[Cite as Lemay v. Univ. Toledo Med. Ctr., 2018-Ohio-2339.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Melanie Lemay, et al.                                        Court of Appeals No. L-17-1182

          Appellants                                         Trial Court No. CI0201502915

v.

University of Toledo Medical Center                          DECISION AND JUDGMENT

          Appellee                                           Decided: June 15, 2018

                                                *****

          Vesper C. Williams, II, for appellant.

          Michael DeWine, Attorney General, and Tracy M. Nave and Matthew J. Karam,
          Assistant Attorney Generals, for appellee.

                                                *****
          SINGER, J.

          {¶ 1} Appellants, Melanie and Patrick Lemay, appeal the June 20, 2017 summary

judgment decision of the Lucas County Court of Common Pleas granted in favor of

appellee, University of Toledo Medical Center (UTMC). For the reasons that follow, we

affirm.
                                 Assignments of Error

      {¶ 2} Appellants state their assignments of error as follows:

             1. Appellant states that the trial court abused its discretion by

      making findings of fact as stated in the JUDGMENT ENTRY ON

      DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (hereinafter

      referred as “JE”) of issues that are in dispute by the parties. Those facts

      found are opinions in dispute based on evidence presented and not facts

      proven.

             2. Appellant states that the trial court abused its discretion by

      finding that “…this Court lacks subject matter jurisdiction to consider the

      merits of Plaintiffs’ Claims against Defendant[,]” and then granting

      Defendant’s motion for summary judgment when it could have dismissed

      the case for lack of jurisdiction. See JE.

                                      Background

      {¶ 3} Melanie Lemay worked as a UTMC nurse for roughly 30 years. She was

terminated following an accidental disposal of a kidney meant for transplant.

      {¶ 4} Lemay did not dispose of the kidney. However, she failed to appropriately

log into the system and to adequately communicate with another nurse she relieved for

lunch. Without Lemay’s notes and direction, a cooling bin containing the kidney was

removed and discarded. There was an unsuccessful attempt to recover the organ.




2.
       {¶ 5} After she was placed on paid leave, and after an investigation and pre-

disciplinary hearing, Lemay was terminated on September 12, 2012. The stated reason

for her termination was failure to provide good behavior and gross neglect of duties.

       {¶ 6} Lemay’s employment was governed by a collective bargaining agreement

(CBA). The CBA provided a procedure, to which Lemay pursued a grievance for her

termination. She argued UTMC violated specific articles of the CBA.

       {¶ 7} Although the CBA provided for arbitration as the fifth and final step of a

grievance, Lemay’s grievance did not reach arbitration.

       {¶ 8} Lemay claims her union representative caused her confusion, and that, that

confusion led to her exclusively pursuing legal recourse in the Courts of Claims and

Common Pleas. She wanted legal counsel to attend the grievance hearings with her,

because she said she did not trust the grievance process. Her union representative

rejected her idea of bringing counsel, and the record reflects her grievance did not

continue beyond the third level of the process.

       {¶ 9} Appellee, on the other hand, claims Lemay or her union representative

abandoned the grievance process.

       {¶ 10} Lemay filed a complaint in the Court of Claims on August 2, 2013. In the

complaint, she and her husband asserted claims for wrongful termination, defamation,

and loss of consortium. The Court of Common Pleas dismissed the wrongful

termination, finding that Lemay’s employment was governed by the CBA. Appellants

voluntarily dismissed the remaining claims on November 25, 2015.



3.
       {¶ 11} Appellants again filed in the Court of Claims on November 22, 2016,

pleading wrongful termination, defamation and loss of consortium. See Lemay v. Univ.

of Toledo Med. Ctr., Ct. of Cl. No. 2016-00860, 2017-Ohio-7542. The case was disposed

of on summary judgment. The court found the wrongful termination could not be

reviewed because no jurisdiction existed where Lemay’s employment was governed by

the CBA. Further, the court found appellants did not demonstrate actual malice on behalf

of appellee, and thus that the law of defamation was inapplicable.

       {¶ 12} Appellants also filed a complaint in the Lucas County Court of Common

Pleas on June 5, 2015. The complaint stated two counts: breach of contract, and loss of

consortium.

       {¶ 13} On July 7, 2016, appellee moved for summary judgment, to which

appellants filed opposition on January 10, 2017. The trial court disposed of the case,

stating the “threshold question” as: “Does the CBA and/or statutory authority divest this

Court of jurisdiction to hear the parties’ dispute?” Answering in the affirmative, the

court stated it was prevented from exercising jurisdiction under R.C. 4117.09.

       {¶ 14} The trial court judgment was journalized June 20, 2017, and appellants now

timely appeal.

                                   Standard of Review

       {¶ 15} When reviewing a trial court’s summary judgment decision, the appellate

court conducts a de novo review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Summary judgment will be granted when there remains no

genuine issue of material fact and, when construing the evidence most strongly in favor

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of the non-moving party, reasonable minds can only conclude that the moving party is

entitled to judgment as a matter of law. Civ.R. 56(C). Accord Lopez v. Home Depot,

USA, Inc., 6th Dist. Lucas No. L-02-1248, 2003-Ohio-2132, ¶ 7.

                                      Legal Analysis

       {¶ 16} Appellants first argue there remain disputes of material fact, and thus that

summary judgment was inappropriate. Appellee contends the trial court had no

jurisdiction where appellant’s employment was governed by the CBA.

       {¶ 17} Appellants secondly argue the trial court erred by granting summary

judgment when it could have dismissed the case for lack of jurisdiction. Appellee does

not respond to this specific argument, but does note that the trial court correctly disposed

of the case.

       {¶ 18} We will address both assignments of error together.

       {¶ 19} Appellants rely on R.C. 4117.09 to provide them with a statutory right to

bring a private lawsuit, which in pertinent part provides:

               (A) The parties to any collective bargaining agreement shall reduce

       the agreement to writing and both execute it.

               (B) The agreement shall contain a provision that:

               (1) Provides for a grievance procedure which may culminate with

       final and binding arbitration of unresolved grievances, and disputed

       interpretations of agreements, and which is valid and enforceable under its

       terms when entered into in accordance with this chapter. No publication

       thereof is required to make it effective. A party to the agreement may bring

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       suits for violation of agreements or the enforcement of an award by an

       arbitrator in the court of common pleas of any county wherein a party

       resides or transacts business.

       {¶ 20} It is well established, however, that “[t]his section does not provide a right

to an original action in the court of common pleas.” See, e.g., Johnson v. Ohio Council

Eight, 146 Ohio App.3d 348, 352, 766 N.E.2d 189 (8th Dist.2001). “Rather, the section

requires that any collective bargaining agreement contain a two step procedure - a

grievance procedure with arbitration first, and ultimately the right to file in common pleas

court.” Id.

       {¶ 21} A claim independent of R.C. Chapter 4117 brought forth by a state

employee against a state employer, such as a breach of contract, falls solely within the

jurisdiction of the State Employment Relations Board (SERB). Id. at 351. See also

Pulizzi v. City of Sandusky, 6th Dist. Erie No. E-03-002, 2003-Ohio-5853, ¶ 8 (“[T]he

union and the employer are the proper parties to bring a suit for a breach of the collective

bargaining agreement. * * * The employee is not permitted to bring a private lawsuit[.]”).

       {¶ 22} Here, appellants sought damages on a theory of breach of contract, and on a

derivative claim for loss of consortium.

       {¶ 23} “When a party asserts a claim sounding in contract, a court must always

ask: Which contract?” See, e.g., Johnson at 351.

       {¶ 24} It is undisputed the contract to which appellants point for support is the

CBA. No other binding contract or agreement is in the record, and we find no dispute of

material fact with regard to what contract governs this case. Consistent with the grant of

6.
summary judgment and the disposition in Lemay, Ct. of Cl. No. 2016-00860, 2017-Ohio-

7542, at ¶ 19, summary judgment here is appropriate insofar as it answers whether

material issues exist to counter the fact that Lemay’s employment was governed by the

CBA. The remaining factual and legal issues relating to appellants’ claims cannot be

addressed, as SERB has sole jurisdiction. See Johnson; Pulizzi; Lemay.

       {¶ 25} Accordingly, the assigned errors are not well-taken.

                                         Conclusion

       {¶ 26} The judgment of the Lucas County Court of Common Pleas is hereby

affirmed. Appellants are ordered to pay costs of this appeal pursuant to App.R. 24, and

the clerk is ordered to serve all parties with notice of this decision.

                                                                          Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
Christine E. Mayle, P.J.                                     JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.


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