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McKeny v. Ohio University

Court of Appeals of Ohio, Tenth District

November 16, 2017

Timothy Scott McKeny, Ph.D., Plaintiff-Appellant,
Ohio University, Defendant-Appellee.

         APPEAL from the Court of Claims Ct. of Cl. No. 2014-00984 of Ohio.

         On brief:

          Farlow & Associates, LLC, Beverly J. Farlow, Paul F Rogers, and Zachary S. Gwin, for appellant.

          Michael DeWine, Attorney General, Randall W. Knutti, Richard N. Coglianese, and Erin E. Butcher, for appellee.


          Zachary S. Gwin.

          Randall W. Knutti.


          LUPER SCHUSTER, J.

         {¶ 1} Plaintiff-appellant, Timothy Scott McKeny, Ph.D., appeals from a judgment entry of the Court of Claims of Ohio rendering judgment in favor of defendant-appellee, Ohio University ("OU") on McKeny's breach of contract and contractual due process claims. For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} In 2006, OU hired McKeny as an assistant professor in the Department of Teacher Education in a "tenure track" position. Pursuant to the April 28, 2006 letter offering McKeny employment, McKeny's position on the OU faculty was subject to a probationary period not to exceed seven years, and OU would conduct McKeny's tenure review in the 2011-2012 academic year. Any tenure granted to McKeny would become effective the beginning of the year following his successful tenure review. On October 31, 2007, McKeny confirmed in writing that OU would make his tenure decision no later than June 30, 2012 and that his probationary period would end on June 30, 2013.

         {¶ 3} The OU Faculty Handbook ("the handbook") details the standards candidates for tenure must meet. The handbook states at II(C)(6)(a) that "[t]enure is awarded to those individuals whose records indicate that they are likely to continue to make significant positive contributions to the academic life of the University throughout their professional careers." (Pl.'s Dep. Ex. 15, Handbook at 21.) If OU does not intend to retain a faculty member past the probationary period, the handbook requires OU to provide written notification at least one year before the end of the probationary period. The handbook requires department chairs to evaluate annually each probationary faculty using the department's criteria for promotion and tenure. However, the handbook explicitly states that "[although these evaluations may be indicators of progress toward tenure and promotion, favorable annual reports do not guarantee positive tenure or promotion decisions." (Pl.'s Dep. Ex. 15, Handbook II(E)(3)(a) at 32.)

         {¶ 4} The handbook further states "[a]ll awards of tenure and all promotions in rank must originate in a positive recommendation by the appropriate departmental committee or after a formal hearing and presidential review in cases that have gone through the grievance procedure as in Section II.F." (Pl.'s Dep. Ex. 15, Handbook II(E)(5) at 32.) The chair of the departmental promotion and tenure committee must put the department's recommendation in writing, and, if the recommendation is to grant tenure, the chairperson then forwards the committee's recommendation to the dean along with the chairperson's personal recommendation.

         {¶ 5} If the dean rejects the department's recommendation, he or she must inform the committee in writing along with an explanation of why the dean did not accept the recommendation. A dean's rejection of a tenure recommendation ends the process unless the faculty member appeals the dean's decision. A faculty member must originate an appeal at the level at which the adverse decision was made "either within the department, or at the level of the dean or of the Executive Vice President and Provost." (Pl.'s Dep. Ex. 15, Handbook II(F)(1) at 34.) Further, "[s]hould the appeal be denied at any of these levels, the faculty member may take the appeal to the next level." (Pl.'s Dep. Ex. 15, Handbook II(F)(1) at 35.) The "levels" of appeal include the department, the dean, the provost, the Senate Standing Committee on Promotion and Tenure of the OU Faculty Senate (the "Standing Committee"), and ultimately the president, who makes the "final decision." (Pl.'s Dep. Ex. 15, Handbook II(F)(7)(g) at 39.)

         {¶ 6} In November 2011, McKeny submitted a tenure and promotion dossier to his department's promotion and tenure committee. Both the committee and the department chair recommended to the dean of OU's College of Education and Human Services ("College of Education") that OU award McKeny tenure. However, the dean of the College of Education, Renée Middleton, denied McKeny's application for promotion and tenure, finding that while McKeny's teaching and outreach had been "exemplary, " McKeny had too few publications and an insufficient record of sustained scholarship. (Pl.'s Dep. Ex. 41 at 3.) McKeny's dossier listed only one published monograph and one published peer-reviewed article, with several more "in review" or "in press." (Pl.'s Dep. Ex. 29.)

         {¶ 7} McKeny appealed Dean Middleton's denial of his tenure application, asserting that since the time he submitted his tenure dossier, he had more potential publications in the review process. In a June 8, 2012 letter, Dean Middleton denied his appeal, again noting his lack of scholarship. Dean Middleton noted that in McKeny's first faculty evaluation in 2007, it was "strongly recommended" that he work in the area of referred journals rather than grant work. (Pl.'s Dep. Ex. 45 at 1.) Additionally, in 2010, the tenure and promotion committee informed McKeny his scholarship did not meet expectations. In denying his appeal, Dean Middleton stated "[t]he body of your work you are submitting is either under review, or in press, " and noted that although McKeny demonstrated a "flurry of activity" in 2011, he nonetheless exhibited a lack of sustained scholarship throughout his probationary period with OU. (Pl.'s Dep. Ex. 45 at 4.)

         {¶ 8} On September 4, 2012, McKeny appealed Dean Middleton's decision denying his appeal to OU's provost, Pam Benoit. Provost Benoit also denied McKeny's appeal, finding no evidence of inadequate consideration or of due process violations. McKeny appealed from the provost's decision on November 14, 2012 to the Standing Committee. The Standing Committee endorsed McKeny's appeal and returned the case to Dean Middleton for reconsideration. However, on January 28, 2013, Dean Middleton denied McKeny's reconsidered appeal, again reiterating the lack of sustained scholarship.

         {¶ 9} McKeny appealed from Dean Middleton's third denial of his appeal to the Standing Committee on February 20, 2013, and the Standing Committee referred the matter to Provost Benoit. In an April 29, 2013 letter, Provost Benoit denied McKeny's appeal, concluding Dean Middleton "acted within her purview on the issue of college research expectations and that there is not sufficient evidence to suggest that your bid for tenure and promotion was subject to inadequate consideration in the area of scholarly productivity." (Pl.'s Dep. Ex. 55.) Following Provost Benoit's denial of his appeal, the Standing Committee granted McKeny a hearing before a Special Senate Committee of faculty.

         {¶ 10} The Special Senate Committee conducted a hearing on October 24, 2013 and recommended, in a November 1, 2013 letter, that McKeny's appeal be upheld and he be granted tenure and promotion. In its decision, the Special Senate Committee noted that the "only binding document governing tenure and promotion is the department's Policy 60.111." (Pl.'s Dep. Ex. 59, Hearing Report at 2.) The Special Senate Committee determined Policy 60.111 defines "scholarship" more broadly than Dean Middleton, who relied solely on publication to assess scholarship.

         {¶ 11} Pursuant to section II(F) of the handbook, the Special Senate Committee made its recommendation to OU's president, Roderick J. McDavis, for a final determination on McKeny's appeal. However, in a November 26, 2013 letter, President McDavis denied McKeny's appeal. President McDavis noted McKeny had been repeatedly advised throughout his time at OU that he needed a stronger record of journal publications, and President McDavis concluded that the department's emphasis on the importance of peer-reviewed publications is not inconsistent with Dean Middleton's assessment of his scholarship. President McDavis also noted that the two outside reviewers nominated by the Tenure and Promotion Committee both recommended against granting McKeny tenure due to his insufficient level of scholarship. In a December 20, 2013 letter to the chair of the Faculty Senate, President McDavis indicated he again reviewed the materials related to McKeny's appeal and stated he is "standing by [his] original decision to deny the appeal." (Pl.'s Dep. Ex. 61 at 3.)

         {¶ 12} On December 18, 2014, McKeny filed a complaint with the Court of Claims of Ohio against OU asserting claims of breach of contract, violation of contractual due process, sexual orientation discrimination, violations of R.C. 4112.02 and 4112.99, interference with prospective advantage, civil conspiracy, and infliction of emotional distress. The claims all related to OU's denial of McKeny's application for promotion and tenure. Along with his complaint, McKeny filed a motion requesting a hearing to determine whether Dean Middleton, Provost Benoit, and President McDavis were entitled to statutory immunity. That same day, McKeny also filed a related complaint in the United States District ...

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