[Cite as Tate v. Owens State Community College, 2010-Ohio-6609.]

                                                      Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




KEVIN J. TATE

       Plaintiff

       v.

OWENS STATE COMMUNITY COLLEGE

       Defendant
       Case No. 2009-04963

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} On October 4, 2010, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On November 1, 2010, the motion came before the court for a
non-oral hearing pursuant to L.C.C.R. 4. On November 2, 2010, plaintiff filed a motion
for an extension of time to file a response to defendant’s motion. Upon review, plaintiff’s
motion is DENIED.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶ 4} Plaintiff   alleges     that   he     enrolled    in    defendant’s     Medical
Imaging/Radiography (MIR) associate’s degree program in January 2006, and that
defendant dismissed him from the program in June 2007.              Plaintiff relates that the
grounds for his dismissal were three formal “disciplinary actions,” or written reprimands,
which defendant issued to him, and he explains that a handbook issued to all MIR
students provides that students shall be automatically dismissed from the program upon
being issued a third such disciplinary action. Plaintiff claims that his dismissal was
wrongful, however, in that the allegations made in the first disciplinary action were false,
that he was not provided with an opportunity to meet with relevant individuals regarding
his second disciplinary action, and that a lesser form of discipline would have been
more appropriate than the third disciplinary action.          Plaintiff further alleges that
defendant did not afford him an opportunity to appeal the dismissal.
       {¶ 5} Defendant asserts that plaintiff’s dismissal and all other disciplinary action
taken against him complied with the terms of the MIR Handbook and Owens Student
Handbook.
       {¶ 6} It is well-settled that the relationship between a college and a student who
enrolls, pays tuition, and attends class is contractual in nature, and that the terms of this
contractual relationship may be found in the handbook, catalogue, and other guidelines
supplied to students. Bleicher v. Univ. of Cincinnati College of Med. (1992), 78 Ohio
App.3d 302, 308; Embrey v. Central State Univ. (Oct. 8, 1991), Franklin App. No. 90AP-
1302, citing Smith v. Ohio State Univ. (1990), 53 Ohio Misc.2d 11, 13.
       {¶ 7} In addressing an alleged breach of such contract, a trial court is required
to defer to academic decisions of a college unless it is perceived that there existed
“such a substantial departure from accepted academic norms as to demonstrate that
the person or committee responsible did not actually exercise professional judgment.”
Bleicher, supra, at 308, quoting Regents of the Univ. of Mich. v. Ewing (1985), 474 U.S.
214, 225.
       {¶ 8} In support of its motion, defendant submitted the affidavits of Catherine
Ford, Chair of the Medical Imaging Department; Gwen Bartok, Clinical Coordinator for
the Medical Imaging Department; and Susan Welling, Clinical Teaching Assistant for the
Medical Imaging Department. Attached to the affidavits are authenticated documents
pertaining to plaintiff’s claim, including a copy of the MIR Handbook and Owens Student
Handbook.
       {¶ 9} The MIR Handbook sets forth the policy under which students may be
disciplined and dismissed from the MIR program. Student conduct which is “a threat to
the safety of patients or staff as well as breaches of hospital and patient confidentiality”
is deemed a “Group I” offense and results in immediate dismissal from the program.
Student conduct which violates “procedures as listed in the department manual” is
deemed a “Group II” offense. Group II offenses are subject to progressive discipline
whereby “[t]he third Group II offense (three total offenses, not necessarily in the same
course) will result in a failing grade for the student and immediate dismissal from the
program with no opportunity for readmission.”
       {¶ 10} In her affidavit, Welling states that she issued plaintiff’s first Group II
disciplinary action on September 28, 2006, for violations of the standards set forth in the
MIR Handbook pertaining to “professional protocol, dress code for practice exams, and
professional behavior and appearance.” More specifically, Bartok states in her affidavit
that this disciplinary action resulted from concerns which she and others had about
plaintiff’s personal hygiene, including “profuse sweating,” wearing “too much shaving
lotion,” “overwhelming smell of cigarette smoke, bad breath, and offensive body odor.”
       {¶ 11} Bartok states that on December 6, 2006, she issued plaintiff’s second
Group II disciplinary action for violations of the standards set forth in the MIR Handbook
relative to “inconsiderate treatment of patients, visitors, students, or hospital employees
and failure to perform responsibilities or to exercise reasonable care in the performance
of responsibilities.”   Ford states that the disciplinary policy set forth in the MIR
Handbook required her, as the department chair, to review this second disciplinary
action with plaintiff, and that they did so on December 6, 2006.
       {¶ 12} Ford states that on June 26, 2007, plaintiff was issued a third Group II
disciplinary action for treating a patient without supervision in violation of the MIR
Handbook, pages 68-69. Ford further states that she reviewed this disciplinary action at
the time it was issued and found it to be “appropriate and within the guidelines of
[defendant] and the MIR program policy.”
        {¶ 13} Ford avers that as a result of the third Group II disciplinary action,
defendant dismissed plaintiff from the MIR program. Ford goes on to state that the
Owens Student Handbook provided a process by which plaintiff could have appealed
his dismissal, but that plaintiff did not do so. According to Ford, “[defendant’s] actions
were accepted academic norms and made by staff who exercised professional
judgment.      I personally believe I made all decisions concerning [plaintiff] using
professional judgment and under the policy and guidelines in the Owens Student and
MIR Handbook.”
        {¶ 14} Plaintiff did not timely file a response to defendant’s motion, nor did he
timely provide the court with any affidavit or other permissible evidence to support his
allegations.
        {¶ 15} Civ.R. 56(E) states, in part, as follows:
        {¶ 16} “When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party's pleadings, but the party’s response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
        {¶ 17} Based upon the uncontested affidavit testimony of Ford, Bartok, and
Welling, reasonable minds can only conclude that defendant dismissed plaintiff from his
program of study in accordance with the terms of the MIR Handbook and Owens
Student Handbook.
        {¶ 18} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to summary judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment shall be granted and judgment
shall be rendered in favor of defendant. All other pending motions are DENIED as
moot.
                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




KEVIN J. TATE

      Plaintiff

      v.

OWENS STATE COMMUNITY COLLEGE

      Defendant
      Case No. 2009-04963

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




       A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.



                                          _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge

cc:
Jennifer A. Adair                  Kevin J. Tate
Assistant Attorney General         2219 St. Charles Road
150 East Gay Street, 18th Floor    Toledo, Ohio 43615
Columbus, Ohio 43215-3130

RCV/cmd
Filed December 16, 2010
To S.C. reporter January 4, 2011
