[Cite as Hall v. The Ohio State Univ. College of Humanities, 2011-Ohio-6842.]




                                                        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



STEPHEN GILROY HALL, PH.D.,
                                                               Case No. 2010-10106

       Plaintiff,                                              Judge Alan C. Travis

       v.

THE OHIO STATE UNIVERSITY
COLLEGE OF HUMANITIES,

       Defendant.                                              DECISION



        {¶1} On August 22, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On October 3, 2011, plaintiff filed a response. On October 7,
2011, defendant filed a motion for leave to file a reply. On October 18, 2011, plaintiff
filed a motion to strike defendant’s motion for leave and defendant filed a response on
October 28, 2011. Upon review, defendant’s motion for leave is DENIED and plaintiff’s
motion to strike is DENIED as moot. Defendant’s motion for summary judgment is now
before the court on a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party's favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶4} Plaintiff received a Ph.D. in American History from The Ohio State University
(OSU) in 1999. He briefly taught at both Central State University and OSU before he
was offered a tenure track position as an assistant professor with the OSU Department
of History in 2002.
       {¶5} In 2008, the Promotion and Tenure Committee of the Department of History
at OSU met to consider plaintiff’s promotion and tenure. The committee voted in favor
of plaintiff’s promotion and Peter Hahn, Chair of the History Department, also
recommended plaintiff’s promotion and tenure. However, the Promotion and Tenure
Committee for the College of Humanities voted against plaintiff’s promotion. Dean of
the College of Humanities, John Roberts, decided not to recommend plaintiff for tenure.
On March 30, 2009, Executive Vice President and Provost Joseph Alutto determined
that he would not recommend plaintiff to OSU’s Board of Trustees for tenure. Plaintiff’s
employment with defendant ultimately ended on June 30, 2010.
       {¶6} Plaintiff brought this action alleging race discrimination in violation of 42
U.S.C. 2000(e) and breach of contract.
       {¶7} Defendant asserts that plaintiff cannot prevail on his claims because it
followed its tenure policy and plaintiff cannot show that defendant’s legitimate, non-
discriminatory reason for denying him tenure was pretext for race discrimination.
       {¶8} In support of its motion, defendant provided the affidavit of Chitra Iyer, who
avers, in part:
       {¶9} “1.   I am employed by the Ohio State University (OSU) as Human
Resources Director for the College of Arts and Sciences. I have held this position since
September 1, 2009;
       {¶10} “2. In my capacity as Human Resources Director, I am generally
responsible for managing and directing all human resources related functions for the
College of Arts and Sciences;
       {¶11} “3. I have present knowledge of litigation commenced by [plaintiff], and I
am competent to testify about the facts in this affidavit;
       {¶12} “* * *
       {¶13} “5. OSU review process for awarding promotion and tenure to faculty
members is outlined in University Rules 3335-02 and 3335-6-04. It provides for a three
tiered level tenure review, beginning with a review of the candidate at the department
level (or tenure initiating unit), then the College, and lastly the Office of Academic
Affairs.   Tenure determinations must be based on convincing evidence that the
candidate has (1) achieved excellence as a teacher; (2) achieved excellence as a
scholar; and (3) is one that provides effective service, and can be expected to continue
a program of high quality teaching, scholarship and service.
       {¶14} “6. In the same year Dr. Hall was denied promotion and tenure, Hassan
Jefferies, Ph.D., an African American male was approved for promotion and tenure to
Associate Professor in OSU’s history department.”
       {¶15} 42 U.S.C. 2000e-2(a) states, in part: “It shall be an unlawful employment
practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin * * *.”
       {¶16} R.C. 4112.02 states, in part:        “It shall be an unlawful discriminatory
practice: (A) For any employer, because of the race [or] color * * * 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.” Case law interpreting Title VII
of the Civil Rights Act of 1964 is also applicable to R.C. Chapter 4112. Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio
St.2d 192, 196.
       {¶17} To establish a Title VII 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. (C.A.6, 2003), 319 F.3d 858, 864-865.             If there is no direct evidence of
discrimination, the burden-shifting framework established in McDonnell Douglas Corp.
v. Green (1973), 411 U.S. 792, will apply.        Under McDonnell Douglas, a plaintiff
establishes a prima facie case of race discrimination by establishing that plaintiff: 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. Id. at 802.
       {¶18} If plaintiff establishes a prima facie case, the burden of production shifts to
defendant to “articulate some legitimate, nondiscriminatory reason for [its action].” Id. If
defendant succeeds in doing so, then the burden shifts back to plaintiff to demonstrate
that defendant’s proffered reason was not the true reason for the employment decision.
Id. at 804.
       {¶19} In its motion for summary judgment, defendant admits that plaintiff has
established a prima facie case of race discrimination. However, defendant argues that
plaintiff cannot overcome defendant’s legitimate, nondiscriminatory reason for its
decision to deny plaintiff tenure.
       {¶20} Defendant asserts that its legitimate, nondiscriminatory reason for failing to
promote plaintiff was his poor teaching record.        Defendant provided authenticated
letters, memoranda, and Student Evaluation of Instruction reports (SEI) supporting its
position. As early as 2007, plaintiff was on notice that his student evaluations were
below an acceptable level when he received a letter from Peter Hahn, Chair of the
History Department. (Defendant’s Exhibit A-2.) Plaintiff taught five classes from August
2007 through Summer 2008 and the SEI data indicated that plaintiff’s scores were
nearly one point lower, on a five point scale, than similar classes in the department.
       {¶21} After both the Promotion and Tenure Committee of the Department of
History and Hahn recommended plaintiff’s tenure, the Promotion and Tenure Committee
for the College of Humanities voted against plaintiff’s promotion due to his low SEI
scores and negative student comments. In its written report, the Promotion and Tenure
Committee for the College of Humanities stated, “We find the cumulative information to
be evidence [of] an extremely weak and problematic teaching record.” (Defendant’s
Exhibit A-6.)   Dean of the College of Humanities, John Roberts, decided not to
recommend plaintiff for tenure because “[plaintiff] is an ineffective teacher who does not
meet the standard of excellence in this critical area.”              (Defendant’s Exhibit A-7.)
Further, after considering all the submitted materials, Provost Alutto determined that
“[plaintiff’s] teaching record fails to meet the department, college and university criteria
for promotion to the rank of Associate Professor with tenure. * * * [A]n established
record of excellence in teaching is required to meet the criteria at all levels for promotion
to the rank of Associate Professor with tenure.” (Defendant’s Exhibit A-8.)
          {¶22} As Iyer averred, OSU considers the professor’s record as a teacher and
scholar and also the professor’s record of service when determining whether a
professor should be given tenure.           Defendant’s evidence establishes that plaintiff’s
teaching record, including the SEI reports, was the basis for the College of Humanities’
decision to vote against plaintiff’s promotion and tenure, as well as Dean Roberts and
Provost Alutto’s recommendation against promotion and tenure.
          {¶23} To overcome defendant’s legitimate, nondiscriminatory reason, plaintiff
must demonstrate that the reasons offered by defendant were not its true reasons, but
were a pretext for discrimination. McDonnell Douglas, supra, at 804. In order to meet
this burden, plaintiff must prove “that defendant’s proffered reason ‘(1) has no basis in
fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.’” Carter v. Univ of Toledo (C.A.6, 2003),
349 F.3d 269, 274, quoting Seay v. TVA (C.A.6, 2003), 339 F.3d 454, 463.
          {¶24} In response, plaintiff submitted his responses to defendant’s request for
production of documents. However, pursuant to Civ.R. 56(C) responses to requests for
production of documents are not proper evidence.                Accordingly, the court will not
consider this evidence.
          {¶25} Plaintiff also filed his own affidavit, in which he states:
          {¶26} “1. I state the following based on personal knowledge.
          {¶27} “2. Denial of tenure in my case was based upon according a degree of
weight to teaching that was contrary to that stated in OSU History Department tenure
policy.
          {¶28} “3. Teaching also has not historically been utilized as a basis to deny
tenure and in my case was a pretext.
       {¶29} “4. I was denied tenure by reason of my race, size and complexion, I am a
dark skinned African American.
       {¶30} “5. Historically the OSU History Department has granted tenure to Blacks
on a disproportionately low basis. The African Americans who received tenure are light-
skinned individuals.
       {¶31} “6. OSU’s history department has never granted tenure to a large dark-
skinned Black man.
       {¶32} “7. I am a member of a protected class and fully qualified to received
tenure.
       {¶33} “8. Whites were elevated to tenure level positions in the OSU History
Department during the period tenure was denied to me.
       {¶34} “9. The tone and content of the June 2009 correspondence concerning me
written by Dean Roberts is evidence of racial animus. There was no rational basis for
the language used by the Dean, such as the word dysfunctional.
       {¶35} “10. Denial of tenure in my case was based on both race and color
discrimination. I stated this both in my Complaint at the Equal Employment Opportunity
Commission and in my responses to Interrogatories in this action.”
       {¶36} In support of its motion, defendant also provided the deposition transcript of
plaintiff, which provides, in part:
       {¶37} “Q: Okay. So going back to your time at OSU, explain to me what the
criteria was, or explain to me * * * how the criteria was explained to you for being offered
tenure and promotion?
       {¶38} “A: * * * [M]y understanding is that * * * a candidate must achieve
excellence in teaching, research and service in order to be * * * successfully promoted
to associate professor.” (Hall Deposition, pages 15-16, lines 18-3.)
       {¶39} Iyer’s affidavit, the documents provided by defendant, and plaintiff’s own
deposition testimony show that in order to achieve tenure at OSU, a candidate must
achieve excellence in teaching, as well as research and service. Upon review, the court
finds that plaintiff has presented no evidence to overcome defendant’s legitimate reason
for its denial of tenure.      Plaintiff has presented no evidence of racial animus in
defendant’s consideration of the SEIs. Plaintiff’s bald assertions that he was denied
tenure because of his race and color are unsupported and do not prove pretext. Plaintiff
has   failed   to   present    any    evidence   to   overcome     defendant’s    legitimate,
nondiscriminatory reason for denying him tenure. Namely, plaintiff has failed to provide
any evidence that he achieved excellence in teaching or that his poor teaching record
was insufficient to deny his promotion and tenure. The only reasonable conclusion to
be drawn from the evidence is that defendant denied plaintiff tenure based on his poor
teaching record.    Thus, defendant is entitled to judgment as a matter of law as to
plaintiff’s claim for race discrimination.
       {¶40} Turning to plaintiff’s claim for breach of contract, plaintiff alleges that
“OSU’s denial of tenure is also a breach of contract.           The decision contradicted
provisions of the Department Tenure Handbook * * *. Additionally, pursuant to the
Handbook, [plaintiff] was de facto, or automatically, tenured. Such tenure arose based
on the fact that [plaintiff] had published and met all of the other historical requirements.”
(Complaint, ¶16.) Defendant asserts that it followed OSU’s tenure policy.
       {¶41} “[A] court should intervene [in tenure decisions] only where an
administration has acted fraudulently, in bad faith, abused its discretion, or where the
candidate's constitutional rights have been infringed.        [The] court is not a super
administrator concerning the assessment of a candidate's particular qualifications for
tenure * * *.” Gogate v. Ohio State Univ. (1987), 42 Ohio App.3d 220, 225-26, citing
Bassett v. Cleveland State Univ. (1982), Ct. of Cl. No. 1982-02100.                 Further,
“‘[d]eterminations about such matters as teaching ability, research scholarship, and
professional stature are subjective, and unless they can be shown to have been used
as the mechanism to obscure discrimination, they must be left for evaluation by the
professionals, particularly since they often involve inquiry into aspects of arcane
scholarship beyond the competence of individual judges.’” Id. at 226, quoting Kunda v.
Muhlenberg College (C.A.3, 1980), 621 F.2d 532, 548.
       {¶42} Iyer’s affidavit stated that OSU’s tenure policy is contained in University
Rules 3335-02 and 3335-6-04 and that it provides for a three-tiered level of review.
Tenure and promotion is based on teaching excellence, scholarly excellence, and
service.
       {¶43} In his affidavit, plaintiff alleges that he was denied tenure because
defendant “accord[ed] a degree of weight to teaching that was contrary to that stated in
OSU History Department tenure policy.” (Plaintiff’s Affidavit, ¶2.) In his deposition,
plaintiff testified that he believed OSU policies were breached in his tenure review
because of Dean Roberts’ focus on his SEI scores.
       {¶44} The documents provided by defendant in support of its motion show that
plaintiff’s denial of tenure was based upon his performance as a teacher. Plaintiff has
failed to present any evidence to demonstrate that defendant failed to comply with the
Department Tenure Handbook when it denied him promotion and tenure. Plaintiff’s
unsupported conclusions that defendant placed too much emphasis on the SEIs do not
permit an inference that defendant acted fraudulently, in bad faith, abused its discretion,
or violated plaintiff’s constitutional rights when it denied plaintiff promotion and tenure.
Based on the evidence, the only reasonable conclusion to be drawn is that defendant
followed the three-tiered tenure process and that it denied plaintiff’s tenure because of
his failure to achieve excellence in teaching, a requirement for tenure.
       {¶45} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment shall be granted.
                                                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

STEPHEN GILROY HALL, PH.D.,
                                                     Case No. 2010-10106

       Plaintiff,                                    Judge Alan C. Travis

       v.

THE OHIO STATE UNIVERSITY
COLLEGE OF HUMANITIES,

       Defendant.                                    JUDGMENT ENTRY


        {¶46} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.           For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and 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:


Kristin S. Boggs                               Percy Squire
Randall W. Knutti                              341 S. 3rd Street, Suite 101
Assistant Attorneys General                    Columbus, Ohio 43215
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Filed November 3, 2011
To S.C. reporter December 30, 2011
