Szeinbach v. The Ohio State University

Filing 211

ORDER denying 200 Motion for Reconsideration. Signed by Magistrate Judge Mark R. Abel on 4/1/13. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Sheryl L. Szeinbach,

:
Plaintiff

v.

:

Civil Action 2:08-cv-822

:

The Ohio State University,
Defendant

:

Magistrate Judge Abel

:
ORDER

This matter is before the Court on plaintiff Sheryl L. Szeinbach’s January 8, 2013
motion for reconsideration of the Court’s December 19, 2012 Order denying her motion
for leave to conduct limited discovery related to Dr. Terry S. Elton (doc. 200). On March
18, 2013, the Court heard oral argument concerning plaintiff’s motion.
I.

Background

Szeinbach requests leave to conduct limited discovery related to recently
discovered evidence that she maintains supports her arguments that defendant’s
asserted legitimate, nondiscriminatory reasons were pretextual. Plaintiff seeks
discovery regarding Professor Terry S. Elton, a professor in the OSU College of
Pharmacy, whose article, published in the journal of the American Physiological
Society, was recently retracted on the basis that it contained improperly prepared data.
Plaintiff argues that OSU never scrutinized Elton’s research and publications under its
research misconduct policies in the manner that OSU investigated allegations regarding

her publications.
II.

Arguments of the Parties
A.

Plaintiff Sheryl L. Szeinbach

Plaintiff argues that two newly published documents suggest that the Court
should allow Szeinbach to conduct discovery into Elton’s research misconduct. On
December 26, 2012, the Department of Health and Human Services Office of Research
Integrity (“ORI”) issued its Findings of Research Misconduct against Elton. In these
findings, ORI found Elton engaged in research misconduct by falsifying and/or
fabricating data. Elton’s conduct dated back to 2004. Plaintiff also relies on the January
6, 2013 Columbus Dispatch article detailing a settlement between federal officials, The
Ohio State University (“OSU”) and Elton in which OSU and Elton agreed to retract six
of Elton’s publications because of a pattern of falsified images. Despite these findings,
the initial OSU College of Pharmacy (“COP”) cleared Elton any wrongdoing.
The Dispatch article reported that ORI concluded that the initial COP committee
failed to recognize Elton’s deception. The ORI asked OSU to remove any one who had a
personal working relationship with Elton to be removed from the panel investigating
the manner and that OSU officials ensure that the committee had members with
experience understanding the reportedly falsified data. The second COP committee
agreed with ORI’s conclusion that Elton had engaged in fraud.

2

Plaintiff argues that in appointing faculty with working and/or personal
relationships to committees tasked with investigating Elton and Brueggemeir’s research
misconduct, OSU violated 42 C.F.R. § 50.103(d)(8)-(9).
Szeinbach argues that to be similarly situated, plaintiff need only show that they
are similar in all relevant aspects. A reasonable jury could find that the Visions and
Strategy Group (“VSG”) and/or Brueggemeier’s decisions to overlook Elton’s research
misconduct is evidence of pretextual retaliation. Both the interim research misconduct
policy and the current policy gave Brueggemeier the same powers to force a university
level investigation and to select the members of a COP committee to investigate
Szeinbach of Elton.
According to plaintiff, the evidence suggests that with respect to Szeinbach,
Brueggemeir and VSG members required a university level investigation that could
have led to plaintiff’s termination. With respect to Elton, however, Brueggemeier and
the initial COP committee excused Elton’s research misconduct and did not subject him
to a university level investigation.
B.

Defendant The Ohio State University

Defendant argues that Elton is not a valid comparator to Szeinbach. The research
misconduct investigation of Elton was not in the time frame relevant to the research
misconduct violation of Szeinbach. Elton was not only a professor in the COP, but he
also had an appointment in the Davis Heart and Lung Research Institute. Plaintiff,
unlike Elton, was not investigated by a COP committee.
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OSU argues that discovery in this case closed over two and one-half years ago.
None of plaintiff’s discovery requests related to any investigation of Elton, nor did they
request any information regarding any research misconduct investigations by OSU after
2009. Plaintiff’s CII research misconduct investigation ended in May 2008, almost two
years before the deadline for completing discovery. Nothing in plaintiff’s newly
discovered evidence implies any knowledge by OSU of the allegations against Elton
prior to the close of discovery.
The University Research Committee Interim Policy and Procedures concerning
Misconduct in Research or Scholarly Activities (“Interim Policy”) was in effect at the
time the Committee of Initial Inquiry (“CII”) investigating plaintiff concluded its
investigation o May 15, 2008. The University Policy and Procedures concerning
Research Misconduct (“the current policy”) was adopted on May 29, 2008. The current
policy does not include within the definition of research misconduct the provision that
was the basis of the CII determination regarding possible research misconduct by
Szeinbach.
The initial COP committee referred to by plaintiff was not a CII committee.
Instead, the COP committees that investigated Elton were 04 Process committees. For a
faculty member accused of research misconduct to be investigated by an 04 Process
committee, a CII committee must have determined that there was sufficient evidence of
possible scientific misconduct to warrant an investigation under the University’s
disciplinary rules. OSU maintains that any factual allegations regarding Elton’s 04
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Process and the COP Committees are not relevant to Szeinbach, who was never in the
04 Process.
Despite plaintiff’s allegation to the contrary, Brueggemeier could not have
excused or overlooked Elton’s alleged research misconduct because it could not have
gotten into the 04 Process unless the Dean had sent it to a CII, and then following the
determination CII, sent it on to the COP standing college committee for the 04 Process
investigation.
Defendant argues that plaintiff’s assertion that an overlap in membership of the
initial COP committee in Elton’s 04 Process and the VSG could demonstrate that the
VSG exhibited pretextual retaliatory conduct towards Szeinbach is without merit. The
VSG was formed in 2007 to explore options for taking action against disruptive
behaviors and to change the culture of the division. The Sixth Circuit concluded that
Szeinbach failed to present any evidence of injury or harm resulting from the VSG.
Plaintiff does not allege that the VSG or its members took any part in the research
misconduct investigation of her. As a result, defendants maintains that whether a
member of the VSG served on the initial COP committee for Elton is irrelevant to
plaintiff’s research misconduct claim.
Defendant further argues that it did not violate any federal regulations in its
investigation of Brueggemeier’s alleged research misconduct. Brueggemeier’s research
was not federally funded and not subject to 42 C.F.R. § 50.103(d)(8)-(9).

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III.

Discussion

Courts consider five factors when deciding whether to reopen or extend
discovery: (1) when plaintiff learned of the issue that is the subject of discovery; (2) how
reopening discovery would affect the ruling at issue; (3) the length of the previous
discovery period; (4) whether plaintiff was dilatory; and (5) whether defendant was
responsive to prior discovery requests. Lee v. Metro. Gov't of Nashville & Davidson Cnty.,
432 F. App'x 435, 444–45 (6th Cir.2011) (citing Audi AG v. D'Amato, 469 F.3d 534, 541
(6th Cir.2006)).
Here, plaintiff learned of Elton’s apparent misconduct and the related
investigation well after the close of discovery. The delay in discovery, however, was not
the result of counsel’s lack of diligence. Plaintiff actively pursued discovery in this case.
In fact, approximately thirty-two depositions have been filed in this case.1 I note
however, that plaintiff’s discovery requests did not seek information concerning
investigations of research misconduct that occurred after 2009. As a result, it appears
that plaintiff was not concerned with locating comparators during this time frame.
Plaintiff had ample opportunity to take discovery. Moreover, the limitation
under Rule 30(a)(2)(A)(i), Fed. R. Civ. P. that each side take no more than 10 deposition
was not enforced. The period for conducting discovery was lengthy. Discovery began in

1

At the oral argument hearing, counsel for plaintiff indicated that if the motion
for reconsideration was granted, he envisioned the need for an additional six to seven
depositions.
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January 2009, and the deadline for completing non-expert discovery was ultimately
extended until May 28, 2010.
Despite some disputes with respect to discovery requests, plaintiff’s request for
additional discovery is not the result of defendant’s failure to respond to prior
discovery requests. In this case, the decisive factor is how reopening discovery would
affect a ruling at issue in this case. There is no pending motion at issue, and although
plaintiff characterizes his motion pursuant to Rule 56(d) of the Federal Rules of Civil
Procedure, defendant has not yet filed its motion for summary judgment. Plaintiff
maintains, however, that this evidence will be relevant to showing that defendant’s
legitimate, nondiscriminatory reason is pretextual.2
2

To make out a prima facie case of retaliation, a plaintiff must establish that: (1)
she engaged in activity protected by Title VII; (2) this exercise of protected rights was
known to the defendant; (3) the defendant thereafter took an adverse employment
action against the plaintiff; and (4) there was a causal connection between the protected
activity and the adverse employment action. Martin v. Toledo Cardiology Consultants, Inc.
548 F.3d 405, 412 (6th Cir. 2008)(citing Ford v. Gen. Motors Corp., 305 F.3d 545, 552-53 (6th
Cir.2002)). Once the plaintiff has established a prima facie case of retaliation, the burden
shifts to defendant to demonstrate a non-discriminatory reason for its actions. After a
showing is made by the defendant, plaintiff has the burden of demonstrating that the
reason asserted by the defendant is not the real reason, but rather a pretext for
discrimination. See Clay v. United Parcel Serv., Inc., 501 F.3d 695, 713 (6th Cir.2007) (citing
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)(holding that the McDonnell Douglas
burden-shifting framework applies to retaliation claims)). Plaintiff maintains that a
comparison of the treatment of Szeinbach and Elton will show that OSU’s stated
reasons for its actions were pretextual.
In Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992), the Sixth Circuit stated:
It is fundamental that to make a comparison of a discrimination plaintiff's
treatment to that of non-minority employees, the plaintiff must show that
the “comparables” are similarly-situated in all respects. Stotts v. Memphis
Fire Department, 858 F.2d 289 (6th Cir.1988). Thus, to be deemed
“similarly-situated”, the individuals with whom the plaintiff seeks to
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Based on a review of the relevant factors, I conclude that Dr. Elton cannot be
considered a comparator to Dr. Szeinbach. Plaintiff emphasizes that the initial COP
committee concluded that Elton had not engaged in wrongdoing and that this decision
was reconsidered only after pressure was applied by federal regulators. These
committee decisions all occurred after Dean Brueggemeier referred Elton to the 04
Process. Because the research misconduct policy was amended, plaintiff was never
subjected to the 04 Process. Despite the recommendation from the CII that she undergo
that process, Dr. Brueggemeier did not refer Szeinbach to the 04 Process. As a result, a
comparison of Szeinbach and Elton’s treatment would not assist the trier of fact in
determining whether OSU’s stated reason for investigating the allegation of Szeinbach’s
research misconduct was pretextual.

compare his/her treatment must have dealt with the same supervisor,
have been subject to the same standards and have engaged in the same
conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer's treatment of them for
it. Mazzella v. RCA Global Communications, Inc., 642 F. Supp. 1531 (S.D. N.Y.
1986), aff'd, 814 F.2d 653 (2d Cir.1987); Lanear v. Safeway Grocery, 843 F.2d
298 (8th Cir.1988) (plaintiff must prove that he and the white employee
were similarly situated in all respects and that the other employee's acts
were of comparable seriousness to his own); Cox v. Electronic Data Systems
Corp., 751 F. Supp. 680 (E.D. Mich.1990).
964 F.2d at 583. Courts should make “an independent determination as to the relevancy
of a particular aspect of the plaintiff's employment status and that of the non-protected
employee.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
Exact correlation, however, is not required between the employees. Rather, the
employees must be similar in all of the relevant aspects. Id. (quoting Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994).
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It appears that Elton’s alleged misconduct was more egregious than that alleged
of Szeinbach. As a result, evidence that Elton was subjected to the 04 Process and that
Szeinbach was not, is not evidence of pretext. Rather, it is what would be expected.
The degree to which the first committee, the University-wide CII committee,
investigated Elton’s conduct is not relevant, because the investigation of Szeinbach
ended there while the investigation of Elton only began there.
Despite plaintiff’s assertion that Brueggemeier treated Elton more favorably than
he did Szeinbach, Elton would not have been sent to the 04 Process (involving a
committee comprised of COP faculty members) absent Brueggemeier’s agreement. The
Dean, in fact, treated Szeinbach more favorably by not referring the misconduct charge
against her to the 04 Process.
Plaintiff also argues that the fact that professor Kinghorn, a COP faculty member,
was on both Elton’s 04 Process committee and Szeinbach’s CII committee somehow
makes Elton’s circumstances relevant to Szeinbach’s. Although Kinghorn was a member
of the 04 Process committee for Elton and a member of the CII committee that
investigated Szeinbach, he was the only member of the CII that did not recommend that
Szeinbach be referred to the 04 Process. Kinghorn’s membership on both committee
provides no evidence that Szeinbach was treated less favorably than a similarly situated
employee.
For the reasons set out above, I conclude that the two investigations were not
sufficiently close in time to make a valid comparison. The discovery plaintiff seeks is
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not relevant and will not assist the trier of fact in deciding the issues in this case.
Accordingly, plaintiff Sheryl L. Szeinbach’s January 8, 2013 motion for reconsideration
of the Court’s December 19, 2012 Order denying her motion for leave to conduct limited
discovery related to Dr. Terry S. Elton (doc. 200) is DENIED.

s/Mark R. Abel
United States Magistrate Judge

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