[Cite as Eckel v. Bowling Green State Univ., 2010-Ohio-3225.]




                                                                 Court of Claims of Ohio
                                                                The Ohio Judicial Center
                                                  65 South Front Street, Third Floor
                                                                   Columbus, OH 43215
                                                    614.387.9800 or 1.800.824.8263
                                                                    www.cco.state.oh.us




NORMAN I. ECKEL, Ph.D.


       Plaintiff


       v.


BOWLING GREEN STATE UNIVERSITY


       Defendant
        Case No. 2007-02815


Judge Clark B. Weaver Sr.


DECISION
Case No. 2007-02815                                -2-                                        DECISION

        {¶ 1} Plaintiff brought this action alleging breach of contract. The
issues of liability and damages were bifurcated and the case proceeded to
trial on the issue of liability.1
        {¶ 2} In 1979, plaintiff began his employment with defendant as an
assistant professor. In 1982, plaintiff earned a Ph.D. in accounting and
economics.       In 1985, plaintiff was awarded tenure and became an
associate professor of accounting.
        {¶ 3} Plaintiff’s employment was governed by a series of one-year
contracts. On June 14, 2004, Robert Edmister, Dean of the College of
Business Administration, issued a faculty appointment letter to plaintiff,
wherein he stated that: “This appointment letter confirms the details of
your appointment as Associate Professor, full-time, Tenured Faculty, for
the fiscal year 2004-2005. Except as modified by the terms of this letter,
your Contract For Faculty Employment (‘Agreement’) remains in full force
and effect.” (Joint Exhibit B).
        {¶ 4} During the spring semester of the 2004-05 academic year,
plaintiff taught three courses of Accounting 222, which met twice weekly
on Tuesdays and Thursdays for approximately one hour and 15 minutes
per session. On Tuesday, February 1, 2005, plaintiff had been teaching a
class that started at 11:30 a.m.2 At approximately 12:30 p.m., one of
plaintiff’s students arrived for class.            Plaintiff testified that he was
frustrated that the student arrived one hour late.

        1
          After the completion of the presentation of plaintiff’s evidence, defendant moved
for dismissal pursuant to Civ.R. 41(B)(2). The court took the motion under advisement.
For the reasons set forth in this decision, defendant’s motion is DENIED.
         2
          All dates referenced herein shall pertain to the year 2005 unless otherwise
noted.
Case No. 2007-02815                               -3-                            DECISION

       {¶ 5} Plaintiff confronted the student and asked him if he knew
what time it was. According to plaintiff, the student looked disheveled and
disoriented.    Plaintiff told the student that he should go back to his
dormitory because there was no reason to stay for only 15 minutes.
Plaintiff asked the student to leave the classroom.
       {¶ 6} After this confrontation, plaintiff made a gesture with his
hand, as if he were pointing a gun to his own head, and said, “Duh.”
Immediately afterward, plaintiff stated to his class something such as:
“No, I shouldn’t shoot myself. I should bring my AK-47 to class and shoot
all of you.” Plaintiff continued by stating that there were “30 rounds to a
clip” and that “two clips should about do it.” After chuckling, plaintiff then
stated, “No, really ... I really should do it.”
       {¶ 7} Plaintiff continued teaching the class and then taught his
regularly-scheduled classes for the rest of the day.        Plaintiff was not
scheduled to teach on Wednesdays. On Thursday, February 3, plaintiff
taught his regularly-scheduled classes without incident.       After his last
class on Thursday, plaintiff was summoned to a meeting in Dean
Edmister’s office.      Plaintiff was advised that several students had
complained about the comments that he had made on the previous
Tuesday. During the meeting, plaintiff admitted that he had made the
comments, explained that “it was a stupid thing to say,” and claimed that
he had been joking. Plaintiff offered to apologize to his class. Later that
day, plaintiff was advised that he had been suspended from the university
for the remainder of the semester with pay.
       {¶ 8} On      February 4,       Nancy Merritt,   Associate   Dean for
Undergraduate Studies in Business, sent an e-mail to the students who
Case No. 2007-02815                                  -4-                                         DECISION

were enrolled in plaintiff’s 11:30 a.m. class. In the e-mail, Merritt informed
the students that the comments that plaintiff had allegedly made in
Tuesday’s class were being investigated, and that a substitute instructor
would be provided. Students were urged to contact Dr. Tim Chambers,
Director of Undergraduate Studies in Business, Dr. Larry Kowalski,
Department Chair, or Dr. Merritt with any comments or concerns.
        {¶ 9} On February 7, Dean Edmister sent plaintiff a letter advising
him that he had received complaints from several students alleging that
plaintiff had engaged in conduct that was construed as a threat to the
personal safety of the students in the accounting class. Dean Edmister
stated the following: “If these allegations are true, your conduct would be
deemed inconsistent with your responsibilities as a faculty member under
the Academic Charter and your employment contract with the University.
Because I have preliminarily determined that the allegations appear
credible and that they involve a very serious matter, I have decided to
immediately suspend you from your duties without loss of pay and to
restrict your access to the campus, as further detailed below, pending
investigation and resolution of this matter.”                (Joint Exhibit G.)        Dean
Edmister cited provisions of both the academic charter the Ohio Revised
Code that plaintiff may have violated.3


        3
         The letter states as follows:

        “Part B, Division II. Section E: Employee Responsibilities, states that ‘faculty
members are expected
to abide by the standards of professional ethics and responsibilities’;

         “Part B, Division II, Ethical Responsibilities, Section F 2. b) (1) provides that one
of our responsibilities, as teacher-scholar is:
Case No. 2007-02815                                   -5-                                          DECISION

        {¶ 10} In the letter, Dean Edmister also informed plaintiff that Dr.
Merritt would lead an investigation regarding the allegations; that the
allegations would be “sustained” if it were found that “the important facts
relating to the allegations are more likely true than not and that those facts
violate one or more of the above standards. In that event, appropriate
remedial measures will be taken by me as the decisional authority.”
(Emphasis in original.) Dean Edmister also went on to state that “[a]s the
decisional authority, I will review the findings of the investigation and will
ultimately determine whether one or more of the standards have been
violated and, if so, what remedial measures are appropriate under the
circumstances. Because of the gravity of the allegations in this matter, if
the allegations are sustained and there is a finding of culpability, that
finding could be considered sufficient grounds to support disciplinary
action against you.”
        {¶ 11} Dean Edmister also stated in the letter that pending the
investigation, plaintiff was not permitted to be present on campus at any
time without the dean’s prior consent and the prior consent of plaintiff’s



        “(1) The responsibility to assure the student’s freedom to learn, through
maintaining an atmosphere conducive to free inquiry, the respect of the student as an
individual, and the evaluation of students based on professionally judged academic
performance without regard to personal or political matters irrelevant to that performance;
and

          “Part B. Division II, Ethical Responsibilities, Section F 4: provides in relevant part
that, ‘It is the policy of Bowling Green State University that acts of violence, threats of
violence, or intimidation will not be tolerated.” (Emphasis in original.)

        The letter also states that R.C. 2903.21(A) states that: “No person shall
knowingly cause another to believe that the offender will cause serious physical harm to
the person or property of the other person * * *.”
Case No. 2007-02815                         -6-                                   DECISION

department chair.    The letter also stated that plaintiff had the right to
submit a written response to the allegations; that he would be afforded an
interview during which he could verbally present his position; that he had
the right to seek the advice of counsel at his own expense and that
counsel could attend the interview but would not be permitted to answer
questions for him, make statements on his behalf, or to delay or interrupt
the interview; and that plaintiff would be advised in writing of the dean’s
decision on the matter and any disciplinary or remedial measures that may
be imposed.
       {¶ 12} On March 1, Dean Edmister sent a letter to plaintiff advising
him that an interview with the investigative panel had been scheduled for
March 22; that plaintiff could file a written response at least five days prior
to the scheduled interview; and that Dean Edmister and university counsel
would be present at the meeting.           Dean Edmister also noted his
understanding that plaintiff’s attorney would attend the interview. (Joint
Exhibit H.)
       {¶ 13} On April 13, the investigative panel, composed of Drs.
Merritt, Kowalski, and Chambers, sent a memo to Dean Edmister
regarding its findings. The memo referenced the standards as set forth in
the dean’s February 7 letter to plaintiff.     After an investigation, which
included examining statements or correspondence from students who had
been enrolled in any of plaintiff’s spring semester classes, the discussion
session with plaintiff on February 3, and the interview on March 22, the
panel found that it was more likely than not that the important facts relating
to the allegations did occur. The panel further found that it was more likely
Case No. 2007-02815                         -7-                                   DECISION

than not that a reasonable student would have felt intimidated and
threatened by plaintiff’s comments.
       {¶ 14} The panel also found that it was more likely than not that
plaintiff’s conduct violated the provisions in the academic charter
regarding professional ethics and responsibilities; that plaintiff failed to
maintain an atmosphere conducive to free inquiry and the respect of the
student as an individual; and that his comments constituted a threat of
violence as defined in the anti-violence policy. The panel sustained the
allegations that were detailed in the February 7 letter, but noted that
plaintiff had acknowledged that his remarks were inappropriate and
unprofessional, that he regretted the incident, and that he was willing to
apologize. (Joint Exhibit J.)
       {¶ 15} On May 9, Dean Edmister sent plaintiff a letter wherein he
stated that he accepted the factual findings of the investigating committee;
that he concluded that plaintiff’s actions violated the academic charter and
the university’s violence-free workplace policy; and that advised plaintiff
that he was taking the “following remedial actions” which included his
suspension from the university without pay from May 7, 2005, until
January 1, 2006. Plaintiff was also required to participate in professional
development classes regarding a violence-free workplace environment
upon his return in 2006. Finally, Dean Edmister stated that pursuant to
Part B-I.E of the academic charter, plaintiff had the right to file a grievance
of his decision. (Joint Exhibit N.) On May 23, Dr. Edmister resigned as
Dean of the College of Business.
       {¶ 16} On June 14, Interim Dean Nancy Merritt sent plaintiff a letter
which included a copy of the investigative panel’s report to the dean
Case No. 2007-02815                        -8-                                  DECISION

concerning the “student complaints filed against” him during the 2005
spring semester. In the letter, Dean Merritt notified plaintiff that inasmuch
as the investigation had been completed, he was welcome to return to
campus and to his office in the Business Administration Building.
However, during the time of his suspension, plaintiff was not allowed to
participate in any committees or department business; specifically, he did
not have any voting privileges concerning the promotion and tenure
candidates from the College of Business. (Joint Exhibit P.)
      {¶ 17} On August 22, plaintiff sent a letter to Dr. Ben Muego, Chair
of the Faculty Personnel and Conciliation Committee (FPCC), wherein he
stated that he wished to initiate a grievance of the dean’s decision in May
2005 to suspend his employment for the fall semester without pay. (Joint
Exhibit Q.) On September 24, plaintiff suffered a stroke.
      {¶ 18} On January 20, 2006, after having been granted extensions
of time, plaintiff submitted a grievance petition to Dr. Muego, via his
facilitator, Lawrence Daly, Professor of History. Over the objections of
both Dr. Edmister and Dean Merritt as to the timeliness of plaintiff’s
grievance, the FPCC held a hearing on November 7, 2006.                  On
November 15, 2006, a majority of the FPCC found that plaintiff had been
denied due process when he was suspended from the university without
pay; that the university’s initial action of suspending him with pay until
such time that an investigation could be conducted was warranted, but
that the university’s    conclusion that plaintiff’s in-class statement
constituted a threat of violence was invalid; and, that the disciplinary
action imposed from May 7, 2005, to January 1, 2006, was unwarranted.
(Defendant’s Exhibit EE.)
Case No. 2007-02815                             -9-                                      DECISION

       {¶ 19} On December 19, 2006, Dr. John Folkins, Provost and Vice
President for Academic Affairs, issued a memorandum wherein he found
that plaintiff’s grievance did not meet the time limitations as outlined in the
academic charter. He also found that the factual conclusions of the FPCC
were not supported by the evidence. He further stated that he had been
consulted when Dean Edmister made the decision to suspend plaintiff’s
employment for one semester without pay, and that he believed at the
time that it was an appropriate action.               He accepted the FPCC’s
recommendation regarding summer teaching assignments but stated that
the other recommendations were not appropriate.4 He further stated that
his decision was the final administrative action of the university on the
matter.
       {¶ 20} Plaintiff asserts that defendant breached his employment
contract when it suspended him without pay from May 7, 2005, to January
1, 2006, inasmuch as the academic charter does not provide for the
unpaid suspension of a tenured faculty member. Plaintiff also asserts that
defendant breached the contract when it failed to follow the disciplinary
process described in the academic charter regarding threats of violence.
Defendant argues that plaintiff breached his employment contract when he
made a threat of violence, and that nothing in the academic charter
prohibits a dean from suspending a tenured faculty member without pay
for a reasonable amount of time as a sanction for violating the rules
regarding threats of violence in the workplace.


       4
         Both the FPCC and Dean Edmister agreed that any claim that plaintiff had with
regard to summer teaching assignments in 2005 was without merit inasmuch as the nine-
Case No. 2007-02815                       - 10 -                                 DECISION

      {¶ 21} In order to prove breach of contract, plaintiff must prove the
existence of a contract; performance by plaintiff; breach by defendant; and
damages or loss as the result of the breach. Samadder v. DMF of Ohio,
Inc., 154 Ohio App.3d 770, 2003-Ohio-5340. The parties do not dispute
that plaintiff’s employment was governed by a written contract which was
subject to the academic charter. The construction of written contracts is a
matter of law. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d
241, paragraph one of the syllabus.      The cardinal purpose for judicial
examination of any written instrument is to ascertain and give effect to the
intent of the parties. Aultman Hosp. Assn. v. Community Mut. Ins. Co.
(1989), 46 Ohio St.3d 51.     “The intent of the parties to a contract is
presumed to reside in the language they chose to employ in the
agreement.” Kelly v. Medical Life Ins. Co. (1987), 31 Ohio St.3d 130,
paragraph one of the syllabus.
      {¶ 22} “‘A written contract with an explicit tenure provision clearly is
evidence of a formal understanding that supports a teacher’s claim of
entitlement to continued employment unless ‘sufficient cause’ is shown.’”
Chan v. Miami University, 73 Ohio St.3d 52, 59, 1995-Ohio-226, quoting
Perry v. Sindermann (1972), 408 U.S. 593, 601. “Tenure has the status of
a property right and may be deprived pursuant to constitutionally adequate
procedures defined by the right itself.” Chan, supra.
      {¶ 23} In Chan, a tenured professor was accused of sexually
harassing one of his students. The university terminated his employment
pursuant to the contract provision prohibiting sexual harassment rather


month employment contracts for faculty members do not guarantee summer
Case No. 2007-02815                          - 11 -                               DECISION

than the contract provision regarding termination of tenured faculty. The
Supreme Court of Ohio held that because the university terminated the
professor’s employment contract without complying with its express
procedure for termination of tenured faculty, the university breached its
contract with the professor and denied him due process of law.
       {¶ 24} Defendant argues that the holding in Chan does not apply to
this case because plaintiff’s employment was not terminated and his
tenure was not revoked.        However, both plaintiff’s pay and his voting
privileges were suspended from May 7 to December 31. The court finds
that defendant’s actions, in effect, interfered with plaintiff’s tenure rights.
       {¶ 25} Section B-I.C.3.a), regarding tenure at defendant’s university
contains the following relevant language:
       {¶ 26} “The tenure of a member of the faculty shall continue until
one of the following occurs: death, resignation, retirement because of age
or disability, discontinuance of the position as a consequence of a
Universitywide financial exigency, termination of the appointment for
adequate cause, or failure to accept within sixty days an assignment, to be
made in writing, for the ensuing academic year of duties appropriate to the
faculty member’s professional training and experience.” The court finds
that none of these situations occurred in this matter, yet plaintiff’s
employment was “suspended.” The court finds that there is no mention of
the suspension of tenured faculty in the academic charter.
       {¶ 27} Generally, trial courts are required to defer to the academic
decisions of colleges and universities unless there has been such a


employment.
Case No. 2007-02815                                - 12 -                                      DECISION

substantial departure from the accepted academic norms so as to
demonstrate that the committee or person responsible did not actually
exercise professional judgment. Bleicher v. Univ. of Cincinnati College of
Medicine (1992), 78 Ohio App.3d 302, 308. The standard of review is not
merely whether the court would have decided the matter differently but,
rather, whether the faculty action was arbitrary and capricious. Id. See
also Bd. of Curators of Univ. of Mo. v. Horowitz (1978), 435 U.S. 78, 91.
        {¶ 28} Robert Edmister testified that he was not aware of any
provision in the academic charter for a Dean or the Provost to suspend a
tenured professor. However, he testified that he believed that he had the
authority as the contracting officer to suspend plaintiff without pay.5
        {¶ 29} Dr. John W. Folkins testified that he was provost and Vice
President for Academic Affairs. According to Dr. Folkins, the contracting
officers, or deans, are responsible for disciplining faculty.                Dr. Folkins
stated that he approved a suspension with pay in February because an
investigation was pending. Dr. Folkins further testified that he approved
the proposed suspension without pay after the investigation because he
thought a suspension without pay was appropriate discipline.
        {¶ 30} Nancy Merritt testified that after her initial meeting with
plaintiff, she was part of the decision to remove him from campus because


        5
         Article IX, Section C4 states that: “The Dean shall serve as chief personnel and
contracting officer for the college. As such, the Dean shall review all departmental and
school personnel recommendations concerning faculty and academic staff (i.e.,
recommendations for new appointments, reappointments, performance evaluations,
salary changes, terminations of contracts, tenure, leaves of absence, and promotions) in
accordance with the principles set forth in this Charter. X, XI, XII, B-I.A, B, C, D, E, and
F. The Dean shall be responsible for forwarding personnel recommendations to the
VPAA.” (Emphasis in original.)
Case No. 2007-02815                       - 13 -                               DECISION

she considered his statements a threat of violence. Merritt stated that she
was worried that plaintiff would go back to class without having taken
anger management training.
      {¶ 31} Dr. Tim Chambers testified that there was no significant
change in the number of students who attended plaintiff’s classes from
February 1 to February 3, after plaintiff had made the remarks.
      {¶ 32} The academic charter contains the following language:
“Section B-II.F. Ethical Responsibilities. 4. Policy on Violence. It is the
policy of Bowling Green State University that acts of violence, threats of
violence, or intimidation will not be tolerated.      Bowling Green State
University recognizes the importance of providing a safe environment for
all its members. In this community, victims/survivors will be treated with
dignity and respect. Any persons found in violation of this policy may be
subject to disciplinary action (B-II.F.3 and B-I.E). Violators may also be
subject to criminal prosecution.” (Emphasis added.)
      {¶ 33} It is undisputed that no criminal charges were brought
against plaintiff for his comments.     Section B-II.F.3 of the academic
charter states in part: “Equal Opportunity and Anti-Harassment Policies
Bowling Green State University is committed to providing faculty, staff and
students with an environment where they may pursue their careers or
studies free from discrimination.     The Office of Equity, Diversity and
Immigration Services is responsible for administering the University’s
Equal Opportunity and Anti-Harassment Policies.        The office exists, in
part, to ensure that all members of the University community understand
their responsibility to create and maintain an environment free from
discrimination and harassment.”
        {¶ 34} Section B-I.E, entitled “Faculty Grievance Procedures”
states, in part: “The Faculty Personnel and Conciliation Committee
(FPCC) IV.F.4 is empowered to resolve faculty grievances by a process of
facilitation, conciliation, Board of Inquiry, Board of Appeal, or Direct
Appeal to the VPAA, or President and culminating in a recommendation to
the VPAA or the President. Since the grievance process is adversarial, it
is preceded by a required attempt at conciliation. Faculty members with
potential grievances are encouraged to seek resolution of them by
whatever means are available before filing a grievance with the FPCC.
The procedures for handling faculty potential grievances by the Faculty
Senate’s FPCC follow.”6




        6
         “1. Powers of FPCC

        “The FPCC shall:

             “a) consider grievances brought by faculty members concerning salary,
retention, rank, tenure, B-I.C.3.c) and professional practices, including grievances
brought against individual faculty members or administrators as a result of alleged
infractions of applicable policies, procedures, rules, regulations or laws, relating to the
operation of the University;

           “b) consider grievances brought by a department Chair, a school Director, a
Dean, the VPAA, or the President against individual faculty members; * * *

        “2. Appointment of Facilitator

              “a) After the Chair of FPCC is contacted by a faculty member who desires to
file a grievance, the FPCC Executive Committee (FPCC-EC) IV.F.4, shall within five class
days appoint a facilitator, who can be a current FPCC member;
              “b) The facilitator shall explain the FPCC grievance and conciliation process
to the grievant, shall assess and inform the grievant of the relative merit of the proposed
grievance, shall assist the grievant in preparing the petition, and shall emphasize the
importance of following time deadlines;

            “c) The grievant may select the facilitator to become his or her advisor B-
I.E.2 or may select another faculty or administrative staff member.
        {¶ 35} Upon review of the evidence, the court finds that defendant
originally charged that plaintiff had violated the academic charter by
making a threat of violence.            The court finds that defendant acted
reasonably and within its discretion when it suspended plaintiff with pay
pending an investigation of such a charge.
        {¶ 36} However, the court further finds that the academic charter
does not provide for the unpaid suspension of a tenured professor’s
employment. Furthermore, the policy against workplace violence refers to
two separate sections of the academic charter that are applicable when a
violation of that policy has occurred: Sections B-II.F.3 and B-I.E. Section
B-II.F.3 refers to instances where discrimination has been alleged, and the
court finds that this section was not applicable to the facts in this case.
Section B-I.E refers to the faculty grievance procedure, and it is
undisputed that the faculty grievance procedure was not followed when
discipline was imposed upon plaintiff for his comments. The court further
finds that Dean Edmister, therefore, acted arbitrarily when he suspended
plaintiff without pay from May 7 to December 31, 2005, inasmuch as such
a sanction is not authorized by the academic charter. Although defendant
asserts that plaintiff’s tenure was not affected by the suspension, the court
finds that the suspension was an unauthorized infringement on his tenure.
        {¶ 37} Furthermore, defendant’s expert, Eugene Deisinger, who
serves as chief of police at Iowa State University, and a crisis intervention
and threat assessment consultant, opined that plaintiff did not pose a risk
of carrying out the specific threat.           The court finds that Deisinger’s
testimony was credible. Moreover, the court finds that defendant’s failure


             “d) The facilitator’s role is concluded when the grievance petition is
submitted to the Chair of FPCC and the Faculty Senate Office, or if the grievant decides
not to continue the matter.” (Emphasis added.)
to inquire whether plaintiff had enrolled or even attended anger
management classes upon his return to campus in June, coupled with the
fact that the attendance rate did not vary from plaintiff’s February 1 to
February 3 classes, calls into question defendant’s contention that it
believed that plaintiff posed a serious threat of harm. The court finds that
defendant’s initial reasonable response to the situation escalated into an
arbitrary punishment for plaintiff’s one-time lapse in judgment.
       {¶ 38} For the foregoing reasons, the court finds that plaintiff has
proven by a preponderance of the evidence that defendant breached his
employment contract by imposing an unpaid suspension that was not
authorized by the academic charter, and that the disciplinary measures as
outlined in the policy prohibiting workplace violence were not followed.
Therefore, judgment shall be rendered in favor of plaintiff.




                                                     Court of Claims of Ohio
                                                   The Ohio Judicial Center
                                          65 South Front Street, Third Floor
                                                       Columbus, OH 43215
                                           614.387.9800 or 1.800.824.8263
                                                        www.cco.state.oh.us




NORMAN I. ECKEL, Ph.D.


      Plaintiff
      v.


BOWLING GREEN STATE UNIVERSITY


      Defendant
       Case No. 2007-02815


Judge Clark B. Weaver Sr.


JUDGMENT ENTRY




       This case was tried to the court on the issue of liability. The court
has considered the evidence and, for the reasons set forth in the decision
filed concurrently herewith, judgment is rendered in favor of plaintiff. The
case will be set for trial on the issue of damages.




       _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge


cc:
R. J. Lydy                      Velda K. Hofacker
4930 Holland-Sylvania Road      Assistant Attorney General
Sylvania, Ohio 43560-2149       150 East Gay Street, 18th Floor
                                Columbus, Ohio 43215-3130


HTS/cmd
Filed June 11, 2010
To S.C. reporter July 7, 2010
