Deger v. University of Cincinnati Clermont College et al
Filing
32
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 20 ). Signed by Judge Timothy S. Black on 9/30/15. (mr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ERSIN DEGER,
Plaintiff,
vs.
UNIVERSITY OF CINCINNATI,
CLERMONT COLLEGE, et al.,
Defendants.
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Case No. 1:14-cv-420
Judge Timothy S. Black
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Doc. 20)
This civil action is before the Court on Defendants’ Motion for Summary
Judgment (Doc. 20) and the parties’ responsive memoranda (Docs. 29, 31).
I. STATEMENT OF THE CASE
Plaintiff Ersin Deger alleges that Defendants unlawfully discriminated against him
based on his national origin and religion in violation of Title VII and 42 U.S.C. § 1983. 1
Plaintiff was originally hired by UC Clermont as an Assistant Professor of Mathematics
in 2009. However, the position could not support Plaintiff’s application for permanent
residency because it was not advertised in compliance with relevant federal regulations.
UC Clermont subsequently re-advertised the position and conducted a nationwide search
to fill the position. Plaintiff was selected as a finalist, but another candidate was offered
the position. Plaintiff alleges that he was not selected for the position because two
1
Defendants include the University of Cincinnati, Clermont College, Dean Gregory Sojka,
Professor Ian Clough, and Professor Margaret Hager.
members of the search committee harbored discriminatory biases against him based on
his national origin and religion.
II.
UNDISPUTED FACTS
1.
Plaintiff Ersin Deger is a resident of Istanbul, Turkey, and obtained an
undergraduate degree from Bilkent University in Ankara, Turkey in 1996.
(Doc. 13 at 6-7).
2.
After obtaining a student visa to enter the United States, Plaintiff began attending
the University of Minnesota in 1997 for a Master’s degree in Mathematics, which
he completed in 2000. (Id. at 8-10).
3.
With his student visa, Plaintiff enrolled in a Ph.D. program in Mathematics at
Purdue University, and remained in the United States on a student visa until he
obtained his Ph.D. from Purdue University in 2007. (Id. at 8-13).
4.
Plaintiff worked as a student teacher as part of his Ph.D. program at Purdue, and in
late 2006, as he approached obtaining his Ph.D. in Mathematics, he began
applying for academic positions at universities and colleges in the U.S. (Id. at 1617).
5.
Plaintiff did not take any steps toward obtaining a green card for permanent U.S.
residency while he was present on a student visa, and, instead, focused on
obtaining an academic position at a university. (Id. at 19-20).
6.
Plaintiff understood that he was personally responsible for obtaining a green card,
but hoped that by obtaining a tenure-track position with a university, the university
would apply for a green card on his behalf. (Id. at 20).
7.
Plaintiff did not obtain a tenure-track position in 2007, but instead accepted a
position as a Visiting Assistant Professor at the University of Cincinnati’s main
campus in Clifton beginning in September 2007. (Id. at 22).
8.
For the first year following his Ph.D., Plaintiff extended his student visa under
optional training status. (Id. at 26).
9. Plaintiff worked as a visiting professor of mathematics at UC’s Clifton campus
from September 2007 until the summer of 2009. (Id. at 22).
10.
In 2008, Plaintiff obtained an H1B work visa that would allow him to maintain
residency in the United States for up to six years on a worker’s visa. (Id. at 27).
2
11.
Plaintiff understood that he needed a tenure-track or permanent position to support
an application for a green card. (Id.)
12.
Plaintiff did not apply for a private sector job because he believed that his Ph.D.
and background in pure mathematics limited his employment opportunities to
academic jobs at colleges or universities. (Id. at 28).
13.
In 2009, Plaintiff applied for a tenure-track position as an Assistant Professor of
Mathematics at UC Clermont College. (Id. at 29-30).
14.
After his application in 2009, Plaintiff had a telephone interview and an oncampus interview with the search committee at UC Clermont, and Plaintiff
conducted a teaching demonstration. (Id. at 32-35).
15.
The search committee consisted of UC Clermont Mathematics Professors
Defendant Ian Clough, Defendant Margaret “Peggy” Hager, Michael Vislocky,
Teri Rysz, and Kate Lane. (Id. at 32-33, Ex. 3).
16.
Defendant Clough was the chair of the search committee, and Plaintiff
remembered that Defendant Clough spoke the most during the telephone
interview. (Id. at 34, 37).
17.
The search committee recommended that Plaintiff be offered the position of
Assistant Professor of Mathematics. (Id., Ex. 3).
18.
On August 13, 2009, interim Dean James McDonough and interim division chair
William Gay offered Plaintiff the position at UC Clermont. (Id., Ex. 4).
19.
As an Assistant Professor, Plaintiff received an initial appointment of three years,
from September 2009 to August 2012. (Id.)
20.
The appointment was made in accordance with Article 6 of the collective
bargaining agreement between the University of Cincinnati and the American
Association of University Professors (“AAUP”). (Id.)
21.
Pursuant to the CBA, Plaintiff was eligible for reappointment in 2011 to another
two-year term. (Id., Ex. 5 at 4).
22.
Under the CBA, an Assistant Professor could serve a maximum of seven years
without obtaining tenure and professors would generally leave their employment
at the College if they did not obtain tenure in that time. (Id. at 60, Ex. 5 at 4)
23.
Plaintiff renewed his HIB visa in 2010 based on his position with UC Clermont.
(Id. at 49-50).
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24.
After his initial appointment, Plaintiff began to familiarize himself with the
reappointment process, and understood that the process was governed by both the
collective bargaining agreement and UC Clermont’s policy on reappointment and
tenure. (Id. at 50-52, Ex. 5).
25.
Faculty members were evaluated for reappointment based on teaching
effectiveness, professional activity, and institutional and community service. (Id.,
Ex. 5 at 1-3). The written guidelines state that teaching effectiveness was the
“primary consideration for any recommendation.” (Id. at 1).
26.
Professional activity included publishing papers, presenting papers at professional
meetings, participating in conferences, and giving lectures. Service encompassed
internal services such as committee work and advisement, as well as external
service such as charitable work. (Id. at 2-3).
27.
Faculty receive ratings of satisfactory, substantial, or excellent in each area. (Id.
at 4).
28.
An application for reappointment is first reviewed by the Department
Reappointment, Promotion, and Tenure Committee, then the Department Chair,
then the UC Clermont Reappointment, Promotion, and Tenure Committee, the
Dean of UC Clermont, and finally the University Provost. (Id. at 3).
29.
On June 21, 2011, Defendant Gregory Sojka, the Dean of UC Clermont, prepared
a memorandum to UC Provost Santa Ono, recommending Plaintiff for a two-year
reappointment effective September 1, 2012. (Id., Ex. 6).
30.
Defendant Sojka rated Plaintiff’s teaching effectiveness as substantial, and his
professional activity and institutional and community service as satisfactory with
room for improvement in both areas. (Id.)
31.
In the area of professional activity, Defendant Sojka indicated that Plaintiff would
submit a dissertation-based paper for publication and that his 2007 dissertation had
the potential for additional publications. Defendant Sojka recommended that
Plaintiff pursue reviews of these papers for publication. (Id.)
32.
In 2010, Plaintiff asked Defendant Hager, Dr. Lane, and Dr. Rysz to sit in on a
class he taught in order to provide peer review feedback and analysis on his
teaching. (Id. at 86, 90-92; Doc. 16 at 8-9).
33.
Sometime in 2010, Plaintiff began inquiring about the green card process with
secretaries of the Math, Computers, Geology and Physics (“MCGP”) Department
at UC Clermont. (Doc. 13 at 105-06).
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34.
Plaintiff also inquired about a green card application with Debbie Jones at the UC
Clifton International Students and Scholars Office. (Id. at 106-07).
35.
As a result of conversations with Debbie Jones, Plaintiff learned that his initial
hiring could not support his application for a green card and permanent residency
in the United States because the position was not advertised in a national print
journal. (Id. at 111-12).
36.
Two other foreign national professors at UC Clermont encountered the same issue
and their employment also could not support a green card application. (Id. at 113).
37.
UC Clermont agreed to re-advertise these positions in a way that would support a
national applicant pool, and could then form the basis for UC Clermont to support
a Labor Certification Application consistent with the U.S. Department of Labor’s
rules. (Id. at 112-15, 142-43).
38.
Plaintiff understood that these requirements for a green card application came
exclusively from the U.S. Government. (Id. at 142).
39.
Plaintiff knew that UC Clermont was advertising this position so that it could
support his green card application, and that it required a legitimate search and
selection process that would see Plaintiff selected only if he was the most qualified
candidate. (Id. at 142-43).
40.
Plaintiff understood that he would not receive any special preference during the
search process. (Id.)
41.
The other mathematics faculty members were generally aware of Plaintiff’s status
as a foreign national, and his need to “reapply” to support a green card application.
For instance, Rysz recalled there was some problem with the way the position was
originally posted that Plaintiff had applied for and been awarded. (Doc. 16 at 13).
42.
Dr. Lane encouraged Plaintiff to ensure that his application was “the best that it
can be.” (Doc. 13 at 120, Ex. 7).
43.
The position was advertised in seven different publications in both online and print
between January 12, 2012 and January 27, 2012. (Id., Ex. 9).
44.
Plaintiff submitted his application for the position in February 2012. (Id. at 11920).
45.
Plaintiff listed his references as Dr. Steven Bell and Dr. Rita Saerens from Purdue,
Pat McSwiggen from UC Clifton, and Defendant Clough. (Id. at 121-23, 154).
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46.
Plaintiff could not recall speaking with Defendant Clough before listing him as a
reference. (Id. at 121-22).
47.
Plaintiff knew that Defendant Clough, in his role as Department Chair, had
reviewed Plaintiff’s reappointment folder in 2011 and knew him on a personal
basis from work in the department and would be able to provide an “objective and
good” reference. (Id.)
48.
At the start of a search committee process, Defendant Sojka would usually attend a
training conducted by a UC Equal Opportunity Officer with all of the members of
that search committee. (Doc. 17 at 13).
49.
Defendant Sojka always charged a search committee with finding the best
candidates. (Id. at 16).
50.
Diversity is a general goal and the EEO discusses ideas for how to advertise to
obtain a diverse candidate pool. (Id. at 14-15).
51.
UC Clermont conducted two searches in spring 2012, one for the tenure-track
Assistant Professor position that Plaintiff applied for and the other for a non-tenure
track educator position. (Doc. 19 at 8-9).
52.
Defendant Clough asked Dr. Lane to chair the search committee for the tenuretrack position. (Id. at 9-12).
53.
The remaining search committee members were Mathematics professors Teri
Rysz, Defendant Hager, and Girija Nair-Hart, as well as Science professor Cliff
Larrabee. (Doc. 13, Ex. 9).
54.
Rysz volunteered for the search committee for the tenure-track position because it
provided an opportunity to demonstrate internal service to UC Clermont as part of
her own upcoming reapplication review. (Doc. 16 at 12).
55.
Defendant Hager, a tenured professor, also volunteered for the search committee
and felt that most full-time faculty are often asked to sit on search committees.
(Doc. 14 at 8).
56.
Defendant Hager agreed that it was slightly unusual situation to have an internal
candidate like Plaintiff reapply for a position he had already held. (Id. at 49-50).
57.
Larrabee, a science professor, was on the search committee to provide input from
someone outside the mathematics discipline. (Doc. 16 at 15).
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58.
59.
Twenty-seven candidates applied for the position, from which the search
committee unanimously selected eight applicants for telephone interviews and
three finalists for on-campus interviews. (Doc. 13, Ex. 9 at 1; Doc. 19 at 31-32).
60.
The committee actually selected a fourth candidate for an on-campus interview,
but he was later removed when it was determined that his degree in Computer
Science could not be considered a degree in Mathematics. (Doc. 13, Ex. 9 at 1-2).
61.
Dr. Lane spoke with Pamela Hamm, an associate in Defendant Sojka’s office, for
clarification on whether the search committee should communicate the
committee’s top choice to the Dean, Defendant Sojka,. (Doc. 19 at 60).
62.
Hamm indicated that each member of the search committee should provide a
written evaluation of each candidate and should not rank the candidates. (Id. at
60).
63.
Informally, Dr. Lane had already shared with Plaintiff that she was concerned
about accusations of bias for or against Plaintiff, depending on the result of the
search. (Id. at 50).
64.
Dr. Lane testified that she is confident that her concerns about bias did not affect
her performance as Chair of the search committee. (Id.)
65.
Dr. Rysz testified that she never felt pressured by Dr. Hager to write negative
comments about Plaintiff. (Doc. 16 at 31). 2
66.
Defendant Hager testified that she never encouraged Dr. Rysz to write negatively
about Plaintiff. (Doc. 14 at 20).
67.
Defendant Hager observed Plaintiff teaching a class in 2010 for a peer review and
while her evaluation of his classroom teaching was generally positive, Defendant
Hager noted that Plaintiff tended to speak to the board and did not have a lot of
class interaction until the end of the class period. (Id. at 23).
68.
Defendant Hager thought Jonathan Clark’s teaching demonstration was very well
done and she supported Clark receiving the appointment over Plaintiff. (Id. at 35).
69.
2
Dr. Rysz spoke with Dr. Lane about leaving the search committee because she had
“too much on her plate,” but ultimately decided to stay on the committee. (Id. at
32-33).
Defendant Hager testified that she did not know Plaintiff was from Turkey before
this action was filed. (Id. at 37).
Plaintiff attempts to create a material factual dispute through inadmissible hearsay.
7
70.
Defendant Hager testified that she never discussed Plaintiff’s country of origin
with search committee members. (Id.)
71.
Defendant Hager recognized there were differences of opinion among the search
committee members about who was the best candidate. (Id. at 40).
72.
Dr. Lane was satisfied that each finalist was evaluated based upon the evidence
that was available. (Doc. 19 at 53).
73.
Dr. Lane never observed Dr. Nair-Hart accuse Dr. Hager of trying to unfairly
prejudice the search process. (Id.)
74.
Dr. Nair-Hart accused Dr. Hager of “not liking Ersin and being against him” and
Dr. Hager accused Dr. Nair-Hart of the opposite. (Id. at 54).
75.
Dr. Lane observed neither Dr. Nair-Hart nor Dr. Hager express a concern that
either was attempting to influence other members of the search committee. (Id.)
76.
Dr. Lane also recalled Dr. Nair-Hart mentioning that some faculty had criticized
Plaintiff for not attending as many faculty meetings as he should have. (Id. at 38).
77.
Dr. Lane said that should not be part of the process for the search committee to
consider. (Id. at 38-39).
78.
The only communication Dr. Lane had with Defendant Sojka during the search
process was forwarding the references and submitting the search committee’s final
report. (Doc. 17, Ex. F; Doc. 19 at 40).
79.
Dr. Lane never spoke with Dean Sojka about the finalists. (Doc. 19 at 49).
80.
Dr. Lane also never spoke with Defendant Clough about preferences or a ranking
of the finalists. (Id. at 49).
81.
In an email to Defendant Sojka on June 1, 2012, Dr. Lane wrote:
I have attached three files, one for each of our candidates, that
contain the references. In the past we have conducted the reference
checks by phone. I chose to do this differently this year given the
sensitivity of the search. In our committee meetings I felt there were
subtle accusations of different members being either biased for or
against particular members. At one point a member began
questioning wether [sic] or not all committee members were being
fair to all candidates. Therefore, as a way to protect myself from
being accused of misrepresenting what a reference might have said, I
asked the references to respond in writing to a document with
8
questions that normally would be asked over the phone. I shared the
documents with each member of the committee.
(Doc. 17, Ex. F).
82.
Dr. Lane testified that she used the word “sensitivity” in the email because Plaintiff
was an internal candidate. (Doc. 19 at 40-41).
83.
Dr. Lane testified that if she had observed any actions by search committee
members that led her to believe they were acting on some known or unknown bias,
she would have raised her concerns that with the committee member. (Id. at 59).
84.
Dr. Rysz never spoke with Dean Sojka about the search. (Doc. 16 at 17, 36).
85.
Dr. Lane never heard any members of the search committee make any comments
about the national origin, religion or ethnicity of the candidates. (Doc. 19 at 55).
86.
Dr. Lane never observed anything that suggested to her that any members of the
committee were biased against Plaintiff because of his national origin, religion or
ethnicity. (Id. at 55-56).
87.
Defendant Sojka received the search committee’s report and reviewed Dr. Lane’s
email about how she handled references with written questions and email responses
instead of telephone interviews. (Doc. 13, Ex. 9; Doc. 17 at 72-73, Ex. F).
88.
Defendant Sojka testified that he believed Dr. Lane had adequately addressed the
concern about bias by presenting the questions and responses from references in
writing. (Doc. 17 at 72-73).
89.
Defendant Sojka interviewed each of the three finalists during the on-campus
interview process. (Id. at 10).
90.
Defendant Sojka has no background in mathematics, but in interviews would
question the finalists about success in teaching and their approach to teaching, as
well as research and scholarship and service to the college or university where they
worked. (Id.)
91.
Defendant Sojka did not attend the teaching demonstrations and did not ask
interview question about mathematics competencies. (Id. at 10-11).
92.
Dean Sojka reviewed the search committee’s report and looked at how the search
committee evaluated the teaching demonstration as one factor in a group of factors,
although he did testify that he placed more weight on teaching effectiveness than
the research and service factors. (Id. at 19, 21).
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93.
Dean Sojka testified that the Department Chair does not typically serve on the
search committee, but does attend teaching demonstrations because the Department
Chair has a long-term responsibility to evaluate all of the faculty in their area and
so is interested in whether the candidate has a good chance of long-term success.
(Id. at 25).
94.
Defendant Sojka as Dean of UC Clermont was the final decision maker for the
position. (Id. at 28).
95.
Defendant Sojka did not speak individually with any members of the search
committee about the search. (Id. at 58).
96.
Defendant Sojka reviewed Defendant Clough’s reference for Plaintiff and
considered it “lukewarm” and “not a strong affirmative reference.” (Doc. 13, Ex.
8; Doc. 17 at 44, 54).
97.
Defendant Clough did write a reference for Plaintiff, and answered the emailed
questions like the other references, but it was unusual for a department chair to
write a reference for an internal candidate. (Doc. 18 at 35).
98.
Although Defendant Clough thought it was an awkward situation, since Plaintiff
put him down as a reference, he thought it was “okay” to respond to the questions
from the search committee. (Id. at 36).
99.
Defendant Sojka did not have any previous knowledge of Jonathan Clark or Levi
Molenje, the other finalists, but did have prior knowledge of Plaintiff’s work,
primarily through the reappointment process. (Doc. 17 at 32-33).
100.
Dean Sojka recalled that Jonathan Clark had previously taught at Southern State
Community College, which was an environment more similar to UC Clermont
than Auburn University, where Clark was then teaching as a graduate teaching
assistant. (Id. at 57, Ex. C).
101.
Defendant Sojka considered Plaintiff’s 2011 reappointment letter as part of
Plaintiff’s 2012 application. (Id. at 38).
102.
The reappointment letter had rated Plaintiff’s teaching effectiveness as substantial,
but noted concerns in the areas of professional activity and institutional service.
(Doc. 13, Ex. 6; Doc. 17 at 61-62).
103.
Dean Sojka did speak with Defendant Clough about the three finalists. (Doc. 17 at
29).
104.
Defendant Sojka did not recall hearing any negative comments from Defendant
Clough about Plaintiff from the 2011 reappointment process. (Id. at 33).
10
105.
Although UC Clermont’s Recruitment and Search Guide provides that the search
committee must rank the candidates (Doc. 19, Ex. A at 22), Defendant Clough
testified that in his experience with several different deans at UC Clermont that
they did not want a ranking of finalists. (Doc. 18 at 26).
106.
Defendant Sojka noted that one of the finalists, Levi Molenje, had been late for his
interview and the committee members had not looked favorably upon this fact.
(Id. at 27).
107.
Defendant Clough told Defendant Sojka that he would not have a problem with
any of three candidates joining the Mathematics department. (Id. at 29).
108.
Defendant Clough remembered Defendant Sojka saying the interview with
Jonathan Clark went well and that Defendant Sojka was impressed with Jonathan
Clark, whom he thought had great potential. (Id. at 30).
109.
When Defendant Sojka spoke with Clough, he asked for input on all three
finalists; as to Plaintiff, he thinks that Clough probably echoed the reference that
Plaintiff did a good job in the classroom but needed to enhance his service to the
College and be more involved in scholarship. (Doc. 17 at 50).
110.
Defendant Sojka felt that Plaintiff did not “shine” in the areas of service or
professional activity. (Id. at 46-47).
111.
Defendant Sojka testified that he viewed Jonathan Clark as the most qualified
candidate and that Clark had more long-term growth potential. (Id. at 50-51).
112.
On July 9, 2012, Defendant Sojka met with Plaintiff to inform him that the tenuretrack position was awarded to another finalist. (Doc. 13 at 146-47, 216-17, Ex.
12).
113.
There was no discussion of Plaintiff’s religion or national origin during this
meeting, and Plaintiff could not recall ever discussing his religion or the fact that
he was from Turkey with Defendant Sojka. (Id. at 148).
114.
At this point, Plaintiff was concerned that UC Clermont would not honor his twoyear reappointment, and Plaintiff spoke with some other faculty members and then
union representatives from AAUP. (Id. at 218-19, Ex. 13).
115.
An AAUP representative, Eric Palmer, contacted Vice Provost of Academic
Affairs John Bryan. (Id., Ex. 14).
116.
Plaintiff fulfilled the two years of his reappointment in a mathematics position at
UC Blue Ash instead of UC Clermont. (Id.)
11
117.
Plaintiff applied for a tenure-track mathematics position at UC Blue Ash in fall
2012, but that search failed without hiring a candidate. (Id. at 227).
118.
Plaintiff did not apply for a tenure-track mathematics position at UC Blue Ash that
opened in spring 2013 because of his expiring H1B VISA and the lack of a
practical way to keep his employment in the United States. (Id. at 232).
III.
ANALYSIS
Plaintiff alleges that impermissible national origin and religious discrimination
caused Defendants to select a less qualified candidate during the 2012 search process.
Plaintiff does not challenge the manner in which the 2009 position was advertised nor the
requirement that he apply for the re-advertised position. Rather, Plaintiff frames his case
solely as a failure-to-hire claim based on his unsuccessful 2012 application.
Plaintiff concedes that Defendant Sojka had no discriminatory animus, but seeks
to impose liability on UC Clermont and the three individual Defendants based on the
cat’s paw theory of liability. (Doc. 29 at 17). The cat’s paw theory of liability is that “a
biased subordinate, who lacks decision-making power, influence[d] the unbiased
decision-maker to make an adverse employment decision, thereby hiding the
subordinate’s discriminatory intent.” Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 755
(6th Cir. 2012). There must be evidence of a “‘causal nexus’ between the ultimate
decisionmaker’s decision to terminate the plaintiff and the supervisor’s discriminatory
animus.” Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 836 (6th Cir. 2012)
(quoting Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 677 (6th Cir.
2008)). According to Plaintiff, Defendants Clough and Hager were the biased
subordinates who influenced Defendant Sojka, the unbiased decision maker.
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To establish a prima facie case of discrimination based on failure to hire, Plaintiff
must offer evidence that (1) he is a member of a protected class, (2) he applied and was
qualified for a job for which the employer was seeking applicants, (3) he was not
selected, and (4) a person outside the protected class was hired. Nguyen v. City of
Cleveland, 229 F.3d 559 (6th Cir. 2000). It is undisputed that Plaintiff’s Turkish national
origin and Muslim religion made him a member of a protected class. Although
Defendants argue that they had no knowledge of Plaintiff’s national origin or religion,
Defendants cite no case law indicating that knowledge is an element of the prima facie
case under Title VII. Defendants also attempt to argue that Plaintiff did not suffer an
adverse employment action because he was allowed to complete his two-year
reappointment at UC Blue Ash. However, it is clear that Plaintiff applied for a tenuretrack position at UC Clermont that would support his application for permanent
residency, he was not hired, and that another candidate outside the protected class was
selected. Accordingly, Plaintiff has established his prima facie case.
At this point, the burden shifts to Defendants to identify a legitimate,
nondiscriminatory reason for selecting Clark for the position. Romans, 668 F.3d at 83839. Defendants submit that Defendant Sojka found that Plaintiff’s application was not
impressive, included references that were dated and lukewarm, and noted that Plaintiff
had not consulted with Defendant Clough before listing him as a reference. Defendant
Sojka was impressed with Clark’s communication skills and thought he had room to grow
into the tenure-track position. This satisfies Defendants’ burden to articulate a legitimate,
nondiscriminatory reason.
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Plaintiff may show that this legitimate, nondiscriminatory reason is pretext for
discrimination by showing that the proffered reason (1) has no basis in fact, (2) did not
actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant
the challenged conduct. Clay v. UPS, 501 F.3d 695, 704 (6th Cir. 2007). The Sixth
Circuit has counseled against formulaic application of these categories and has stressed
that they serve only as a tool to assist in the court in addressing the ultimate inquiry of
“whether the employer made up its stated reason to conceal intentional discrimination.”
Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2008).
An employer may avoid a finding that its proffered nondiscriminatory reason was
pretextual by invoking the honest belief rule. This requires the employer to “establish its
reasonable reliance on the particularized facts that were before it at the time the decision
was made.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). In determining
whether an employer reasonably relied on the particularized facts then before it, courts
“do not require that the decisional process used by the employer be optimal or that it left
no stone unturned. Rather, the key inquiry is whether the employer made a reasonably
informed and considered decision before taking an adverse employment action.” Wright
v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006). “As long as the employer held
an honest belief in its proffered reason, the employee cannot establish pretext even if the
employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.”
Seeger v. Cincinnati Bell Tele. Co., 681 F.3d 274, 285-86 (6th Cir. 2012).
To prove pretext, the employee must allege “more than a dispute over the facts
upon which the [hiring decision] was based. He must put forth evidence which
14
demonstrates that the employer did not ‘honestly believe’ in the proffered nondiscriminatory reason for its adverse employment action.” Braithwaite v. Timken Co.,
258 F.3d 488, 493-94 (6th Cir. 2001). If the employee is able to “produce sufficient
evidence to establish that the employer failed to make a reasonably informed and
considered decision before taking its adverse employment action, thereby making its
decisional process ‘unworthy of credence,’ then any reliance placed by the employer in
such a process cannot be said to be honestly held.” Smith, 155 F.3d at 807-08. The
employee may make this showing by, for example, demonstrating “an error on the part of
the employer that is too obvious to be unintentional.” Seeger, 681 F.3d at 286.
Plaintiff argues that Defendants’ proffered reason is pretext because it is highly
subjective, Plaintiff was better qualified than Clark, Defendants Clough and Hager made
numerous comments evidencing bias, and the search committee did not follow the
guidelines for the selection process. Under the unusual factual circumstances in this
failure-to-hire case, Plaintiff is unable to offer evidence that the selection of Clark was
pretext for unlawful discrimination. Additionally, Plaintiff is unable to demonstrate the
necessary causal nexus for cat’s paw liability.
Plaintiff first contends that Defendants’ proffered reason is highly subjective and
insufficient to justify the hiring decision. However, the subjective criteria that Plaintiff
identifies are impressions drawn exclusively by Defendant Sojka, whom Plaintiff has
absolved of harboring a discriminatory bias. Specifically, Defendant Sojka was
impressed with Clark’s communication skills after the interview and felt that Clark could
grow into the tenure-track position. Defendant Sojka also felt that Plaintiff’s references
15
were dated and lukewarm. Plaintiff has not presented any evidence to suggest that these
reasons were an attempt to conceal discrimination. Additionally, Plaintiff there is no
basis for cat’s paw liability with respect to these reasons. Defendant Clough’s written
reference was submitted in the record, and Plaintiff advances no grounds to suggest that it
reflects anything other than an honest evaluation. (Doc. 13, Ex. 8). It is true that Plaintiff
had to submit outdated references for reasons outside his control. However, that
misfortune is attributable to the need to re-advertise the position, not to any
discriminatory bias by Defendants.
Plaintiff next argues that he was objectively more qualified for the position than
Clark because Plaintiff had five years of post-doctoral teaching experience and had one
publication. Clark had yet to receive his Ph.D. at the time he received the offer and had
no publications. Because Plaintiff is able to identify little or no probative evidence of
discrimination, the Court must apply the rule that “evidence that a rejected applicant was
as qualified or marginally more qualified than the successful candidate is insufficient, in
and of itself, to raise a genuine issue of fact that the employer’s proffered legitimate, nondiscriminatory rationale was pretextual.” Bender v. Hechts Dep’t Stores, 455 F.3d 612,
628 (6th Cir. 2006). Accordingly, Plaintiff must establish that his qualifications were “so
significantly better than the successful applicant’s qualifications that no reasonable
employer would have chosen the latter applicant over the former.” Id. Plaintiff is unable
to satisfy this heavy burden.
Plaintiff’s attempt to show pretext through allegedly discriminatory comments is
similarly unavailing. Plaintiff attributes a number of statements to Defendants Clough
16
and Hager that he alleges show that they were biased against Plaintiff. (Doc. 29 at 2324). Assuming that these statements are true, and are not inadmissible hearsay, 3 the
statements do not reflect unlawful discriminatory bias based on Plaintiff’s national origin
or religion. Even if the Court assumes that Defendants Clough and Hager were biased
against Plaintiff’s candidacy, Plaintiff offers no evidence for a reasonable jury to
conclude that the bias was based on unlawful factors and not on permissible reasons to
oppose his candidacy, such as displeasure with Plaintiff’s ability as a math professor.
The final circumstance that Plaintiff claims demonstrates pretext is the fact that
the search committee did not rank the candidates as required by the relevant guidelines
for the search process. It is undisputed that the decision that each search committee
member would provide a written evaluation of the candidates in lieu of ranking the
candidates was made by the search committee chair Dr. Lane in consultation with Pamela
Hamm, the assistant to the Dean. (Doc. 19 at 60). This was taken in response to Dr.
Nair-Hart’s complaints about bias and was intended to increase transparency. Dr. Lane
also deviated from the search process guidelines by requiring that references submit
written responses instead of speaking to search committee members on the phone. Dr.
Lane took this step to ensure that she could not be accused of misrepresenting a response.
3
A number of the alleged statements that Plaintiff lists are likely inadmissible hearsay. For
example, Plaintiff attempts to introduce statements made by Dr. Lane or Dr. Rysz through the
deposition testimony of Karla Phillips. Dr. Lane and Dr. Rysz were both deposed, but Plaintiff
does not cite to their own deposition testimony. Additionally, Plaintiff alleges that Dr. Rysz
attempted to quit the search committee because of biased comments that Defendant Hager made
and cites to Dr. Lane’s deposition. (Doc. 19 at 16-18). At her own deposition, Dr. Rysz
specifically denied making this statement to Dr. Lane and testified that she attempted to resign
from the search committee because of her busy schedule. (Doc. 16 at 32-33).
17
(Doc. 17, Ex. F). Plaintiff does not argue that either Defendant Clough or Hager
influenced Dr. Lane’s decision.
It is undisputed that Defendant Sojka did not speak with any members of the
search committee about the candidates, including Defendant Hager, and the members of
the search committee only expressed their opinions about the candidates in the written
committee report. (Doc. 17 at 58). Each of the five search committee members wrote a
narrative assessment of the three candidates. (Doc. 13, Ex. 9). Plaintiff alleges that
Defendant Hager made a number of verbal comments to other committee members that
were indicative of a discriminatory bias. However, it is undisputed that these comments
were not reflected in the written report. Plaintiff also contends that Defendant Hager
falsely stated in the committee report that Plaintiff worked out the first example of his
teaching demonstration with his back to the class. (Id. at 6). Dr. Nair-Hart directly
contradicted this statement in her portion of the committee report and indicated that
Plaintiff had faced the class for his entire teaching demonstration. (Id. at 7). Even if the
Court assumes that Defendant Hager’s statement was false, and that it was made with
discriminatory intent, there is nothing to suggest that a contradicted statement in the
committee report regarding one example during the teaching demonstration proximately
caused Defendant Sojka to select Clark instead of Plaintiff. Bobo, 665 F.3d at 755.
Accordingly, Plaintiff is unable to offer any evidence probative of pretext and cannot
establish the causal nexus for cat’s paw liability.
18
IV.
CONCLUSION
Wherefore, for these reasons, Defendants’ Motion for Summary Judgment (Doc.
20) is hereby GRANTED. The Clerk shall enter judgment accordingly, whereupon this
civil action is TERMINATED on the Court’s docket.
IT IS SO ORDERED.
Date:
9/30/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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