TIMOTHY SCOTT MCKENY, Ph.D. Plaintiff
OHIO UNIVERSITY Defendant
to S.C. Reporter 6/23/17
E. Butcher Richard N. Coglianese Assistant Attorneys General.
Randall W. Knutti Assistant Attorney General.
A. CRAWFORD JUDGE.
This case came to be heard on a trial to the Court held on
December 12-14, 2016. 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
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
The following constitutes the Court's Findings of Fact
and Conclusions of Law.
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.
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
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.
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.
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.
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
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 ...