone position. As

a result of potential criminal charges against the grievant, the criminal investigation was

transferred to the Cuyahoga County Prosecutor who appointed a Special Prosecutor.

On February 9, 2015, the city issued disciplinary charges against the grievant.

Specification # 1 of the charges indicates the following:

On November 12, 2014, it was determined that you … failed to notify EMS in a
timely fashion when it became apparent the respondent that you were in contact with
was in need of medical assistance. (Joint Exhibit 7, page 2)

The charging letter alleged numerous violations of the Manual of Rules, the General Police

Orders, and the Civil Service Rules.

3
 On February 15, 2015, Safety Director Michael McGrath conducted a pre-disciplinary

hearing. 3 At the hearing, the witnesses included Bottone and the grievant. Bottone testified that

when she arrived at the scene, TA was unconscious but breathing and she ordered the grievant to

call EMS. The grievant stated that Joell Anderson was the instigator and taunted TA about going

to jail. He also reported that after a few minutes, TA, who was laying prone on the ground in

handcuffs, closed her eyes and became quiet. The grievant testified that Joell Anderson told him

that TA was playing “possum” and that it was not unusual for her to “crash” because of the

medications she was taking. The grievant said he had taken TA’s pulse and checked her

breathing. 4

At the conclusion of the hearing, the union asked the city to hold any disciplinary

decision in abeyance until after the criminal investigation was completed. On May 4, 2015, the

city agreed to delay the release of its disciplinary decision with the proviso that the city would

release the decision not later than seven business days after the County Prosecutor released the

results of his review.

When the investigation was transferred to Cuyahoga County for further investigation, the

County Sheriff interviewed many of the same witnesses to the November 12, 2014, incident. As

part of the investigation, the grievant and Myers provided written statements. The city

complained that the grievant’s statement “omits the most critical fact that the Grievant

previously reported in his Garrity statement and at his pre-disciplinary hearing -- that he checked

[TA’s] pulse and breathing prior to Sgt. Bottone’s arrival” and that the grievant “reports for the

3
On January 26, 2015, Lieutenant Robert Tucker submitted the administrative review to Lieutenant Monroe Goins
who reviewed it and forwarded it to Brian Heffernan, the Commander of the Bureau of Integrity Control, who
signed the report and forwarded it to the Deputy Chief Joellen O’Neill. She reviewed the report and recommended
retraining for the grievant. O’Neill then forwarded the report to Chief Calvin Williams who forwarded it to M.
McGrath, who hears all cases involving potential penalties from a ten-day suspension to termination.
4
There is conflicting testimony about when and how many times the grievant checked TA’s pulse and breathing.

4
first time that [TA] was sitting up after Sergeant Bottone arrived.” (City Post-Hearing Brief, page

18) The union responded that the grievant’s statements have remained consistent and truthful

with what occurred on November 12, 2014.

On February 16, 2016, the Cuyahoga County Prosecutor’s Office recused itself from the

case. It did so because it concluded that despite at least two internal reviews to ensure that no

Garrity material was in the case file, the Prosecutor’s Office received and reviewed Garrity

material. The Prosecutor’s Office asked the Cuyahoga County Court of Common Pleas to

appoint the Special Prosecutions Section of the Ohio Attorney General’s Office to the case.

Since furnishing the Cuyahoga County Coroner’s report to the Attorney General’s Office

would violate the grievant’s Garrity rights, the Special Prosecutor had to determine the cause and

manner of TA’s death. He selected Dr. Kent Harshbarger, the Monroe County Coroner, to

conduct the examination. Harshbarger found that TA’s death was the result of arteriosclerotic

cardiovascular disease, including a 70% to 80% narrowing of the left anterior descending

coronary artery and 30% narrowing of the left circumflex artery. Harshbarger also noted that the

grievant was taking Resperidol/risperidone that increased the risk of a cardiac event. He

concluded that “it would appear that [TA] suffered no significant chest compression and that

[TA’s] sudden collapse was more consistent with a cardiac event.” (City Exhibit 13 and Union

Exhibit B, page 2)

In September 2017, the Special Prosecutions Section of the Attorney General’s Office

began presenting the facts to a Cuyahoga County Grand Jury. On February 2, 2018, the Grand

Jury filed a “No Bill” with the Clerk of Courts.

5
 At the conclusion of the county’s criminal investigation, the union asked the city to

convene a supplemental pre-disciplinary hearing to provide new evidence. On February 8, 2018,

the city agreed to the union’s request.

The supplemental pre-disciplinary hearing was held on February 26, 2018. The union

presented the first coroner’s report, which identified TA’s death as a homicide; Harshbarger’s

report, which stated that TA’s death was the result of arteriosclerotic cardiovascular disease; a

February 2, 2018, report from the Special Prosecutor, including a copy of the Cuyahoga County

Sheriff’s investigation as well as typewritten statements from the grievant and Myers; a

screenshot of a Facebook page for Theresa Overton, which indicated she was a registered nurse;

and a Chief’s Commendation to the grievant dated April 8, 2008, for immediately notifying EMS

of a non-fatal accident. The city claims that none of the “new” evidence was relevant because

none of it was known to the grievant on November 12, 2014, when he failed to timely contact

EMS.

On March 12, 2018, M. McGrath issued his disciplinary decision. He stated:

Upon review of the evidence presented by the Division, the memorialized record, as
well as the arguments of you and your representatives, I find you “Guilty” of the
administrative charges. Specifically, you failed to timely notify EMS, in violation of
the General Police Orders, Manual of Rules and Civil Service Rules.

Therefore, I am issuing you a ten (10) work day suspension without pay (Group III
offenses, first offense). This suspension shall be served on consecutive working days.
(Joint Exhibit 17, page 2)

On March 14, 2018, the union filed a grievance on behalf of the grievant. It charged that

the grievant was suspended without just cause in violation of the collective bargaining

agreement. The union asked the city to rescind the discipline, remove it from the grievant’s

record, pay him for any time missed, and otherwise make him whole for any losses he may have

suffered.

6
 When the grievance was not resolved, the union appealed the case to arbitration. The

Arbitrator was informed of his appointment on June 13, 2018. The hearing took place on

September 18, 2018, and October 2, 2018. Post-hearing briefs were received on January 4, 2019.

ISSUE

The issue as agreed to by the parties is:

Was there just cause for the grievant’s ten-day suspension? If not, what is the proper
remedy?

RELEVANT CONTRACT PROVISIONS

Article IV
Management Rights

(4) Except as expressly limited by the terms of this Contract, any and all rights
concerned with the management of the Division of Police are the exclusive and sole
responsibility of the employer. It is further recognized that the City has the right to:

***

(e) Suspend, discipline, demote or discharge for just cause, lay off, transfer,
assign, schedule, promote, or retain employees;

***

Article VII
Listing of New Employees, Rules and Orders, Personal Service Records

***

(10) … Verbal disciplinary warnings and disciplinary written warnings shall be

removed from a Police Officer’s record after six (6) months, but all other disciplinary
actions or penalties will be removed after two (2) years from the date the discipline
was administered.

***

Article XXIX
Suspension from Duty

(71) The Chief of Police may suspend an officer for ten (10) days or less for
disciplinary reasons. If the Chief recommends a greater penalty, then the Director of

7
 Public Safety will hear the disciplinary charge filed against the officer and render
judgment on such charge and set the disciplinary penalty, if any. The Director of
Public Safety is responsible for more severe disciplinary penalties and he shall hear
such matters as soon as practicable following their filing. All decisions of the Director
of Public Safety shall be subject to the Grievance Procedure beginning at Step 3-A.

In addition to the chief, a deputy chief can conduct a pre-disciplinary hearing and
make recommendations to the Chief regarding discipline up to and including a ten
(10) day suspension.

(72) In the event that administrative charges are brought against an officer by the
Chief of Police and such charges arise out of the same facts and circumstances which
are also the subject of a criminal indictment or criminal complaint pending against the
officer, then the following procedures shall apply:

(a) If the criminal indictment or criminal complaint alleges a violation of a

misdemeanor offense, then the officer can be reassigned pending resolution of
the criminal charges.

(b) If the criminal indictment or criminal complaint alleges a violation of a

felony offense, then the officer shall be relieved of duty without pay and the
administrative hearing continued pending resolution of the criminal charges…
As soon as practicable following resolution of the criminal charges, the
administrative hearing shall be reconvened and the administrative charges
disposed of in accordance with the judgment of the Director of Public Safety.
If the Director of Public Safety does not sustain the administrative charges,
then the officer shall be returned to duty and made whole.

(73) Nothing in this article shall be construed as precluding the preference and
hearing administrative charges alleging violations of the Civil Service rules or the
manual of rules and regulations of the Division of Police even though such
administrative charges may arise out of the same facts and circumstances which are
the subject of a criminal proceeding. No arbitrator or other party shall substitute his
judgment for the judgment of the Chief of Police or Director of Public Safety in
applying the provisions of this article.

***

CITY POSITION

The city argues that it had just cause to discipline the grievant. It charges that “the

Grievant did not timely contact EMS for TA on November 12, 2014, despite the fact he knew

8
that she was on some unknown medications, suddenly stopped her activity, closed her eyes,

started making snoring sounds, and Grievant felt the need to check her pulse and breathing ...”

(City Post-Hearing Brief, page 26) It adds that “the Grievant’s failure to timely contact EMS

contradicts the Division’s policies and expectations, all of the Grievant’s training as well as his

own prior experience …” (Ibid.)

The city suggests that the standards for just cause are clear. It points out that in Clean

Coverall Supply Co., 133 LA 272 (1966), Arbitrator Witney held;

There are two proof issues in the arbitration of discipline and discharge cases. The
first involves proof of wrongdoing; the second, assuming that guilt of wrongdoing is
established and that the arbitrator is empowered to modify penalties, concerns a
question of whether the punishment assessed by management should be upheld or
modified.

The burden of proof is generally held to be on the employer to prove guilt of

wrongdoing, and probably always so where the agreement requires just cause for
discipline.

The city notes that in Sysco Indianapolis, 133 LA 705, 713-714 (2014), Arbitrator Kininmonth

reported that “Arbitrators regularly hold employers to a preponderance of the evidence standard

to demonstrate just cause.”

The city contends that its policy and expectations are that police officers will

immediately notify EMS when a medical situation arises. It states that the grievant knew this

through his training, a commendation he received, and his experience. The city indicates that

“the Grievant … admits that he questioned [TA’s] physical state and went so far as to check her

vitals for approximately seven (7) minutes while she was still in a prone position with eyes

closed and making a snoring/grunting sound.” (City Post-Hearing Brief, page 27)

The city maintains that the grievant failed to call EMS in a timely manner. It observes

that he knew that TA was in distress for 7 to 11 minutes while he took her pulse and monitored

9
her breathing but he failed to contact EMS. The city reports that the grievant failed to call EMS

until Bottone arrived and ordered him to do so. The city claims that this establishes that it

demonstrated by a preponderance of the evidence that it had just cause to suspend the grievant

for ten days.

The city argues that the facts known to the grievant should have prompted him to call

EMS. It points out that the grievant knew that the city’s expectation was that he would call EMS

in a timely manner and that Rule 4.14 of the Manual of Rules states that “personnel shall give

assistance to injured and sick persons and obtain proper transportation to the nearest hospital.”

The city contends that the grievant knew that TA suffered from a medical or mental

condition. It acknowledges that the grievant did not have precise or accurate knowledge of her

medical or mental condition and relied on what family members told him, i.e., TA suffered from

schizophrenia and bipolar disease. The city acknowledges that a police officer would rarely

know a person’s medical history but emphasizes that “officers are trained to react to the

observations and facts before him or her.” (City Post-Hearing Brief, page 28)

The city maintains that the grievant knew that TA had taken some unknown medications.

It points out that he had no accurate information about the drugs she had taken but relied on what

her family members told him. The city notes that “even if he did have accurate information about

[TA’s] medications, as a police officer, he is not trained to assess the effects and side effects of

medications and whether they are appropriately safe or unsafe.” (City Post-Hearing Brief, page

29) It adds, however, that “the grievant was aware of some medical conditions and the use of

medications combined with the physical state of TA warranted a prompt call to EMS.” (Ibid.)

The city argues that the grievant knew that TA’s physical state declined. It observes that

the grievant reported in his Garrity statement that she was initially “active, kicking and yelling

10
and suddenly stopped, her eyes closed and that she began snoring or making another odd

breathing/growling sounds.” (Ibid.)

The city contends that TA’s medical condition prompted the grievant to monitor TA’s

breathing and take her pulse. It states that the grievant’s Garrity statement and his statements at

his pre-disciplinary hearing confirm that he took TA’s pulse several times before Bottone

arrived. The city indicates that the grievant admitted that police officers are not trained to take a

person’s pulse but despite this fact, he “decided to rely on his ‘untrained skills’ to take [TA’s]

pulse to determine whether or not EMS should be called.” (City Post-Hearing Brief, page 30)

The city maintains that the grievant relied heavily on Joell Anderson’s statements. It

points out that he told the grievant that his sister “fakes sleeping when she is on her medication.”

(Ibid.) The city notes, however, that while the grievant relied on this statement, the grievant

testified that Joell Anderson instigated the situation by yelling and taunting his sister. It adds that

he also attacked Joell Anderson’s credibility based on his criminal record. The city asks, “how

Grievant can reconcile the confusing conflict that he raises pertaining to the credibility of Joell

Anderson -- he cannot be believable only when it is convenient for the Grievant.” (City Post-

Hearing Brief, pages 30-31)

The city argues that Bottone’s testimony and statement are entitled to minimal weight as

to what was within the grievant’s knowledge and observation at the time he should have called

EMS. It observes that she does not know the situation before she arrived but when she arrived on

the scene, “she immediately addressed [TA’s] medical condition by getting her out of the prone

position and ordering the Grievant to contact EMS.” (City Post-Hearing Brief, page 30) The city

reports that Bottone’s written statement from November 14, 2014, confirms that when she

arrived TA was breathing but unconscious. (Joint Exhibit 4)

11
 The city contends that the testimony of S. McGrath should be ignored. It states that he

testified that he never spoke to the grievant about his observations on the morning of November

12, 2014. The city indicates that he also testified that he was unaware of what the grievant

observed or encountered when the grievant went to the Anderson residence later that day.

The city maintains that the fact that TA’s family members did not prompt the grievant to

call EMS is irrelevant. It points out that it is not necessary for someone to tell an officer that

EMS is needed. The city notes that a police officer is required to use his training, experience, and

observations to determine whether to call EMS. It claims that the fact that the grievant found it

necessary to take TA’s pulse and monitor her breathing undermines his position that there was

no medical situation.

The city argues that at the arbitration hearing, virtually every officer who testified stated

that they had never checked a person’s pulse and then did not call EMS. It observes that M.

McGrath and Calvin Williams, the Chief of Police, testified they had never checked a person’s

pulse and not called EMS and David Medina, the union’s vice president and an instructor at the

Police Academy for 21 years, testified that he did not recall checking anyone’s pulse while on

duty. The union reports that Jeffrey Follmer, the union president, testified that he checked a

person’s pulse but did not call EMS because he was able to wake up the intoxicated person.

The city contends that the evidence regarding Overton being a registered nurse is not

probative of the circumstances and information the grievant had on November 12, 2014. It states

that the grievant admitted that he did not know that she was a registered nurse or a teacher at

Remington College until after the incident. The city indicates that in any event, the fact that she

did not demand that the grievant call EMS “does not change Grievant’s obligations to protect

and preserve the safety and health of someone.” (City Post-Hearing Brief, page 32)

12
 The city maintains that the union’s arguments require the Arbitrator to look at the

incident with 20/20 hindsight. It observes that the union “picks apart every aspect of the

subsequent investigation, details the special prosecutor’s report, asks the Arbitrator to consider

the toxicology report and the subsequent coroner’s report, and questions the credibility of

witnesses.” (City Post-Hearing Brief, page 33) The city claims that the union is asking the

Arbitrator to look beyond what the grievant knew on November 12, 2014, when he made the

decision not to timely contact EMS.

The city argues that the courts avoid using hindsight when reviewing the conduct of a

police officer. It cites Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1985), which deals

with the use of force. The city points out that the court stated that “the ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” (Ibid.) It notes that the court also stated that “the

calculus of reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly

evolving -- about the amount of force that is necessary in a particular situation.” (Ibid.)

The city contends that while the instant case does not involve the split-second decisions

regarding the use of force, the Arbitrator should consider only the facts known to the grievant

when he decided not to call EMS. It states that “when reviewed in that light and the significant

unknowns to the Grievant about [TA’s] physical state, he did not exercise appropriate judgment

or his training.” (Ibid.) The city indicates that as a result the grievant “delayed in timely

contacting EMS.” (Ibid.)

The city maintains that the union’s attempt to expand the scope of the grievance to

include the grievant’s restricted duty assignment is inappropriate. It observes that the language of

13
the grievance is based on a claim that there was not just cause for the grievant’s ten-day

suspension. It adds:

There is no just cause requirement for the Chief to assign someone to restricted duty.
Rather, the CBA and Article IV provide the management rights to transfer or assign
personnel and Article XXIX more specifically permits the Chief to assign someone to
restricted duty under the circumstances. (City Post-Hearing Brief, page 34)

The city cites the decisions of Arbitrators Alan Miles Ruben in City of Cleveland and

Cleveland Police Patrolmen’s Association; AAA Case No. 01-16-0000-8181; July 3, 2017, and

Hyman Cohen in City of Cleveland and Cleveland Police Patrolmen’s Association; AAA Case

Nos. 01-0002-8370, 01-0002-8369, and 01-0002-8371; February 5, 2006. It reports that they

held that an assignment to restricted duty and a refusal to allow overtime assignments and

secondary employment were not a violation of the contract and were well within its management

rights. (City Post-Hearing Brief, Attachments 2 and 3)

The city charges that the Kopchak and Yasenchack cases summarized in the June 26,

2016, Division of Police, Police Discipline Notice, are not comparable to the instant case. (Union

Exhibit H) It states that the union could not present any evidence about the facts in the Kopchak

or Yasenchack cases, which involve failures to request EMS in a timely manner. The city

acknowledges that Follmer confirmed that in both of the cases, the Chief dismissed the charges

against the officers.

The city dismisses the union’s argument that the subsequent investigation of the incident

should have received more consideration. It acknowledges that “while the cause of death

changed and witnesses may have turned on the Grievant and Myers, none of those facts change

the underlying basis for the discipline with respect to the Grievant.” (City Post-Hearing Brief,

page 33) The city reports that Lieutenant Robert Tucker, who is in charge of the Inspection Unit,

testified as follows:

14
 Q. Did the [Special Prosecutor’s] report change anything with respect to the
disciplinary charges issued against [the grievant]?

A. No.

Q. Why is that?

A. The change of the cause of death does not change the behavior of the officer as it
relates to his actions at the time of the incident. It’s in some ways irrelevant.
(Transcript, page 41)

The city contends that this is not a case where the penalty should be reduced. It points out

that the grievant was well aware of the Division’s stance regarding immediately contacting EMS.

The city notes that the grievant’s “failure to abide by the policies [and his] enhanced training …

are not grounds for a lesser penalty, but rather aggravating factors supporting his ten (10)-day

suspension.” (City Post-Hearing Brief, page 35)

The city concludes that the grievant’s inaction was irresponsible, contrary to

departmental practice and policy, and his training. It asks the Arbitrator to deny the grievance

and uphold the grievant’s ten-day suspension.

UNION POSITION

The union argues that there is not just cause for the grievant’s discipline. It points out that

Lieutenant David Medina, who has been and an instructor on subject control at the Cleveland

Police Academy for the last 21 years, testified that the grievant’s actions were consistent with his

training for de-escalation, including breathing techniques and crisis intervention. The union notes

that training is constantly updated, including EMS response. It adds that a new Divisional Notice

on this subject was released the same day as [the grievant’s] Arbitration Hearing.” (Union Post-

Hearing Brief, page 30)

15
 The union contends that the grievant and other officers are trained and instructed to call

EMS when they are aware of a medical condition or medical situation. It states that Medina

testified that it is a judgment call that an officer makes based on his observations, training, and

experience. The union indicates that Medina added that “the policy and training on this subject

matter is pretty broad, and takes a common-sense approach [and that] there is no written policy

or written training documents that state when a Cleveland Police Officer is required to call

EMS.” (Ibid.)

The union maintains that the grievant properly called EMS. It reports that the grievant

and Myers were dispatched on a mental health call and officers are trained not to call EMS on a

mental health call unless a medical condition arises. The union observes that “once the grievant

and Myers were aware of the change in [TA’s] mental health condition to a medical concern,

they called EMS.” (Union Post-Hearing Brief, page 31)

The union argues that Follmer’s testimony supports its position. It points out that as the

union’s president, he was called to the scene as in any death-in-custody case. The union notes,

however, that Follmer and Bottone agree that TA did not die in police custody.

The union contends that past practice supports its position. It states that Divisional Notice

12-273, dated June 26, 2012, reported that Donald Kopchak and Jeffrey Yasenchack committed a

number of offenses, including failing to timely call EMS. (Union Exhibit H, pages 2-3) The

union indicates that despite these facts, neither officer was suspended but they received only

letters telling them to correct their behavior.

The union maintains that proper discipline requires consistency in the enforcement of the

rules. It points out that this means that the penalty for a rule violation must be consistent with the

penalties imposed for similar offenses. The union notes that where enforcement is not consistent,

16
Arbitrators find there is not just cause for discipline. It adds that the change in department policy

and training demonstrates that the discipline imposed on the grievant was excessive.

The union argues that Myer’s decision not to grieve his written warning he received

should have no impact on the instant case. It observes that Myers “was ready to move on with his

career, get off Probationary status and be a full-fledged Police Officer.” (Union Post-Hearing

Brief, page 33) It reports that when Myers opted not to grieve, he was sworn in as a regular

Cleveland Police Officer in September 2018.

The union contends that the grievant complied with GPO 3.2.06 in his interaction with

TA. It states that based on his interaction with her and her family, it became clear that pursuant

to department policy, TA needed to be taken to a hospital for a psychiatric evaluation. The union

indicates that GPO 3.2.06 states in part:

A psychiatric emergency exists when an officer learns of, or has custody of a person
who is mentally ill and is likely to injure themselves or another. Under Section
5122.10 of the Ohio Revised Code, a police officer has the authority to take such a
person into custody involuntarily, and immediately transport the person to a hospital
for psychiatric evaluation.

The union maintains that the grievant and Myers were following policy when they used

handcuffs to take TA into custody when she became combative. It points out that they “tried to

use talking and other de-escalating methods throughout their lengthy interaction with [TA] and

her family in an attempt to make every reasonable effort to get her to cooperate.” (Union Post-

Hearing Brief, page 35) The union notes that the grievant explained to TA that she was not under

arrest but they were taking her to the hospital for help.

The union argues that GPO 2.1.01 is not relevant because there was no allegation that the

grievant or Myers used excessive force. It asserts that this fact is supported by Harshbarger’s

report and Tucker’s testimony that there was no use of force violations in the case. The union

17
adds that the grievant and Myers complied with GPO 2.1.01 when they called Bottone to the

scene after the use of less than lethal force.

The union contends that the Arbitrator must consider the grievant’s personal and financial

hardship in determining what, if any, discipline is appropriate. It reports that on December 18,

2014, the grievant and Myers were placed on restricted duty so they could not work non-

subpoenaed overtime or engage in secondary employment until they were cleared of any

misconduct and administratively disciplined.

The union maintains that the grievance filed by the grievant and Myers over being placed

on restricted duty provided little relief. It states that the grievant lost more than $20,000 in

overtime during his first two years of restricted duty but the true hardship must take into account

the fact that the grievant was on restricted duty for 3½ years. The union charges that the grievant

was improperly placed on restricted duty for an undetermined and unreasonably long period of

time.

The union argues that in City of Cleveland and Cleveland Police Patrolmen’s Association

(CPPA); AAA Case No. 01-16-0000-818; July 3, 2017, Arbitrator Alan Miles Ruben offered

limited relief. It points out that he found:

The grievance filed on November 12, 2015 by [the grievant] and Bryan Myers over
the continuation of their "restricted duty" status is allowed in part.

The City is directed to make prompt and diligent inquiry of the Ohio Attorney
General, or other prosecutorial agency, as may be appropriate, as to whether the
investigation into the possible criminal conduct of Officers Aldridge and Myers in
connection with the death of [TA] has been concluded, and, if not, the estimated date
by which it is expected that the investigation will be completed.

The City is privileged to retain both Grievants on restricted duty until the conclusion
of the investigation and the exoneration of one or both Grievants. Should either or
both Grievants be made the subject to criminal prosecution, their duty status shall be

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 determined in accordance with Article XXIX, Paragraph 72 of the Contract and
G.P.O. 1.3.26.

If the investigation remains ongoing, and the City was not informed of the date by
which the investigation is expected to be completed, the Grievants are to be
immediately removed from restricted duty status and restored to regular duty status.

The City has no responsibility to make the Grievants whole for the loss of income
resulting from their disqualification from engaging in secondary employment or for
the loss of overtime opportunities.

The Arbitrator will retain remedial jurisdiction to respond to any issues or questions
which may arise over the interpretation, administration or implementation of this
Award. (City Exhibit 2, pages 32-33)

The union contends that the grievant’s April 10, 2013, discipline is not relevant. (City

Exhibit 28) It points out that on April 10, 2013, the grievant was suspended for three days with

one day held in abeyance. It notes, however, that Article VII of the collective bargaining

agreement states:

Verbal disciplinary warnings and disciplinary written reprimands shall be removed

from a Police Officer’s record after six (6) months, but all other disciplinary actions
or penalties will be removed after two (2) years from the date the discipline was
administered.

The union indicates that as a result of this language, the discipline was removed from the

grievant’s record on April 10, 2015, -- years prior to the imposition of the discipline at issue in

this case and should be stricken from the record. It adds that in any event, M. McGrath did not

refer to the prior discipline when he imposed the grievant’s ten-day suspension. 5

The union maintains that the grievant’s actions must be viewed as he experienced them

on November 12, 2014, and not with 20/20 hindsight. It states that one of the most glaring

statements was M. McGrath’s statement that the grievant should have called EMS when TA’s

breathing or pulse changed because neither M. McGrath nor Calvin Williams, the Chief of

5
The Arbitrator did not consider the grievant’s April 10, 2013, suspension.

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Police, were present on the scene. The union indicates that the city must rely on the testimony of

those who were at the scene.

The union argues that the city should give great deference to the testimony of an officer

who is testifying under oath. It observes that the grievant testified that “he did not believe, based

on the totality of circumstances that were available to him at that exact moment, that [TA]

required medical attention [but that] … his evaluation given all the facts known to him was that

she was battling mental health issues, which does not require EMS.” (Union Post-Hearing Brief,

page 40) The union stresses that if the grievant knew TA was having a heart attack or required

medical attention, he would have immediately called EMS.

The union cites Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 186. It points out that in

that case the court supported the principle that events must be presented as they occurred rather

than through 20/20 hindsight. The union notes that in Smith v. Freeland, 954 F.2d 443, 347, the

Sixth Circuit Court of Appeals described Graham’s deference as follows:

We must avoid substituting our personal notions of proper police procedure for the
instantaneous decision of the officer at the scene. We must never allow the
theoretical, sanitized world of our imagination to replace the dangerous and complex
world that policemen face every day. What constitutes “reasonable” action may seem
quite different to someone facing a possible assailant then to someone analyzing the
question at leisure.

The union contends that “some leeway must be given the officer for on-scene judgments

made during the uncertainty of a confrontational encounter.” (Union Post-Hearing Brief, page

40) It complains that instead, the city tried to pick apart the statements of the grievant over the

last four years in order to evaluate his on-the-scene judgments and decisions. The union adds that

the Special Prosecutor and the Grand Jury determined that “[the grievant’s] actions were

objectively reasonable [and that his] … potential inactions were objectively reasonable.” (Union

Post-Hearing Brief, page 41)

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 The union maintains that the city improperly found the grievant committed a Group III

offense pursuant to the city’s Disciplinary Matrix found in GPO 1.1.11. (City Exhibit 21) It

states that Group III offenses are the most serious violations and include:

• Alcohol-related offenses
• Criminal law offenses
• Alcohol/Drug use on duty
• Drug related offenses
• Firearms violations, careless handling resulting in an injury
• Firearms violations, (e.g. Unreported discharges)
• Gross immorality
• Neglect of Duty
• Operating a motor vehicle while privilege revoked or suspended
• Police vehicle, operating after consuming alcohol and/or drugs
• Reports, false
• Statements, false
• Engaging in sexual activities while on duty
• Other similar violations

The union claims that the specification against the grievant in no way compares to these

egregious policy violations. It indicates that the disciplinary actions for Group III offenses range

from a ten-day suspension to termination. It adds, however, that “the just cause standard and the

past practice between the parties does not impose any ‘mandatory minimums’ for certain

offenses.” (Union Post-Hearing Brief, page 43)

The union argues that the Disciplinary Matrix is not incorporated in the collective

bargaining agreement and therefore cannot be used in the consideration of just cause. It reports

that prior to January 1, 2014, there was no Disciplinary Matrix in the Division of Police. The

union observes that the matrix has been upheld only as a guideline or tool to assist the city in

imposing fair and consistent discipline.

The union contends that the just cause standard must still be followed and is the standard

for review at arbitration. It points out that Article IV(4)(c), expressly allows the city to discipline

or terminate an employee for just cause but expressly restricts an Arbitrator to the interpretation

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and application of the terms of the collective bargaining agreement, which does not include the

terms of GPO 1.1.11 or provide for the use of the matrix in determining just cause. The union

notes:

If an Arbitrator were to rely on a source outside the CBA, which was not permitted,
the Arbitrator’s decision regarding the dispute “could not be rationally derived from
the terms of the agreement” as required by law. There would be no “rational nexus”
between the agreement and the award, therefore, the essence of the arbitrator’s
decision could not be drawn from the CBA. (Union Post-Hearing Brief, page 44)

The union maintains that the discipline imposed on the grievant is punitive and politically

motivated. It states that there was extensive pressure on the city and the department to impose

discipline on the grievant and Myers due to the $2,250,000 settlement the city made with TA’s

family long before the administrative and criminal investigations were completed. It indicates

that the grievant asks the Arbitrator to consider the testimony and evidence that was presented at

the arbitration hearing regarding the political pressure faced by the city.

The union argues that the city has the burden of proving by clear and convincing

evidence that the grievant was guilty of failing to timely call EMS. It points out that it is difficult

to claim that the grievant failed to call EMS in a timely fashion when no one at the scene felt TA

needed medical assistance prior to the officers calling EMS. The union notes that the grievant

testified that TA’s breathing and pulse were normal. It adds that Joell Anderson indicated that

TA’s behavior was normal for her.

The union contends that the city must also prove that a ten-day suspension is in

accordance with the just cause provision of the contract. It states that the grievant’s discipline

should be overturned in its entirety because not one witness or officer at the scene testified that a

medical emergency existed prior to the grievant contacting EMS. The union adds that TA’s

family commended the officers for their work and patience with TA.

22
 The union maintains that the role of the Arbitrator is to determine whether the discipline

imposed on an employee comports with the concept of just cause. It cites CPPA and City of

Cleveland, AAA Case No. 53-39-000-1601 (Johnson, 2001), in support of its claim that where

the grievant is charged with morally reprehensible conduct, a high standard of proof is required.

The union observes that the city failed to introduce any written rule or policy regarding exactly

when an officer is required to call EMS, rather, they are trained to use common sense.

The union argues that in contrast to the city, it provided expert testimony in support of its

position. It points out that former Academy Instructor Medina testified “that [the grievant] acted

within departmental policy and training [and] … the tactics used by [the grievant] … were

proper and pursuant to his training and the CPD policy on training.” (Union Post-Hearing Brief,

pages 46-47)

The union contends that the grievant’s discipline was unfair and unreasonable. It

observes that in City of Cleveland and Fraternal Order of Police, Lodge No. 8, AAA Case No.

53-390-00565-89 (1989), Arbitrator Dworkin held that based on the facts and circumstances, the

discharge of an employee was not warranted and was amended. The union reports that he held:

The standard of “just cause” requires that the action taken by management is
supported by the evidence, and consistent with the applicable terms of the agreement.
In essence, the discharge action must be deemed fair and reasonable, based on all the
relevant and material facts and circumstances. According to this standard, the
decision to discipline and the penalty imposed must take into consideration the
grievant’s service and background as a member of the Cleveland Police Department,
and whether the measure of discipline appears to be punitive in purpose and effect or
corrective in its application.

It claims that in the instant case, “the city failed to ever prove that [the grievant’s] honest

testimony under oath that he did not know a medical emergency was occurring until he called

EMS was untrue.” (Union Post-Hearing Brief, page 47)

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 The union maintains that the grievant’s suspension must be reversed or modified based

on the just cause standard. It points out that the grievant has over 10 years of service with a

“proud service record” and that all of the investigating agencies determined that his actions on

November 12, 2014, were lawful and legally justified. It cites CPPA and City of Cleveland,

AAA Case No. 53-390-00015-93 (1993), where Arbitrator Kasper held:

[The just cause standard] is approached differently by different readers but in

circumstances like this it is ordinarily necessary for the nature and severity of the
discipline to be determined by the City so that it is fair, reasonable, and appropriate to
its purposes in the specific circumstances. The severity of the discipline must be
rational, in the sense that it must “fit the crime,” and in accordance with the fault of
the offender. Discipline which is otherwise, borders on the ineffective, capricious,
and spiteful; it is improper under the Contract.

***

In other words, the issue is not whether the City has the “authority,” but rather
whether it exercised its legitimate authority in a proper manner. Just cause requires
the city after its fair analysis of all the facts, determine for itself, using proper
standards, the appropriate discipline under the Contract.

The union argues that in a case where the grievant is charged with morally reprehensible

conduct, a high standard of proof is required. It states that in the instant case, the evidence does

not support the city’s contention of extreme wrongdoing. The union offers in support of its

contention Arvin Industries, 96 LA 1185 (1991), where an employee was discharged for

possessing alcohol on company property. It indicates that Arbitrator Volz listed four mitigating

factors and reinstated the grievant. The union claims that the grievant in the instant case, “has an

admirable employment history with the City, filled with awards, commendations, extensive

education and training as well as positive performance evaluations.” (Union Post-Hearing Brief,

page 49)

The union contends that the degree of the penalty must reflect the seriousness of the

offense. It reports that under Article IV of the parties’ collective bargaining agreement, the

24
Arbitrator has the authority to modify penalties that are improper or too severe. The union

observes that in doing so, the Arbitrator must consider:

(1) the facts and circumstances surrounding the Officer’s conduct, (2) the service and
background as a member of the Cleveland Police Department, and (3) whether the
measure of discipline appears to be punitive in purpose and effect, or corrective in its
application. (Union Post-Hearing Brief, page 49)

The union maintains that there are numerous other cases that support the principle that

the nature and degree of discipline must meet the just cause standard. It cites City of Louisville,

94 LA 43 (Volz, 1989); State of Ohio, 97 LA 1206 (Rivera, 1991); City of El Paso, 95 LA 201;

1990); and Ohio Dept. Of Transportation, 95 LA 12 (Dworkin, 1990).

The union argues that “discipline is a corrective measure designed to rehabilitate a

miscreant employee, to the restore him to acceptable levels of production and/or behavior.”

(Union Post-Hearing Brief, page 50) It states, however, that in the instant case, the grievant is not

a miscreant employee who needs to be restored to acceptable levels of production and behavior.

The union indicates that despite this fact ”the grievant had minutes of his life dissected and

analyzed for over four (4) years in an effort to try to come up with something that maybe he

could have done differently.” (Union Post-Hearing Brief, page 51)

The union concludes that the city did not have just cause to impose any discipline on the

grievant and in any event, it did not have just cause to impose a ten-day suspension. It asks the

Arbitrator to completely overturn the grievant’s ten-day suspension, to reinstate him to full-duty,

and to grant him back pay and all lost benefits.

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 ANALYSIS

The instant case involves two issues. The first issue is whether there is just cause to

discipline the grievant. The second issue is if there is just cause for discipline, is a ten-day

suspension the proper penalty?

With respect to the first issue, the record establishes that there is just cause for discipline.

The grievant knew that the Division of Police requires an officer to call EMS whenever a

medical situation arises. He completed the 124th Police Academy training, took FTO training and

served as an FTO, and had ten years of experience as a patrol office. In addition, in 2008 he

received a Chief’s Commendation for assisting at the scene of a serious motor vehicle accident,

including “notifying dispatch to have EMS responded to the scene.” (Union Exhibit G, page 1)

The record also indicates that the grievant should have known that TA developed a

serious medical condition requiring a prompt call to EMS. The testimony and evidence establish

that the grievant and Myers had convinced TA that she needed to go to the hospital for an

assessment and treatment of a mental problem. However, before they could secure her in their

cruiser, she became resistant and had to be taken to the ground and her arms handcuffed behind

her back.

Initially, TA continued to yell and kick but then suddenly she became still while making

snoring or grunting sounds. The grievant was apparently concerned and took TA’s pulse and

checked on her breathing even though Medina testified that police officers are not trained to do

so.

Prior to TA’s becoming silent, the grievant and Myers had called Bottone, a District 3

Section Sergeant, to her ask her to come to the scene because of their use of nonlethal force in

26
securing TA. Bottone arrived shortly after TA had stopped yelling and kicking and lay still

making snoring and grunting noises.

As soon as Bottone arrived, she discovered that TA was unconscious but breathing. She

then rolled TA on her back to facilitate her breathing and immediately ordered the grievant to

call EMS. EMS arrived at 11:44 P. M. and TA was transported to the Cleveland Clinic where,

despite the efforts of the Emergency Room staff, she was pronounced dead at 12:30 AM.

Based on the testimony and evidence, the Arbitrator must conclude that the grievant’s

failure to recognize that TA had developed a serious medical problem and to promptly call EMS

provides just cause for discipline.

Proper Penalty

The second issue for the Arbitrator is whether the ten-day suspension imposed by the city

was the proper penalty. The Arbitrator believes that the record indicates that the discipline

imposed by the city is too severe and that the proper penalty is a three-day suspension. First, the

position of the city with respect to the grievant’s ten-day suspension is undermined by Medina’s

testimony that the Division of Police has no written policy or written training documents that

indicate when an officer is required to call EMS. The city’s unwritten policy, which Medina

described as based on “common sense,” is not likely to provide sufficient guidance to the police

officers who face complex and difficult situations such as that the grievant faced.

Second, the grievant’s ten-day suspension appears to be inconsistent with the lack of

disciplinary penalties in an incident involving Police Officers Kopchak and Yasenchack. The

Division of Police, Divisional Notice for pre-disciplinary hearings held by the Director of Public

Safety on May 1, 2012, reports that they were charged with failure to request EMS in a timely

manner as well as improper procedure, failure to report UNDF to a supervisor in a timely

27
manner, exceeding the Taser cycle, and failure to terminate a pursuit. (Union Exhibit H, pages 2-

3) The Hearing Officer recommended that the disciplinary action be dismissed and the matter be

addressed with Non-Disciplinary, Corrective Letters of Reinstruction. The Chief of Police

adopted the recommendation of the Hearing Officer and dismissed the disciplinary actions

against Kopchak and Yasenchack.

The Arbitrator discounts the city’s complaint that the union did not provide the details of

the case. The city had the opportunity to attempt to distinguish this case from the grievant’s case

but did not do so. The disparate treatment received by the grievant is not consistent with the

contractual just cause standard.

Third, the Arbitrator believes that Joell Anderson’s comment to the grievant, as TA lay

motionless on the ground, that TA sometimes “fakes sleeping” cannot be ignored. While he has

no medical training, he lives with TA and should be familiar with her behavior. Thus, Joell

Anderson’s statement was one of the factors the grievant had to consider in deciding whether to

call EMS. The city’s decision to dismiss Joell Anderson’s comment suggests that the grievant’s

lengthy suspension was too harsh.

Fourth, the Arbitrator rejects the city’s argument that he should ignore the fact that

Overton was an RN because the grievant was unaware of it at the time of the incident. However,

whether or not the grievant knew Overton was an RN, Overton would have taken a more active

role if she felt that TA was experiencing a serious medical problem. As it was, Overton’s only

action was bringing a blanket from the house to cover TA, who was lying on the ground by the

police cruiser.

Fifth, while the Arbitrator agrees with Arbitrator Alan Miles Ruben that Article XXIX

gave the city the right to place the grievant on restricted duty and that the grievant is not entitled

28
to reimbursement for the overtime and extra duty assignments he could have worked, still the

loss experienced by the grievant cannot be ignored in considering the appropriate penalty in the

instant case. The grievant estimated that in the first two years of his 3½ years on restricted duty,

he lost approximately $20,000. The loss due to being placed on restricted duty is a function of

the time it took to resolve the criminal and administrative cases and it far exceeded the cost of

the grievant’s ten-day suspension.

Sixth, the Arbitrator rejects the union’s argument that the grievant’s suspension must be

set aside because it is punitive and politically motivated. It claims that the $2.25 million

settlement the city made with TA’s family created pressure on the city to impose harsh discipline

on the grievant. While the Arbitrator understands that the case may have resulted in political

pressure on the city, especially given the initial coroner’s report that the grievant died of

positional asphyxiation rather than the finding of the coroner selected by the Special Prosecutor

from the Special Investigations Office of the State Attorney General’s Office that TA’s death

was the result of arteriosclerotic cardiovascular disease. In any event, the Arbitrator found that

there was just cause to discipline the grievant but concluded that under the circumstances, a ten-

day suspension was excessive.

Finally, the grievant has a good employment record. He has been a police officer for ten

years and has no active discipline in his file. The grievant has an Associate’s Degree in Law

Enforcement from Cuyahoga Community College and has completed a number of courses in the

Academy, including the Crisis Intervention Training and Field Training Officer courses.

Based on the above analysis, the Arbitrator will direct the city to convert the grievant’s

ten-day suspension to a three-day suspension, to make the grievant whole for the loss of wages

29
and benefits due to a ten-day suspension rather than a three-day suspension, and to modify the

grievant’s personnel file to reflect a three-day suspension rather than a ten-day suspension.

AWARD

The award of the Arbitrator is as follows:

1) The city is ordered to convert the grievant’s ten-day suspension to a three-day

suspension.

2) The city is ordered to make the grievant whole for any loss of wages and benefits
due to a ten-day suspension rather than a three-day suspension.

3) The city is ordered to modify the grievant’s personnel file to reflect a three-day
suspension rather than a ten-day suspension.

4) The Arbitrator will retain jurisdiction to resolve any dispute over the interpretation
and application of his award.

_____________________________
Nels E. Nelson
Arbitrator
February 18, 2019
Russell Township
Geauga County, Ohio

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