[Cite as McDade v. Cleveland State Univ., 2014-Ohio-4026.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Shana McDade, : 

 Plaintiff-Appellant, : 

v. : No. 14AP-275 

 (Ct. of Cl. No. 2013-00025) 

Cleveland State University, : 

 (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on September 16, 2014 

 

Peterson & Ibold, and Brian L. Bly, for appellant. 

Michael DeWine, Attorney General, and Emily M. Simmons, 

for appellee. 

 

APPEAL from the Court of Claims of Ohio 

TYACK, J. 

{¶ 1} Plaintiff-appellant, Shana McDade, appeals from a judgment in the Court of 

Claims of Ohio granting summary judgment in favor of the State of Ohio. She raises one 

assignment of error as follows: 

THE TRIAL COURT ERRED IN GRANTING DEFENDANTAPPELLEE'S MOTION FOR SUMMARY JUDGMENT. 

Factual and Procedural Background

{¶ 2} McDade enrolled in an accelerated Bachelor of Science in Nursing Program 

at Cleveland State University ("CSU") beginning in January 2011. She was dismissed 

from the program for alleged misconduct that took place on November 30, 2011 during 

an obstetrics clinical rotation. According to CSU, she failed to perform the appropriate 

assessments necessary for care of an assigned patient. She misrepresented assessment 
No. 14AP-275 2 

findings to her instructor and the RN responsible for the patient. She also falsified a legal 

document by charting in the patient record findings of an assessment that she did not 

perform. 

{¶ 3} McDade tried through university channels to be reinstated to the program, 

alleging racial discrimination and a failure to hear her side of the story. Ultimately, she 

was unsuccessful in her efforts. The Student Grievance Board conducted a hearing and 

found no evidence of racial discrimination. However, the board recommended that her 

dismissal was not warranted due to lack of direct evidence from patient records and that 

she had not been afforded notice and an opportunity to be heard prior to her dismissal. 

The president of CSU rejected the recommendation of the board and accepted the School 

of Nursing decision to dismiss McDade from the program on February 16, 2012. 

{¶ 4} On January 14, 2013, McDade filed suit in the Court of Claims of Ohio 

alleging that she was deprived of due process in violation of 42 U.S.C. 1983; that CSU 

negligently breached a duty to treat her fairly in accordance with the student handbook; 

that CSU breached a contract by improperly dismissing her from the program; and that 

CSU was unjustly enriched by retaining her fees and tuition. 

{¶ 5} The state filed a motion to dismiss the 42 U.S.C. 1983 claim for lack of 

subject-matter jurisdiction, and the trial court granted the motion. The trial court ruled 

that her claims for negligence, breach of contract, and unjust enrichment could go 

forward. 

{¶ 6} The state filed a motion for summary judgment supported by the affidavit of 

Vida Lock, BSN, MSN, PhD, RN, the Dean of the School of Nursing, and the depositions 

of McDade and "Patient A," the patient to whom McDade was assigned on November 30, 

2011.1 McDade responded with her own affidavit and deposition. She made three 

arguments: (1) she denied committing the acts she was accused of; (2) she argued that she 

was denied an opportunity to be heard prior to her dismissal; and (3) she argued that the 

claims against her were never properly investigated. 

{¶ 7} The trial court granted summary judgment for the state finding that the 

relationship between CSU and McDade was contractual in nature, and therefore her 

claims for negligence and unjust enrichment were not available. With respect to the claim 

 

1 Patient A's deposition was filed under seal pursuant to a protective order. 
No. 14AP-275 3 

for breach of contract, the trial court concluded that McDade had failed to cite to any 

contract provision or specific provision in the student handbook that CSU allegedly 

violated, that there was no evidence that CSU acted arbitrarily in dismissing McDade, and 

that no reasonable trier of fact could find that CSU failed to exercise professional 

judgment in deciding to dismiss McDade from the program. 

{¶ 8} On appeal, McDade concedes that her only claim is one for breach of 

contract. McDade contends that the trial court improperly granted summary judgment 

because it weighed the conflicting evidence in favor of CSU and against McDade. McDade 

also claims that the trial court ignored her deposition testimony and considered only her 

affidavit and that of Dean Lock. McDade argues that Dean Lock's affidavit was not based 

on personal knowledge and, was instead, based on hearsay. She further argues that the 

trial court failed to address the issue of her being dismissed before she had an opportunity 

to give her side of the story, that the investigation was flawed, and that the evidence that 

the Student Grievance Board recommended the dismissal be rescinded was sufficient to 

defeat summary judgment. 

Standard of Review

{¶ 9} In light of McDade's assertion that the trial court improperly weighed 

evidence and did not consider all the evidence, we shall restate in some detail how we 

review motions for summary judgment. 

{¶ 10} Appellate review of summary judgment is de novo. Reed v. Davis, 10th Dist. 

No. 13AP-15, 2013-Ohio-3742, ¶ 9. When reviewing summary judgment, we stand in the 

shoes of the Court of Claims, conduct an independent review of the record, and affirm the 

trial court's judgment if any of the grounds the movant raised in the trial court supports 

the court's judgment, even if the trial court failed to consider those grounds. See Dresher 

v. Burt, 75 Ohio St.3d 280, 292 (1996); Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-

42 (9th Dist.1995). 

{¶ 11} Summary judgment is appropriate only where: (1) no genuine issue of 

material fact remains to be litigated; (2) the moving party is entitled to judgment as a 

matter of law; and (3) viewing the evidence most strongly in favor of the non-moving 

party, reasonable minds can come to but one conclusion and that conclusion is adverse to 
No. 14AP-275 4 

the non-moving party. Civ.R. 56; Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 

2008-Ohio-87, ¶ 11. 

{¶ 12} The party seeking summary judgment initially bears the burden of 

informing the trial court of the basis for the motion and identifying portions of the record 

that demonstrate no genuine issues of material fact remain as to the essential elements of 

the non-moving party's claims. Dresher at 293. The moving party may not fulfill its initial 

burden simply by making a conclusory assertion that the non-moving party has no 

evidence to prove its case. Id. Rather, the moving party must support its motion by 

pointing to some evidence of the type set forth in Civ.R. 56(C) that affirmatively 

demonstrates the non-moving party has no evidence to support the non-moving party's 

claims. Id.

{¶ 13} If the moving party satisfies its initial burden, the non-moving party must 

respond by affidavit or as otherwise provided in Civ.R. 56 with specific facts indicating a 

genuine issue remains for trial. Id. at 293; Hall v. Ohio State Univ. College of 

Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12. 

{¶ 14} " 'Trial courts should award summary judgment with caution, being careful 

to resolve doubts and construe evidence in favor of the nonmoving party.' " Vossman v. 

AirNet Sys., 10th Dist. No. 12AP-971, 2013-Ohio-4675, ¶ 13, quoting Welco Industries, 

Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65 

Ohio St.3d 356 (1992). " 'Even the inferences to be drawn from the underlying facts 

contained in the evidentiary materials, such as affidavits and depositions, must be 

construed in a light most favorable to the party opposing the motion.' " Vossman at ¶ 13, 

quoting Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing 

Turner v. Turner, 67 Ohio St.3d 337, 341 (1993). 

Claim for Breach of Contract

{¶ 15} In order to survive summary judgment, McDade had to point to some 

evidence to support each element of her claim for breach of contract. That is, she was 

required to present evidence of "the existence of a contract, performance by the plaintiff, 

breach by the defendant, and damage or loss to the plaintiff." Jarupan v. Hanna, 173 

Ohio App.3d 284, 2007-Ohio-5081, ¶ 18 (10th Dist.), citing Powell v. Grant Med. Ctr., 

148 Ohio App.3d 1, 10 (10th Dist.2002). 
No. 14AP-275 5 

{¶ 16} Here, the parties agree that their relationship was governed by contract. In 

Tate v. Owens State Community College, 10th Dist. No. 10AP-1201, 2011-Ohio-3452, ¶ 21 

and Jefferson v. Univ. of Toledo, 10th Dist. No. 12AP-236, 2012-Ohio-4793, ¶ 15, this 

court stated that the relationship between a college and a student who enrolls, pays 

tuition, and attends class is contractual in nature, and that the terms of this relationship 

may be found in the handbook, catalogue, and other guidelines supplied to students. 

{¶ 17} However, in order to prove a breach by CSU, McDade was required to show 

that the defendant "did not perform one or more of the terms of the contract." Little Eagle 

Properties v. Ryan, 10th Dist. No. 03AP-923, 2004-Ohio-3830, ¶ 15. McDade has 

pointed to no evidence that CSU and the school of nursing did not abide by the terms of 

the student handbook or other policies and guidelines. 

{¶ 18} McDade argues that, based on the timeline of events, she was dismissed 

before she was given an opportunity to tell her side of the story. Even if true, there can be 

no genuine issue of material fact about this point because McDade was subject to 

immediate dismissal for her alleged misconduct. 

{¶ 19} The CSU Baccalaureate Nursing Program Student Handbook specifically 

provides as follows: 

The School of Nursing reserves the right to immediately 

dismiss a student from the nursing major for incidents in 

which a nursing faculty member's written documentation 

indicates that the student's behavior was inconsistent with 

the responsibilities of citizenship or the profession of 

nursing. 

(Student Handbook, at 51.) 

{¶ 20} "[F]alsifying data on client's record" is one of the offenses listed that will 

result in dismissal. (Student Handbook, at 52.) 

{¶ 21} Under the heading "PROCEDURE," the handbook states: 

1. The student will receive written notification from the 

Admission, Progression and Standards Committee of reasons 

for the dismissal or action to be taken. 

2. The director of the School of Nursing will review data 

submitted by the Admission, Progression and Standards 
No. 14AP-275 6 

Committee and make the final decision on the dismissal of 

any student enrolled in the Nursing Program. 

(Student Handbook, at 52-53.) 

{¶ 22} McDade acknowledged in her deposition that she received written 

notification from the Admission, Progression and Standards Committee of reasons for her 

dismissal. (McDade Depo., at 43 and exhibit D.) 

{¶ 23} McDade has not presented any evidence of a genuine issue of material fact 

as to whether Dean Lock dismissed McDade from the nursing program in accordance 

with the student handbook. 

{¶ 24} McDade also availed herself of the CSU Student Grievance Board to appeal 

her dismissal. Their findings were not binding, but only a recommendation, as shown by 

a letter from the President of CSU accepting the decision of the School of Nursing to 

dismiss McDade and rejecting the recommendation of the Student Grievance Board. 

(Exhibit H to Affidavit of Vida Lock.) 

Differing Versions of Events on November 30, 2011

{¶ 25} McDade presented a starkly different version of what happened on the day 

of her clinical rotation from that of Patient A. In her deposition and in written 

documentation to CSU, she recounted in detail that she properly attended to Patient A 

and her baby on the day in question. Her counsel argues that the facts in her affidavit and 

deposition create genuine issues of material fact that would preclude summary judgment. 

{¶ 26} Assuming that McDade's version of events is true, the issue is not whether 

she is to be believed or the instructors and the dean are to be believed; rather, the issue is 

whether CSU acted arbitrarily in dismissing her from the program. 

{¶ 27} In Jefferson, this court set forth that the well settled "standard for reviewing 

the academic decisions of a college 'is not merely whether the court would have decided 

the matter differently but, rather, whether the faculty action was arbitrary and 

capricious.' " Id., quoting Bleicher v. Univ. of Cincinnati College of Medicine, 78 Ohio 

App.3d 302, 308, citing Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91 

(1978). Accordingly, a " 'trial court [is] required to defer to academic decisions of the 

college unless it perceived "* * * such a substantial departure from accepted academic 

norms as to demonstrate that the person or committee responsible did not actually 
No. 14AP-275 7 

exercise professional judgment." ' " Jefferson at ¶ 16, citing Bleicher at 308, quoting 

Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985). 

{¶ 28} Six months before the incident that led to McDade's dismissal, Dean Lock 

counseled McDade after receiving serious allegations about McDade's truthfulness from 

one of her clinical instructors. At that time, McDade was counseled but allowed to 

continue in the program. Thus, when confronted with even more serious allegations of 

misconduct during the obstetrics rotation, Dean Lock decided to dismiss McDade from 

the nursing program. 

Conclusion

{¶ 29} McDade was charged with serious misconduct. She had a documented 

history of prior untruthfulness. Given the information provided to the dean, and the 

student handbook provision for immediate dismissal for serious misconduct, reasonable 

minds can only conclude that CSU did not act in an arbitrary and capricious manner in 

immediately dismissing her from the program. Nor has McDade provided any evidence 

that CSU violated its policies and procedures, an essential element of her breach of 

contract claim. Therefore, the decision of the Court of Claims of Ohio to grant summary 

judgment was appropriate. 

{¶ 30} The sole assignment of error is overruled, and the judgment of the Court of 

Claims of Ohio is affirmed. 

Judgment affirmed. 

BROWN and LUPER SCHUSTER, JJ., concur.