Ohio Univ. V. Ohio Civ. Rights Comm.

• Decision Date: 05 March 2008
• Docket Number: No. 07CA7.,07CA7.
• Citation: 175 Ohio App.3d 414,2008 Ohio 1034,887 N.E.2d 403
• Parties: OHIO UNIVERSITY, Appellee, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellants.
• Court: Ohio Court of Appeals

887 N.E.2d 403

175 Ohio App.3d 414

2008-Ohio-1034

OHIO UNIVERSITY, Appellee, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellants.

No. 07CA7.

Court of Appeals of Ohio, Fourth District, Athens County.

Decided March 5, 2008.

Gerald Mollica, Athens, for appellee.

Marc Dann, Attorney General, and Patrick M. Dull, Assistant Attorney General, for appellant Ohio Civil Rights Commission.

Kathaleen B. Schulte and Frederick M. Gittes, Columbus, for appellant Dr. Robert Lipset.

PETER B. ABELE, Presiding Judge.

{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that reversed the final order of the Ohio Civil Rights Commission ("commission"). The commission determined that Ohio University unlawfully denied Dr. Robert Lipset promotion and tenure due to his age. The commission and Dr. Lipset,¹ appellants herein, raise the following assignments of error for review:

First Assignment of Error:

The court of common pleas abused its discretion when it held that the final order of the Ohio Civil Rights Commission was unsupported by reliable, probative, and substantial evidence.

Second Assignment of Error:

The court of common pleas abused its discretion when it re-weighed the evidence that was originally presented during the commission's administrative hearing.

Third Assignment of Error:

The court of common pleas abused its discretion when it labeled age-related comments as "stray remarks," and then disregarded the comments as irrelevant.

Fourth Assignment of Error:

The court of common pleas abused its discretion when it imposed an additional requirement on the commission's ability to prove an age discrimination claim — that the underlying victim of discrimination recognize and complain of the age discrimination.

Fifth Assignment of Error:

The court of common pleas abused its discretion when it attributed arguments to the commission that the commission did not present, and then materially faulted the commission for offering no evidence to support those arguments.

I BACKGROUND

{¶ 2} On January 1, 1995, Ohio University hired 45-year old Dr. Robert Lipset as an assistant professor in the Industrial and Manufacturing Systems Engineering ("IMSE") Department. In December 2000, Lipset submitted his case for promotion and tenure. By letter dated January 23, 2001, the promotion and tenure committee informed Lipset that it would not recommend promotion and tenure. The committee chair, Dr. David Koonce, explained the committee's reasons for declining to recommend Lipset for promotion and tenure:

[I]n reviewing your dossier with respect to research and scholarship, the committee had significant reservations about your commitment to funded research and your progress towards an identifiable personal research track. They were most concerned with the fact that your dossier contains no current research proposals or funding. Historically, your proposals were sent to a very limited number of funding agencies. The committee felt that you should have pursued other funding sources from a wider variety of funding agencies. The committee also felt that you needed some evidence of individual research, since your dossier shows that all your publications as a faculty member were co-authored with Dr. Van Til, your Ph.D. advisor, or Dr. Judd. In addition, the committee observed that, with one exception, your latter papers were all coauthored with graduate students under the direction of Dr. Judd, as opposed to graduate students under your direction. The committee saw this as a major weakness in your case. Lastly, the committee felt that you had too few articles published in professional journals.

Koonce noted that the committee "deemed" Lipset's teaching and service record "excellent," but the promotion and tenure guidelines state that "a deficiency in one category cannot be outweighed by superior performance in one or both of the other categories."

{¶ 3} Lipset appealed his promotion and tenure denial under university procedures, but his appeal proved unsuccessful. Lipset's last day of employment was June 8, 2002.

{¶ 4} On July 3, 2002, Lipset filed an affidavit with the commission. The commission investigated the charge and found probable cause that Ohio University had engaged in unlawful employment practices in violation of R.C. 4112.02(A). On June 12, 2003, the commission issued a complaint and alleged that Ohio University failed and refused to promote Lipset, failed and refused to offer him tenure, and terminated him for reasons not applied equally to all persons without regard to age.

A EVIDENCE AND TESTIMONY

{¶ 5} On January 22, 2004, a commission hearing officer conducted a public hearing to consider the complaint. At the hearing, Lipset testified regarding various age-related comments that he had heard during his employment at Ohio University. Lipset stated that on one occasion in 1999, Koonce referred to him and some of the retired faculty as "legacies," a term Koonce had previously used to refer to old and outdated computer software. In 1997, Koonce informed Lipset that female graduate students chose Lipset as their advisor because they felt safe with him, as he was old enough to be their father. On another unspecified occasion, Koonce asked Lipset the age of his children. When Lipset told him his son's age, Koonce stated, "Oh, he's just about the same age as I am." Lipset testified that several times Koonce subsequently referred to him as "dad."

{¶ 6} Lipset also testified that he felt "there was an attitude within the [IMSE department] that believed that there was some magical quality to youth in faculty and made them very, very important." He referred to an April 24, 1998 e-mail from Dr. Charles Parks, the chair of the IMSE department, that had announced the hiring of two new faculty members: "[W]e are fortunate to have two new bright and young faculty to start the fall quarter." Lipset also referred to a letter thanking him for a monetary gift to the IMSE department, in which Parks stated, "We also have an exciting group of young faculty interested in computer applications to manufacturing." This letter, apparently a form letter sent to donors, also stated: "Dr. Robert Lipset joined us in January 1995 from Oakland University. He has over fifteen years experience in automobile manufacturing."

{¶ 7} Lipset stated that he believed that the promotion and tenure committee's collaborative research excuse was "bogus." He testified that no one told him that a condition of promotion and tenure was individual, as opposed to collaborative, research. He related his understanding that "collaborative research was not only desirable, but it was expected."

{¶ 8} Parks testified that in his annual evaluations, he advised Lipset to develop sponsored research programs. To refute Lipset's claim of age discrimination, Parks noted that Lipset's replacement was 47 when Ohio University hired him and that the IMSE department has since tenured two faculty members over the age of 40.

{¶ 9} Koonce testified that the committee had denied Lipset tenure because "his research area was significantly weaker than our expectations would have been." He more specifically explained: "There was a significant lack of * * * external funding and the pursuit of external funding, which is one of the criteria is to have external sponsors sponsor your research and fund graduate students and * * * your time in conducting that research. We also found that there was a — limited independent research on his part and that he had conducted all of his research with other senior faculty." Koonce stated that "without any independent research on [his] own [the committee wasn't] able to determine if [he] ha[d] abilities and skills to conduct research." Koonce additionally explained that Lipset's letters of recommendation were not overly positive. He stated that one was "a very strong letter of support. But the rest were * * * either weak or would not comment." Koonce stated that Lipset's research paper award "showed that he definitely was able to write quality journal publications."

{¶ 10} Koonce denied Lipset's claim that age was a factor in the committee's decision. Koonce recognized Lipset's claim that Koonce's case for promotion and tenure was arguably weaker than Lipset's case, but stated that his research record was stronger because he "had several papers that were published with [his] graduate students only and not the students of other faculty or with other faculty." He also believed that his funded research record "was stronger in terms of even though numerically we both had one large grant and his was a single year grant, mine was a multi-year grant over three years, which was about $330,000 compared to his which I believe was a single year grant of about $50,000." Koonce further stated that in contrast to Lipset, at the time of his tenure process he had "six individual research initiatives that [he] was applying to or working with external contacts on including one that was subsequently funded shortly after [his] tenure for about a million dollars." Koonce stated that he "was aggressively seeking research," and that when he looked at Lipset's dossier, he "saw one small proposal and no real search for research beyond that." Koonce stated that Lipset's lack of proposals "was a significant weakness that [the committee] just could not overcome in [its] voting."

{¶ 11} Koonce further testified that Lipset rejected an offer to work on one of the projects of Dr. Robert Judd (a professor of engineering). Koonce explained: "Dr. Judd had recently completed a sabbatical at G.E. Aircraft Engines and had subsequent to that secured a quite large research project * * *. Dr. Judd apparently contacted Dr. Lipset and asked if he would be interested. And [Dr. Lipset] apparently declined. * * * [Dr. Lipset] said, you know, Judd asked me to work on this project, but I just don't think I can work with him any more; it will probably cost me tenure."

{¶ 12} ...