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McKeny v. Ohio University

Court of Claims of Ohio

April 24, 2017

TIMOTHY SCOTT MCKENY, Ph.D. Plaintiff
v.
OHIO UNIVERSITY Defendant

          Sent to S.C. Reporter 6/23/17

          Erin E. Butcher Richard N. Coglianese Assistant Attorneys General.

          Randall W. Knutti Assistant Attorney General.

          DECISION

          DALE A. CRAWFORD JUDGE.

         {¶1} This case came to be heard on a trial to the Court held on December 12-14, 2016.[1] On January 4, 2017, the parties filed simultaneous post-trial briefs. Plaintiff filed an amended post-trial brief on January 25, 2017 to comply with the Court's January 19, 2017 order requiring a post-trial brief no longer than 20 pages and in compliance with formatting specifications.

         {¶2} At the beginning of trial, the Court addressed both Defendant's motion to exclude the expert testimony of Heinz Ickert and the stipulation regarding the pay of Dr. Christine Bhat from 2011-2017. The Court granted Defendant's motion to exclude, noting that it would take judicial notice of mathematical formulas and present values of Plaintiff's pension as well as the statutory life expectancy tables. The Court accepted the stipulation. At the close of trial, the Court dismissed Plaintiff's discrimination claims. Accordingly, the only remaining claims are breach of contract and violation of contractual due process.

         {¶3} The following constitutes the Court's Findings of Fact and Conclusions of Law.

         {¶4} Beginning in September 2006, Plaintiff Timothy McKeny, was an assistant professor in mathematics education in the College of Education at Ohio University. Plaintiff submitted a tenure and promotion dossier as part of his application for tenure on November 14, 2011. The dossier was sent to external reviewers, and eventually, the department recommended Plaintiff for tenure.

         {¶5} Plaintiffs tenure application included one published monograph, one published refereed article, one in-press refereed article, seven referred articles in-review, one in-press refereed book review, four technical reports, five national refereed presentations, two regional refereed presentations, seven state refereed presentations, and three local presentations. Plaintiff also had $770, 989 in grant funding.

         {¶6} At the time of the application, the College of Education did not have its own criteria for tenure. Therefore, the only binding document governing Plaintiffs tenure and promotion application was the department's Policy 60.111.

         {¶7} The application was referred to and denied by Dean Renee Middleton on April 1, 2012. The basis of her denial was set forth in a letter and explained that Plaintiffs record of scholarship did not meet expectations for tenure, including the fact that Plaintiff did not have enough peer-reviewed publications. Plaintiffs Exh. 41. Dean Middleton also noted that Plaintiff had been advised consistently to strengthen his scholarship, and that two external reviewers also did not recommend tenure because of insufficient scholarship. Id.

         {¶8} Plaintiffs application was submitted for reconsideration and was denied again on June 8, 2012. Dean Middleton reiterated the same reasons as in her first denial. Plaintiffs Exh. 46. Plaintiff appealed Dean Middleton's decision to Provost Pam Benoit, who denied the appeal on October 2, 2012, finding that there were no due process concerns. Plaintiffs Exh. 47. Plaintiff then appealed the decision to the Faculty Senate, which endorsed his appeal and submitted its decision to Dean Middleton for reconsideration. Dean Middleton denied the second reconsideration on January 28, 2013 for the same reasons as her prior two denials. She also indicated that his scholarship fell below the average application for tenure at the college. Plaintiffs Exh. 51. The application returned to Provost Benoit for reconsideration behind the faculty senate's support and Provost Benoit reaffirmed her prior denial on April 29, 2013. Plaintiffs Exh. 55. Subsequent to Provost Benoit's denial, Plaintiff was granted a hearing before a special senate committee, which brought Plaintiffs application to President Roderick McDavis. President McDavis denied the appeal on November 27, 2013, and again on reconsideration on December 20, 2013. Plaintiffs Exhs. 60, 61. The basis of the denials were based on lack of scholarship and the acknowledgement that the Dean, Provost, and President may interpret departmental criteria differently than the department faculty.

         {¶9} In order to recover for breach of contract, Plaintiff must prove the existence of a contact, performance by Plaintiff, breach by Defendant, and damages or loss as a result of the breach. Samadder v. DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340 (10th Dist). In the case at bar, Plaintiff alleges that the contract breached in this case was Policy 60.111, a supplement to the Faculty Handbook. Defendant does not dispute the applicability of the policy to Plaintiff.

         {¶10} Policy 60.111, "Procedures, Criteria and Worksheet for Evaluating Tenure and Promotion for Group I Faculty by T&P Committee, " states that scholarship "includes such activities as research publications, the delivery of papers and other invited presentations in professional settings; plus curriculum/product development including software, multimedia forms, and testing/evaluating instruments. The scholar shares his or her research findings individually or collaboratively with professional peers and in so doing subjects such findings to peer evaluation and criticism." Plaintiffs Exh. 13. Furthermore, the policy states that "[expectations for TENURE require invited and/or peer-reviewed products of scholarship of discovery, integration and/or teaching that ...


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