NOT RECOMMENDED FOR PUBLICATION File Name: 17a0483n.06 No. 16-4062 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

SCOTT D. GERBER, Plaintiff-Appellant,

v. STEPHEN C. VELTRI, Defendant-Appellee, and OHIO NORTHERN UNIVERSITY; DAVID C. CRAGO; RICHARD A. BALES; and TONYA PAUL, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: BOGGS, GRIFFIN, and WHITE, Circuit Judges. GRIFFIN, Circuit Judge. Plaintiff Scott Gerber appeals a judgment in favor of defendant Stephen Veltri entered following a non-jury trial on Gerber’s assault and battery claims. 1 Plaintiff, a law professor at Ohio Northern University’s Pettit College of La w (ONU), alleged that defendant, then interim dean, “verbally berated and attacked Mr. Gerb er as he grabbed and squeezed Mr. Gerber’s shoulder in a tight and strong fa shion” during an encounter in the law school hallway. The

1 On the court’s own motion, we requested briefi ng on the question of whether the district court possessed supplemental jurisdiction over th ese claims. Following our review, we are not convinced the district court er red in exercising jurisdiction.No. 16-4062, Gerber v. Veltri, et al.

-2- district court found that Gerber failed to prove that Veltri assa ulted or battered him. Because neither finding of fact was clearly erroneous, and plaintiff’s claims of error are without merit, we affirm.
I. On October 8, 2012, plaintiff Gerber had a te nse argument with another professor over a student research assistant. She and Gerber bot h reported the dispute to associate dean Bryan Ward who, in turn, reported it to de fendant Veltri. Later, when Ve ltri saw plaintiff pass by in the hallway, he attempted to stop Gerber so they could discuss the incident. Defendant put his left non-dominant hand on Ge rber’s right shoulder, saying, “Scott, we need to talk.” He directed Gerber with his ot her hand toward the nearby faculty lounge. Plaintiff “reacted very suddenly.” “Take your hands off me,” said Gerber. Veltri did so immediately. Gerber described Veltri’s touch as a “tight and strong” “grab” or “squeeze.” Both parties agree that the physical contact wa s “quick,” lasting only “[a]s long as it is to pu t your hand on someone’s shoulder and then saying don’t touch me.” Defendant admitted Gerber did not expressly consent to being touched on the shoul der, but explained that he “did not touch [plaintiff] in a way that most people in ordinary lif e would feel offensive.” “I think it’s implicit when people talk and they put their hand on your shoulder, direct you to a seat, that there’s consent.” Veltri said he did not intend to harm, offend, or place Gerber in any fear. Sensing that plaintiff was “s trangely offended” by his gest ure, Veltri realized meeting with Gerber alone in the faculty lounge, as he in itially planned, “was a bad idea.” Instead, Veltri asked Ward to join them for a di scussion in Veltri’s office. Ther e, Veltri asked Gerber about the research assistant issue, while Gerber appeared more concer ned with the momentary shoulder squeeze. “You’re not allowed to grab me,” he told Veltri. Veltri insisted he did not grab Gerber,No. 16-4062, Gerber v. Veltri, et al.

-3- and “just touched” plaintiff’s s houlder. Plaintiff claimed defenda nt “continued to berate” him in front of Ward, but Ward denied that either part y raised his voice at the other. Both Ward and Veltri testified that Gerber did not mention that defendant hurt him. Gerber and Ward then retreated to Ward’s o ffice, where plaintiff “alleged that Professor Veltri had hit him and asked if he could demonstrat e to [Ward] what Professor Veltri had done to him.” Ward agreed. He also reenacted Gerber’s demonstration before the district court at the bench trial. Ward described it as “an openhanded hit . . . to the shoulder that was certainly not just a tap, but it was not something that was painfu l at the time.” According to Ward, Gerber did not appear to be in any physical pai n, but he was upset with Veltri. Gerber reported the incident to ONU security that afternoo n. Security officer Eleanor Laubis assisted plaintiff in completing a complain t form. Gerber also demonstrated the alleged assault and battery for Laubis, this time by gr abbing a door knob with a “tight” and “powerful” squeeze. Laubis examined Gerber’s arm, but found no signs of bruising or trauma. Nevertheless, she concluded—evidently before speaking with Veltri—that defendant had assaulted him. However, because campus s ecurity does not make charging decisions, she recommended that Gerber ca ll the campus conduct hotline or the local police. Plaintiff alleges his interac tion with Veltri caused him “m ental anguish” and “emotional distress.” A few days after the incident, Gerb er contacted Dr. William O’Brien, a psychologist who treated Gerber between 2007 an d 2009. O’Brien had no availability to treat patients so he referred plaintiff to a colleague, Dr. Carissa Wo tt. Wott met with Gerb er six times between October 26, 2012, and November 27, 2012. Plaintiff told her he had been “negatively impacted by his work environment,” causing him stress, irritability, insomnia, and depression. Wott diagnosed plaintiff with “mixed anxiety and de pression” and adjustment disorder, a conditionNo. 16-4062, Gerber v. Veltri, et al.

-4- that causes more intense reactions to stressors “t han what we would typicall y expect . . . . [in] a normal response.” Practically speaking, this mean s Gerber has “more difficulties” dealing with the type of ordinary challenges a “normal or reasonable person would be able to cope with in an everyday life”—including his “conflict with . . . interim Dean [Veltri].” Although Gerber reported his symptoms had been “longstanding, ” Wott concluded the October 8, 2012, encounter with Veltri aggravated his disorder. Because she treated plaintiff only after October 8, 2012, Wott explained her evaluation was based solely on Gerber’s own description of his symptoms before and after the alleged assault and battery. But Gerber had in fact reported similar difficulties to O’Brien years earlier. Between 2007 and 2009, O’Brien treated Gerber for stress, anxiety, and “negative encounters” with coworkers. Like Wott, O’Brien taught pl aintiff “strategies to manage depression and anxiety associated with conflict.” Wott acknowledged she formed her opinions without reviewing O’Brien’s notes or inquiri ng about Gerber’s past treatment. Apart from emotional trauma, Gerber allege s he suffered physical injury to his right shoulder. He first sought treatment with ort hopedic surgeon Dr. Mich ael Muha on October 18, 2013—more than a year after his run-in with Veltri, and ten days after he file d suit in state court. Muha diagnosed Gerber with a “partial thickness rotator cuff tear” and “ possibly a component of a labrum tear.” The tear, Muha explained, was not the result of Veltri’ s shoulder squeeze, but a preexisting degenerative condition da ting back to Gerber’s law school days as a softball player. Defendant’s expert, orthopedi c surgeon Dr. Robert Anderson, concurred with Muha’s assessment, agreeing the shoulder grab plaintiff described could not have caused the rotator cuff

tear.No. 16-4062, Gerber v. Veltri, et al.

-5- Still, Muha concluded it was “reasonable” to think that Velt ri’s touching of Gerber’s shoulder could have “exacerbated or provoked” pain related to the preexisting injury. Gerber did not demonstrate Veltri’s “grab” for Muha, as he had done with other witnesses. Muha instead relied on Gerber’s self-reported “history,” a nd his complaint that hi s shoulder “was acutely aggravated by this event on a certain day.” Anderson, by contrast, had reviewed a videotap ed deposition of plaintiff demonstrating Veltri’s shoulder grab. He concluded the grab could not have caused, or exacerbated the pain associated with a rotator cuff tear. At most , he surmised it “could temporarily exacerbate a previously underlying condition, but not to the extent of a year, or three years following that grab.” Anderson and Muha also agreed that Gerb er, an avid golfer and we ight lifter, could have exacerbated his rotator cuff injury during regular physical activity.
II. On October 8, 2013—the last day of the one -year limitations period for intentional torts—Gerber filed suit against ONU, Veltri, and a number of ONU employees in Ohio state

court. See Ohio Rev. Code § 2305.111(B). Plaintiff’s amended complaint and its attachments “exceed[ed] 200 pages and collect[ed] more than seven years’ worth of workplace grievances. Gerber claims he has been bulli ed, lied to, retaliated against, and wrongly denied more than one hundred thousand dollars in retirement benefits” in violation of the Employee Retirement Income Security Act. ONU removed the case to federal court base d on federal question jurisdiction. The district court dismissed plainti ff’s claims against the University on the pleadings and at summary judgment, leaving only the assault and battery allegations against Veltri for trial.No. 16-4062, Gerber v. Veltri, et al.

-6- On November 18, 2015, the district court settled on January 26, 2016, as the date of trial—about two months earlier than contemplated in the original sc heduling order. By this time, the district court had also grante d a request from Gerbe r’s counsel (his thir d in the action) to withdraw from the case. 2 Although Gerber “expressed some reluctance” about moving forward without counsel, the district co urt emphasized that it chose an earlier trial date because Gerber “would have a couple weeks off” in late January , and the 26th “worked very well on [plaintiff’s] calendar.” Even so, Gerber moved for a continua nce. The district court denied the motion, but added that if Gerber was able to secure new coun sel, it would be “happy to consider any request by the lawyer to continue the trial date.” Trial began as scheduled on January 26, 2016, but ended the next day when Gerber’s fourth attorney, Thomas Pigott, unexpectedly fell ill. Anticipating that Pigott would recover, the district court scheduled two potenti al continuation dates: one in April and one in May. Pigott, however, decided he was not well enough to represent Gerber at e ither. He moved to withdraw as Gerber’s counsel on March 21, 2016—43 days ah ead of the potential May 3, 2016, trial start date. Pigott also requested the district court gr ant Gerber a sixty-day continuance to find another attorney. Gerber opposed the motion to withdraw and, for a litany of re asons, orally moved for the district judge to recuse himself from the case. The district court denied Gerber’s motion a nd granted Pigott’s, but declined to afford Gerber the sixty-day continuance. The court simply did not “belie ve 60 days is necessary,” but assured plaintiff that it would entertain a written re quest for a continuance from his next attorney.

2 Gerber fired the first two attorneys who represen ted him in state court. The district court granted his third attorney’s requ est to withdraw after he and Ge rber disagreed over witnesses and summary judgment arguments.No. 16-4062, Gerber v. Veltri, et al.

-7- Gerber moved the district court to reconsider its continuance decision on April 6, but the court denied the motion, confirming May 3, 2016, as the date to resume trial. Gerber did not secure new counsel and completed the bench trial pro se . At the conclusion of the trial, the district court found that Gerber failed to prove th at Veltri assaulted or battered him. See Gerber v. Veltri , 203 F. Supp. 3d 846, 852–54 (N.D. Ohio 2016). Plaintiff now appeals the district court’s judgment.
III. Gerber first claims the district court “committed reversible error” in denying his request for a continuance made after Pigott withdrew from the case. Although the district court enjoys “a great deal of latitud e” in scheduling matters, Morris v. Slappy , 461 U.S. 1, 11 (1983), plaintiff characterizes this “error” as something more than a mere abuse of discretion. See Associated Gen. Contractors of Ohio, Inc. v. Drabik , 214 F.3d 730, 738 (6th Cir. 20 00). In failing to grant him time to find another attorney, Gerber contends th e district court violated his rights to counsel and a fair trial. See Anderson v. Sheppard , 856 F.2d 741, 747 (6th Cir. 1988). However, “not every denial of a request for more time . . . violates due process,” even if the party seeking a stay “is compel led to defend without counsel.” Ungar v. Sarafite , 376 U.S. 575, 589 (1964). “The denial of a . . . motion for a continuance amounts to a constitutional violation only if there is an unreasoning and arbi trary insistence upon expeditiousness in the face of a justifiable re quest for delay.” Franklin v. Bradshaw , 695 F.3d 439, 452 (6 th Cir. 2012) (citation omitted). No “mechanical test[]” determin es whether the district court crossed this line. Ungar , 376 U.S. at 589. “The answer must be found in the circumstances pr esent in every case, particularly in the reasons presented to the tria l judge at the time the request is denied.” Id.No. 16-4062, Gerber v. Veltri, et al.

-8- Here, claiming that the dist rict court acted arbitrarily, Gerber compares his case to Anderson v. Sheppard . Anderson, an African-American employee of Ford Motor Company, alleged that Ford laid him off and refused to reca ll him in retaliation for an earlier discrimination complaint. 856 F.2d at 742. At the close of the firs t jury trial, the distri ct court granted Ford’s motion for a directed verdict on the plaintiff’ s Title VII and 42 U.S.C. § 1981 claims. We reversed, finding that “there were factual disputes that should have been resolved by the jury.” Id. On remand, Anderson’s attorney withdrew fr om the case, and he obtained new counsel. Before re-trying the case, Anderson and Ford attempted to negotiate a settlement, with the district court acting as mediator. Negotiations failed, and the court scheduled the matter for a second trial. However, “ two days before the scheduled trial date ,” the district court allowed Anderson’s replacement c ounsel to withdraw. Id . She, like Anderson’s first attorney, had advised Anderson to accept Ford’s offe red settlement. Anderson declined. Id. Hearing this, the district court questio ned plaintiff: The Court: What makes you think you are ever going to find a lawyer that will carry this case forward the way you want it? If two competent lawyers, one of whom even got a victory for you in the C ourt of Appeals, after I threw the case out, put egg on my face—I’m not mad[]. . . about it. You’re going to have to end up trying this case yourself with no help from anyone. You know what they say about a plaintiff that has himself for a cl ient? Do you think you can try this case in front of a jury by yourself? Mr. Anderson: I don’t know.
* * * The Court: What makes you think that you can do any better than her? You’ve already gotten two lawyers. I’m not going to give you—if she wants to withdraw I’m going to let her. I don’t force la wyers to stay in a case. . . . If I had my druthers I would start the trial of this ca se tomorrow morning, but I can’t because I have another case I’m trying. Mr. Anderson: Well, I would like at least twenty-five days.No. 16-4062, Gerber v. Veltri, et al.

-9- The Court: If I let her go I’m going to tell [the clerk] to put this case on the call, and whenever she finds a date in time to set it for trial we will bring you in . . . and we will go ahead and retry the case like the Court of Appeals told me to. You may win. You may not. The odds are against you, you know that, don’t you? This colloquy continued at length with the di strict court judge ad monishing Anderson for rejecting the settlement offer, and warning him that a jury would likel y “sen[d] [him] down the tube.” Id. at 743 (emphasis omitted). “ You’re gambling here ,” he told Anderson, “ you don’t take that settlement, it’s a straight crap shoot for you .” Id. at 744. The district court instructed the clerk to schedule the case for trial “at the earl iest trial date” available, and made clear that any new counsel will not be give n “any additional time to prepar e other than the date set for trial.” Id. (emphasis omitted). In the three weeks that followed, Anderson attempted, but failed, to find replacement counsel. On the first day of trial, Anderson m oved for additional time, and presented a letter from an attorney who agreed to represent him if the court granted a sixty-day continuance. Id. Again, the district court deni ed the motion, forcing Anderson to conduct th e jury trial pro se . Id. at 744–45. The jury returned a verdict in favor of Ford on both claims. Id. at 745. When Anderson appealed the judgment a s econd time, we reversed. Our holding was two-fold: First, we found the district c ourt judge improperly abandoned his post as a “dispassionate and impartial” ar biter, and, “from all outward a ppearances, assumed the posture of an advocate” hostile to Anderson. See id. at 745–47 (“[T]he district court was hostile toward Anderson because this court had reversed the dist rict court, and, in the words of the district judge, ‘put egg on [his] face.’ . . . Moreover, the di strict court . . . had clearly determined that Anderson should settle on the terms offered by Fo rd.”). Second, we held the district court abused its discretion in failing to grant Anders on “a reasonable time” to obtain new counsel— particularly in view of the complexity of the case, the court’s preemptive promise to proceed “atNo. 16-4062, Gerber v. Veltri, et al.

-10- the earliest trial date” with no further continuanc e, and the lack of any “reasonable justification” for the denial. Id. at 748–49. Gerber’s case does not resemble either ho lding. Plaintiff is right in one respect; “[b]ecause of the fundamental need for judicial neutrality,” the harmless error doctrine “is inapplicable in cases where judicial bias and/or hostility is found to have been exhibited at any stage of a judici al proceeding.” Id. at 746–47. But in the present ca se, the district court did not exhibit “judicial bias and/or hostility ” at any stage of the proceeding. Cases following Anderson typically recount lengthy, tens e exchanges between litigants and the district court because a judge’s on-the-r ecord statements are evidence of his failure to “preserve[] both the appearance and reality of fairness.” Id. at 746 (citation and emphases omitted). See e.g. , Dixon v. Fed. Express Corp. , 33 F. App’x 157, 160–65 (6th Cir. 2002) (per curiam); see also Nationwide Mut. Fire Ins. v. Ford Motor Co. , 174 F.3d 801, 805–09 (6th Cir. 1999), overruled on other grounds by Adkins v. Wolever , 554 F.3d 650, 651 (6th Cir. 2009) (en banc). A due process argument under Anderson thus “requires that hostility and bias be clear and open and that the bias be evident on the record.” Wheeler v. Southland Corp. , 875 F.2d 1246, 1252 (6th Cir. 1989) (citing Anderson , 856 F.2d at 747). But Gerber does not point to any inflammatory comments or bias evident on the record. Instead, he would have this court infer bias from the district cour t’s decisions to deny his several requests for a stay, without rebutting the reasons for its decisions. Gerb er first moved for a continuance on December 8, 2015, after the distri ct court permitted his third attorney to withdraw and scheduled trial for January 2 6, 2016—a date the court chose in part to accommodate Gerber’s class schedule. During a phone status conference on December 18, the district court gave its reasons for denying the moti on. “[A]t this point,” it explained, “what weNo. 16-4062, Gerber v. Veltri, et al.

-11- have left in this case for trial is an assault a nd battery claim between two individuals,” and “so it is my expectation, especially with a bench trial, that this matte r will take one day or less for trial.” In other words, unlike Anderson , this case did not involve a “complex” civil rights action against an institutional defendant like ONU. See 856 F.2d at 748. Also different from Anderson , it did not involve a jury trial. “And also with a bench trial,” the district court planned to be “much more lenient with respect to Mr. Gerb er acting pro se,” even though he was legally trained, making it “easier for him since he will not have to worry about ju ry protocol and that sort of thing.” 3
Yet another difference between Anderson and the present case is th at the district court did not preemptively foreclose the possibility of a c ontinuance in the event that Gerber did find another attorney. To the contra ry, the court told plaintiff it wa s “happy to consider any request” by substitute counsel “to continue the trial date” once he or she en tered an appearance. It made this point explicit at the December 18 status conference and repeated this refrain each time Gerber renewed his motion. Gerber maintains that these assurances must be discounted, because when Pigott appeared on his behalf and reque sted a continuance at a January 11, 2016, phone status conference, the district co urt denied the motion. But even th ere, the court gave a reasoned

3 And the district court was more lenient. It accepted “considerable testimony and received a myriad of exhibits th at bore little (if any) relation to whether an assault and battery occurred on October 8, 2012.” Gerber , 203 F. Supp. 3d at 848. “These topics include—but are not limited to—the awarding of an annual honorary chair by a faculty committee, ONU’s grievance process, review of ONU by the American Bar Association and the Occupational Health and Safety Administrati on, allegations of faculty member s, other than Veltri, bullying Gerber, and ONU’s internal investigation of the alleged assault and battery in the weeks following [the incident].” Id. The district court’s indulgence of Gerber implicates still another distinguishing fact; Gerber is an attorney. As such, he was better equipped to manage his own representation than the “waste tr eatment operator” plaintiff in Anderson

. See 856 F.2d at 749 n.3. Thus, if we reviewed for abuse of discreti on and considered whether Gerber “suffered any actual prejudice as a result of the denial,” we would find none. Associated Gen. Contractors , 214 F.3d at 738 (citation omitted).No. 16-4062, Gerber v. Veltri, et al.

-12- response for its decision: The court “indicated that [it] would entertain a formal motion if [plaintiff] provided reasons for it. And [the court] never got a formal motion.” The reason the district court requested a de finitive written motion is evident from the record. The case set for trial involved only two parties and concerned a ssault and battery only; extensive discovery had been completed; and Pi gott had been on the case since December 22. Further, any replacement counsel would have the advantage of reviewing defendant’s testimony ahead of time, as Pigott had questioned Veltri on th e first day of trial. Finally, the fact that Gerber, who is a lawyer, ultimately defended hi mself is not itself sufficient to demonstrate a denial of his right to a fair trial. Ungar , 376 U.S. at 589. For these reasons, the district court’s decisi on to deny plaintiff a c ontinuance was not an abuse of discretion or a violation of the right to due process.
IV. Next, Gerber challenges Judge Zouhary’s re jection of Gerber’s “several motions” to recuse himself. We review the denial of a recusal motion for abuse of discretion. Bell v. Johnson , 404 F.3d 997, 1004 (6th Cir. 2005) (citing Youn v. Track, Inc. , 324 F.3d 409, 422 (6th Cir. 2003)). “We must have a ‘definite and firm conviction that the trial court committed a clear error of judgment’ before reversing unde r the abuse of discretion standard.” Youn , 324 F.3d at 422 (citation omitted). “To state a due process claim that a judge was biased,” Gerber “must show either that actual bias existed, or that an appearance of bi as created a conclusive presumption of actual bias.” Lewis v. Robinson , 67 F. App’x 914, 922–23 (6th Cir. 2003) (quoting United States v.
Lowe , 106 F.3d 1498, 1504 (10th Cir. 1997)). Plaintiff’ s bias complaints are founded primarily upon the district court’s substantive decisions , including its rulings on his motions for aNo. 16-4062, Gerber v. Veltri, et al.

-13- continuance, for summary judgment, and the admission of certain evidence. 4 None of them evince improper bias. Settlement Conference . Plaintiff contends that during the Febr uary 2015 settlement conference (more than a year before the bench tr ial), Judge Zouhary “vig orously pressed Gerber to resign his tenured faculty position” in retu rn for the Judge’s “assi st[ance]” in obtaining a monetary settlement from ONU. Gerber cites no r ecord evidence to substantiate this claim. Again, “ Anderson requires that hostility and bias be clear and open and that the bias be evident on the record.” Wheeler , 875 F.2d at 1252. Gerber has not made this showing. 5 Motion for Summary Judgment. Next, Gerber argues that th e district court wrongfully refused to consider his motion for summary judg ment on the assault and battery claims. The court explained that it did so because the cut-o ff date for dispositive motions had expired months earlier, and Gerber “did not request to file a summary judgment mo tion” before the cut-off date. Plaintiff maintains Judge Zouhary never instruct ed the parties to seek leave before filing dispositive motions. But plaintiff is mistaken. The district court specified in a standing order that “[n]o dispositive moti ons shall be filed without leave of [the] Court.” 6 Gerber may have

4 Veltri counters that “jud icial rulings alone almo st never constitute a valid basis for a bias or partiality motion” pursuant to the Supreme Court’s decision in Liteky v. United States , 510 U.S. 540, 555 (1994). But Liteky examined bias in the context of a motion for recusal under 28 U.S.C. § 455. See id. at 543. Due-process based motions for recusal under Anderson are a different animal. “ Anderson . . . did not involve section 455, but was an appeal based on a claim that the actions of the district court had deprived th e plaintiff of his right to a fair trial in a fair tribunal.” Wheeler , 875 F.2d at 1252. Thus “the Anderson court reversed and remanded without having to consider the critical factor in section 455 review—whether the bi as stems from an extrajudicial source.” Id. Accordingly, we address each of Gerb er’s arguments on their merits.

5 Gerber also believes the district court deni ed his requests for a continuance due to its hostility against him. For the reasons stat ed in Section III, he is incorrect. 6 See Standing Order regarding “Case Manageme nt Conference Notice/Report of Parties,” available on the website of the District Court for the Northern District of Ohio, http://www.ohnd.uscourts.gov/home/judge s/judge-jack-z ouhary/.No. 16-4062, Gerber v. Veltri, et al.

-14- presented his case pro se , but he does not dispute that he, like any other lit igant, is bound to follow Judge Zouhary’s standing orders. Waiver of Right to Jury Trial . Plaintiff maintains the district court’s “decision to advance the trial date from March to January, whil e simultaneously denying [his] motion for a continuance to obtain substitute counsel,” compelled him to waive his demand for a trial by jury. The record belies his claim. In the same motion, Gerber sought a continuance and withdrew his jury demand. And the district co urt denied the former request an d granted the latte r at the same hearing. Plaintiff’s decision to forego a jury trial thus preceded the court’s ruling against his request for more time. Judge Zouhary’s alle ged “unwillingness to permit [plaintiff] the time needed to secure substitute counsel” cannot have influenced Gerber to withdraw his jury request when Gerber withdrew that request before the Judge expressed any such “unwillingness.”
Ex Parte Communication . Gerber next accuses Judge Zouhary of engaging in an improper ex parte conversation with defense counsel immediately after Pigott fell ill on the second day of trial. Their discussion concer ned when, and how, the court should reschedule the appearance of witnesses slated to testify that day, particularly de fendant’s expert Dr. Anderson. Plaintiff argues that Canon 3(A)(4)(b) of the Code of Conduct for United States Judges prohibits such communication. It does not. 7 But even if it did, this fact is irrelevant; th e Code of Conduct for United States Judges does not establish gr ounds for disqualification under the Due Process Clause. See Railey v. Webb , 540 F.3d 393, 415 (6th Cir. 2008).

7 When circumstances require it, Canon 3(A)(4)( b) “permit[s] ex pa rte communication for scheduling, administrative, or emergency purpose s,” but only “if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactic al advantage as a result of th e ex parte communication.” Judge Zouhary’s discussion with defense counsel was fo r these limited, administ rative purposes. What is more, plaintiff identifies no advantage that defendant received as a result of the communication.No. 16-4062, Gerber v. Veltri, et al.

-15- During the Trial . Lastly, Gerber argues the district court “went too far” when it admitted certain evidence against him. He provides only two examples: first, by admitting testimony concerning Gerber’s history as a litigious employee; and second, by questioning Human Resources Director Tonya Paul ab out Gerber’s interactions with her “many years prior to the assault and battery.” Plainti ff does not explain how, from an evidentiary standpoint, either decision was improper. But from a bias standpoi nt, the district court’ s decisions evince no antagonism against Gerber. If anything, the cour t appears to have admitted this evidence to offset the expansive testim ony plaintiff offered about Veltri’s behavior “many years prior to the assault and battery.” For instance, Gerber questioned a practici ng attorney who graduated from ONU about whether, and to what extent, Velt ri yelled at him or other classm ates when he was a law student years earlier; he quest ioned Veltri about a disput e he and plaintiff had at a staff meeting in 2007, five years before the alleged assault and battery ; and he questioned a faculty secretary about an instance in which Veltri “got very upset” with her at an unspecified time “quite a while” before October 8, 2012. The district court was, in its ow n words, “overly generous” with the evidence it allowed plaintiff to present about Veltri’s years-ol d interactions with others. Viewing the record as a whole, its admission of similar evidence agai nst Gerber is more suggestive of an effort to level the playing field than of bias. In sum, Gerber’s claims of judicial hostility are unsubstantiated; he has not demonstrated that the district judge abused his discretion in declining to r ecuse himself from the case.No. 16-4062, Gerber v. Veltri, et al.

-16- V. Finally, plaintiff contends the district court clearly erred in finding that Veltri did not assault or batter him. We disagree. “Following a bench trial, we review a district court’s factual findings for clear error and its legal conclusions de novo.” Calloway v. Caraco Pharm. Labs., Ltd. , 800 F.3d 244, 251 (6th Cir. 2015). The scope of clear-error review is “narrow.” Bailey v. USF Holland, Inc. , 526 F.3d 880, 885 (6th Cir. 2008). “Under that standard . . . we affirm the court’s finding so long as it is ‘plausible’” and reverse “only when ‘left with the definite and fi rm conviction that a mistake has been committed.’” Cooper v. Harris , 137 S. Ct. 1455, 1474 (2017) (quoting Anderson v. City of Bessemer City , 470 U.S. 564, 573–74 (1985)). Ohio defines assault as “the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact.” Stafford v. Columbus Bonding Ctr. , 896 N.E.2d 191, 200 (Ohio Ct. App. 2008) (per curiam). It defines battery as “an intentional contact with another that is harmful or offensive.” Id. (citing Love v. City of Port Clinton , 524 N.E.2d 166, 167 (Ohio 1988)). To be “offensive,” the contact must be the type “which is offensive to a reasonable sense of personal dignity.” Love , 524 N.E.2d at 167 (citing Restatement (Second) of Tort s, § 19 at 35 (Am. Law Inst. 196 5)). Intent is an essential element of both torts. “To prove assault and battery under Ohio la w, a plaintiff must establish that the defendant unlawfully touched him/her with the intent of inflicting injury or at least creating fear of injury.” Tarver v. Calex Corp. , 708 N.E.2d 1041, 1051 (Ohio Ct. App. 1998).
A. Regarding the assault claim, the district cour t found that Gerber failed to establish that Veltri acted with the requisite intent. Plaintiff testified that once Veltri made contact with hisNo. 16-4062, Gerber v. Veltri, et al.

-17- shoulder, he “thought [Veltr i] was going to punch” him, but “the record is devo id of evidence that Veltri intended for Gerber to apprehend anything of the sort.” See Gerber , 203 F. Supp. 3d at 854. Gerber argues this fact ual finding was clearly erroneous. He points to evidence the district court allegedly “ignor ed” (specifically, testimony fr om others concerning their interactions with Velt ri), “edited” (testimony concerning Gerber’s physical and psychological injuries), or “rewrote” (Veltri’s conflicting statements about how quickly he ran into Gerber in the hallway that morning). None of it speaks to whether Veltri intended to place Gerber “in fear of [offensive] contact.” Stafford , 896 N.E.2d at 200. The district court credited Veltri’s testimony th at he did not intend to put Gerber in fear of offensive contact because “the record corroborate[d] [Ve ltri’s] account.” Gerber , 203 F. Supp. 3d at 854. As the court explained: [After placing his left hand on Gerber’s shoulder, Veltri] took no “definitive act” from which this Court could infer he in tended Gerber to apprehend a harmful or offensive contact. He made no sudden m ovement toward Gerber. He did not bring his free right hand toward Gerber; in fact, he gestured away, toward the faculty lounge. He did not say anythi ng to Gerber suggesting he intended to physically harm Gerber. Id. (citation omitted). These undis puted facts convinced the distri ct court that Veltri’s account was more believable than Gerber’s, and an outco me dependent upon the trial court’s credibility determination is not clearly erroneous. See Fed. R. Civ. P. 52(a)(6) (“[T]he reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”). “[W]hen a trial judge’s finding is based on his decision to cr edit the testimony of one of two or more witnesses, each of w hom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson , 470 U.S. at 575. If a finding is plau sible in light of the full record, that finding “must govern,” even if we would ha ve decided the matter differently in the firstNo. 16-4062, Gerber v. Veltri, et al.

-18- instance. Cooper , 137 S. Ct. at 1465 (citing Anderson , 470 U.S. at 573–74). Here, the district court’s factual finding that Veltri did not intend to place Gerber in apprehension of offensive contact is more than plausible. Accordingly, it did not clearly err in finding that defendant did not assault plaintiff.
B. Intent also came into play in the district co urt’s resolution of Gerber’s battery claim, even though “the kind of intent required for ba ttery is an open question in Ohio.” Gerber , 203 F. Supp. 3d at 852. Some panels of the Ohio Court of Appeals require what the district court referred to as “dual intent,” see id. , meaning that the defendant must act both with the intent to make physical contact, and with the intent that the contact offend or cause bodily harm to the plaintiff. See Tarver , 708 N.E.2d at 1051. Others require only “single intent”—i.e ., the intent to make physical contact. See Feeney v. Eshack , 718 N.E.2d 462, 464 (Ohio Ct. App. 1998) (“[I]t is not necessary to intend the harmful result; it is sufficient to intend the offensive contact that causes the injury.”). The Ohio Supreme C ourt’s position on this issue is not clear. See Love , 524 N.E.2d at 167 (“A person is subjec t to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results.”). As expected, plaintiff advocates for the singl e-intent approach. Yet even there, the district court concluded Gerber’s claim faile d “because he has not satisfied the remaining element of battery: namely, that the contact be harmful or offensive.” Gerber , 203 F. Supp. 3d at 852. Its finding was not clearly erroneous. Regarding harm, the district court had good r eason to conclude Gerb er’s “complaints of pain [were] belied by the record.” Id. at 853. Gerber did not complain of pain to Veltri or Ward immediately after the incident. When Security Officer Laubis examined his shoulder that sameNo. 16-4062, Gerber v. Veltri, et al.

-19- day, she detected no sign of bruising or other tr auma. Gerber did not seek treatment with Dr. Muha until more than a year after the incident—a nd then only after he filed suit against Veltri in state court. Muha found it plausible that Gerb er’s preexisting rotator cuff injury was exacerbated by defendant’s touch, but he ac knowledged he formed his opinion based solely on Gerber’s report that his shoulder “was acute ly aggravated by this event on a certain day.” He, unlike Dr. Anderson, never witnessed Gerber demonstrate the shoulder grab and relied solely on Gerber’s word. “In light of the other record evidence,” the district court found that “Gerber’s word fails to carry his burden to show Veltri’ s touch caused physical injury.” Id. Such a credibility determination can “virtually never be clear error.” Anderson , 470 U.S. at 575. Gerber counters that in concluding he di d not demonstrate harm, the district court misinterpreted Ohio law, which does not require pr oof of an actual physical injury to sustain an action for battery. Plaintiff is right; physical in jury is not a uniform prerequisite since “the conduct complained of must be [either] harmful or offensive.” Tarver , 708 N.E.2d at 1051 (emphasis added). But the district court found that Gerber also failed to make the alternate showing: that Veltri’s touch would be offens ive to a reasonable sense of personal dignity. See
Love , 524 N.E.2d at 167 (“Conduct which is offensive to a reasonable sense of personal dignity is offensive contact.”). This too was not clearly erroneous. For one, even if Veltri knew that any physical contact was likely to offend plaintiff, as plaintif f believes he must have, the district court had reason to question whether the offense Gerber expe rienced was actually attributable to Veltri’s contact. Dr. Wott opined that plaintiff’s enc ounter with Veltri aggravated his anxiety and depression. But because she began treating pl aintiff only after October 8, 2012, Wott “had no benchmark for determining the e ffect the incident had on Gerb er’s preexisting psyche” apartNo. 16-4062, Gerber v. Veltri, et al.

-20- from Gerber’s own assessment. Gerber , 203 F. Supp. 3d at 853. Gerber’s other emotionaldistress witnesses, Father David Young and form er ONU law professor Bruce French, likewise did not detect a noticeable change in Gerber’s demeanor after th e alleged assault and battery. For another, Gerber does not have a reasonable sense of personal di gnity. Wott testified that he experiences “more difficulties” dealing with the challenges a “normal or reasonable person would be able to cope w ith in an everyday life,” including conflict with coworkers. But “[i]n order that a contact be offensive to a reas onable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.” Restatement (Second) of Torts § 19 cmt. a; see also
Love , 524 N.E.2d at 167 (relying on the Restatement) . Touching a colleague on the shoulder to get his attention is well within the ordinary “social usages preval ent” in the workplace. Insofar as Veltri’s touch caused plaintiff emotional distress, it is because plaintiff “take[s] things more personally than usual,” not because defendant’s conduct was “offensive to a reasonable sense of personal dignity.” Love , 524 N.E.2d at 167. Therefore, the di strict court’s finding that defendant did not batter plaintiff was not clearly erroneous. On the whole, we are not left with “the de finite and firm conviction that a mistake has been committed.” Anderson , 470 U.S. at 573 (citation omitted). We therefore conclude the district court did not clearly er r in finding that Veltri did not assault or batter Gerber.
VI. For the foregoing reasons, we affi rm the district court’s judgment.