United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. Pearson, United States District Judge.
before the Court is Defendants Marcia Matanin, James Tressel,
Martin Abraham, Charles Howell, Kevin Reynolds, Cynthia
Kravitz, and Ken Learman's Motion for Judgment on the
Pleadings. ECF No. 48. Plaintiff Bobby Ojose has responded. ECF
No. 67. Defendants have filed a reply. ECF No. 68. The Court
converts Defendants' motion from a Rule 12 motion to a
Rule 56 motion. For the reasons that follow, the Court grants
Defendants' motion in part.
an African-American, began working as an Assistant Professor
in Youngstown State University's Department of Teacher
Education in July 2013. ECF No. 39 at PageID #: 297. During
that time, he published a book, wrote four peer-reviewed
articles, and gave multiple conference presentations.
all relevant times, Defendants' roles at YSU were as
follows. Dr. Marcia Matanin chaired the Department of Teacher
Education at YSU. Charles Howell was Dean of the Beeghly
College of Education at YSU. (The Department of Teacher
Education is part of the Beeghly College of Education.)
Howell reported to Provost and Vice President of Academic
Affairs Dr. Martin Abraham, who, in turn, served under
President James Tressel. Kevin Reynolds was YSU's Chief
Human Resources Officer. Cynthia Kravitz was director of
YSU's Office of Equal Opportunity and Policy Development.
Ken Learman chaired YSU's Professional Conduct Committee.
of his work at YSU, Plaintiff participated in drafting the
2013-14 SPA Report that YSU professors submitted to the
National Council of Teachers of Mathematics. Id. at
PageID #: 298. In September 2015, Marcia Matanin, chair
of the Department of Teacher Education and a contributor to
the SPA Report, initiated charges against Plaintiff with the
Professional Conduct Committee for falsifying data in the SPA
Report. Id. Plaintiff alleges that Matanin met with
Charles Howell and Ken Learman, chair of the Professional
Conduct Committee. Id.
December 14, 2015, the Committee issued its final report,
finding that “there was sufficient evidence to support
the allegation of “creation and falsification” of
assessment data provided in a formalized Specialized
Professional Association (SPA) report to the National Council
of Teachers of Mathematics (NCTM).” ECF No. 48-12 at
PageID #: 428. The Committee found that “[t]here was
evidence that an addendum used to create assessment data was
provided in the SPA report, but no evidence of how the
addendum was implemented on any cohort of students.”
Id. Additionally, the Committee found evidence that
Plaintiff submitted those materials to Matanin on August 18,
2015, but there was no evidence that Plaintiff was
“instructed, encouraged, or coerced into creating
assessment data that did not exist.” Id.
January 8, 2016, Plaintiff submitted a letter of appeal to
Tressel. ECF No. 67-102. On February 3, 2016, Learman asked
Tressel if Plaintiff had appealed the Professional Conduct
Committee's report. Tressel, in turn, asked Abraham to
respond to Learman's question. ECF No. 67-109. The
following day, Abraham wrote to Learman that “[t]o the
best of our knowledge, Prof. Ojose has not filed an
appeal.” Id. at PageID #: 1491.
of the review process in the Department of Teacher Education,
the department chairperson evaluates the professors in the
department. In each evaluation, the chairperson rates the
professor on three categories: teaching, scholarship, and
university service. In each category, the chairperson assigns
the professor one of five ratings: “very weak, ”
“weak, ” “satisfactory, ”
“strong, ” and “very strong.”
evaluation for the 2014-15 academic year, Plaintiff received
ratings of “weak” in teaching,
“strong” in scholarship, and
“satisfactory” in university service. ECF No.
48-2 at PageID #: 388. Matanin explained that three students
contacted her to discuss issues regarding Plaintiff related
to his communication, professionalism, and grading. Id.
at PageID #: 389. One student engaged in a dispute with
Plaintiff regarding handing in an assignment. The student
mistakenly claimed she submitted the assignment, when in
reality, the email was stuck in her outbox. ECF No. 48-3 at
PageID #: 408. She described the mix-up as a “simple
technology error.” Id. Plaintiff, on the other
hand, characterized the episode as “a plain case of a
student lying, ” and told the student that he
“get[s] uncomfortable when students tell stupid
lies.” ECF No. 48-3 at PageID #: 408-09 (emphasis
addition, Plaintiff summarized evaluation data on twelve
individuals, three African-American and nine Caucasian. ECF
No. 67-6. Eleven of those individuals received evaluations
from the chairperson. No Caucasian professor received a
rating below “satisfactory, ” and each of the
three African-American professors received at least one
rating of “weak.” Two of the African American
professors, Deborah Graham and Betty Green, each received one
rating of “very weak.” No African American
professor received a rating of “very strong, ”
whereas seven of eight Caucasian professors received at least
one rating of “very strong.”
October 8, 2015, Plaintiff emailed a letter to Tressel and
Abraham, in which he claimed that Matanin was giving him
lower scores on his evaluations than similarly-situated
Caucasian professors and that Howell and Matanin were trying
to make him the fall guy for the SPA report. ECF No. 48-7.
Abraham forwarded the email to Cynthia Kravitz, director of
YSU's Office of Equal Opportunity and Policy Development.
ECF No. 48-8.
was not a tenured member of the YSU faculty. He was, however,
a probationary employee, on the tenure track. Prior to
applying for tenure, a tenure-track employee must complete a
pre-tenure review. ECF No. 67-2 at PageID #: 646-47.
Plaintiff planned to turn in the paperwork to begin his
pre-tenure review by February 2016. ECF No. 67-3.
October 28, 2015 Howell informed Plaintiff that he intended
to recommend that Plaintiff not be reappointed as a
tenure-track employee. ECF No. 67-4. On November 1, 2015,
Plaintiff emailed various individuals a copy of his letter of
resignation. ECF No. 67-5. The resignation was effective at
the end of the 2015-16 Academic Year. Id. at PageID #:
655. The day after Plaintiff emailed the letter, Kevin
Reynolds, Chief Human Resources Officer at YSU, accepted
Plaintiff's resignation. ECF No. 48-10.
Plaintiff filed this action. In his Second Amended Complaint,
Plaintiff brings seven claims. ECF No. 39. Count I is a Due
Process claim. Counts II and III are Equal Protection claims.
Counts IV through VII allege violations of Ohio law.
Plaintiff brings this action against seven Defendants:
Matanin, Howell, Tressel, Abraham, Reynolds, Kravitz, and
have filed an Answer (ECF No. 46) and a Motion for Judgment
on the Pleadings (ECF No. 48).
Conversion to a Motion for Summary Judgment
Court exercises its authority under Fed.R.Civ.P. 12(d) to
treat Defendants' Rule 12 motion as one for summary
judgment under Rule 56. The Court informed the parties during
the November 13, 2017 telephonic status conference that,
based on discussions had so far, it was considering
converting Defendants' motion. The status conference
occurred before briefing on the motion was complete.
Plaintiff eventually filed a memorandum in opposition which
included 122 exhibits. Following Plaintiff's opposition,
Defendants filed their reply. Defendants chose not to attach
any documentary evidence to its reply (or seek leave to
supplement its motion), even though the Court had indicated
that it was considering converting the motion and Plaintiff
had attached voluminous amount of documents in its response.
Thus, the Court has met Rule 12(d)'s requirement that the
parties receive “a reasonable opportunity to present
all the material that is pertinent to the motion.”
Standard of Review
judgment is appropriately granted when the pleadings, the
discovery and disclosure materials on file, and any
affidavits show “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see
also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir.
2005). The moving party is not required to file affidavits or
other similar materials negating a claim on which its
opponent bears the burden of proof, so long as the movant
relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and
admissions on file. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The moving party must “show that
the non-moving party has failed to establish an essential
element of his case upon which he would bear the ultimate
burden of proof at trial.” Guarino v. Brookfield
Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).
the movant makes a properly supported motion, the burden
shifts to the non-moving party to demonstrate the existence
of genuine dispute. An opposing party may not simply rely on
its pleadings. Rather, it must “produce evidence that
results in a conflict of material fact to be resolved by a
jury.” Cox v. Ky. Dep't. of Transp., 53
F.3d 146, 150 (6th Cir. 1995). The non-moving party must, to
defeat the motion, “show that there is doubt as to the
material facts and that the record, taken as a whole, does
not lead to a judgment for the movant.”
Guarino, 980 F.2d at 403. In reviewing a motion for
summary judgment, the court must view the evidence in the
light most favorable to the non-moving party when ...