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Grubach v. University of Akron

Court of Claims of Ohio

April 1, 2019


          Sent to S.C. Reporter 6/14/19

          Holly True Shaver Magistrate Judge.



         {¶1} On November 27, 2018, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). With leave of court, on January 31, 2019, plaintiff filed a response in opposition.[1] With leave of court, on February 14, 2019, defendant filed a reply. The motion for summary judgment is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D). Depositions of the following individuals were submitted: Paul Grubach, Stephen Weeks, Hazel Barton, Anne Wiley, Randy Mitchell, Peter Lavrentyev, and Zhong-Hui Duan.

         {¶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, 661, 2004-Ohio-7108, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).


         {¶4} In June 2014, plaintiff contacted Dr. Stephen Weeks via email to inquire about defendant's Integrated Bioscience (IB) PhD program in Biology. (Defendant's Exhibit A.)[2] Plaintiff had previously obtained a Master's Degree in Biology, and had written publications in the areas of ichthyology and ecology. After a series of email with Dr. Weeks, in August 2014, plaintiff began his studies at defendant in the IB doctoral program. When plaintiff started the IB program, he was 61 years old.

         {¶5} Pursuant to the IB Graduate Student Handbook (IB Handbook), prior to the completion of the first semester of graduate work, the IB graduate student must choose a major advisor, and the student's PhD Advisory Committee, consisting of at least four faculty members, is to work with the student to prepare and approve a Program of Study. (Defendant's Exhibit E, ¶¶ F, G.) Plaintiff chose Dr. Weeks to be his major advisor because of his expertise in clam shrimp. (Defendant's Exhibit A.) Plaintiff selected Dr. Randy Mitchell, Dr. Zhong-Hui Duan, Dr. Anne Wiley, and Dr. Peter Lavrentyev as his PhD Advisory Committee members, along with Dr. Weeks, who served as committee chair.

         {¶6} As a condition of his enrollment in the IB program, plaintiff also served as a Teaching Assistant (TA), where he was paid a bi-weekly stipend during the academic year. (Plaintiff's Exhibit 25.) It is undisputed that plaintiff was described as an outstanding teacher and a good researcher.

         {¶7} Pursuant to the IB Handbook, the student is required to meet with the PhD Advisory Committee at least once per year to present a progress report. The student's proposed Program of Study, Doctoral Candidacy Exam and Research Proposal Defense are to be administered by the PhD Advisory Committee no later than the beginning of the third year of residency. (Defendant's Exhibit E, ¶ G.) The IB program curriculum is to be individually tailored to each student's research interests and built around a set of core courses, elective courses, seminar courses, and dissertation research. (Id., ¶ H.) A student is considered a PhD candidate only after having passed the Doctoral Candidacy Examination and the Research Proposal Defense. (Id., ¶ I.) Potential student grievances regarding a student's candidacy are handled according to the specific grievance procedures outlined in the Graduate Student Bulletin. (Id.)

         {¶8} Per the IB Handbook, the comprehensive written examination "shall be administered by the PhD Advisory Committee before the beginning of the 5th semester." (Id., ¶ J.) The IB Handbook also states: "No topic shall be specifically excluded from the examination. There shall be only two possible outcomes of the examination, determined by a majority vote of the PhD Advisory Committee: Pass or Fail. The Examination will consist of two parts: a written exam that, if passed, is followed by an oral exam. If the student fails either of the exams, they will be given one chance to retake the entire exam A student cannot fail more than one exam (i.e., cannot fail the written, pass on the second try, and then fail the oral.) Failure to pass the make-up exam or failing more than one exam results in dismissal from the program. A brief written report shall be prepared by the Advisor as chair of the PhD Advisory Committee outlining the results of all examinations, regardless of the outcome. This report, indicating areas of both strengths and weakness, will be distributed to the student, the student's PhD Advisory Committee, and the Integrated Bioscience Program Director within one week of the examination." (Emphasis added.) (Id., ¶ J.)

         {¶9} Plaintiff took his written comprehensive exam in July 2016. Each advisory committee member wrote their own questions, graded the answers, and individually determined a grade of pass or fail. On July 26, 2016, Dr. Weeks sent the committee members the following email:

         {¶10} "Please get me your scores by the end of the week. I will need to report two things to [plaintiff]:

1) An overall scoring of 'pass' or 'fail' for your portions of the writtens. That can be determined however you see fit. Everyone had multiple questions, so you will need to determine whether [plaintiff] did an acceptable job across all your questions. You can weight questions equally or differently as you see fit.
2) "A short overview of how [plaintiff] did, which includes both positives and negatives in his performance. If you believe he failed the writtens, please think about how much specific feedback you want to give [plaintiff] in case you will be asking him a similar set of questions for his second attempt (i.e., don't 'telegraph' exactly what he should have said on your various questions if you think you will ask him the same or similar questions for round 2)." (Defendant's Exhibit G.)

         {¶11} Drs. Weeks and Mitchell both rated plaintiff as "fail." Drs. Wiley and Duan both rated plaintiff as "overall pass."

         {¶12} Dr. Lavrentyev's initial response to Dr. Weeks was the following:

         {¶13} "I have reviewed Paul's written exam now. I did expect a deeper understanding and more work at the PhD level, particularly given the fact that the exam was open-book. However, I accept his answers as satisfactory. So he passes the exam.

         {¶14} "Specifically, Paul is a bit shaky on some key ecological concepts such as meta-population and trophic cascades. While his answers are not wrong per se, they are verbose, generic, and not very precise. This is especially true about the second question (eco-physiology). The literature sources he used are few and mostly dated. He also needs to learn how to build and test research hypotheses (third question). * * * (Defendant's Exhibit G.)

         {¶15} Dr. Weeks responded with the following message: "BTW - I just wanted to let you know that both Randy and I failed Paul on our portions of the written exams. It was for the exact same reason that you noted: he did not show a deep understanding of the material. Thus, if you really feel that his understanding of the topic(s) on your questions weren't up to the level expected of a PhD student, please don't feel that you would be 'the bad guy' if you failed him. Let me know if you think he really showed an acceptable level of understanding for your questions." (Id.) Dr. Lavrentyev then replied: "I hate to reverse my own evaluation, but I didn't know that passing/failing could be done separately for different questions. While his first answer was OK, the second and third were pretty weak. I just don't know whether he didn't take the exam seriously enough or it is the true measure of his abilities * * * (Id.) Dr. Weeks responded: "You can score it however you deem appropriate. Both Randy and I scored each question separately and then came up with the overall score for the exam. It was easy for the two of us because he failed all 3 questions for both of us, so he naturally failed the entire exam for both Randy and myself.

         {¶16} "If you think he passed one question and failed two others, then you need to decide if all 3 questions were equally important. If so, then he failed the entire exam. On the other hand, if the one question he passed is much more important than the other two, then you would have to make a judgment call as to whether he should pass the exam overall.

         {¶17} "It is fine to 'reverse' your decision, if you feel he did poorly. From your message below, if you are questioning whether he 'took it seriously enough,' to me that suggests you believe he didn't do well enough to pass? If you feel that way, then that is how you should score his performance. * * * (Id.)

         {¶18} Dr. Lavrentyev replied:

         {¶19} "In this case, I think he should redo the 2nd and 3rd questions to pass." (Id.)

         {¶20} On July 28, 2016, Dr. Weeks wrote to the committee members that plaintiff "passed two but failed three of the written exams, and thus he failed overall." (Defendant's Exhibit H.) Dr. Weeks stated in his email to the committee members that he would tell plaintiff that he "needs to 'regroup' and talk to his committee members about how he performed and what the committee members think he should do to prepare for a second round of the exam." (Id.) When Dr. Weeks met with plaintiff, he and plaintiff got into a heated discussion of plaintiff's examination performance and his progress in the PhD program. Plaintiff no longer wanted Dr. Weeks to be his major advisor. On August 18, 2016, Dr. Weeks emailed plaintiff and stated the following:

         {¶21} "I am now emailing you as the Director of the IB program. We have been keeping closer oversight on our IB students going forward to attempt to keep them on track in their degree. As you hopefully know, you have 5 years of funding in the PhD program as long as you are making sufficient progress towards your degree. After that ...

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