[Cite as Nelson v. Univ. of Cincinnati, 2016-Ohio-1278.]




JOHN RUSSELL NELSON                                    Case No. 2014-00830

        Plaintiff                                      Judge Dale A. Crawford

        v.                                             DECISION

UNIVERSITY OF CINCINNATI

        Defendant



        {¶1} This cause came to be heard on a complaint brought by Plaintiff, John
Russell Nelson, for race and gender discrimination in violation of R.C. 4112. The case
proceeded to trial on the issues of liability and damages on December 14-15, 2015.
Plaintiff’s post-trial brief was filed on December 24, 2015 and Defendant’s post-trial brief
was filed on December 28, 2015. The following constitutes the Court’s Findings of Fact
and Conclusions of Law.


FINDINGS OF FACT
        {¶2} Plaintiff, an African-American male, began his employment with Defendant
on October 12, 2009, as an Assistant Dean of Administrative Services for Clermont
College, which is one of Defendant’s regional colleges.
        {¶3} On October 19, 2012, Plaintiff was terminated for his conduct in making an
unauthorized telephone call to David Cannon (Cannon), the Vice Chancellor for Finance
at the Ohio Board of Regents (OBR).
        {¶4} By making the call, Plaintiff disregarded the hierarchy at the college and
bypassed the authority of Greg Sojka (Plaintiff’s supervisor), Kathy Qualls (Senior Vice
Provost for Academic Finance and Administrative Affairs), Lawrence Johnson (Provost),
and Robert Ambach (Vice President of Financial Affairs).
Case No. 2014-00830                                  -2-                                       DECISION


       {¶5} After the call was made to OBR, Margaret Rolff (Assistant Vice President of
Government Relations and University Communications) spoke with Cannon, and
subsequently shared the information about the call with Ambach and Qualls.
       {¶6} Qualls sent an email on September 21, 2012, to Johnson, relaying the
information given to her by Rolff.
       {¶7} Johnson forwarded the message to Sojka, indicating his displeasure at the
circumstances.
       {¶8} Although Qualls may have had a brief conversation with Sojka about the
incident and while Johnson may have advised Sojka to terminate Plaintiff,1 the decision
to terminate Plaintiff was ultimately Sojka’s.
       {¶9} Plaintiff’s responsibilities were eventually taken over by Maria Keri, a
Caucasian female, over six months after Plaintiff’s termination.                       However, over fifty
percent of Keri’s duties were different from Plaintiff’s and she did not hold the same title.


CONCLUSIONS OF LAW
       {¶10} R.C. 4112.02 states, in part:
       {¶11} “It shall be an unlawful discriminatory practice:
       {¶12} “(A) For any employer, because of the race, color, religion, sex, military
status, origin, disability, age or ancestry of any person, to discharge without just cause,
to refuse to hire, or otherwise to discriminate against that person with respect to hire,
tenure, terms, conditions, or privileges of employment, or any matter directly or
indirectly related to employment.”
       {¶13} Disparate treatment discrimination has been described as “the most easily
understood type of discrimination.              The employer simply treats some people less
favorably than others because of their race, color, religion, sex, or national origin.”


       1
       The Court notes that Johnson did not know Plaintiff and was not aware of his race.
Case No. 2014-00830                          -3-                                 DECISION


Teamsters v. United States, 431 U.S. 324, 335–336 (1977) fn. 15.             In a disparate
treatment case, liability depends upon whether the protected trait actually motivated the
employer’s decision. Hazen Paper Co. v. Biggins, 507 US. 604, 610 (1993). “Whatever
the employer’s decision making process, a disparate treatment claim cannot succeed
unless the employee’s protected trait actually played a role in that process and had a
determinative influence on the outcome. Id.
       {¶14} As a general rule, this Court will not substitute its judgment for that of the
employer and will not second-guess the business judgment of employers regarding
personnel decisions.    Kirsch v. Bowling Green State Univ., 10th Dist. Franklin No.
95API11-1476, 1996 WL 284717 (May 30, 1996). Additionally, in a discrimination case,
the Court must examine the employer’s motivation, not a Plaintiff’s perceptions. Wrenn
v. Gould, 808 F.2d 493, 502 (6th Cir.1987). Plaintiff is an employee-at-will and can be
terminated at any time for a non-discriminatory reason. Sutton v. Tomco Machining,
129 Ohio St.3d 153 (2011).       “The cornerstone of this analysis [whether there was
discriminatory intent] is whether the employment action is the result of discrimination—
not merely whether the action is unfair or the justification questionable.” Price v. Matco
Tools, 9th Dist. No. 23583, 2007-Ohio-5116, ¶ 31. “Even if the reasons are foolish or
trivial or even baseless” that fact is not sufficient to justify a finding of discrimination.
Hartley v. Wilson Bell Inc., 124 F.3d 887, 890 (7th Cir.1997). Therefore, it is not the
Court’s responsibility to determine whether Defendant’s personnel decision was correct
or to determine the content of the call, but rather the Court must determine whether race
or gender were factors in the decision to terminate Plaintiff’s employment.
       {¶15} To establish an employment discrimination claim, a plaintiff is required to
either “present direct evidence of discrimination or introduce circumstantial evidence
that would allow an inference of discriminatory treatment.” Johnson v. Kroger Co., 319
F.3d 858, 864-865 (6th Cir.2003). If there is no direct evidence of discrimination, the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
Case No. 2014-00830                           -4-                                   DECISION


792 (1973), will apply. Under McDonnell Douglas, a plaintiff establishes a prima facie
case of race discrimination by establishing that he: 1) was a member of a protected
class; 2) suffered an adverse employment action; 3) was qualified for the position held;
and 4) that comparable, nonprotected persons were treated more favorably. ld. at 802.
       {¶16} In reverse-discrimination cases, the first and fourth prongs are modified,
requiring Plaintiff to “demonstrate background circumstances [to] support the suspicion
that the defendant is that unusual employer who discriminates against the majority * * *
and that the defendant treated differently employees who were similarly situated but
were not members of the protected class.” Sutherland v. Mich. Dep’t of Treasury, 344
F.3d 603, 614 (6th Cir. 2003).
       {¶17} Applying McDonnell Douglas to Plaintiff’s race discrimination claim, it is
uncontroverted that Plaintiff, as an African-American male, is a member of a protected
class, that he suffered an adverse employment action when he was terminated from his
position, and that he was qualified for the position.        The only element at issue for
Plaintiff’s race discrimination claim is whether comparable, nonprotected persons were
treated more favorably. With regard to Plaintiff’s gender discrimination, the analysis
changes slightly as set forth in Sutherland. Plaintiff has to establish that background
circumstances were present that show Defendant discriminated against the majority.
       {¶18} In support of his prima facie case, Plaintiff testified that three Caucasian
women received salary increases while his request for a salary equity adjustment was
denied. Plaintiff also alleged discrimination based on the premise that he was replaced
by Keri. However, Sojka testified that the three women who received salary increases,
Mary Sterns, Mae Hanna, and Glenda Neff, all took on substantial, additional
responsibilities.   Sojka also testified that Keri, the person who ultimately took over
Plaintiff’s responsibilities, came in under a different title, the Director of Business Affairs,
and had two main additional duties—1) the entire human resources function for faculty
and administration; and 2) creating the entire program’s cost study. Furthermore, Sojka
Case No. 2014-00830                        -5-                                DECISION


testified that Keri spent more than fifty percent of her time performing the duties that
Plaintiff never performed. Based on this testimony, the Court finds that Plaintiff has not
established that comparable nonprotected persons were treated more favorably as
required by the McDonnell Douglas framework on both his race and gender claim.
       {¶19} Nevertheless, assuming that Plaintiff has stated a prima facie case for
discrimination, the analysis continues and the burden of production shifts to Defendant
to “articulate some legitimate, nondiscriminatory reason for [its action.]” McDonnell
Douglas, supra, at 802. If Defendant succeeds in doing so, then the burden shifts back
to Plaintiff to prove that the legitimate, nondiscriminatory reasons offered by Defendant
were a mere pretext for discrimination. Id. To meet his burden, Plaintiff must submit
evidence that an employer’s proffered reason (1) had no basis in fact, (2) did not
actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant
the challenged conduct. Knepper v. Ohio State Univ., 10th Dist. Franklin No. 10AP-
1155, 2011-Ohio-6054, ¶ 12. Under any of the three options, Plaintiff must produce
sufficient evidence from which the trier of fact could reasonably reject an employer’s
explanation and infer that the employer intentionally discriminated against him. Id. “A
reason cannot be proved to be a pretext for discrimination unless it is shown both that
the reason was false, and the discrimination was the real reason.” Crase v. Shasta
Beverage, Inc., 10th Dist. Franklin No. 11AP-519, 2012-Ohio-326, ¶ 21.
       {¶20} According to Sojka’s testimony, Plaintiff’s conduct in making the
unauthorized telephone call to Cannon was the reason for his termination. Thus, the
Court finds that Defendant has articulated a legitimate, nondiscriminatory reason for
terminating Plaintiff.   Upon Defendant presenting a nondiscriminatory reason for
Plaintiff’s termination, the burden shifts back to Plaintiff to provide evidence that the
reason was not merely pretext for discrimination.
       {¶21} “[P]retext does not address the correctness or desirability of reasons
offered for employment decisions”; rather, “it addresses the issue of whether the
Case No. 2014-00830                          -6-                                  DECISION


employer honestly believes in the reasons it offers.” Wigglesworth v. Mettler Toledo
International, Inc., 10th Dist. Franklin No. 09AP-411, 2010-Ohio-1019 (internal citations
omitted).   “[I]n order to discredit the employer’s proffered reason, a plaintiff cannot
simply show that the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the employer, not whether
the employer is wise, shrewd, prudent, or competent.” Id.
       {¶22} In support of his pretext argument, Plaintiff testified that Qualls made things
difficult for him and that he thought Qualls never believed he was qualified for the
position. Plaintiff further testified that Qualls falsified pertinent information in her email
which was ultimately delivered to Sojka, and that the information contained in the email
ultimately led to Plaintiff’s termination. However, Sojka testified that Plaintiff was not
terminated for poor performance but rather for his conduct in merely making the call to
Cannon.     More specifically, Sojka stated that he was concerned that the trust and
confidence with OBR had been violated. He was surprised and disappointed “that an
employee would attempt an end run without [his] knowledge with the Ohio Board of
Regents.” While there may be some dispute as to the specifics of the call, it is clear that
Sojka and Johnson believed that the call itself circumvented the chain of command at
the college and that making the call to OBR was inappropriate. Furthermore, although
Cannon testified that he could not recall the specifics of the call, he described the call as
“unusual” and “awkward.” He also testified that he believed the call was so unusual that
he discussed the call with Rolff.
       {¶23} Based on the foregoing, the Court finds that Defendant’s reason for
terminating Plaintiff was for making the call to Cannon and not for any discriminatory
reason. The Court also finds that the call was unauthorized and inappropriate, and
regardless of the content of the call or whether the information was conveyed
incorrectly, Plaintiff has failed to show that Defendant’s articulated reason for his
Case No. 2014-00830                     -7-                             DECISION


termination was merely pretext. Accordingly, judgment shall be rendered in favor of
Defendant.




                                              DALE A. CRAWFORD
                                              Judge
[Cite as Nelson v. Univ. of Cincinnati, 2016-Ohio-1278.]




JOHN RUSSELL NELSON                                    Case No. 2014-00830

        Plaintiff                                      Judge Dale A. Crawford

        v.                                             JUDGMENT ENTRY

UNIVERSITY OF CINCINNATI

        Defendant



        {¶24} This case was tried to the Court on the issues of liability and damages.
The Court has considered the evidence and, for the reasons set forth in the decision
filed concurrently herewith, judgment is rendered in favor of Defendant. Court costs are
assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.




                                                           DALE A. CRAWFORD
                                                           Judge

cc:
Jonathan B. Allison                                    Eric A. Walker
525 Vine Street, 6th Floor                             Lindsey M. Grant
Cincinnati, Ohio 45202                                 Assistant Attorneys General
                                                       150 East Gay Street, 18th Floor
                                                       Columbus, Ohio 43215-3130

Filed February 22, 2016
Sent To S.C. Reporter 3/25/16
