from the Court of Claims of Ohio Ct. of Cl. No. 2016-00860
Williams, for appellants.
Michael DeWine, Attorney General, Randall W. Knutti, Lee Ann
Rabe, and Howard H Harcha, IV, for appellee.
H Harcha, IV.
1} Plaintiff-appellant, Melanie Lemay, appeals from
the August 4, 2017 judgment of the Court of Claims of Ohio
granting summary judgment in favor of defendant-appellee,
University of Toledo Medical Center ("UTMC"). For
the reasons that follow, we affirm in part and reverse in
part the judgment of the Court of Claims.
FACTUAL AND PROCEDURAL BACKGROUND
2} This case involves Lemay's termination from
UTMC on September 12, 2012, following the accidental disposal
of a kidney meant for transplant. On August 10, 2012, a
medical team was in the midst of a kidney transplant between
a brother and a sister. Doctors had removed the brother's
donor kidney and placed it in a bin for cooling. Lemay was a
circulating nurse assigned to relieve Judith Moore in the
operating room while Moore took her lunch break.
3} After Moore returned from her break, she did not
ask Lemay for a status report, and Lemay did not volunteer
one because she believed that it was Moore's
responsibility to come to Lemay to ask for an update. Lemay
then left the operating room for a brief period to retrieve a
certain type of suture. When Lemay returned, she saw Moore
cleaning off the sterile prep table used to clean the donor
kidney. Lemay resumed charting on the computer. While Lemay
was charting, Moore removed items from the operating room and
accidentally disposed of the donor kidney.
4} Lemay and Moore were placed on administrative
leave pending an investigation of the incident. Moore
resigned. The UTMC live donor program was temporarily
5} After a pre-disciplinary hearing on September 11,
2012, the hearing officer recommended termination of
employment for Lemay. UTMC's Chancellor and Executive
Vice President for Health Affairs terminated Lemay's
employment on September 12, 2012. The letter of termination
stated in part:
It has been determined that you have violated the Ohio
Revised Code § 124.34(A) by failing to provide good
behavior and efficient service. Specifically, you exhibited
gross neglect of your duties as an OR Staff Nurse.
(Sept. 12, 2012 Letter at Ex. No. 5 to Aff. of Lisa Simpson.)
6} Lemay filed a grievance with her union on
September 24, 2012. Lemay informed her union representative
that she would not attend a hearing without her attorney
being present, and apparently a hearing took place without
her presence because she asserts that she never received
notice, the opportunity to refute the allegations, or the
opportunity to present witnesses. After a hearing on August
26, 2013, the grievance was denied and the termination was
7} Lemay filed suit alleging wrongful termination
and defamation. In her wrongful termination claim, Lemay
alleged that she was terminated without just cause, and that
UTMC did not follow its own policy when they terminated her.
She also claimed that the reasons for the termination were
false and were based on false statements. The defamation
claim was based on a series of articles that appeared in the
Toledo Blade about the incident. Lemay claimed that the
articles contained defamatory information provided to the
Toledo Blade by UTMC agents. Lemay's husband also filed a
claim for loss of consortium.
8} UTMC filed a motion for summary judgment claiming
that the Court of Claims lacked subject-matter jurisdiction
to enforce or interpret the collective bargaining agreement.
UTMC also argued that Lemay had failed to identify any false
statements; that the comments she claimed were defamatory
were actually constitutionally protected opinions, or that
they were absolutely or qualifiedly privileged. UTMC also
claimed that because the accidental disposal of a kidney
during a transplant procedure was a matter of public concern,
Lemay was required to prove actual injury or actual malice to
prevail on her defamation claim.
9} The Court of Claims granted the motion for
summary judgment on August 4, 2017. The court determined that
there was no genuine issue of material fact that Lemay's
employment was governed by a collective bargaining agreement
that contained a provision for binding arbitration. The court
then concluded that it had no jurisdiction to enforce the
agreement or to interpret it and that it lacked jurisdiction
over the wrongful termination claim.
10} With respect to the defamation claim, the Court
of Claims found that Lemay had failed to identify the
specific statements and information presented at the
pre-disciplinary hearing and to the Toledo Blade that were
false. The court further determined that any allegedly false
statements made at the pre-disciplinary hearing, the hearing
officer's report, and the termination letter were
absolutely privileged as part of a quasi-judicial proceeding.
The Court of Claims then looked at the issue of qualified
privilege. It found no genuine issue of material fact that
the information given to the Toledo Blade was made in good
faith; was limited in scope to the investigation about the
kidney disposal; and was for the purpose of providing
information to the public about a situation in the community
that was of compelling interest because a viable kidney was
disposed of as medical waste during a live donor procedure.
The court found that Lemay had failed to identify any
particular statements published by the Toledo Blade that were
false or were not covered under qualified privilege. The
Court of Claims further found that Lemay failed to establish
actual malice or special damages.
11} Lemay filed a timely notice of appeal from the
decision of the Court of Claims.
ASSIGNMENTS OF ERROR
12} Lemay has provided a single, uninterrupted
assignment of error. To aid in understanding, we have
supplied numbers and separated Lemay's various
[I.] Appellant states that the Court of Claims abused its
discretion by making findings of fact as stated in the Courts
JUDGMENT ENTRY and DECISION (hereinafter referred as "
JE") of issues that are in dispute by the parties. Those
facts found are opinions in dispute and not based on the
evidence presented and not facts proven. Appellant states
that the trial court abused its discretion by finding at page
one of the JE that " . . . Ms Lemay also failed to log
into the computer system" when the facts presented show
that Ms Lemay tried to log in but the computer would not let
her and that this had been an ongoing problem;
[II.] and on page two of the JE that " . . . Ms
Lemay's employment with UTMC was governed by the CBA with
UTMC." when the facts presented show that the CAB was
not in effect, was not signed and not a valid agreement
controlling Ms Lemay's employment and providing union
[III.] and on page 6 of the JE that "The Court believes
that verification in this manner is improper because Ms Lemay
cannot personally swear to the legal arguments made by her
counsel when the complaint was verified by her Affidavit on
page 15 of PLAINTIFF'S VERIFIED MEMORANDUM IN
OPPOSITION TO THE UNIVERSITY OF TOLEDO'S MOTION FOR
SUMMARY JUDGMENT ("memorandum") and by Ms
Lemay's EXHIBIT AFFIDAVIT also attached thereto;
[IV.] and on page 8 of the JE ". . . it appears that
despite any allegations of the CBAs expiration, Ms. Lemay
still received representation from her union." when the
facts presented show that the Union only presented the
grievance Ms. Lemay prepared and then did nothing further to
advance her claims, the union is not an attorney that could