Jacobs v. Thomas-Williams, et al.

Filing 52

Order granting Motion for summary judgment ( Doc. 32 ) and denying Motion to Strike (Doc. 46 ). Judge Jack Zouhary on 7/27/18.(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

D’Naie Jacobs,

Case No. 17 CV 48
Plaintiff,

ORDER GRANTING
SUMMARY JUDGMENT

-vsJUDGE JACK ZOUHARY
University of Toledo,
Defendant.

INTRODUCTION
Plaintiff D’Naie Jacobs brings this action against her former employer, Defendant University
of Toledo (UT), under Title IX, 20 U.S.C. § 1681 et seq. Jacobs claims UT unlawfully discriminated
against her based on her sex. UT moves for summary judgment (Doc. 32). The Motion is fully
briefed (Docs. 40, 47). Jacobs moves to strike certain evidence which UT filed with its Motion (Doc.
46). That, too, is fully briefed (Docs. 48–49).
BACKGROUND
The following facts are undisputed unless otherwise noted. Jacobs began working for UT in
2007, where she continued to work in a variety of positions until July 2015. In January 2013, she
was hired as Interim Dean of YouCollege, a new “portal college” designed to support student success
and retention (Doc. 30-1 at 9; Doc. 38-1). In April 2014, she became Dean of YouCollege (Doc. 382). While serving in these positions, Jacobs reported to the Provost and Executive Vice President for
Academic Affairs (see Doc. 30-1 at 9–11; Doc. 40-9 at 9). Scott Scarborough held this position when

Jacobs was hired as Interim Dean. John Barrett became Interim Provost shortly after she became
Dean (Doc. 30-1 at 11).
During this time period, Jacobs was an at-will employee -- she could be terminated for any
lawful reason, or for no reason at all, with sixty days’ notice (id. at 11, 16). As Dean, Jacobs was the
“chief administrative officer and academic leader” of YouCollege and was responsible for the
“successful planning, organizing, policy development, implementation and direction of all aspects of
the College” (see Doc. 38-1). She was also responsible for complying with UT policies and
procedures (Doc. 38-1; Doc. 38-2).
Investigation into YouCollege
Around January 2015, Jovita Thomas-Williams (Vice President of Human Resources) began
receiving complaints from YouCollege staff about potential Family Educational Rights and Privacy
Act (FERPA) violations, role confusion, and other work environment issues (Doc. 39 at 1; Doc. 391). Thomas-Williams and Barrett met with Jacobs to discuss the complaints and to inform her they
were launching an investigation into YouCollege (Doc. 30-1 at 23–24; Doc. 39 at 1–2). Hoping the
investigation would assist with issues she recognized, Jacobs initially welcomed the inquiry and
encouraged her staff to be forthcoming (Doc. 30-1 at 24–26; Doc. 36-1 at 2).
Thomas-Williams assigned Melissa Studer (then Melissa Auberle) to lead the investigation
(Doc. 36 at 1–2; Doc. 39 at 2). At that time, Studer was a Senior Human Resources Compliance
Specialist, and she had extensive experience conducting workplace investigations at UT (Doc. 36 at
1). Studer and Thomas-Williams began the investigation by interviewing Jacobs (Doc. 31-1 at 8;
Doc. 36 at 2). During the interview, Jacobs discussed her view of what was and was not working in
YouCollege (see Doc. 30-1 at 26–30; Doc. 36 at 2).

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Studer then interviewed sixteen other YouCollege staff members as well as Julie FischerKinney (former Associate Dean of YouCollege). With input from Thomas-Williams, Studer drafted
ten standard questions to guide the interviews (Doc. 36 at 2). Although Studer began each interview
with these questions, she would also ask follow-up questions depending on the information disclosed
(Doc. 31-1 at 8). Some YouCollege staff members brought documents with them to their interviews,
and others sent Studer additional details via e-mail (Doc. 36 at 2). Many raised concerns about
Jacobs, Crystal Taylor (Associate Dean of YouCollege), and two male Success Coaches (see Doc.
31-1 at 9; Doc. 36 at 2–3). Some suggested Jacobs should be terminated (Doc. 31-1 at 13). Studer
prepared a “Climate Assessment” summarizing the information shared during the interviews and her
findings (Doc. 36 at 2–3). Thomas-Williams reviewed a draft of the Climate Assessment and
discussed Studer’s findings with her before the Assessment was submitted in March 2015 (Doc. 39
at 2; see also Doc. 38-9).
Climate Assessment Findings
The reported purpose of the Climate Assessment was “to solicit feedback from members of
the YouCollege team with regard to practices within the workplace . . . that influenced success in
achieving the mission of YouCollege as well as behavior contributing to YouCollege team members
feeling valued and evidence of an environment of fair and respectful treatment” (Doc. 38-9 at 2). It
provided insights into three categories: organization, leadership oversight and support, and team
dynamics.
The Assessment reported “several organizational issues impeding the success of
YouCollege,” including that “[s]taff is unclear of the roles and responsibilities of various YouCollege
positions,” “[t]here does not seem to be a strategic plan or vision for YouCollege,” and “the staff does
not feel that they can speak honestly and candidly around management” (id. at 2–3). Further, “[s]taff
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members repeatedly stated that management does not follow the department’s procedures,” and “[a]
number of staff members indicated that the budget is mismanaged” (id. at 3).
As for leadership oversight and support, “a number of staff members commented that they
had not been properly onboarded when they began their positions at YouCollege” (id. at 4). This left
them “unable to answer questions from staff and students” and without “the proper resources to
complete projects” (id.). Other staff members reported that two male Success Coaches “routinely
received preferential treatment from management” (id.).
The Assessment discussed “a number of conflicts” between Jacobs and the Success Coaches,
Jacobs and Taylor, and Jacobs and other current and former YouCollege staff members (id. at 7–9).
It reported that “Jacobs puts the Success Coaches in the middle of interpersonal issues between herself
and Fischer-Kinney,” and that she “does not model the behavior or follow the same rules she sets for
the Success Coaches” (id. at 7). The Assessment also reported “numerous conflicts between Jacobs
and Taylor (many of which have been aired publicly)” -- “[e]very staff member interviewed stated
that the tension between Jacobs and Taylor [was] palpable” (id. at 9). Further, YouCollege staff
disclosed that Jacobs demonstrated “a number of incidents of unprofessional behavior,” including
making “several discriminatory remarks” about students and potential job candidates (id. at 9–10).
The Assessment also found Jacobs violated a variety of UT policies and procedures,
including: (1) UT’s Confidentiality of Student Records policy and FERPA by sending probationary
students letters “meant for other probationary students” and by “ask[ing] staff members to meet with
probationary students prior to having received FERPA training,” contrary to “standard practice” (id.
at 6, 13); (2) UT’s Access Control policy by “frequently g[iving] her [UT Account Domain] and
password information to front desk students to work on projects on her behalf” (id.); (3) UT’s
Purchasing Card policy by “requir[ing] a front desk student to perform several tasks using her P-card”
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(id.); (4) UT’s Sexual Harassment and Other Forms of Harassment policy by making discriminatory
remarks (id. at 9–10, 13); and (5) UT’s Standards of Conduct policy by making other inappropriate
comments (id.).
The Assessment concluded that “[t]he current YouCollege leadership is ineffective and is
known to leverage bullying and fear tactics when interfacing with staff and students. Equally
concerning is the fact that assessment interviews of YouCollege leadership and staff have highlighted
that there is little or no respect between management and the staff” (id. at 13). Studer found that the
work environment issues “contributed to retention challenges” and also “damaged working
relationships with other UT colleges and departments” (id.). She recommended “[d]isciplinary
action” for Jacobs and Taylor for their UT policy violations, and “strongly recommended” that the
two male Success Coaches be “held accountable for their actions and unsatisfactory performance”
(id.). She further recommended that a “clear” organization chart and plan be developed and
communicated to YouCollege staff (id. at 14).

Finally, she encouraged “a comprehensive

compensation analysis for Success Coaches” to be completed “as soon as possible to ensure market
competitiveness and proper internal equity for similar positions across” UT (id.).
Jacobs does not dispute that YouCollege staff members complained to HR, or that staff
members disclosed to Studer the issues identified in the Climate Assessment. In fact, she testified
during her deposition that “[HR] reported what they heard” and that YouCollege staff “provided their
account” of what was happening (Doc. 30-1 at 52–53). But she contends HR “received one-sided
information,” and Studer “did not report on the complete picture” because the Climate Assessment
excluded information Jacobs disclosed during her interview and provided to Nagi Naganathan
(Interim President of UT) before the investigation (id. at 35, 51–53; Doc. 40 at 3–4). Jacobs also
criticizes the Assessment for not being “an actual presentation of an assessment of the [C]ollege” like
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Barrett and Thomas-Williams “insinuated it would be,” but rather a report that “reveals ‘dirt’ on [her]
in a conclusory fashion with little support” (Doc. 40 at 3).
Response to the Climate Assessment and Pre-Disciplinary Hearing
After the Climate Assessment was submitted, Thomas-Williams discussed the results with
Barrett (Doc. 39 at 2). They agreed to place Jacobs and Taylor on paid administrative leave pending
pre-disciplinary hearings (id.). On March 12, 2015, Barrett and Thomas-Williams reviewed the
results of the Climate Assessment with Jacobs, and she was placed on administrative leave effective
immediately (Doc. 30-1 at 32, 35–36).
One week later, Jacobs, Taylor, and the two male Success Coaches were provided a formal
pre-disciplinary hearing before Hearing Officer Megan Rayfield (Doc. 36 at 3; Doc. 39 at 2). At
Jacobs’ hearing, Studer presented the findings and conclusions of the Climate Assessment (Doc. 36
at 3); Jacobs responded with information she believed the Assessment missed or misreported (Doc.
30-1 at 37–39; see also Docs. 38-10, 38-11). On April 9, 2015, Rayfield submitted a Report
confirming Jacobs violated several UT policies and procedures, and recommending she “be
terminated effective immediately” (Doc. 38-12 at 21–22). Rayfield also recommended Taylor and
the two male Success Coaches be terminated effective immediately (Docs. 36-6, 36-7, 36-8).
Termination
Rather than terminate the four employees immediately, Thomas-Williams and Barrett decided
to give them ninety days’ notice (Doc. 36 at 3; Doc. 39 at 2). Jacobs was given notice on April 15,
2015. At her attorney’s request, the notice was amended to indicate she was being terminated without
cause (see Docs. 38-14, 38-15). Jacobs then requested a “name clearing hearing” (Doc. 39 at 3; see
also Doc. 30-1 at 44). UT agreed to provide a public forum, but Jacobs declined to go forward with

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the hearing (Doc. 30-1 at 44; Doc. 39 at 3). Her employment with UT terminated on July 14, 2015.
Fischer-Kinney became Interim Dean of YouCollege (see Doc. 39 at 2).
Terence Romer -- Non-Protected Employee Allegedly Treated More Favorably
Around this same time, UT also investigated UT Registrar Terence Romer. UT decided to
investigate Romer after receiving anonymous complaints in March 2015 about “a number of instances
of unprofessional and inappropriate behavior over the past approximately one-year period” (Doc. 43
at 3; see also Doc. 36 at 3–4). Because some of the complaints raised possible Title IX violations,
UT brought in outside counsel, Cheryl Wolff, to participate in the investigation with Studer (Doc. 36
at 3–4; see also Doc. 31-2 at 10). Romer was placed on administrative leave during the investigation
(Doc. 36 at 4).
In late April 2015, Wolff drafted a Report summarizing their findings and the information
disclosed by the thirteen witnesses interviewed, including Romer (Doc. 31-2 at 12; Doc. 43). The
witnesses expressed concern about the appearance of a personal relationship between Romer and
Jamie Daughten (the Associate Registrar), inadequate communication and poor staff relationships
within the Registrar’s office, retaliation from leadership, and possible FERPA violations (Doc. 43 at
16–17; see also Doc. 36 at 4). The Report noted that “[t]here was remarkable unanimity among
witnesses in their concerns for the operations of the Registrar’s office” (Doc. 43 at 16).
Although “[n]early every witness interviewed commented on the appearance of a personal
relationship between [Romer] and Daughten,” both Romer and Daughten denied dating or having a
sexual relationship (id. at 17). The Report ultimately determined that there was “insufficient
evidence” to conclude that such a relationship existed (id.). But it noted that the appearance of such
a relationship had a “deleterious effect on the operations of the Registrar’s office” and was
“unprofessional” (id.). The Report further recognized that most witnesses “remarked on the lack of
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communication by leadership in the Registrar’s office” and poor staff relations (id. at 18). The Report
concluded that Romer violated UT’s Retaliation and Standards of Conduct policies, but concluded
there was “insufficient evidence” from which the investigators could conclude that Romer violated
FERPA (id. at 19).
Because of the “serious concerns reflected in this [R]eport,” the investigators recommended
that Romer not continue as Registrar (id.). But because Romer “br[ought] many technical skills to
his work for the University,” they suggested “it may be possible to utilize those skills in another
position for which he is better suited” (id.). The Report “referred” the matter “to the University’s
Human Resources Officer and [Romer]’s supervisor for appropriate action” (id. at 20).
Romer voluntarily agreed to step down as Registrar before the investigation was completed,
and was eventually transferred into the position of Director of Strategic Initiatives. In this position,
he received the same rate of pay, but did not have any direct reports.
MOTION

TO STRIKE

Jacobs moves to strike the affidavit of Margaret Traband, the Vice Provost for Academic
Affairs (Doc. 35), any reference to Traband in Thomas-Williams’ affidavit (Doc. 39), and e-mails
that “purportedly establish” Jacobs violated FERPA (Doc. 34). Jacobs argues Traband was never
revealed as a witness (Doc. 46 at 1). She contends she is prejudiced by Traband’s testimony because
“UT asserts, for the first time, that Ms. Traband was the decision-maker to whom Plaintiff’s male
comparator, Terence Romer, allegedly reported to within the [U]niversity” (id. at 4), and that “Ms.
Traband was the exclusive decision maker over Mr. Romer’s lenient treatment with UT” (id. at 5).
UT responds that it never disclosed the name of Romer’s supervisor to Jacobs because it
“never believed that Mr. Romer is similarly situated to Ms. Jacobs” (Doc. 48 at 1–2). But it did
“produce records regarding Mr. Romer that refer to Ms. Traband” and otherwise provided the
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information in her affidavit through responses to written discovery requests (id. at 2). UT argues that
the failure to list Traband did not prejudice Jacobs for these reasons and because UT “does not and
has never claimed that Traband was the sole or exclusive decision maker” over the decision to transfer
Romer (id. at 6). Further, UT contends that all the statements in Thomas-Williams’ affidavit were
based on her personal knowledge (id. at 7–8).
E-mails
Their admissibility is immaterial. This Court does not rely or consider them in deciding this
case.
Affidavits
UT had a justifiable reason not to disclose Traband as a witness in its initial disclosures -namely, it was not yet aware that Romer was a purported comparable employee. The dispositive
question is whether UT complied with its duty to supplement. Federal Civil Rule 26(e)(1)(A) requires
a party to supplement its disclosures “if the party learns that in some material respect the disclosure
or response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.” If a
party fails to do so, Federal Civil Rule 37(c)(1) calls for the exclusion of the information or witness
“unless the failure was substantially justified or is harmless.”
This Court finds that UT complied with its duty to supplement under Rule 26(e), and even if
it did not, the failure was harmless. Contrary to Jacobs’ assertions, UT does not contend that Traband
was the sole decision maker involved in Romer’s investigation or the decision to transfer him. Any
such assertion would be inconsistent with UT’s own admission that “Thomas-Williams was involved
in the decision to transfer Mr. Romer” (Doc. 46-3 at 5), as well as Traband’s averment that “we
transferred Mr. Romer” (Doc. 35 at 2) (emphasis added). As for the fact that Romer reported to
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Traband and Traband was involved in his investigation, this information was either “already made
known,” or UT’s failure to supplement was harmless given the information available to Jacobs
through other sources. For example, UT provided documents to Jacobs, which she relies on in her
Opposition to Summary Judgment, which clearly reflect that she and Romer did not report to the
same supervisor (see Doc. 40-9 at 9–10, 18–19). This Court also notes that Jacobs has not pointed to
any written discovery request directly asking to whom Romer reported, or requesting the names of
all those involved in the decision to transfer Romer.
In addition, Studer told Jacobs’ counsel that she spoke with Traband during the course of
Romer’s investigation (Doc. 31-2 at 13). Her deposition testimony also discloses that Traband
received complaints from Registrar employees and was the person who approached Romer to ask
whether he was involved in a personal relationship with Daughten (id. at 12). Considering Jacobs’
focus on UT’s alleged deference to Romer during his investigation, her argument that she had “no
reason to engage in further discovery” in light of this information is suspect (see Doc. 49 at 5).
Jacobs “cites no binding authority for the proposition that Rule 26(e) requires . . . an explicit
statement [that a party intends to rely on a witness] and, in any event, this alleged deficiency would
not change [this Court’s] disposition of th[e] issue.” See Baker Hughes, Inc. v. S&S Chemical, LLC,
836 F.3d 554, 568 (6th Cir. 2016). Further, while Traband’s affidavit is certainly relevant, her
testimony is not dispositive to resolving the Motion for Summary Judgment.
Finally, the Motion to Strike the references to Traband in Thomas-Williams’ affidavit is
denied for similar reasons. In addition, there is no evidence that Thomas-Williams made these
statements by “improperly rel[ying] upon Ms. Traband’s testimony” (Doc. 46 at 1), rather than her
own knowledge as Vice President of Human Resources and her personal involvement in Romer’s
transfer.
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*

*

*

MOTION FOR SUMMARY JUDGMENT
STANDARD OF REVIEW
Summary judgment is appropriate if there is “no genuine dispute as to any material fact,” and
the moving party “is entitled to judgment as a matter of law.” Federal Civil Rule 56(a). When
considering the Motion for Summary Judgment, this Court must draw all inferences from the record
in the light most favorable to Jacobs. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). It may not weigh the evidence or make credibility judgments. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). But “[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.” Expert Masonry, Inc. v. Boone Cty, Ky., 440 F.3d 336, 341 (6th
Cir. 2006) (citation omitted).
DISCUSSION
Title IX prohibits entities receiving federal funds from discriminating on the basis of sex in
education programs or activities. 20 U.S.C. § 1681; 34 C.F.R. pt. 106. Courts analyzing Title IX
discrimination claims look to Title VII cases for guidance. See, e.g., Nelson v. Christian Bros. Univ.,
226 F. App’x 448, 454 (6th Cir. 2007). Like Title VII claims, a plaintiff may establish a Title IX
claim “either by introducing direct evidence of discrimination or by presenting circumstantial
evidence that would support an inference of discrimination.” Laster v. City of Kalamazoo, 746 F.3d
714, 726 (6th Cir. 2014). Jacobs argues she has done both.
Direct Evidence
“[I]f a plaintiff is able to produce direct evidence of discrimination, [s]he may prevail without
proving all the elements of a prima facie case.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511
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(2002). “[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. ScheringPlough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). It “proves the existence
of a fact without any inferences or presumptions.” Laderach v. U-Haul of Nw. Ohio, 207 F.3d 825,
829 (6th Cir. 2000) (citation omitted). Although “[d]iscriminatory remarks by decision makers . . .
can constitute direct evidence of discrimination,” only “‘the most blatant remarks, whose intent could
be nothing other than to discriminate on the basis of [gender],’ satisfy this criteria.” Sharp v. Aker
Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013) (citations omitted).
Jacobs argues that comments allegedly made by Naganathan at the end of summer 2016, over
a year after her termination, are direct evidence of discrimination because “they were still topically
related to the decision to termination [sic]” (Doc. 40 at 10). At that time, Jacobs arranged a meeting
with Naganathan to seek his advice about how to get another job (Doc. 30-1 at 45). She claims that
during the meeting, he told her she “wore too many dark clothes” (id. at 58). She also contends that
he “asked what [her] husband’s position was,” and then “insinuated” that “a woman should know her
role if the husband has a more important position” through a story “describing the situation of
himself” and his wife (id.). She could not recall his exact words (id.). She also alleges they “had
conversations about what had happened to [her],” and she told him she believed it was “unfair” (id.
at 45, 59). “[S]ome of [Naganathan’s] response” was “that [she] never deserved [her] position” (id.
at 45, 58). Naganathan did not explain why he believed this, but Jacobs “assume[d]” it was because
she was a woman (id. at 59).
The only comment by Naganathan that was somewhat “topically related” to the decision to
terminate Jacobs is his statement that she did not deserve her position. But as Jacobs admitted,
Naganathan did not provide a reason for his belief -- her assumption that it was because of her sex is
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not direct evidence of discrimination. Naganathan’s comment about her clothes did not directly
implicate her sex or her termination. And although she attempts to argue in her Opposition that
Naganathan’s isolated comment about gender roles was a direct statement and “not simply an
‘insinuation’” (Doc. 40 at 10), this mischaracterizes her own deposition testimony (Doc. 30-1 at 45–
46, 58–59). None of these comments “require the conclusion” that Jacobs’ termination was motivated
by her sex.
Further, Jacobs points to no evidence showing Naganathan played any significant role in the
investigation of YouCollege or the decision to terminate her. Jacobs relies on a July 2013 policy to
show that as Interim President, Naganathan had to make the final recommendation of termination to
the Board of Trustees (see Doc. 40-7). But UT provides a July 2014 resolution showing his
recommendation was not required (Doc. 47-1). Further, both Studer and Thomas-Williams aver that
the decision to terminate Jacobs was made by Thomas-Williams and Barrett (Doc. 36 at 3; Doc. 39
at 2). And consistent with the July 2014 resolution, both the notice placing Jacobs on administrative
leave and her notice of involuntary separation were signed by Thomas-Williams as an “Appointing
Authority,” with only Barrett copied in the communication (Doc. 38-7; Doc. 38-14). Jacobs
recognizes as much in other filings with this Court.
Jacobs asserts that summary judgment should be denied because “prior to the publication of
the Climate Assessment” and her termination, “Thomas-Williams provided a copy of the finished
[Assessment] to Dr. Naganathan ‘per his request’ and inquire[d] if he need[ed] anything further”
(Doc. 40 at 10–11) (emphasis in original) (quoting Doc. 40-8). This e-mail was sent on April 2, 2015,
weeks after the final Climate Assessment was submitted and presented at Jacobs’ pre-disciplinary
hearing. There is no evidence showing Naganathan had any contact with Studer or Thomas-Williams
about the Climate Assessment before it was finalized, or with Hearing Officer Rayfield before she
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issued her Report recommending Jacobs and the three other YouCollege employees be immediately
terminated. Thomas-Williams avers that she “did not seek or receive input from anyone else
regarding the draft report or recommendations of the Climate Assessment” (Doc. 39 at 2), and Studer
testified at her deposition that she did not have any communication with Naganathan prior to the
investigation and did not receive any input from him in drafting the Climate Assessment (Doc. 31-1
at 7, 13). Jacobs presents no evidence contradicting this sworn testimony.
At most, the April e-mail suggests that Naganathan became aware of the YouCollege
investigation at some point before Jacobs was terminated -- it does not suggest when, or under what
circumstances. Her “[c]onclusory statements unadorned with supporting facts” that Naganathan
influenced or made the decision to terminate her “are insufficient to establish a factual dispute that
will defeat summary judgment.” See Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009).
Circumstantial Evidence
Circumstantial evidence can be used to raise an inference of discrimination by applying the
burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Jacobs
must first establish a prima facie case of discrimination by showing she (1) is a member of a protected
class; (2) was terminated; (3) was qualified for the position; and (4) was replaced by a person outside
the class, or was treated differently than similarly-situated, non-protected employees. Braithwaite v.
Timken Co., 258 F.3d 488, 493 (6th Cir. 2001).
If Jacobs can establish a prima facie case of discrimination, UT must articulate some
legitimate, non-discriminatory reason for its action. Id. And if UT satisfies this burden, Jacobs must
prove that UT’s proffered reason was a pretext for discrimination. Id.

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Prima Facie Case: Similarly Situated
UT argues that even if Jacobs can establish the first three prongs of a prima facie case, she
cannot establish the fourth prong: that she was replaced by a man or treated less favorably than a
similarly-situated non-protected employee. It is undisputed that Jacobs was replaced by a woman.
Jacobs therefore argues that Romer is a comparable non-protected employee who was treated more
favorably by UT.
To satisfy the fourth prong of the prima facie case, a proposed comparator “need not be
identical [to the plaintiff] in every way.” Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th
Cir. 2016). But the plaintiff “must show that the comparator is similarly situated in all relevant
aspects and has engaged in acts of comparable seriousness,” but was disciplined differently. Id.
(emphasis added). Courts must make an “independent determination as to the relevancy of a
particular aspect of the plaintiff’s employment status and that of the [comparator]” based on the
particular facts and circumstances of the case. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 352 (6th Cir. 1998).
Jacobs claims Romer is sufficiently similar to meet this standard because “[b]oth held
positions of leadership, had nearly identical job duties, were both subject to at-will termination upon
90-days’ notice, were employed under the same administration, and reported and answered to the
same [P]rovost” (Doc. 40 at 13). But the documents Jacobs cites do not support several of these
assertions. While both Jacobs and Romer held leadership positions, were at-will employees, and had
some similar responsibilities, they also worked in different departments, in different roles, with
different job duties (Doc. 40-9 at 18–19; see also Doc. 38-1). See Campbell v. Hamilton County, 23
F. App’x 318, 325 (6th Cir. 2001) (“Differences in job title and responsibilities, experience, and
disciplinary history may establish that two employees are not similarly situated.”).
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Further, these documents, as well as other documents in the record, reflect that Jacobs and
Romer reported to different supervisors -- Jacobs to Barrett (the Provost) (Doc. 40-9 at 9) and Romer
either to the “VP of Operations” or Traband (Vice Provost of Academic Affairs) (see id. 18–19; see
also Doc. 39 at 3). Although “the requirement that a plaintiff and her comparator ‘must have dealt
with the same supervisor’ . . . does not automatically apply in every employment discrimination case,”
the factor is relevant under the circumstances of this case. See McMillan v. Castro, 405 F.3d 405,
414 (6th Cir. 2005). This is a case alleging differential disciplinary action, see Ercegovich, 154 F.3d
at 352, and the unrebutted evidence shows that Jacobs and Romer’s supervisors played key roles in
the underlying investigation and disciplinary decision-making process (see Docs. 35, 36, 39; see also
Doc. 30-1 at 23–24, 32–33, 36; Doc. 31-2 at 12–13; Doc. 43 at 20; Doc. 46-3 at 5).
In addition, Jacobs has not established that Romer engaged in, or was accused of engaging in,
substantially similar conduct “without such differentiating or mitigating circumstances that would
distinguish [his] conduct or [UT’s] treatment of [him] for it.” Ercegovich, 154 F.3d at 352 (citation
omitted). In order for the conduct to be considered the “same conduct,” it “must be similar in kind
and severity.” Barry v. Noble Metal Processing, Inc., 276 F. App’x 477, 483 (6th Cir. 2008).
Even assuming some of Jacobs and Romer’s misconduct was of similar severity, which UT
disputes (Doc. 36 at 4; Doc. 39 at 3), it was different in kind. Based on YouCollege staff member
complaints and interviews, the Climate Assessment found Jacobs violated several UT policies that
were not implicated in Romer’s investigation, including UT’s Access Control and Purchasing Card
policies. Further, YouCollege staff expressed concern that the budget of YouCollege was being
mismanaged, and they reported significant confusion about reporting lines, the different roles of
YouCollege staff members and leadership, and the College’s overall strategic vision. Because Romer
did not “allegedly engage[] in the range of activities for which [Jacobs] was disciplined,” he was not
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similarly situated. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 562 (6th Cir. 2004). See
also Haughton v. Orchid Automation, 206 F. App’x 524, 534 (6th Cir. 2006) (finding that plaintiff
did not engage in substantially similar conduct with proposed comparator when “only some of their
conduct was similar”); Braithewaite, 258 F.3d at 497.
Briefly, to the extent Jacobs argues her investigation itself was discriminatory, she fails to
provide evidence creating a genuine dispute of material fact as to whether these differences were
significant or impacted the ultimate decision to terminate Jacobs but transfer Romer. First, the
investigation arose under different circumstances. One was an investigation of a College, the other
of a specific individual. The anonymous complaints against Romer also raised potential Title IX
violations (Doc. 36 at 3–4; Doc. 39 at 3), whereas the complaints leading to the investigation of
YouCollege did not (Doc. 31-2 at 20–21). Both Thomas-Williams and Studer stated that it was
standard procedure to bring in outside counsel to assist in investigating potential Title IX violations
(Doc 36 at 3–4; Doc. 39 at 3). Studer also testified that in Title IX investigations, the viewpoint of
the party being investigated is more likely to be included (Doc. 31-2 at 20). Jacobs does not rebut
this testimony. Second, although Studer was involved in both the Romer and Jacobs investigations,
she did not draft the Report from Romer’s investigation (Doc. 31-2 at 20). Third, the little evidence
presented concerning Romer’s investigation shows that, although some of the key players may have
been the same, others were not (see Docs. 35, 36, 39; see also Doc. 46-3 at 5).
Other unrebutted mitigating and differentiating circumstances include the fact that Romer
voluntarily agreed to step down as Registrar before the investigatory process was completed (Doc.
31-1 at 18; Doc. 35 at 2), and that the Report from Romer’s investigation recommended that UT find
another position for him because he “brings many technical skills to his work for the University”
(Doc. 43 at 19; see also Doc. 35 at 2; Doc. 46-3 at 6). Although Jacobs notes in a footnote that she
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once held the title of Director of Strategic Initiatives, she also recognizes that the position was
“created” and “repackaged” for Romer (see Doc. 40 at 5 & n.2; Doc. 45 at 1). She does not argue, or
present evidence suggesting she had all of the same experience and qualifications necessary to
perform in the position as redesigned, or that Romer did not in fact have useful technical skills. See
Campbell, 23 F. App’x at 325.
Jacobs presents insufficient evidence to create any genuine issue of material fact as to whether
Romer was similarly situated or was treated differently for substantially similar conduct. Jacobs
therefore fails to establish a prima facie case.
Legitimate Non-discriminatory Reason and Pretext
Even assuming Jacobs established a prima facie case, she fails to demonstrate UT’s proffered
explanation is pretext for discrimination. UT has consistently asserted that Jacobs was terminated
because an investigation into YouCollege revealed she engaged in a wide range of inappropriate
conduct, failed to adequately manage her department, and violated numerous UT policies, as later
confirmed by a hearing officer (see Doc. 37 at 21–22).
Jacobs may demonstrate pretext by showing UT’s proffered reason either (1) had no basis in
fact; (2) did not actually motivate the decision to terminate; or (3) was insufficient to warrant the
decision to terminate. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th
Cir.1994), overruled on other grounds, Gross v. FBL Financial Servs., Inc., 557 U.S. 167 (2009).
Jacobs argues she has demonstrated pretext through all three methods (Doc. 40 at 20).
No Basis in Fact: Honest Belief Rule
Jacobs claims the Climate Assessment divulges “dirt” on her “in a conclusory fashion with
little support” (Doc. 40 at 3–4). She takes issue with the fact that Studer “relies entirely on
‘statements’ from staff alone with little to no verification” and did not consult her “Strategic Plan for
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the YouCollege,” YouCollege’s limited budget, or “the compensation of low-paid staff members”
(id. at 3–4).
In response, UT invokes the honest belief rule. The honest belief rule provides that “as long
as the employer honestly believed the reason it gave for its employment action, an employee is not
able to establish pretext even if the employer’s reason is ultimately found to be mistaken.” Ferrari
v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016). The employer’s intent is what matters -“arguing about the accuracy of the employer’s assessment is a distraction because the question is not
whether the employer’s reasons for a decision are right but whether the employer’s description of its
reasons is honest.” Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998) (emphasis in original)
(internal quotation marks and citation omitted). To prove a belief is honestly held, “the employer
must be able to establish its reasonable reliance on the particularized facts that were before it at the
time the decision was made.” Ferrari, 826 F.3d at 896 (citation omitted).
An employer establishes a factual basis for an employee’s termination when it conducts an
investigation, evaluates evidence, and collects witness testimony. See, e.g., Loyd v. Saint Joseph
Mercy Oakland, 766 F.3d 580, 591–92 (6th Cir. 2014); Haughton v. Orchid Automation, 206
F. App’x 524, 532–33 (6th Cir. 2006).

Here, UT conducted an extensive investigation into

YouCollege before terminating Jacobs. Studer interviewed eighteen witnesses, including Jacobs and
all available YouCollege staff, before making the findings and recommendations outlined in the
Climate Assessment. Studer avers that she “followed the same general procedure for the YouCollege
investigation” as she followed in “[her] other investigations,” and she “considered whether
[witnesses] had any reason not to be truthful” (Doc. 36 at 3). Most of the witnesses interviewed “had
consistent complaints or concerns about YouCollege” (id. at 2; see also Doc. 36-3; Doc. 31-1 at 8–

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12). As discussed, Jacobs does not dispute that YouCollege staff members disclosed the issues
outlined in the Climate Assessment (Doc. 30-1 at 35, 51–53).
There was also a pre-disciplinary hearing. At the hearing, Jacobs was presented with another
opportunity to share her side of the story. After hearing from both Studer and Jacobs, the hearing
officer confirmed the findings in the Climate Assessment and recommended that Jacobs be terminated
immediately for cause (Doc. 38-12).
All of this evidence was before UT when it made the decision to terminate Jacobs. Jacobs
does not point to any material evidence suggesting UT did not honestly believe she violated the
policies identified in the Climate Assessment, or that YouCollege was not suffering due to
mismanagement by its leadership. Further, her conclusory assertions that the Climate Assessment
was inaccurate or incomplete are insufficient to avoid summary judgment. See Haughton, 206
F. App’x at 532–33.
Jacobs argues that even if the decision was informed, it was not “non-discriminatory” because
of differences between her investigation and Romer’s investigation. But although Jacobs identifies
some minor differences in the way Romer’s investigation was conducted and the way the resulting
Report was drafted, as outlined above there were several distinguishing circumstances surrounding
the two investigations. Her arguments also fail to take into account that UT relied not only on the
recommendations of the Climate Assessment, but also the Report and Recommendation from the
hearing officer. To the extent Jacobs argues the Climate Assessment was flawed because it did not
contain or consider her version of the facts, she was subsequently provided several opportunities to
remedy any such deficiency, both in writing and in person. See Braithewaite, 258 F.3d at 497.
Though an investigation must be thorough enough for the employer’s decision to be considered and
reasonable, an employer is not required to conduct an investigation that is “optimal or le[aves] no
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stone unturned.” Smith, 155 F.3d at 807. Jacobs points to no error in her investigation, or any
difference between the investigation of YouCollege and the investigation of Romer, that is “too
obvious to be unintentional.” Id.
Did Not Actually Motivate: Naganathan’s Post-Termination Comments
To establish pretext under the second method, “the plaintiff . . . acknowledges that [the
alleged] conduct could motivate the dismissal, but attacks the employer’s explanation ‘by showing
circumstances which tend to prove an illegal motivation was more likely than that offered by the
defendant.’” Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (emphasis in original)
(citation omitted). In other words, “the plaintiff argues that the sheer weight of the circumstantial
evidence of discrimination makes it ‘more likely than not’ that the employer’s explanation is a pretext,
or coverup.” Id. (citation omitted).
Jacobs’ position seems to be based on either Naganathan’s alleged comments during their
meeting in late summer 2016 or her assertions that UT conducted her investigation in a discriminatory
manner. Both arguments have already been addressed, and both are unavailing. Considering the
context of Naganthan’s comments and his limited involvement in Jacobs’ termination, and taking
into account the differentiating circumstances surrounding the investigations of YouCollege and
Romer, neither provides a jury with a rational basis to find that UT’s proffered reason for Jacobs’
termination is untrue or that an illegal motivation was more likely.
Insufficient to Motivate: Treatment of Romer Compared to Treatment of Jacobs
To establish pretext under the third method, Jacobs must produce “evidence that other
employees, particularly employees not in the protected class, were not fired even though they engaged
in substantially identical conduct to that which the employer contends motivated its discharge of the
plaintiff.” Manzer, 29 F.3d at 1084. The differences between Romer and Jacobs and their alleged
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misconduct are discussed above. Further, the fact that three other YouCollege employees (a female
and two males) were also terminated as a result of the Climate Assessment supports Studer and
Thomas-Williams’ averments that they viewed the issues in YouCollege as more significant and
pervasive than the issues uncovered in the Registrar’s office.
*

*

*

Viewing the record in a light most favorable to Jacobs, she has produced insufficient evidence
from which a jury could reasonably find in her favor. She has failed to produce more than a scintilla
of evidence that Romer is a similarly situated non-protected employee, or that UT’s proffered
explanation for terminating her was mere pretext for discrimination.
CONCLUSION
The Motion to Strike (Doc. 46) is denied; and the Motion for Summary Judgment (Doc. 32)
is granted.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
July 27, 2018

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