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Lemay v. University of Toledo Medical Center

Court of Appeals of Ohio, Tenth District

April 5, 2018

Melanie Lemay et al., Plaintiffs-Appellants,
University of Toledo Medical Center, Defendant-Appellee.

          APPEAL from the Court of Claims of Ohio Ct. of Cl. No. 2016-00860

         On brief:

          Vesper Williams, for appellants.

          Michael DeWine, Attorney General, Randall W. Knutti, Lee Ann Rabe, and Howard H Harcha, IV, for appellee.


          Vesper Williams.

          Howard H Harcha, IV.


          TYACK, J.

         {¶ 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.


         {¶ 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 suspended.

         {¶ 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 upheld.

         {¶ 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.


         {¶ 12} Lemay has provided a single, uninterrupted assignment of error. To aid in understanding, we have supplied numbers and separated Lemay's various assertions:

[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 representation;
[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 represent ...

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