Frank Ragozzine v. Youngstown State University, et al

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Alan E. Norris, John M. Rogers (AUTHORING), and Helene N. White, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0076p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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FRANK RAGOZZINE,
Plaintiff-Appellant,
v.

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No. 14-3365

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YOUNGSTOWN STATE UNIVERSITY; CYNTHIA E.
ANDERSON, individually and in her official capacity
as President, Youngstown State University; KAREN
GIORGETTI, individually and in her official capacity
as Chair, Department of Psychology, Youngstown
State University,
Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 4:13-cv-00750—Benita Y. Pearson, District Judge.
Argued: January 23, 2015
Decided and Filed: April 22, 2015
Before: NORRIS, ROGERS, and WHITE, Circuit Judges.
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COUNSEL
ARGUED: Bruce B. Elfvin, ELFVIN & BESSER CO., L.P.A., Cleveland, Ohio, for Appellant.
Michael C. McPhillips, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellees. ON BRIEF: Bruce B. Elfvin, Barbara Kaye Besser, Stuart Torch, ELFVIN &
BESSER CO., L.P.A., Cleveland, Ohio, for Appellant. Michael C. McPhillips, Ashon L.
McKenzie, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

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OPINION
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ROGERS, Circuit Judge. In this employment discrimination case brought by a male
professor who was denied tenure at a public university, the plaintiff—after summary judgment
was entered against him—sought recusal of the federal district judge, on the ground that the
judge had been dating a professor in a different department of the university. The district court
denied the motion and the plaintiff now challenges on appeal both the grant of summary
judgment and the denial of the recusal motion. For the reasons given by the court below, the
plaintiff’s substantive challenges to the summary judgment lack merit. The denial of the recusal
motion, moreover, was proper because the district court reasonably concluded, on the facts of
this case, that her impartiality could not reasonably be questioned.
Plaintiff Frank Ragozzine was a tenure-track professor in the Psychology Department at
Youngstown State University. His first several years as a tenure-track professor did not produce
much scholarship. Ragozzine attributed the initial delay to his lab’s not being fully operational
until his second academic year. In the beginning of his fifth academic year, his mother and his
wife fell ill, with some caretaking responsibilities falling on him. He requested and was granted
a year’s delay in the review of his tenure application so that he could publish scholarly articles to
satisfy YSU’s tenure requirements. Although he met the minimum requirements with a lastminute flurry of publications, he was ultimately denied tenure because YSU decisionmakers
determined that he lacked promise of consistent scholarly production. Ragozzine sued, alleging
that he was discriminated against on the basis of sex in violation of Title VII and the Equal
Protection Clause, that YSU violated his rights under the Family Medical Leave Act, and that
irregularities in his tenure review violated his procedural and substantive due process rights. The
district court granted summary judgment for the defendants on all claims. For the reasons given
in the district court’s thoughtful and comprehensive opinion, Ragozzine’s substantive challenges
to the grant of summary judgment are without merit. See Ragozzine v. Youngstown State Univ.,
2 F. Supp. 3d 1051 (N.D. Ohio 2014). No purpose would be served by restating those reasons
here.

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After summary judgment, Ragozzine filed a motion to disqualify the judge, based on a
previously undisclosed dating relationship between the judge and a tenured YSU faculty
member. Ragozzine argued that the relationship created an appearance of impropriety under
28 U.S.C. § 455 and Canon 3(C)(1) of the Code of Conduct for United States Judges and that
this appearance of impropriety required disqualification of the judge and relief from all her prior
orders. The district court properly denied that motion, concluding that no reasonable person
would question her impartiality.
Ragozzine alleged that, shortly before the district court issued its decision granting
summary judgment for YSU, he heard a rumor from another faculty member that a tenured YSU
faculty member “was seen with [the judge] at some university sponsored events.” After the
summary judgment decision, Ragozzine shared the rumor with his lawyer, who “verif[ied]” that
the professor and judge were dating, and filed the motion for disqualification.
According to Ragozzine, the YSU professor was a professor in the College of Liberal
Arts and Social Sciences, which also includes the Psychology Department. Ragozzine suggested
that because the YSU professor was not involved in the bargaining unit, he supported the
administration’s denial of his tenure. Ragozzine further alleged that he had once given a poor
grade to a student who he believed was a close family relative of the YSU professor. According
to Ragozzine, these facts, together with the YSU professor’s relationship to the judge, created the
appearance of impropriety. Ragozzine expressly did not allege any actual bias on the part of the
judge.
The judge was not required to recuse herself. Judges are bound by the recusal standard
established by Congress and set forth in 28 U.S.C. § 455(a): “Any justice, judge, or magistrate of
the United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” The statute requires a judge to recuse “if a reasonable, objective
person, knowing all of the circumstances, would have questioned the judge’s impartiality.”
Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990) (discussing 28 U.S.C. § 455(a)). A
relationship with a tenured member of a university faculty, without more, would not necessarily
cause a reasonable person to question a judge’s impartiality regarding all matters involving the
university. There is no evidence that the YSU professor was involved in any way in Ragozzine’s

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tenure review or had any interest in the outcome of the litigation. The YSU professor’s decision
not to participate in the bargaining unit and the poor grade earned by the YSU professor’s
relative in Ragozzine’s class are too insubstantial and too attenuated from Ragozzine’s tenure
denial to raise reasonable questions about the judge’s impartiality.
In making its determination, the district court referred to advice from the Committee on
Codes of Conduct of the Judicial Conference of the United States. Such a source may indeed be
helpful for determining her ethical obligations, but it is not authoritative with respect to the
statutory provision relied upon by plaintiff in this case.
The statutory obligation of a federal judge to recuse found in 28 U.S.C. § 455 is almost
word-for-word identical, with merely editorial differences, to Canon 3C of the Code of Conduct
for United States Judges. The statutory provision is binding on the courts as law applicable to
whether recusal is required. The substantially identical canon provision is a subset of a code of
judicial obligations that are ethically binding. While the content of the recusal obligations is
virtually identical, the methods for obtaining compliance are distinct.
The committee is authorized to render advisory opinions with respect to the code recusal
obligations, although not with respect to the statutory recusal obligations.

The committee

renders its advisory opinions, on recusal as well as other ethical issues, in several ways. First,
the committee issues relatively formal advisory opinions that address frequently occurring
questions. There are currently 93 such advisory opinions, and they are available to the public.
See

Guide to Judiciary Policy, Vol. 2B, Ch.

2,

Published

Advisory

Opinions,

http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/published-advisory-opinions.aspx.
The committee also provides private, confidential advice letters on the request of judges to
whom the code applies. Advice from the Committee should doubtless be given considerable
weight in a judge’s determination of her ethical obligations. Such advice, however, is not a
definitive interpretation of the statutory recusal obligations of 28 U.S.C. § 455(a).
Next, the district court was not required to disclose the possible conflict to the parties,
contrary to Ragozzine’s argument. Ragozzine argues that judges must disclose possible conflicts
so that the parties can either waive the possible conflict or seek recusal of the judge. In
advocating for the required disclosure of possible conflicts, Ragozzine’s counsel cites his

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experience of other judges having disclosed possible conflicts.

When a judge makes a

determination that her impartiality could not reasonably be questioned, the judge is permitted to
disclose the matter to counsel in order to settle the matter or to permit a motion to recuse. But
Ragozzine points to no statutory or judicial authority requiring a judge to do so.
In the quite different situation where a judge determines that her impartiality could
reasonably be questioned, the statute and the Code of Conduct provide for the possibility of
waiver unless one of five listed circumstances is the basis for the disqualification, 28 U.S.C.
§ 455(b), provided the waiver “is preceded by a full disclosure on the record of the basis for
disqualification.” 28 U.S.C. § 455(e). The Code of Conduct refers to this waiver as “Remittal of
Disqualification,” and further requires that “the parties and their lawyers have an opportunity to
confer outside the presence of the judge, and that all agree in writing or on the record that the
judge should not be disqualified.”

Canon 3D, available at http://www.uscourts.gov/

RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx. Because the district
court in this case determined that her impartiality could not reasonably be questioned, the
§ 455(e) waiver and Canon 3D remittal procedure—with its required disclosure—was simply not
applicable.
Recusal was not required, and the judgment of the district court is affirmed.