                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0201n.06
                                                                                   FILED
                                          No. 16-3320                          Apr 05, 2017
                                                                          DEBORAH S. HUNT, Clerk

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

VERNON L. TRASTER,                                       )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
                                                              ON APPEAL FROM THE
v.                                                       )
                                                              UNITED STATES DISTRICT
                                                         )
                                                              COURT FOR THE
OHIO NORTHERN UNIVERSITY,                                )
                                                              NORTHERN DISTRICT OF
                                                         )
                                                              OHIO
       Defendant-Appellee.                               )
                                                         )
                                                         )



BEFORE:       BATCHELDER, ROGERS, and WHITE, Circuit Judges.

       ROGERS, Circuit Judge. This employment case arises out of several accusations of

sexual harassment made against Vernon Traster, a long-time professor of law at Ohio Northern

University. In the spring of 2012, university officials received complaints from two women at

the university’s law school—Traster’s student research assistant and a library employee—

alleging that he had sexually harassed them and, in the employee’s case, had assaulted her. The

university promptly suspended Traster without pay pursuant to the university’s faculty

handbook, and launched an investigation under its university-wide sexual harassment policy.

After a faculty committee convened by the university found Traster in violation of that policy,

his suspension was continued and, soon after, a second faculty committee recommended his

termination, which the university ultimately approved.
No. 16-3320, Traster v. Ohio Northern Univ.


       Traster then brought this suit alleging, among other things, that the university breached

his employment contract by suspending and terminating him, and that by choosing to suspend

him without pay it had also discriminated against him based on his age. After granting summary

judgment to the university on Traster’s age discrimination claim, the district court ordered a

bifurcated bench trial pursuant to Fed. R. Civ. P. 16(c)(2)(M) and 42(b), dividing the procedural

questions at the core of Traster’s contract claim—which set of university procedures was

required by the contract—from the substantive issue of whether the correct procedure was

properly employed. In the event that the court found that Ohio Northern had failed to employ the

correct procedure, the court would then have moved to a “re-do” of the disciplinary proceedings.

If, on the other hand, the court determined that Ohio Northern had followed the correct

procedures, the court would instead allow Traster to “litigate his claim challenging [Ohio

Northern’s] findings” relating to his termination.

       The case proceeded to a bench trial—corresponding to the first step of the bifurcation

order—after which the district court issued an opinion ruling in Ohio Northern’s favor on the

remaining contract issues, including the substantive issue of whether sufficient evidence

supported Traster’s termination. Traster then sought reconsideration of that judgment, in part on

the basis that he had not been given the opportunity to litigate the substantive question of

whether the termination decision was proper under his contract, as had been spelled out in the

court’s bifurcation order. The district court reaffirmed its original rulings, and Traster now

appeals.

       After carefully reviewing the record and the parties’ briefs, as well as the relevant law,

we are convinced that the district court correctly resolved the issues presented in this case.

The district court’s two principal opinions—on summary judgment and on the remaining



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No. 16-3320, Traster v. Ohio Northern Univ.


contract claims following the bench trial—accurately and exhaustively lay out the facts and law

governing the major questions raised in this appeal, and those opinions clearly articulate the

court’s reasons for ruling as it did.     A full written opinion from this court is therefore

unnecessary.

       Only two further issues need be addressed specifically. First, apart from his challenge on

the merits of his breach of contract claims, Traster has also objected on appeal to the way the

district court handled those claims, by deciding the substantive issue of his termination before

allowing him to brief and argue that issue. Thus, Traster contends, the district court’s departure

from its bifurcation order—a departure that the district court itself admitted—denied Traster the

opportunity to litigate his substantive claim before the district court ruled on it, resulting in

reversible error. But whatever error there was, being harmless, does not justify reversal. Rule 61

of the Federal Rules of Civil Procedure makes clear that an error of the kind Traster alleges

would not warrant setting aside a judgment unless it “affects the substantial rights of the parties;

otherwise, the error should be considered harmless.” Gandy v. Sullivan County, 24 F.3d 861,

866 (6th Cir. 1994). There was no such prejudicial effect on Traster’s rights, however, for he

was provided the opportunity to litigate the substantive claim. It is true that that opportunity

came only after the court had already ruled on the issue and then only in a motion for

reconsideration. Nonetheless, in ruling on that motion the court emphasized that it had been

willing to reconsider its original view of Ohio Northern’s decision to terminate Traster—it had

“left open the door” for Traster to show the court it had erred. Even after weighing that motion

and the various exhibits attached to it, however, the court was still unmoved, having found

Traster’s alleged evidence of bias too “meager” to justify overturning either Ohio Northern’s

termination decision or the district court’s original opinion upholding it. The latter opinion, as



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No. 16-3320, Traster v. Ohio Northern Univ.


the district court explained, was also sound under Ohio law and had adequate support in the

record. Even if the court may have jumped the gun, then, in reaching the substantive issue of

Traster’s dismissal, that lapse ultimately did not affect Traster’s ability to make his case that

Ohio Northern had wrongly dismissed him. Nor, therefore, does it now justify reversal.

       Traster also raises an issue that he claims was “avoided” by the district court: that

because he was normally paid for nine months of work over a twelve-month period, but received

pay for only seven of the nine months he actually worked before his suspension, he is now due

the difference between what he received (7/12th of his salary) and what he was owed (7/9th of

that salary). But the district court likely did not address that claim for the same reason that this

court cannot review it now: it appears nowhere in Traster’s complaint. Indeed, Traster himself

was unable to locate that claim in his complaint during the telephonic hearing on Ohio

Northern’s summary judgment motion, and in his brief before this court he appears to admit that

he raised the issue only in response to that motion. We have declined, however, to consider a

claim raised for the first time in response to a motion for summary judgment, see Bridgeport

Music, Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir. 2007), just as we have more

generally refused to consider a claim not raised in a complaint, see Freightliner of Knoxville, Inc.

v. DaimlerChrysler Vans, LLC, 484 F.3d 865, 871 n.4 (6th Cir. 2007) (citing Clark v. National

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)). This final claim, having been

raised for the first time in response to a motion for summary judgment, is therefore not properly

before this court.

       The judgment of the district court is accordingly affirmed.




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