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Walker v. University of Cincinnati College of Medicine

Court of Claims of Ohio

September 29, 2017

MILTON WALKER Plaintiff
v.
UNIVERSITY OF CINCINNATI COLLEGE OF MEDICINE Defendant

          Sent to S.C. Reporter 10/23/17

          Randall W. Knutti Assistant Attorney General

          Anderson M. Renick, Magistrate Judge.

          DECISION

          PATRICK M. MCGRATH Judge.

         {¶1} On September 7, 2017, defendant, the University of Cincinnati College of Medicine (UCCM), filed a motion for summary judgment pursuant to Civ.R. 56(B). On September 22, 2017, plaintiff filed a response. On the same date, defendant filed a reply and a motion for leave to file the same, which is hereby GRANTED. The motion for summary judgment is now before the court for a non-oral hearing. L.C.C.R. 4.

         {¶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., 50 Ohio St.2d 317 (1977).

         {¶4} In 2005, plaintiff enrolled in UCCM as a medical student. In 2007, plaintiff was a third-year student in the four-year program. On October 23, 2007, Mary Heider, Ph.D., notified plaintiff by letter that defendant's College Promotion Board had unanimously recommended his dismissal from the program based upon his failure to make satisfactory academic progress. (Plaintiffs deposition, Exhibit H.) Specifically, the board recommended dismissal because plaintiff had failed to earn the 24 credits required to maintain enrollment in the first six months of clinical coursework. Id. According to the information in the dismissal letter, at the time of the recommendation, plaintiff was enrolled in only two courses, psychiatry and anesthesia, and he had cancelled his enrollment in internal medicine and withdrew from his pediatrics course because he was failing. (Id. page 1.) The promotion board noted that "[w]ith two below passing grades, it is not possible for Mr. Walker to meet the minimum requirement in Year II of earning 24 credits in six months of clinical casework." (Id. page 4.)

         {¶5} Plaintiff appeared before the promotion board on October 22, 2007 and addressed his academic difficulties and stated that he had been diagnosed with attention deficit hyperactivity disorder (ADHD), but he related that he had not started treatment. Id. The board noted that plaintiff intended to appeal its recommendation and that "the Academic Appeal Board should have access to a full psychological assessment of Mr. Walker before it makes its recommendation to the Dean." Id.

         {¶6} The appeals board conducted a formal hearing to consider whether plaintiff was "fit to pursue" his medical career and whether "extreme or extenuating circumstances" was cause to excuse his failure to earn sufficient academic credit. (Plaintiffs deposition, Exhibit I, page 3.) The appeals board unanimously agreed to uphold the promotion board's recommendation that plaintiff be dismissed. (Plaintiff's deposition, Exhibit J.) On December 14, 2007, David Stern, M.D., Dean of the college of medicine, notified plaintiff that, after considering all available information, he concurred with the promotion board's recommendation and that plaintiff was dismissed from UCCM's program.

         {¶7} Plaintiff alleges "breach of implied-in-fact contract, " violation of 42 U.S.C. 1983, negligence, negligent supervision, intentional infliction of emotional distress, and breach of fiduciary duty. Defendant contends that plaintiffs relationship with UCCM was contractual and that the contract does not support any of his claims. The court agrees.

         Breach of contract

         {¶8} To recover upon a breach of contract claim, a plaintiff must prove "'the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.'" Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-Ohio-443 (10th Dist.), quoting Nilavar v. Osborn, 137 Ohio App.3d 469, 483 (2nd Dist.2000). There is no dispute that a contractual relationship existed between plaintiff and defendant.

         {¶9} "It is axiomatic that '* * * when a student enrolls in a college or university, pays his or her tuition and fees, and attends such school, the resulting relationship may reasonably be construed as being contractual in nature." Bleicher v. Univ. of Cincinnati College of Med., 78 Ohio App.3d 302, 308 (10th Dist.1992), quoting Behrend v. State,55 Ohio App.2d 135, 139 (10th Dist.1977). "This contract is typically found in a handbook, catalogue, or other guideline." Tate v. Owens State Community College, 10th Dist. Franklin No. 10AP-1201, 2011-Ohio-3452, ΒΆ 21. "However, where the contract permits, the parties may alter its terms by mutual agreement, and any additional terms will ...


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