[Cite as Spencer v. Cent. State Univ., 2012-Ohio-1245.]




                                                          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

JOYCE SPENCER

        Plaintiff

        v.

CENTRAL STATE UNIVERSITY

        Defendant

Case No. 2010-03711

Judge Alan C. Travis

DECISION

        {¶1} Plaintiff brought this action alleging that defendant terminated her
employment on the basis of age in violation of R.C. 4112.14. The issues of liability and
damages were bifurcated and the case proceed to trial on the issue of liability.
        {¶2} Plaintiff was employed with defendant from 1978 to 1987, and again from
1998 to 2008. Plaintiff testified that during her first period of employment, she served as
an intake clerk and then a financial aid counselor, but that she and 40 to 50 other
employees were laid off in 1987 due to downsizing. Plaintiff explained that she returned
to defendant’s employ in 1998 as a buyer in the purchasing department, and that
several months later she was hired into the newly-created position of Default Manager.
According to plaintiff, defendant was at that time in danger of losing federal funding as a
result of its former students having a high default rate on their student loans, and
defendant addressed this by creating the Default Manager position to educate students
about loans and to administer federal student loan paperwork and funds in accordance
with Title IV of the Higher Education Act of 1965.
        {¶3} As the Default Manager, plaintiff initially served within the office of
Case No. 2010-03711                        -2-                                     ENTRY

defendant’s controller; however, near the end of her tenure, the position was moved to
the office of financial aid.     Phyllis Jeffers-Coly testified that when she became
defendant’s Dean of Enrollment Services in April 2008, thereby assuming responsibility
for the office of financial aid, among other departments, she found that the office was
dysfunctional and she received poor feedback from students and parents about its
services. Jeffers-Coly stated that she and the Interim Director of Financial Aid, Jean
Hurst, therefore undertook a study of how to improve the functionality of the office and
make it more responsive to student needs. According to Jeffers-Coly, some of the
changes decided upon were assigning each student a financial aid counselor and
creating a new position, known as the Access/Investment Educator, to provide students
another resource to learn about various ways to finance their education. She explained
that an emerging trend in higher education is the concept of broadening the ability of
college students, especially first-generation students, to access information about
financial aid, scholarships, and other means of funding their education, and that this is
the core function of the Access/Investment Educator position.
       {¶4} The creation of the new position was one of several personnel changes that
Jeffers-Coly decided upon as she restructured the financial aid office. Others included
the elimination of a Student Employment Coordinator position and the Default Manager
position held by plaintiff.   Jeffers-Coly testified that the reasons for eliminating the
Default   Manager    position   included   the   need   to   free   up   funding   for   the
Access/Investment Educator, the need to reduce operating expenses, the ability of
other staff to assume certain duties performed by plaintiff, and changes in the financial
aid industry that had made aspects of the job obsolete. Jeffers-Coly explained that the
Default Manager was primarily charged with minimizing the default rate on student
loans, but that lenders had come to assume a greater role in this effort in recent years,
taking a more proactive approach to prevent students from defaulting.
       {¶5} Jeffers-Coly testified that before implementing the proposed reorganization
Case No. 2010-03711                          -3-                                 ENTRY

of the financial aid office, she hired Dr. Reginald Brazzle, a consultant specializing in
higher education administration, to study the operation of the office and to review her
proposals.      Jeffers-Coly stated that Dr. Brazzle endorsed the creation of the
Access/Investment Educator position, but she did not ask him to opine on the proposed
elimination of the Default Manager position. After the completion of Dr. Brazzle’s study,
Jeffers-Coly proceeded with the reorganization plan, sending a memorandum to
defendant’s President, John Garland, on November 8, 2008, wherein she requested his
approval to go forward with the plan, including the elimination of the Default Manager
position and plaintiff’s resultant termination. (Plaintiff’s Exhibit 2.) Garland, who had
ultimate authority on such matters, subsequently gave his approval.
       {¶6} On December 3, 2008, plaintiff was summoned to a meeting with Jeffers-
Coly, Hurst, and Director of Human Resources Kimberly Manigault. Plaintiff testified
that at this meeting, she was handed a termination letter, was informed that her position
was being eliminated because the financial aid office “was going in a different direction,”
and was asked to immediately gather her effects and leave campus. (Plaintiff’s Exhibit
20.)
       {¶7} On January 30, 2009, defendant posted the Access/Investment Educator
position.    (Plaintiff’s Exhibit 10.)   Jeffers-Coly and others subsequently conducted
interviews and the position was ultimately awarded to Stephanie Krah, who was then
approximately 27 years old and serving as a Residence Hall Coordinator for defendant.
Krah began her duties as Access/Investment Educator in August 2009.
       {¶8} Plaintiff, who was 51 years of age at the time of her termination, claims that
defendant unlawfully replaced her with Krah on the basis of age.
       {¶9} “R.C. 4112.14(A) prohibits age discrimination in employment, and sets forth
a protected class as follows: ‘No employer shall discriminate in any job opening against
any applicant or discharge without just cause any employee aged forty or older who is
physically able to perform the duties and otherwise meets the established requirements
Case No. 2010-03711                        -4-                                   ENTRY

of the job and laws pertaining to the relationship between employer and employee.’”
Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, ¶8.
        {¶10} “Absent direct evidence of age discrimination, in order to establish a prima
facie case of a violation of R.C. 4112.14(A) in an employment discharge action, a
plaintiff-employee must demonstrate that he or she (1) was a member of the statutorily
protected class, (2) was discharged, (3) was qualified for the position, and (4) was
replaced by, or the discharge permitted the retention of, a person of substantially
younger age.” Id. at paragraph one of the syllabus. “If a plaintiff establishes a prima
facie case, the burden of production shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its discharge of the plaintiff. Should the employer carry
this burden, the plaintiff must then prove that the reasons the employer offered were not
its true reasons, but merely a pretext for discrimination.” Wigglesworth v. Mettler Toledo
Intl., Inc., Franklin App. No. 09AP-411, 2010-Ohio-1019, ¶16. (Internal citations
omitted.)
        {¶11} It is undisputed that plaintiff was a member of a protected class based
upon her age, that she was discharged from employment, and that she was qualified for
the position she held. However, the parties dispute whether plaintiff was replaced by
Krah.
        {¶12} “‘[A] person is not replaced when another employee is assigned to perform
the plaintiff's duties in addition to other duties, or when the work is redistributed among
other existing employees already performing related work. A person is replaced only
when another employee is hired or reassigned to perform the plaintiff's duties.’” Woods
v. Capital Univ., Franklin App. No. 09AP-166, 2009-Ohio-5672, ¶58, quoting Barnes v.
GenCorp, Inc. (C.A.6, 1990), 896 F.2d 1457, 1465. “An employer cannot avoid liability
‘by changing the job title or by making minor changes to a job.’” Id. at ¶60, quoting
Barnes, supra, at 1465, fn. 10.        “Making cosmetic changes to a position before
assigning it to another employee is tantamount to replacement.” Id. at ¶60.
Case No. 2010-03711                        -5-                                   ENTRY

      {¶13} Plaintiff testified that the duties she performed as Default Manager included
all of those listed on the Default Manager position description (Plaintiff’s Exhibit 3), as
well as serving as chairperson of the Satisfactory Academic Performance program and
teaching a freshman seminar course.              Concerning the duties listed on the
Access/Investment Educator position description (Plaintiff’s Exhibit 4), plaintiff stated
that she performed several of these, including providing work study information to
students, helping students complete the Free Application for Federal Student Aid,
conducting seminars on financial aid at new student orientation and other occasions,
teaching professionalism, and collaborating with other campus departments, which she
did by having quarterly meetings with other departments specifically to address student
loans. Plaintiff stated that she believes the basic nature of her position was similar to
that of the Access/Investment Educator inasmuch as she was charged with delivering
information to students, coordinating campus-wide efforts on loans, and working with
first-generation students, who comprise a majority of defendant’s students.           She
acknowledged, however, that the Access/Investment Educator position description
includes several duties that she did not perform, including multiple duties that deal with
scholarships.
      {¶14} Jeffers-Coly testified that in comparison to the Default Manager position,
the Access/Investment Educator is more focused on educational duties and less
focused on the technical aspects of financial aid administration. Jeffers-Coly further
testified that the educational duties of the Access/Investment Educator have a broader
scope in that they entail more than loans and instead require comprehensive expertise
in the financing of students’ education, with scholarships being a central component,
and she explained that the Default Manager’s duties bore no connection to
scholarships.
      {¶15} Manigault testified that she reviewed Jeffers-Coly’s reorganization plan
before any personnel actions were taken, and that she found the Default Manager and
Case No. 2010-03711                         -6-                                     ENTRY

Access/Investment Educator positions to be different.         Manigault related that if she
believed the positions were essentially the same, she would have recommended that
plaintiff be reclassified into the new position rather than be terminated; she added that
only in the case of nearly identical positions does defendant allow reclassification.
       {¶16} Krah, who served as the Access Investment Educator from August 2009
until her promotion to Interim Associate Dean of University College in June 2011, also
testified that the most basic role of the Access/Investment Educator is to be an all-
around resource for educating students on the means available to them for funding their
education, including scholarships and other alternatives to loans. She testified that she
performed little in the way of the Title IV administration and other technical financial
work that plaintiff performed, and was instead much more focused on interacting with
students. Krah stated that the job duties set forth in the Access/Investment Educator
position description accurately reflect the work that she performed in that role, and that
she also voluntarily took on duties such as applying for grants and promoting the
financial aid office on the Internet.
       {¶17} Upon review, the court finds that the evidence does not support plaintiff’s
assertion that Krah replaced her. The differences between the positions entail more
than minor, cosmetic changes, and instead demonstrate that the duties of the Default
Manager were primarily geared toward education and administration relative to financial
aid, while the duties of the Access/Investment Educator primarily focus on
comprehensive educational outreach covering various ways to fund education,
especially scholarships. Krah only assumed a portion of plaintiff’s former duties, and
performed many others not performed by plaintiff.           The testimony of Jeffers-Coly
established both that some of plaintiff’s former duties were reassigned to other
employees and that other duties had become obsolete. As such, Krah undertook a
new, different position rather than merely assuming plaintiff’s former position.
Accordingly, the court finds that defendant did not replace plaintiff, and that plaintiff thus
Case No. 2010-03711                       -7-                                ENTRY

failed to demonstrate a prima facie case of age discrimination.
      {¶18} Based on the foregoing, the court finds that plaintiff failed to prove her
claim by a preponderance of the evidence. Accordingly, judgment shall be entered in
favor of defendant.
Case No. 2010-03711                       -8-                                        ENTRY



                                             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



JOYCE SPENCER

      Plaintiff

      v.

CENTRAL STATE UNIVERSITY

      Defendant

Case No. 2010-03711

Judge Alan C. Travis

JUDGMENT ENTRY

      {¶19} 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 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.



                                         _____________________________________
                                         ALAN C. TRAVIS
                                         Judge

cc:
Case No. 2010-03711               -9-                               ENTRY



Eric A. Walker                     Jason P. Matthews
Velda K. Hofacker                  Jeffrey M. Silverstein
Assistant Attorneys General        627 South Edwin C. Moses Blvd.
150 East Gay Street, 18th Floor    Suite 2-C
Columbus, Ohio 43215-3130          Dayton, Ohio 45417

001
Filed January 27, 2012
To S.C. reporter March 23, 2012
