[Cite as Ceglia v. Youngstown State Univ., 2016-Ohio-7235.]



NICKOLA CEGLIA                                        Case No. 2013-00454

       Plaintiff                                      Magistrate Holly True Shaver

       v.                                             DECISION OF THE MAGISTRATE

YOUNGSTOWN STATE UNIVERSITY

       Defendant



        {¶1} On October 7, 2014, the court granted summary judgment in favor of
defendant on plaintiff’s claims of employment discrimination on the basis of age,
disability, and perceived disability in violation of R.C. 4112.02. On June 2, 2015, the
Tenth District Court of Appeals reversed the judgment in part, with regard to plaintiff’s
claim of age discrimination, but affirmed the judgment with regard to plaintiff’s claims of
disability and perceived disability discrimination.              Upon remand from the Court of
Appeals, the issues of liability and damages were bifurcated and the case proceeded to
trial on the issue of liability on June 27-29, 2016.1

BACKGROUND FACTS
        {¶2} Plaintiff, Nickola Ceglia, is a Licensed Independent Social Worker with
Supervisory designation (LISW-S).              Plaintiff obtained a Bachelor of Arts Degree in
Psychology in 1978, and a Master of Science Degree in Social Administration in 1980.
Plaintiff taught a variety of both bachelor and master’s level classes as an adjunct
professor, on a part-time basis over multiple semesters for defendant, Youngstown
State University (YSU). Although plaintiff taught intermittently for YSU from 1982-1989,


         1At trial, defendant’s June 24, 2016 motion in limine was GRANTED, in part, and DENIED, in

part. Plaintiff’s expert witness, Attorney Glendon Karr, was permitted to testify about his knowledge of the
National Association of Social Workers (NASW) code of ethics, but was not permitted to testify as to any
conclusions that he reached regarding the evidence in this matter. Defendant’s August 5, 2016 motion
for leave to file a long reply brief is GRANTED, instanter.
Case No. 2013-00454                        -2-                                DECISION


and from 1994-1998, he also held full-time positions at various other agencies and
hospitals. Plaintiff was the Executive Director at Trumbull LifeLines (ADAMHS Board)
from 2002 through January 2, 2009, when he took a disability retirement from that
position.
       {¶3} Beginning in 2009, plaintiff again taught for YSU as an adjunct professor on
both the main campus and at other community colleges that are affiliated with YSU. In
2010, plaintiff taught a course known as Research Methods at the Lorain Community
College Campus.      In 2012, plaintiff was teaching both a graduate level class at
defendant’s main campus and an undergraduate level class at the Lakeland Community
College campus.

THE JOB POSTING
       {¶4} On November 7, 2012, a new position for a full-time instructor/assistant
professor in the Department of Social Work at the Lakeland Community College
campus was posted. The job posting states:
       {¶5} “The position requires teaching undergraduate social work courses,
developing social work internship sites, training field instructors, and supervising and
evaluating student internship performance. The position also requires academic
advising and university service.”
       {¶6} “Minimum Qualifications: The qualified candidate must possess a Master of
Social Work degree from a CSWE accredited program, have had at least 5 years of
post-MSW applied social work experience, and demonstrated successful social work
teaching experience at the BSW or MSW levels. Desired Qualifications: Success at
this position will benefit from applicant qualifications that include: diverse social work
experience with a range of client types and practical settings, supervisory experience,
prior experience serving as a social work field instructor, and demonstrated commitment
to the social work profession and social work education.” (Plaintiff’s Exhibit 2.) The
Case No. 2013-00454                          -3-                                 DECISION


initial application review date was stated as January 31, 2013, and the start date of the
position was August 14, 2013. Id.
THE HIRING COMMITTEE
       {¶7} A hiring committee was assembled to oversee the process of filling the
position. The members of the hiring committee were Dennis Morawski, Ph.D., chair of
the department of social work; Shirley Keller, Ph.D.; Melody Hyppolite, Ph.D.; and, Karla
Wyant, LISW-S. Morawski testified that he had been acquainted with plaintiff for at
least 10 years, and that he, plaintiff, and David Barran, another adjunct professor, had a
friendly relationship and had gone camping and kayaking together. Morawski, Barran
and plaintiff ate lunch together occasionally, and Morawski encouraged both Barran and
plaintiff to apply for the position once it was posted. Keller testified that she had known
plaintiff for more than 25 years and had served as a reference for him in the past.
Hyppolite testified that she became familiar with plaintiff in 2011 but did not know him
well and had no opinion on his teaching ability.
       {¶8} The hiring committee underwent training on the professional faculty search
process by attending a live PowerPoint presentation that was approximately one hour in
length. (Plaintiff’s Exhibit 4.) According to the training materials, after applications were
received, the search chair was to provide a “Self-ID” letter to applicants by which they
could choose to self-identify demographic information to be reported to YSU’s Equal
Opportunity and Diversity Office.      (Plaintiff’s Exhibit 4, p. 3.)   The Self-ID report
contained questions about applicants’ gender and ethnicity, but did not include
questions about applicants’ ages. (Plaintiff’s Exhibit 4, p. 4; Defendant’s Exhibit J, p. 5-
7.)
       {¶9} Nineteen individuals, including plaintiff, submitted application materials.
(Defendant’s Exhibit J.) After reviewing the application materials, the search committee
members individually completed an evaluation grid that contained the applicants’ names
and eight columns of minimum and preferred qualifications. (Plaintiff’s Exhibits 10-12.)
Case No. 2013-00454                                -4-                                       DECISION


The search committee then met to discuss the applications as a group and determine
who met the minimum qualifications. 2
         {¶10} After the group discussion, the search committee agreed on a list of the top
six applicants. As of February 22, 2013, the list included plaintiff, Tami Holcomb-Hathy,
Mark Woods, Michael Madry, Stephanie Bradford, and Winnifred Whittaker. (Plaintiff’s
Exhibit 3 to Joint Exhibit E.) The next step was to contact these applicants’ references.
Hyppolite was assigned to contact references for plaintiff and Bradford; Morawski was
assigned to contact references for Madry and Whittaker; Keller was assigned to contact
references for Woods; and, Wyant was assigned to contact references for Holcomb-
Hathy.      (Id.)   Morawski asked Wyant to make the reference interview questions
available to the search committee. (Id.) Although the application materials do not
reflect applicants’ ages, the materials submitted show that the top six applicants
obtained their masters’ degrees in the following years: plaintiff, 1980; Bradford, 1982;
Whittaker, 1998; Holcomb-Hathy, 2002; Madry, 2004; Woods, 2007.                                (Plaintiff’s
Exhibits 10-12.)

REFERENCE CHECKS
         {¶11} Plaintiff had provided three letters of reference with his application, from
Vincent Stigliano, David Barran, and John Myers, respectively. (Plaintiff’s Exhibits 7-9).
Hyppolite testified via deposition that she successfully contacted two of plaintiff’s three
references; followed the list of questions that she was provided to interview the
references; took notes from her interviews of the references; and, reported the




         2Kellertestified that she completed a grid during the search and that she placed her grid and any
notes that she took thereon in Morawski’s mailbox. However, Morawski testified that he could not locate
Keller’s materials when they were sought in discovery. Keller’s grid and notes were not presented at trial.
Case No. 2013-00454                                -5-                                       DECISION


references’ comments to the search committee.                   (Joint Exhibit E, p. 55; Plaintiff’s
Exhibits 5-6 to Joint Exhibit E.)3
        {¶12} When Hyppolite contacted John Myers, he described plaintiff as an “old
school social worker.” (Plaintiff’s Exhibit 5 to Joint Exhibit E.) According to Hyppolite,
Myers gave plaintiff a positive reference. Myers’ letter of reference notes that he had
known plaintiff since the late 1980s. (Plaintiff’s Exhibit 9.) Hyppolite also contacted
David Barran, who was teaching as an adjunct professor for YSU during the search
period. Barran went to Hyppolite’s office for a face-to-face interview. Hyppolite testified
that Barran gave plaintiff a positive reference, although Barran stated that plaintiff was
“not the best at paperwork.” (Plaintiff’s Exhibit 6 to Joint Exhibit E.)

SEARCH COMMITTEE RANKINGS
        {¶13} After group discussions, the search committee ranked Madry first,
Holcomb-Hathy second, and Woods third. Madry, Holcomb-Hathy, and Woods were
invited for on-campus interviews which all occurred on April 10, 2013. (Defendant’s
Exhibit J.) The search committee testified that Madry was ranked first because he was
currently performing the same duties for The Ohio State University, and the committee
felt that he would already have an ideal skill set for the position. Madry was offered the
position but declined it because of the low salary. The position was then offered to
Holcomb-Hathy, who accepted it.
        {¶14} On April 15, 2013, Morawski submitted an Equal Opportunity Compliance
Report to YSU’s Equal Opportunity and Diversity Office. (Plaintiff’s Exhibit 21.) Under
“Applicants selected for on-campus interviews” it states the following: “1. Michael
Madry; 2. Tami Holcomb-Hathy; 3. Mark Woods; 4. Stephanie Bradford (declined
interview, not being considered further).” Numbers 5 and 6 are blank. Under “protected


        3The  list of questions that the committee used appears in Plaintiff’s Exhibits 17-19, although the
magistrate is aware that these exhibits contain the answers from the references that Wyant was
responsible for contacting.
Case No. 2013-00454                          -6-                                DECISION


group members who were not selected” it lists four names, one of which is Winnifred
Whittaker, who was not selected because she had “no experience as a field instructor
and no familiarity with regional agencies.” (Plaintiff’s Exhibit 21.)
       {¶15} Plaintiff asserts that he was not selected for the position because of his
age.    Plaintiff further asserts that Holcomb-Hathy did not meet the minimum
qualifications for the position, in that she did not possess demonstrated successful
social work teaching experience at the BSW or MSW levels. Defendant asserts that it
had legitimate, non-discriminatory reasons for selecting Holcomb-Hathy over plaintiff for
the position.   Plaintiff asserts that defendant’s reasons are pretextual and that age
discrimination is the real reason that he was not selected.

LAW
       {¶16} R.C. 4112.02 provides, in pertinent part, that: “It shall be an unlawful
discriminatory practice: (A) For any employer, because of the * * * age * * * 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.”           In Ohio,
“federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et
seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of
R.C. Chapter 4112.” Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ.
Rights Comm., 66 Ohio St.2d 192,196 (1981).
       {¶17} 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). The Court of
Appeals previously found that certain comments attributed to Morawski when the
selection process was ongoing did not constitute direct evidence of age discrimination.
Ceglia v. Youngstown State Univ., 10th Dist. Franklin No. 14AP-864, 2015-Ohio-2125,
Case No. 2013-00454                           -7-                                  DECISION


¶ 23. Morawski’s comments shall be considered in the analysis of plaintiff’s indirect
method of proof.
       {¶18} In order to state a prima facie case of age discrimination by indirect
evidence, plaintiff must establish that he: 1) was at least 40 years old at the time of the
alleged discrimination; 2) was subjected to an adverse employment action; 3) was
otherwise qualified for the position; and 4) that after plaintiff was rejected, a substantially
younger applicant was selected. Coryell v. Bank One Trust Co., N.A., 101 Ohio St. 3d
175, 2004-Ohio-723, paragraph 1 of the syllabus. Plaintiff testified that he was 58 years
old at the time that he was not selected for the position. The evidence shows that
plaintiff was qualified for the position, and that Holcomb-Hathy was 44 years old at the
time that she was selected. As such, the magistrate finds that Holcomb-Hathy was
substantially younger than plaintiff. Therefore, the magistrate finds that plaintiff has
stated a prima facie case of age discrimination.
       {¶19} “If the plaintiff establishes a prima facie case, then the burden of production
shifts to the employer to present evidence of ‘a legitimate, nondiscriminatory reason’ for
the employer’s rejection of the employee.” Williams v. City of Akron, 107 Ohio St.3d
203, 2005-Ohio-6268, ¶ 12.        “If the employer meets its burden of production, ‘the
plaintiff must then have an opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.’” Id. at ¶ 14, quoting Texas Dept. of Comm. Affairs v. Burdine,
450 U.S. 248, 253 (1981). “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
challenged conduct, or (3) was insufficient to warrant the challenged conduct. Dews v.
A.B. Dick Co. 231 F.3d 1016, 1021 (6th Cir.2000).            Regardless of which option is
chosen, the plaintiff must produce sufficient evidence from which the trier of fact could
reasonably reject the employer’s explanation and infer that the employer intentionally
discriminated against him. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003). A
Case No. 2013-00454                          -8-                               DECISION


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. St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 515 (1993).” Knepper v. Ohio State Univ., 10th Dist. Franklin
No. 10AP-1155, 2011-Ohio-6054, ¶ 12. “The ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Burdine, supra, at 253.

DEFENDANT’S PROFFERED LEGITIMATE, NONDISCRIMINATORY REASONS
FOR NOT SELECTING PLAINTIFF
       {¶20} At trial, defendant’s employees testified about the reasons that plaintiff was
not ranked as one of the top three candidates. As previously stated, the committee
ranked Madry first, Holcomb-Hathy second, and Woods third. Bradford was ranked
fourth and declined to be interviewed.             Whittaker did not meet the preferred
qualifications because she lacked both experience as a field instructor and familiarity
with regional agencies.     By process of elimination, after Bradford declined further
consideration and Whittaker failed to meet the preferred qualifications, plaintiff would
have moved into fourth place.        Morawski testified that after Bradford declined an
interview, the committee decided to interview the top three candidates only because the
committee did not have an interest in interviewing plaintiff for the position. The reasons
that defendant’s employees have provided for not selecting plaintiff are as follows:

   1. BOUNDARY ISSUES/PIZZA PARTIES
       {¶21} One issue that was raised during the discussion of plaintiff’s candidacy was
that he typically hosted an end of the semester pizza party for his students in the
adjunct courses that he taught.      Although Keller and Morawski had attended such
gatherings in the past, Wyant expressed concern because she felt that socializing with
students created boundary issues between professor and student which could lead to a
potential violation of the national code of ethics that social workers must follow.
Case No. 2013-00454                          -9-                                   DECISION


Hyppolite testified that she remembers the issue being raised in the search committee
and agreed that it could lead to a potential conflict.       However, none of the search
committee members testified that plaintiff’s conduct in hosting pizza parties was a
reportable offense under the NASW code of ethics. Wyant testified credibly that she
herself would not take students out for food as a social work professional, however, the
magistrate finds that Morawski and Keller’s attendance at these functions shows that
the boundary issue was more of a concern to Wyant than to other members of the
search committee. The evidence does show, however, that the issue was discussed
during the search committee meetings, and that plaintiff did host social gatherings for
his class.

   2. LETTERS OF REFERENCE
       {¶22} As stated earlier, plaintiff submitted three letters of reference, and
Hyppolite contacted two of his three references. Wyant testified that in comparison to
other candidates, plaintiff’s letters of reference were more personal than professional.
Morawski and Keller testified that plaintiff’s letters of reference were sufficient. Keller
testified that she was familiar with all three of plaintiff’s references and that she
respected them in their professional capacities. Hyppolite’s notes from her interviews of
plaintiff’s references show that they both gave plaintiff a positive reference. However,
John Myers did make comments that Wyant felt were not relevant to the position,
including that plaintiff was a great animal lover, was the son of aging parents, and had a
very strong personal religious faith. All three of plaintiff’s references describe plaintiff as
a friend. One of Holcomb-Hathy’s references also refers to her as a “dear friend.”
Hyppolite testified that she recalled a discussion that plaintiff’s references seemed more
personal than professional, but it is clear to the magistrate that Wyant’s opinion on this
matter was not shared by the other three search committee members.
Case No. 2013-00454                          -10-                                DECISION




   3. PAPERWORK ISSUE
       {¶23} The more significant issue that was apparent from the interviews of
plaintiff’s references was that Barran told Hyppolite that plaintiff was “not the best at
paperwork.” (Plaintiff’s Exhibit 6 to Joint Exhibit E.) All of the committee members
testified that this comment stood out to them as a potential problem. Wyant testified
that the position that plaintiff applied for was very similar to her own position at the
Lorain campus. The duties included teaching two classes each semester, coordinating
internships, advising students, writing reports, keeping track of rosters, grading papers,
responding to multiple emails, and making sure graduation requirements were being
met. Wyant testified that staying organized and up to date with paperwork was a key
component of the job, and that she was concerned when Hyppolite reported to the
committee that Barran had stated that plaintiff was not the best at paperwork.
       {¶24} Keller testified that when Hyppolite reported that Barran had stated that
plaintiff was not the best at paperwork, it had a “huge” impact on plaintiff’s candidacy,
because paperwork and organizational skills were a crucial part of the job.         Keller
testified that she did not doubt the accuracy of Hyppolite’s report of what plaintiff’s
references stated during their interviews.

   4. RESEARCH METHODS CLASS, SPRING 2010
       {¶25} Morawski testified that he had asked plaintiff to teach a course known as
Research Methods in spring 2010, at the Lorain campus, which is where Wyant also
taught. According to Morawski, it was difficult to find someone who was willing to teach
that particular class, and Morawski provided plaintiff with a syllabus and materials that
Morawski himself had used in the past.
       {¶26} Wyant testified that she had received complaints about plaintiff’s teaching
in 2010, when students that he had taught were taking a class from her in the fall.
Case No. 2013-00454                        -11-                                 DECISION


According to Wyant, it was evident to her that the students were struggling in her course
and were having difficulty doing research. In her experience, other students who had
not been taught Research Methods by plaintiff did not experience the same difficulty as
his prior students.     Wyant testified that she complained to Morawski after her
experience with having to re-teach students how to perform research, and she asked
Morawski not to hire plaintiff to teach Research Methods again. Morawski corroborated
Wyant’s testimony in that he acknowledged that Wyant had complained to him about
her students not being adequately prepared for her class after having taken plaintiff’s
Research Methods course. Morawski continued to ask plaintiff to teach other social
work courses but not Research Methods.            Morawski also testified that he never
personally informed plaintiff of Wyant’s complaints. Wyant’s evaluation grid of plaintiff
also states: “Taught Research Methods in Lorain Spring 2010 – problems reported by
students regarding assignments/ attained grants.” Wyant has two stars next to this note
that she wrote on her evaluation grid, and she personally ranked plaintiff 6th. (Plaintiff’s
Exhibit 11.)
       {¶27} Hyppolite testified: “the only thing I remember of the discussion around why
[plaintiff] was ranked where he was, was around the – his performance in his role as an
adjunct; and there was concern if his role as an adjunct was unsatisfactory in people’s
opinions that there was concern about how he would perform in a role that had more
responsibilities than as an adjunct.” (Joint Exhibit E, p. 117-118.)
       {¶28} Other criticisms of plaintiff’s teaching performance that were raised at the
search committee meetings were allegations that he gave easy grades, that he ended
classes early, and that he either did not require a research paper or that he omitted
some of the requirements from the Research Methods course. All of these issues were
raised by Wyant, due to her personal experience with her own students. At trial, the
parties went into great detail in comparing research papers that had been submitted by
plaintiff’s students. In summary, the testimony showed that although plaintiff did not
Case No. 2013-00454                         -12-                                     DECISION


eliminate the requirement of a research paper, his students were allowed to write the
paper in small groups instead of individually.
       {¶29} Upon review of the testimony and evidence presented at trial, the
magistrate finds that defendant has met its burden to produce evidence of a legitimate,
nondiscriminatory reason for its rejection of plaintiff. Specifically, the magistrate finds
that defendant produced evidence that Barran reported to Hyppolite that plaintiff was
“not the best at paperwork,” and that Wyant had complained to Morawski in 2010 that
her students who had taken plaintiff’s Research Methods class were not prepared for
her class, and that Wyant recommended that Morawski not hire plaintiff to teach that
particular class in the future.

PLAINTIFF’S ARGUMENTS ABOUT PRETEXT
   1. VERACITY AND SUFFICIENCY OF DEFENDANT’S PROFFERED REASONS
       {¶30} Plaintiff disputes the veracity and sufficiency of defendant’s proffered
reasons for rejecting him.        With regard to the pizza parties/boundary issues, the
magistrate agrees that the fact that Keller and Morawski had attended the events in the
past, and the fact that neither one of them testified that they were concerned with
plaintiff’s behavior in this regard persuades the magistrate to find that the pizza parties,
standing alone, were insufficient to warrant the rejection of plaintiff’s candidacy. In
addition, the proffered reason that plaintiff’s letters of reference were too personal and
not professional did not actually motivate Keller or Morawski to reject plaintiff.
       {¶31} With regard to the veracity of whether Barran stated that plaintiff was not
the best at paperwork, Barran testified that when he met with Hyppolite, she told him
that plaintiff’s references were “too positive” and that she needed something negative to
say about him. Although Barran admitted that he stated that plaintiff had a reputation
for not liking paperwork, Barran testified that he also told Hyppolite that even though
plaintiff did not like paperwork, he had overcome his dislike for it through the use of
technology. The magistrate finds that Barran’s testimony was credible with regard to
Case No. 2013-00454                         -13-                               DECISION


the friendly relationship that he, plaintiff, and Morawski had shared over the years.
However, the magistrate further finds that Barran’s testimony that Hyppolite asked him
only for negative information about plaintiff was neither credible nor supported by the
evidence. Specifically, Hyppolite testified that she used the standard list of questions
that she was given in the search committee to question the references that she
contacted. In addition, Hyppolite’s notes from her interviews with plaintiff’s references
are numbered to correspond with the list of questions that was provided.           Lastly,
Hyppolite’s notes specifically reflect the words “not the best at paperwork.” (Plaintiff’s
Exhibit 6 to Joint Exhibit E.) Although Barran may regret that he made that statement to
Hyppolite, the evidence shows that he, in fact, made the statement and that it negatively
impacted plaintiff’s candidacy.
       {¶32} With regard to the veracity of whether students complained to Wyant about
plaintiff’s performance in the Research Methods class in 2010, plaintiff asserts that he
was never reprimanded or given a bad evaluation for any of the classes that he taught
at YSU. However, the evidence also shows that adjunct professors were not formally
evaluated by faculty members, and that Morawski did not ask plaintiff to teach the
Research Methods course again after plaintiff taught it in 2010. In addition, Wyant’s
evaluation grid, which was written in February 2013, shows that she specifically
remembered that students reported problems with plaintiff’s teaching the Research
Methods course.     Morawski’s testimony also corroborated the fact that Wyant had
complained to him in 2010 about plaintiff’s performance in the Research Methods class.
Upon review, the magistrate finds that plaintiff has failed to prove by a preponderance of
the evidence that defendant’s legitimate, non-discriminatory reasons of Barran’s
comments and Wyant’s experience of her students being unprepared for her class after
having had plaintiff as an instructor were a pretext for age discrimination.

   2. ASSERTION THAT              HOLCOMB-HATHY          DID    NOT     MEET   MINIMUM
      QUALIFICATIONS
Case No. 2013-00454                       -14-                               DECISION


      {¶33} Plaintiff also asserts that Holcomb-Hathy did not meet the minimum
qualification of having demonstrated successful social work teaching experience at the
BSW or MSW levels when the position was posted. The evidence shows that in 2012,
Holcomb-Hathy had been hired to teach a course at YSU as an adjunct professor at the
Lakeland campus to begin in January 2013, and that she had not taught at the
university level prior to that position. However, Holcomb-Hathy applied for the position
on February 7, 2013, after she had begun the adjunct teaching position for YSU.
(Defendant’s Exhibit J, p. 6.)     The CV that Holcomb-Hathy submitted with her
application materials includes that teaching position. Both Wyant’s and Hyppolite’s
evaluation grids list Holcomb-Hathy’s adjunct teaching position as meeting the minimum
requirement.   (Plaintiff’s Exhibits 11, 12.)    Hyppolite acknowledged that Holcomb-
Hathy’s weakness as a candidate was her teaching experience, in that she had officially
been teaching at YSU for a little over a month. However, both Wyant and Morawski
testified that the committee felt that Holcomb-Hathy met the teaching requirement based
upon positive feedback from the course that she had started teaching in 2013, and her
experience of training professional and community groups locally and nationally, which
is reflected on her CV. (Plaintiff’s Exhibit 14, p. 3.) The committee members testified
that Holcomb-Hathy was ranked in the top six because the committee found that her
teaching experience was acceptable. The committee testified that Holcomb-Hathy’s
strengths were that she had quite a bit of practice and administrative experience, and
that she had multiple agency contacts in the Lake County community, evident from her
CV, which would assist with establishing field placements. Keller testified that Holcomb-
Hathy was ranked higher than plaintiff despite plaintiff’s lengthy teaching experience
because Holcomb-Hathy’s references described her as having good organizational
skills and because of her contacts with regional social work sites in the Lake County
area. Upon review of the evidence presented at trial, the magistrate finds that Holcomb-
Hathy met the minimum qualifications for the position.
Case No. 2013-00454                         -15-                                 DECISION




   3. PROCEDURAL IRREGULARITIES
       {¶34} Plaintiff also asserts that the search committee’s unwillingness to interview
him once he moved into fourth place is evidence of discriminatory animus based upon
his age. However, based upon the evidence presented at trial, the magistrate finds that
plaintiff was not interviewed because the search committee preferred the top three
candidates based upon their application materials, and the search committee did not
desire to interview plaintiff based upon his past performance in the Research Methods
course and their concern that his organizational skills were not sufficient for the position.
In addition, Hyppolite testified that she has served on four search committees, and that
in her experience, usually the top three candidates are invited for on-campus interviews.
Morawski also testified credibly that there was no discussion or interest in interviewing
plaintiff after Bradford declined an interview.

   4. MORAWSKI’S COMMENTS
       {¶35} The Court of Appeals found that although certain remarks that plaintiff
alleges that Morawski made to him were not direct evidence of age discrimination, his
comments may provide circumstantial proof of pretext and discriminatory animus.
Ceglia, supra, ¶ 36.
       {¶36} In his affidavit in opposition to summary judgment, plaintiff averred that on
April 3, 2013, he asked Morawski about his interview status for the position, and
Morawski responded that the hiring committee was focused on “mid-career” candidates.
Id. paragraph 18.      Plaintiff argues that the term “mid-career” excluded him from
consideration because he was a “58-year old, late-career professional who had been
working in the field of social work for more than 30 years.” Id. Plaintiff also stated in his
affidavit that in early May 2013, after the position had been filled, he asked Morawski
why the position was given to a much younger candidate, and that Morawski responded
Case No. 2013-00454                       -16-                               DECISION


that “the hiring committee was focused on a ‘mid-career’ candidate and [he] informed
[plaintiff] that the hiring committee ‘did not want someone who had been around for a
long time.” Id.
       {¶37} At trial, plaintiff testified that during the hiring process, he spoke to
Morawski at lunch and asked about the status of his application. According to plaintiff,
in that conversation, Morawski commented that the committee was “very impressed with
some mid-career candidates.”     Plaintiff testified that during this same conversation,
Morawski stated that he was surprised at the number of qualified candidates who had
applied, mentioned that some applicants were from out of town, and asked whether
plaintiff would be available for a Skype interview, because if the committee interviewed
one candidate via Skype, all interviews would be done via Skype. Plaintiff testified that
Morawski also told him that they had a very good candidate who was currently working
at The Ohio State University.
       {¶38} After plaintiff learned that the position was filled, and he had not been
asked for an interview, plaintiff approached Morawski again. According to plaintiff, he
asked Morawski, “What happened here?” In response, Morawski said, “We had a lot of
good candidates and this is who they picked.” Then plaintiff said something like, “she
has this much teaching experience” (indicating a small amount with his fingers).
Morawski responded that it was the committee’s decision. Plaintiff further testified that
Morawski told him that there were a lot of mid-career, experienced candidates, and that
the committee prefers to hire people outside of the YSU domain who they don’t know
and are basically unknown entities.
       {¶39} Morawski testified that when plaintiff approached him the first time,
Morawski felt that he was not permitted to share information during the pending search,
and that he was not comfortable talking to plaintiff about the search process. Morawski
explained that when he mentioned “mid-career candidates,” Morawski was including
plaintiff in that category, because the committee had narrowed the pool to six
Case No. 2013-00454                         -17-                                  DECISION


candidates, including plaintiff. Morawski testified that he was trying to tell plaintiff that
there were other qualified candidates who were not “rookies” to social work. In fact,
during this conversation, Morawski also asked plaintiff if he would be available to
interview via Skype if he were selected for an interview.
       {¶40} During   the   second    conversation,    Morawski     testified   that   plaintiff
approached him outside of his office, and he was caught off-guard. Morawski testified
that by plaintiff’s demeanor, it was apparent that plaintiff was disappointed. Plaintiff
asked Morawski, “What happened?” Morawski stated, “Nick, you were one of many
mid-career people who were well qualified for this job.” According to Morawski, the term
“mid-career” was not a comment about age, but rather, an attempt to explain that both
plaintiff and many other applicants were qualified for the position. Morawski denied
saying words to the effect that the committee was not interested in people who had
been around for a long time.
       {¶41} Plaintiff admitted that Morawski never mentioned that any of the candidates
were young, never made comments to plaintiff about any of the candidates’ ages, and
never told plaintiff that he was too old for the position. At the time of the search,
Morawski was 57, and Keller was 66 years old.
       {¶42} Upon review of the testimony and evidence presented at trial, the
magistrate finds that plaintiff has failed to prove by a preponderance of evidence that
the reasons offered by defendant were a pretext for age discrimination. The evidence
shows that 19 individuals applied for the position, that six, including plaintiff, were
considered as top-tier candidates, and that the standard process was followed to
contact those six candidates’ references. After the references were contacted, the six
top-tier applicants were ranked by the group. The issues discussed by the search
committee were based upon the candidates’ application materials and the references’
comments. Defendant’s decision to rank plaintiff below the top three candidates was
based upon comments made by his references and complaints about his teaching
Case No. 2013-00454                        -18-                                 DECISION


performance.    Although it is clear that plaintiff was qualified for the position, the
magistrate finds that Madry, Holcomb-Hathy, and Woods also met the minimum
qualifications for the position, and that each candidate possessed different strengths
and weaknesses which were considered in good faith by the search committee. The
magistrate finds that plaintiff has failed to prove that Barran did not state that plaintiff
was not the best at paperwork, that Barran’s comment did not actually motivate the
committee to rank plaintiff below the top three candidates, or that Barran’s comment
was insufficient to warrant plaintiff’s ranking. The magistrate further finds that plaintiff
has failed to prove that Wyant’s experience with her students being unprepared for her
class after having had plaintiff as a professor had no basis in fact, did not actually
motivate Wyant to complain about his teaching ability to Morawski, or was insufficient
for the committee to consider when deciding to hire a full-time employee. Furthermore,
the magistrate finds that Morawski’s mid-career comments to plaintiff are not evidence
of age bias. Both Morawski and plaintiff testified that Morawski encouraged plaintiff to
apply for the position.    The magistrate also finds that Morawski and Keller were
supportive of plaintiff throughout his career at YSU, and the evidence does not show
that they or any other members of the search committee harbored any discriminatory
animus against plaintiff based upon his age. The magistrate finds that plaintiff has
failed to meet his burden of proof that his age was the reason that he was not selected.
The committee testified credibly that Madry was ranked first because of his similar job
responsibilities at The Ohio State University, and that Holcomb-Hathy was ranked
second because of her agency contacts and other relevant experience. Plaintiff has
failed to prove by a preponderance of the evidence that defendant’s failure to hire him
for the position was based upon his age.          Therefore, the magistrate recommends
judgment in favor of defendant.4
Case No. 2013-00454                                 -19-                                       DECISION


        {¶43} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).




                                                        HOLLY TRUE SHAVER
                                                        Magistrate

cc:
Matthew M. Ries                                       Lindsey M. Grant
Patrick K. Wilson                                     Velda K. Hofacker
108 Main Avenue, SW, Suite 500                        Assistant Attorneys General
Warren, Ohio 44481                                    150 East Gay Street, 18th Floor
                                                      Columbus, Ohio 43215-3130

Filed September 20, 2016
Sent To S.C. Reporter 10/6/16




         4Although Dean Joseph Mosca testified at trial, the magistrate considered his testimony

cumulative, and did not refer to it in this decision. In addition, the magistrate finds that the testimony of
Glendon Karr about the NASW code of ethics was not particularly germane to this decision in that the
magistrate finds that plaintiff’s conduct of having pizza parties at the end of a semester with his students
did not rise to a reportable violation of the NASW code of ethics.
