Feerasta v. The Univ. of Akron, 2020-00617JD

CourtCourt of Claims of Ohio
Writing for the CourtPATRICK E. SHEERAN JUDGE
Citation2022 Ohio 653
Decision Date25 January 2022
Docket Number2020-00617JD




No. 2020-00617JD

Court of Claims of Ohio

January 25, 2022

Sent to S.C. Reporter 3/7/22

Robert Van Schoyck Magistrate Judge



{¶1} On September 10, 2021, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff filed a response on September 23, 2021. Defendant filed a reply on October 7, 2021. Plaintiff filed a sur-reply, with leave of court, on November 29, 2021. The motion is now before the court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4(D).

{¶2} Civ.R. 56(C) states, in part, as follows:

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, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).


{¶3} There is no dispute that, as set forth in the complaint, plaintiff began working for defendant in 2000 and later became a tenured professor in the Bachelor of Organizational Supervision program within the Business and Information Technology Department. (Complaint, ¶ 3, 5, 9.) Plaintiff went on medical leave during the spring semester of 2020 to undergo cardiac surgery. (Id. at ¶ 11.) On July 16, 2020, plaintiff was notified that he was among 96 full-time faculty members whose employment was terminated by defendant as part of a reduction in force (RIF). (Id. at ¶ 16, 20.) Plaintiff, who was 68 years old at the time he filed his complaint, claims that the termination of his employment constituted unlawful discrimination on the basis of both age and disability.


{¶4} Count I of the complaint raises a claim of age discrimination in violation of R.C. 4112.01, et seq.

{¶5} "R.C. 4112.02(A) provides that '[i]t shall be an unlawful discriminatory practice * * * [f]or any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.'" Nelson v. Univ. of Cincinnati, 2017-Ohio-514, 75 N.E.3d 1304, ¶ 31 (10th Dist.). Additionally, "[t]he Supreme Court [of Ohio] has explained, 'we have determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112.'" Brown v. Corr. Reception Ctr., 2020-Ohio-684, 146 N.E.3d 621, ¶ 21 (10th Dist.), quoting Little Forest Med. Ctr v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610, 575 N.E.2d 1164 (1991).

{¶6} "In order to prevail in [an] employment discrimination case, [a plaintiff] must prove discriminatory intent and may establish such intent through either direct or indirect


methods of proof." Ray v. Ohio Dept. of Health, 2018-Ohio-2163, 114 N.E.3d 297, ¶ 23 (10th Dist.). In this case, plaintiff maintains that discriminatory intent may be established through the indirect method of proof. (Response, p. 8).

{¶7} A plaintiff "may indirectly establish discriminatory intent using the analysis promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) * * *." Brehm v. MacIntosh Co., 10th Dist. Franklin No. 19AP-19, 2019-Ohio-5322, ¶ 14. "To establish a prima facie case of age discrimination, a plaintiff must show: '(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.'" Blizzard v. Marion Tech. College, 698 F.3d 275, 283 (6th Cir.2012), quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

{¶8} Ohio courts, "including [the Tenth District Court of Appeals], have held that a RIF 'necessarily requires modification of the indirect method of proof and establishing a prima facie case by modifying the fourth element under * * * McDonnell Douglas.'" Kundtz v. AT&T Solutions, Inc., 10th Dist. Franklin No. 05AP-1045, 2007-Ohio-1462, ¶ 21, quoting Dahl v. Battelle Mem. Inst, 10th Dist. Franklin No. 03AP-1028, 2004-Ohio-3884, ¶ 15. Therefore, "in cases of a termination due to a RIF, 'an age discrimination plaintiff carries a greater burden of supporting allegations of discrimination by coming forward with additional evidence, be it direct, circumstantial, or statistical, to establish that age was a factor in the termination.'" Id. "The purpose of requiring the plaintiff to introduce additional evidence in RIF cases 'is to ensure "there is a chance that the work force reduction is not the reason for the termination."'" Pettay v. DeVry Univ., Inc., 10th Dist. Franklin No. 19AP-762, 2021-Ohio-1380, ¶ 23, quoting


Mittler v. OhioHealth Corp., 10th Dist. Franklin No. 12AP-119, 2013-Ohio-1634, ¶ 33, quoting Woods v. Capital Univ., 10th Dist. Franklin No. 09AP-166, 2009-Ohio-5672, ¶ 57.

{¶9} "Once a plaintiff establishes a prima facie case of disability discrimination, 'the burden then shifts to the employer to set forth some legitimate, nondiscriminatory reason for the action taken.'" Dalton v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-827, 2014-Ohio-2658, ¶ 27, quoting Hood v. Diamond Prods., Inc., 74 Ohio St.3d 298, 302, 658 N.E.2d 738 (1996). "The defendant must then offer a legitimate explanation for its action. If the defendant satisfies this burden of production, the plaintiff must introduce evidence showing that the proffered explanation is pretextual. Under this scheme, the plaintiff retains the ultimate burden of persuasion at all times." Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186-1187 (6th Cir.1996).

{¶10} In its motion for summary judgment, defendant does not dispute that plaintiff is a member of the protected class, that his position was eliminated, and that he was qualified for his position; however, defendant asserts that plaintiff cannot establish the fourth element of the prima facie case because he was neither replaced, nor were substantially younger employees retained by the elimination of his position.

{¶11} Plaintiff, on the other hand, argues that there are circumstances which permit an inference of age discrimination.

{¶12} First, plaintiff cites the testimony of Stan Smith, who served as Acting Chair of the Business and Information Technology Department from approximately February 2020 through June 2020 and thus served as plaintiffs supervisor during that time. According to plaintiff, Smith "was clearly untruthful in his testimony surrounding the reduction in force process", particularly to the extent that he "did not know who his supervisor was" when the RIF occurred. (Response, p. 9.) In his deposition, Smith explained that as Acting Chair he initially reported to Michael Johanyak, who was Acting


Dean of the College of Applied Science & Technology. Smith stated that after Johanyak retired sometime that winter, there were various changes afoot due to a pending reorganization of departments and then he started working from home due to the COVID-19 pandemic and no one ever specifically told him who his new supervisor was; but, he understood that Johanyak was replaced by Interim Chair Sukanya Kemp, he would assume that he was supposed to report to Kemp, and indeed Kemp was the administrator with whom he dealt following Johanyak's retirement. (Smith Depo., pp. 26-31.) Thus, the evidence demonstrates that Smith reported to Kemp after Johanyak's retirement, and, even if Smith was uncertain about Kemp officially being his supervisor, it is not clear how this would make it any more or less likely that the RIF was not the reason for plaintiffs position being abolished.

{¶13} Plaintiff also asserts that "[i]t is challenging to believe" that Smith was not involved in the RIF. (Response, p. 9.) In his deposition, though, Smith denied having any involvement in choosing whose positions would be abolished in the RIF, he denied having any knowledge of the criteria used for those determinations, and, moreover, he stated that he only learned of the RIF from media reports. (Smith Depo., pp. 16-17.) Kemp, in her deposition, also stated that Smith was not a decisionmaker in the RIF process. (Kemp Depo., p. 22.) Joseph Urgo, who served as Interim Provost before becoming Acting Dean of the College of Arts & Sciences in May 2020, testified that he spoke with Kemp about the RIF process, but not Smith. (Urgo Depo., p. 24.) Plaintiff does not identify evidence to contravene Smith, Kemp, and Urgo's testimony in this regard.

{¶14} Plaintiff also asserts that an inference of age discrimination can be drawn from Smith and Kemp questioning him about potentially retiring. In his deposition, plaintiff stated that when he came back from his medical leave and spoke to Smith, Smith asked how he was doing, if he was available to teach, and if he was considering retirement.



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