COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71083 VINH PHAM : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CASE WESTERN RESERVE UNIVERSITY : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 265,625 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: MARK A. McCLAIN Attorney at Law 1677 East 40th Street Cleveland, Ohio 44103 For defendant-appellee: THOMAS J. LEE JOEL A. MAKEE PETER M. POULOS Attorneys at Law Kelley, McCann & Livingstone BP America Bldg., 35th Floor 200 Public Square Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Vinh Pham ("appellant") appeals the decision of the Cuyahoga County Common Pleas Court, which granted summary judgment to defendant-appellee Case Western Reserve University ("CWRU"). For the reasons that follow, we affirm. In January 1993, appellant was dismissed for poor clinical performance from CWRU's School of Dentistry twelve weeks prior to his anticipated graduation. The record reflects that appellant entered the program as an advanced student in the fall of 1990. He had previously attended three years of dental school at Creighton University, where he was required to repeat his first year. After being dismissed from Creighton when he failed his second year there, CWRU accepted appellant on the condition that he repeat his second year at CWRU. Appellant's academic and clinical performance during his tenure at CWRU was marginal. His semester grade-point averages were often below 2.0 and of seven clinical evaluations, five were either graded as D- or F. Appellant was first notified of his deficient performance after the completion of his first semester at CWRU. He was granted permission to continue his studies but was placed on academic review, a classification employed by the - 3 - university when a student fails to achieve an acceptable level of academic performance. The following academic year, his second year at CWRU but as a third-year student in the program, his clinical performance was found deficient. He was placed on clinical review and "cautiously granted permission to continue" the remainder of his third year of study. During the last semester of the third-year program, appellant failed a course and was again placed on academic review when his grade-point average fell below 2.0. He was required to remediate the failed course and successfully did so during the summer session. During the first semester of his fourth year, he was again notified of his less-than-satisfactory clinical performance and again placed on clinical review. His final clinical grade for that semester was an F. Finding that appellant did not demonstrate any progress in the quality of his clinical performance as evaluated by two different sets of clinical instructors, he was dismissed from the program. A request to reconsider this decision was denied on two separate occasions. Appellant filed a complaint against CWRU with the U.S. Department of Education, Office for Civil Rights ("OCR"), alleging discrimination on the basis of his Vietnamese national origin. After an investigation that included interviewing several faculty members, OCR did not find any evidence to support the allegations - 4 - in appellant's complaint and concluded that appellant's clinical deficiencies were the primary reason for his dismissal. Subsequent to this decision, appellant filed a complaint in the Cuyahoga County Court of Common Pleas alleging that CWRU breached an express, implied and/or unilateral contract and fur- ther violated the doctrines of promissory and equitable estoppel. CWRU moved for summary judgment, supporting its motion with an affidavit of Ann M. Boyle, D.M.D., Associate Dean for Academic Affairs at CWRU's School of Dentistry, which incorporated appel- lant's academic records and copies of correspondence addressed to appellant. Excerpts of appellant's deposition were likewise appended to CWRU's motion. Appellant opposed this motion, arguing that a genuine issue of fact remained as to whether CWRU's actions were arbitrary, capricious and/or in bad faith. In support of his argument, appellant appended a copy of OCR's interview with the Associate Professor of Endodontics. The trial court granted CWRU's motion without opinion. Appellant timely appeals this decision and asserts the following errors for our review: ASSIGNMENT OF ERROR NO. I A GENUINE ISSUE OF MATERIAL FACT REMAINS AS TO WHETHER APPELLANT'S EXPULSION FROM DENTAL SCHOOL WAS IN BAD FAITH OR A VIOLATION OF APPELLEE'S AGREEMENT. - 5 - ASSIGNMENT OF ERROR NO. II EVIDENCE IN THE RECORD RAISES AN ISSUE OF FACT AS TO WHETHER APPELLANT'S DECISION TO EXPEL APPELLANT WAS ARBITRARY AND CAPRICIOUS. Appellant's assignments of error will be discussed together as they both address the propriety of granting summary judgment to CWRU. Specifically, appellant contends that a genuine issue of fact remains regarding whether appellant's dismissal was arbitrary and capricious, in bad faith or in violation of CWRU's agreement with appellant. CWRU, on the other hand, maintains that appel- lant's dismissal was appropriate and in accordance with the regu- lations promulgated by the School of Dentistry. In reviewing a motion for summary judgment, an appellate court conducts a de novo review of the trial court's decision. "A court reviewing the granting of a summary judgment must follow the 1 standards set forth in Civ.R. 56(C) *** ." Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary 2 judgment is made, that conclusion is adverse to the party." 1 Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. 2 Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. - 6 - The court must construe the evidence and all reasonable inferences drawn therefrom in a light most favorable to the party 3 opposing the motion. Because summary judgment is a procedural device used to terminate litigation, it must be awarded with caution, resolving all doubts in favor of the party opposing the 4 motion. It is well-established that great deference is accorded a university when making decisions that pertain to the academic performance of students and their entitlement to promotion or 5 graduation. Thus, a reviewing court is not to disturb a genuine- ly academic decision unless "it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional 6 judgment." The standard of review, therefore, is not merely whether a court would have decided the matter differently but, rather, 3 Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45; Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64. 4 Osborne v. Lyles (1992), 63 Ohio St.3d 326. 5 Board of Curators, Univ. of Mo. v. Horowitz (1978), 435 U.S. 78, 96; Ohio Civ. Rights Comm. v. Case W. Res. Univ. (1996), 76 Ohio St.3d 168, 179. 6 Regents of Univ. of Michigan v. Ewing (1985), 474 U.S. 214, 225; Frabotta v. Meridia Huron Hosp. School of Nursing (1995), 102 Ohio App.3d 653, 658. - 7 - 7 whether the university's action was arbitrary and capricious. The burden is upon the student to demonstrate that the univer-sity's 8 decision is arbitrary, capricious or in bad faith. In support of his argument, appellant relies on a letter from Dr. Boyle dated November 3, 1992, apprising appellant of his interim progress during the first semester of his fourth year of study. In particular, he relies on the following language as evidencing an agreement for his continued study in the program: *** It was noted that your performance was less than satisfactory. Should the problems noted below [poor clinical grade] continue, they can jeopardize your graduation in May, cause you to incur unplanned tuition expense for an additional Summer in clinic and lower your clinical grade. Appellant interprets this excerpt as creating an agreement between appellant and CWRU that only affected his timely graduation in May if his clinical deficiencies continued. When a student enrolls in a college or university, pays his or her tuition and fees and attends the school, the resulting relationship may reasonably be construed as being contractual in 9 nature. The terms of this contract, however, can be altered by 7 Bleicher v. Univ. of Cincinnati College of Med. (1992), 78 Ohio App.3d 302, 308; see, also, Morin v. Cleveland Metro. Gen. Hosp. School of Nursing (1986), 34 Ohio App.3d 19, 22. 8 Id. 9 Behrend v. State (1977), 55 Ohio App.2d 135, 139. - 8 - mutual agreement, and any additional terms will supersede the 10 original terms to the extent the two are in conflict. The academic regulations as set forth in the General Bulletin require, inter alia, that students beyond their first year of study maintain a grade-point average of at least 2.0 and demonstrate an acceptable level of clinical competence. Failure to achieve these minimum standards subjects the student to nonsequential disciplinary action such as academic/clinical review, academic probation or dismissal. The regulations also set forth the grounds for dismissal and provide: The school reserves the right to require a student to withdraw from the school for any reason it deems sufficient. Academic failure, moral delinquency, gross misconduct, or failure to meet the specific conditions of probation or academic review is sufficient reason for requiring withdrawal from the school. The General Bulletin further provides that "[a]dmission to the [dental] program is not assurance that a degree will be granted at the end of four years, or at all." These regulations provide sufficient basis from which the university could dismiss a student whose academic and clinical performance was less than satisfactory. By accepting appellant into the dental program, CWRU did not agree to graduate him in spite of poor clinical performance. To the contrary, the univer- sity reserved the right to require withdrawal when it was deemed necessary. In this case, appellant's consistently poor academic 10 Bleicher, 78 Ohio App.3d at 308. - 9 - and clinical performance was well-documented and his dismissal was in accordance with regulations promulgated by the university. Nor can the November 1992 letter be construed as a modifica- tion of the contractual relationship between CWRU and appellant. Notwithstanding the lack of mutuality, in order for the terms of this letter to supersede the regulations set forth in the General Bulletin, the provisions relative to graduation must be contradic- 11 tory. Here, there is no conflict. The letter addressed to appellant does not modify the regulations in force at the time of appellant's admission. It merely restates that appellant's gradu- ation may be jeopardized as is set forth in General Bulletin under the same conditions. Appellant's insertion of the concept of timeliness is not supported by the record. Appellant further relies on OCR's interview with CWRU's Associate Professor of Endodontics as creating an issue of fact with regard to whether appellant's dismissal was arbitrary or 12 capricious. Specifically, he argues that the failing clinical grade received prior to his dismissal was arbitrary and capricious because the grade, in part, was based on subjective factors. 11 See Bleicher, 78 Ohio App.3d at 308. 12 CWRU argues that the form of appellant's documentary evidence does not comport with Civ.R. 56. While this evidentiary material is out of rule, CWRU raised no objection in the trial court and, therefore, the evidence was properly considered. State, ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107, 109; Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 222-223; see, also, McKay v. Cutlip (1992), 80 Ohio App.3d 487, 492; cf. Internatl. Bd. of Elec. Workers v. Smith (1992), 76 Ohio App.3d 652, 660. - 10 - However, due process in the academic setting does not require 13 assessment on purely objective standards. To the contrary, "grading determinations are essentially subjective and evalua- 14 tive." Moreover, appellant's academic career was marked by less than satisfactory performance, and it cannot be said that this one isolated grade was the sole basis for his dismissal. Construing the evidence in a light most favorable to appel- lant, reasonable minds could only conclude that CWRU exercised its professional judgment with careful deliberation and in accordance with its academic regulations when deciding to dismiss appellant. While perhaps a better course of action would have been to not allow a student whose performance is clearly deficient to proceed as far along into a program as was done in this case, it cannot be said CWRU's actions were arbitrary, capricious or in bad faith. Consequently, the trial court did not err in granting CWRU judg- ment in its favor as a matter of law. Accordingly, appellant's assignments of error are not well taken and are hereby overruled. 13 Frabotta, 102 Ohio App.3d 653, at 659. 14 Id. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .