Sent
to S.C. Reporter 6/14/19
Holly
True Shaver Magistrate Judge.
DECISION
PATRICK M. MCGRATH 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).
Facts
{¶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 ...