George v. Youngstown State Univ.

• Citation: 966 F.3d 446
• Decision Date: 17 July 2020
• Docket Number: No. 19-3581,19-3581
• Parties: John GEORGE, Plaintiff-Appellant, v. YOUNGSTOWN STATE UNIVERSITY; James P. Tressel; Martin A. Abraham; Gregg Sturrus, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

966 F.3d 446

John GEORGE, Plaintiff-Appellant,

v.YOUNGSTOWN STATE UNIVERSITY; James P. Tressel; Martin A. Abraham; Gregg Sturrus, Defendants-Appellees.

No. 19-3581

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2020

Decided and Filed: July 17, 2020

Rehearing En Banc Denied August 19, 2020

OPINION

CLAY, Circuit Judge.

Plaintiff John George, a former professor at Youngstown State University ("YSU"), appeals the district court's grant of summary judgment for Defendants in his employment discrimination and retaliation lawsuit, which he brought under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. After he was previously denied tenure, George filed a discrimination lawsuit against YSU and was reinstated as part of a settlement agreement. But as soon as the university's obligations under the agreement expired, it declined to renew George's contract and terminated his employment. George also applied to several other positions within the university but was rejected. He then again filed suit in federal court.

Following discovery, the district court granted summary judgment in favor of YSU on George's claims, ruling that for each of them, George either failed to show causation, failed to show he was qualified for the job, or failed to show that YSU's claimed reasons for firing (or not hiring) him were pretextual. The court also dismissed one of George's failure-to-hire claims—which arose after this lawsuit was filed—based on an administrative exhaustion requirement. But viewing the evidence in the light most favorable to George reveals a genuine dispute of material fact as to each of the claims he maintains on appeal, and the district court further erred in enforcing the administrative exhaustion requirement because Defendants expressly waived it below. Accordingly, we reverse the district court's grant of summary judgment and remand this case for trial.

BACKGROUND

A. George's Career at YSU and His First Discrimination Lawsuit

John George is a sixty-nine-year-old man with a background in engineering. In the 1970s, George received a Bachelor of Science degree in mathematics (with a physics minor), a Bachelor of Engineering degree in mechanical engineering, and a Master of Science degree in education with a focus on mathematics, all from Youngstown State University. He was also licensed by Ohio to teach grade 7–12 mathematics and physics, but instead worked in engineering-related jobs in the private sector for twenty years.

In 1999, YSU's School of Engineering Technology hired George as an instructor on a one-year term contract, but George then applied for and was hired as a tenure-track assistant professor. A little over five years later, and after obtaining his Professional Engineer license, George applied for tenure. George was supported by the chair of the School of Engineering Technology and a majority of the faculty, but the dean of the College of Engineering and Technology—Cynthia Hirtzel—opposed his application, which was denied by the president of YSU, David Sweet. A three-member tenure appeal committee was formed, which unanimously recommended that George be awarded tenure. But Sweet rejected this recommendation and stuck to his denial of tenure.

Soon after this denial, George says he learned that "this faculty position was one of several earmarked to be filled by minorities only." (George Decl., R. 50-1 at PageID #4600.) According to George, Hirtzel favored a younger African American man for the position, who happened to have been George's former undergraduate student. On December 13, 2006, George filed suit in federal court under both Title VII of the Civil Rights Act and Ohio law for race, sex, and age discrimination.

At around the same time as George's lawsuit, Hirtzel was demoted from her position as dean. A new College of STEM (meaning Science, Technology, Engineering, and Mathematics) was created in place of the College of Engineering and Technology, and Martin Abraham was installed as its dean.

In February 2008, George settled his lawsuit against YSU. Under the settlement agreement, George was reinstated as an assistant professor under a term contract, but could not be fired without "just cause" until the end of the 2011–2012 academic year. (Settlement Agreement, R. 48-3 at PageID #3686.) Even after that, if YSU declined to renew George's contract, it was required to provide George with group medical insurance until he became eligible for Medicare.

B. YSU Does Not Renew George's Term Contract

In August 2008, George returned to YSU and resumed teaching. But even with (or perhaps as a result of) his settlement, George says he was excluded from participation on faculty search committees and was denied his preferred course assignments. Nevertheless, George continued his work and taught general mathematics and physics classes, along with other introductory courses in engineering technology. George also pursued a Doctor of Education at YSU, which he was awarded in 2013. His thesis was on preparing math-deficient students for success in university STEM courses. During this time, George claims he received positive reviews on his work, both from Dean Abraham and the chair of his department, Carol Lamb.

While George's mandatory reinstatement ended in Spring 2012, YSU continued to renew his employment until Spring 2015, at which point Abraham had been promoted to provost and Gregg Sturrus (the former chair of George's tenure appeal committee) was made interim dean of the STEM college. Abraham was aware of George's prior lawsuit because he was tasked with administering the settlement agreement.

At some point after their promotions, Abraham told Sturrus that "whatever years of [George's] reinstatement there were, were finished." (Sturrus Dep., R. 42 at PageID #2895.) Additionally, the two of them discussed the fact that the college was facing budget cuts and so would be "losing term positions," meaning term employees like George. (Id. at #2895–96.) During the discussion, George specifically was mentioned, though other term employees were not. (Id. at #2896.)

In April 2015, George became eligible for Medicare when he turned sixty-five, and therefore YSU was no longer obligated to provide him with medical benefits if they declined to renew his contract. And two weeks later, on April 20, 2015, George was terminated from his position as an assistant professor. George's department chair, Carol Lamb, told him that his contract would not be renewed, and said that Gregg Sturrus (the acting dean) thought he should know. She also said George's firing was "a Martin Abraham decision." (George Decl., R. 50-1 at PageID #4612.) While George stayed on as an adjunct to teach two intro-level classes, this came with the loss of most of his pay and all of his benefits.

In addition to the discussion of his prior settlement and the timing of his Medicare eligibility, George says there are other reasons to believe his firing was retaliatory, or at least that YSU's claimed reason of budget cuts was pretextual. First, George says that Abraham repeatedly tried to shift the blame for George's firing. In an affidavit submitted to the EEOC, Abraham said that both he and Sturrus jointly determined "that the School of Engineering Technology could not sustain Dr. George's position and salary in light of budgetary concerns." (Abraham Aff., R. 48-13 at PageID #3787.) But at his deposition, Sturrus denied this, said he had recommended that George's contract be renewed, and that the decision to fire him was Abraham's alone. At his own deposition, Abraham then appeared to say that Carol Lamb—George's department chair—made the decision to terminate him, and that Abraham merely approved it. But Lamb said she was never consulted about George's firing, and only found out about the decision after the fact.

Second, George disputes YSU's claimed budgetary need to fire him. While Abraham said that George's termination was necessitated by the return of another professor from a period of unpaid leave, George points to evidence suggesting that other term instructors had been covering that professor's courses, and that George's area of teaching did not overlap with that of the returning professor. One of those other term professors told George that "he was really concerned about his position" if the professor on leave returned, but that professor was renewed and George was let go. (George Decl., R. 50-1 at PageID #4616.) Of the term faculty members in his department, all (including George) were recommended for renewal, but George was the only one who was terminated. The college also had several faculty retirements and stable enrollment.¹

C. YSU Refuses to Hire George for Other Positions

Despite the nonrenewal of his contract, George continued to apply for teaching and administrative jobs at YSU. In the summer of 2015, George applied to be the Director of Dual Enrollment and Student Support Services in the math department. But instead of George, YSU hired Julie Seitz, a woman in her forties. According to Defendants, this was because George was not qualified for the position, which required a master's degree in mathematics. George maintains that he was qualified for the job based on his other credentials, including his bachelor's degree in math, his master's degree and doctorate in education (with the first having a concentration in mathematics), and his mathematics teaching license.

The chair of the three-person search committee said that they did not consider George because he lacked a master's degree in math, regardless of his other qualifications. Two members of the search committee said this was because without a master's in mathematics, whoever became the director would have a lower level of math education than that of the teachers she would be supervising. The third committee member did not speculate as to a reason for the requirement, but in any event maintained that it was set in stone.

For his part, George points to...