Lifter et al v. Cleveland State University et al

Filing 22

Memorandum of Opinion and Order: This matter is before the Court upon defendants' Motion for Summary Judgment (Doc. 16 ). Defendants' motion is GRANTED. Judge Patricia A. Gaughan on 8/17/16. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Jean Lifter, et al.,
Plaintiff,
Vs.
Cleveland State University, et al.,
Defendant.

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CASE NO. 1:15 CV 1055
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon defendants’ Motion for Summary Judgment (Doc.
16). For the following reasons, defendants’ motion is GRANTED.
Facts
Plaintiffs Jean Lifter and Sheldon Gelman filed this § 1983 Complaint against defendants
Cleveland State University (CSU) and Craig Boise, individually. As an initial matter, the Court
notes that the Complaint alleges that plaintiffs, husband and wife, were both employed by CSU.
Sheldon Gelman was a tenured professor at the law school until his May 2015 retirement and
Jean Lifter was an Associate Dean of the law school until her termination in June 2014. The
Complaint asserts two claims arising under § 1983. Count One alleges that defendants retaliated
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against Gelman for exercising his rights secured by the First and Fourteenth Amendments.
Count Two alleges that defendants retaliated against Lifter for Gelman’s exercising his rights
secured by the First and Fourteenth Amendments. After briefing herein, plaintiffs concede that
CSU is protected from suit by Eleventh Amendment immunity. Plaintiffs also provide no
argument regarding any Fourteenth Amendment violation. Accordingly, this matter is a First
Amendment retaliation claim against Boise in his individual capacity.
The parties present the following background facts. Facts specific to the claims will be
addressed in the discussion of the claims.
Boise became Dean of Cleveland Marshall College of Law (hereafter, ClevelandMarshall or the law school) in June 2011. At the time, law school education was in a national
crisis and the number of applicants to law schools had sharply declined. Gelman acknowledged
at deposition that during this period, Cleveland-Marshall’s application decline exceeded national
averages. Cleveland-Marshall was attempting to improve its standing. By memorandum of April
22, 2012, Boise introduced the “140 Plan” which called for a reduction of Cleveland-Marshall’s
entering class from 200 to 140 students. The goal was to address budget concerns and maintain
quality metrics. It also called for expense reductions, faculty attrition, and a tuition increase. The
140 Plan did not include proposed faculty or staff layoffs.
Concerns about job security in light of decreasing law school enrollment led Gelman to
consider the possibility of unionizing. On April 14, 2012, Gelman emailed Boise and stated, “As
a follow-up to our conversation on Friday, some law faculty are planning to meet with union
representatives to discuss the possibility of collective bargaining.” Gelman inquired about using
law school space for the meetings. By email of April 23, 2012, Boise stated that he had no

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objection. But, according to Gelman, Boise told him that a unionized faculty would make
Boise’s job more difficult. The issue of unionization divided the faculty, but in November 2012,
Gelman announced to the faculty that the organizing drive had passed. He also indicated that a
request had been made to the State Employment Relations Board (SERB) to request recognition
of a bargaining unit. CSU president and Boise agreed to “take no hard stance against the
unionization effort.”
Minutes of the November 28, 2012 faculty meeting show the following. Boise mentioned
a “disconnect” between himself and the faculty. Boise sensed that the faculty was becoming
more divided and he pointed to the unionization effort as an example. Boise stated that Gelman
had approached a staff member and asked for information to “go after Craig.” Boise said,
“Shame on you Sheldon Gelman. Shame on you.”
In the fall of 2012, Boise did not re-appoint Gelman to any of the previous various
committees on which he had served with the exception of one which he sat on by virtue of his
teaching. But, in the spring of 2013, Boise appointed Gelman to the search committee to fill the
position of Law Library Director at the law school.
In December 2012, several faculty members requested that CSU file a Petition for
Representation Election with the State Employment Relations Board (SERB). In a June 19, 2013
email, Gelman announced to the faculty that SERB had formally notified the bargaining unit that
it had won the election and was certified as the exclusive bargaining representative of the law
school faculty.
In the spring of 2013, Boise decided the amount of merit raises the faculty members
would receive the following year. Boise awarded Gelman and others active in organizing the

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bargaining unit a raise of $666 while other faculty received raises of between $3,000 or $5,000.
Plaintiffs state that Gelman’s merit raise should have been at least $3000 under Boise’s criteria
based on his publications and service. In a June 17, 2013 email to the Acting Provost, which
plaintiffs assert differs from Boise’s declaration testimony, Boise explained his action:
I write in response to your question during our telephone call today regarding how
I arrived at a merit raise amount of $666 for 10 of the 37 members of the law
school faculty.
I initially set two merit raise categories based on faculty performance in the areas
of scholarship, teaching and service, with the most meritorious faculty receiving a
merit increase of $6,000 each, and the next most meritorious group of faculty
receiving $3,000 each. Given a total merit pool of 2%, this would have resulted in
about 14 of the 35 non-administrative faculty members not receiving any increase
at all. Although these 14 faculty members did not merit a raise on the order of
that received by the remaining 21 faculty members, I was reluctant to not provide
any pay increase to 10 of these faculty members, as most faculty members
received at least a $500 merit increase in FY13. Accordingly, I asked my Budget
Director, Jeane White, to reduce the top merit raise to $5,000 and divide the
surplus among the 10 faculty members to achieve a merit increase close to $500
per faculty member. After calculating all merit raises and two equity adjustments,
the resulting merit amount was $666 per faculty member.
Boise states in his declaration testimony, “At no time did I specifically request that a raise of
$666 be awarded to any faculty member, but rather this raise amount was the result of a
mathematical calculation.”
According to Tim Long, CSU’s Associate Vice President, Finance and Technology, each
college (including the law school) within CSU submits its budget to him by April of each year.
Projections for each college’s entering class size for the following year must be made in April so
that each respective budget can be completed. The budget process is tied to the admission cycle.
Enrollment in Cleveland-Marshall had been steadily declining for over a decade. Between the
fall of 2011 and the fall of 2015, the number of student credit hours actually taken at the law

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school decreased by 28% which required it to significantly reduce its permanent budget over this
time period. Like the other colleges, the law school’s annual budget is built by using a projected
number of incoming students for the upcoming year. The projection of each college’s entering
class size for the following year must be provided to Long with a budget in April. Once
submitted, the budget cannot be changed. In February 2014, Cleveland-Marshall was projecting
an entering 1L class size of 90 to 100 students for the fall of 2014. As a result, Long advised
Boise that “he should be examining reductions to Cleveland-Marshall’s budget for the year
2014-2015 of at least $1,000,000.” In mid April 2014, Long engaged in an email exchange with
Boise and the CSU Provost regarding the need for the law school to reduce its permanent budget
for the 2014-2015 year in the range of $800,000, finalize its decision on projected 1L entering
class size for the upcoming fall, and finalize its expense reduction plan. In April 2014, Boise
submitted the law school budget to Long which was based on a projected incoming 1L class size
of 125 students. After this submission, the budget cannot be changed. In mid April 2014, Long
engaged in an email exchange with the CSU Provost which discussed the law school’s
permanent budget reductions for the 2014-2015 year totaling about $735,000 and which included
the elimination of Lifter’s position. Actual enrollment for the fall does not impact the annual
budget once it has been set.
According to Boise, in February 2014, he engaged in an email exchange with Chris
Lucak, the law school’s Assistant Dean of Admissions and Financial Aid, which discussed
Lucak’s projection of 91 1L students for the fall. Based on that projection, Long advised Boise
that significant cuts to the law school’s budget would be required. In response to Long’s mandate
regarding significant cuts to the budget, Boise requested Mark Sundahl, Associate Dean for

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Administration, “to evaluate whether potential personnel efficiencies at Cleveland-Marshall
could be realized through reassigning or eliminating job responsibilities.” Boise also created a
Budget Task Force comprised of various faculty and staff members and requested the task force
to provide him with recommendations to reduce the law school’s budget by $500,000 and
$1,000,000 for the year 2014-2015. In March 2014, the task force provided Boise with its
recommendations for budget cuts which Boise accepted and implemented but further cuts were
needed. Sundahl ultimately concluded that current staff and faculty members could assume the
job duties of the Assistant Dean for Academic Affairs, Lifter’s position. Sundahl recommended
that Lifter’s position be eliminated and that her job duties be reassigned to other current
employees of the law school. By mid-April 2014, Boise was required to provide CSU with the
projected 1L class size for the fall of that year so that the budget could be finalized. Based on
the enrollment reports and analysis received from Lucak, Boise projected an incoming 1L class
of 125 and the budget was based on this projection. As a result, CSU required that approximately
$735,000 be cut from the Cleveland-Marshall budget. Boise accepted nearly all of the task
force’s recommendations and decided to eliminate Lifter’s position. He then submitted the
budget in April 2014. Boise prepared the Rationale for Reduction in Work Force for the
elimination of Lifter’s position. It was signed by Boise on June 18, 2014. It was approved by
CSU and Lifter was notified at the end of June 2014. The elimination of Lifter’s position was
effective July 31, 2014. Since the elimination of her position in the student services center, Boise
states that the center continues to operate more efficiently as Lifter’s prior duties were
reallocated to existing employees enabling Cleveland-Marshall to realize annual savings of
$132,116.

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Plaintiffs point out that Boise’s initial recommendation to the Budget Task Force
included that three vacant positions not be filled and four positions eliminated, including
Lifter’s. The day before the task force submitted its report to Boise on March 19, 2014, Sundahl
sent Boise the list of Lifter’s job duties. Her list of job duties was the only one Boise requested
that Sundahl prepare.
On June 30, 2014, in an email to the faculty responding to the negative reaction
generated by Lifter’s announcement to the law school that her job had been eliminated, Boise
wrote in part:
On the day that I was required to make a final decision about what I expected our
entering class for this year would be, we had received second deposits from 142
students. Based on our historical summer melt percentage, which has been around
10%, that would leave us with 127 students this fall. Thus, that we would enroll a
class of 125 students seemed to be a prudent assumption to make based on the
information that was available when I had to make the final budget decision.
Boise testified at deposition that the “summer melt percentage” was actually around 3% and not
10%. At the September 11, 2014 faculty meeting, Boise responded to the written “Motion by the
Cleveland-Marshall College of Law Faculty Disapproving of Dean Boise’s Budget-Reduction
Process and Recommendation to Terminate Assistant Dean Jean Lifter.” The minutes of the
meeting state, in part,
Dean Boise distributed the Admissions Report for the week ending April 11, 2014. He
stated that the College of Law must submit our budget to the administration on April 15,
2014. He must make the most realistic, conservative projection based on the data before
him at that time. He based the projected class size on the numbers in this report. At that
time we had 130 first seat deposits. Our historic melt rate from first deposits is 17%.
That means that our projected class size on April 11th would have been 108 students.
Even that projection would have been overly optimistic since our applications were down
28% and there were only 142 other applications still with no action.
Boises’s initial recommendation to the task force indicated that the savings in eliminating

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Lifter’s position would be $51,116. Plaintiffs state that these savings were lost by other
proposed cost increases initiated by Boise.
According to Lifter, she filed a grievance with CSU in July 2014 after her position was
eliminated. The grievance was denied by CSU. Lifter and Gelman also filed Unfair Labor
Practice Charges with SERB over Lifter’s termination. As evidenced by Lifter’s September
2014 charge against Boise, the factual basis states that Boise retaliated against her because of her
husband’s protected union organizing activities which Boise opposed.1 In its February 2015
Dismissal of Unfair Labor Practice Charge as to Lifter, SERB concluded that the investigation
revealed no probable cause that Cleveland-Marshall discriminated and retaliated against Lifter
for her husband’s protected/concerted union activity. SERB found that Lifter failed to establish
a prima facie case of discrimination and there was no nexus between the layoff and Gelman’s
union activity. In its February 2015 Dismissal of Unfair Labor Practice Charge as to Gelman,
SERB likewise concluded that the law school did not discriminate against him, there was no
nexus between his protected activities and his wife’s layoff, and the law school had
demonstrated that its actions were not based on anti-union animus but that Lifter’s layoff was
implemented due to the need to reorganize because of budgetary issues.
In January 2015, Gelman and other faculty received a letter from Boise regarding an
early retirement incentive. Gelman thereafter accepted the incentive buyout.
This matter is now before the Court upon defendants’ Motion for Summary Judgment.
Standard of Review

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It appears that the Court has only a copy of Lifter’s charge, but has the SERB
dismissals of both Lifter’s and Gelman’s charges.
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Summary Judgment is appropriate when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376,
378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material
facts rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to
demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore
v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not
simply rely on its pleading, but must “produce evidence that results in a conflict of material fact
to be solved by a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
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does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is “merely
colorable” and not “significantly probative,” the court may decide the legal issue and grant
summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
Discussion
(1) Collateral Estoppel
Defendants initially assert that plaintiffs’ claims are collaterally estopped. Plaintiffs
disagree. For the following reasons, the Court finds the claims are not collaterally estopped.
Collateral estoppel, also known as issue preclusion, “precludes the relitigation of an issue
that has been actually and necessarily litigated and determined in a prior action.” MetroHealth
Med. Ctr. v. Hoffman-LaRoche, Inc., 80 Ohio St.3d 212 (1997). Four elements are necessary: (1)
the precise issue must have been raised and actually litigated in the prior proceedings; (2) the
determination of the issue must have been necessary to the outcome of the prior proceedings; (3)
the prior proceedings must have resulted in a final judgment on the merits; and (4) the party
against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in
the prior proceeding. Georgia-Pac. Consumer Products LP v. Four-U-Packaging, Inc., 701 F.3d
1093, 1098 (6th Cir. 2012) (citations omitted).
Collateral estoppel “applies to quasi-judicial administrative proceedings as long as the
parties have had an ample opportunity to litigate the issues involved in the proceeding.”
Anderson v. City of Blue Ash, 798 F.3d 338, 351 (6th Cir. 2015) (citing State ex rel. Schachter v.
Ohio Pub. Emps. Ret. Bd., 121 Ohio St.3d 526 (2009)); Grava v. Parkman Twp., 73 Ohio St. 3d
379, 381 (1995) (internal citations and quotations omitted) (“We explained that res judicata,

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whether claim preclusion or issue preclusion, applies to administrative proceedings that are of a
judicial nature and where the parties have had an ample opportunity to litigate the issues
involved in the proceeding.”)
“The Sixth Circuit has recognized that under Ohio law, res judicata and collateral
estoppel generally apply to quasi-judicial decisions made by administrative agencies from which
no appeal has been taken.” Ohio Bell Tel. Co. v. Pub. Utilities Comm'n of Ohio, 844 F. Supp. 2d
873, 883 (S.D. Ohio 2012) (citing Burkholder v. Bower Tiling Serv., 1994 WL 730464 (6th Cir.
Jan 5, 1995)). See also Carroll v. City of Cleveland, 522 F. Appx 299, 303-04 (6th Cir. 2013)
(citing (citing Wade v. City of Cleveland, 8 Ohio App.3d 176 (8th App. Dist.1982)). (“At the
threshold, and contrary to Appellants' argument, claim preclusion is applicable to actions which
have been reviewed before an administrative body, in which there has been no appeal made
pursuant to R.C. 2506.01.”).
“An administrative proceeding is quasi-judicial for purposes of res judicata if the parties
have had an ample opportunity to litigate the issues involved in the proceeding.” State ex rel.
Schachter v. Ohio Pub. Emps. Ret. Bd.,121 Ohio St. 3d 526, 530 (2009) “SERB is a
quasi-judicial state agency that oversees public-sector labor issues in Ohio.” Kingsley v.
Brundige, 513 F. Appx 492, 494 (6th Cir. 2013).
As set forth above, Lifter and Gelman filed Unfair Labor Practice Charges with SERB
over Lifter’s termination. Lifter’s charge is against Boise and Cleveland-Marshall and alleges
that Boise retaliated against her because of her husband’s protected union organizing activities.
The dismissal of Gelman’s charge shows that he alleged the same. These are the same factual
allegations as alleged in Count Two herein.

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Lifter testified that she had “an opportunity to present whatever evidence and information
that [she] thought was necessary to support [her] contention to the State Employment Relations
Board.” (Lifter depo. 114-115) SERB dismissed both charges “with prejudice for lack of
probable cause” that Lifter was discriminated and retaliated against for her husband’s
protected/concerted union activity. (Doc. 16 Exs. 38, 39) SERB found no nexus between the
layoff and Gelman’s union activity and that the law school had demonstrated that its actions
were not based on anti-union animus but that Lifter’s layoff was implemented due to the need to
reorganize because of budgetary issues. (Id.)
Plaintiffs do not dispute the above, but contend that they are not collaterally estopped
because SERB’s decision to not issue a complaint in response to the charge is neither quasijudicial or adjudicatory, nor reviewable as required for collateral estoppel to apply. Nelson v.
Jefferson Cty., Ky., 863 F.2d 18, 19 (6th Cir. 1988) (internal citations omitted) (“An
administrative board acts in a judicial capacity when it hears evidence, gives the parties an
opportunity to brief and argue their versions of the facts, and the parties are given an opportunity
to seek court review of any adverse findings.”) Plaintiffs rely on Ohio Assn. of Public School
Employees, Chapter 643, AFSCME/AFL-CIO v. Dayton City School Dist. Bd. Of Educ., 59 Ohio
St.3d 159 (1991), wherein plaintiffs note that the Ohio Supreme Court stated,
Before a complaint is issued [by SERB] there is no requirement for notice, hearing, and
the opportunity for introduction of evidence. Because there has been no hearing, there is
no record to be filed with the reviewing court as required by R.C. 4117.13(A) and (D).
The only record of SERB's investigation is its investigatory file, which is confidential.
SERB's role in this early stage of the proceeding is most closely analogous to that of a
public prosecutor investigating a citizen's complaint of criminal activity. In either case,
the decision not to prosecute is discretionary, and not generally subject to judicial review.
Id. (internal citations and quotation marks omitted). Accordingly, the court held that “a decision

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by SERB whether or not to issue a complaint in an unfair labor practice case is not reviewable
pursuant to [the Ohio Revised Code].” As such, plaintiffs contend, because there was no
appealable order, collateral estoppel does not apply. 2
This Court agrees with plaintiffs. The Ohio courts recognize, “Probable cause
determinations by SERB under R.C. 4117.12(B) are not reviewable by direct appeal.” State ex
rel. Howard v. State Emp. Relations Bd., 2016 WL 3579013 (Ohio 10th App. Dist. June 30, 2016)
(citing Ohio Assoc. of Public Emps., Chapter 643 v. Dayton City School Dist. Bd. of Edn.,
supra).3 Furthermore, as plaintiffs point out, SERB additionally dismissed Lifter’s charge for
lack of standing because she was not a public employee. (Doc. 16 Ex. 38) And, the dismissal of
Gelman’s charge seems to indicate that his charge was based on his allegation that his activity
resulted in his wife’s lay-off and not, as alleged in Count One herein, that defendants retaliated
against him by reducing the size of his merit raise and depriving him of faculty committee
appointments. (Doc. 16 Ex. 39)
For these reasons, the Court does not find that the First Amendment retaliation claims
against Boise asserted in Counts One and Two are precluded by the doctrine of collateral
estoppel. Therefore, it will proceed to the merits of the claims.
(2) First Amendment Retaliation

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Defendants distinguish Dayton City Schools with Local 1497 IAFF v. DiMora,
1990 U.S.Dist. LEXIS (N.D.Ohio Sept. 17, 1990). But, this Court will not rely on
that district court opinion where the Sixth Circuit affirmed without a separate
opinion. Local 1497 IAFF v. DiMora, 1991 WL 100598 (6th Cir. 1991).

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Thus, it would appear that SERB determinations are different from other quasijudicial administrative determinations that a party may appeal to the court of
common pleas pursuant to O.R.C. § 2506.01. See Carroll v. City of Cleveland,
supra.
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“To make out a prima facie claim for First Amendment retaliation4 under § 1983, a
plaintiff must show that (1) he engaged in constitutionally protected speech, (2) he was subjected
to adverse action or was deprived of some benefit, and (3) the protected speech was a substantial
or a motivating factor in the adverse employment action.” Tompos v. City of Taylor, 2016 WL
1319215, - Fed.Appx.-, (6th Cir. Apr. 5, 2016) (citing Brandenburg v. Hous. Auth. of Irvine, 253
F.3d 891, 897 (6th Cir.2001) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274 (1977)). In other words, the third element requires a causal connection between
elements one and two. Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014). “The analysis of a
defendant's motives in retaliation claims is well established: the plaintiff has the burden of
establishing that his protected conduct was a motivating factor behind any harm, and then the
burden of production shifts to the defendant, who must show that he would have taken the same
action in the absence of the protected activity.”Gritton v. Disponett, 332 Fed.Appx. 232 (6th Cir.
2009). See also Benison v. Ross, supra (“If the employee establishes a prima facie case, the
burden then shifts to the employer to demonstrate by a preponderance of the evidence that the
employment decision would have been the same absent the protected conduct. Once this shift has
occurred, summary judgment is warranted if, in light of the evidence viewed in the light most
favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.”)
(a) Gelman
Count One alleges that Gelman was retaliated against for exercising his First Amendment

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Boise raises the defense of qualified immunity. Thus, the Court’s initial inquiry
is “whether the facts alleged demonstrate a violation of [plaintiffs’] First
Amendment rights...” Stinebaugh v. City of Wapakoneta, 630 Fed.Appx. 522 (6th
Cir. 2015).
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rights by “reducing the size of the merit raise to which he was otherwise entitled, by depriving
him of faculty committee appointments, and taking other adverse action against him.”
Defendants contend that Gelman fails to establish a prima facie case because he suffered no
adverse employment action. Even so, there is no evidence of pretext.
Plaintiffs argue that Gelman suffered two adverse employment actions. First, his spouse
was terminated as a result of his protected activity and courts recognize that retaliatory actions
taken against a close relative by an employer are adverse actions. Second, Boise awarded
Gelman a pay raise of $666 in 2013, a raise that was lower than he was entitled to under Boise’s
own criteria.
Count One does not allege that defendants retaliated against Gelman by terminating his
wife. However, the Court agrees with plaintiffs that the lower merit raise may be an adverse
employment action. See Alexander v. Ohio State Univ. Coll. of Soc. Work, 697 F. Supp. 2d 831,
842 (S.D. Ohio 2010), aff'd, 429 F. App'x 481 (6th Cir. 2011) (“A performance evaluation that
directly impacts an entitlement to an increase in salary is an adverse employment action.)
Plaintiffs must then demonstrate that the union activity was a substantial or a motivating factor
in the awarding of the lower raise and defendants must show that they would have taken the
same action in the absence of Gelman’s union activities.
Gelman asserts that under Boise’s own criteria, he should have received at least a $3000
merit raise. He was awarded two points for “scholarship” for publishing one article. (Doc. 20
Ex. 18) Yet, Gelman asserts he had written two articles during the relevant period. (Gelman
depo. 99) However, Boise relied on the Faculty Report submitted to him by Gelman as a primary
factor in the award of the merit raise. (Boise decl. ¶ 9) According to the information Gelman

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provided in the report, he had authored and published only one law review article during the
previous two years and had not engaged in any professional online writing or scholarly activity.
(Id.) In particular, the report asks for a list of “publications completed during the past two
calendar years” (i.e., 2011 and 2012). Gelman listed an article “forthcoming in 2013" and one
“published in 2011 but written earlier.” He listed one article published in the Albany Law
Review (2011/2012). (Doc. 16 Ex. 11) Thus, Gelman’s report showed that he completed one
article for publication during the relevant time period.
As for “service,” Gelman disagrees with his score of 0 points. (Gelman depo. 100) And,
Gelman faults Boise for not appointing him to law school committees as he had done the
previous year. However, according to Boise, “other than committee work, Gelman did not list
[on his Faculty Report] any activities or information under the categories of Professional
Service, Community Service, or Contributions to building and sustaining the law school
community.” (Boise decl. ¶ 9) Gelman’s Faculty Report shows committees he served on in the
College of Law and CSU, but reported nothing under “Professional service” or “Community
Service.” (Doc. 16 Ex. 11)
On this basis, the Court does not find an issue of fact as to whether Gelman’s union
activities were a motivating factor in the amount of the merit raise awarded or whether Boise
would have awarded the same amount in the absence of Gelman’s union activities.
Additionally, as explained by defendants, Boise’s declaration testimony, supported by
contemporaneous emails, show that Boise had an honest explanation in awarding the merit
raises. In March 2013, CSU assigned a merit raise pool equal to 2.5% of the total salaries of the
law school’s faculty, or $102,569. Boise ranked each faculty member according to their teaching,

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scholarship, service, and other contributions. He created two top tiers of merit raises ($5000 and
$3000). The remaining pool was divided among the rest of the faculty (including Gelman) and
they were to receive merit raises of $727. In April, Boise was notified by CSU’s Director of
Fiscal Operations that it had provided him an incorrect number for his merit pool and thus the
raises needed to be reduced by $3,067. The next day, Boise resubmitted the merit raise awards
making adjustments for a few particular individuals and then again divided the remainder among
the rest of the faculty. This time the mathematical calculation resulted in 10 faculty members
who were previously to receive $727, receiving $666 in additional salary. Boise’s corrected
faculty merit raises were approved. (Boise decl. ¶¶ 10-14; Exs.)
Summary judgment is appropriate as to Count One. 5
(b) Lifter
Count Two alleges that defendants retaliated against Lifter for Gelman’s First
Amendment activities by terminating her employment. Defendants argue that there is no
evidence of pretext. Where there are “questions of fact surrounding [the termination], it follows
that there are questions of fact as to whether the speech was a substantial or motivating factor”
for it. Stinebaugh v. City of Wapakoneta, 630 Fed.Appx. 522, 530 (6th Cir. 2015). As discussed

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Additionally, the Court notes that the union filed an unfair labor practice charge
with SERB against the law school over the $666 raises. On November 14, 2013,
SERB dismissed the charge with prejudice for lack of probable cause and found
that the law school “did not take adverse action against the [union] organizers,
nor is there a reasonable inference of adverse action when they were awarded a
merit increase of $666 or $0.” (Doc. 16 Ex. 20) SERB also noted, “Although it is
suspect that the majority of the faculty receiving the $666 raises were the union
organizers, the Charged Party provided a plausible explanation as to how the
merit raises were awarded...” (Id.)
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below, the Court finds no issue of fact as to motivation.
Defendants contend that Boise terminated Lifter to meet the budget reductions required
by CSU. Ample evidence is discussed above supporting this reason. Additionally, the June
2014 paperwork completed by Boise for the elimination of Lifter’s position attached a separate
paper explaining the “rationale for layoff” which indicates the following. The number of law
school applications had been precipitously declining since 2009, culminating in the smallest
amount for the fall 2014 entering class. In response to the applications decline, the 140 Plan was
instituted in 2012 to reduce the entering class from 200 to 140 along with a tuition increase and
budget cuts. In early February 2014, the law school was asked to project class size for FY2015
which resulted in an estimation of 90 to 100 students. Tim Long, AVP for Finance and
Technology, advised the law school that a class of that size would require significant further
budget cuts. Because the largest potential budget cuts were salaries, Boise asked Associate Dean
for Administration Sundahl to evaluate where personnel reductions might be made in the law
school by reassigning or eliminating job responsibilities. Sundahl concluded that administration
and staff members could assume Assistant Dean Lifter’s responsibilities if the position were
eliminated. Her salary was also the largest of those reporting to Sundahl. Boise also appointed a
Budget Task Force which, among other things, was given six potential reductions to consider,
including the Assistant Dean for Academic Affairs- Lifter’s position. By mid-April applications
remained down and a class size of 125 incoming students for FY2015 was projected. The
projected budget shortfall based on the 125 class size was over $700,000. In order to close the
deficit, several budget cuts suggested by the task force were adopted including the elimination of
the Assistant Library Director position, elimination of a support staff position, relinquishing an

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open clinical faculty position, reducing travel expenses, eliminating summer research grant
support, and reducing the number of adjunct-taught courses. But, additional reductions were
necessary as these fell short in closing the deficit. The task force had observed in its report that
administrative salaries were one of just five expense lines in the budget that had increased from
FY2011 through FY2014, while there had been reductions for doctrinal and clinical faculty
members. Accordingly, the Assistant Dean for Academic Affairs position would be eliminated
with four other positions assuming the duties as part of a total package of budget cuts to reduce
the law school deficit. (Doc. 16 Ex. 34)
Plaintiffs assert that the evidence casts doubt on Boise’s true motivation given that Boise
has offered conflicting reasons for terminating Lifter, the only person at the law school who was
terminated. Plaintiffs point to the following. At the time of her termination in June 2014, Boise
informed the faculty by email of June 30, 2014:
On the day that I was required to make a final decision about what I expected our
entering class for this year would be, we had received second deposits from 142
students. Based on our historical summer melt percentage, which has been around
10%, that would leave us with 127 students this fall. Thus, that we would enroll a
class of 125 students seemed to be a prudent assumption to make based on the
information that was available when I had to make the final budget decision.
(Gelman decl. Ex. A) Boise acknowledged at deposition that according to an Admissions report,
as of June 2014, 143 second seat deposits (i.e., those committing to attend) had been paid which
exceeded the previous year’s. (Boise depo. 192)
Plaintiffs assert that this email made no reference to budget cuts demanded by CSU other
than to account for a smaller class. With regard to how he determined the smaller class, Boise
testified at deposition that the “summer melt” was only 3%, not 10%. (Id. 199)
Additionally, in September 2014, Boise told the faculty that he based his decision on 130
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“first seat deposits” and that “our historic melt rate from first deposits is 17%.” (Doc. 20 Ex. 23)
Moreover, Boise had asked Sundahl for a list of Lifter’s job duties before the Budget Task Force
had submitted its report to him. (Sundahl depo. 29-30) Plaintiffs assert that Boise’s explanation
to the faculty differed from his rationale given to the university in his Rationale for Reduction in
Work Force (discussed above).
For the following reasons, the Court finds no issue of fact as to whether Gelman’s union
activities were a motivating factor behind Lifter’s termination or whether Boise’s decision to
terminate her would have been the same absent Gelman’s conduct.
Initially, defendants point out that plaintiffs do not dispute the following facts which
show that Boise’s decision to eliminate Lifter’s position was prompted by budget cuts mandated
by CSU- his asserted reason for her termination. Gelman acknowledged that during the relevant
time, the law school experienced application decline that exceeded the national averages.
(Gelman depo. 40) The declaration testimony of CSU’s Finance and Technology Vice President
Tim Long, who oversees CSU’s annual fiscal budget, is that the budget is tied to the admission
cycle and the law school’s enrollment had been steadily declining for ten years with a 28%
decline in student credit hours since 2011. Projections for fall enrollment had to be submitted to
him by April. (Long. decl.) The law school’s Assistant Dean of Admission and Financial Aid
Christopher Lucak presented testimony that by mid-April, the number of applications was
significantly down (28%) from the previous year. Based on the admission information that he
supplied, Boise estimated in April 2014 that the incoming 1L class size for the fall of 2014
would be 125. This was an aggressive estimate and higher than the projection Lucak had
provided to Boise at that time. (Christopher Lucak decl.) According to Long, Boise submitted

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the law school’s budget to him with a projected first year class size for the incoming year of 125.
On this basis, CSU required that the law school reduce the budget by $735,000. Boise submitted
his budget which included the elimination of Lifter’s position. (Long decl.)
Plaintiffs’ arguments that Boise’s reason for eliminating Lifter’s position changed are not
persuasive. Boise’s June 30 2014 email to the faculty is consistent with the reason that he
eliminated Lifter’s position- budgetary constraints: “[T]he University did require us to make
budget cuts sufficient to offset any revenue lost by virtue of a smaller entering class for FY 2015.
Those budget cuts totaled nearly $735,000, and included the elimination of four positions... and
as you know, ... Jean Lifter.” (Doc. 20 Ex. 24 Ex. A)
Plaintiffs cite the reference in this email misstating that there were 142 deposits at the
time Boise eliminated Lifter’s position. However, Boise later corrected the misstatement
showing that these deposits had not been received as of mid-April when the budget was set and
the decision made. In his statements to the faculty in the September 11, 2014 meeting, Boise
communicated that “the College of Law must submit our budget to the administration on April
15, 2014.” (Doc. 20 Ex. 23) And the minutes also showed,
Professor Gelman stated that the decision-making was inconsistent with Dean Boise’s
June 30th email. At that time Dean Boise stated that there were 142 second seat deposits,
and that based on a historical 10% melt, he estimated an incoming class of 125. Jean
Lifter looked at the past summer melt percentages and they have never exceeded 6%. On
April 11th we were running 50% ahead of previous year in terms of melt and one-third
ahead of last year in second deposits. According to Christopher Lucak, Assistant Dean of
Admissions, we were getting no calls from students saying they had an offer from Akron,
which has been in past years a large source of poaching. Therefore, the Board of
Trustees was misinformed in June when they were told that the estimate form the
incoming class was 120. Dean Boise responded that he had previously acknowledged
that the numbers he cited in his June 30th email supported a smaller projected class size,
but were based on the wrong date. The numbers on the correct date, April 15, even more
strongly supported an expectation of a reduced class size.

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(Id.)
Further, in an October 2014 email to the faculty responding to questions raised in a prior
email from Gelman, Boise stated:
It’s important to understand, as I have stressed before, that our minimum entering class
size of 125 was determined in April when our budget was submitted to the university
administration. At that time, a reasonable projection of our entering class size would have
been well below 125 students. College budgets are not subsequently revised after
submission, regardless of additional data that may become available. To change
projections of our class size in late June would require the recalculation of an entire
university budget that must be approved by the Board in that month. This is unfortunate,
because it means our projections must be made very early in the admissions cycle, but it
is the system within we work.
(Doc. 16 Ex. 37) Plaintiffs also point out that Boise cited different melt rates in his June 2014
email to the faculty and his September 2014 comments at the faculty meeting. (Doc. 20 Exs. 24
and 23). Again, these do not alter the reason for the decision- budgetary constraints based on
enrollment projections which had to be made in April 2014 and were set for that year.
Moreover, defendants point out that the reason for the decision, i.e., a consequence of the
direction by CSU to cut the budget, was stated consistently in Boise’s various statements
concerning Lifter’s termination: 1) The June 18, 2014 paperwork completed by Boise for the
elimination of Lifter’s position gives as its rationale the budget cuts mandated due to the midApril projected incoming class size of 125. (Doc. 16 Ex. 34) 2) The June 30, 2014 email from
Boise to the faculty explains that the projected entering class of 125 required that budget cuts be
made and which resulted in the elimination of four positions, including Lifter’s. (Doc. 20 Ex. 24)
3) Boise’s August 4, 2014 written response to Lifter’s grievance states that budget cuts were
necessary based on the reasonable projections for FY2015 enrollment and the 125 student
projection was a “prudent assumption” made on the information available. (Doc. 20 Ex. 21) 4)

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Boise’s oral statements made at the September 11, 2014 faculty meeting explain how he made
“the most realistic, conservative projection [of class size] on the data before him” at the time he
had to submit the budget in April 2014. (Doc. 20 Ex. 23) 5) Boise’s October 26, 2014 email to
the faculty responds to points raised in Gelman’s earlier emails and again stresses that “our
minimum entering class size of 125 was determined in April when our budget was submitted to
the university administration. At that time, a reasonable projection of our entering class size
actually would have been well below 125 students...” (Doc. 16 Ex. 37) These pre-litigation
statements are consistent with Boise’s declaration testimony herein that he eliminated Lifter’s
position “based on CSU’s requirement that Cleveland-Marshall’s budget for 2014-2015 be cut
by approximately $735,000, and the fact that the Task Force’s recommendations did not provide
immediate budget cuts of this amount.” (Boise decl. ¶ 28)
The law school had to submit its budget to CSU by mid-April each year. Once submitted,
the budget cannot be changed. The class size projection had to be made by that time. There is no
evidence that the class size projections made by April 2014 were wrong or based on faulty
information. Even had the entering class for 2014 exceeded the projected amount, it would not
have affected the budget.
Contrary to plaintiffs’ assertion, the fact that the law school had 142 second seat deposits
in June 2014 would not have impacted the budget which was set in April as Tim Long stated that
any activities taking place after April 2014, including increased enrollment, could not have
impacted the law school’s budget for that year. (Long decl. ¶ 13)
For these reasons, there is no issue of fact as to whether Gelman’s union activities were a

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substantial or motivating factor behind Lifter’s termination.6 Summary judgment is appropriate
as to Count Two. 7
Conclusion
For the foregoing reasons, defendants’ Motion for Summary Judgment is granted.
IT IS SO ORDERED.

Dated: 8/17/16

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge

6

Furthermore, defendants present ample evidence that Boise actually provided
positive benefits to faculty members who were active in the union organizing
campaign, including Gelman. This casts doubt on plaintiffs’ assertion that Boise’s
motivations were to punish Lifter for Gelman’s activities. In particular, Brian
Glassman, who Gelman identified in his deposition as a “union organizer”
(Gelman depo. 80), had his contract renewed by Boise for a period of five years in
February 2014. (Boise decl. ¶ 19, 24, Doc. 16 Exs. 21, 25) Boise awarded Brian
Ray, identified by defendants as the “union’s chief negotiator” and by Gelman as
a union supporter (Gelman depo. 84), the highest possible merit raise in 2012 and
2013. (Doc. 16 Exs. 12, 14). In the spring of 2013, Boise appointed Gelman to the
search committee to fill the position of Law Library Director at the law school, a
tenured faculty position. (Boise decl. ¶ 16) In June 2014, Boise approved
Gelman’s request for the purchase of a $1000 standing desk. (Id. ¶ 17) In the
spring of 2014, Boise promoted Milena Sterio, a union member and proponent, to
the position of Associate Dean over several candidates who were not affiliated
with the union but who applied for the position. (Id. ¶ 33) Finally, Boise awarded
Gelman a retirement incentive buyout payment of $93,414 in February 2015.
(Gelman depo. 193; Ex.1 Interrogatory No. 17)

7

Because the Court finds that summary judgment is warranted on Counts One and
Two, it need not reach defendants’ arguments that 1) plaintiffs failed to mitigate
their damages by not looking for other employment after leaving CSU and 2)
plaintiffs’ damages must be reduced by amounts they received as retirement
benefits from STRS and OPERS.
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