Szeinbach v. The Ohio State University

Filing 226

ORDER denying 213 Motion for Summary Judgment. Signed by Magistrate Judge Mark R. Abel on 12/13/2013. (Abel, Mark)

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

:
DECISION

This matter is before the Court on defendant The Ohio State University’s May
22, 2013 renewed motion for summary judgment (doc. 123).
I. Overview
Szeinbach came to OSU’s College of Pharmacy (“COP”) from the University of
Mississippi in 1999, starting as a full professor with tenure. (Szeinbach Dep.; Doc. 122-17
at 3.) Szeinbach is currently employed in COP’s Division of Pharmacy Practice and
Administration (“PPAD”). In 2002, COP hired Dr. Enrique Seoane-Vazquez (“Seoane”),
a native of Spain, as an assistant professor.1 In 2005, it hired Dr. Rajesh Balkrishnan
(“Balkrishnan”), a native of India, as an associate professor with tenure. Prior to Balkrishnan’s hiring, Szeinbach had met him at a meeting and formed an opinion that he
was rude and disrespectful. (Id. at 10.) At the faculty meeting to approve Balkrishnan’s
1

Dr. Seoane-Vazquez’ allegations of discrimination on the part of OSU were the
subject of other litigation. The facts regarding Dr. Seoane set forth in this analysis are
drawn from the pleadings and briefs which have been filed in the instant case.

tenure, Szeinbach voiced her concerns about him, and she was displeased when he was
hired. (Id. at 8, 10.)
In 2005, Dr. Milap Nahata (“Nahata”), the chairman of PPAD, appointed Balkrishnan to prepare and present Seoane’s February 9, 2005 annual review to PPAD’s
promotion and tenure committee. According to Szeinbach, she had observed Balkrishnan and Nahata discriminating in favor of students of Indian origin. (Doc. 135-1 at 3.)
At Seoane’s review, Balkrishnan apparently made plain his opinion that he was not a
productive member of the COP faculty. (Doc. 98 at 4; 98-1 at 7.) The next day, Szeinbach sent an email to Robert Brueggemeier, the dean of COP:
Dear Bob: I attended the P & T meeting yesterday. I have questions
regarding the fairness of the evaluation that was performed for Enrique
Seoane-Vazquez. I felt the presentation of the evaluation was intentionally very biased against Enrique – there was a lot of discussion as well. I
was wondering if Enrique should be evaluated at all given his extensive
illness, where his recovery took several months. Also, I wanted to provide a message a priori so there is an awareness of the situation –
I would not send this message unless I felt very strongly that something is
not right –
(Doc. 98-1 at 7.) In the following months, Szeinbach deliberately got to know Seoane
better, and “wanted to work with him so that . . . I could find out . . . where’s all this
coming from, maybe the faculty is right, maybe there’s something wrong with this
guy.” (Doc. 110 at 56.) She concluded that there was “absolutely nothing wrong with
Enrique” and that “for some reason people were really trying to sabotage his efforts to

2

do research . . . that’s when I became concerned and said, whoa, this – this has to stop.”
(Id.)
On August 22, 2005, Seoane submitted an internal complaint at OSU, alleging
“discrimination and retaliation.” (Doc. 98 at 4.) Szeinbach did not help him file it, and
was not aware at the time that Seoane had filed the complaint. (Doc. 110 at 55-56.) She
provided Seoane with a copy of her February 10, 2005 email to Dean Brueggemeier, but
did nothing else in particular to support his complaint except that she “listened to him.”
(Id. at 56.) The COP’s investigation committee investigated Seoane’s OSU-HR complaint, interviewing numerous faculty, including Szeinbach, Balkrishnan, Cynthia
Carnes (“Carnes”), Craig Pedersen (“Pedersen”), and Phillip Schneider (“Schneider”).
Szeinbach told the committee that Balkrishnan had attempted to change the ranking of
one of Seoane’s students, that students had reported to her that Balkrishnan did not
want Seoane’s students to do as well as his, and that an Indian graduate student had
been told to switch to an advisor of Indian national origin. (Doc. 135-5 at 4.) An OSUHR investigator separately, in October 2005, interviewed Szeinbach, Seoane, Schneider,
and two graduate students concerning Seoane’s racial discrimination claims. Szeinbach
told the OSU-HR investigator that Nahata and Balkrishnan were working together to
end Seoane’s employment, and that some COP students were being told not to take her
classes. She also told the investigator that Nahata had falsely reported that she had
voted in favor of a negative annual review for Seoane. (Id.)

3

On November 3, 2005, Szeinbach sent an email to Dr. James Dalton (“Dalton”),
the chairman of the promotion and tenure committee, complaining of several inaccuracies and omissions in materials which Nahata had recently circulated for Seoane’s
fourth-year review. (Doc. 98-1 at 9-10.) Dalton responded to this email, noting that
Brueggemeier had recently announced that the college would be restarting Seoane’s
review and discarding all existing materials. (Id.)
Balkrishnan and Szeinbach clashed repeatedly. Pedersen testified at deposition
that he had seen Szeinbach and Balkrishnan “go at it pretty good in faculty meetings”;
they would “typically raise their voice at each other. And they would typically not treat
the other one with respect.” He opined that they were both equally to blame for their
personal conflicts, and that “they were both very good at raising the ire of the other
one.” (Doc. 109 at 58.) Brueggemeier testified that for three years in a row he had to
inform Balkrishnan that he was receiving a lower annual raise because of “his lack of
ability to . . . appropriately interact with students and faculty in the Division”. He
referred to disagreements Balkrishnan had with Szeinbach, Seoane, Pedersen, and
Schneider. (Doc. 116 at 6-7.)
On February 16, 2006, Balkrishnan sent an email to Dean Brueggemeier and
Nahata complaining about teaching assistantship (“TA”, “GA”, or “GTA”) position
allocations, and stating that he nevertheless understood if the department was funding
“unqualified GAs” “for fear of additional ‘discrimination’ law suits, which are as usual,
totally baseless.” (Doc. 118-11 at 2.) In May and June 2006, Balkrishnan allegedly ad4

vised his students not to participate in a research program Szeinbach advised, and
complained about Szeinbach to a group of peers at a national conference. (Doc. 132 at 4;
Doc. 130 at 15.) On June 23, 2006, Balkrishnan sent an email to Brueggemeier and
Nahata alleging that a faculty candidate had been contacted several times by Szeinbach
and advised not to come to the COP, because of discrimination there and the bad influence of Balkrishnan himself. (Doc. 118-11 at 6.) He alleged further that she had
complained to a prospective PhD student that he was a “slavedriver” and “an evil
person”, and that the candidate should work with her instead. Finally, he claimed that
Szeinbach had slandered him and the COP at the recent International Society for
Pharmacoeconomics and Outcomes Research meeting, and that she had falsely reported
to OSU-HR that he was harassing her students. (Id.) On July 14, 2006, Balkrishnan sent
an email to Brueggemeier complaining that in one of her classes Szeinbach gave her
students the answers to exam questions the day before the exam. (Id. at 9.)
Several of Szeinbach’s colleagues (although not including Balkrishnan), sent
Brueggemeier a letter on June 6, 2006, “to express the collective frustration and dissatisfaction of several Senior members of [PPAD] with . . . Dr. Sheryl Szeinbach.” (Doc.
127-1 at 32.) They complained that she rarely attended division meetings, and that
when she did so she disrupted the proceedings and was disrespectful of others, “so
much so that several members refuse to attend the meetings, and most dread them.”
The writers alleged specifically that Szeinbach had done a poor job teaching individual
classes, and that three graduate students had asked to have their advisor reassigned.
5

They stated that “[n]one of us feel that . . . the Graduate Program [is] better now than
when she came”, and stated that the complaints they were addressing were known to
colleagues around the country, reflecting poorly on COP’s reputation. (Doc. 127-1 at 3233.)
On September 6, 2006, Seoane filed a charge of discrimination against OSU with
the Equal Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission
(“OCRC”). Szeinbach again did nothing specific to assist Seoane with filing this charge.
(Doc. 111 at 27.) On the same day, Szeinbach sent Balkrishnan an email claiming that
one of her graduate students reported that Balkrishnan had been harassing her to join
his research instead. (Doc. 118-11 at 10.) Balkrishnan forwarded this email on to Brueggemeier and Nahata, stating that he was tired of baseless allegations and “harassment”
from Szeinbach, and that “she also has a tendency to storm into my office and say
things which do not make any sense”. (Id.) He then forwarded the email to Ms. Chitra
Iyer, an HR officer at OSU, accompanied by a lengthy complaint against harassment on
the part of Szeinbach. (Doc. 122-5 at 22.) Balkrishnan alleged the harassment had included:
email communication, unsolicited entry and harassing verbal communication in my office, defamation and slander in public at faculty meetings
as well as to other colleagues, racially tinged remarks, and false allegations of harassing her students (she also has filed a false complaint in this
regard with OSU human resources).
(Id.) Balkrishnan claimed further that Szeinbach had been misusing her senior faculty
rank to harass and intimidate him, and that she had told him that she wanted him to
6

leave as soon as possible. (Id.) Later that day, Brueggemeier sent a follow-up email to
Vice Provost Barbara Snyder, Iyer, and Nahata, stating:
I have “defused” the situation at this time. It is clearly an issue between
two tenured faculty who refuse to resolve their conflicts and would rather
“throw bombs” at each other.
(Id. at 21.)
Later, on September 8, 2006, Balkrishnan sent an email to Brueggemeier reporting that two of Szeinbach’s students who held TA positions also worked full-time
elsewhere, and complaining that this was unfair to his students. (Id. at 11.) On September 21, 2006, he sent another, complaining that Szeinbach’s graduate students were
being permitted to keep their TA positions despite having failed to enroll in a compulsory seminar. (Doc. 118-11 at 14.) On September 26, 2006, Balkrishnan sent another
email to Iyer in response to her voice mail, complaining again of false allegations leveled by Szeinbach and Seoane, and claiming that he and his students had been harassed.
(Doc. 118-10 at 6-7.)
In 2004 and 2005, Szeinbach had received 2.75% salary increases. (Szeinbach’s
July 10, 2010 Deposition, p. 408, Doc. 111, PageID 7396.) But in 2006 she received just a
1% salary increase. (Id., pp.419-20 and 424-25, PageID 7399 and 7400.) In November
2006, Szeinbach filed an EEOC charge against OSU. In it, she stated:
In August 2006 and prior, I complained to Bob Brueggemeier, Dean, of his
discriminatory treatment of a male colleague. In September 2006, I received a below average performance rating and a low salary increase, although previous wage increases were higher and performance ratings
were good.
7

I believe I was retaliated against because of my sex, female, and opposing
of discriminatory practices in violation of Title VII of the Civil Rights Act
of 1964, as amended.
(Doc. 122-2 at 2.)
In December 2006, Szeinbach filed an internal complaint with OSU’s Office of
Human Resources (“OSU-HR”), alleging that Brueggemeier had retaliated against her
for her support of Seoane’s EEOC complaint.2 On January 25, 2007, Balkrishnan filed a
formal internal complaint with OSU-HR against Szeinbach and Seoane, alleging that he
had been discriminated against and harassed on the basis of his national origin, race,
and comparatively superior academic productivity. (Doc. 118-10 at 5.) He claimed that
the mistreatment had lasted for over two years, and that his previous complaints had
not led to “an agreeable solution”.
On February 13, 2007, Balkrishnan sent an email to Brueggemeier and Nahata
claiming that one of his research collaborators had reported to him that Szeinbach had
called to complain at length about Balkrishnan and to report that he had been discriminating against Seoane. Balkrishnan commented that “[t]hese obviously seem to be the
rantings of someone who is quite discontent and unhappy here”. (Doc. 118-11 at 48.)
He sent several more emails throughout 2007 complaining about Szeinbach, Seoane,
their graduate students, and their alleged misconduct. (See Doc. 118-12 at 1-2 (un2

The parties concur that Szeinbach cannot recover for retaliation occurring more
than 300 days prior to her October 12, 2007 EEOC charge. (Doc. 130 at fn 12.) The
plaintiff has therefore conceded that she generally cannot recover for conduct dating
from before December 15, 2006.
8

professional TA conduct); Doc. 118-12 at 16 (Szeinbach should recuse herself from
tenure decisions about him); Doc. 118-12 at 17 (Szeinbach teaching a course with too
few students enrolled); Doc. 118-22 at 57-58 (Szeinbach promised everyone in a course
A grades).)
On or about April 25, 2007, Priscilla Hapner concluded her investigation of an
internal OSU civil rights complaint Szeinbach made against Balkrishnan. (Priscilla
Hapner's April 25, 2007 Letter to OSU Associate Legal Counsel Mary G. Menkedick
Ionna, Doc. 131, PageID 11222.) No later than May 8, 2007, Balkrishnan had learned that
Hapner had concluded her investigation. (Balkrishnan Dep. Ex. 146, Doc. 118-12,
PageID 9785.)
On April 28, 2007, Balkrishnan sent an email to Dr. Mark Levy, editor of Primary
Care Respiratory Journal, concerning an article which Szeinbach had co-authored3 and
which his journal had recently published. Balkrishnan stated that the 2007 article had
reported “exactly identical results just analyzing the data slightly differently” from a
2005 article Szeinbach had co-authored in a different journal, and that the 2007 article
had failed to reference the 2005 article.4 (Doc. 98-1, PageID 5081.) The same day, he
3

The 2007 article was co-authored by Szeinbach and three other individuals,
including Seoane and a graduate student.
4

Balkrishnan's email read:
I am writing to you in confidence to point this out. I have come across 2
research reports, one published in 2005 and the other in 2007 (in your
journal) in different journals with exactly identical results just analyzing
the data slightly differently. Is this something which is OK? Both papers
and abstracts are attached for your reference. Also the 2007 paper does not
9

emailed Nahata with the same allegations, although Balkrishnan characterized this
email as seeking Nahata’s advice on the situation given his experience as editor of (an
unrelated) journal. (Id., PageID 5083.) Balkrishnan apparently forwarded his correspondence with Dr. Levy to Nahata and Brueggemeier, as well as to Dr. Craig Pedersen
(“Pedersen”), a professor in PPAD, and Dr. William Hayton (“Hayton”), OSU’s Associate Dean of Research. (Id., PageID 5085.) On May 1, 2007, Balkrishnan also sent his
email correspondence about the alleged duplicate publications to a group of professors
at other universities, adding an allegation that Szeinbach had presented this research at
the 2005 International Society for Pharmacoeconomics and Outcomes Research meeting,
and that she planned to present it again in 2007. (Id., PageID 5089.) Pedersen responded, recommending that Szeinbach’s graduate student co-author be kept out of the investigation. Balkrishnan responded, stating that “I will defer to the rest of the group for
the final decision, but I will respectfully disagree with Craig about this”. (Id. at 16.)
Balkrishnan testified that he conferred with Brueggemeier, Nahata, and other
faculty before filing his "whistleblower" complaint. (Balkrishnan Dep., Doc. 118, p. 355,
PageID 8784.) Sometime in early May, he filed the complaint charging Szeinbach with
research misconduct.5 This formally activated the investigative procedure set out in
reference the 2005 paper. I am surprised that this was not picked up in
your peer review.
(Id.)
5

Balkrishnan's complaint was undated. (Doc. 132, PageID 11430.) The Preliminary Report of the Committee of Initial Inquiry did not identify the date Balkrishnan
filed the complaint. (Doc. 122-7 at 5.) Balkrishnan did email Hayton a copy of his com10

OSU's "University Research Committee Interim Policy and Procedures Concerning
Misconduct in Research or Scholarly Activities" (the "Interim Policy"). (See Doc. 99-3.)
This policy prohibited, and defined as misconduct, activities which included "other
practices that seriously deviate from those that are commonly accepted within the
relevant scholarly community". (Id. at 4.) The Interim Policy stated that misconduct
charges could be filed by anyone, and that anyone receiving such charges should
immediately refer them to the Office of the Vice President for Research. Upon such
referral, the Office of the Vice President for Research, the Dean of the relevant college,
and the Coordinator designated by the university to administer the policy, were to
conduct a preliminary review and investigation of the charges, to determine whether
sufficient evidence existed to warrant an inquiry, and whether the complained-of
activity fell within the definition of misconduct. (Id. at 5.) If the Dean and Coordinator
were to determine that the charges contained sufficient evidence to warrant an inquiry
and that the charges fell within the definition of misconduct, they were to reduce them
to writing and meet with the accused researcher to present the charges and advise them
of the pending investigation. Then, the Vice President for Research would form a
Committee of Initial Inquiry ("CII"), to consist of at least three persons. (Id. at 7.) The
purpose of the CII was to make a preliminary evaluation and investigation of the
munications with the editor of the Primary Care Respiratory Journal on May 1, 2007.
(Hayton Dep., 136-37, PageID 18843 and Ex. 486, PageID 18985.) There are also notes
indicating that Hayton, Brueggemeier, Guttman and Moseley may have met on May 25,
2007 to decide whether to form a CII. (Id. and Ex. 487, PageID 18986; Moseley Dep., 153,
PageID 33517.)
11

evidence and determine whether there was sufficient evidence of possible scientific
misconduct to warrant an investigation under OSU's disciplinary rules. It was then to
prepare a Preliminary and a Final Report. If the CII were to determine that sufficient
evidence existed to warrant an investigation, then it would trigger a lengthy and
complex faculty discipline process established by University Rule 3335-5-04 (the "04
Process"), which could ultimately result in a faculty member's termination. (Id. at 10.)
Upon initial review, Dean Brueggemeier determined that the similarities
between the two articles might meet the definition of research misconduct under the
Interim Research Policy and should be referred to a CII.

(Guttman Dep., 57, Doc.

102-1, PageID 5942.) He recommended to Vice President McGrath that the matter not
be resolved through alternative dispute resolution. (Moseley Dep., 177-78, Doc. 68-1
PageID 3541-42.) McGrath organized a CII, charging it with determining whether
Balkrishnan's allegations contained sufficient evidence of possible misconduct to
warrant further investigation under the disciplinary rules. (Doc. 122-7 at 6.) The CII
first met on August 15, 2007, and again in September and October 2007. On November
16, 2007, it produced its preliminary report. The CII considered four potential areas of
misconduct. It rejected three of these (duplicate publications, authorship, and selfplagiarism), but found potential misconduct in Szeinbach's failure to cite her 2005
article in her 2007 article. The committee did find that “most of the prose in the 2007
article has been directly taken from the 2005 article”, and concluded that “the practice of
using large sections of previous work, particularly without citation, represents the
12

poorest of scholarly practices . . . .” (Id., p. 4.) The report noted that both articles used
much the same data set and found many of the same conclusions, but the focus of the
articles were different. While “extensive sections of the two articles were identical and
obtained from the first publication,” additional scholarship was performed to reach the
conclusions drawn in the 2007 article. (Id., at 3-4.) The report stated the committee’s
belief “that the failure to quote the 2005 article in the 2007 article seriously deviates
from commonly accepted practices within the research community and as such
represents misconduct."6 (Id. at 8.) The committee reasoned that Szeinbach, “who not
only had written the 2005 article but used its text and data extensively in preparation of
the 2007 article . . . ”, had to have known that citation to the 2005 article was required.
(Id.)
After reviewing objections from Szeinbach, including evidence that she argued
showed that other faculty such as Brueggemeier and Balkrishnan had engaged in similar practices, the CII issued a substantively similar Final Report on January 9, 2008. (Id.
at 26.) Dr. Kinghorn, a professor in the College of Pharmacy, dissented from the finding
that there was sufficient evidence of research misconduct to warrant further investigation. (Id. at 25.) By majority vote, the CII's final determination was that sufficient evidence existed to warrant an investigation under the 04 Process. Moseley testified that
this is the only occasion she knew of where a CII found sufficient evidence of a failure

6

The Preliminary Report rebuked, although it did not find misconduct on the
part of, Szeinbach for self-plagiarism. (Id.)
13

to cite a previous publication to warrant a further disciplinary investigation. (Moseley
Dep., 166, Doc. 68-1, PageID 3530.)
However, no further investigation was ever conducted. On February 19, 2009,
Brueggemeier sent Szeinbach a letter reporting that in May 2008 OSU had adopted a
new research policy to supplant the Interim Policy. That policy did not contain a provision prohibiting "other practices that seriously deviate from those that are commonly
accepted within the relevant scholarly community". (Id. at 2-3.) Consequently, Brueggemeier stated, as the finding against Szeinbach had been based on a practice which
was no longer prohibited, he did not feel that the matter warranted further investigation. (Id. at 3.)
In June 2007 Szeinbach submitted a correction note, which was published in the
Primary Care Respiratory Journal, stating that she and the other authors of the 2007 article
“were remiss” in not acknowledging that the article used “the same data source, data
collection and back and background literature that was used in our previous study
addressing a different issue” published in 2005. They further acknowledged that they
were “remiss in not referencing the previously published AAAI paper in the manuscript” they submitted to PCRJ. (Doc. 138-1, PageID 13175.) In the same issue, the
publishers of the Journal issued an editorial chastising Szeinbach and the other authors
of the 2007 article for failing to cross-reference the two. The editorial stated, in relevant
part:

14

The journal recently published an article which, unknown to the editors–
there was no author declaration of any previous related publications–
presented an analysis of data previously used to answer a different research question in an earlier paper published in another journal. . . . [I]t is
the responsibility of authors to ensure that previous publications, particularly those using the same data, are cross-referenced when reporting.
This did not occur in this instance, and resulted in a third party complaint
. . . . A full investigation ensued . . . .
We have concluded that the paper submitted to the PCRJ was not a duplicate publication . . . . However, there is no doubt that substantial parts of
the text of the PCRJ paper - including parts of the introduction, methods,
results and discussion sections - are extremely similar to the paper published previously in the AAAI. In addition, the authors had not declared
to the editors . . . of the PCRJ the fact that the AAAI paper - in which they
had used the same dataset - had been published. Furthermore, in not
referencing the AAAI paper they did not permit readers of the PCRJ to put
the later PCRJ paper in context. A correction is published in this issue of
the PCRJ.
(Id., PageID 13173.) On August 13, 2007, Balkrishnan emailed a link to the editorial to
the entire COP faculty, accompanied by a note saying he was “extremely saddened to
report that a major clinical journal has published this. This is a matter of great shame
and disrepute” to COP. (Doc. 127-1, PageID 10945.) Szeinbach sent a rebuttal to the
faculty on August 21, 2007 containing a copy of an email from the editor of the Journal
commenting that Balkrishnan had mischaracterized their editorial, and stating that
Balkrishnan had sent his email to further retaliate against her and Seoane. (Doc. 118-8,
PageID 9485.) This was followed by an August 21 email from Balkrishnan to the entire
COP faculty stating that he had not even mentioned Szeinbach or Seoane by name in his
email, and that his concern had simply been that the “reputation of the college has been
compromised”. (Doc. 132-1, PageID 11479.) The email further included cut and paste

15

attachments which Balkrishnan stated included “a copy of my letter to Dr. Levy and
concerned authorities in the OSU whistleblower report form . . . .” (Id.)
At a September 4, 2007 faculty meeting to discuss graduate teaching assistantship
allocations, Balkrishnan and Szeinbach argued about TA qualifications. During the
argument, Balkrishnan exploded at Szeinbach, shouting at her and calling her a “bitch”.
(Doc. 118-13 at 5.) On September 17, 2007, Brueggemeier sent a letter to Balkrishnan,
informing him that his actions at the meeting had been “very unprofessional, extremely
rude, and totally unacceptable.” (Doc. 119-2 at 2.) He stated that Balkrishnan’s actions
would not be tolerated, and that he had told him before not to engage in discussions or
interactions with Szeinbach, Seoane, or their graduate students outside of classes. “The
last time that I emphatically made these points was in early August 2007 following the
exchange of e-mails between you and Dr. Szeinbach that were sent to the entire College
faculty.” Brueggemeier restricted access to Balkrishnan’s endowed chair development
funds, except for the purpose of finding a “coach or mentor”. He urged Balkrishnan to
seek anger management assistance from OSU’s HR office. (Id.) Balkrishnan eventually
received counseling. (Doc. 119 at 13-14.)
Finally, on October 12, 2007, Szeinbach filed a second charge with the EEOC,
citing the research misconduct investigation and Balkrishnan's outburst at the September 4, 2007 faculty meeting. On August 27, 2008, she filed this lawsuit. Balkrishnan
left OSU to move to the University of Michigan in Spring of 2009.

16

II.

Allegations in the Second Amended Complaint

Plaintiff Sheryl Szeinbach met OSU Assistant Professor Enrique Seoane-Vazquez
(“Seoane”) when he was hired on August 19, 2002. (May 5, 2010 Second Am. Compl. at
¶ 9.) Seoane’s national origin is Spanish. (Id. at¶ 10.) Dr. Milap Nahata is the Chair of
the Division of Pharmacy Practice and Administration of OSU’s College of Pharmacy.
In 2004, Nahata appointed Seoane as a member of a search committee to fill a faculty
opening. (Id. at¶ 11.) During the faculty search, plaintiff, Seoane and other search
committee members developed concerns about the qualifications and background of
one of the finalists, Dr. Rajesh Balkrishnan based on his admission that he had experienced conflicts with colleagues where he was currently employed. (Id. at¶ 12.) Nahata
with plaintiff and Seoane’s concerns from the search committee and hired Balkrishnan
without a hiring recommendation from the committee. (Id. at¶ 13.) Balkrishnan and
Nahata’s national origin is Indian. (Id. at¶ 14.) Plaintiff believes that Nahata told Balkrishnan that plaintiff and Seoane opposed his hiring. (Id. at¶ 15.)
Shortly after Balkrishnan joined the Division of Pharmacy Practice and Administration, plaintiff and Seoane observed Nahata’s preferential treatment of faculty and
students of Indian national origin and his detrimental treatment of faculty of Spanish
origin. Nahata told one of Seoane’s Indian students that because he was Indian, he
should be working with Balkrishnan. (Id. at¶ 16.)
During meetings in 2004, Nahata and Balkrishnan consistently dismissed
plaintiff’s suggestions and concerns regarding Seoane and other issues. As a result,
17

plaintiff attended fewer meetings. (Id. at¶ 17.) In 2004, plaintiff only received a 2.75%
salary increase in retaliation for her support of Seoane even though similarly situated
faculty salary increased received increases of at least 3.5%. (Id. at¶¶ 18-19.)
Nahata asked Balkrishnan to prepare and present Seoane’s 2005 annual review to
the Division. (Id. at¶ 20.) Because the review contained prejudicial and discriminatory
materials, plaintiff sent Dean Robert Brueggemeier an email expressing her concerns
about Balkrishnan’s conduct. (Id. at¶ 21.) On August 22, 2005, Seoane filed a complaint
alleging discrimination and retaliation. (Id. at¶ 22.) Plaintiff supported the filing and
prosecuting of Seoane’s complaint. (Id. at¶ 23.)
In 2005, Plaintiff received a lower salary increase compared to similarly situated
faculty members. (Id. at¶ 29.) On September 6, 2006, Seoane filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio
Civil Rights Commission (“OCRC”). (Id. at¶ 32.) On November 3, 2006, plaintiff sent an
email to OSU employee James Dalton who chaired Seoane’s four-year review highlighting Nahata’s discriminatory and retaliatory involvement in the review process. (Id.
at¶ 34.)
In December 2006, plaintiff filed a complaint with OSU’s Office of Human Resources alleging Brueggemeier retaliated against her for her support of Seoane’s EEOC
complaint. (Id. at¶ 36.) In 2006, plaintiff received a 1% salary increase, which was lower
than other similarly situated faculty members. (Id. at¶¶ 37-38.)

18

On April 27, 2007, Balkrishnan attended a presentation of one of plaintiff’s graduate students. Differences and similarities between two publications authored in part
by plaintiff were discussed. (Id. at¶ 39.) On April 28, 2007, Balkrishnan sent an email to
the editor of one of plaintiff’s publications stating that the articles contained identical results but analyzed the data slightly differently. (Id. at¶ 40.) Balkrishnan sent the email in
retaliation for plaintiff’s support of Seoane’s protected activities. (Id. at¶ 42.) Prior to
sending the email, Balkrishnan asked Nahata to advise him on how to address the articles. (Id. at¶ 43.) On May 1, 2007, Balkrishnan emailed Nahata, Brueggemeier, Pedersen
and OSU Associate Dean of Research Dr. William Hayton stating that he would defer
the final decision regarding how to use plaintiff’s publications to them. (Id. at¶ 46.)
Plaintiff’s publications were used as a venue for retaliating against her for supporting
Seoane’s protected activities. (Id. at¶ 47.) Balkrishnan emailed professors at several
universities informing them of the similar publications. (Id. at¶ 48.)
In May 2007, Balkrishnan filed a complaint with OSU alleging that plaintiff’s
publications violated the Interim Policy and Procedures on Misconduct in Research or
Scholarly activities. (Id. at¶ 52.) On June 5, 2007, plaintiff was charged with violating the
research misconduct policy. (Id. at¶ 54.) On June 11, 2007, plaintiff’s request that the
charge be dismissed or resolved through the alternative dispute resolution provisions
was denied, and Brueggemeier recommended that formation of a Committee of Initial
Inquiry (“CII”). (Id. at¶ 56.)

19

On August 12, 2007, plaintiff filed a complaint with Human Resources asking for
an investigation into Brueggemeier, Hayton, Nahata and Balkrishnan’s retaliation. (Id.
at¶ 60.) Three days later, Balkrishnan sent an email to approximately 100 OSU employees stating that plaintiff’s publications caused great shame and disrepute to the College
of Pharmacy. (Id. at¶ 61.) Balkrishnan sent a second email on August 21, 2007
containing the correspondence with editors of publications that published plaintiff’s
articles. (Id. at¶ 65.) These emails violated the confidentiality provisions of the research
misconduct policy. (Id. at¶ 65.)
During a September 4, 2007 meeting, Balkrishnan told plaintiff to shut up and
stop being a bitch. (Id. at¶ 69.)
The CII concluded that plaintiff’s publications were not duplicate publications
but the reuse of a data set without a cross-reference warranted further investigation. (Id.
at ¶ 71.) Plaintiff received a 3% increase in 2007, which was a lower salary increase than
similarly situated faculty. (Id. at¶¶ 72-73.) OSU’s failure to discipline Brueggemeier,
Nahata, Balkrishnan, Moseley, and Lee for engaging in more egregious publication
and/or grant submission practices demonstrates that the investigation in to plaintiff’s
publications was retaliatory. (Id. at¶¶ 75-78.)
III. Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A party asserting the absence or presence of a genuine
20

dispute must support that assertion by either “(A) citing to particular parts of materials
in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials”; or “(B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
A party may object that the cited material “cannot be presented in a form that
would be admissible in evidence,” and “[t]he burden is on the proponent to show that
the material is admissible as presented or to explain the admissible form that is anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a party
uses an affidavit or declaration to support or oppose a motion, such affidavit or declaration “must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).
While the court must consider the cited materials, it may also consider other
materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for
summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273, 279
(6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). “The central issue is ‘whether the evidence presents a sufficient disagreement to
21

require submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986)).
IV. Discussion
A.

Scope of the EEOC Charge7

Defendant OSU argues that it is entitled to judgment on all of Dr. Szeinbach’s
allegations and claims that are beyond the scope of the October 16, 2007 EEOC charge.
OSU maintains that Dr. Szeinbach’s claim of retaliation based upon her alleged support
of Dr. Seoane was not raised in her second EEOC charge and is therefore beyond the
scope of the charge.
Plaintiff’s October 16, 2007 EEOC Charge, executed on October 128, states:
I started working for Ohio State University on January 19, 1999; my most
recent position is Tenured Professor at the College of Pharmacy. On June
5, 2007, false allegations were made against me. On September 4, 2007, I
was harassed.
On November 22, 2006, I filed an EEOC charge of discrimination and
several internal complaints since that time against the Respondent. On
June 5, 2007, I was charged with research misconduct by Dr. Brueggemeier (Dean of the College of Pharmacy) and Dr. Hayton (Dean for
Research). On September 4, 2007, during a meeting of certain faculty and
students of the College of Pharmacy, Dr. Rajesh Balkrishnan clenched his
fists and screamed at me threateningly, “You just need to shut up and

7

My December 10, 2010 Opinion and Order assumed, without deciding, that
Szeinbach’s claims were within the scope of her October 16, 2007 charge of discrimination against OSU. (October 12, 2007 Opinion and Order, at 42, PageID 17171.)
8

Although executed October 12, the EEOC stamped the charge received October

16.
22

stop being a bitch.” Dr. Robert Lee and Dr. Balkrishnan both engaged in
research conduct similar to what I have allegedly done and no research
misconduct proceedings were initiated against them.
I believe I have been retaliated against by being harassed for both filing a
previous charge of discrimination with the EEOC and several internal
complaints against the Respondent, in violation of Title VII of the Civil
Rights Act, of 1984, as amended.
(Doc. 98-1, at 2, PageID 5071.)
In response to defendant’s argument that the claims in her second amended
complaint are not within the scope of her 2007 EEOC charge, plaintiff argues that her
Allegations of Employment Discrimination Form (“AED Form”) explicitly identified her
support of Dr. Seoane as a basis for her retaliation claims. Szeinbach completed the
AED Form on September 6, 2007 to support the second charge that she later filed with
the EEOC. On that form, she stated that she had been retaliated against because she
“engaged in protected activity by filing internal and EEOC Complaints and by testifying as a witness in an Ohio State University investigation of complaints brought by two
others.” (Doc. 135-5, PageID 12558.) She indicated that she had both filed a charge of
discrimination on November 22, 2006 and complaints with the Ohio State University on
October 9, 2006 and August 12, 2007, later amended on August 13, September 4, and
September 6, 2007. Id. Szeinbach described the type of harm she had suffered in Attachment A to the AED Form:
My supervisors, Dean Robert Brueggemeier and Associate Dean for Research William Hayton of the Ohio State University College of Pharmacy,
have taken retaliatory action against me for making and supporting
charges of discrimination and retaliation by initiating formal proceedings
23

against me under Ohio State University’s Research Misconduct policy
without any legitimate basis.
Id., PageID 12564. Her description of the events leading to the harm she suffered was set
out in AED Form Attachment C:
Beginning on June 5, 2007 I was subjected to retaliation for my support of
complaints filed by a junior faculty member, Dr. Enrique Seoane-Vazquez,
and for filing complaints myself.
On June 5, 2007 I was charged with research misconduct (Document 10)
by Dr. Brueggemeier . . . and Dr. Hayton . . . without any type of due
process, prior knowledge of the complaint, and no opportunities to explain or have legal counsel present.
Later, I learned that the complaint was initiated by Dr. Rajesh Balkrishnan. . . . Dr. Balkrishnan filed this complaint as an act of retaliation for the
actions involving the internal OSU complaints and EEOC charges of
discrimination against Dr. Balkrishnan that were filed earlier by Dr.
Enrique Seoane-Vazquez and myself.
Filing these complaints by Dr. Balkrishnan against me was intentional and
initiated with malice. On April 28, 2007 Dr. Balkrishnan attended a seminar where the results of a certain study were presented and compared to
a study that had been the subject of a different publication. These research
papers were in the area of his discipline and he knew in advance that the
publications were different. Nonetheless, on April 29, 2007 he filed a maliciously fraudulent complaint to the editors where the two papers were
published one in 2005 and the other in 2007 claiming that the papers were
duplicate publications. Then Dr. Balkrishnan sent email to key administrators at the Ohio State University and Drs. Brueggemeier, Nahata,
Hayton, all of the College of Pharmacy. Despite the recommendations of
the staff of the Office of Research Compliance, Dr. Jennifer Moseley and
Dr. Robert McGrath that there was no basis for formal proceedings against
me, Drs. Brueggemeier, Nahata, and Hayton pressured the Office of
Research Compliance into proceeding with an inquiry as an act of retaliation against me for my support of Dr. Enrique Seoane-Vazquez, who is
also a co-author of the paper that published in the Primary Care Respiratory Journal, and for prior complaints and charges that I have filed against
Drs. Brueggemeier, Nahata, and Balkrishnan. OSU’s Research Misconduct
24

policy . . . provides that this process can be stopped at any time, yet these
individuals continue to push this process forward.
Moreover, on September 4, 2007, at a meeting of certain faculty and students of the College of Pharmacy, . . . Dr. Balkrishnan jumped out of his
chair, moved directly in front of me, clenched his fists, and screamed at
me threateningly, “You just need to shut up and stop being a bitch!” This
was witnessed by numerous Pharmacy faculty and students, including Dr.
Nahata, and represents the hostile environment to which I am being subjected.
(Id., PageID 12566.) In response to the form’s request for comparative data about how
similarly situated persons were treated, Szeinbach alleged the following facts in AED
Form Attachment D:
The following individuals engaged in research conduct similar to what I
have allegedly done: Dr. Robert Lee; Dr. Rajesh Balkrishnan. They were
treated better than me because no research misconduct proceedings were
initiated against them despite that they each published articles that are
duplicative in the same ways that mine allegedly were. Neither of them
has been retaliated against by having to defend themselves against a
research misconduct investigation. In my case, that investigation is completely within basis and solely for retaliatory purposes.
(Id., PageID 12567.) Plaintiff also contends that a review of the issues raised in the OSUHR complaints demonstrates that Dr. Szeinbach informed the EEOC of her support of
Dr. Seoane. Under the form’s category of “Miscellaneous Information,” Szeinbach set
out a detailed time line of the acts of retaliation she alleged in AED Form Attachment F.
(Id., PageID 12569-71.) These events begin April 27, 2007 and end September 4, 2007.
The events set out relate to Dr. Balkrishnan and his claim that Szeinbach’s 2005 and
2007 articles were research reports with the same results that analyzed the data slightly
differently and the responses of various OSU administrators to Balkrishnan’s and
25

Szeinbach’s positions and his emails. The events also specifically references Balkrishnan’s emails to the journal, OSU faculty and administrators, and to other regarding his
allegations about duplicate publications. It ends with Dr. Balkrishnan telling Szeinbach
at September 7, 2007 meeting of COP students and faculty, “You just need to shut up
and stop being a bitch.” (Id.) Neither the October 16, 2007 charge of discrimination nor
the September 6, 2007 AED Form allege a lesser wage increase or any other actions by
Brueggemeier or Nahata, other than those they took or failed to take related to Balkrishnan’s research misconduct charge against Szeinbach, as retaliation for her having
filed an EEOC complaint and internal OSU discrimination complaints.
Defendant argues that none of the allegations in paragraphs 41-48 (Balkrishnan's
false statements and emails about Szeinbach's publications) and 72-73 (a lesser pay raise
for the 2007-08 academic year) of the amended complaint have any relation to the scope
of the charge. Szeinbach's charge and AED Form do allege retaliation related to Balkrishnan's filing research misconduct charges against Szeinbach and OSU's failure to
reject those charges and/or terminate the investigation of those charges. However, there
are no allegations in the charge concerning Szeinbach's pay raise for the 2007-08
academic year or any other year.
Plaintiff argues that her 2006 internal OSU-HR complaint, referenced in her AED
Form, alleged that Brueggemeier retaliated against her for her support of Seone's 2006
EEOC charge. The OSU-HR investigator summarized that 2006 complaint as alleging
that Brueggemeier gave her a lower performance review and salary increase because of
26

her sex and her support of Seoane's discrimination complaint. (Priscilla Hapner's April
25, 2007 Letter to OSU Associate Legal Counsel Mary G. Menkedick Ionna, Doc. 131,
PageID 11222.)
Szeinbach’s October 16, 2007 charge alleges only retaliation by Balkrishnan,
Brueggemeier, and Hayton related to the research misconduct charge. The references to
Szeinbach’s internal OSU complaints are not to the substance of those complaints.
Rather, Szeinbach asserted the reason Brueggemeier permitted Balkrishnan’s research
misconduct charge to go forward was that she had filed EEOC and internal OSU civil
rights complaints. When she described in the AED Form the harm she suffered as a
result of the retaliation and the events leading to that harm, Szeinbach referred only to
the research misconduct charge and Balkrishnan’s treatment of her.
The charge and AED Form were prepared by Szeinbach’s attorneys. (July 9, 2009
Deposition of Sheryl Szeinbach, Doc. 110, p. 196-97, PageID 7182-83.) Plaintiff’s charge
is clear about what allegedly prompted OSU’s retaliation–Szeinbach’s filing an EEOC
charge and internal civil rights complaints–and the retaliatory conduct–permitting a
research misconduct charge to go forward and tolerating Balkrishnan’s retaliatory conduct.
A plaintiff asserting a Title VII claim must first file an administrative charge of
discrimination with the EEOC or the Ohio Civil Rights Commission and cannot file suit
until the administrative proceeding is terminated. 42 U.S.C. § 2000e-5(e)(1). Filing an
administrative charge gives the employer notice of the claimed violation of Title VII,
27

gives the EEOC or Ohio Civil Rights Commission an opportunity to investigate the
charge, and provides the parties and the administrative agency an opportunity to settle
the claim without further litigation. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361-62
(6th Cir. 2010); Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 534 (6th Cir.
2001). The Secretary’s regulations provide:
(a) Each charge should contain the following:
...
(3) A clear and concise statement of the facts, including pertinent dates,
constituting the alleged unlawful employment practices: See § 1601.15(b);
...
(b) Notwithstanding the provisions of paragraph (a) of this section, a
charge is sufficient when the Commission receives from the person
making the charge a written statement sufficiently precise to identify the
parties, and to describe generally the action or practices complained of. . . .
29 C.F.R. § 1610.12. A plaintiff’s Title VII claims are "limited to the scope of the EEOC
investigation reasonably expected to grow out of the charge of discrimination." EEOC v.
McCall Printing Corp., 633 F.2d 1232, 1235 (6th Cir. 1980); Younis, 610 F.3d at 362; Davis
v. Sodexho Cumberland College, 157 F.3d 460 463 (6th Cir. 1998); EEOC V. Bailey Co., 563
F.2d 439 446 (6th Cir. 1997); Jackson v. Ohio Bell Telephone Co., 555 F. Supp. 80, 83 (S.D.
Ohio 1982). The rationale for this rule was discussed in Davis:
One reason for the expanded rule is that charges are frequently filed by
lay complainants, and the courts recognize that subsequent actions should
not be restricted by the failure of a complainant to attach the correct legal
conclusion to the EEOC claim, conform to procedural technicalities, or
include “the exact wording which might be required in a judicial pleading.” Bailey, 563 F.2d at 447; see McCall Printing, 633 F.2d at 1235. This
expanded rule does not mean, however, that plaintiffs are excused from
filing charges on a particular discrimination claim before suing in federal
court.
28

When the EEOC investigation of one charge in fact reveals evidence of a
different type of discrimination against the plaintiff, a lawsuit based on
the newly understood claim will not be barred. [Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970).]
...
Similarly, where facts related with respect to the charged claim would
prompt the EEOC to investigate a different, uncharged claim, the plaintiff
is not precluded from bringing suit on that claim. [Farmer v. ARA Services
Inc., 660 F.2d 1096, 1105 (6th Cir.1981).]
157 F.3d at 463. The Davis court held that an unrepresented employee who checked the
“race” and “other” box on the form charge of discrimination could not plead an age
discrimination claim when the EEOC did not investigate an age claim and the facts set
out in the charge did not indicate that age was basis of the discrimination claimed. 157
F.3d at 464. Similarly, the court in Younis, 610 F.3d at 362-63, held that a plaintiff who
did not check the “retaliation” box on the EEOC form and did not include facts that
would place the employer on notice that he was asserting a retaliation claim could not
plead a retaliation claim. See also, Coleman v. Cardinal Health 200, LLC, 2013 WL 5954428
(E.D. Mich. November 7, 2013)(Plaintiff could not bring a race claim when she checked
the “retaliation” box, but not the “race” box on the EEOC form).
Retaliation that occurred before the plaintiff filed a charge should be included in
the charge. Spengler v. Worthington Cylinders, 615 F.3d 481, 489 (6th Cir. 2010); Ang v.
Proctor & Gamble Co., 932 F.2d 540, 547 (6th Cir. 1991). Exhaustion of administrative
remedies is a statutory prerequisite, but it is not a a limitation on subject matter jurisdiction. Spengler, 615 F.3d at 489-90.

29

Here Szeinbach was represented by counsel when she filed her 2007 charge of
discrimination. There is a split in authority about whether the liberal “expected scope of
investigation” test applies when an employee was represented by counsel when she
filed her charge with the EEOC. In Ang, 932 F.2d at 546, an employee, who was represented by counsel, checked only the EEOC form box for”national origin” discrimination, and his statement of facts did not allege discrimination based on race. The court
held:
Courts require this broad reading of the charge because most Title VII
claimants are unschooled in the technicalities of the law and proceed
without counsel. See Sanchez, 431 F.2d at 463; Scott, 595 F.Supp. at 526;
Obradovich, 569 F.Supp. at 789. Ang, however, was assisted by counsel
throughout the administrative investigation. Liberal construction is not
necessary where the claimant is aided by counsel in preparing his charge.
Hawley v. Dresser Indus., Inc., 737 F.Supp. 445, 452 n. 3 (S.D.Ohio 1990)
Because Ang's Asian race and Indonesian ancestry are closely related
and may have both contributed to any discrimination he suffered, the
district court could have concluded that an investigation could reasonably
include discrimination based on race and national origin. The court,
however, did not clearly err in concluding that Ang's failure to raise race
discrimination in his EEOC charge was a fatal flaw as Ang was assisted by
counsel in writing his charge, his charge did not specifically allege race
discrimination, and the EEOC did not investigate race discrimination.
In contrast to Ang, the court in Spengler, 615 F.3d at 490, held that employees who
were represented by counsel when they filed their EEOC charges are entitled to a liberal
construction of the charge:
Defendant argues that liberal construction of Plaintiff's EEOC charge is
inappropriate because Plaintiff was represented by counsel. However, as
this Court has previously stated, the fact that we liberally construe EEOC
charges filed by pro se complainants “does not mean that a broad reading
30

may not, or should not, be given in cases where a plaintiff has counsel.”
Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 536 (6th Cir.2001);
see also Johnson v. Cleveland City Sch. Dist., 344 Fed.Appx. 104, 109 (6th Cir.
2009). In a case such as this where a plaintiff clearly sets forth a retaliation
claim in the narrative of the EEOC charge such that both the defendant
and the EEOC were on notice of the plaintiff's retaliation claim, a broad
reading of the EEOC charge is appropriate regardless of whether the
plaintiff was represented by counsel when filing the charge. [Footnote
omitted.]
Since Spengler was more recently decided, I conclude that a charge filed by a
plaintiff who is represented by counsel should be liberally read.9 Here Szeinbach
checked the “retaliation” box on the EEOC form. Further, although there are no facts set
out in either her charge or AED Form giving notice of her lesser pay raise retaliation
claim, Brueggemeier was alleged to have retaliated against Szeinbach by making the
decision to let the preliminary investigation go forward and by his condoning, tolerating, or encouraging Balkrishnan’s retaliatory actions. In all of the cases deciding
whether a claim is within the scope of the investigation that could be expected to arise
out of the charge, the employee had not checked the EEOC form box for that claim.
Here Szeinbach did check the retaliation box, and a principal actor in the research
misconduct charge retaliation claim was the decision-maker who allegedly retaliated for
her engaging in protected activities by giving her a lesser salary increase. Consequently,
an investigation of the charge would likely have led to the lesser salary increase

9

I also note that Ang does not necessarily preclude a liberal reading of the scope
of a represented plaintiff’s charge. 932 F.2d at 546.
31

retaliation claim. I conclude that the claim is within the scope of the investigation that
could be expected to arise out of the charge.

B.

Retaliation

Title VII prohibits employers from retaliating against employees for engaging in
protected activity:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees. . . because he has opposed any practice
made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
42 U.S.C.A. § 2000e-3(a). To prove a retaliation claim, a plaintiff must prove “that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer.” University of Texas Southwestern Medical Center v.
Nassar, 133 S.Ct. 2517, 2533 (2013). This “but-for” test is stricter than the lessened “a
motivating factor” standard of 42 U.S.C. § 2000e-2(m) that is applied to status based
discrimination claims. Id. 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

32

facie case of retaliation, the burden shifts to defendant to assert 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)).
Title VII prohibits retaliation against someone so closely related to and associated with the person exercising his or her statutory rights that it would discourage or
prevent that person from pursuing those rights. Thompson v. North American Stainless,
L.P., 131 S.Ct. 863, 870, 562 U.S. __ (2011). 10 A plaintiff may establish proof of a causal
connection “indirectly by showing that the protected activity was followed closely by
discriminatory treatment, or through other evidence such as disparate treatment of
fellow employees who engaged in similar conduct, or directly through evidence of
retaliatory animus directed against a plaintiff by a defendant.” De Cintio v. Weschester
County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (internal quotations and citations
omitted).
A plaintiff can establish a claim under Title VII by producing either direct or
circumstantial evidence of discrimination. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.
10

Because the Sixth Circuit has not previously recognized a claim for third party
retaliation, it is necessary to consider how plaintiffs have demonstrated a prima facie
showing of third party retaliation in other circuits.
33

2004). “[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. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).
Once the plaintiff has produced credible direct evidence, the burden shifts to the employer to show that it would have taken the employment action of which the plaintiff
complains even in the absence of discrimination. Id.
When a plaintiff relies on circumstantial evidence to support her claim, she has
the burden of demonstrating a prima facie case of discrimination using the McDonnellDouglas framework. DiCarlo v. Potter, 358 F.3d at 414. Once the plaintiff has shown a
prima facie case, the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for the employment decision. Seay v. Tenn. Valley Auth., 339 F.3d 454, 463
(6th Cir. 2003). If the defendant meets this burden, the plaintiff must demonstrate that
defendant’s stated reason is mere pretext for its true discriminatory motives. Id.
OSU argues that plaintiff cannot establish a prima facie case of retaliation under
Title VII. OSU maintains that Dr. Szeinbach does not have a cause of action for associational retaliation based on Thompson v. North American Stainless, L.P. Defendant contends that Dr. Szeinbach cannot demonstrate that she engaged in protected activity on
behalf of Dr. Seoane. Plaintiff simply alleges that she made a vague complaint or made
comments about unfair treatment. To be sufficient, plaintiff must have addressed conduct made unlawful under Title VII. Defendant also argues that Dr. Szeinbach’s alleged
exercise of protected activity was not known to the relevant decision-makers and there
34

was no causal link between the alleged protected activity and any adverse employment
action.
1. Research Misconduct
When coworker retaliation is at issue, an employer will be liable if the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from
making or supporting a charge of discrimination, supervisors or members of management have actual or constructive knowledge of the coworker’s retaliatory behavior, and
supervisors or members of management have condoned, tolerated, or encouraged the
acts of retaliation. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir. 2008). Here,
both parties focused on whether plaintiff could make a prima facie showing of retaliation and did not address the standard for co-worker retaliation as set out in Hawkins v.
Anheuser-Busch, Inc. OSU argues that Balkrishnan’s conduct was not retaliatory and that
animosities existed between Balkrishnan and Szeinbach prior to Szeinbach engaging in
any protected activity.
The Sixth Circuit concluded that the research misconduct investigation constituted an adverse action and that a reasonable jury could conclude that Brueggemeier
and Nahata condoned, tolerated or encouraged Balkrishnan’s acts of retaliation. On
remand, this Court was instructed consider the other arguments advanced by OSU: (1)
that there is no causal connection between the research misconduct investigation and
any protected activity in which Szeinbach engaged, and (2) that the relevant decision
makers during the research misconduct investigation had no knowledge of Szeinbach’s
35

protected activity. This decision will focus on whether there is evidence of a causal
connection between the research misconduct investigation and Szeinbach’s protected
activity and whether the relevant decision makers had knowledge of Szeinbach’s protected activity.
Despite OSU’s assertions to the contrary, there is little question that a trier of fact
could conclude Balkrishnan was hostile to Szeinbach and “retaliated” against her for
what he took as her attacks on him.11 The evidence suggests that the relationship be11

Whether this “retaliation” was unlawful under Title VII because it was based
on plaintiff’s protected activity or simple animosity between the two individuals is disputed by the parties. Plaintiff argues that Balkrishnan’s actions were intended to stop
Szeinbach from engaging in protected activity. Balkrishnan acknowledged his complaint was atypical because although he regularly looked for evidence of research misconduct, this incident was the first time her reported his concerns. (Doc. 134-20 at
PageID 12148.) Plaintiff contends that the evidence shows that Balkrishnan did not file
his report for the reasons he initially stated. Plaintiff argues that she has direct evidence
demonstrating that Balkrishnan’s actions were retaliatory in nature. Plaintiff relies on a
January 24, 2008 draft email responding to a request that he discuss the possibility of an
alternative dispute resolution of his allegations of research misconduct. Dr. Balkrishnan
wrote:
I would expect the following from Dr. Szeinbach before consenting to
withdrawing my allegations:
1.
Dr. Szeinbach voluntarily withdraw from any process related to my
promotion and review in the OSU College of Pharmacy and sign a
written statement to this effect. This is needed to prevent the possibility of retaliation from her in these processes.
2.
Dr. Szeinbach withdraw in writing baseless allegations of genderbased discrimination and sign a statement that she will not without
due-cause and consultation with the chair/dean pursue such baseless complaints in the future.
3.
Dr. Szeinbach also write an unconditional apology to me for her
baseless and slanderous allegations made that the dean, chair, and
myself had self-plagiarized in her response to the committee of
inquiry.
Doc. 132-1 at PageID# 11491. This email may be direct evidence that Balkrishnan’s con36

tween Balkrishnan and Szeinbach was fraught with discord from its inception and prior
to any protected activity on the part of plaintiff. Plaintiff maintains that this discord resulted from Nahata and Balkrishnan’s favoring faculty and students of Indian national
origin over faculty of Spanish national origin. Without a doubt, however, there is evidence from which a reasonable trier of fact could conclude that Balkrishnan retaliated
against plaintiff for her protected activity. There is also no dispute that Dean Brueggemeier and Assistant Dean Nahata had actual knowledge of Balkrishnan’s conduct
directed toward Szeinbach.12 Brueggemeier and Nahata both received emails and other
communications from Balkrishnan addressing his complaints about Szeinbach. The
Sixth Circuit found that there was evidence creating an issue of material fact as to
whether Brueggemeier or Nahata condoned, tolerated, or encouraged the acts of retaliation, and as a result, this issue is not before this Court.
In its motion for summary judgment, OSU maintains that the CII did not know of
Szeinbach’s exercise of her Title VII rights and that there was no connection between
such exercise and the actions taken by the CII. Plaintiff argues that OSU’s decision to
subject her to a CII investigation did not strictly adhere to OSU’s research misconduct
duct was retaliatory in nature. This email, standing alone, does not prove that Balkrishnan’s supervisors or members of management condoned, tolerated, or encouraged his
acts of retaliation, and Brueggemeier did not include Balkrishnan’s proposal that Szeinbach withdraw her discrimination complaint when he presented his his alternative
dispute resolution proposal to Szeinbach.
12

Whether Brueggemeier and Nahata knew or should have known that the
conduct was in retaliation for Szeinbach having filed an EEOC complaint against OSU
and internal complaints with OSU is disputed. There is no direct evidence that they did.
37

policy and that Brueggemeier’s rejection of ADR in favor of a CII investigation establishes pretext because the research misconduct policy had never been used to prosecute
a publication prior to Balkrishnan’s research misconduct charge against Szeinbach.
Plaintiff relies on the temporal proximity between her protected activity and the
adverse action to demonstrate that the CII had knowledge of plaintiff’s protected
activity. Balkrishnan filed his May 2007 research misconduct report within a week of
learning that Priscilla Hapner had completed her investigation of Szeinbach’s civil
rights complaint filed with OSU Human Resources. A few months later, Balkrishnan
sent an email to Brueggemeier, OSU Dean of Graduate Studies Dean Osmer, College of
Pharmacy Associate Dean William Hayton, Nahata and College of Pharmacy faculty
member Cynthia Carnes asking how Szeinbach can be allowed to teach required
courses and advise PhD students. (Doc. 132-1 at PageID 11474-5.) He warned that if the
issue were not taken seriously, he would consider moving to a university that puts the
interests of its students first. Id. In September 2007, Balkrishnan had an angry outburst
at a faculty meeting when he accused Szeinbach of lying, called her a bitch and stated
that irresponsible behavior should not be rewarded. (Doc. 132-1 at PageID 11492-93.)
Plaintiff maintains these three incidents demonstrate causality.
These three incidents were known to Brueggemeier and Nahata, but they are not
direct evidence that the CII was aware of plaintiff’s protected activity. Even if these
events showed that Balkrishnan was motivated to act based on plaintiff’s protected

38

activity,13 these incidents, standing alone, shed no light on the decision making process
of the CII.
The other incidents relied upon by plaintiff–sending an email questioning how
Szeinbach can be permitted to teach and calling her a bitch at a division meeting–also
are not direct evidence that there is a causal connection between the CII and her protected activity. Szeinbach opposed the decision to hire Balkrishnan. Their relationship
was strained from the outset. There is no doubt that Balkrishnan took actions that antagonized Szeinbach.
Plaintiff further argues that there is direct evidence of Brueggemeier’s retaliation
to satisfy the causation requirement to establish a prima facie case against OSU.14 Plaintiff maintains that evidence that Brueggemeier proposed ending the research misconduct investigation if, among other things, Szeinbach agreed not to participate in
Seoane’s tenure review is direct evidence of retaliation. Plaintiff argues that this proposal would have terminated her ability to engage in the activities Title VII was designed to protect because she was the only person in division meetings who advocated for

13

Balkrishnan knew that Hapner was investigating plaintiff’s allegations of
discrimination and retaliation prior to the completion of her report because Hapner
interviewed him during her investigation. Balkrishnan acted within days of his discovery of the alleged similarities between the publications, so the proximity in time to
the release of Hapner’s findings and Balkrishnan’s contacting the journals with his
allegation of duplicate publication might just be coincidental.
14

Plaintiff appears to conflate the two methods of showing discrimination. Either
a plaintiff can either show direct evidence of discrimination or she can show a prima
facie case of discrimination.
39

Seoane’s tenure. Szeinbach rejected the ADR terms in part because she wanted to
protect Seoane from further retaliation. Plaintiff argues that the connections between
Szeinbach’s protected activities and Brueggemeier’s proposals for closing the investigation establish direct evidence of retaliation because the proposals would have crippled her protected activities and her academic career. Plaintiff rejected Brueggemeier’s
proposals, and she was permitted to participate in Seoane’s tenure process.
In his deposition, Brueggemeier testified that the rules governing the alternative
dispute resolution required input from the complainant, Balkrishnan. The Dean met
with Balkrishnan to discuss his numerous proposals, some of which were rejected out
of hand, such as his proposal that Szeinbach dismiss her EEOC complaint. Balkrishnan
proposed that Szeinbach not participate in Seoane’s tenure review process. Brueggemeier testified that he incorporated this provision into the proposed resolution because
Szeinbach and Seoane were co-authors on one of the publications at issue. Brueggemeier further testified that, in accordance with the conflict of interest statement, he
recused himself from reviews of faculty members whom he had collaborated with. He
recommended that other faculty members recuse themselves from reviews of faculty
with whom they have had joint publications or grants, although the decision was left to
the faculty members themselves. (Brueggemeier Dep. 512:12-517:1; Doc. 116 at PageID
8641-8642.)
In his deposition, Dr. Vandre was asked whether he was aware of the Dean’s
proposal and whether the proposal was problematic:
40

Q. Okay. Do you know that the dean's alternative dispute resolution
proposal would have required, among other things, that Sheryl not
participate in Enrique's promotion and tenure process?
A. No.
Q. Given what Kinghorn had told you about the conflict about the P&T
committee -- the P&T process in Enrique's case, does it concern you the
dean may have wanted to include this type of provision in the alternate
dispute resolution process?
...
A. No.
Q. Why not?
A. Because I think because of the relationship of the authorship and
involvement in the article that I think that would -- and, again, in my
personal opinion that that would have been a reasonable request to kind
of disassociate the two.
Q. And even though you said earlier that you agreed with Brooks when
he said the all -- the authorship issue went away based on the testimony of
Sheryl, why would it matter whether Sheryl participated in the P&T
committee process for Enrique in your opinion?
...
A. In my opinion the second article is a tainted article. And there's -- it's
tainted by association. Okay. That was in my understanding of where
we're at with this and what was going on at the time, that's my opinion
sitting here in this chair.
(Vandre Dep. 64:15-65:24; Doc. 114 at 7864-7865.)
Once Balkrishnan submitted a “Whistleblower Report Form” regarding the two
articles, the University Research Committee Interim Policy and Procedures Concerning
Misconduct in Research or Scholarly Activities (the “Interim Policy”) required Jennifer
Moseley and Dean Brueggemeier to determine whether Balkrishnan’s charges indicated
possible misconduct. There is evidence that the decision was principally Bruegge41

meier’s. For example, Vice Provost Anderson testified that when there is an allegation
of research misconduct, “the first step . . . is that the dean is contacted to deal with it.”
(Anderson Dep., 108, Doc. 134-6, PageID 11969.) Both Platz and Guttman testified that
the dean has the first say on whether the allegation is sufficient to justify a preliminary
investigation. If he does not, that is the end of the process. (Platz Dep., 41, Doc. 70-1,
PageID 3889 and Guttman Dep., 86-87, Doc. 87-1, PageID 5949; compare, Moseley Dep.,
151-56, PageID 3515-20.) Brueggemeier decided that there should be a preliminary
investigation (Guttman Dep., 57, Doc. 102-1, PageID 5942) and recommended that the
matter not be resolved through alternative dispute resolution. (Moseley Dep., 177-78,
Doc. 68-1 PageID 3541-42.) The Vice-President for Research, Dr. Robert McGrath, was
then required to form a Committee of Initial Inquiry (“CII”). (See Doc. 122-5 at PageID#
10416 (“If the Dean and Coordinator or the Vice President for Research determine under Section IV.B.3 or 4 of this Policy that the charges indicate possible misconduct, an
Initial Inquiry shall be immediately initiated.”)).
Plaintiff further argues that OSU sanctioned Balkrishnan’s retaliatory violations
of the confidentiality clause of OSU’s research misconduct policy. The confidentiality
clause required all those involved in the investigation to maintain the confidentiality of
the investigation until the case was closed. In the event that confidentiality is breached,
University officials must take reasonable steps to minimize the damage to the reputation of the subject of the investigation.

42

On May 1, 2007, Balkrishnan sent an email containing information he provided to
the Office of Research to faculty members at four different universities involved in an
upcoming academic conference where Szeinbach was to give a presentation. (Doc. 132-1
at PageID 11481-82.)15 Plaintiff contends that Balkrishnan also breached the confidentiality clause a second time when he sent an email to Brueggemeier, Osmer, Hayton,
Nahata and Carnes attaching confidential documentation provided to the Office of
Research to support his complaint. (Doc. 132-2 at PageID 11474-5.) On August 21, 2007,
Balkrishnan sent an email to everyone on the College of Pharmacy’s faculty listserv
discussing the documentation he provided to the Office of Research. (Doc. 132-1 at
PageID 11479-80.)16 In response to the email, Nahata told Balkrishnan that his email
15

These are portions of an email chain Szeinbach apparently communicated to
Jennifer Moseley. The portion of Balkrishnan’s email sent to professors at other institutions reads:
This research is being presented as new research at the ISPOR 2007 meeting. Also this Identical research has been previously presented at an
ISPOR meeting as well (2005).
I just wanted you all to be aware of this before if is presented again.
Id., PageID 11481.
16

Again this exhibit appears to contain a portion of an email Balkrishnan sent to
COP faculty. It reads, in relevant part:
I think it is rather unfortunate that Dr. Szeinbach has taken this whole
issue so personally. According to her email "I believe that Dr. Balkrishnan
has chosen to bring this matter to your attention in an attempt to undermine the reputations of Dr. Enrique Seoane-Vazquez and me, and that this
is a further example of Dr. Balkrishnan's discrimination and retaliation
against us."
This is rather unfortunate because my email does not refer to Dr. Szeinbach or Dr. Seoane-Vazquez at all. Rather my concern is that in my
opinion, the reputation of the college has been compromised when an
43

stirred the pot more than necessary. (Doc. 133-6 at PageID 1184.) On April 25, 2008,
Balkrishnan sent yet another email stating that Szeinbach was being investigated. This
email was directed to President Gee, Brueggemeier, the Office of Research, Human
Resources, and OSU attorneys. (Doc. 132-1 at PageID 11487-91.)
In November 2008, Balkrishnan sent an email to President Gee, Brueggemeier,
faculty member Anthony Young, Nahata and OSU attorneys that indicated that the CII
recommended that the 04 Process be invoked against Szeinbach. (Doc. 132 at PageID
11433-34.)
Plaintiff argues that Brueggemeier never implemented the recommendation
from Human Resources that Balkrishnan be disciplined for his inappropriate actions
toward Szeinbach. (Doc. 219, PageID 19151-57.) Plaintiff asserts that Brueggemeier
failed to discipline Balkrishnan because he also violated the confidentiality clause when
he sent a letter to the editor-in-chief of a journal that published one of his papers. (Doc.
133-1 at PageID 11692-93.) Plaintiff maintains Human Resources employees Donald
Gibson and Anne Massaro also turned a blind eye to Balkrishnan and Brueggemeier’s

editorial is published in a major journal which states the following:
"However there is no doubt in our mind . . . . Furthermore in not
referencing the AAAI paper ...... later PCRJ context" [sic]
Also my initial email to the concerned authorities was in the interest of
scientific integrity and not to single out any particular faculty for
discrimination as the following emails will show.
I also enclose a copy of my exact letter to Dr. Levy and concerned
authorities in the OSU whistleblower report form . . . .
44

violations of the confidentiality clause. Szeinbach alleges that her ability to advance
professionally was seriously impacted by OSU’s decision to ignore Balkrishnan and
Brueggemeier’s breaches of the confidentiality clause.
In his deposition, Todd Guttman testified that although the Interim Policy contained a confidentiality provision, there was no corresponding enforcement mechanism
to address breaches of the confidentiality provision. (Guttman Dep. 74:1-75:5; Doc. 102-1
at PageID 5946.) Because of this lack of an enforcement mechanism, OSU argues that
there is no evidence that it failed to act in enforcing the confidentiality provision because there was simply no means for addressing any such breaches.
Massaro was tasked with implementing the recommendations from Human
Resources following Szeinbach’s complaints. Massaro conducted an organizational
assessment with the assistance of the College of Pharmacy’s Vision and Strategy Group
(“VSG”). Plaintiff contends that the VSG faculty were biased against her protected
activities. The VSG faculty, Carnes, McAuley, Schneider, Bennett and Knoell, complained about Szeinbach to Brueggemeier before their appointment to the VSG. Plaintiff
maintains that the VSG members who signed the letter were on a mission to retaliate
against her based on her protected activities. According to plaintiff, the VSG wanted the
04 Process to be employed against her, and despite his belief this was not appropriate,
Brueggemeier took no steps to reprimand the VSG.
Plaintiff’s reliance on the actions of the VSG to demonstrate a causal connection
between her protected activity and the adverse employment action is misplaced. There
45

is no evidence of any connection between the VSG and the decision of the CII. Moreover, the Sixth Circuit held:
Szeinbach presented insufficient evidence to support that OSU’s reduction
of her required class from four to two hours and suspension of student
enrollment in the PPAD graduate program– structural changes in programs at the COP that were implemented based on recommendations of a
task force – qualify as adverse employment actions under Burlington
Northern. The same is true of her six claims of co- worker retaliation by
Associate Professor Balkrishnan, five of which were mere attempts on his
part to interfere with or circumscribe Szeinbach’s teaching and advising of
students and her participation in promotion and tenure decisions, and the
sixth, his internal complaint against her, which resulted in no action
against her.
Doc. 186 at PageID 17492. Plaintiff’s allegations concerning the VSG have no bearing on
her claims based on the research misconduct investigation.
Plaintiff further argues that a reasonable juror would likely conclude that Balkrishnan was a proxy of the College of Pharmacy management seeking to retaliate
against Szeinbach. Plaintiff maintains that although Brueggemeier learned of repeated
examples of Balkrishnan engaging in retaliation, violations of the research misconduct
policy, and behaviors that detract from the ethical and professional environment,
Balkrishnan was never subjected to the 04 Process. Nor was his behavior documented in
performance reviews or merit pay letters.
Plaintiff argues that Brueggemeier ignored recommendations from Human Resources. In June 2006, OSU-HR consultant Carmen Yarbrough reported on her investigation of Seoane's complaint of discrimination against him based on race and national
origin. (Doc. 116-1, PageID 8524-35.) Her report found insufficient evidence to support
46

Seoane’s allegations that the University violated its non-discrimination policy. (Id.,
PageID 8526-33.) She did advise that PPAD faculty and Seoane should be warned that
they were not to retaliate for statements gathered during the investigation. (Id., PageID
8534.) Yarbrough recommend that Balkrishnan be required to cease and desist:
directly contacting other faculty members’ students regarding advising
and working on projects with him. Additionally, Professor Balkrishnan’s
behavior [regarding statements made to or in the presence of students]
should be addressed as a part of his Annual Review letter.
(Id., PageID 8535.) The report also recommended that Balkrishnan, Pedersen and
Schneider’s behavior be documented in their annual review letters and that a
development plan be created for Nahata and addressed in his annual review letter.
Shortly after publishing the report, Yarbrough discussed her findings and recommendations with Brueggemeier.17 (Yarbrough Dep., 113-15, Doc. 134-1, PageID 11909;
Brueggemeier Dep., 321, Doc. 116, PageID 8413.)
Brueggemeier testified that he established a task force to address issues related to
graduate students, an email was sent to faculty telling them they could not retaliate, he
got Anne Massaro of HR involved in improving relations among faculty, and he decreased what would have been Balkrishnan's normal salary increase. (Id., 321-30,
PageID 8413-15.) Brueggemeier testified that Balkrishnan complained about his 3%
salary increase in 2006, that was well-below the average 3.8% salary increase, and he
explained that was because of his inability to relate well with students and faculty.
17

Yarbrough could not remember any details of her conversation with Brueggemeier. (Yarbrough Dep., 115-16, Doc. 134-1, PageID 11909.)
47

There is no documentation of that discussion. Balkrishnan complained again when his
2007 salary increase was less than he thought he deserved. (Id., 331-34, PageID 8416.)
Brueggemeier testified that there were continual ongoing conversations with Balkrishnan. (Id., 336-37, PageID 8417.) He and Nahata told Balkrishnan that he could not talk
about other faculty members in the presence of students. (Id., 329, PageID 8415.) Brueggemeier instructed Balkrishnan that he could not contact other faculty members’ students except when he was teaching them in the classroom.18 (Id.)
Brueggemeier further testified that he talked with Nahata about a “development
plan,” but it is not discussed in Nahata’s annual review letter and there is no other documentation of a plan. Nahata did participate in an academic leadership development
program. Brueggemeier also talked with Nahata about general aspects of interacting
with faculty, discussions, and regular meetings. (Id., 326-28, PageID 8414-15.)
On July 3, 2007, Olga Esquivel-Gonzalez wrote Brueggemeier informing him that
the investigation into the complaints of discrimination filed by Jessie Au, Seoane, Balkrishnan, and Szeinbach "found insufficient evidence to support a violation of university policy." (Doc. 153-50, PageID 15468.) She advised Brueggemeier that all the com-

18

Balkrishnan testified that Brueggemeier and Nahata met with him “to go
through what was required for me after the [Yarbrough] report, but they did not give
me a copy . . .” of the report. (Balkrishnan Dep., 379-80, Doc. 118, PageID 8790.) Balkrishnan acknowledged that Brueggemeier had told him on more than one occasion not
to talk with Szeinbach’s or Seoane’s graduate students. (Id., 380.) Indeed, they advised
him to avoid any type of interaction with students. (Id., 384, PageID 8791.)
48

plainants should be notified not to retaliate in any way regarding the investigation of
the complaints. (Id., PageID 15468-71.) She also recommend that Brueggemeier
assess Dr. Balkrishnan’s behavior since the issuance of the cease and desist
directive related to inappropriate interaction with students and determine
the impact that such behavior will have on his performance evaluation
and/or merit raise.
(Id., PageID 15471.) Esquivel-Gonzalez further recommended:
In the event that Dean Brueggemeier is notified of faculty behaviors that
detract from the ethical and professional environment, he will review the
situation and determine if appropriate disciplinary actions should be
issued up to and including following 504-Procedures. . . .
...
Dean Brueggemeier and Division Chair Nahata are strongly encouraged
to identify financial resources for Dr. Balkrishnan to retain a coach . . . .
Dean Brueggemeier and Division Chair Nahata assess Dr. Balkrishnan's
behavior since the issuance of the "cease and desist" directive [issued by
Yarbrough] related to inappropriate interaction with students, and
determine the impact that such behavior will have on your performance
evaluation and /or merit raise.
(Id., PageID 15470-71.)
In his deposition, Brueggemeier testified that he directed Balkrishnan not to
speak with Seoane and Szeinbach’s students at all. (Brueggemeier dep. 510:9-16; Doc.
116 at PageID 8460.) He also testified that for three consecutive years Balkrishnan
received lower salary increases than he would have had he not had difficulty getting
along with his colleagues. (Id. at 330:2-334:24; Doc. 116 at PageID 8415-8416. ) In his
deposition, Balkrishnan testified that he had been disciplined for his behavior in the
faculty meeting when he called plaintiff a bitch:

49

And I regret that I didn't use the appropriate words and, you know, and
obviously that was my maturity, and after that I have been disciplined for
my actions and I have sought counseling and help for it, but I did not
mean that in any sort of negative way. I just -- that was a knee-jerk response reaction to the constant provocation from Dr. Szeinbach which I
have regretted ever since.
(Doc. 119 at PageID 9899.) Balkrishnan also testified that immediately after his outburst,
Nahata told him to sit down and that his behavior was not appropriate. Id. at 9900.
Plaintiff maintains that the relevant decision makers were aware of Szeinbach’s
protected activities because Kinghorn knew of Szeinbach’s protected activity. Before he
filed an OSU internal civil rights complaint against Szeinbach, Balkrishnan emailed
Brueggemeier, Nahata, Hayton and other COP faculty members setting out his charges
against her. The email states, in relevant part: “I am also ccing all other senior faculty in
the College of Pharmacy with whom I have discussed this issue and sought counsel as
well as the chair of the committee on committees, Dr. Kinghorn.” (Doc. 131, p. 14,
PageID 11184.) Kinghorn was also presumably a recipient of Szeinbach’s August 2007
email to all COP faculty responding to Balkrishnan’s August 13 email declaring that he
was “extremely saddened” by the editorial in the Primary Care Respiratory Journal
regarding her failure to cite her 2005 article which he viewed as “a matter of great
shame and disrepute to the Ohio State University College of Pharmacy.” Szeinbach’s
rebuttal stated that the editorial demonstrated the falsity of Balkrishnan’s charge that
the 2007 article was a duplicate publication of the 2005 article, included a statement by
the editor of the journal that Balkrishnan “misinterprets and overstates the contents of

50

our carefully written editorial, which concluded that although there was an oversight,
this was not intentional”, and concludes:
I believe that Dr. Balkrishnan has chosen to bring this matter to your
attention in an attempt to undermine the reputations of Dr. Enrique
Seoane-Vazquez and me, and that this is a further example of Dr. Balkrishnan’s discrimination and retaliation against us.
(Doc. 118-8, pp. 45 and 47, PageID 9495 and 9497.) Plaintiff argues that because Kinghorn was a recipient of the email, he may well have communicated the gist of the latter
comment to the other two members of the CII. Finally, Szeinbach also referenced her
protected activity when she appealed the preliminary report of the CII. (Doc. 135 at
PageID 12222.)
Plaintiff argues that “Kinghorn obviously told CII member Vandre about Szeinbach’s protected activities.” (Doc. 219, p. 45, PageID 19158.) However, evidence, not
rhetorical assertion, is what controls a court’s decision on summary judgment. Vandre
did testify that it was common knowledge that there were factions formed around the
upcoming tenure vote.19 (Vandre Dep., Doc. 114, p. 41, PageID 7859.) Kinghorn told
19

Vandre testified:
Dr. Kinghorn was the representative of the College, and he was quite
aware of the back-and-forth e-mails that were going around. And so he
informed us of that, what was occurring there. He also said that this had -was kind of common knowledge in the College, the issues, and that there
was issues related to -- at faculty meetings issues related to Dr. Seoane
being an untenured faculty member and there was issues around support
or lack thereof from different factions within the College or departments
for supporting his P&T.
(Id., 41.) Vandre was aware that some of the conflict centered on whether Seoane would
get tenure. (Id., 42-43.)
51

Brooks about friction between the faculty members and the retaliation issue. (Doc. 13422 at PageID 12188.) Vandre testified that the CII was aware that Szeinbach, Seoane and
Balkrishnan “were in controversy” and that Balkrishnan had disclosed his research
misconduct charge against Szeinbach to third parties, but they “made every attempt to
disassociate themselves from that information, and that was an internal political issue of
the College and wasn't germane to the specific charges that the CII was trying to investigate.” (Id., 42-43, PageID 7859.) They viewed Balkrishnan’s disclosure of information related to the CII investigation of the charge he filed against Szeinbach as “unprofessional conduct.” (Id., 44, PageID 7859.)
Vandre also testified that Klinghorn voted against a further investigation because
he believed the editorial in the journal was alone sufficient punishment and that if the
investigation moved forward it would be bad for COP. (Id., 60, PageID 7863.) Alluding
to the conflict between Szeinbach and Balkrishnan, Klinghorn “mentioned several times
that he just wanted this all to go away” because of the damaging effect on the College of
Pharmacy. (Id., 61, PageID 7864.)
Drs. Vandre and Brooks testified that they were not aware of any alleged
protected activity prior to issuing the final report. Dr. Vandre testified:
Q.

Do you know that as part of the ultimate dispute resolution Raj
would have required Sheryl to withdraw her gender-based discrimination complaint and sign a statement that she would not file
a similar complaint without consulting with the dean and Dr.
Nahata first?

52

A.

I had no idea that there was any complaint of that nature, so I had
no knowledge of that.

(Vandre Dep. 62:13-21; Doc. 114 at PageID 7864.) In response to questions concerning
his opinion as to whether it was appropriate for Balkrishnan to propose such conditions, Dr. Vandre further testified:
A. Does it concern me, yes.
Q. Why?
...
A. My personal opinion is that I don't feel that he should have been dictating terms.
Q. I mean -A. And -- and I don't think that you should have conditions that prohibit
someone from moving forward with any other kind of legal actions if
they're appropriate.
(Id. At 63:12-21; Doc. 114 at PageID 7864.) Dr. Vandre was clear in his testimony that
despite some knowledge of ongoing difficulties within the College of Pharmacy, he was
not aware of any allegations of discrimination or retaliation, whether by Szeinbach,
Seoane, or Balkrishnan:
Q. Okay. But you are unaware of any retaliation, discrimination claims
that Sheryl and/or Enrique had filed against specifically the dean, for
example?
A. I have no knowledge of any issues outside of what the CII looked at
and what I described of what I knew of the turmoil that was going on in
the department.
(Id. At 67:3-12; Doc. 114 at PageID 7865.)

53

In his deposition, Dr. Brooks testified that he was aware of discord at the College
of Pharmacy and that he would not have been surprised that allegations of retaliation
were being raised. Dr. Brooks testified:
Q.

So at least with regard to you, when you served on the CII for
Sheryl's publications, you were aware of difficulties at the College
of Pharmacy relating to some faculty members fighting through
rumors at the college, without identifying exactly -- through
rumors at the university, without knowing exactly who it was you
heard it from. Is that fair?

A.

Yes, that's fair.

(Brooks Dep. 161:18-162:2; Doc. 112 at PageID 7550.) On the other hand, Dr. Brooks also
testified that the CII was not influenced by any such conflicts within COP:
Q.

And that there were civil rights issues being raised and batted
around, too?

A.

I didn't say that.

Q.

Isn't that what those communications say to you, that --

A.

I don't recall.

Q.

All right. But you read them when you got them?

A.

Correct.

Q.

So they say what they say?

A.

Yeah. If they say -- then I must be aware of it, but, again, I'll add
that in our considerations we set those aside.

(Brooks dep. 158:2-14; Doc. 112 at PageID 7550.)

54

Plaintiff further argues that the CII was aware of her protected activity from her
November 20, 2007 response to their preliminary report, in which she stated in a footnote to her argument that she had not seriously deviated from commonly accepted
research practices because Brueggemeier, Balkrishnan, and other COP faculty used and
re-used identical materials and data without citation to any earlier published source for
the material:
[T]his matter has arisen solely and entirely as the result of retaliation by
Dr. Balkrishnan and others against me for my support of Dr. Enrique
Secane-Vazquez in bringing his complaints of discrimination and harassment against Dr. Balkrishnan and others and for bringing complaints of
discrimination and retaliation . . . .
(Doc. 135, p. 18, PageID 12222.)
Although Drs. Vandre and Brooks assert that they were unaware of and did not
take into account any protected activity on the part of plaintiff in considering whether
to recommend that there be an investigation into the research misconduct charges
against Szeinbach and further that their conclusions that the research misconduct
investigation should go forward were not in any way connected to protected activity,
they did have communications with Kinghorn in which he told them about the conflict
between Balkrishnan and Szeinbach. Further, Szeinbach herself alluded to her protected
activity in her response to the preliminary report. It is up to the jury to determine
whether Vandre and Brooks were aware of Szeinbach’s protected activities and whether
but for those activities they would not have voted for a further disciplinary investigation into Balkrishnan’s charge of research misconduct.
55

OSU argues that it has offered sufficient evidence of its legitimate, non-discriminatory for its actions related to the research misconduct investigation. OSU followed all
of the relevant policies and procedures in its investigation of the research misconduct
charge against Dr. Szeinbach. Dean Brueggemeier decided not to initiate the 04 Process,
and his decision resulted in Dr. Szeinbach’s alleged research misconduct never being
investigated by the University investigation committee.
Plaintiff relies on the following arguments to demonstrate that OSU’s legitimate,
non-discriminatory reason for the research misconduct investigation was pretextual:
• Balkrishnan’s complaint and confidentiality breaches were intended to terminate Szeinbach’s protected activity;
• Balkrishnan’s ADR proposal demonstrates his complaint was in retaliation for
Szeinbach’s protected activity;
• OSU did not strictly adhere to its research misconduct policy;
• Brueggemeier rejected Szeinbach’s pre-CII request for ADR;
• Brueggemeier subjected Szeinbach to a CII even though he knew that Lee was
involved in substantial financial improprieties with respect to two overlapping
federal grants;
• The CII investigating Szeinbach refused to evaluate concerns she raised about
the publications of Brueggemeier, Nahata and Balkrishnan;
• The CII investigating Szeinbach was tainted with retaliatory bias;
• The CII ran afoul of the research misconduct policy; and,
• The Office of Research failed to properly handle Szeinbach’s concerns about
retaliatory bias.

56

OSU contends that it properly followed the Interim Policy and that once a complaint was filed it had no alternative but to follow that policy and investigate Balkrishnan’s complaint. Plaintiff’s attempts to show that OSU’s legitimate, non-discriminatory
reason is pretextual are unsuccessful.
However insignificant Szeinbach claims the alleged research misconduct to have
been, the journals that published Szeinbach’s article concluded it was necessary to publish a statement concerning her apparent oversight in failing to cite an earlier published
article using the same data. Although Szeinbach attempts to minimize her alleged misconduct, her primary defense is that other faculty had engaged in worse misconduct. In
apparent response to the complaint by filed Balkrishnan, at least two other complaints
of research misconduct were lodged against Brueggemeier and Balkrishnan.
Plaintiff relies on a disclosure by Brueggemeier of the confidential investigation
of the charge against Szeinbach to buttress her argument that OSU condoned, tolerated
or encouraged Balkrishnan’s breaches of confidentiality. On January 18, 2008, Seoane
filed a complaint alleging research misconduct against Brueggemeier. On February 14,
2008, Dr. Kostenbauder, Szeinbach’s husband, sent a letter to a number of journals
making research misconduct allegations against Brueggemeier. (Kostenbauder Dep.
Exh. 92; Doc. 216-14 at PageID# 18666-18668.) On May 11, 2008, Brueggemeier wrote to
the Cancer Letters seeking information about the charges and defending his publications:
During the course of a university investigation, I became aware of e-mail
correspondence dated March 5, 2008 between you and Dr. H.B. Kostenbauder regarding the subject of “publishing behavior” and allegations
57

made against me. The exact nature of the allegations sent to you were not
included in the materials , although I can assume they are similar to the
ones found in anonymous letters sent to the Ohio State University in late
November 2007.
...
Furthermore, I ask you to consider the motives of Dr. H.B. Kostenbauder
in this matter. Although Dr. Kostenbauder is not a faculty member at Ohio
State University, he is the spouse of Dr. Sheryl Szeinbach who is a faculty
member in the College of Pharmacy at Ohio State. Another faculty
member submitted allegations via the OSU “whistle blower form” in May
2007 that Dr. Szeinbach published one manuscript in 2005 and another in
2007 in a different journal with no citation to the 2005 article, implying the
appearance that the 2007 manuscript is new material. As required by
University guidelines, I as a college administrator was a member of an
initial committee of four individuals who reviewed the report form and
subsequently referred the matter to a confidential faculty committee of
inquiry for a full investigation. During the University investigation, Dr.
Szeinbach published a correction and the editor of the journal containing
the 2007 article published an editorial on the matter, both appearing in
August 2007. A simple question - is there any connection of the Szeinbach
investigation to any misleading or false allegations that have been made
against myself and others involved in the University Process.
Brueggemeier’s disclosures of the research misconduct investigation of Szeinbach’s
publications were a direct result of his attempt to respond to the allegations about him
made by Dr. Kostenbauder. While arguably ill-advised, there is no direct connection
between his disclosure and Balkrishnan’s.
Plaintiff further argues that when Brueggemeier failed to discipline Balkrishnan
for disclosing the CII’s confidential investigation of his charges against Szeinbach, he
violated Ms. Esquivel-Gonzalez’s recommendation that he take appropriate disciplinary
action when he learned of faculty behaviors that detracted from COP’s ethical and professional environment.

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Plaintiff also argues that Balkrishnan’s ADR proposal demonstrates his complaint was in retaliation for Szeinbach’s protected activity. In this case, however, plaintiff is required to show that OSU condoned, tolerated or encouraged Balkrishnan’s acts.
The uncontroverted evidence demonstrates that Brueggemeier never considered
Balkrishnan’s demand that plaintiff withdraw her discrimination complaint and refrain
from filing future complaints. However, Brueggemeier did propose that Szeinbach
withdraw from consideration of the decision about whether to grant Seoane tenure.
Plaintiff argues that OSU did not strictly adhere to its research misconduct
policy. Plaintiff maintains that the first step in a research misconduct investigation is
that the dean is contacted. The dean then determines whether the allegation is serious
enough to recommend that a CII be formed. Plaintiff maintains that Brueggemeier
made the decision to refer the allegations concerning Szeinbach to the CII in retaliation
for her having filed an EEOC charge and internal OSU civil rights complaints. Brueggemeier also decided not to attempt to resolve the allegations through an alternative dispute resolution process. Plaintiff further argues that the fact that Interim Policy had
never been used to investigate publication practices in the past demonstrates that
Brueggemeier’s position that the matter should be referred to a CII based on the statement made by the editors of the journal that published the article was not the real basis
for his decision.
The fact remains that the editors of the journal believed it was necessary to
publish an editorial highlighting the requirements relating to, and the ethics of, sub59

mission of manuscripts for publication in medical journals. (Doc. 138-1 at PageID
13173.) The journal also published a correction by the authors, which stated that they
were “remiss in not acknowledging the use of the same data source, data collection and
background literature that was used in our previous study addressing a different issue.
. . which was published . . . .” (Doc. 122-4 at PageID# 10382.) Given the belief of the
editors of the journal of the need to publish their editorial in addition to the statement of
the authors, OSU argues that Brueggemeier’s reliance on their findings is not pretextual. However, that argument is best addressed to the jury. There are, viewed in the
light most favorable to plaintiff, disputed facts that might lead a jury to conclude that
Brueggemeier singled Szeinbach out for a research misconduct investigation because of
her protected activities.
Plaintiff continues to argue that she can show pretext because Brueggemeier
overlooked the research misconduct by other College of Pharmacy faculty. In my July
26, 2012 Order, I concluded:
[T]he circumstances surrounding the conduct of Drs. Lee and Szeinbach
differ significantly. The alleged misconduct of Dr. Lee does not shed any
light onto whether the investigation of Dr. Szeinbach was appropriate or
retaliatory in nature. The allegations concerning the OSU grant impacted
OSU directly, and it was necessary for OSU to respond to the allegations
in the manner it deemed most appropriate. There is no evidence to indicate that OSU should have handled the NIH allegations in the same way
that they would handle allegations of research misconduct of a faculty
member by another faculty member.

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Doc. 194. at PageID# 17579. I remain unpersuaded by plaintiff’s argument that differences between the manner in which allegations concerning Szeinbach and Lee were
handled demonstrate pretext.
Plaintiff further argues that the refusal of the CII to investigate research allegations concerning Brueggemeier, Nahata and Balkrishnan demonstrates pretext. The
members of the CII testified in their depositions that they were charged with investigating the allegations concerning Szeinbach and that allegations regarding other faculty
members were simply not relevant to their inquiry. A November 27, 2007 anonymous
letter to OSU President Gee charged Brueggemeier and his co-authors with self-plagiarism in seven published articles. (Doc. 216-13, PageID 18663-65.) The Office of Research
Compliance initiated an investigation. In December 2007, Brueggemeier responded to
the charge. (Doc. 116-2, PageID 8599-8603.) In February 2008, the Office of Research
Compliance concluded that the “publications were appropriately referenced.” (Doc.
113-1, PageID 7766.) However, on March 18, 2008, the editor of the Journal of Clinical
Endocrinology & Metabolism wrote Brueggemeier:
We have completed an initial review of 1) the specific allegations made
regarding your dual publications of data and 2) your explanation to us.
We conclude that there remaining two significant problems not satisfactorily explained by your response.
First, you submitted as original work for your 2003 JCEM article data that
had been previously published in a minimally different format in the
Journal of Steroid Biochemistry & Molecular Biology [December 2001]
79:75-84.

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Second, several figures first published in JCEM in 2005, subsequently
appeared with minimal revision in the Journal of Steroid Biochemistry &
Molecular Biology [May 2005] 95:129-136 and Anti-Cancer Agents in
Medicinal Chemistry [May 2006' 6:221-232. To our knowledge, you failed
to seek permission from our journal for use of this copyrighted material.
Although the JCEM publication is generally cited in the reference list, it is
not denoted in the legend to these figures.
Consequently, we are taking the following actions. First, we request an
apology from you to the Journal and the Endocrine Society for your
actions. Second, we ask that you provide us with the name of the responsible academic officer at Ohio State, so they can determine if these instances
were among those previously investigated by your institution. We will
leave further pursuit of these matters to them
(Doc. 98-1, PageID 5100.) Brueggemeier testified that he gave the requested apology to
the Journal of Clinical Endocrinology & Metabolism. (Brueggemeier Dep., 416, Doc. 116,
PageID 8437.) Brueggemeier maintained that his case was different from Szeinbach’s
because she did not cite her 2005 article in her 2007 article, while he did cite his prior
JCEM article but failed to cite it in the figure legend. (Id., 418.)
On January 18, 2008, Seoane filed a complaint alleging research misconduct by
Brueggemeier. On February 14, 2008, Dr. Kostenbauder, Szeinbach’s husband, sent a
letter to the journals cited in Seoane’s complaint, alleging research misconduct. (Kostenbauder Dep. Exh. 92; Doc. 216-14 at PageID# 18666-18668.) On February 18, 2008, Dr.
Anderson and Dr. Guttman conducted a preliminary review and concluded that
“Brueggemeier appeared to have properly referenced each of the publications” but
recommended that a CII be formed to determine whether there was sufficient evidence
of extensive re-use of data and analysis to warrant an investigation under the Uni-

62

versity’s disciplinary rules. (Doc. 135-1, PageID 12328-29.) A CII was formed. It found
insufficient evidence of research misconduct to warrant an investigation. (Doc. 220-1,
PageID 19390-96.) Seoane sought reconsideration of that decision, which was denied.
(Doc. 37-15, PageID 1635-37.)
On January 18, 2007, Seoane also filed a complaint alleging research misconduct
by Balkrishnan. (Doc. 150-3, PageID 14497-98.) Dr. Anderson and Dr. Guttman reviewed the allegations of re-use of text and data without citing the prior publication and
concluded that Balkrishnan had cited the previous article and that there was insufficient
evidence to warrant further investigation. (Doc. 119-1, PageID 10032-33.)
Plaintiff argues that because Vandre had previously published articles with
Brueggemeier and that Brooks had taught classes with him, they were inclined to treat
him more favorably than Szeinbach.
Plaintiff argues that the CII’s conclusion that plaintiff’s error was unlikely to be
an “honest error” is evidence of pretext based on Szeinbach’s written testimony to the
CII and the journal editor’s characterization of the error as “unintentional.” While the
CII’s task was not to determine whether Szeinbach committed misconduct, which
would include a finding that she acted with the requisite intent, but whether there was
sufficient evidence to warrant an investigation as required under the misconduct policy,
it did affirmatively state that her error was unlikely to be an “honest error.” (Doc. 122-7
at PageID# 10512.) The CII found that Szeinbach “used [the 2005 article’s] text and data
extensively in preparation of the 2007 article.” (Doc. 122-7 at PageID# 10516 (emphasis
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added)). The CII viewed this omission as a “probable mechanism to hide the clear
relationship between these articles.” Id. The editorial printed by Primary Care Respiratory Journal stated that “there is no doubt that substantial parts of the text of the PCRJ
paper–including parts of the introduction, methods, results and discussion sections–are
extremely similar to the paper published previously. . . . “ (Doc. 138-1 at PageID#
13173.)
Plaintiff also contends that Moseley failed to follow through on her obligations to
address plaintiff’s allegations of retaliation. Moseley referred the matter to OSU attorney Neiger. There is no evidence that Moseley “violated her duty to make sure retaliation did not adversely impact Szeinbach’s research misconduct investigation” as asserted by plaintiff. (Doc. 219 at PageID# 19171.) Plaintiff cannot show pretext by making
unsupported assertions; she has not come forward with any evidence demonstrating
Moseley failed to act in accordance with her obligations.
Plaintiff also argues that OSU’s handling of reports of Brueggemeier’s research
misconduct establishes pretext. According to plaintiff, the CII investigating Brueggemeier should have recommended that he face an 04 Process investigation if the policy
was enforced in a non-retaliatory manner. Szeinbach maintains that the investigation of
Szeinbach was retaliatory because Brueggemeier and Balkrishnan were not subjected to
the same scrutiny. Plaintiff maintains that OSU insulated Brueggemeier and punished
Szeinbach. She contends that OSU engaged in a retaliatory application of the research
misconduct policy by providing everyone else a free pass to violate the policy or
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prosecuting Szeinbach for something that did not warrant an investigation in the first
place.
Plaintiff also argues that OSU’s handling of research misconduct allegations
regarding Balkrishnan and Lee establishes pretext. Balkrishnan engaged in publication
practices that resulted in a public reprimand by a journal, but Brueggemeier did not
recommend Balkrishnan face the CII investigation. Plaintiff also relies on OSU’s
handling of Lee’s misuse of over $200,000 of federal grant funds to show pretext. Plaintiff seeks to renew her motion to reopen discovery with respect to the research misconduct of Terry Elton. (See doc. 200 & 204.)20
Dr. Carole Anderson and Dr. Todd Guttman conducted a preliminary review of
the Seoane’s allegations and concluded that the allegations lacked sufficient evidence to
warrant further inquiry. Brueggemeier played no role in the review of the allegations
relating to Balkrishnan. (Brueggemeier Dec. ¶ 3; Doc. 220-2 at PageID# 19410.)
Out of this welter of argument, the following evidence offered by plaintiff convinces me that there is sufficient evidence for a jury to find by the greater weight of the
evidence that but-for defendant retaliating against her for her protected activities Dean
Brueggemeier would not have rejected alternative dispute resolution and authorized a

20

Plaintiff fails to identify any new arguments to support her request for reconsideration of my April 1, 2013 Order denying her January 8, 2013 motion to reconsider
my December 19, 2012 Order denying her motion for leave to conduct discovery concerning allegations of misconduct by Professor Terry S. Elton. Plaintiff’s third request to
reopen discovery with respect to Professor Elton is DENIED for the reasons stated in
my April 1, 2013 Order. See doc. 211.
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preliminary investigation into Balkrishnan’s research misconduct charge and the
committee would not have recommended the institution of a disciplinary investigation
of the charge. To begin, there is evidence from which the trier of fact might conclude
that Balkrishnan was hostile to Szeinbach and filed the research misconduct charge to
retaliate against her for her protected conduct. Moreover, Brueggemeier, Nahata and
other OSU administrators were well-aware of Balkrishnan's hostility to Szeinbach and
the actions he took that negatively affected her. Balkrishnan, who was a recent recruit to
COP with a good record for grants and publications, warned that he would consider
moving to another university if his issues with Szeinbach were not taken seriously.
Balkrishnan emailed Brueggemeier and other faculty members before filing his charge
of duplicate publication seeking their advice. Balkrishnan testified that he conferred
with Brueggemeier, Nahata, and other faculty before filing his “whistleblower” complaint. Balkrishnan disclosed that there was a charge of research misconduct against
Szeinbach and that there was a confidential investigation of that charge, and Brueggemeier and/or other OSU administrators took no steps to discipline him for doing so.
Although Brueggemeier testified that he implemented many of the recommendations of
the OSU-HR investigations about the conflicts between Balkrishnan and Szeinbach,
there is no written documentation of most of those actions. For example, there is
nothing in Balkrishnan’s annual reviews regarding his conduct toward Szeinbach and
no writings supporting Brueggemeier’s testimony that he gave Balkrishnan lesser
annual salary increases because of his conduct.
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There is evidence from which a reasonable juror might conclude that Szeinbach
was singled out for an investigation of the research misconduct charge because other
faculty were not subjected to an investigation of similar charges. Brueggemeier made an
apology to a journal for an arguably similar failure to cite a previous article, but a preliminary investigation cleared him. Szeinbach and, later, Brueggemeier are the only two
professors ever subjected to a preliminary investigation for failure to cite a previous
article; and Szeinbach is the only professors whose CII recommended a disciplinary
investigation proceed to the 04 Process. Brueggemeier could have decided not to go
forward with the preliminary investigation or to have attempted alternative dispute
resolution before doing so, and there is evidence that he alone made the decision that
caused the forming of the CII. Kinghorn knew of Szeinbach' protected conduct and
Balkrishnan's hostility to her. Although he ultimately voted against a disciplinary investigation going forward, he did vote in favor of the CII's preliminary report. Further,
he made communications to his fellow committee members about the conflict in COP
between Balkrishnan and Szeinbach. Szeinbach herself alluded to her protected activities when she asked the committee to reconsider its preliminary report. The trier of fact
might draw an inference from this testimony that the committee knew of plaintiff’s
protected activities when it made its decision to refer the charge for a disciplinary
investigation.

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2. Differential Salary Increase Claim
With respect to her claim based on the differential salary increase,21 the only
alleged comparator is Dr. Buerki. Defendants argues that no raises were within the
scope of her Charge and that only the 2007 and 2008 raises were pled in the second
amended complaint. Defendant contends that there is no evidence showing a causal
connection between the raises and her protected activity.
Plaintiff offers no explanation for failing to plead salary claims for 2009 and 2010
in her second amended complaint. Plaintiff has “conceded that she could recover only
for retaliation that occurred after December 15, 2006.” Szeinbach v. Ohio State University,
493 Fed. Appx. 690, **4, fn. 4. Her second amended complaint, filed May 5, 2010, pled
salary claims arising out of the 2006 and 2007 salary increase decision. But she had been
advised in the Fall of 2008 and the Fall of 2009 what her salary increases would be for
the succeeding academic years. Consequently, she had full knowledge of the facts
underlying her claims for those years when she filed the second amended complaint.
Her failure to include those claims in that pleading precludes her from making a claim
of retaliation for the pay raise she got for those years.
Plaintiff argues that a reasonable juror would conclude that Szeinbach’s salary
differential claims are causally linked to the research misconduct investigation. Brueggemeier was responsible for awarding salary increases, and research and scholarship
21

Plaintiff seeks discovery pursuant to Rule 56(d) with respect to her salary
differential claims for 2010 and beyond. Plaintiff’s request to reopen discovery is
DENIED.
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are the most important facts in determining salaries for tenure track faculty. Teaching
also figures prominently into salary determinations. Plaintiff maintains that Brueggemeier’s ADR proposal demonstrates his belief that the research misconduct investigation unearthed deficiencies in Szeinbach’s research, scholarship and teaching.
Plaintiff relies on the following to demonstrate a causal connection between her
protected activity and the adverse employment action:
1. Brueggemeier is responsible for awarding salary increases;
2. Research and scholarship are the most important factors in determining salary
increases for tenure track faculty;
3. Teaching is a prominent factor into determining salaries;
4. Brueggemeier’s ADR proposal evidences his belief that the research
misconduct investigation unearthed deficiencies in Szeinbach’s research,
scholarship and teaching;
5. The criticisms of Szeinbach’s research, scholarship and teaching caused
Brueggemeier to give her a lower salary increase;
6. Brueggemeier’s criticisms of Szeinbach are causally linked to the research
misconduct investigation.
Plaintiff argues that OSU’s proffered rationale for Szeinbach’s salary differential lacks a
basis in fact, did not actually motivate the decision to give her a lower salary increase,
and is an insufficient basis for that decision. Plaintiff also argues that Balkrishnan
engaged in similar publication practices as Szeinbach, yet he never suffered a wage loss
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caused by a CII investigation. Plaintiff further contends that faculty members Bennett
and Buerki had fewer publications than she did but still received higher pay increases.
Plaintiff maintains that this Court already concluded that Balkrishnan is a proper
comparator and asks the Court to reconsider its decision that Bennett is not a proper
comparator. Plaintiff’s request is denied. Because Bennett is a clinical track professor, a
group for whom research, scholarship– including the number publications– is not
weighted as importantly as clinical activities, Bennett is not a proper comparator.
Plaintiff argues that Balkrishnan engaged in similar publication practices as
Szeinbach, yet he did not suffer a wage loss due to the CII investigation.
OSU argues that Szeinbach’s salary increases were in line with her publications
and grants:
2008:
Buerki:
Balkrishnan:
Szeinbach:

1 publication, 2 grants. 4.50% raise.
27 publications, 2 grants. 3.25% raise.
3 publications, 0 grants. 3.00% raise.

2009:
Buerki:
Balkrishnan:
Szeinbach:

4 publications, 1 grant. 2.75% raise.
20 publications, 5 grants. 3.00% raise.
3 publications, 0 grants. 2.00% raise.

2010:
Buerki:
Szeinbach:

2 publications, 0 grants. 2.25% raise.
5 publications, 0 grants. 2.00% raise.

(Docs. 146-1 at 1; Doc. 161 at 3-10.)

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Brueggemeier testified about the process he used to determine salary increases
for faculty members. In addition to teaching, research, scholarly activities and service,
Brueggemeier also considered issues of equity, excellence, professionalism and collegiality. With respect to issues of equity, Brueggemeier testified that he looked at relative
rank and salary dollars to address large discrepancies between people who have the
same rank. Brueggemeier testified that new faculty were hired in with salaries higher or
equivalent to junior faculty who had been at the College for five or six years, and he
attempted to address that in making salary increases. He specifically testified that
Buerki was the lowest paid full professor at the College of Pharmacy. Even after the
2009 salary increases, Buerki was making just 78% of the salary paid Szeinbach.
The evidence plaintiff offers regarding Brueggemeier in connection with her
research misconduct investigation retaliation claim is equally applicable here. There are
fact issues about Szeinbach’s substantially lower salary increases for 2007 and 2008 that
must be resolved by a jury.
Here, Dean Brueggemeier was solely responsible for determining plaintiff’s
salary increase. As previously discussed, he was well aware of plaintiff’s protected
activity and the fact that the research misconduct investigation was the result of discord
between she and Balkrishnan, which a trier of fact may conclude was instigated because
of her protected conduct. There is conflicting evidence as to whether Brueggemeier
disciplined Balkrishnan for his role in contributing to the unprofessional atmosphere at
the College of Pharmacy despite instruction to do so from Human Resources. Despite
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Brueggemeier’s testimony that he implemented many of the recommendations of the
OSU-HR investigations about the conflicts between Balkrishnan and Szeinbach, there is
no written documentation of most of those actions. Additionally, Brueggemeier was
subjected to a CII as a result of the actions of Szeinbach’s husband. There is evidence
from which a reasonable juror might conclude that Brueggemeier’s decision to provide
her with a lower salary increase was in retaliation for her protected conduct.
For the reasons stated above, defendant The Ohio State University’s May 22, 2013
renewed motion for summary judgment (doc. 123) is DENIED.

s/Mark R. Abel
United States Magistrate Judge

72