[Cite as Nelson v. Univ. of Cincinnati, 2017-Ohio-514.]


                                  IN THE COURT OF APPEALS OF OHIO

                                       TENTH APPELLATE DISTRICT

John Russell Nelson,                                      :

                    Plaintiff-Appellant,                  :
                                                                                  No. 16AP-224
v.                                                        :                (Ct. of Cl. No. 2014-00830)

University of Cincinnati,                                 :               (REGULAR CALENDAR)

                    Defendant-Appellee.                   :




                                                D E C I S I O N

                                        Rendered on February 14, 2017


                    On brief: Tobias, Torchia & Simon, and David Torchia, for
                    appellant. Argued: David Torchia.

                    On brief: Michael DeWine, Attorney General, Eric A.
                    Walker, and Lindsey M. Grant, for appellee. Argued:
                    Eric A. Walker.

                                 APPEAL from the Court of Claims of Ohio
DORRIAN, J.
           {¶ 1} Plaintiff-appellant, John Russell Nelson, appeals the February 22, 2016
decision and judgment entry of the Court of Claims of Ohio rendering judgment following
a bench trial in favor of defendant-appellee, University of Cincinnati ("appellee" or "the
university"). For the following reasons, we affirm.
I. Facts and Procedural History
           {¶ 2} In 2009, the university formed a search committee for the position of
Assistant Dean of Administrative Services at Clermont College ("the college"), which is
one of the university's regional colleges.1 The position's responsibilities included
managing administrative and fiscal operations on behalf of the college. Following the


1   University officials also referred to this position as a "business administrator." (Tr. Vol. I at 84.)
No. 16AP-224                                                                              2


suggestion of Jim McDonough, the college's interim dean, appellant, an African-American
male, applied for the position and was interviewed by the search committee.
       {¶ 3} Kathleen Qualls, the senior vice provost for academic finance and
administration for the university, served on the search committee. Qualls testified that all
the applicants other than appellant were Caucasian. Qualls alone disagreed with the other
members of the committee that appellant met the minimum qualifications for the
position.   Despite Qualls' disagreement, the committee recommended appellant to
McDonough. McDonough interviewed appellant and then hired him for the position.
       {¶ 4} On October 12, 2009, appellant began his employment with the university
as an unclassified or at-will employee. Appellant had a "solid line" reporting relationship
with McDonough, meaning that McDonough served as appellant's direct supervisor. (Tr.
Vol. II at 325.) Appellant also had a "dotted-line" reporting relationship with Qualls. (Tr.
Vol. II at 325-26.) Qualls stated that "[a] dotted-line reporting relationship exists when
you want to facilitate the flow of information." (Tr. Vol. II at 328.) In 2010, Gregory
Sojka replaced McDonough as dean of the college and served as appellant's direct
supervisor. Appellant continued to have a dotted-line reporting relationship with Qualls.
       {¶ 5} Appellant testified that he periodically contacted the Ohio Board of Regents
("OBR") for various matters related to his job duties. David Cannon, vice chancellor of
finance and data management at OBR, testified that OBR is a coordinating body for
higher education for the state of Ohio, responsible for making sure that colleges and
universities meet academic standards as well as administering financial resources from
the state. According to appellant, Jan Diegmueller, who was responsible for budgets at
the university's main campus, told appellant that Katie Hensel, a vice chancellor of
finance, would be his contact at OBR.
       {¶ 6} Appellant testified that in 2012, the college used $800,000 from its
contingency fund in order to balance its general fund due to declining enrollment. As a
result, appellant wanted to develop metrics and put internal controls in place.          In
September 2012, appellant told Sojka that he was going to call OBR for information in
order to calculate metrics. Appellant attempted to call Hensel, but was unable to reach
her. After looking through a staff directory, appellant called Cannon. Appellant had not
previously spoken with Cannon, although he was able to determine Cannon's job title
based on the OBR staff directory.
No. 16AP-224                                                                              3


       {¶ 7} Sojka testified that he did not recall appellant telling him that he was
planning to contact OBR. Sojka admitted that contacting OBR was "something that
[appellant] could do" and that appellant had a regular contact at OBR, though he did not
know the person's name. (Tr. Vol. I at 43.)
       {¶ 8} According to appellant, he informed Cannon that the college was using its
reserves to balance its general fund, which was something the college had never before
done. Cannon stated that he would send appellant an Excel template to help with
appellant's metrics. Appellant testified that during his call with Cannon, he received an e-
mail from Jeffrey Bauer, chair of the business law technology department at the college,
which was sent to both Sojka and appellant. After skimming the e-mail and noticing that
it mentioned changes to the funding model between the regional colleges and the
university's main campus, appellant asked Cannon whether the state's subsidy to the
college could be adjusted without OBR making the change. Cannon replied that OBR
would eventually make changes in how the subsidy would be calculated but that he could
not tell appellant when that would occur.
       {¶ 9} The record reflects that on September 13, 2012, Bauer sent Sojka and
appellant an e-mail with the subject "Budget Yikes/Interim Provost Comments" in which
Bauer discussed comments made by Larry Johnson, the university's interim provost.
(Appellant's Ex. 4, 6.) Specifically, Bauer mentioned Johnson's discussion of funding
changes between the regional colleges and the university's main campus.                 On
September 14, 2012, appellant replied to Bauer and Sojka as follows:
              Thanks for the "heads-up". The Regional campuses [sic]
              economic house is in order and we charge the least amount of
              tuition than anyone in the system. The problem is not the
              "Regional colleges", it is the way the University has managed
              its business over the years. We are not designed to "bail" them
              out of their financial problems. Clermont has the largest cash
              reserves than any of the colleges within the University. We did
              not get there by being big spenders, we got there by being
              responsible stewards of our financial resources.

              We are separately accredited and we have a separate mission.
              It is time to put on some boxing gloves.

              We better get our political alliances in order within the greater
              community because I see a dog fight coming. We will need
              Legislative support if it comes down to it.
No. 16AP-224                                                                              4


(Appellant's Ex. 4.)   Appellant forwarded the above e-mail to Andrew Kuchta, the
economic development director for Clermont County. On September 17, 2012, Sojka sent
appellant a response to the aforementioned e-mails stating: "Please wait about sharing
this preliminary news with any advocates outside the College. Not sure how all this will
turn out. Private meeting with [Johnson] on Wed." (Appellee's Ex. D.)
       {¶ 10} Additionally, on September 14, 2012, Sojka wrote to appellant in response
to Bauer's e-mail. Appellant replied to Sojka and stated in part that "I will update you on
a brief conversation I had with an OBR representative today on this email from [Bauer].
A very interesting perspective." (Appellant's Ex. 6.) On September 17, 2012, Sojka replied
to appellant asking to schedule a meeting with him. On September 18, 2012, appellant
replied and stated that he would plan on meeting with Sojka that day.
       {¶ 11} Cannon testified that because of the timing of the call in relation to
upcoming changes in funding for the university, he wanted to inform someone at the
university that appellant had called him. Cannon believed that it was an "unusual call"
but also said that he "had no problem with the call." (Tr. Vol. II at 288; 285.) Cannon
testified that he did not recall whether appellant asked him to intervene regarding the
distribution of funds from the college to the university. Cannon discussed the call with
Lana Reubel, OBR's chief of staff, who contacted Margaret Rolf, assistant vice president
for government relations at the university. Rolf then called Cannon.
       {¶ 12} According to Rolf, Cannon described the call as the "most unusual and
bizarre call" he had ever received. (Tr. Vol. I at 108.) Additionally, Cannon told Rolf that
appellant alleged financial improprieties occurring at the university. Rolf then contacted
Robert Ambach, senior vice president for administration and finance at the university.
       {¶ 13} Ambach testified that Rolf told him that Cannon was surprised to have been
contacted by appellant. Ambach himself was surprised and found it unusual that
appellant had contacted Cannon because he "perceive[d] that as going almost over four
layers of administration." (Ambach Depo. at 11.) Although Ambach testified there could
have been some situation where it would have been appropriate for a person in appellant's
position to contact Cannon, he also felt that it was unusual for such a call to take place
without being "vetted within the University previously." (Ambach Depo. at 13.) Ambach
briefly told Qualls that appellant called OBR and instructed Qualls to contact Rolf for
more details. Qualls called Rolf, who described her conversation with Cannon.
No. 16AP-224                                                                          5


       {¶ 14} Ambach also informed Johnson regarding appellant's call. Johnson, who
was also Sojka's direct supervisor, discussed the matter with Qualls. Qualls reported to
Johnson that she had discussed the matter with Rolf. Johnson then asked Qualls to send
him an e-mail detailing the contents of her conversation with Rolf. On September 21,
2012, Qualls sent an e-mail to Johnson which stated as follows:
              On Thursday morning I had a conversation with [Ambach]
              and he shared some concerns about [appellant] and told me
              that he asked [Rolf] to call me. I had the following phone
              conversation with [Rolf] at 9:20 am on Thursday, Sept 20,
              2012.

              [Appellant] (BA from Clermont) called [Cannon], Deputy
              Chancellor for Finance at [OBR].

              [Appellant] told [Cannon] that he wanted [OBR] to intervene
              — Clermont is sitting on some reserves and [appellant] is
              worried that [the university] is going to take away his
              reserves. He does want that to happen [sic]. [Appellant] asked
              if Senate Bill 6 rations [could] be invoked.

              Senate Bill 6 is a set of metrics put in place when Central State
              went belly up and includes things like debt ratios, bond
              ratings, expected ability to pay.

              These rations apply to the overall university and not to a
              single college. It just doesn't make sense. [Cannon] told [Rolf]
              that this was one of the most bizarre conversations he had
              ever had. [Cannon] also said that he asked [appellant] if he
              ran this by his Dean. [Appellant] replied that he had but his
              dean didn't bite so he thought he would take it up the ladder.

(Appellant's Ex. 7.)
       {¶ 15} On September 21, 2012, Johnson then e-mailed Sojka, attaching Qualls'
above e-mail to the message, and stating the following:
              I am VERY concerned about the e-mail below and I indicated
              to [Ambach] and others that I was sure you did not know
              about this and that I would get your perspective before we act.
              Long story short, people are very upset and asking how this
              could happen. If this set of circumstances are [sic] true, the
              university looked VERY foolish and it appears like we are not
              adequately supervising our staff. Did your business officer
              really go over your head and talk to somebody at OBR to try
              [to] intervene on concerns that are based on rumors! If this is
              true, it is a grave transgression that speaks volumes about
No. 16AP-224                                                                              6


              your business officer['s] lack of respect for you and the
              university that needs serious action — let's talk!
(Emphasis sic.) (Appellant's Ex. 7.) Johnson stated that he did not directly speak with
either Cannon or appellant about the call. Qualls also did not directly speak to appellant
about the call.
       {¶ 16} On September 24, 2012, Sojka sent Johnson's e-mail to appellant and
instructed appellant to set an appointment with Sojka's administrative assistant to discuss
the matter. According to appellant, he met with Sojka on the same day. At the meeting,
Sojka said that he informed Johnson that he was aware of appellant's call to OBR.
Appellant denied making any inappropriate statements on his call to OBR and disputed
the account in Qualls' e-mail. Furthermore, appellant requested a meeting with the other
university officials who were accusing him of making inappropriate statements. Appellant
stated that Sojka's administrative assistant scheduled the meeting for September 25,
2012, but then informed appellant that the meeting had been cancelled. At trial, Sojka
was unable to remember whether he met with appellant on September 24, 2012.
       {¶ 17} According to Johnson, Sojka stated he was unaware that appellant was
going to make the call to OBR. Specifically, Johnson stated that Sojka "told me he called
and talked to [appellant] and that [appellant] had admitted that he made the call, and
[Sojka] assured me he had nothing to do with it." (Tr. Vol. I at 99.) Johnson testified that
if Sojka was aware of and approved appellant's call to OBR, it "would have been a serious
problem." (Tr. Vol. I at 73.)
       {¶ 18} At trial, Sojka stated that he was told by Johnson to terminate appellant's
employment and that there were no other options. Johnson denied telling Sojka to
terminate appellant's employment, but, rather, told Sojka to employ progressive
discipline to improve appellant's performance.
       {¶ 19} On October 19, 2012, Sojka met with appellant and informed him that he
was being terminated without cause. Appellant asked why he was being terminated.
Sojka replied only that the college was "going in a different direction" and did not mention
appellant's call to OBR or any other reason. (Tr. Vol. I at 35.) Sojka presented appellant
with a termination letter which appellant refused to sign.
No. 16AP-224                                                                             7


       {¶ 20} Approximately sometime in January 2013, Sojka hired Mick McLaughlin, a
former assistant dean for financial affairs, to work part-time on a temporary basis until
the university completed a search for a permanent replacement for appellant.
       {¶ 21} Sojka testified that, following appellant's termination, the university
determined the title of "assistant dean" would no longer be applied to persons working in
a non-academic capacity. (Tr. Vol. II at 402.) Thus, the job title for appellant's former
position was changed to "director of business affairs." (Tr. Vol. II at 404.) After Sojka
established the job title and duties for the position, he formed a search committee to
evaluate the applications.
       {¶ 22} Following a search, Maria Keri, a Caucasian woman, was hired as the new
director of business affairs. Sojka testified that, based on his decision, Keri's position
included two additional job duties which appellant did not perform. First, Keri was
responsible for managing human resources functions for both faculty and staff, whereas
appellant was responsible for only staff. This additional responsibility also included the
hiring and supervision of a new staff member who reported to Keri. Sojka estimated that
Keri spent between 25 and 45 percent of her time on this job duty. Second, Keri was
responsible for creating a program cost study. Sojka testified that Keri spent up to 25
percent of her time on this job duty.
       {¶ 23} On October 16, 2014, appellant filed a complaint alleging claims of race and
gender discrimination. On January 30, 2015, appellee filed an answer denying appellant's
claims.
       {¶ 24} On September 11, 2015, appellee filed a motion for summary judgment. On
September 25, 2015, appellant filed a memorandum in opposition to appellee's motion for
summary judgment. On October 2, 2015, appellee filed a motion for leave to reply to
appellant's September 25, 2015 memorandum. On November 30, 2015, the Court of
Claims filed an entry granting appellee's October 2, 2015 motion for leave to reply and
denying appellee's September 11, 2015 motion for summary judgment.
       {¶ 25} On December 14, 2015, the matter proceeded to a bench trial.             On
December 24, 2015, appellant filed a post-trial brief; on December 28, 2015, appellee filed
a post-trial brief.   On February 22, 2016, the Court of Claims filed a decision and
judgment entry rendering judgment in favor of appellee.
No. 16AP-224                                                                                8


II. Assignment of Error
         {¶ 26} Appellant appeals and assigns the following single assignment of error for
our review:
               THE TRIAL COURT ERRED BY ENTERING JUDGMENT
               FOR THE DEFENDANT.

III. Discussion
         {¶ 27} In his single assignment of error, appellant asserts the Court of Claims'
judgment was against the manifest weight of the evidence.             Specifically, appellant
contends the Court of Claims erred in finding that (1) appellant failed to prove a prima
facie case of employment discrimination, and (2) appellant failed to prove that the
reasons offered in support of his termination were pretextual.
A. Standard of Review
         {¶ 28} " 'Weight of the evidence concerns "the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.
* * * Weight is not a question of mathematics, but depends on its effect in inducing
belief." ' " (Emphasis omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black's
Law Dictionary 1594 (6th Ed.1990).
         {¶ 29} " 'Judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence.' " Rosenshine v. Med. College Hosps., 10th
Dist. No. 11AP-374, 2012-Ohio-2864, ¶ 9, quoting C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St.2d 279, 280 (1978). "Under the civil [manifest-weight-of-the-evidence] standard,
examining the evidence underlying the trial judge's decision is a prerequisite to
determining whether the trial court's judgment is supported by some competent, credible
evidence." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 40. See also Eastley
at ¶ 15 ("The phrase 'some competent, credible evidence' * * * presupposes evidentiary
weighing by an appellate court to determine whether the evidence is competent and
credible."). Accordingly, a reviewing court must weigh the evidence presented in the trial
court.
         {¶ 30} However, in weighing the evidence, we are mindful of the presumption in
favor of the finder of fact. Id. at ¶ 21; Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
No. 16AP-224                                                                                9


77, 80 (1984) (noting that a reviewing court gives deference to the finder of fact because
"the [finder of fact] is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony").      " ' "If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and judgment." ' "
Eastley at ¶ 21, quoting Seasons Coal at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 603, at 191-92 (1978). "Thus, in reviewing a judgment under
the manifest-weight standard, a court of appeals weighs the evidence and all reasonable
inferences, considers the credibility of witnesses, and determines whether in resolving
conflicts in the evidence, the finder of fact clearly lost its way." Sparre v. Ohio Dept. of
Transp., 10th Dist. No. 12AP-381, 2013-Ohio-4153, ¶ 10, citing Eastley at ¶ 20.
B. Applicable Law
       {¶ 31} R.C. 4112.02 prohibits employment discrimination based on race and sex.
Specifically, R.C. 4112.02(A) provides that "[i]t shall be an unlawful discriminatory
practice * * * [f]or any employer, because of the race, color, religion, sex, military status,
national 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." R.C. 4112.99 authorizes civil actions for any violations of R.C.
Chapter 4112. Generally, Ohio courts examine state employment discrimination claims
under the guidance of federal anti-discrimination case law. Coryell v. Bank One Trust Co.
N.A., 101 Ohio St.3d 175, 2004-Ohio-723, ¶ 15. But see Williams v. Akron, 107 Ohio St.3d
203, 2005-Ohio-6268, ¶ 31.
       {¶ 32} In order to prevail in an employment discrimination case, a plaintiff must
prove discriminatory intent and may establish such intent through either direct or
indirect methods of proof. Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th
Dist.1998), citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583 (1996); USPS Bd. of
Governors v. Aikens, 460 U.S. 711, 714 (1983), fn. 3. "[A] plaintiff may establish a prima
facie case of age discrimination directly by presenting evidence, of any nature, to show
that an employer more likely than not was motivated by discriminatory intent." Mauzy at
paragraph one of the syllabus. Absent direct evidence of discrimination, a plaintiff may
No. 16AP-224                                                                             10


indirectly establish discriminatory intent using the analysis promulgated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), first adopted by the Supreme Court of Ohio
in a race discrimination case in Plumbers & Steamfitters Joint Apprenticeship Commt. v.
Ohio Civil Rights Comm., 66 Ohio St.2d 192, 197 (1981). See Barker v. Scovill, Inc., 6
Ohio St.3d 146, 147 (1983) (adopting the McDonnell Douglas framework in the context of
claims of age discrimination). Here, because appellant relies on indirect proof, we employ
the McDonnell Douglas burden-shifting analysis.
       1. Prima Facie Case
       {¶ 33} In order to establish a prima facie case, a plaintiff must demonstrate that he
or she: (1) was a member of the statutorily protected class, (2) suffered an adverse
employment action, (3) was qualified for the position, and (4) was replaced by a person
outside the protected class or that the employer treated a similarly situated, non-
protected person more favorably. Wasserstrom v. Battelle Mem. Inst., 10th Dist. No.
15AP-849, 2016-Ohio-7943, ¶ 16; Hall v. Ohio State Univ. College of Humanities, 10th
Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 15. "[T]he elements of the prima facie case must
remain flexible so that they can conform to the facts of the case." Williams at ¶ 10, citing
McDonnell Douglas at 802, fn. 13. Establishing a prima facie case " 'creates a
presumption that the employer unlawfully discriminated against the employee.' " Id. at
¶ 11, quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
       2. Employer's Burden of Production
       {¶ 34} If a plaintiff establishes a prima facie case, the burden of production shifts
to the employer to articulate some legitimate, non-discriminatory reason for discharging
the employee. Bowditch v. Mettler Toledo Internatl., Inc., 10th Dist. No. 12AP-776, 2013-
Ohio-4206, ¶ 16; Williams at ¶ 12, citing Burdine at 254. The employer meets its burden
of production by submitting admissible evidence that " 'taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action,' " and in
doing so rebuts the presumption of discrimination that the prima facie case establishes.
(Emphasis sic.) Williams at ¶ 12, quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
509 (1993).
       3. Pretext
       {¶ 35} Finally, if the employer meets its burden of production, a plaintiff must
prove by a preponderance of the evidence that the employer's legitimate, non-
No. 16AP-224                                                                                11


discriminatory reasons were merely a pretext for unlawful discrimination. Bowditch at
¶ 17, citing Barker at 148. Generally, courts have found that a plaintiff establishes pretext
by proving one or more of the following: (1) that the employer's proffered reasons for the
adverse employment action had no basis in fact, (2) that the proffered reasons were not
the true reason(s), or (3) that the proffered reason(s) were insufficient to motivate
discharge. See, e.g., Mittler v. OhioHealth Corp., 10th Dist. No. 12AP-119, 2013-Ohio-
1634, ¶ 44; Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003); Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994), abrogated on other grounds2
by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), as recognized in Geiger v. Tower
Automotive, 579 F.3d 614, 621 (6th Cir.2009). Although the presumption created by the
prima facie case disappears once the employer meets its burden of production, "the trier
of fact may still consider the evidence establishing the plaintiff's prima facie case 'and
inferences properly drawn therefrom * * * on the issue of whether the defendant's
explanation is pretextual.' " Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000), quoting Burdine at 255, fn. 10.
          4. Finding of Discrimination
          {¶ 36} The ultimate burden of persuasion remains at all times with the plaintiff. St.
Mary's Honor at 511; Mittler at ¶ 22. "A case that reaches this point is decided by the trier
of fact on the ultimate issue of whether the defendant discriminated against the plaintiff."
Williams at ¶ 14. In St. Mary's Honor, the Supreme Court of the United States stated:
                   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.) Id. at 514-15.            In Reeves, the Supreme Court of the United States
elaborated:

2   As noted in Rhoades v. Std. Parking Corp., 559 F.Appx. 500, 502 (6th Cir.2014).
No. 16AP-224                                                                                              12


                [A] plaintiff's prima facie case, combined with sufficient
                evidence to find that the employer's asserted justification is
                false, may permit the trier of fact to conclude that the
                employer unlawfully discriminated.

                This is not to say that such a showing by the plaintiff will
                always be adequate to sustain a jury's finding of liability.
                Certainly there will be instances where, although the plaintiff
                has established a prima facie case and set forth sufficient
                evidence to reject the defendant's explanation, no rational
                factfinder could conclude that the action was discriminatory.

(Emphasis sic.) Id. at 148. Thus, " 'a reason cannot be proved to be "a pretext for
discrimination" unless' " the plaintiff demonstrates " 'both that the reason was false, and
that discrimination was the real reason.' " (Emphasis sic.) Williams at ¶ 14, quoting St.
Mary's Honor at 515. See also Hall at ¶ 35.
C. Application
        {¶ 37} First, appellant contends the Court of Claims erred in finding that he failed
to establish a prima facie case.            Specifically, appellant contends that Keri replaced
appellant, thereby establishing the fourth prong of appellant's prima facie case. Appellant
also contends it was inappropriate for the court to find that appellant failed to establish
his prima facie case following trial. We need not address appellant's arguments with
regard to his prima facie case because, even if we were to accept that appellant established
a prima facie case, we nevertheless find that appellant failed to carry his ultimate burden
of demonstrating that discrimination was the real reason for his termination.3
        {¶ 38} Next, we examine whether appellee met its burden of production by
providing a legitimate, non-discriminatory reason for the adverse action. Appellee, in its
post-trial brief, asserted it terminated appellant because he "acted inappropriately,
unprofessionally, and without any authorization in making a 'bizarre,' 'unusual,' and
'awkward' phone call to [Cannon] and requesting intervention to prevent [the university]
from taking [the college's] funds." (Appellee's Post-Trial Brief at 8.) The Court of Claims
found that appellee articulated a legitimate, non-discriminatory reason for appellant's


3 We note appellant's argument that "[a]fter a trial on the merits of a discrimination claim, the question of
whether a prima facie case has been established is moot unless the defendant has properly preserved the
issue for appeal by renewing the motion for a directed verdict at the close of all the evidence." (Emphasis
omitted.) (Appellant's Brief at 19.) It is unnecessary for us to address appellant's arguments for the
aforementioned reasons.
No. 16AP-224                                                                            13


termination. We find that competent, credible evidence supports the court's finding that
appellee met its burden of articulating a legitimate, non-discriminatory reason for
appellant's termination.
       {¶ 39} Next, we examine whether appellant established that appellee's legitimate,
non-discriminatory reason was pretext. The Court of Claims concluded that appellant
was "terminat[ed] * * * for making the call to Cannon and not for any discriminatory
reason." (Decision at 6.) Additionally, the court found that appellant's "call [to Cannon]
was unauthorized and inappropriate, and regardless of the content of the call or whether
the information was conveyed incorrectly, [appellant] has failed to show that [appellee's]
articulated reason for his termination was merely pretext." (Decision at 6-7.)
       {¶ 40} On appeal, appellant asserts four arguments that appellee's reason for
terminating his employment was pretext: (1) appellant's conduct in making the call to
OBR was not sufficient to justify his termination, (2) appellant did not circumvent the
chain of command, (3) Cannon recalled sufficient details of the call to prove that
appellee's arguments were pretextual, and (4) any honest belief asserted by appellee was
unsupported. As a result, appellant contends the Court of Claims' decision was not
supported by competent, credible evidence and was against the manifest weight of the
evidence.
       {¶ 41} Here, the record reflects that Sojka was aware of appellant's regular contact
with a representative of OBR, although Sojka did not know specifically to whom appellant
spoke. However, despite Sojka's awareness of appellant's regular contact with OBR, there
is competent, credible evidence in the record that neither Sojka nor anyone else at the
university approved of appellant's contact with Cannon or the contents of that
conversation.
       {¶ 42} Appellant stated that Diegmueller instructed him to contact Hensel at OBR.
Appellant admitted that he did not seek any authorization to contact Cannon, but,
instead, simply searched for his contact information in a staff directory. Furthermore,
although appellant disputed the account of his conversation with Cannon as portrayed in
Qualls' e-mail, appellant admitted that he brought up the issue of the college's funding
with Cannon and also discussed the university's subsidy. Appellant testified that while he
was on the call with Cannon, he received and read Bauer's e-mail that described potential
changes to the funding relationship between the university and the college. As a result,
No. 16AP-224                                                                               14


appellant stated that he brought up the issue with Cannon. There is no indication that
Sojka or anyone else at the university instructed appellant to discuss such matters with
Cannon or any other official at OBR.
       {¶ 43} Cannon testified that his conversation with appellant was "unusual" and he
felt the need to inform the university regarding the contents of the call. (Tr. Vol. II at
288.) Specifically, Cannon testified that he wanted to inform the university that someone
had inquired about the changes in the funding formula between regional colleges and a
university's main campus. Cannon stated that he did not recall whether appellant asked
OBR to intervene to prevent the university from taking funds from the college. Cannon
also stated that he did not recall appellant stating that because "his dean did not bite * * *
he wanted to run his request up the ladder to you." (Tr. Vol. II at 284.)
       {¶ 44} Sojka stated that appellant's communication with Cannon demonstrated
"[p]oor professional judgment," because "it [was] not up to [appellant] to seek a remedy
with an individual who -- with whom other University officials communicate. It violated
the chain of command and was unprofessional." (Tr. Vol. II at 425-26.) Sojka also
testified that appellant's actions "caused a trust, confidence, communication gap." (Tr.
Vol. II at 414.)
       {¶ 45} Qualls testified that "[a]sking for the intervention and going over his dean's
head all -- the sum total of the phone call and the context of the phone call was
inappropriate." (Tr. Vol. II at 332.) Johnson testified that "[i]t's incredibly important that
the University have an impeccable relationship with [OBR]" and "[i]t's very important
we're all on the same page when we're interacting with OBR." (Tr. Vol. I at 82; 69.)
Furthermore, Johnson stated:
               [T]here are times when you have people that you can contact
               at OBR, but I -- when I was a dean and even as a provost, if I
               contacted somebody, I would make sure my superior knew the
               conversations I was having and the interactions I was having
               to try and do that.

               And so in this case, none of that occurred. And, again, it was
               the content that was disturbing.

(Tr. Vol. I at 69.)

       {¶ 46} Based on our review of record, we find there were differing accounts of the
contents of appellant's call with Cannon. Significantly, neither appellant's nor Cannon's
No. 16AP-224                                                                            15


testimony matched some of the statements in Qualls' e-mail to Johnson. Furthermore,
neither Johnson nor Qualls spoke directly to Cannon or appellant regarding the contents
of the conversation. Nevertheless, it is undisputed that appellant did not specifically
receive permission to contact Cannon or to discuss the contents of Bauer's e-mail with
Cannon. Therefore, competent, credible evidence supports the Court of Claims' finding
that appellant failed to demonstrate by a preponderance of the evidence that appellee's
reason for his termination was pretext for unlawful discrimination.
      {¶ 47} In this case, the Court of Claims ultimately found appellant was terminated
"for making the call to Cannon and not for any discriminatory reason." (Decision at 6.)
Even if we were to find that appellee's reason was false, there is competent, credible
evidence in the record that appellant failed to carry his ultimate burden of demonstrating
that the university discriminated against him on the basis of his race or gender. Although
the university's decision to terminate appellant's employment may have been based on
incorrect or incomplete information, this does not necessarily compel the conclusion that
appellee's action was based on unlawful discrimination. See Griffin v. Finkbeiner, 689
F.3d 584, 594 (6th Cir.2012) ("Racial animus is not the only inference that can be drawn
from evidence that the proffered reason for an adverse employment action was pretext.").
Having thoroughly reviewed the evidence and weighed the credibility of the witnesses, we
cannot find that the Court of Claims erred in finding that discriminatory intent on the
basis of race and gender was not the actual reason for appellant's termination. Appellant
failed to carry his ultimate burden of demonstrating that the adverse employment action
resulted from unlawful discrimination. Williams at ¶ 14; St. Mary's Honor at 515; Hall at
¶ 35; Pla v. Cleveland State Univ., 10th Dist. No. 16AP-366, 2016-Ohio-8165, ¶ 23-27.
      {¶ 48} Accordingly, we overrule appellant's sole assignment of error.
IV. Conclusion
      {¶ 49} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                      Judgment affirmed.
                        TYACK, P.J., and BRUNNER, J., concur.
