Jiashin Wu v. Ne. Ohio Med. Univ.

• Decision Date: 25 June 2019
• Docket Number: No. 18AP-656,18AP-656
• Citation: 2019 Ohio 2530,140 N.E.3d 100
• Parties: Jiashin WU, Plaintiff-Appellant, v. NORTHEAST OHIO MEDICAL UNIVERSITY, Defendant-Appellee.
• Court: Ohio Court of Appeals

140 N.E.3d 100

2019 Ohio 2530

Jiashin WU, Plaintiff-Appellant,

v.NORTHEAST OHIO MEDICAL UNIVERSITY, Defendant-Appellee.

No. 18AP-656

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on June 25, 2019

On brief: Fan Zhang, Ltd., and Fan Zhang, Holland, for appellant. Argued: Fan Zhang.

On brief: Dave Yost, Attorney General, and Velda K. Hofacker, for appellee. Argued: Velda K. Hofacker.

DECISION

LUPER SCHUSTER, J.

{¶ 1} Plaintiff-appellant, Jiashin Wu, Ph.D., appeals from a judgment of the Court of Claims of Ohio granting the motion for summary judgment filed by defendant-appellee, Northeast Ohio Medical University ("NEOMED"). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} In June 2017, Dr. Wu initiated this action against NEOMED alleging claims of breach of contract, discrimination, retaliation, and harassment. These claims arose from Dr. Wu's employment with NEOMED that began in January 2014 and ended in June 2017.

{¶ 3} In January 2014, Dr. Wu began to work as a consultant in NEOMED's College of Pharmacy in conjunction with the recruiting and hiring of his wife, Min You, Ph.D., as department chair, associated dean for research, in the College of Pharmacy's Department of Pharmaceutical Sciences. Pursuant to the consulting agreement, NEOMED paid $7,500 per month to Dr. Wu to assist Dr. You in the transfer of her research laboratory and enterprise to NEOMED's campus. In September 2014, Dr. Wu became a non-tenure track associate professor in the Department of Pharmaceutical Sciences, with an annual base salary of $90,000. As a faculty member, Dr. Wu's direct supervisor would have been the department chair, but because Dr. Wu's wife held that position at the time he was hired, the vice dean of NEOMED's College of Pharmacy, Richard Kasmer, Pharm.D., J.D., was Dr. Wu's direct supervisor. In addition to being an associate professor, Dr. Wu was appointed as the director of both international collaboration and research services in the College of Pharmacy. In those administrative roles, Dr. Kasmer also served as Dr. Wu's direct supervisor. In February 2015, Steven Schmidt, Ph.D., replaced Dr. You as the department chair. As a faculty member and director of research services, Dr. Wu began to report to Dr. Schmidt, and for his duties as the director of international collaboration, Dr. Wu continued to report to Dr. Kasmer.

{¶ 4} In the fall of 2015, NEOMED's College of Pharmacy leadership decided to create a research focus area, the college's first, concerning neurodegenerative diseases

, such as Alzheimer's, Parkinson's, and aging. As the department chair and associate dean of research, Dr. Schmidt was tasked with determining how to best align and allocate existing resources in connection with the creation of the new research focus area. Dr. Schmidt determined that almost all department faculty members were either tenure track, non-tenure track with grant funding, or had skills that aligned with the new research focus area. The exception was Dr. Wu, who was a non-tenure track professor, was funded by the college, and had an area of expertise (cardiology) that did not align with the research focus area. Dr. Schmidt also found that Dr. Wu's teaching and service efforts could be fulfilled by other faculty. Thus, Dr. Schmidt concluded that the college funds financing Dr. Wu's employment should be reallocated to support and implement the new research focus area. Consequently, Dr. Schmidt advised Dr. Kasmer that the dean of the college, Charles Taylor, Pharm.D., should issue to Dr. Wu a notice of non-reappointment pursuant to NEOMED's bylaws, effectively terminating Dr. Wu's employment.

{¶ 5} After receiving Dr. Schmidt's input, Dr. Kasmer recommended to Dr. Taylor that a notice of non-reappointment be issued to Dr. Wu. In Dr. Kasmer's memorandum to Dr. Taylor on the subject, he agreed with Dr. Schmidt's assessment of the situation, noting that Dr. Wu's skills and expertise did not align with the strategic direction of the college. Dr. Kasmer also noted that Dr. Wu's efforts in support of international collaboration were no longer necessary because that initiative had been elevated from the college to university level, and that his role in research services became unnecessary upon Dr. Schmidt's hiring as the department chair and associate dean of research. Further, before Dr. Kasmer made the recommendation of non-reappointment, he approached multiple department chairs and senior faculty to see if there remained a need for Dr. Wu's services within the university. None responded that Dr. Wu's services were needed. Dr. Taylor accepted Dr. Kasmer's recommendation and issued a notice of non-reappointment to Dr. Wu on March 11, 2016, informing Dr. Wu his last day of service with the college would be June 30, 2017, in accordance with the university bylaws.

{¶ 6} On June 26, 2017, Dr. Wu initiated this action. In May 2018, NEOMED moved for summary judgment. On June 18, 2018, Dr. Wu filed a response to the motion for summary judgment. Eleven days later, and with leave of court, NEOMED filed a reply brief in support of its motion for summary judgment. In July 2018, Dr. Wu filed a motion to strike NEOMED's reply brief on the basis that it did not comply with L.C.C.R. 4(E)'s requirement that a reply brief not exceed seven pages in length.

{¶ 7} In August 2018, the trial court denied Dr. Wu's motion to strike NEOMED's reply brief and granted NEOMED's motion for summary judgment.

{¶ 8} Dr. Wu timely appeals.

II. Assignments of Error

{¶ 9} Dr. Wu assigns the following errors for our review:

1. The trial court erred in granting Appellee's motion for summary judgment on Appellant's breach of contract claim, because the applicability and effect of Appellee's Faculty Bylaws, as incorporated into the contract, remains a disputed issue.

2. The trial court erred in granting Appellee's motion for summary judgment on Appellant's race and national origin discrimination claim, because there are material issues of disputed fact on whether Appellant submitted sufficient evidence to show discriminatory motive, and whether Appellee's purported non-discriminatory reason is a pretext.

3. The trial court erred in granting Appellee's motion for summary judgment on Appellant's retaliation claim, because there are material issues of disputed fact on whether Appellee took retaliatory actions against Appellant after Appellee terminated Appellant's wife['s] administration position and Appellant's wife sued Appellee as well as Appellant's own 2016 lawsuit against Appellee.

4. The trial court erred in denying Appellant's Motion to Strike Appellee's Reply for failure to comply with page limitation under the local court rule.

III. Discussion

A. Dr. Wu's First, Second, and Third Assignments of Error – Summary Judgment

{¶ 10} In Dr. Wu's first, second, and third assignments of error, he generally asserts the trial court erred in granting NEOMED's motion for summary judgment.

{¶ 11} An appellate court reviews summary judgment under a de novo standard. Coventry Twp. v. Ecker , 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995) ; Koos v. Cent. Ohio Cellular, Inc. , 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994). Summary judgment is appropriate only when the moving party demonstrates (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could 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 most strongly construed in its favor. Civ.R. 56(C) ; State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).

{¶ 12} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). However, the moving party cannot discharge its initial burden under this rule with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party's claims. Id. ; Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997). Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at 293, 662 N.E.2d 264 ; Vahila at 430, 674 N.E.2d 1164 ; Civ.R. 56(E).

{¶ 13} Dr. Wu argues the trial court erred in granting summary judgment as to his claims of breach of contract, race and national origin discrimination, and retaliation.¹ We address each of these claims in turn.

1. Breach of Contract

{¶ 14} Dr. Wu alleges NEOMED committed breach of contract. To succeed on a breach of contract claim, a plaintiff must demonstrate (1) the existence of a contract, (2) plaintiff's performance, (3) defendant's breach, and (4) damages or loss to the plaintiff. Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc. , 10th Dist. No. 09AP-788, 2010-Ohio-1649, 2010 WL 1475979, ¶ 13, citing Jarupan v. Hanna , 173 Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66, ¶ 18 (10th Dist.) The interpretation of a written contract is an issue of law. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm , 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). The purpose of contract construction is to realize and give effect to the parties' intent. Skivolocki v. E. Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. "[T]he intent of the parties to a contract resides in the language they chose to employ in the agreement." Shifrin v. Forest City...