Thomas et al v. National College of Virginia, Inc.

Filing 69

ORDER granting in part defendant's motion for summary judgment as to plaintiffs' claims as to breach of contract and fraudulent inducement and denying in part 42 Motion for Summary Judgment as to plaintiffs' claims under Ohio Rev. Code 1345.02; denying 68 Motion to Strike. Signed by Magistrate Judge Stephanie K. Bowman on 10/2/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANTHONY THOMAS, et al.,
Plaintiffs,

Case No. 1:09cv879

vs.
Magistrate Judge Bowman
NATIONAL COLLEGE OF
VIRGINIA, INC.
Defendant.
MEMORANDUM OF OPINION AND ORDER
This matter was originally initiated by fourteen former students of Defendant
National College of Virginia. (hereinafter “National” or “National College”).1 Plaintiffs,
all of whom were students in National’s Surgical Technology program at its Cincinnati
campus, allege that National College violated Ohio Law by misrepresenting their
accreditation status and the availability of externship sites, a requirement to complete
the program. Specifically, Plaintiffs amended complaint, based on diversity jurisdiction,
asserts claims against National College for violations of the Ohio Consumer Sales
Practices Act, breach of contract, and fraudulent inducement.

Plaintiffs seek

compensatory damages and treble damages pursuant to Ohio Revised Code §
1345.09.
Through mediation, the claims of ten Plaintiffs have been resolved.

An

additional named Plaintiff voluntarily dismissed her claims. Thus, the claims of three
1

National College is a private institution that awards degrees in a number of fields of study and
has numerous locations throughout the country.

1

Plaintiffs, Martina Lummus, Jennifer Parsons, and Antoinette Prosser remain pending
before the Court. This civil action is now before the Court on Defendants’ motion for
summary judgment and supporting documents (Docs. 42, 43, 44) and the parties’
responsive memoranda.

(Docs. 49-59, 61).2

The parties have consented to the

exercise of jurisdiction by the Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See
Doc. 20). For the reasons set forth herein, National’s motion for summary judgment is
granted in part and denied in part.
I. Background and Facts
At the time National’s Cincinnati campus opened in 2005, it was accredited by
the Ohio State Board of Career Colleges and Schools to offer degrees and authorized
to offer a surgical technology program. (Doc. 43, Affidavit of Anna Counts (“Counts
Aff.”). Program specific accreditation is also available through the Commission on
Accreditation of Allied Health Professionals (“CAAHEP”).

Accreditation by this

independent entity permits surgical technology graduates to take the Certified Surgical
Technology exam to become certified surgical technicians. The Surgical Technology
Program was introduced at National College in June of 2005. (Counts Aff. ¶ 7). In July
2007, National College submitted a request for accreditation from CAAHEP. Id. In
evaluating a request for accreditation, CAAHEP relies on a recommendation made by
the Accreditation Review Committee on Education and Surgical Technology (ARC/ST).
At the time National College’s Surgical Technology program began, accreditation from

2

Also pending before the Court is a motion to strike Plaintiffs’ supplemental materials filed in
opposition to Defendant’s motion for summary judgment. (Doc. 68).

2

CAAHEP was not available because ARC/ST requires that a school have surgical
technology students in their last term before it will conduct a visit to the campus. Id. A
site visit by the ARC/ST visiting team is a prerequisite for accreditation by CAAHEP.
Id.
After submitting the request for accreditation, the next step in the CAAHEP
process required National College to submit a “self-study.” Id. at ¶ 8. The self-study
documentation was submitted to ARC/ST on March 25, 2008. The ARC/ST site visit
was conducted on May 15th and 16th, 2008. Id. On June 28, 2008, ARC/ST issued its
on-site assessment of the surgical technology program at National College. (Doc. 573).
The assessment identified the strengths and concerns within the program, and
requested that additional information by submitted. Specifically, ARC/ST expressed
concern relating to the inadequate number of clinical affiliation to meet the program
needs and requested, inter alia, documentation demonstrating that the program has
sufficient clinical affiliation sites and slots for the program’s enrollment capacity to
achieve the outcomes of the program. Id. Thereafter, on October 1, 2008, ARC/ST
informed National College that the Accreditation Review Committee voted unanimously
to table the recommendation for initial accreditation of the National’s surgical
technology program in Cincinnati, pending receipt of further documentation and

3

Document 57 includes copies of documents from National’s ARC/ST accreditation file for its
Cincinnati Surgical Tech program. National asserts that such documents are not properly authenticated
and therefore should be stricken. As explained below, the undersigned finds that such documents are
properly considered on summary judgment and National’s motion to strike is not well-taken.

3

clarification as outlined in the June 2008 assessment. National College was ultimately
approved for accreditation by CAAHEP in May 2010. (Counts Aff, ¶ 8).
Students who have graduated from National College’s surgical technology
program are now eligible to sit for certification as Surgical Technologists by the Liaison
Council on Certification for the surgical technologist (now known as The National Board
of Surgical Technology and Surgical Assisting).

Id. at ¶ 9.

Surgical Technology

students who graduated prior to May 2010 are “grandfathered,” that is, they are eligible
to take the certification examination if they were enrolled as of the site visit, which took
place in May 2008. Id.
During the time of Plaintiffs’ enrollment, it was the practice of National College to
inform all incoming students that the surgical technology program had not yet been
accredited by CAAHEP.

Enrolling students were provided a written disclosure

approved by Lenora Downing on January 5, 2006 (also referred to as the “Downing
Memorandum”), a National College Vice President, that explained the CAAHEP
accreditation status. (Doc. 43, Downing Aff., ¶ 2). The Downing Memorandum states
as follows:
National College of Business and Technology has been granted
institutional accreditation from ACICS, The Accrediting Council for
Independent Colleges and Schools. Accreditation is a status granted to an
institution that meets or exceeds the Accrediting Council’s stated criteria of
education quality. Institutional Accreditation means the entire institution
has been assessed, from the governance and financial stability to the
programs of study and student services of that institution.
In addition, National College of Business and Technology is in the
process of applying for programmatic accreditation of the Surgical
Technology Program by CAAHEP, The Commission on Accreditation of
4

Allied Health Education Programs, which may be granted upon
recommendation of the American Colleges of Surgeons (ACS) and the
Association of Surgical Technologists (AST). Programmatic accreditation
is in addition to institutional accreditation, and is an assessment of a
particular program of study.
The college has coordinated the timing of the accreditation process
with CAAHEP so that its first graduating class may be incorporated in the
requested grant of accreditation and therefore be eligible to sit for the
Certified Surgical Technology exam administered through the Liaison
Council on Certification of for the Surgical Technologist.
Although the college anticipates that it will be successful in its
request for programmatic accreditation, CAAHEP cannot and has not
guaranteed that the college’s application for accreditation will be granted
or that it will be granted or effective any specific future date.
By signing below, you are acknowledging receipt of this information
regarding the accreditation status of the Surgical Technology program.
(Downing Aff., Ex. 2).
The admissions personnel at National College in Cincinnati were instructed to
give the memorandum to all incoming students and have the students sign the
memorandum.

(Doc. 43, Downing Aff. ¶ 2). The admissions personnel were also

instructed to retain the original documents in the student’s records. Id.
Additionally, in order to be awarded an Associate’s Degree in Surgical
Technology at National, students must complete basic course work in the areas of
English, Math, and History, as well as core class for the Surgical Technology program
such as Anatomy, Medical Terminology, Pharmacology, Surgical Technology and
Surgical Procedures. The final course needed to complete the Surgical Technology
program is an externship class.

During the externship course, students spend

approximately 11 weeks at an extern site. The sites are typically medical facilities
5

where the students are trained and evaluated by preceptors who provide real world
experience to the students in operating rooms.4
Jennifer Parsons
Ms. Parsons learned about National’s surgical technology program through a
supermarket employment newspaper. (Doc. 44, Ex. 2, Parsons dep. at 25). At the
time she saw the National ad at the supermarket, Ms. Parsons had previously
contacted Cincinnati State about their program and learned that they had a three-year
waiting list. Parsons contacted National’s Cincinnati campus about the surgical tech
program in March 2006. Id. at 25. At her first interview, she was told that National
College’s surgical tech program did not have a waiting list. Id. Neither CAAHEP
accreditation nor surgical technician certification were discussed at Ms. Parsons initial
visit to National College. (Parsons dep. at 95).

She enrolled at National College in

April of 2006.
At the time Ms. Parsons enrolled, she was provided with a form explaining
accreditation; however the form discussed the accreditation status of the medical
assisting program. (Doc. 44, Parsons dep. 70-71). This was a mistake on the part of
the admissions officer, who inadvertently presented the wrong form to Ms. Parsons.
Ms. Parsons testified that she first learned that the surgical technology program was
not accredited in April 2008. At that time, Plaintiff testified that Thomas Jefferson, the
director of the College, met with surgical technology students and explained that the

4

Preceptors are surgical technicians employed by the medical facility who observe the students
in the operating room.

6

program was not yet accredited. Id. at 78. Thereafter, on May 15, 2008, Ms. Parsons
was interrupted by a man in a suit while she was taking a final exam. According to Ms.
Parsons, the man did not identify himself and told her to sign the Downing
Memorandum if she wanted to graduate.

She testified that she signed it without

reading it. (Parsons dep. at 78-79).
Her academic classes spanned from June 2006 through June 2008.

Ms.

Parsons testified that she secured her own extern site, with her current employer,
Christ Hospital, after learning that National was having trouble finding extern sites for
its surgical technology students. Id., 49-52. She then served an externship at Christ
Hospital from June 2008 through September 2008. She later received her diploma
from National College in June 2009. However, he could not sit for the certification
exam, as a graduate of a non-accredited program, until May 2010, when the program
received conditional accreditation. Since she was a student at the time of the on-site
visit, Ms. Parsons may now be considered as a graduate from an accredited program,
with eligibility for the certification examination.

(Counts Aff, ¶9).

However, Ms.

Parsons has not taken National College’s refresher course for the certification
examination, due to her employment commitments and distrust of the National College.
Ms. Parsons testified that she could not find employment as a surgical
technician because she was not certified and because National College’s surgical
technician program was not accredited at the time she graduated. (Parsons dep, at
56). She further testified that if she had known that National’s surgical tech program
was not accredited she never would have enrolled at National College. Accordingly,
7

based on National’s alleged misrepresentation or misinformation relating to its surgical
tech program, Ms. Parsons seeks compensation for money paid to National College
and past and future wages lost as a result of attending National College.
Antoinette Prosser
Ms. Prosser learned about National’s surgical tech program through a billboard
and a supermarket employment newspaper. (Doc. 44, Prosser dep., 26-27).

Ms.

Prosser contacted National College in November 2006. Ms. Prosser testified that she
met with an admission representative to discuss the surgical technology program and
was told that many clinical sites were available. (Prosser dep., 33-34). She further
testified that she was told that a certification examination would be taken and National
career department would assist her in finding employment after graduation. Based on
the information she obtained from the admissions representative, Ms. Prosser enrolled
in National’s surgical tech program in December 2006.

At that time, Ms. Prosser

executed many forms, including the Downing Memorandum. She testified that she did
not read the forms in detail.
She began classes in March of 2007. At some point in 2008, she was surprised
to learn from other students that there were an insufficient number of clinical sites and
that the surgical tech program had not yet received CAAHEP accreditation. (Prosser
dep., 54-57).

Ms. Prosser completed her academic classes in February 2009.

However, at that time, there were not sufficient extern sites available for surgical
technology students in the Cincinnati area.

8

National explained the delay to Ms.

Prosser, and she agreed to remain in the program. (Prosser dep. 59). Ms. Prosser
was a on a waiting list for an extern site for approximately five months.
Ms. Prosser was then placed in an externship at Cincinnati Children’s Hospital
for eight weeks beginning in June 2009. She was taken out of the externship for about
a month then returned to Children’s from September to October, at which time she
successfully completed her externship. She was awarded her degree in 2010.
Ms. Prosser testified that she attempted to find employment as a surgical
technologist.

She applied on-line and in person at several medical facilities for a

surgical tech position, including Children’s Hospital, Mercy Fairfield Hospital, Jewish
Hospital, Beacon Orthopedic, Red Bank Surgery Center, and Evendale Surgery
Center. At a job fair a representative from Mercy Fairfield, told Ms. Prosser that a
graduate from National College would not be considered because its program was not
accredited. In March 2010, Ms. Prosser enrolled in the nursing program at Brown
Mackie College. (Doc. 44, Prosser dep. 16, 95, 96). Her enrollment in the nursing
program occurred prior to National’s CAAHEP accreditation and she has not taken the
certification exam for surgical technologists.
Similar to Ms. Parsons, Ms. Prosser asserts that she would not have enrolled in
the surgical technology program at National College if she had known the program was
not accredited. Id., 56-57. As a result of National’s alleged misrepresentation of the
program, she also seeks compensation for money paid to National College and past
and future wages lost as a result of attending National College.

9

Martina Lummus
Ms. Lummus learned of the surgical technology program at National College
through a television advertisement she viewed in April 2006. She visited National’s
campus and met with an admission representative as well as the surgical technology
program director. She testified that she asked if the program was accredited and if
clinical sites were available.

She was assured by the program director that the

program would be accredited by her graduation and that there were clinical sites
available. (Lummus dep., 32, 33, 113, 114). According to Ms. Lummus, the program
director did not mention anything related to certification. Id., 39.
Ms. Lummus then applied to National College in May 2006 and began classes
the next month. She completed her academic class in May 2008. In 2008, she was
informed of National’s College’s difficulty in finding extern sites. Id., 50. She agreed to
remain in the program and wait until sites were available. Id., 51. While she was
waiting for an extern site, Ms. Lummus attended a lab practice once a week. During
this period, Ms. Lummus testified that the program director told her that there were no
extern sites because National sent the wrong paper work to CAAHEP, the accreditation
agency. Id., 58. Ms. Lummus waited approximately one year before she was placed in
an externship.
She began her externship in June 2009 at Mercy Hospital. After five weeks, she
was removed from the site due to poor performance and disagreements with her
preceptor. (Lummus dep., 78-82). She was then reassigned to Cincinnati Children’s
Hospital in October 2009.

After two weeks, she was removed from the site at
10

Children’s request because she did not have the skills to perform in the operating
room. Thereafter, representative from National College met with Ms. Lummus and
suggested that she may be better suited for another program. Id., 89-92. Ms. Lummus
did not return to National College as a student after that meeting and did not graduate
from the program.
Ms. Lummus asserts that if she knew that the surgical tech program would not
be accredited at graduation, that the accreditation process was not coordinated and
had not begun, that there were an insufficient number of clinical sites, and that
employment and sitting for the certification examination would not be possible at
graduation, she never would have enrolled at National College. As a result of these
alleged misrepresentations on the part of National College, Ms. Lummus seeks
compensation for lost wages and the cost of attending classes at National College.
National College now moves for summary judgment on Plaintiffs’ claims and
assert that they are entitled to judgment as a matter of law. National argues that the
facts do not establish any violations for fraud and/or the Ohio Consumer Sales and
Practices act as there is no evidence that National knowingly misled or misinformed
Plaintiffs. National further asserts that Plaintiffs Prosser and Lummus have waived any
breach of contract claim associated with the delay in being assigned externship sites.
Plaintiffs ask the Court to deny National’s motion, asserting that genuine issues of
material fact exist, thereby precluding summary judgment.

11

II. Analysis
A. Summary Judgment Standard of Review
In a motion for summary judgment, “a court must view the facts and any
inferences that can be drawn from those facts ... in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007) (internal quotation marks omitted). “Summary judgment is only appropriate ‘if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(c)) (internal quotation marks omitted). “Weighing of the evidence or
making credibility determinations are prohibited at summary judgment-rather, all facts
must be viewed in the light most favorable to the non-moving party.” Id.
The requirement that facts be construed in the light most favorable to the
Plaintiff, however, does not mean that the court must find a factual dispute where
record evidence contradicts Plaintiff’s wholly unsupported allegations. After a moving
party has carried its initial burden of showing that no genuine issues of material fact
remain in dispute, the burden shifts to the non-moving party to present specific facts
demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of a factual dispute is not
enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v.
Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). In order to defeat the motion for
summary judgment, the non-moving party must present probative evidence that
12

supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
The non-moving party's evidence “is to be believed, and all justifiable inferences are to
be drawn in his favor.” Id. at 255 (emphasis added). The court determines whether
the evidence requires submission to a jury or whether one party must prevail as a
matter of law because the issue is so one-sided. Id. at 251-52.
To demonstrate a genuine issue of fact, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the material facts .... Where
the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587
(citation omitted). It is the Plaintiff’s burden to point out record evidence to support her
claims. “[T]he Court has no duty when deciding a motion for summary judgment to
scour the record for evidence that supports a plaintiff’s claims.”

Abdulsalaam v.

Franklin County Bd. Of Com’rs, 637 F. Supp.2d 561, 576 (S.D. Ohio 2009) (citing
Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 379 (6th Cir. 2007)).
B. National is entitled to Judgment as a Matter of Law with respect to
Plaintiffs’ claims under ORC 1345.03, breach of contract and fraudulent
inducement
1. Ohio Revised Code § 1345.03 - Unconscionable Acts or Practices
Under Section 1345.03 of the Ohio Revised Code, liability may be imposed for
unconscionable acts or practices in connection with a consumer transaction.

In

determining whether an act or practice is unconscionable, the following seven
circumstances should be taken into consideration:
(1) Whether the supplier has knowingly taken advantage of the inability of
13

the consumer reasonably to protect the consumer's interests because of
the consumer's physical or mental infirmities, ignorance, illiteracy, or
inability to understand the language of an agreement;
(2) Whether the supplier knew at the time the consumer transaction was
entered into that the price was substantially in excess of the price at which
similar property or services were readily obtainable in similar consumer
transactions by like consumers;
(3) Whether the supplier knew at the time the consumer transaction was
entered into of the inability of the consumer to receive a substantial benefit
from the subject of the consumer transaction;
(4) Whether the supplier knew at the time the consumer transaction was
entered into that there was no reasonable probability of payment of the
obligation in full by the consumer;
(5) Whether the supplier required the consumer to enter into a consumer
transaction on terms the supplier knew were substantially one-sided in
favor of the supplier;
(6) Whether the supplier knowingly made a misleading statement of
opinion on which the consumer was likely to rely to the consumer's
detriment;
(7) Whether the supplier has, without justification, refused to make a
refund in cash or by check for a returned item that was purchased with
cash or by check, unless the supplier had conspicuously posted in the
establishment at the time of the sale a sign stating the supplier's refund
policy.
Ohio Rev. Code § 1345.03.
Thus, scienter is a necessary element and must be proven in order to find an act
unconscionable under ORC §1345.03. Id. See also Karst v. Goldberg, 88 Ohio App.
3d 413, 417, 623 N.E.2d 1348, 1351 (1993). As such, to impose liability under this
section, Plaintiffs must show that National College knowingly misled Plaintiffs. National
College asserts that none of the seven circumstances outlined in section 1345.03(b)

14

apply in this case, nor have Plaintiffs alleged a specific violation of that section.
Plaintiffs’ complaint alleges that National College knowingly committed
unconscionable acts in violation of ORC §1345.03 by taking advantage of the Plaintiffs’
inability to reasonably protect their interests because of their inability to understand the
language of the Downing Memorandum. Plaintiffs argue that the language contained
in the Downing Memorandum establishes that National knowingly committed
unconscionable acts.

Specifically, Plaintiffs contend that the memorandum

misrepresents that the accreditation process had begun before January 5, 2006 and
that the college has coordinated the timing of the accreditation process. According to
Plaintiffs, to be coordinated, the self-report would have had to been submitted prior to
December 2007 and the on-site visit would have had to have been during the period
from December 2, 2007 to March 10, 2008, which was the final term of the first class.
Plaintiffs’ self-serving interpretation of the language contained in the Downing
Memorandum lacks merit and any evidentiary support.
Notably, as outlined above, the Downing Memorandum stated in relevant part:
The college has coordinated the timing of the accreditation process
with CAAHEP so that its first graduating class may be incorporated in the
requested grant of accreditation and therefore be eligible to sit for the
Certified Surgical Technology exam administered through the Liaison
Council on Certification of for the Surgical Technologist.
Although the college anticipates that it will be successful in its
request for programmatic accreditation, CAAHEP cannot and has not
guaranteed that the college’s application for accreditation will be granted
or that it will be granted or effective any specific future date.

(Downing Aff, Ex. 2)(Emphasis added).
15

The language of the Downing Memorandum accurately states that National
College did not yet have CAAHEP programmatic accreditation for Surgical Technology
and that National College could not guarantee such accreditation at any specific point
in time.

Furthermore, the undisputed evidence establishes that National College

advised students of the status of accreditation at the time they enrolled, as all enrolling
students were required to sign the Downing Memorandum.
Additionally, there is no evidence that National knowingly misrepresented
information related to the availability of extern sites at the time of enrollment. As noted
by National College, the undisputed evidence shows that National College apprised the
students of the delay in assigning externships because of the lack of sites.
Accordingly, Plaintiffs’ have presented no evidence to show that National College
knowingly misled students. National College is therefore entitled to judgment as a
matter of law with respect to Plaintiff’s claims under ORC 1345.03
2. Fraudulent Inducement
The Court next turns to Plaintiffs’ fraudulent inducement claim. “The elements
of an action in fraud are as follows: (a) a representation or, where there is a duty to
disclose, concealment of a fact (b) that is material to the transaction at hand (c) made
falsely with knowledge of its falsity, or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, (d) with the intent of
misleading another into relying on it, (e) justifiable reliance upon the representation or
concealment, and (f) a resulting injury proximately caused by the reliance.” Hacker v.
Natl. Coll. of Bus. & Tech., 2010-Ohio-380, 186 Ohio App. 3d 203, 209, 927 N.E.2d 38,
16

43. National College asserts that Plaintiffs’ have failed to establish the elements of
fraud and are therefore entitled to judgment as a matter of law.

The undersigned

agrees.
Plaintiffs’ assert that that the elements of fraud are met because “[t]here is a
written representation that the accreditation process had begun and that it was
coordinated. These were false when written and when delivered to the students. Oral
statements were made to the same effect.

The students relied on these

misrepresentations to their detriment.” (Doc. 49 at 27). Plaintiffs, however, do not
provide any facts in support of these assertions as outlined in Rule 56(c) of the Federal
Rules of Civil Procedure. Notably, pursuant to Rule 56(c), a party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.

Fed. R. Civ. P. 56(c).
As explained above, there is no evidence in the record to establish that National
College knowingly made false representations with the intent to mislead students with
respect to the availability of extern sites and/or CAAHEP accreditation.
cannot establish that the elements of fraud under the relevant facts.

Plaintiffs’

Accordingly,

National College is also entitled to judgment as a matter of law with respect to
17

Plaintiffs’ fraudulent inducement claims.
3. Breach of Contract
As noted above, Plaintiffs Prosser and Lummus faced a significant delay before
being placed in externship sites. Even if this delay constituted grounds for asserting a
breach of contract claim, National College asserts that Ms. Prosser and Ms. Lummus
waived any such breach of contract claim when they agreed to remain in school after
each were informed of the delay. Notably “a party may relinquish a right by either
express words or by conduct which seems to dispense with performance at the
designated time.” Hacker, v. 927 N.E.2d at 42 (citations omitted). Even if time is of the
essence, a time requirement “may be waived when the party to be benefitted ‘does any
act inconsistent with the supposition that he continues to hold the other party to his part
of the agreement.’ ” Id.
The Hacker case also involved claims brought against National College by
former students.

Alleging nearly identical facts relating to the availability of extern

sites, the Hacker Court found that students waived any alleged claim for breach of
contract against college arising from college's failure to place them in externship
programs during their final term. Id.
Plaintiffs do not dispute that there has been a waiver of contractual liability with
respect to the delay in placing Ms. Prosser and Ms. Lummus in externships. Instead,
they argue that such a waiver extends only to damages for the delay in performance
and that every contract contains an implied good faith provision. Plaintiffs assert that
“good faith is breached by dishonesty, deception and unconscionable acts” and the
18

evidence taken in favor of Plaintiff, “surely establishes a breach of implied good faith.”
(Doc. 49 at 27).

Again, Plaintiffs have no offered no evidentiary basis for their

assertions.
Accordingly, based on the foregoing, the undersigned finds that National
College’s motion for summary judgment is well-taken with respect to Plaintiffs’ claims
under ORC 1345.03, fraudulent inducement and breach of contract.
C. Genuine issues of material fact remain as to Plaintiffs’ claims for unfair
deceptive acts or practices.
Upon careful review, the undersigned finds that Plaintiffs’ remaining claim for
unfair deceptive acts or practices under the Ohio Consumer Practices and Sales Act
(“CSPA”) should proceed to trial. The CSPA provides that “no supplier shall commit
and unfair or deceptive act or practice in connection with a consumer transaction.”
ORC 1345.02(A). The statute goes on to provide the following non-exhaustive list of
deceptive acts:
(1) That the subject of a consumer transaction has sponsorship, approval,
performance characteristics, accessories, uses, or benefits that it does not
have;
(2) That the subject of a consumer transaction is of a particular standard,
quality, grade, style, prescription, or model, if it is not;
(3) That the subject of a consumer transaction is new or unused, if it is
not;
(4) That the subject of a consumer transaction is available to the
consumer for a reason that does not exist;
(5) That the subject of a consumer transaction has been supplied in
accordance with a previous representation, if it has not, except that the act
of a supplier in furnishing similar merchandise of equal or greater value as
19

a good faith substitute does not violate this section;
(6) That the subject of a consumer transaction will be supplied in greater
quantity than the supplier intends;
(7) That replacement or repair is needed, if it is not;
(8) That a specific price advantage exists, if it does not;
(9) That the supplier has a sponsorship, approval, or affiliation that the
supplier does not have;
(10) That a consumer transaction involves or does not involve a warranty,
a disclaimer of warranties or other rights, remedies, or obligations if the
representation is false.
Ohio Rev. Code §1345.02(b).
Thus, a consumer does not need to prove intent or scienter to prove a violation
of R.C. 1345.02. Karst, 623 N.E.2d at 1351. When determining whether a practice is
deceptive, courts look at the incident from the consumer’s standpoint. McPhillips v. US
Tennis Assn., (Lake App.) 2007-Ohio-3594 at ¶ 27. The focus is on the perception of
the consumer rather than the intent of the supplier. D & K Roofing v. Pleso, (Turmbull
1991) 77 Ohio App.3d 181, 601 N.E.2d 561.

The claimants must show that

respondents’ conduct or statements were likely to induce in claimants’ minds
impressions that were not in accord with the facts. Chestnut v. Progressive Cas. Ins.,
166 Ohio App.3d 299, 2006-Ohio-2080 at ¶23; In Re Rebarchek (Bkrtcy. N.D. Ohio
2002) 293 B.R. 400; Motzer v. Ohio Attorney General (Butler, 1994) 95 Ohio App.3d
183, 642 N.E.2d 20. Failure to disclose a substantial fact may constitute an unfair or
deceptive act. Unif. CSPA §3(a), 7A U.L.A, 212 (1999): Ford v. Brewer, 86AP-626,
1986 WL 14259 (Ohio Ct. App. Dec. 9, 1986); Walker v. Dominion Homes, Inc., 164
20

Ohio App.3d 385, 842 N.E.2d 570, 2005 -Ohio- 6055, ¶ 14. However, where the
record shows that the consumer could not be deceived, no violation has occurred.
Ferron v. EchoStar Satellite, LLC, 727 F.Supp.2d 647, 653 (S.D. Ohio 2009).
Here, viewing the facts in favor of Plaintiffs’, genuine issues of material fact exist
as to whether National’s Surgical Technology degree program had the approval,
performance characteristics, or benefits that it did not have; and/or that the National
College had a sponsorship, approval, or affiliation that it did not have.

See ORC

§1345.02(B)(1) and (9).
Plaintiffs’ testified that upon graduation, National College represented that they
would be qualified to work in an Operating Room as a surgical tech; and could in fact
secure employment as a surgical tech in the Cincinnati region.

National College

represented that it was in the process of securing programmatic CAAHEP accreditation
and was hopeful it would be granted by the date of the first graduating class. National
College also represented that there were no delays or waiting list for clinical-extern
placement, and that the program had contracts with clinical facilities.5

Such

representations were not accurate and could be found to induce in Plaintiffs’ minds
impressions that were not in accord with the facts. Thus, a reasonable juror could find
that National unfairly led Plaintiffs’ to believe that upon graduation, they would be fully
qualified to obtain employment as surgical technicians. However, the facts establish
5

National acknowledges that fact questions remain as to Plaintiffs Lummus’ and Prosser’s
claim under 1345.02 as a result in the delay of being assigned externship sites and is not seeking
summary judgment on those claims. See Hacker v. Natl. Coll. of Bus. & Tech., 2010-Ohio-380, 186
Ohio App. 3d 203, 927 N.E.2d 38 (Fact issue remained whether college made unfair or deceptive
representation to incoming students that required externships would be available during final term,
precluding summary judgment on claim under CSPA).

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otherwise.
Plaintiffs assert the advertisements and sale representatives’ presentations
were deceptive because did not have statements of limitation, including the possibility
that graduates may be ineligible to sit for the certification examination and employment
is highly dependent upon graduation from an accredited surgical tech program.
Notably, Plaintiffs were told they could obtain employment as a surgical technician after
graduation. However, the majority of surgical facilities in the Cincinnati region require
surgical technicians to be certified (See Doc. 57, Hospital Surveys); and Plaintiffs
Parsons and Prosser were not eligible to sit for the certification exam upon graduation.
As detailed above, in order to become a certified surgical technician, students must
graduate from a CAAHEP accredited program and pass a certification examination.
However, National was not approved for CAAHEP accreditation until May 2010 after
Ms. Parsons and Ms. Prosser graduated from National.
The Court recognizes that the Downing Memorandum informed enrolling
students that National was in the process of obtaining CAAHEP accreditation,
coordinating its efforts so that accreditation would be obtained at the time the first class
graduated and could not guarantee such accreditation at any specific time. However,
factual disputes exist as to whether National’s conduct may have delayed the CAAHEP
accreditation process.

(See Doc. 57).

Furthermore, neither the language in the

Downing Memorandum, nor other program materials in the record, articulate the
connection between CAAHEP accreditation, surgical technologist certification and
employment. Whether such omissions were deceptive under Ohio law involves factual
22

determinations that cannot be made by the Court on summary judgment.
Accordingly, National’s motion for summary judgment is denied with respect to
Plaintiffs’ claims under Ohio Rev. Code §1345.02.6
D. Motion to Strike
In response to National’s motion for summary judgment, Plaintiffs submitted
copies of documents taken from National College’s ARC-ST accreditation file for its
Cincinnati Surgical Tech Program.

(Doc. 57).

However, the documents were not

attached to an affidavit of counsel or otherwise authenticated. In an apparent effort to
authenticate these documents, Plaintiffs’ filed a supplemental memorandum attaching
a coverletter indicating that the documents were obtained were National’s counsel as
part of another lawsuit. (Doc. 66). Defendant’s do not dispute the authenticity of the
documents, but instead argue that the documents should be stricken because they are
not properly authenticated and therefore inadmissible. (Doc. 68).
Although the general rule is that unauthenticated documents must be
disregarded, see Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir.1993); some courts have
nevertheless considered unauthenticated documents in deciding a motion for summary
judgment where the objecting party simply argued that the proponent of the documents
failed to properly authenticate the documents, as opposed to challenging the
authenticity of the documents. Moore v. Baptist Mem'l Coll. of Health Sciences, No.
6

In light of the determination that this claim should proceed to trial, National College’s motion
for summary judgment as to Plaintiffs’ claims for compensatory damages is not well-taken as a jury will
decide what, if any, damages Plaintiffs’ have suffered as a result of National’s conduct. With respect to
Plaintiff’s claim for treble damages under Ohio Revised Code 1345.09, if a jury awards compensatory
damages for violations of the Ohio Consumer Sales and Practices Act, Plaintiffs’ may then file a request
for treble damages with the Court. See Nelson v. Pieratt, 2012-Ohio-2568, 2012 WL 2088635.

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08-231, 2010 WL 100551 (W.D. Tenn. Jan. 7, 2010) (citing Starks-Umoja v. Fed.
Express Corp., 341 F. Supp. 2d 979, 984 (W.D. Tenn. 2003)(denying the motion to
strike exhibits “[i]n the interest of fairly considering all of the evidence that Plaintiff
contends supports her claims”); see also Wilks v. Pep Boys, No. 3:02–0837, 2006 WL
2821705, at *5-6 (M.D. Tenn. Sept. 26, 2006) (finding that, although exhibit was not
properly authenticated, given that the defendant did not contest the exhibit's
authenticity, “and the fact that the defendant itself produced the very document it now
challenges, the court will not strike this exhibit”).
Accordingly, in the interests of justice and because the authenticity of the
documents is not challenged, the undersigned finds that such documents are properly
before the Court. Defendant’s motion to strike is therefore DENIED.
III. Conclusion
For these reasons, IT IS THEREFORE ORDERED THAT: (1) Defendant’s
motion to strike (Doc. 68) is DENIED; (2) Defendant’s motion for summary judgment
(Doc. 42) is GRANTED as to Plaintiffs’ claims under Ohio Rev. Code 1345.03, breach
of contract and fraudulent inducement; and (3) Defendant’s motion for summary
judgment is DENIED as to Plaintiffs’ claims under Ohio Rev. Code 1345.02.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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