text:
    Michael J. MULDOWNEY, Plaintiff-Appellant, v. PORTAGE COUNTY, Ohio Board of County Commissioners, et al. Defendants-Appellees.
    NO. 2017-P-0072
    Court of Appeals of Ohio, Eleventh District, Portage County.
    Decided June 29, 2018
    John F. Myers, 275 North Portage Path, # 3C, Akron, OH 44303 (For Plaintiff-Appellant).
    Todd M. Raskin, Frank H. Scialdone, and David M. Smith, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendants-Appellees).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Michael J. Muldowney, appeals from the order of the Portage County Court of Common Pleas granting appellees, Portage County, Ohio Board of County Commissioners, et al., summary judgment. At issue is whether appellant's statutory claims for disability discrimination and retaliatory discharge are barred by operation of the doctrine of collateral estoppel because appellant previously went through the grievance process, per the parties collective bargaining agreement ("CBA") and the arbitrator found appellant was terminated for just cause. If the causes of action are not so barred, we must determine whether there are genuine issues of material fact that remain for litigation. We answer the first issue in the negative, but conclude summary judgment was nevertheless appropriate. We therefore affirm.

{¶ 2} Appellant commenced employment with the Portage County Sheriff's Department in September 2000. In 2009, appellant generally worked first-shift courthouse security. He was assigned to third shift, however, for road-patrol training, pursuant to a policy implemented by Sheriff David Doak requiring all deputies to be road-certified. Appellant spoke with certain superiors, advising them that he suffered from sleep apnea and working third shift may be difficult for him due to the medical condition. Regardless, appellant commenced training on third shift.

{¶ 3} Appellant exhibited multiple deficiencies during his road training. Appellant's field-training officer noted various problems in appellant's driving in his daily observation reports. In particular, appellant lacked familiarity with county roads and landmarks; possessed poor map-reading skills; he was unable to determine the shortest route possible between two points; he lacked knowledge of county geographical lines; he failed to notice street signs indicating county lines; he had a poor sense of direction; he would fail to stop before turning right on red; he turned right on red where a sign was posted "no turn on red," and he had difficulty "multi-tasking."

{¶ 4} On January 12, 2010, appellant's treating physician, Dr. Stephen Crowe, prepared a letter "[t]o whom it may concern," in which he opined appellant had "obstructive sleep apnea." The letter further advised that, "[d]ue to compliance and treatment, it may be best if [appellant] work first or second shift * * *." Although Sheriff Doak did not specifically recall receiving the letter, he stated he would have been hesitant to afford appellant a shift change or granting appellant "light duty." He maintained deputies were required to bid for a shift change and the sheriff had instituted a policy whereby light duty was not an option; in his estimation, one was either fit for duty or not. On January 26, 2010, Dr. Crowe sent a second letter, this time directly to Sheriff Doak, stating appellant had been diagnosed with obstructive sleep apnea and shift work disorder. The doctor apologized for the "nature" of the previous letter and noted he was taking steps to resolve the problems with "CPAP and medications." The doctor advised the sheriff he was aware that "shifts are required for his positions" and he expected "significant improvements over the next few weeks."

{¶ 5} On February 2, 2010, Sheriff Doak sent a letter to Dr. Joel Steinberg, advising the doctor that an appointment had been made for appellant to undergo an independent medical examination. The sheriff noted his belief that the examination was necessary due to appellant's recent behavior. The sheriff stated, "[n]ot only has [appellant] been insubordinate, but his erratic behavior has supervisors concerned for his welfare along with his fellow employees."

{¶ 6} On February 22, 2010, after receiving Dr. Steinberg's evaluation, Sheriff Doak made an appointment with Dr. Roger Weiss to schedule a neurological examination for appellant. The sheriff noted that, in the course of evaluating appellant's fitness for duty, Dr. Steinberg recommended appellant see a neurologist due to concerns that he might be developing dementia.

{¶ 7} On March 1, 2010, Dr. Weiss provided the Sheriff with progress notes and, on April 20, 2010, Dr. Weiss provided a fitness-for-duty report indicating appellant was fit for duty, but restricted from working third shift. Sheriff Doak subsequently instructed appellant to work the "power shift," from 8:00 p.m. to 4:00 a.m. (third shift is from 12:00 a.m. to 8:00 a.m.) Appellant spoke with the sheriff's administrative assistant, Linda Mottern, and explained he could not work nights, per Dr. Weiss' recommendation. In response, the sheriff wrote appellant, stating the doctor's recommendation failed to provide sufficient information to make a decision regarding a full accommodation. As such, Sheriff Doak requested appellant to obtain further information and documentation from Dr. Weiss regarding, inter alia, his impairments, the activities limited by these impairments, as well as medical records from all medical professionals from whom he had sought treatment for the impairments. In the meantime, appellant was ordered to work the power shift.

{¶ 8} On April 26, 2010, Sheriff Doak sent appellant a letter questioning the relevance of a seven-year-old report relating to a sleep study in which he had previously participated; the letter also noted appellant had questioned the sheriff whether he had to report for work. The sheriff confirmed appellant's status had not changed and he was to complete his road-certification training by May 10, 2010. During his April 27, 2010 shift, Deputy Heath Wilson reported that, while appellant was road training, he stated he could not drive after midnight; appellant advised Deputy Wilson that numerous doctors had explained this to Sheriff Doak, but he has not listened. The report further detailed the problems appellant has with his impairments and noted that, during the training, appellant called Sheriff Doak at home to discuss his doctors' purported recommendations. Deputy Wilson emphasized he was documenting the incident to clarify he had no foreknowledge of appellant's intention to call the sheriff.

{¶ 9} On April 29, 2010, appellant was notified of a pending disciplinary action submitted by Charging Officer, Major Dale Kelly and Sheriff Doak, for incompetency and insubordination. He was given notice of the pre-disciplinary hearing and that the proposed disciplinary action could result in termination. It is unclear what, if anything, occurred at this hearing. The notice, however, specifically indicated the proposed disciplinary action was appellant's termination.

{¶ 10} On the same day, an Americans with Disabilities Act ("ADA") questionnaire was sent to appellant's treating physicians. On May 14, 2010, appellant was granted leave under the Family Medical and Leave Act ("FMLA"). On May 20, 2010, appellant provided executed copies of the ADA questionnaire. Meanwhile, Dr. Weiss contacted the Sheriff's Office and, via written recommendation, stated appellant would be unable to return to work until after July 28, 2010 "pending further testing and evaluation."

{¶ 11} On June 8, 2010, Sheriff Doak sent appellant a letter outlining the details of the reports received by Portage County and the Portage County Sheriff's Office relating to appellant's impairment. The letter noted he had been granted FMLA leave until July 20, 2010 and that the Sheriff's Office would agree to accommodate appellant in the following ways upon his return to active duty: First, the sheriff stated he would keep appellant's position as deputy open until his return, per his physician's order, on July 28, 2010; and when he returns, he will complete his road certification on first shift and upon successful completion, he would be assigned to first shift as a deputy sheriff. If, however, an emergency requires him to report at any time, day or night, he will be expected to report for duty.

{¶ 12} On June 14, 2010, Dr. Weiss sent a notification to the Portage County Sheriff's Office stating appellant was cleared to return to work; hence, appellant's FMLA leave ended as of that date. On June 18, 2010, Sheriff Doak sent appellant a memorandum relating to Dr. Weiss' notification. He acknowledged the doctor released him to return to work, but also pointed out appellant's status, effective June 15, 2010, would revert back to administrative leave without pay pending termination, pursuant to the April 29, 2010 disciplinary notice. On June 21, 2010, Sheriff Doak formally notified appellant he was terminated due to the allegations in the April 29, 2010 notice of disciplinary action. Appellant filed a grievance, pursuant to the CBA entered between appellant's union and the Sheriff's Officer (via the Portage County Commissioners).

{¶ 13} The grievance resulted in arbitration and a hearing was held on July 8, 2011. On January 11, 2012, the arbitrator reached her decision based solely upon the alleged misconduct set forth in the April 29, 2010 notice of disciplinary action. The arbitrator determined, under the terms of the CBA, there was just cause for the termination of appellant for incompetency regarding essential duties that could directly affect the health and safety of the public and appellant's colleagues.

{¶ 14} In September 2015, appellant filed a complaint against appellees asserting claims of disability discrimination and retaliatory discharge, pursuant to R.C. Chapter 4112. The parties stipulated to the record of the July 2011 arbitration hearing, which included a transcript of the sworn testimony and the exhibits introduced during the proceedings. As such, these items were considered part of the record in the instant matter. Appellees filed a motion for summary judgment, arguing appellant's claims are barred by the doctrine of collateral estoppel and even if not barred, appellant could not establish the elements of his causes of action as a matter of law. The motion was supported by the deposition of Sheriff Doak, the transcript of the July 8, 2011 arbitration proceedings, and the arbitrator's ultimate decision.

{¶ 15} Appellant filed his memorandum in opposition to appellees' motion and supported the same with his personal affidavit. Appellees subsequently filed a reply to appellant's memorandum. On September 19, 2017, the trial court entered an order granting appellees' motion for summary judgment. The trial court offered no analysis in support of its determination that there were no genuine issues of material fact and, as a result, appellees were entitled to summary judgment. Appellant now appeals and assigns the following as error:

{¶ 16} "The trial court erred in granting defendants' motion for summary judgment."

{¶ 17} Summary judgment is a procedural tool that terminates litigation and thus should be entered with caution. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66, 609 N.E.2d 144 (1993). Summary judgment is proper where (1) there is no genuine issue of material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion favors the movant. See, e.g., Civ.R. 56(C).

{¶ 18} Because the trial court failed to provide a basis for its conclusion that appellees were entitled to summary judgment, appellant challenges each argument asserted by appellees in their dispositive motion. Appellant first argues the trial court erred to the extent it awarded appellees summary judgment based upon collateral estoppel. The doctrine of issue preclusion, also known as collateral estoppel, holds that a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different. Norwood v. McDonald , 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph three of the syllabus. Collateral estoppel precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action that was based on a different cause of action. Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 112, 254 N.E.2d 10 (1969).

{¶ 19} Appellant asserts that, even though the issue of whether he was terminated for just cause was addressed via arbitration, pursuant to the CBA, the arbitrator's ruling did not preclude the underlying statutory discrimination claims. Appellant notes that, even though res judicata has the effect of precluding relitigation of the same cause of action, collateral estoppel precludes relitigation of an issue that has been actually litigated and determined in a prior action. Appellant maintains his statutory causes of action were not "actually and necessarily" litigated in a previous action.

{¶ 20} Alternatively, appellees argue collateral estoppel bars the underlying claims because the facts and issues animating the claims were determined during arbitration. Appellees claim, under Ohio law, an "arbitration award has the same preclusive effect as a court judgment for the matters it decided." See e.g. Ford Hull-Mar Nursing Home, Inc. v. Marr, Knapp, Crawfis & Assoc., Inc., 138 Ohio App.3d 174, 181, 740 N.E.2d 729 (7th Dist.2000). Appellees maintain the issue of whether appellant's termination was the result of discriminatory practices was decided by the 2012 arbitration decision. And, because the arbitrator determined appellant was terminated due to incompetency, the underlying issues are barred by collateral estoppel.

{¶ 21} Appellant cites Alexander v. Gardner-Denver Co. , 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), as his primary authority that collateral estoppel does not bar his statutory claims. Alexander involved a grievance-arbitration provision in a CBA and racial discrimination claims under Title VII. The CBA also contained a "no-discrimination" clause. The employee in Alexander was terminated and filed a grievance for violation of the CBA alleging racial discrimination. The arbitrator ultimately determined there was just cause for the employee's termination, but did not comment on the claim of racial discrimination. After the arbitration concluded, the employee filed suit in federal district court under Title VII, alleging his discharge resulted from a racially discriminatory employment practice. The employer moved for summary judgment, which the district court granted. The court reasoned the employee was bound by the prior arbitral decision and had no right to sue under Title VII. The circuit court affirmed, and the United States Supreme Court reversed. Id. The Supreme Court analyzed the purpose and operation of Title VII and concluded:

{¶ 22} [T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement rather than supplant, existing laws and institutions relating to employment discrimination. In sum, Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement. Id. at 48-49, 94 S.Ct. 1011.

{¶ 23} The Court also noted the contractual and statutory rights at issue created two separate schemes of remedies. And because there is a difference between collective and individual rights under the agreement and Title VII, "an employee's rights under Title VII are not susceptible to prospective waiver" in a collective bargaining agreement. Id. at 51-52, 94 S.Ct. 1011. And, the Court emphasized the role of the arbitrator is invariably different from that of a court resolving a discrimination suit:

{¶ 24} If an arbitral decision is based 'soley upon the arbitrator's view of the requirements of enacted legislation,' rather than on an interpretation of the collective bargaining agreement, the arbitrator has 'exceeded the scope of the submission,' and the award will not be enforced.[ United Steelworkers of America v. Enterprise Wheel & Car Corp. , 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) ] Thus the arbitrator has authority to resolve only questions of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII. Alexander , supra , at 53-54, 94 S.Ct. 1011.

{¶ 25} Accordingly, the Court noted that arbitration, per a CBA, does not prevent the Title VII suit because "the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under Title VII." Id. at 59-60, 94 S.Ct. 1011. Alexander therefore stands for the general proposition that a CBA-arbitration decision and award does not bar Title VII discrimination claims based on the doctrines of res judicata or collateral estoppel.

{¶ 26} Subsequent to Alexander , in Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Court addressed the relationship between an agreement to arbitrate and the federal Age Discrimination in Employment Act ("ADEA"). In Gilmer , a securities broker was required by his employer to register as a securities representative with, inter alia, the New York Stock Exchange. The registration application included an agreement to arbitrate any controversy arising out of a registered representative's employment or termination of employment. The employee was terminated at the age of 62 and, rather than seek arbitration, elected to file an ADEA claim in federal district court. The employer filed a motion to compel arbitration, which was denied by the district court based upon Alexander . The circuit court reversed the judgment on the basis that the ADEA did not preclude arbitration. The Supreme Court affirmed the circuit court, distinguishing Alexander . The Court noted the key distinction between the cases was that the individual employee in Gilmer signed an agreement to arbitrate his statutory claims, rather than a union signing a CBA to arbitrate contractual claims. Id. at 35, 111 S.Ct. 1647. Hence, the employee was precluded from filing suit on the statutory claims. Id.

{¶ 27} In Wright v. Universal Maritime Service Corp. , 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998), the Supreme Court again addressed arbitration under a CBA and the ADA. In Wright , the CBA included a grievance-arbitration provision. When the employee was not permitted to return to work after an injury, he filed suit under the ADA, rather than filing a grievance. The district court dismissed the employee's suit for failing to pursue the grievance procedure. The circuit court affirmed, concluding the CBA arbitration clause encompassed a statutory claim under the ADA and was enforceable. The Supreme Court reversed, concluding that for a "union-negotiated waiver of employees' statutory right to a judicial forum for claims of employment discrimination" to be enforceable, it must be "clear and unmistakable" that a specific statutory right was waived. Id. at 80, 119 S.Ct. 391. The Court emphasized, " 'we will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is "explicitly stated." ' " Id. , quoting Metropolitan Edison Co. v. NLRB , 460 U.S. 693, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983). Thus, Wright created an additional exception to Alexander ; to wit, if a grievance-arbitration clause clearly and unmistakably waives an employee's right to bring suit under federal anti-discrimination schemes (or other statutory schemes), it will be upheld.

{¶ 28} Several courts in Ohio have addressed the interplay between arbitration pursuant to a CBA and statutory discrimination claims. In Felger v. Tubetech, Inc., 7th Dist. Columbiana No. 2000 CO 23, 2002 WL 417903, an employee injured on the job filed a workers' compensation claim. After she was discharged from her employment, the employee filed a grievance alleging her discharge was due to a pattern of company-sanctioned discrimination and harassment arising from her workers' compensation claim. The arbitrator denied the employee's claims. She subsequently filed a complaint in state court asserting various discrimination and retaliation claims. The trial court granted the employer summary judgment, concluding the employee's claim was barred by the doctrine of collateral estoppel. The court reasoned that "the plaintiff raised those issues in the arbitration and therefore asked for them to be decided by the arbitrator." Id.

{¶ 29} On appeal, the Seventh Appellate District Court reversed. The court noted that in Alexander, the statutory claim of racial discrimination and the contractual claim of discharge without just cause involved the same issue, i.e., the reason for the employee's discharge. Id. at *7. The court pointed out, however, the United States Supreme Court, in Alexander , had held that the employee's contractual right to arbitration and statutory claim " 'have legally independent origins and are equally available to the aggrieved employee.' " Felger. quoting Alexander , at 52, 94 S.Ct. 1011. The court observed:

{¶ 30} " 'An arbitrator is confined to interpretation of and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. * * * If an arbitral decision is based 'solely upon the arbitrator's view of the requirements of enacted legislation,' rather than on an interpretation of the collective bargaining agreement, the arbitrator has authority to resolve only questions of contractual rights * * *.' " Id. , quoting Alexander , supra, at 54, 94 S.Ct. 1011.

{¶ 31} The Seventh District noted that there are strong policy reasons for this distinction:

{¶ 32} " 'Labor arbitrators are authorized under a collective bargaining agreement to resolve contractual claims, not statutory claims. Labor arbitrators have developed a body of expertise in labor law. This is why law presumes the arbitrability of disputes based upon a collective bargaining agreement. This is not, however, the same body of expertise or the same body of law implicated by the civil rights statutes. Nor are the remedies the same.' " Id. , quoting Thomas v. Gen. Elec. Co. , 131 Ohio App.3d 825, 830, 723 N.E.2d 1139 (1st Dist.1999).

{¶ 33} The court concluded, therefore, that collateral estoppel did not preclude the statutory claims. Moreover, the First District, in Thomas , stated that the line of cases deriving from Alexander , extends to "civil rights claims brought pursuant to R.C. Chapter 4112." Thomas , supra, at 830, 723 N.E.2d 1139. See also Truax v. EM Industries , Inc., 107 Ohio App.3d 210, 668 N.E.2d 524 (1st Dist.1995).

{¶ 34} Notwithstanding the foregoing, appellees cite this court's holding in Hapgood v. Warren , 11th Dist. Trumbull No. 95-T-5355, 1996 WL 648929. In Hapgood , an employee was discharged for falsification of records and gross neglect of duty after filing workers' compensation claims. The employee filed a grievance claiming, under the CBA, he was terminated without just cause. The matter went to arbitration and the arbitrator found the employee was discharged for just cause. After unsuccessfully pursuing a claim with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission, he filed a complaint in the court of common pleas alleging, inter alia, retaliatory discharge. The trial court granted summary judgment. On appeal, this court observed:

{¶ 35} "After reviewing the record, we determine that the doctrine of collateral estoppel is applicable to appellant's retaliatory discharge claim. Appellant has also failed to argue exactly how the issues in the instant action are different from those in the previous proceedings. We believe that the issues and facts concerning the falsified workers' compensation are sufficiently intertwined with the issues and facts which would have to be determined under R.C. 4123.90 action to require the application of the doctrine." Id. at *4.

{¶ 36} This court determined the issues involved in that particular case were "essentially the same, i.e. the reason for appellant's discharge, even though appellant has attempted to characterize the issue under a different claim and asserting that his discharge was for another reason." Id.

{¶ 37} Although Hapgood facially supports appellees' position, its facts differ in at least one way. In Hapgood , the employee went through, not only arbitration, per his CBA, he also pursued two administrative remedies prior to filing his suit. And the Hapgood court, albeit not very clearly, did point out that the doctrine of collateral estoppel applies to administrative proceedings. Appellant, in this matter, did not pursue any post-arbitration administrative remedies. Upon careful examination, however, this point, while providing a factual distinction between Hapgood and matter sub judice, may be of no legal import. The line of authority cited by Hapgood for applying collateral estoppel to administrative proceedings stands for the following general proposition: "where an administrative proceeding is of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding, the doctrine of collateral estoppel may be used to bar litigation of issues in a second administrative proceeding." Superior's Brand v. Lindley , 62 Ohio St.2d 133, 403 N.E.2d 996 (1980) ; see also Office of Consumers' Counsel v. Public Utilities Commission of Ohio , 16 Ohio St.3d 9, 10, 475 N.E.2d 782 (1985).

{¶ 38} Neither Hapgood nor the matter under consideration involve(d) the application of the doctrine in a second administrative proceeding. To the contrary, both Hapgood and the instant matter involve(d) the proposed use of the doctrine to preclude litigation of a discrimination claim based upon a prior arbitration proceeding pursuant to a CBA. We find no support for this application and the Court in Alexander expressly determined the doctrine could not be utilized to preclude statutory claims. Thus, to the extent Hapgood relied upon the employee's post-arbitration administrative proceedings to preclude litigation of his statutory claims, that conclusion was error.

{¶ 39} The reasoning in Hapgood is fatally flawed in light of the holdings and policy analyses advanced by the United States Supreme Court in Alexander and its progeny. Of course, the issues and facts considered in an arbitration proceeding will inevitably be "intertwined" with those which make up the groundwork for a statutory discrimination claim. Simply because the points in each proceeding are not mutually exclusive, however, does not make the issues jointly exhaustive. As the Court noted in Alexander , an arbitrator's role is not to evaluate the facts of an employee's discharge in relation to the requirements of legislation prohibiting discrimination; rather, an arbitrator is empowered to resolve questions of contractual rights and, as a result, questions of retaliation and pretext may be well outside the purview of the issue(s) committed to an arbitrator. This point, unto itself, is sufficient to place a statutory discrimination claim beyond the reach of collateral estoppel. Given the analytic deficiencies of Hapgood , we decline to apply it to the instant matter.

{¶ 40} In this case, arbitration occurred via the grievance procedure pursuant to the parties' CBA and thus was a function of collective representation. As Alexander underscored, there is a tension between collective representation and individual statutory rights, the latter of which cannot be waived or resolved by an arbitrator limited to the interpretation of a CBA. Furthermore, there is nothing in the record to indicate appellant individually agreed to arbitrate his statutory claims. See Gilmer , supra , at 35, 111 S.Ct. 1647. As such, the arbitrator of the just-cause determination was not authorized to resolve such claims. Finally, there was no evidence or argument that the CBA "clearly and unmistakably" waived appellant's statutory-discrimination claims. See Wright , supra , at 80, 119 S.Ct. 391. On these bases, we decline to apply collateral estoppel to appellant's statutory claims.

{¶ 41} We recognize that certain issues of fact in the underlying discrimination case will be common to those considered by the arbitrator. In her decision, the arbitrator observed, "[t]he ultimate issue * * * is whether the County had just cause to terminate the Grievant for his incompetency." This narrow issue was presented for resolution pursuant to the parties' CBA and, as a result, cannot operate to waive or bar appellant's individual statutory, civil-rights claims. We therefore conclude, pursuant to Alexander and its progeny, appellant's causes of action are not barred by collateral estoppel or res judicata.

{¶ 42} Next, appellant contends that genuine issues of material fact remain for litigation on his disability discrimination and retaliation claims. To establish a prima facie case for disability discrimination, the party seeking relief must establish: "(1) that he or she was handicapped, (2) that an adverse employment action was taken by an employer, at least in part, because the individual was handicapped, and (3) that the person, though handicapped, can safely and substantially perform the essential functions of the job in question." Hood v. Diamond Products, Inc. , 74 Ohio St.3d 298, 658 N.E.2d 738 (1996), syllabus.

{¶ 43} When a party makes a prima facie demonstration of the foregoing, the burden shifts to the employer to show a nondiscriminatory reason for the action. Id. at 302, 658 N.E.2d 738. The burden then shifts to the plaintiff to demonstrate the employer's stated reason is a mere pretext for discrimination. Pretext may be demonstrated by showing "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer's action, or (3) that they were insufficient to motivate the employer's action." St. Mary's Honor Center v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

{¶ 44} Appellant advanced some evidence that he suffered from an impairment or disability; and appellees do not appear to dispute this issue. Appellant contends Sheriff Doak's notice of termination, sent on April 29, 2010, was an adverse employment action; and, a review of the document demonstrates it was, at least in part, for insubordination as appellant took issue with the sheriff's decision to place him on the 8:00 p.m. to 4:00 a.m. shift, despite his physician's recommendations. As such, there is a genuine issue of material fact as to whether the adverse employment action occurred, in part, because of appellant's impairment. And, appellant asserts, despite his impairment, he could perform the essential functions of the job if reasonable accommodations were made, e.g., allowing him to work first shift.

{¶ 45} In response, appellees maintain, even if appellant can establish a prima facie case for trial, appellant's termination was based upon his incompetence and deficiencies in performance during his road training, i.e., a reasonable and legitimate nondiscriminatory reason. Appellees point out that appellant had problems with jurisdictional geography during training, and was unable to satisfactorily complete the training. Appellees point to the arbitrator's decision which characterized appellant as unable to navigate and orient himself when operating a motor vehicle to perform his job. Because navigational skills and orientation skills are both essential functions of the job, he was properly terminated for a nondiscriminatory reason. And, with respect to appellant's accommodation argument, appellees underscore that appellant fails to provide any argument that, even if he were permitted to work first or second shift, he could perform the necessary navigational and orientation skills required of a deputy.

{¶ 46} Appellant maintains, however, genuine issues of material fact remain regarding whether appellees' motivation for terminating him were pretextual. Appellant points to his physician's recommendation restricting him from working third shift. Appellant seems to argue Sheriff Doak's decision to place him on the 8:00 p.m. to 4:00 a.m. "power shift," in spite of the doctor's restriction, is evidence that he was motivated to discriminate against him due to his disability. The record does not support this inference.

{¶ 47} Sheriff Doak formally requested more detailed information related to appellant's impairment; he stated "[y]our doctors notice that you cannot work a night shift provides insufficient information on which to make [a] decision as to an appropriate accommodation. Until such time as we receive the further information from your doctor, per the attached form, you will be required to return to full duty with no restrictions. Once we receive further documentation the issues of accommodation, if any is required, will be discussed." The sheriff testified the department's policy regarding shift work is not committed to the discretion of the deputies. Rather, if a deputy wishes to be assigned a different shift, he or she must submit to a bidding process. According to the sheriff, this policy applies universally. Thus, the sheriff's concerns with granting appellant's request, without more documentation with greater details into his impairment, undermine appellant's argument that the sheriff was motivated to discriminate.

{¶ 48} A plaintiff must establish that the alleged legitimate reasons offered by an employer were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "But a reason cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." (Emphasis omitted.)

St. Mary's Honor Center v. Hicks , 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). To carry his burden on summary judgment, appellant was required to produce sufficient evidence from which a jury could reasonably reject the sheriff's explanation for his termination. Appellant's allegation of pretext, in light of the undisputed documentation in the record, is merely speculative. It is therefore insufficient to create a genuine issue of material fact as to the issue of pretext.

{¶ 49} Appellant was terminated for incompetency regarding certain essential duties of his job. Although appellant submitted evidence of his impairment, there was no evidence submitted that his sleep disorder caused his deficiencies in navigation and orientation on the road. Appellant has failed to create a genuine issue of material fact regarding appellees' legitimate nondiscriminatory reason for terminating him. Because appellant has failed to create a material issue as to the pretext prong, appellees are entitled to judgment as a matter of law on his disability discrimination claim.

{¶ 50} Appellant next argues the trial court erred in awarding summary judgment to appellees on his retaliation claim. He maintains there are issues of material fact going to each element of the claim.

{¶ 51} The Supreme Court explained that in order to establish a prima facie case of retaliatory discharge, the employee must demonstrate: (1) the employee engaged in protected conduct; (2) the employer knew about the protected conduct; (3) the employer took adverse employment action; and (4) a causal connection between the activity and the adverse employment action. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 13. If an employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate reason for its action. See e.g. Chandler v. Empire Chemical Inc. , 99 Ohio App.3d 396, 402, 650 N.E.2d 950 (9th Dist.1994). And, if the employer meets its burden, the burden shifts back to the employee to establish pretext. Id.

{¶ 52} Appellant argues he repeatedly requested a reasonable accommodation and supplied medical documentation prior to being issued a notice of termination; he was terminated in the midst of engaging in the interactive process designed to reach a reasonable accommodation; and the termination occurred subsequent to seeking permission to complete his road training on the first or second shift. Even assuming the foregoing was sufficient to establish a prima facie case for retaliatory discharge, we have previously concluded that appellees advanced a legitimate reason for appellant's termination. We therefore hold appellees were entitled to summary judgment as a matter of law on appellant's retaliatory discharge claim.

{¶ 53} Appellant's assignment of error lacks merit.

{¶ 54} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O'TOOLE, J., dissents.

      Appellant had been suspended on two previous occasions for insubordination and failure to respect supervisors.

      Even though we conclude Hapgood was erroneously decided, a panel of this court cannot overrule the decision of another panel absent an en banc proceeding. Inconsistent authority within the same district may be resolved by a court convening en banc. See McFadden v. Cleveland State Univ. , 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, ¶ 16 (" 'The principal utility of determinations by the courts of appeals [e]n banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast majority of cases as to which no division exists within the court.' " United States v. American-Foreign Steamship Corp. , 363 U.S. 685, 689-690, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), quoting Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 96 (1954) ).


source: Caselaw Access Project

author: Harsha, J.

license: Public Domain

text:
    NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3, Plaintiff-Appellee, v. David DUNLAP II, Defendant-Appellant.
    No. 17CA3611
    Court of Appeals of Ohio, Fourth District, Ross County.
    RELEASED: June 27, 2018
    David Dunlap II, Chillicothe, Ohio, pro se appellant.
    R. Glenn Knirsch, Sessions, Fishman, Nathan & Israel, L.L.C., University Heights, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} David Dunlap II appeals from the summary judgment in favor of National Collegiate Student Loan Trust 2005-3 ("NCSLT") on a student loan he co-signed and in favor of NCSLT on his counterclaims against NCSLT. Dunlap asserts that the trial court erred in granting summary judgment and not dismissing the case because NCSLT lacked standing to collect on the debt.

{¶ 2} However, NCSLT submitted an affidavit of an employee of the subservicer of the loan, with attached documentation, showing that the original lender transferred the loan to another entity, which in turn transferred it to NCSLT before the loan was in default. This evidence also established that there had been no payment on the loan since March 2011, it was in default, and that absent a viable defense, Dunlap owed the principal sum of $28,603.21, plus accrued interest of $5,830.37 as of March 2017. The employee of the subservicer was competent and the documentation attached to his affidavit was admissible as business records. Although NCSLT's amended complaint erroneously referred to an incorrect date for the loan, the error was corrected by its motion to amend its amended complaint to include the correct date.

{¶ 3} Moreover, Dunlap's defense that he paid the obligation was meritless. The $30,000 promissory note he executed and mailed to the entity that demanded payment of the loan did not suspend his obligation under R.C. 1303.39(B) because there was no evidence that NCSLT had "taken" the note for the underlying loan obligation. Based on these circumstances, the trial court did not err in granting summary judgment in favor of NCSLT on its claim.

{¶ 4} In addition, the trial court properly granted summary judgment in favor of NCSLT on Dunlap's counterclaims asserting that NCSLT was required to have a license to transact business in Ohio and was subject to the Fair Debt Collection Practices Act ("FCDPA"), 15 U.S.C. 1692 et seq. Dunlap did not contest this part of the summary judgment in his initial brief and we need not consider the attempt in his reply brief to argue that his counterclaims had merit.

{¶ 5} Next Dunlap contends that the trial court erred by failing to issue findings of fact and conclusions of law on its judgment granting for summary judgment to NCSLT. We reject his contention because findings of fact and conclusions of law are unnecessary for rulings on motions for summary judgment.

{¶ 6} Dunlap also claims that the trial court's entry of summary judgment for NCSLT violated his right to a jury trial. We reject Dunlap's claim because the proper entry of summary judgment does not violate an individual's right to a jury trial.

{¶ 7} Next Dunlap argues that the trial court judge erred by denying the motion to recuse himself because of his personal bias or prejudice against Dunlap. But we lack jurisdiction to consider the trial court judge's failure to recuse himself when Dunlap could have-and did-file a timely affidavit of disqualification with the Chief Justice of the Supreme Court to resolve his claims.

{¶ 8} Finally, Dunlap asserts that the trial court committed reversible error by ruling on various motions before he had the opportunity to respond, rendering the court's subsequent entry of summary judgment void. We agree it appears that under the civil rules of procedure and the local rules of the trial court, the trial court ruled on certain motions before Dunlap had the opportunity to respond. But because he was given the opportunity to respond to NCSLT's motion for summary judgment, the trial court's judgment was not void or violative of his right to due process. He has not established that the trial court's error prejudiced his right to defend against summary judgment.

{¶ 9} Therefore, we find no error by the trial court in granting NCSLT's motion for summary judgment on its claim and Dunlap's counterclaims. We overrule Dunlap's assignments of error and affirm the court's judgment.

I. FACTS

{¶ 10} In an amended complaint NCSLT sought to recover the amount due on a July 2005 defaulted college loan that Dunlap co-signed. After Dunlap filed an answer and counterclaims, he filed motions for summary judgment and to dismiss NCSLT's complaint, claiming that NCSLT lacked standing to collect on the loan because it had not established a proper assignment from the original lender, but the trial court denied the motions.

{¶ 11} Dunlap also filed an emergency motion asking the trial judge to recuse himself based on bias and prejudice. After the judge denied the motion, Dunlap filed an affidavit of disqualification in the Supreme Court of Ohio, raising the same claims of bias and prejudice. The Chief Justice declined to disqualify the trial judge.

{¶ 12} NCSLT filed a motion for summary judgment, supported by an affidavit of an employee of the subservicer of the student loan, which is the designated custodian of records for the loan. NCSLT also included documentation attempting to establish NCSLT's standing to collect on the loan, the loan default, and the amount due on the loan. Dunlap filed a response supported by his affidavit and documentation purporting to establish that he had paid off the loan by tendering a $30,000 promissory note to the entity that had sent him demand letters for payment. The trial court granted NCSLT's motion for summary judgment and awarded it $34,433.58 plus interest against Dunlap; it also entered summary judgment in NCSLT's favor on Dunlap's counterclaims. Other facts will appear under the assignments of error.

II. ASSIGNMENTS OF ERROR

{¶ 13} Dunlap assigns the following errors for our review:

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DAVID DUNLAP II ("DUNLAP") IN RULING ON APPELLEE, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3 ("NCSLT") MOTION FOR LEAVE TO RESPOND TO COUNTERCLAIM AND DISCOVERY BY MAY 20, 2016, DUNLAP'S MOTION TO DISMISS AMENDED COMPLAINT, AND NCSLT'S MOTION TO AMEND BY INTERLINEATION, BECAUSE THE COURT RULED ON THESE MOTIONS WITHOUT AFFORDING DUNLAP THE OPPORTUNITY TO BE HEARD VIOLATING DUNLAP'S DUE PROCESS RIGHT TO BE HEARD, CONTRARY TO THE PROTECTIONS OF THE U.S. CONSTITUTION, OHIO CONSTITUTION, JUD. COND., AND THE OATH OF OFFICE OF JUDGE MICHAEL ATER.
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP IN GRANTING
SUMMARY JUDGMENT TO NCSLT, BECAUSE NO EVIDENCE EXISTS TO ESTABLISH NCSLT AS A PARTY TO THE ALLEGED NOTE OF THE SECOND AMENDED COMPLAINT AND HAVING AUTHORITY TO BRING THIS CASE BEFORE THE TRIAL COURT AND LACKING STANDING, CONTRARY TO CIV.R. 10, CIV.R. 56 AND EVID.R. 401, EVID.R. 402.
3. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP BY NOT RULING ON AND GRANTING DUNLAP'S SUMMARY JUDGMENT BY FAILING [TO] NOTICE THE ABSENCE OF THE NOTE OF THE AMENDED COMPLAINT AND FAILING TO NOTICE NCSLT RESPONDED OUT OF TIME TO DUNLAP'S SUMMARY JUDGMENT MOTION AND NOT RULING ON AND GRANTING DUNLAP'S FIRST MOTION TO DISMISS BY FAILING TO NOTICE THE ABSENCE OF DOCUMENTATION SHOWING NCSLT OBTAINED AN INTEREST IN THE NOTE OF THE COMPLAINT AND FAILING TO NOTICE NCSLT RESPONDED OUT OF TIME TO DUNLAP'S FIRST MOTION TO DISMISS WITHIN THE TIME ALLOWED, CONTRARY TO CIV.R. 10, CIV.R. 56 AND EVID.R. 401, EVID.R. 402, LOCAL R. 11.01.
4. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDCIE [sic] OF APPELLANT, DUNLAP IN DENYING DUNLAP'S AMENDED MOTION FOR SUMMARY JUDGMENT ON NCSLT'S SECOND AMENDED COMPLAINT BY FAILING TO NOTICE THE ABSENCE OF DOCUMENTATION SHOWING NCSLT OBTAINED AN INTEREST IN THE NOTE OF THE SECOND AMENDED COMPLAINT, CONTRARY TO CIV.R. 10, CIV.R. 56 AND EVID.R. 401, EVID.R. 402, EVID.R. 902.
5. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP IN DENYING DUNLAP'S MOTION TO DISMISS AMENDED COMPLAINT BY FAILING TO NOTICE THE ABSENCE OF DOCUMENTATION SHOWING THE NOTE EXECUTED ON AUGUST 20, 2007, CONTRARY TO CIV.R. 10, C[IV.R.] 56 AND EVID.R. 401, EVID.R. 402, EVID.R. 902.
6. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP IN NOT RULING ON DUNLAP'S SECOND MOTION TO DISMISS NCSLT'S SECOND AMENDED BY FAILING TO NOTICE THE ABSENCE OF DOCUMENTATION SHOWING NCSLT HAD OBTAINED AN INTEREST IN THE NOTE OF THE SECOND AMENDED COMPLAINT AND FAILING TO NOTICE NCSLT RESPONDED OUT OF TIME TO DUNLAP'S SECOND MOTION TO DISMISS NCSLT'S AMENDED COMPLAINT WITHIN THE TIME ALLOWED, CONTRARY TO CIV.R. 10, CIV.R. 56 AND EVID.R. 401, EVID.R. 402, EVID.R. 902, LOCAL R. 11.01.
7. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP BY FAILING TO APPLY CIV.R., LOCAL R. AND JUDICIAL CODES OF CONDUCT TO BE FOLLOWED IN THE TRIAL COURT AND ORDERS OF THE TRIAL COURT TO BE FOLLOWED BY THE APPELLEE.
8. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP BY FAILING TO RECUSE JUDGE ATER UPON DUNLAP'S EMERGENCY MOTION TO RECUSE JUDGE ATER, CONTRARY TO JUD. COND.
9. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP BY FAILING TO CITE FINDINGS AND CONCLUSIONS CONTRARY TO CIV.R. 52.
10. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP BY GRANTING NCSLT'S SUMMARY JUDGMENT MOTION AND THUS NOT ALLOWING DUNLAP HIS RIGHT OF TRIAL BY JURY, IN VIOLATION OF THE OHIO CONSTITUTION.

III. LAW AND ANALYSIS

A. Summary Judgment and Dismissal

1. Summary Judgment Standard of Review

{¶ 14} In his second, third, fourth, fifth, and sixth assignments of error Dunlap asserts that the trial court erred by granting NCSLT's motion for summary judgment, denying his motions for summary judgment, and denying his motions to dismiss based on lack of standing.

{¶ 15} Appellate review of summary judgment decisions is de novo, governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville , 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the party moving for summary judgment establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and (3) the moving party is entitled to judgment as a matter of law. Civ.R. 56 ; New Destiny Treatment Ctr., Inc. v. Wheeler , 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24 ; Chase Home Finance, LLC v. Dunlap , 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, 2014 WL 3940314, ¶ 26.

{¶ 16} The moving party has the initial burden of informing the trial court of the basis for the motion by pointing to summary judgment evidence and identifying parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) ; Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the nonmoving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue remaining for trial. Dresher at 293, 662 N.E.2d 264.

2. Motion to Dismiss Standard of Review

{¶ 17} A motion to dismiss based on lack of standing to bring an action before the court presents a question of law, which we review de novo. See Bank of America v. Stevens, 4th Dist. Hocking No. 16CA24, 2017-Ohio-9040, 2017 WL 6398844, ¶ 23, citing Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20.

3. Standing

{¶ 18} Dunlap's motion to dismiss claimed that NCSLT failed to establish that it had the requisite standing to seek damages against him on the student loan; NCSLT argued to the contrary.

{¶ 19} Standing relates to a party's right to make a legal claim or seek judicial enforcement of a legal duty or right; it is necessary to invoke the common pleas court's jurisdiction over the case. See Albanese v. Batman , 148 Ohio St.3d 85, 2016-Ohio-5814, 68 N.E.3d 800, ¶ 24. To have standing the party bringing the action must assert a personal stake in the outcome of the action by showing an injury fairly traceable to the defendant's conduct, and that is likely to be redressed by the requested relief. Id. , citing Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23, and Moore at ¶ 22.

{¶ 20} To establish standing NCSLT submitted the affidavit of an employee of its subservicer for the student loan, who stated under oath that: (1) Dunlap opened an educational loan with the original lender and funds were disbursed in August 2005; (2) the lender transferred, sold, and assigned the loan to National Collegiate Funding, L.L.C. ("National Collegiate Funding"), which in turn transferred, sold, and assigned the loan to NCSLT in October 2005; (3) the loan was in good standing and not in default on the date it was transferred to NCSLT; (4) no payment on the loan was made since March 2011; and (4) Dunlap owed the principal sum of $28,603.21 and accrued interest of $5,830.37, for a total sum of $34,433.58 as of March 2017.

{¶ 21} Attached to and incorporated into the employee's affidavit were copies of other records, including: (1) a letter by the U.S. Bank National Association, in its capacity as the special servicer for various student loan trusts, including NCSLT, confirming that Transworld Systems, Inc. is its subservicer for NCSLT and is the dedicated records custodian for all student loans owned by the trust; (2) the non-negotiable credit agreement representing the $20,000 undergraduate college loan borrowed from the lender, Charter One Bank, N.A. ("Charter One"), by Jacob Dunlap and co-signed by David Dunlap with David Dunlap agreeing to be jointly liable for the loan; (3) the pool supplement agreement between Charter One and First Marblehead Corporation whereby Charter One agreed to transfer to National Collegiate Funding each student loan set forth in Schedule 2 with the agreement that National Collegiate Funding will sell the transferred loans to NCSLT; (4) Schedule 1 of the pool supplement, which references various note purchase agreements; (5) Schedule 2 of the pool supplement, which references the Charter One loan to the Dunlaps; (6) the October 2005 deposit and sale agreement in which National Collegiate Funding agreed to sell the student loans listed in Schedule 2 of the pool supplement, which includes the Charter One loan to the Dunlaps, to NCSLT; and (7) copies relating to the financial activity and payment history of the Dunlaps' college loan.

{¶ 22} Citing NTL Collegiate Stndt Loan Trust 2005-1 v. Owusu , 12th Dist. Butler No. CA2015-07-139, 2016-Ohio-259, 2016 WL 363550, Dunlap argues that NCSLT's documentation was insufficient to establish its standing to sue him. In Owusu the trial court granted summary judgment in favor of NCSLT on a student loan that originated from Charter One, and allegedly was sold to NCSLT. The trial court determined that the loan balance had been accelerated in accordance with the terms of the loan and that NCSLT had standing to collect on it, but the court of appeals reversed, finding at ¶ 10-12 (footnote omitted), that the necessary documentation was missing:

{¶ 10} After reviewing the record, we find that the trial court improperly granted summary judgment, as there remain genuine issues of material fact. The record is clear that NCSLT neglected to include documentation to prove that it is entitled to demand judgment on the note. Although the record contains reference to the pool agreement and an uncontested affidavit that Owusu is in default, NCSLT did not include specific documentation to directly link the pool of debts assigned to NCSLT from Charter One to the debt Owusu's incurred and had defaulted upon.
{¶ 11} Nor does the record contain any indication as to the terms or conditions of the loan or consequences of default, most notably an acceleration clause. Despite the trial court's finding that the documentation included with NCSLT's complaint included specific reference to acceleration, no such document or reference is included in the record either by way of the loan agreement or affidavit from the custodian of NCSLT's records.
{¶ 12} The documentation of the direct link showing that Owusu's debt was included in the pool of debts assigned to NCSLT as well as the terms and conditions of the loan and default were not in the record before the trial court, and therefore could not provide any basis for the trial court's grant of summary judgment. We therefore find that the trial court's grant of summary judgment was improper given these missing pieces of evidence from the record. Our decision, however, should not be taken as any indication of the ultimate merits of this case given that NCSLT may supplement the trial court record upon remand.

{¶ 23} Conversely, here, the documentation attached to the subservicer employee's affidavit included the specific reference to the Dunlaps' college loan with Charter One in Schedule 2 of the pool agreement, as well as the explicit reference that the loan was being transferred by Charter One to National Collegiate Funding and from National Collegiate Funding to NCSLT. In addition, unlike NTL Collegiate Stndt Loan Trust 2005-1 , the documentation submitted by NCSLT here included the terms and conditions of the loan and the consequences of default. Therefore, NTL Collegiate Stndt Loan Trust 2005-1 is inapposite.

{¶ 24} We also find Dunlap's challenge to the propriety of NCSLT's affidavit is meritless. The employee stated under oath that his company, Transworld Systems, Inc., had been contracted to perform the duties of the subservicer for NCSLT by U.S. Bank, National Association, the special servicer for NCSLT; and an attached letter from the U.S. Bank National Association Vice-President confirmed that status. The employee further stated under oath that Transworld Systems is the designated records custodian for Dunlap's educational loan, and documents relating to the loan, its transfer to NCSLT, its payment history, and the amount due on it; and these documents are kept in the regular course of business. These documents were properly admissible. See HSBC Bank USA, Natl. Assn. for Citigroup Mtge. , 2017-Ohio-9285, 102 N.E.3d 1080, ¶ 10 (10th Dist.) ("records custodians can present business records kept in the regular course of business if they have personal knowledge of the company's records because such records are excepted from exclusion as hearsay and may be authenticated by the records custodian");

State ex rel. Corrigan v. Seminatore , 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981) ( Civ.R. 56(E) requirement that "[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit" is satisfied by attaching copies of papers "coupled with a statement therein that such copies are true copies and reproductions").

{¶ 25} Consequently, the summary judgment evidence established that: NCSLT owned the loan through transfers from Charter One to National Collegiate Funding and from National Collegiate Funding to NCSLT; the Dunlaps defaulted on it by failing to make timely payments; and that absent the propriety of a defense, Dunlap owed the principal sum of $28,603.21 and accrued interest of $5,830.37, for a total sum of $34,433.58 as of March 2017. Absent summary judgment evidence of a valid defense, summary judgment in favor of NCSLT would be proper.

{¶ 26} Although NCSLT's amended complaint erroneously referred to an incorrect date for the loan, the error was manifestly inadvertent because the attached loan record indicated the correct date. And NCSLT's motion to amend remedied any error upon the trial court's approval of the amendment.

{¶ 27} Moreover, the denial of Dunlap's motions to dismiss and for summary judgment was appropriate insofar as he raised these same standing claims. Although a plaintiff must have standing at the time suit is commenced, proof of standing may be submitted subsequent to the filing of the complaint. See, e.g., Wells Fargo Bank, N.A. v. Horn , 142 Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 1 (applying this rule to foreclosure actions). Similarly, insofar as Dunlap argues that NCSLT violated Civ.R. 10(D)(1) by failing to attach all the pertinent documents to support its standing, "failing to attach documents to a complaint pursuant to Civ.R. 10(D)(1) does not equate to a lack of standing." Id. at ¶ 16. NCSLT ultimately established its requisite standing to sue Dunlap on the defaulted loan when it submitted its summary judgment evidence.

4. Defenses and Counterclaims

{¶ 28} Finally, we consider the propriety of Dunlap's defenses and counterclaims based on the summary judgment evidence.

{¶ 29} Dunlap first claimed that he was not liable to NCSLT for the defaulted college loan because he had not signed the loan that it was attempting to collect. Dunlap's affidavit claiming he did not sign the college loan attached to NCSLT's amended complaint and his other uncorroborated and self-serving statements did not raise a genuine issue of material fact precluding summary judgment in favor of NCSLT. See Bank of New York Mellon v. Bobo , 2015-Ohio-4601, 50 N.E.3d 229, ¶ 13 (4th Dist.) ("A self-serving affidavit that is not corroborated by any evidence is insufficient to establish the existence of a material fact"). To conclude otherwise would enable a nonmoving party to avoid summary judgment in every case, crippling the beneficial use of Civ.R. 56 to dismiss meritless claims and narrow issues for trial. Id. , citing Wells Fargo Bank v. Blough , 4th Dist. Washington No. 08C49, 2009-Ohio-3672, 2009 WL 2220065, ¶ 18.

{¶ 30} Dunlap also cites evidence of a different loan he entered into with Charter One as evidence that he did not co-sign the loan transferred to NCSLT. But the mere fact that he might have co-signed other college loans that were not transferred to NCSLT did not raise a genuine issue of material fact about the one he did sign and that NCSLT held.

{¶ 31} Next Dunlap contends that he was not liable to NCSLT because he paid off the loan by presenting NCSLT with a $30,000 promissory note that suspended his payment under R.C. 1303.39(B). In his response to NCSLT's motion for summary judgment, Dunlap included an affidavit stating he had received letters demanding payment from an entity named National Collegiate Trust and that he mailed it a promissory note, which was delivered in January 2011, in the amount of $30,000 to pay the amount due under the college loan. Dunlap supported his claim that he made payment of the obligation with the promissory note by an affidavit to which he attached a letter to National Collegiate Trust and a promissory note in the amount of $30,000, as well as a certified mail receipt noting its delivery. This note and letter required the presentation of the note to Dunlap at his address for payment.

{¶ 32} R.C. 1303.39(B) provides that "if a note * * * is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and * * * (2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid."

{¶ 33} NCSLT argues on appeal, as it did in the trial court, that R.C. 1303.39 does not apply to Dunlap's promissory note because it is not a negotiable instrument under R.C. 1303.03(D). NCSLT cites the language from R.C. 1303.03(D) that "a promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this chapter"; NCSLT argues that because the loan agreement it is attempting to collect expressly stated that it was a "non-negotiable credit agreement," it was not subject to R.C. 1303.39(B).

{¶ 34} But NCSLT's argument lacks merit. The loan agreement is the obligation and not the note attempting to pay the obligation; it is Dunlap's note, which promises to pay the obligation created by the loan, that must be negotiable under R.C. 1303.03(D) in order to suspend the obligation under R.C. 1303.39(B). See 2 White, Summers, & Hillman, Uniform Commercial Code, Section 17:41 (6th Ed.2017), construing the similar UCC 3-380 ("The 'underlying obligation' is the original obligation between the parties which led to the issuance of the negotiable instrument in the first place"). Dunlap's promissory note states on its face that it is a "NEGOTIABLE INSTRUMENT."

{¶ 35} Nevertheless, the promissory note must be "taken" for the loan in order for R.C. 1303.39(B)(2) to suspend the obligation. The Hawkland UCC treatise explains the "taken" requirement in UCC Section 3-310(b) for a promissory note or uncertified check to suspend an obligation:

Regardless of the type of instrument, a condition to the application of Section 3-310 is that the instrument must be "taken" for the underlying obligation. "Taking" the instrument for the underlying obligation requires more than simply its delivery by the obligor to the obligee. The obligee must perform some act of accepting the instrument in either conditional or absolute payment of the obligation. Whether the obligee has accepted the instrument in payment of the obligation is often a difficult question of fact. Unless previously authorized by the obligee as an acceptable form of payment, the obligee's receipt by mail of an instrument does not constitute his taking of the instrument for the underlying obligation. If he promptly returns the instrument, he is not be deemed to have taken the instrument for the obligation. However, if he deposits or negotiates the instrument, he will be deemed to have taken it for the obligation.
Borderline situations arise where the obligee retains the instrument but does not negotiate or deposit it. In these situations, his intent to accept the instrument in payment determines whether he takes the instrument for the underlying obligation. Subjective intent is irrelevant. The court should examine what objectively appears to be the obligee's intent as evidenced by his actions. Where the obligee is an organization, questions will arise as to the actual or apparent authority of a particular agent to accept an instrument in payment of the obligation.

5 Hawkland UCC Series , Section 3-310:1 (Rev.Ed.2017) (Emphasis added and footnotes omitted.)

{¶ 36} Here, there is evidence that NCSLT's servicing agent signed for the certified mail containing Dunlap's promissory note. But there is no summary judgment evidence that the servicer was either authorized by NCSLT to accept Dunlap's instrument as payment of the loan or that the servicer actually accepted it as payment. This appears to be the "[b]orderline situation" where the servicer evidently retained the promissory note but neither it nor NCSLT negotiated or deposited it-there are simply no actions in the summary judgment evidence that would support a finding that Dunlap's note was taken so as to suspend his obligation under the loan.

{¶ 37} It is true that Dunlap submitted an affidavit in the summary judgment materials claiming that NCSLT "received and accepted payment in full for the [original] Note." Although he also attached a certified mail receipt indicating that NCSLT's agent received the envelope containing the promissory note, he did not include any support for his self-serving statement that NCSLT "accepted" the promissory note as "payment in full" for the college loan obligation. It is axiomatic that "[a] self-serving affidavit that is not corroborated by any evidence is insufficient to establish the existence of an issue of material fact." U.S. Bank Natl. Assn. v. Bobo , 4th Dist. Athens No. 14CA35, 2014-Ohio-4975, 2014 WL 5800399, ¶ 16. And as already noted the mere receipt of the note is insufficient to establish that it was "taken" so as to suspend the obligation under Ohio's enactment of UCC Section 3-310(b) - R.C. 1303.39(B).

{¶ 38} Significantly, there is no evidence that after the receipt of the promissory note by its agent, NCSLT ceased sending invoices requesting payments on the loan, or that it mailed any documentation to Dunlap indicating that the loan obligation was suspended or discharged. Instead, by filing this action and seeking to collect on the obligation, NCSLT acted inconsistently with accepting the promissory note tendered by Dunlap. See, e.g., Bingman v. Dillingham , 376 P.3d 1245, 1248 (Alaska 2016) ("The City's actions clearly indicate that it did not intend its retention of the note to operate as an acceptance of Bingman's proposal").

{¶ 39} As the Alaska Supreme Court held in Bingman at 1248, citing Hawkland UCC Series , " '[t]aking the instrument ... requires more than simply its delivery by the obligor to the obligee. The obligee must perform some act of accepting the instrument in either conditional or absolute payment of the obligation[,] [t]he court should examine what objectively appears to be the obligee's intent as evidenced by his actions.' ".

{¶ 40} And in this context the obligor "bore the burden to prove 'unequivocal acceptance by the [obligee] and an intent to be bound' by the terms of the purported contract." Id. Thus Dunlap failed to raise a genuine issue of material fact that he could meet this burden here.

{¶ 41} Therefore, Dunlap's claim that his obligation under the college loan was suspended by R.C. 1303.39(B) is meritless and cannot withstand summary judgment.

{¶ 42} Dunlap does not argue in his initial merit brief that the trial court erred in rejecting his counterclaims. Therefore, he cannot meet his burden of establishing that the trial court erred in granting summary judgment in favor of NCSLT on his counterclaims concerning the licensing requirement of R.C. 1703.03 and whether NCSLT was a debt collector subject to the FCDPA.

{¶ 43} Although Dunlap did claim that the court erred in granting summary judgment on the latter counterclaim in his reply brief, we need not consider it. See State v. Ross , 2017-Ohio-9400, 103 N.E.3d 81, ¶ 17 (4th Dist.) ; State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 179, quoting State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18. (" 'Appellate courts generally will not consider a new issue presented for the first time in a reply brief' "). And even if this counterclaim were before us, it would fail: NCSLT is a creditor and not a debt collector subject to the FDCPA-it was not collecting a debt that was already due where the evidence established that it acquired the college loan before the borrowers defaulted.

{¶ 44} The trial court correctly granted summary judgment in favor of NCSLT on its claim to collect on the college loan obligation, and it correctly entered summary judgment in NCSLT's favor on Dunlap's counterclaims. Accordingly, we override Dunlap's second assignment of error. The trial court also properly denied Dunlap's motions to dismiss and for summary judgment, which were based on his meritless contention that NCSLT lacked standing to sue on the college loan because of a lack of the requisite documentation. We overrule Dunlap's third, fourth, fifth, and sixth assignments of error.

B. Findings of Fact and Conclusions of Law

{¶ 45} In his ninth assignment of error Dunlap contends that the trial court failed to issue findings of fact and conclusions of law to support its grant of summary judgment in favor of NCSLT even though he timely requested them in writing under Civ.R. 52.

{¶ 46} We reject his contention because under Civ.R. 52, findings of fact and conclusions of law are unnecessary for rulings on motions for summary judgment. See State ex rel. Sharif v. Cuyahoga Cty. Court of Common Pleas , 85 Ohio St.3d 375, 376-377, 708 N.E.2d 718 (1999) ("the common pleas court has no duty to issue findings of fact and conclusions of law on Sharif's motions [for summary judgment and for dismissal of charges], which did not require the trial of questions of fact"); Robson v. Quentin E. Cadd Agency , 179 Ohio App.3d 298, 2008-Ohio-5909, 901 N.E.2d 835, ¶ 13 (4th Dist.) ; Civ.R. 52 ("Findings of fact and conclusions of law required by this rule * * * are unnecessary upon all other motions including those pursuant to * * * Civ.R. 56"). We overrule Dunlap's ninth assignment of error.

C. Right to Jury Trial

{¶ 47} In his tenth assignment of error Dunlap claims that the trial court denied him his right to a jury trial. Under Article I, Section 5 of the Ohio Constitution, parties have a constitutional right to a jury trial in civil matters.

{¶ 48} But the right to a jury trial is only enforceable where there are factual issues to be tried, and the proper entry of summary judgment does not violate an individual's right to a jury trial. See Conley v. Shearer , 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992), Viars v. Ironton , 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, 2016 WL 3670171, ¶ 53, quoting Barstow v. Waller , 4th Dist. Hocking No. 04CA5, 2004-Ohio-5746, 2004 WL 2427396, ¶ 53. Therefore, we overrule his tenth assignment of error because the court properly entered summary judgment in favor of NCSLT.

D. Motion to Recuse Trial Court Judge

{¶ 49} The eighth assignment of error contends that the trial court erred in denying the emergency motion for recusal. In accordance with the general rule, we lack jurisdiction to consider the trial judge's refusal or failure to recuse himself. See Beem v. Thorp , 5th Dist. Licking No. 16-CA-97, 2017-Ohio-2967, 2017 WL 2265524, ¶ 13, citing State v. Gregory , 4th Dist. Gallia No. 16CA3, 2016-Ohio-7940, 2016 WL 6964039, ¶ 5. The proper procedure for recusal of a common pleas court judge based on "a bias or prejudice for or against a party to a proceeding" is provided in R.C. 2701.03, which vests exclusive jurisdiction in the Chief Justice or Chief Justice's designee to hear disqualification matters. Beem at ¶ 13, citing Beer v. Griffith , 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978).

{¶ 50} Moreover, insofar as we may retain jurisdiction to address his claims that the bias/prejudice occurred during the trial, see Gregory at ¶ 12-13 (Harsha, J., concurring), Dunlap's complaints about specific adverse rulings on various motions are meritless because "it is well established that 'a judge's adverse rulings, even erroneous ones, are not evidence of bias or prejudice.' " In re Disqualification of Collier-Williams , 150 Ohio St.3d 1286, 2017-Ohio-5718, 83 N.E.3d 928, ¶ 14, quoting In re Disqualification of Fuerst , 134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14.

{¶ 51} And because Dunlap could have raised his judicial-bias claim in a timely affidavit for disqualification under R.C. 2701.03 to the Chief Justice-and in this case did so-he was foreclosed from raising this issue on appeal. State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 223. Therefore, we dismiss this part of Dunlap's appeal.

E. Additional Trial Court Rulings

{¶ 52} In his first assignment of error Dunlap asserts that the trial court ruled on NCSLT's motions for leave to respond to his counterclaims and discovery, and to amend its amended complaint by interlineation, before affording him the time to respond under the applicable rules of procedure; and that the court also ruled on his motion to dismiss the amended complaint before he had the opportunity to reply to NCSLT's memorandum in opposition - all of which violated his due process right to be heard. In his seventh assignment of error Dunlap contends that the trial court erred by failing to apply various rules.

{¶ 53} We agree with Dunlap that the trial court ruled on certain motions before giving him the opportunity to respond under Civ.R. 6(C) and Loc.R. 11.01 of the Ross County Common Pleas Court. But we disagree that any error in doing so resulted in automatic, reversible prejudice. His counterclaims and motion to dismiss based on lack of standing were meritless. And the trial court did not abuse its discretion by granting NCSLT's motion to amend its amended complaint to include the correct date of the loan it was attempting to collect on. See, e.g., Klocinski v. American States Co. , 6th Dist. Lucas No. L-03-1353, 2004-Ohio-6657, 2004 WL 2849054, ¶ 31 (premature grant of summary judgment before nonmoving party had an opportunity to respond did not constitute prejudicial error because even if given the opportunity to respond, he would not have prevailed).

{¶ 54} Moreover, the preeminent rulings in this appeal involve NCSLT's motion for summary judgment, for which Dunlap was afforded the appropriate time to respond. The trial court's entry of judgment was not void or violative of his right to due process. He has not established that the trial court's error prejudiced his right to defend against summary judgment. We overrule Dunlap's first and seventh assignments of error.

V. CONCLUSION

{¶ 55} The trial court properly granted summary judgment on NCSLT's claim to collect on the college loan and denied Dunlap's motions for summary judgment and to dismiss. Having overruled Dunlap's first, second, third, fourth, fifth, sixth, seventh, ninth, and tenth assignments are error, we affirm the summary judgment entered in NCSLT's favor on its claim and on Dunlap's motions for summary judgment and his counterclaims. We dismiss the eighth assignment of error that challenges the trial court's denial of Dunlap's motion to recuse the trial judge.

APPEAL DISMISSED IN PART AND JUDGMENT AFFIRMED.

Hoover, P.J., & Abele, J.: Concur in Judgment and Opinion.