Nelson v. Univ. of Cincinnati
| Decision Date | 14 February 2017 |
| Docket Number | No. 16AP–224,16AP–224 |
| Citation | 2017 Ohio 514,75 N.E.3d 1304 |
| Parties | John Russell NELSON, Plaintiff–Appellant, v. UNIVERSITY OF CINCINNATI, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
On brief: Tobias, Torchia & Simon, and David Torchia, Cincinnati, for appellant. Argued: David Torchia.
On brief: Michael DeWine, Attorney General, Eric A. Walker, and Lindsey M. Grant, for appellee. Argued: Eric A. Walker.
DECISION
{¶ 1} Plaintiff-appellant, John Russell Nelson, appeals the February 22, 2016 decision and judgment entry of the Court of Claims of Ohio rendering judgment following a bench trial in favor of defendant-appellee, University of Cincinnati ("appellee" or "the university"). For the following reasons, we affirm.
{¶ 2} In 2009, the university formed a search committee for the position of Assistant Dean of Administrative Services at Clermont College ("the college"), which is one of the university's regional colleges.1 The position's responsibilities included managing administrative and fiscal operations on behalf of the college. Following the suggestion of Jim McDonough, the college's interim dean, appellant, an African-American male, applied for the position and was interviewed by the search committee.
{¶ 3} Kathleen Qualls, the senior vice provost for academic finance and administrationfor the university, served on the search committee. Qualls testified that all the applicants other than appellant were Caucasian. Qualls alone disagreed with the other members of the committee that appellant met the minimum qualifications for the position. Despite Qualls' disagreement, the committee recommended appellant to McDonough. McDonough interviewed appellant and then hired him for the position.
{¶ 4} On October 12, 2009, appellant began his employment with the university as an unclassified or at-will employee. Appellant had a "solid line" reporting relationship with McDonough, meaning that McDonough served as appellant's direct supervisor. (Tr. Vol. II at 325.) Appellant also had a "dotted-line" reporting relationship with Qualls. (Tr. Vol. II at 325–26.) Qualls stated that "[a] dotted-line reporting relationship exists when you want to facilitate the flow of information." (Tr. Vol. II at 328.) In 2010, Gregory Sojka replaced McDonough as dean of the college and served as appellant's direct supervisor. Appellant continued to have a dotted-line reporting relationship with Qualls.
{¶ 5} Appellant testified that he periodically contacted the Ohio Board of Regents ("OBR") for various matters related to his job duties. David Cannon, vice chancellor of finance and data management at OBR, testified that OBR is a coordinating body for higher education for the state of Ohio, responsible for making sure that colleges and universities meet academic standards as well as administering financial resources from the state. According to appellant, Jan Diegmueller, who was responsible for budgets at the university's main campus, told appellant that Katie Hensel, a vice chancellor of finance, would be his contact at OBR.
{¶ 6} Appellant testified that in 2012, the college used $800,000 from its contingency fund in order to balance its general fund due to declining enrollment. As a result, appellant wanted to develop metrics and put internal controls in place. In September 2012, appellant told Sojka that he was going to call OBR for information in order to calculate metrics. Appellant attempted to call Hensel, but was unable to reach her. After looking through a staff directory, appellant called Cannon. Appellant had not previously spoken with Cannon, although he was able to determine Cannon's job title based on the OBR staff directory.
{¶ 7} Sojka testified that he did not recall appellant telling him that he was planning to contact OBR. Sojka admitted that contacting OBR was "something that [appellant] could do" and that appellant had a regular contact at OBR, though he did not know the person's name. (Tr. Vol. I at 43.)
{¶ 8} According to appellant, he informed Cannon that the college was using its reserves to balance its general fund, which was something the college had never before done. Cannon stated that he would send appellant an Excel template to help with appellant's metrics. Appellant testified that during his call with Cannon, he received an email from Jeffrey Bauer, chair of the business law technology department at the college, which was sent to both Sojka and appellant. After skimming the e-mail and noticing that it mentioned changes to the funding model between the regional colleges and the university's main campus, appellant asked Cannon whether the state's subsidy to the college could be adjusted without OBR making the change. Cannon replied that OBR would eventually make changes in how the subsidy would be calculated but that he could not tell appellant when that would occur.
{¶ 9} The record reflects that on September 13, 2012, Bauer sent Sojka and appellant an e-mail with the subject "Budget Yikes/Interim Provost Comments" in which Bauer discussed comments made by Larry Johnson, the university's interim provost. (Appellant's Ex. 4, 6.) Specifically, Bauer mentioned Johnson's discussion of funding changes between the regional colleges and the university's main campus. On September 14, 2012, appellant replied to Bauer and Sojka as follows:
(Appellant's Ex. 4.) Appellant forwarded the above e-mail to Andrew Kuchta, the economic development director for Clermont County. On September 17, 2012, Sojka sent appellant a response to the aforementioned e-mails stating: (Appellee's Ex. D.)
{¶ 10} Additionally, on September 14, 2012, Sojka wrote to appellant in response to Bauer's e-mail. Appellant replied to Sojka and stated in part that (Appellant's Ex. 6.) On September 17, 2012, Sojka replied to appellant asking to schedule a meeting with him. On September 18, 2012, appellant replied and stated that he would plan on meeting with Sojka that day.
{¶ 11} Cannon testified that because of the timing of the call in relation to upcoming changes in funding for the university, he wanted to inform someone at the university that appellant had called him. Cannon believed that it was an "unusual call" but also said that he "had no problem with the call." (Tr. Vol. II at 288; 285.) Cannon testified that he did not recall whether appellant asked him to intervene regarding the distribution of funds from the college to the university. Cannon discussed the call with Lana Reubel, OBR's chief of staff, who contacted Margaret Rolf, assistant vice president for government relations at the university. Rolf then called Cannon.
{¶ 12} According to Rolf, Cannon described the call as the "most unusual and bizarre call" he had ever received. (Tr. Vol. I at 108.) Additionally, Cannon told Rolf that appellant alleged financial improprieties occurring at the university. Rolf then contacted Robert Ambach, senior vice president for administration and finance at the university.
{¶ 13} Ambach testified that Rolf told him that Cannon was surprised to have been contacted by appellant. Ambach himself was surprised and found it unusual that appellant had contacted Cannon because he "perceive[d] that as going almost over four layers of administration." (Ambach Depo. at 11.) Although Ambach testified there could have been some situation where it would have been appropriate for a person in appellant's position to contact Cannon, he also felt that it was unusual for such a call to take place without being "vetted within the University previously." (Ambach Depo. at 13.) Ambach briefly told Qualls that appellant called OBR and instructed Qualls to contact Rolf for more details. Qualls called Rolf, who described her conversation with Cannon.
{¶ 14} Ambach also informed Johnson regarding appellant's call. Johnson, who was also Sojka's direct supervisor, discussed the matter with Qualls. Qualls reported to Johnson that she had discussed the matter with Rolf. Johnson then asked Qualls to send him an e-mail detailing the contents of her conversation with Rolf. On September 21, 2012, Qualls sent an e-mail to Johnson which stated as follows:
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