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You v. Northeast Ohio Medical University

Court of Claims of Ohio

May 17, 2017

MIN YOU, PH.D. Plaintiff
v.
NORTHEAST OHIO MEDICAL UNIVERSITY Defendant

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

          Anderson M. Renick Magistrate

          DECISION

          PATRICK M. MCGRATH Judge.

          {¶1} On March 13, 2017, defendant, Northeast Ohio Medical University (NEOMU), filed a motion for summary judgment pursuant to Civ.R. 56(B). On April 6, 2017, plaintiff filed a response. On April 10, 2017, defendant filed a combined reply and motion to strike the documents attached to plaintiffs affidavit. On the same date, defendant filed a motion for leave to file its reply, which is hereby GRANTED. On April 14, 2017, plaintiff filed a response to defendant's motion to strike. The motion to strike is DENIED. The motion for summary judgment is now before the court for a non-oral hearing.

         {¶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., 50 Ohio St.2d 317 (1977).

         {¶4} Plaintiffs employment with NEOMU began in November 2013 when she was hired as a tenured professor to serve as a department chair and she was appointed to the unpaid position of Associate Dean of Research. Plaintiffs claims arise from NEOMU's decision to remove plaintiff from her administrative positions as department chair and associate dean in February 2015. Plaintiff alleges breach of contract, discrimination, retaliation, and violation of due process.

         {¶5} The evidence submitted by defendant shows that NEOMU faculty and staff reviewed applicants and Charles Taylor, Dean of the College of Pharmacy and Vice President for Academic Affairs, ultimately made the decision to hire plaintiff. Dean Taylor testified that by the time of plaintiffs mid-term review in either November or December 2014, he believed that plaintiffs insubordination had become an important issue. Specifically, Dean Taylor testified that on more than 12 occasions, plaintiff disregarded the chain of command and communicated in writing directly to President Jay Gershen. Dean Taylor related that President Gershen asked him to intervene with plaintiff and that he did so on numerous occasions either verbally, or in writing. President Gershen testified that he directed his assistant, Michelle Mulhern, to instruct plaintiff to stop emailing him and to relay all emails to Dean Taylor. After discussing plaintiffs insubordination with Dean Taylor on several occasions, on February 11, 2015, President Gershen met with Dean Taylor and plaintiff to discuss her communications and the chain of command. President Gershen reminded plaintiff to communicate through Dean Taylor for all college business.

         {¶6} On February 13, 2015, with President Gershen's knowledge, Dean Taylor sent plaintiff a "formal written warning" regarding her communication with the president. The letter referenced previous oral and written feedback that Dean Taylor had provided to plaintiff. Dean Taylor stated in the letter, that "[f]ailure to demonstrate immediate and sustained adherence to this directive to not communicate directly with the President, will result in disciplinary action that may include removal as department chair/associate dean." (Taylor's deposition, Exhibit 2.) The warning letter included a signature line for plaintiff to acknowledge that she accepted the terms of the letter. On the day she received the letter, plaintiff sent an email to both Dean Taylor and President Gershen stating that she "reject[ed] this warning" because she had "an essential right" as a faculty member to communicate with the president. (Plaintiffs deposition, Exhibit M.) On February 16, 2015, plaintiff sent a letter to Dean Taylor wherein she discussed her reasons for refusing to sign the acknowledgment statement on the warning letter, including her opinion that the chain of command is "not for mind controlling and communication restriction." (Plaintiff s deposition, Exhibit M.)

         {¶7} On February 18, 2015, Dean Taylor notified plaintiff in writing that her administrative appointments as chair of the Department of Pharmaceutical Sciences and associate dean for the College of Pharmacy were terminated. (Taylor deposition, Exhibit 3.) Dean Taylor explained that plaintiffs duties and responsibilities as a tenured professor would continue in accordance with faculty bylaws. On February 25, 2015, plaintiff sent a document to President Gershen in an attempt to "appeal" the termination of her administrative appointments. (Defendant's Exhibit T-1.) Plaintiff relates that she has not received any response to her attempted appeal.

         Breach of contract, violation of due process

         {¶8} In order to prove breach of contract, plaintiff must prove the existence of a contract; 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.). The construction of written contracts is a matter of law. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, paragraph one of the syllabus (1978). The cardinal purpose for judicial examination of any written instrument is to ascertain and give effect to the intent of the parties. Aultman Hosp. Assn. v. Community Mut. lns. Co., 46 Ohio St.3d 51 (1989). "The intent of the parties to a contract is presumed to reside in the language they chose to employ in the agreement." Kelly v. Medical Life Ins. Co., 31 Ohio St.3d 130, paragraph one of the syllabus (1987).

         {¶9} An employment relationship with no fixed duration is deemed to be at will, which refers to the traditional rule that an employer may terminate the employment relationship at any time, for no cause, or any cause that is not unlawful. Welch v. Finlay Fine Jewelry Corp., 10th Dist. Franklin No. 01AP-508, 2002-Ohio-565; Collins v. Rizkana, 73 Ohio St.3d 65, 67, 1995-Ohio-135. However, the terms of discharge may be altered when the conduct of the parties indicates a clear intent to impose different conditions regarding discharge. Condon v. Body, Vickers & Daniels, 99 Ohio App.3d 12, 18 (8th Dist.1994).

         {¶10} Both parties reference defendant's faculty bylaws for the terms and conditions regarding the termination of plaintiffs administrative appointments. NEOMU's offer letter did not provide any specified duration for plaintiffs employment. (Taylor deposition, Exhibit 1.) The offer letter references the faculty bylaws, which provide that department chairs are at-will employees who serve at the pleasure of their deans. (Plaintiffs deposition, Exhibit 2, §(F)(3).) Furthermore, according to the bylaws, a department dean has the authority and responsibility for "[appointing, evaluating, and removing such assistant, and associate deans, department chairs, and other program administrators and staff needed to carry out the mission and the academic strategic plans of the College." (Emphasis added.) (Id., ยง(E)(c)(x).) Defendant represents that there is no provision for an appeal from such an administrative removal, and plaintiff has not ...


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