[Cite as Pla v. Cleveland State Univ., 2016-Ohio-8165.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Maria Pla,                                            :

                 Plaintiff-Appellant,                 :

v.                                                    :            No. 16AP-366
                                                              (Ct. of Cl. No. 2014-00918)
Cleveland State University,                           :
                                                              (REGULAR CALENDAR)
                 Defendant-Appellee.                  :


                                            D E C I S I O N

                                   Rendered on December 15, 2016


                 On brief: Caryn Groedel & Associates Co., LPA, Caryn M.
                 Groedel and Tiffany C. Fischbach, for appellant. Argued:
                 Caryn M. Groedel.

                 On brief: Michael DeWine, Attorney General, Randall W.
                 Knutti and Lee Ann Rabe, for appellee. Argued: Randall W.
                 Knutti.


                              APPEAL from the Court of Claims of Ohio

TYACK, J.
        {¶ 1} Plaintiff-appellant, Maria Pla ("Pla"), appeals from the April 12, 2016
judgment of the Court of Claims of Ohio rendering judgment in favor of defendant-
appellee, Cleveland State University ("CSU"), on Pla's claim of age discrimination in
violation of R.C. 4112.02(A) and her claim of promissory estoppel. For the reasons that
follow, we affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND

        {¶ 2} Pla was a part-time faculty member of CSU's music department from 1990
to 1994 and a piano and keyboard skills instructor from 1994 through June 2014 until her
No. 16AP-366                                                                             2

contract was not renewed. At the time of her nonrenewal, Pla was 73 years old and was
the oldest employee in the department of music by approximately 20 years.
      {¶ 3} Dr. Birch Browning was appointed music department chairperson in 2012
and was the person who made the decision not to renew Pla's contract in 2014. Pla
testified that from the outset of Browning's employment in 2002 as a faculty member, he
ignored her and refused to communicate with her, or even say hello to her. Pla testified
that after spring semester of 2012, when Browning became chairperson of the
department, she attempted to communicate with him about changing the format of her
course syllabus to conform to his preferences. After emailing her a template from the
university, Browning asked Pla when she was planning to retire.
      {¶ 4} In the summer of 2013, Browning told Dr. Angelin Chang, coordinator of
CSU's keyboard department, that he wanted to replace Pla.           Dr. Chang convinced
Browning to renew Pla's contract telling him that she did not think it was a good idea for
Browning to hire someone else and that it was not necessary to replace her.
      {¶ 5} At the conclusion of the academic year in 2014, Dr. Browning contacted Pla
by telephone and told her that she was fired. He said that her students had failed the
Gateway examination, an internal student evaluation used to assess the skills students
should acquire during their first two years of study to determine if they are ready for
upper level courses.    Pla inquired as to which students had failed, and Browning
responded that it did not matter; he had already hired her replacement.
      {¶ 6} Pla's replacement was Shuai Wang, who was 34 years old. Wang had a
doctorate and a substantial amount of experience performing with orchestras and other
music groups.     She had no experience teaching a university level piano course,
coordinating chamber music, or leading a weekly concert series in which CSU music
department students performed.       These were all skills and activities that Pla was
proficient in. Wang was paid a salary that was $125 more per credit hour than Pla.
      {¶ 7} Pla filed a lawsuit in the Court of Claims against CSU for age discrimination
and promissory estoppel. Both sides filed motions for summary judgment that were
denied by the trial court. The case proceeded to trial on March 14-16, 2016. At the close
of Pla's case, CSU moved for dismissal of all claims under Civ.R. 41(B)(2). The trial court
No. 16AP-366                                                                                3

granted CSU's motion with respect to the claim of promissory estoppel, and Pla has not
appealed that determination.
       {¶ 8} The trial court issued a decision that included findings of fact and
conclusions of law. The trial court determined that Pla had established a prima facie case
of discrimination under the framework established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The trial court then determined
that the reasons offered by CSU for Pla's termination were "likely false." (Apr. 12, 2016
Decision at 10.) The trial court stated, "it is hard for the Court to believe Dr. Browning's
stated reasons were the actual reason for his decision to terminate Plaintiff." (Decision at
10.)
       {¶ 9} The trial court found that the original reason offered by Dr. Browning was
that Pla's students had flunked or failed the Gateway exam. (Decision at 9.) However,
during trial, Browning testified that Pla's students were performing at an inadequate level
due to Pla's instruction.    (Decision at 8.)    When asked at trial about the apparent
discrepancy with the reason he gave Pla on the phone, Dr. Browning stated that the
students were passing the Gateway but below standards that were acceptable to him.
According to Dr. Eric Ziolek, the previous chair of the department, Dr. Browning told
Ziolek that the reason he decided not to renew Pla's contract was because she failed to
stay current. (Decision at 8.) In response to interrogatories used to impeach Browning at
trial, Browning gave the reason for nonrenewal to be unsatisfactory performance as
evidenced by: 1) music education students having not done well on the Gateway Exam,
which they must pass for acceptance into the licensure program in the College of
Education; 2) students having to take additional lessons with Pla; 3) junior level music
education students not being taught basic information that they needed to pass the class;
4) Pla's syllabi pulled for failing to align with prescribed proficiencies for the course, she
was teaching skills she did not need; and, 5) Pla did not change teaching materials, even
after being asked. (Decision at 8.)
       {¶ 10} Even though the trial court found that the legitimate nondiscriminatory
reasons given by CSU for terminating Pla were likely false, the trial court also held that Pla
had failed to meet her ultimate burden of proving that she was intentionally discriminated
against because of her age. The trial court went on to state:
No. 16AP-366                                                                             4

              This is a close case. The Court finds that the evidence is
              evenly balanced. Thus, Plaintiff did not meet her burden of
              demonstrating by a preponderance of the evidence that she
              was terminated by Dr. Browning because of her age.

(Decision at 13.)

II. ASSIGNMENT OF ERROR

       {¶ 11} Pla appealed, assigning as error a single question of law.

              The Court of Claims judge erred, as a matter of law, by failing
              to enter a finding of unlawful discrimination once all the
              employer's proferred [sic] justifications for discharge were
              found to be likely false.

III. STANDARD OF REVIEW

       {¶ 12} Pla's assignment of error raises the question of whether the trial court
applied the proper legal standard to her claim of age discrimination. This is a question of
law that we review de novo. See Doe v. Vineyard Columbus, 10th Dist. No. 13AP-599,
2014-Ohio-2617, ¶ 13 ("the de novo standard of review is proper when the appeal presents
a question of law."); Ohio Edison Co. v. PUC, 78 Ohio St.3d 466, 469 (1997) (determining
if commission applied the proper legal standard is a question of law to be reviewed de
novo); Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829, ¶ 11 (9th
Dist.) ("when an appellate court is presented with purely legal questions, the standard of
review to be applied is de novo."); State v. Hartley, 10th Dist. No. 15AP-192, 2016-Ohio-
2854, ¶ 6 ("[w]e review questions of law under the de novo standard of review.").
IV. MOTIONS

       {¶ 13} Two motions are pending before this court. First, on September 21, 2016,
Pla filed a "Notice of Additional Information" seeking to present new information in the
form of an affidavit which she claimed was not available when she filed her brief. CSU
filed a "Motion to Strike Maria Pla's Notice of Additional Information," arguing that the
allegedly new information was double hearsay, and not part of the record.
       {¶ 14} We agree with CSU that Pla is attempting to introduce evidence outside the
record that was not available to the trial court deciding the case. Appeals are to be
decided on the basis of the evidence in the record and not on information outside of the
No. 16AP-366                                                                               5

record. See, e.g., State v. Phillips, 74 Ohio St.3d 72, 80 (1995) (a reviewing court cannot
add matter to the record which was not part of the trial court's proceedings, and then
decide the appeal on the basis of the new matter). Accordingly, the motion to strike the
notice of additional information is granted. The court will not consider the additional
information.
       {¶ 15} Second, on September 29, 2016, the day after oral argument in this case, Pla
filed a motion to supplement the record after learning at oral argument that she had failed
to file the trial transcript with this court. CSU opposed the motion.
       {¶ 16} Because both sides cited to the trial transcript in their briefs, and the sole
assignment of error is a question of law, we find no prejudice to CSU in granting the
motion. App.R. 9(E) provides in pertinent part that "[i]f anything material to either party
is omitted from the record by error or accident * * * the court of appeals, or the court of
appeals, on proper suggestion or of its own initiative, may direct * * * that a supplemental
record be certified, filed, and transmitted."
       {¶ 17} The September 29, 2016 motion to supplement the record with the trial
transcript is granted.
V. ANALYSIS

       {¶ 18} Pla contends on appeal that the trial court applied the wrong legal standard
required to establish a claim of age discrimination. Based on her understanding of the
framework for a circumstantial case of disparate treatment discrimination as laid out in
McDonnell Douglas Corp. and Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248 (1981), she contends that once she established a prima facie case of discrimination
and succeeded in showing at trial that the employer's asserted reasons for nonrenewal
were likely to be false, the fact-finder's inquiry comes to an end, and she was entitled to a
finding of intentional discrimination.
       {¶ 19} We believe Pla has misstated the appropriate legal standard required to
prove a case of age discrimination under Ohio law.
       {¶ 20} It is unlawful for an employer to discriminate against an employee because
of her age. R.C. 4112.02(A). A plaintiff may prove a claim of age discrimination through
either direct or circumstantial evidence. Kohmescher v. Kroger Co., 61 Ohio St.3d 501,
505 (1991). Direct evidence is that evidence which, if believed, requires no inference to
No. 16AP-366                                                                               6

establish that age was the unlawful reason for the employer's action. Imwalle v. Reliance
Med. Prods., 515 F.3d 531, 543 (6th Cir.2008). In the absence of direct evidence, a
plaintiff can establish discrimination through circumstantial evidence using the burden-
shifting framework set forth in McDonnell Douglas Corp. Kohmescher at 505. Under
that framework, a plaintiff can establish a prima facie case of unlawful discrimination by
presenting evidence that: (1) she was a member of the statutorily protected class, i.e., was
at least 40 years old at the time of the alleged discrimination; (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. See Coryell v. Bank One Trust Co.
N.A., 101 Ohio St.3d 175, 2004-Ohio-723, paragraph one of the syllabus (interpreting R.C.
4112.14).
       {¶ 21} Establishment of a prima facie case creates a presumption that the
employer unlawfully discriminated against the employee. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 596 (1993), quoting Burdine at 254. A burden of production is then
imposed on the employer to present a legitimate, nondiscriminatory reason for the
adverse employment action.        Id. at 506-07.       The employer need not prove a
nondiscriminatory reason for taking the adverse employment action, but instead must
merely articulate a valid rationale for its action. Hall v. Ohio State Univ. College of
Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 17. The employer must clearly
set forth, through the introduction of admissible evidence, a reason or reasons for its
action which, if believed, would support a finding that unlawful discrimination was not
the cause of the employment action.
       {¶ 22} In the present case, the trial court found that Pla had established a prima
facie case for age discrimination, and that CSU successfully overcame that presumption of
discrimination by articulating a legitimate nondiscriminatory reason for not retaining Pla;
namely that Pla's students did not perform well on the Gateway examination. Pla was
then required to present evidence that CSU's reasons were a mere pretext for
discrimination. To establish pretext, a plaintiff must demonstrate that the proffered
reason (1) has no basis in fact, (2) did not actually motivate the employer's conduct, or (3)
was insufficient to warrant the challenged conduct. Knepper v. Ohio State Univ., 10th
Dist. No. 10AP-1155, 2011-Ohio-6054, ¶ 12, citing Dews v. A.B. Dick Co., 231 F.3d 1016,
No. 16AP-366                                                                            7

1021 (6th Cir.2000). Regardless of which option is chosen, Pla was required to produce
sufficient evidence from which the trial court could reasonably reject CSU's explanation
and infer that CSU intentionally discriminated against her. Hall at ¶ 27; Knepper at ¶ 12.
A reason cannot be proved to be a pretext for discrimination unless it is shown both that
the reason was false, and that discrimination was the real reason for the employer's
action. Id.; St. Mary's Honor Ctr. at 515.
       {¶ 23} Pla argues that the trial court, having found Dr. Browning's stated reason
for her nonrenewal was likely false, was compelled to enter judgment for her. This
argument has been explicitly rejected by the United States Supreme Court and in cases
from this district. Id. at 515; Hall at ¶ 27; Knepper at ¶ 12.
       {¶ 24} In St. Mary's Honor Ctr. at 515, the United States Supreme Court
explained:
              We have no authority to impose liability upon an employer
              for alleged discriminatory employment practices unless an
              appropriate factfinder determines, according to proper
              procedures,      that    the   employer    has   unlawfully
              discriminated. We may, according to traditional practice,
              establish certain modes and orders of proof, including an
              initial rebuttable presumption of the sort we described
              earlier in this opinion, which we believe McDonnell Douglas
              represents. But nothing in law would permit us to substitute
              for the required finding that the employer's action was the
              product of unlawful discrimination, the much different (and
              much lesser) finding that the employer's explanation of its
              action was not believable.

(Emphasis sic.)

       {¶ 25} Here, Pla convinced the trial court that CSU's articulated nondiscriminatory
reasons for not renewing her contract were "likely false," but Pla failed to persuade the
trial court that the real reason for the decision not to renew her contract was age
discrimination.
       {¶ 26} A plaintiff in an age discrimination claim at all times bears the ultimate
burden of proving that age was the real reason for the employer's action. "The ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff." Ohio Univ. v. Ohio Civil
Rights Comm., 175 Ohio App.3d 414, 2008-Ohio-1034, ¶ 67 (4th Dist.), quoting Burdine
No. 16AP-366                                                                                   8

at 253. Once CSU offered its own evidence for why it did not renew Pla's contract, the
trial court then had to decide whether the nonrenewal was discriminatory within the
meaning of R.C. 4112.02. USPS Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). At
this stage, the McDonnell-Burdine presumption drops from the case, the factual inquiry
proceeds to a new level of specificity, and the trier of fact is then in a position to decide the
ultimate factual issue in the case. Aikens at 715.
       {¶ 27} Pla has erroneously argued that CSU was required to prove by a
preponderance of the evidence that its asserted reasons for nonrenewal were legally
sufficient to justify a judgment for the defendant. (Reply Brief at 15.) She has misapplied
the appropriate legal standard required to prove a case of age discrimination under Ohio
law. As the trial court noted, this was a close case, but the plaintiff failed to meet the
ultimate burden of proving that CSU intentionally discriminated against Pla because of
her age. The trial court did not apply the wrong legal standard to Pla's claim of age
discrimination.
VI. CONCLUSION
       {¶ 28} The sole assignment of error is overruled, and the judgment of the Court of
Claims of Ohio is affirmed.
                                 Motion to strike notice of additional information granted;
                                                 Motion to supplement the record granted;
                                                                         Judgment affirmed.

                        DORRIAN, P.J. and LUPER SCHUSTER, J., concur.
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