Cutcliffe v. Wright State University

Filing 46

ENTRY AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 31 ,GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 32 AND DENYING MOTION TO STRIKE RESPONSE IN OPPOSITION 42 . SUMMARY JUDGMENT IS AWARDED TO DEFENDANT ONPLAINTIFF'S CLAIMS AND ON DEFENDANTS COUNTERCLAIM. WRIGHT STATE UNIVERSITY ISORDERED TO SUBMIT A PROPOSED JUDGMENT ENTRY THAT WOULD EFFECTUATE THIS ORDER ANDTERMINATE THE CASE BY FEBRUARY 1, 2019. Signed by Judge Thomas M. Rose on 1-24-2019. (de)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

John Cutcliffe,
Plaintiff, Counter-Defendant,
v.

Case No. 3:17-cv-222
Judge Thomas M. Rose

Wright State University,
Defendant, Counter-Claimant.

ENTRY AND ORDER GRANTING DEFENDANT=S
MOTION FOR SUMMARY JUDGMENT, ECF 31,
GRANTING DEFENDANT=S MOTION FOR SUMMARY
JUDGMENT, ECF 32, AND DENYING MOTION TO STRIKE
RESPONSE IN OPPOSITION, ECF 42.
SUMMARY
JUDGMENT IS AWARDED TO DEFENDANT ON
PLAINTIFF’S CLAIMS AND ON DEFENDANT’S
COUNTERCLAIM. WRIGHT STATE UNIVERSITY IS
ORDERED TO SUBMIT A PROPOSED JUDGMENT ENTRY
THAT WOULD EFFECTUATE THIS ORDER AND
TERMINATE THE CASE BY FEBRUARY 1, 2019.

Pending before the Court are Defendant=s Motion for Summary Judgment, ECF 31,
Defendant’s Motion for Summary Judgment on Defendants’ Counterclaim, ECF 32, and
Defendant’s Motion to Strike ECF 38, Response in Opposition to Motion. ECF 42. Because there
is no genuine issue of material fact, summary judgment can be awarded to Defendant on Plaintiff’s
employment discrimination and retaliation claims against Defendant and on Defendant’s
counterclaim for unjust enrichment. Defendant’s Motion to Strike, ECF 42, will be denied.
I.

Background

Plaintiff John Cutcliffe is a 52-year-old male, British citizen, born and raised in England.
On November 14, 2014, Defendant Wright State University simultaneously hired Cutcliffe into
multiple capacities that included: Director of the Center for Nursing Research in its College of
Nursing Health; “Bertram C. and Lovetta R. Blanke Endowed Chair for Nursing Research” that
accompanied the Director position, and full Professor with tenure in the College of Nursing Health.
When Cutcliffe was invited to Wright State to interview with the College of Nursing Health Dean
and faculty as a candidate for these positions, he specifically asked Dean Rosalie Mainous about
the collegial environment in the College of Nursing Health. He was told that collegiality was one
of the strengths of the college. (Cutcliffe depo. pp. 209-210).
Mainous did not mention that a recent report prepared by Wright State’s Office of Equity
and Inclusion concluded that there was rampant incivility and bullying within the college,
specifically directed at three racial minorities: an African-American professor, a ChineseAmerican professor and a Jewish-American professor. (Bashaw depo. pp. 32-37, Brookshire depo.
p.30, Boaz depo. Ex. 33).
Plaintiff has not been replaced. (Bashaw Dep. 26). As Director, Plaintiff was at-will,
serving at the pleasure of the Dean. (Mainous Dep. 47-48; Cutcliffe Dep. 370). As faculty,
Plaintiff was a union member. (Cutcliffe Dep. 85; Ex. D).
Plaintiff’s role as Director included leading the research in the College of Nursing Health.
(Mainous Dep. 45). Plaintiff described his Director duties as “capacity building, mentorship,
nurturing, building research teams.” (Cutcliffe Dep. 107; Ex. I). As Director, Plaintiff reported
directly to Mainous. Mainous served as the College of Nursing Health’s Dean from August 2011
until January 2017. (Mainous Dep. 15-16, 272). Mainous reported to the Wright State Provost,

2

but the bulk of her communications regarding Plaintiff were with the Associate Provost, Steven
Berberich. (Mainous Dec., ¶¶2-3)
During his interviews with Mainous and during dinners with Mainous in his first months
of employment,1 Cutcliffe heard what he considers male bashing and xenophobic comments from
Mainous. (Cutcliffe depo. p. 212). During his interview process, prior to being hired, Mainous
inquired about his children’s and wife’s nationality (Cutcliffe depo. p. 213); and stated that
Englishness would be an impediment to his success. (Cutcliffe depo. p. 213-214);
During his first few months of employment at Wright State, Mainous would frequently
invite Cutcliffe to lunches and dinners. During these encounters, Mainous talked at length about
her family and their religious beliefs. Cutcliffe once stated that he was an atheist. Mainous
responded: “You are going to have to keep that to yourself around here. We do not like atheists.
I know that you are English and England is not a very religious country.” (Cutcliffe depo. pp. 180,
200). During another dinner, Mainous referred to Cutcliffe's gender and maleness and how this,
in her view, disadvantaged him.

She also described former professor Devon Berry as a

“psychopath” who participated in a male-dominated and misogynistic church. (Cutcliffe depo. p.
196) Mainous stated, “Devon Berry tried to tell me what to do – he even wrote a report about
what needed to change in the [College of Nursing Health] – and you know what happened to him.
We don't have a good track record with the men we hire.” (Cutcliffe depo. p. 178) Mainous had

1 Plaintiff alleges that the comments reflecting national origin and gender animus he describes
during his hiring and first months of employment continued “throughout his employment.”
Allegations supported only in very general terms, not recounting when or how often the incidents
occurred, nor who made the disparaging remarks do not constitute direct evidence that a suspect
animus motivated an employment action. Dotson v. Norfolk S. R.R. Co., 52 F. App'x 655, 659 (6th
Cir. 2002); see also Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012).
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also “never met a man who can nurse as well as a woman.” (Cutcliffe depo. p. 226) She also said,
“My last boyfriend tried to tell me what to do – told me to make him some coffee, I ended the
relationship.” (Cutcliffe depo. p. 449)
On another occasion, in the summer of 2015, Mainous stated, “You are going to have to
change your behavior.” When Cutcliffe asked about what behavior and on what basis this was
being stated, Mainous explained that an undisclosed number of female faculty members had been
commenting about Cutcliffe and a fellow male College of Nursing Health employee, Chris
Brookshire. (Brookshire Affidavit, Exhibit 6) She also said England did not have many highquality nursing scholars, (Cutcliffe depo. p. 184), which Cutcliffe admits to be true. (Cutcliffe
depo. p. 178, 179). She questioned whether England even had any evidence-based nursing
(Cutcliffe depo. p. 179); stated England does not have many high-quality scholars and stated that
Cutcliffe’s English/foreign nursing experience was not as valuable as USA experience. (Cutcliffe
depo. p. 205).

In addition to comments made about Cutcliffe specifically, Mainous made

derogatory comments about other male employees, specifically disparaging them as males in a
female-dominated profession. (Brookshire Affidavit).
Other staff told Cutcliffe that as an Englishman, staff and faculty considered him arrogant
and pretentious. (Cutcliffe depo. p. 181);
Mainous is a white, female, American, Professor of Nursing who became Dean at Wright
State College of Nursing Health in 2011. Even before her conversations with Cutcliffe, Wright
State investigations and reviews characterized her as “capricious and discriminatory.” (Ribak Decl.
Apxs.1, 2; Berberich depo. p. 29, Ex 33; Mainous depo. p. 257 and Ex. 13). As she later did with
Cutcliffe’s annual performance objectives, Mainous ignored Professor Judy Ribak’s documented

4

accomplishments and “found fault in several new ways.” She refused to recommend her for
tenure, that decision being overruled by the University Promotion and tenure committee. (Ribak
Decl., Apx. 2). When Cutcliffe was removed from the Endowed Chair/Director position, Wright
State asserted that Cutcliffe was “ineffective” in his role as Director. Yet, Mainous conceded that
he “met the vast majority of the goals that he was expected to meet.” (Mainous depo. p. 181).
Cutcliffe achieved 21 of 23 of his stated performance goals, mostly in his first year, as reflected in
his ‘Faculty Activity Report’ Report and his “performance aims. (Cutcliffe depo. p. 323, Ex. CC,
Doc.12-2 Ex. 30).
At one point Cutcliffe complained to Mainous that he was being targeted by a female
faculty member who engaged in discriminatory actions. Mainous confided in Associate Provost
Steven Berberich that these actions of the College of Nursing Health toward Cutcliffe “would be
overwhelming in terms of intimidation,” but her response to Cutcliffe’s complaints was to state,
“I will not support disciplining this faculty member [a female, American professor] without
following through with disciplinary actions on the others waiting in the queue.”
Mainous reduced the allocated research funding for purposes unrelated to Cutcliffe’s
research mission. Cutcliffe complained to Berberich that Mainous had unilaterally expropriated
the funds allocated to his research. Cutcliffe later discovered that Mainous had indeed removed
the funds, acknowledged to Berberich that she had done so, and eliminated 85% of his promised
allocated budget. When he questioned the reduction of his budget, Mainous said to Cutcliffe,
“You know you serve at the Dean’s pleasure.” (Cutcliffe depo. p. 328; Brookshire depo. p.69).
Cutcliffe’s responsibilities included “oversight for research staff and operations which may
include graduate assistants,” and management of an annual budget. (Cutcliffe Depo. Ex. D). His

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authority to hire and manage graduate research assistants was abrogated. (Cutcliffe Decl. Exs. 8,
9, 11, 13; Brookshire depo. p.69). Cutcliffe was nominated for a faculty award that was subject
to Mainous’ review. (Cutcliffe depo. p. 314-316 Ex. 26). Ignoring the vote of the Committee,
Mainous refused to support the Committee’s recommendation. (Berberich depo. p.71 Ex. 41). By
contrast, the two American female nominees recommended for other awards were supported by
Mainous. (Bashaw depo. p. 169, Cutcliffe depo. p. 314-316).
On November 5, 2015, Mainous e-mailed Professor Cindra Holland asking, “Is Tara
[Konicki] afraid of Dr. Cutcliffe? Are all the faculty up there afraid of Dr. Cutcliffe?” (Mainous
depo. p. 82). She suggested that Cutcliffe had a mental illness, claiming he had moved “into the
realm of extreme paranoia” (Mainous depo. p. 252). On another occasion, Mainous noted of
Cutcliffe: “[m]y weekly meetings of my Leadership Team. Second week in a row hadn’t shown
up. Is the below a violation of the CBA?” (Mainous depo. pp. 321-323 Ex. 15).
Plaintiff complains that Mainous received an email from a professor in the Wright State
School of Engineering who wanted out of a research project with Cutcliffe. Wright State policy
calls for the Professor to deal directly with Cutcliffe. Mainous discussed the research project with
the professor, after which he responded, but never discussed the situation with Cutcliffe (Mainous
depo. p. 171).
On November 10, 2015, Cutcliffe raised concerns about discrimination, hostility, incivility
and bullying directed at him with Senior Wright State Administrators Berberich and Bill Rickert.
Cutcliffe (along with Brookshire) brought his concerns to the University Ombudsman, who then
made Berberich aware of the complaints. (Cutcliffe Decl. Ex.14, 15; Berberich depo. pp. 15, 20).
Internal communication between the senior administrators acknowledged the hostile work

6

environment. (Cutcliffe depo. p. 333, Ex. EE; Doc 12-1, Ex. 12)(Rickert email). Berberich
informed Rickert that he would not act on Cutcliffe’s faculty-to-faculty related complaints.
Rickert admitted that, “I do, however, see an environment wherein it would be really hard to do
what he’s been hired to do.” (Cutcliffe Decl.Ex.15).
On March 28, 2016, Cutcliffe was notified that he was being removed from his
administrative positions. (Cutcliffe Depo. Ex. PP). While Plaintiff expected to continue in this
role until June 30, 2016 (Mainous Dep. 52-53; Ex. PP), he informed Berberich that he was finished
performing Director duties. (Mainous Dep. 53; Cutcliffe Dep. 390-91, “I'd already instructed -excuse me, informed Dr. Berberich, when he removed that position, that then I wasn't going to do
it from that movement forward.”). After he requested clarification as to the reasons for the
administrative action from the Provost, Cutcliffe received a detailed letter from Michael Manzler,
Associate General Counsel and Assistant Attorney General, explaining the reasons for the removal
(Cutcliffe Depo. Ex. BBB). Cutcliffe responded with a detailed rebuttal. (Cutcliffe Decl. Ex. 12).
On April 5, 2016, Plaintiff emailed Wright State’s upper management, threatening them
with legal action and demanding an explanation. (Ex. QQ). Mainous decided to end Cutcliffe’s
role as Director because, in her judgment, Plaintiff was “ineffective in the position.” (Mainous
Dep. 49, 71; Ex. BBB). She provided examples reflecting Plaintiff’s ineffectiveness. Id. At
Plaintiff’s request, Wright State’s legal counsel provided Plaintiff with an overview of the primary
reasons for his removal on April 18, 2016. (Ex. BBB).
On July 8, 2016, Plaintiff filed a charge of discrimination and retaliation with the EEOC
regarding the loss of his Director title. (Ex. TT). On April 4, 2017, the EEOC issued a Right to
Sue Letter, finding no probable cause. (Ex. UU).

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Defendant has a counterclaim for reimbursement of unearned pay.
The terms of his employment as the “Blanke Endowed Chair” are governed by an offer
letter dated October 24, 2014 (Cutcliffe Depo. Ex. D), as well as the Wright State-AAUP TET
Faculty Agreement, the collective bargaining agreement governing full-time tenured faculty. (TET
CBA). Articles 28 and 30 govern a faculty member’s leave and benefits. The TET Agreement
provides in pertinent part:
28.6 Sick Leave Authorization and Use. Sick leave may be used
during any period of time in which the Bargaining Unit Faculty
Member is under contract to perform services for the University.
During the summer a Bargaining Unit Faculty Member is required
to use sick leave only during the terms when he or she is accruing
sick leave pursuant to Section 28.4. Bargaining Unit Faculty
Members shall report all uses of sick leave and shall supply to
Human Resources any reasonable documentation which may be
required by the University, including verification from a
physician(s). The University has the right to require a second
opinion to confirm a diagnosis and the need for sick leave. If the
University requires a second opinion, it will be at the expense of the
University.
PageID 2164.
Cutcliffe advised Berberich by email on September 22, 2016 that his health status had
deteriorated and that he needed “to take sick leave/short term disability.” (Cutcliffe Decl. Ex.1).
Berberich responded to Cutcliffe’s “Sick Leave Short Term Disability Notice” on that same date,
copying Dean Mainous and Jamie Henne, by acknowledging Cutcliffe’s request for short term
disability leave and noting that Henne was instructed to “inform [Berberich] once [Cutcliffe’s]
request has been documented.” (Id.). The following day, Berberich again responded to Cutcliffe’s
“Sick Leave Short Term Disability Notice” email stating in part:
Please be informed that based on your September 22, 11:35 am
email to me, the Dean and your lawyer, the [College of Nursing
8

Health] anticipates you will be utilizing sick leave and not attending
your class on Monday evening. Furthermore, I remind you that
BUFMs are required to notify their Department Chair (in [College
of Nursing Health] this is the Dean) as early as possible (sic) their
anticipated date or return from sick leave (CBA 28.7.5).
(Cutcliffe Decl. Ex. 2). Henne’s email of that same date provided Cutcliffe with FMLA and STD
forms. (Cutcliffe Decl. Ex. 3,). Four days later, in response to a request from Cutcliffe for
verification of the paid sick leave hours he had earned, Henne emailed him and indicated the hours
of sick leave and vacation time that he had accrued as of August 29, 2016. (Cutcliffe Decl. Ex.4).
In the same September 27, 2016 email, Henne advised Cutcliffe; in response to this request for
sick leave and short-term disability leave as follows:
You need to complete the FMLA request form and the Unum
Employee Statement. Your physician needs to complete the Unum
Physician’s Statement. Most physician’s (sic) charge to complete
forms so typically we will accept the Unum physician’s form in
place of the FMLA’s physician’s form.
(Id.). When Cutcliffe followed up with Henne on October 4, 2016, she confirmed receipt of the
FMLA and Unum STD forms.
On October 5, 2016, Cutcliffe sent an email to Henne setting forth the dates of leave he
was seeking and indicating that he was requesting to use all of his earned sick leave prior to using
a portion of his earned vacation time for the leave of absence he was requested to run from
September 19 through November 4, 2016.

Henne’s advised Cutcliffe that if he could not

complete his University leave report online, he could ask his Business Manager, Denise Porter, to
assist him with completion. (Cutcliffe Decl. Ex. 5.)
On October 11, 2016, the University sent Cutcliffe a letter stating that he was being sent
for medical evaluation for a second opinion, “[i]n order to make a decision to certify or deny your

9

leave under the FMLA…to determine whether or not you have a serious health condition that
renders you unable to perform your job.” (Doc. 26-1, Cutcliffe Depo. Ex. JJJ). As the letter
indicates, the University’s demand that Cutcliffe submit to a second opinion examination, was for
purposes of FMLA certification. Cutcliffe decl. Ex. 6).
On October 13, 2016, Henne again contacted Cutcliffe regarding the status of his FMLA
leave request and whether he intended to return to work. Despite Cutcliffe’s October 5, 2016
email in which he clearly set forth the days for which he requested leave from September 19
through November 4, and the designation of his leave as paid sick leave followed by vacation time,
Henne claimed that she was unaware of whether he intended to return to work on the following
day, October 14, 2016. (Id.). She instructed him to complete additional FMLA forms. (Id.).
Cutcliffe responded to this email on that same day by advising Henne that he had submitted a form
indicating his sick days and vacation time and that on the advice of his doctor he will remain on
leave as indicated in his prior emails, and he inquired about any additional forms necessary to
apply for STD leave after his FMLA leave with sick days and vacation time is exhausted. (Cutcliffe
Decl. Ex. 5)
Henne did not respond to Cutcliffe’s October 13, 2016 email until 4:54 p.m. on October
19, 2016, less than 16 hours before the evaluation scheduled by the University. She asserts that
Cutcliffe has not properly requested leave beyond October 13, 2016, and explains that the
University is sending him for a second opinion “as it is expressly permitted to do under both the
FMLA and the TET Faculty collective bargaining agreement.” (Id.). At 5:06 that same evening,
the University’s General Counsel sent an email to the undersigned arguing that the University was
entitled to require a second opinion under the FMLA and under the TET Agreement for any

10

bargaining unit faculty member requesting sick leave. (Cutcliffe Decl. Ex. 6, 7). In the email, the
University’s General Counsel threatened Cutcliffe with “serious consequences” including denial
of his FMLA leave and sick leave requests “if he does not cooperate with our instruction that he
undergo examination by another doctor (Dr. Frederick Sacks) tomorrow morning so that we may
obtain a second opinion regarding his ability or inability to perform some or all of his job duties.”
(Id.).
On October 19, 2016, Wright State’s counsel sent Plaintiff’s counsel an email highlighting
CBA Section 28.6 and Wright State’s right to send Plaintiff to an exam. (Doc. 38.1, Ex. 6; PageID
#2192). Wright State’s counsel also explicitly warned him that in the event Plaintiff did not
cooperate with the instruction, “there will be serious consequences for him under both the FMLA
and CBA, including potential denial of his leave request…” Id. Plaintiff testified that he did not
attend the appointment because “I wasn’t going to subject myself to any, what I considered to be,
further differential treatment.” (Cutcliffe Dep. 465).
Plaintiff exhausted his accrued paid vacation time on October 18, 2016 (Cutcliffe Dep.
469-70; Ex. MMM). Wright State paid Cutcliffe’s salary from that date through November 30,
2016. Plaintiff was also inadvertently allowed to remain on Wright State’s group insurance
benefit plans through January 31, 2017, even though he refused to remit the premium
contributions.
Henne sent Plaintiff a letter informing him that he had been inadvertently overpaid by
Wright State for the time of October 18 – November 30, 2016 in the gross amount of $17,460.24.
(Ex. OOO). Henne also notified Plaintiff that he owed Wright State the full premium for certain
employment benefits, including medical insurance, dental insurance, vision insurance, group life

11

insurance, short term disability, long term disability, and dependent care flexible spending, in the
monthly amount of $575.42. Plaintiff’s benefits premium for November 2016 was due by
December 15, 2016, and his benefits premium for December 2016 was due by January 15, 2017,
for a total of $1,150.84 (as detailed in the letter). Id. Wright State sent notices to Plaintiff of the
overpayment (Exs. NNN; OOO; SSS; TTT; VVV), but Plaintiff did not intend to return the
$22,845.24 at issue. (Cutcliffe Dep. 475).
Plaintiff owed the following amounts for benefits paid by the University: $575.42 for
November 2016 $575.42 for December 2016 $2,117.08 for January 2017 $2,117.08 for February
2017. Henne advised that all past due premiums (in the total amount of $5,385.00) were due by
March 27, 2018. Id. His stated reason for keeping the money was, “I think the reason for turning
down my sick time was fraudulent as an example of retaliation.” Id.
In his Complaint, Plaintiff alleges separate counts of sex discrimination and national origin
discrimination against Wright State both in violation of Title VII, as amended, 29 U.S.C. § 2000(e)
et seq.; and one count of retaliation against Wright State. Plaintiff also brings what he describes
as a “constructive discharge” claim.
Wright State filed a counterclaim against Plaintiff alleging Wright State inadvertently
overpaid Plaintiff $17,460.24 in wages for the period of October 18, 2016-November 30, 2016.
Wright State claims it is entitled to an additional payment of $5,385.00 for medical insurance,
dental insurance, vision insurance, group life insurance, short-term disability, long-term disability
and dependent care flexible spending provided to Plaintiff for the months of November 2016,
December 2016, January 2017, and February 2017.
II.

Standard
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The standard of review applicable to motions for summary judgment is established by
Federal Rule of Civil Procedure 56 and associated case law. Rule 56 provides that summary
judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. at 56(c). Alternatively, summary judgment is denied “[i]f there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Thus, summary judgment
must be entered “against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, admissions and affidavits which it believes demonstrate the absence of a genuine
issue of material fact. Id., at 323. The burden then shifts to the nonmoving party who “must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S., at 250
(quoting Fed. R. Civ. at 56(e)).
Once the burden of production has shifted, the party opposing summary judgment cannot
rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go

13

beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex Corp., 477 U.S., at 324.
In determining whether a genuine issue of material fact exists, a court must assume as true
the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party.
Anderson, 477 U.S., at 255. If the parties present conflicting evidence, a court may not decide
which evidence to believe by determining which parties’ affiants are more credible. 10A Wright
& Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations must be
left to the fact-finder. Id.
Finally, in ruling on a motion for summary judgment, “[a] district court is not…obligated
to wade through and search the entire record for some specific facts that might support the
nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Thus, in determining whether a genuine issue of material fact exists on a particular issue, the court
is entitled to rely upon the Rule 56 evidence specifically called to its attention by the parties.
III.

Analysis

A.

Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “based on

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). It is a violation of Title
VII to take an adverse employment decision against an employee because of his or her membership
in a protected class. See, e.g., White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir.
2005).
Plaintiff John Cutcliffe asserts Defendant Wright State University discriminated against
him because of his gender and national origin. In spite of Plaintiff having pleaded separate claims

14

of gender and national origin discrimination, “Title VII does not permit plaintiffs to fall between
two stools when their claim rests on multiple protected grounds.” Shazor v. Prof’l Transit Mgmt.,
Ltd., 744 F.3d 948, 958 (6th Cir. 2014); Coffman v. U. S. Steel Corp., 185 F. Supp. 3d 977, 98283 (E.D. Mich. 2016) (“Plaintiff’s discrimination claim is ‘intersectional’ because it is based on
the combination of her race and gender, rather than on her race and/or gender separately.”);
Thompson v. City of Columbus, 2014 WL 1814069, at *4 (S. D. Ohio May 7, 2014) (“Sex-plus”
discrimination, defined as discrimination based on sex plus some other characteristic, is “widely
recognized.”).
A plaintiff may establish a claim of discrimination either by presenting direct evidence of
discrimination or by presenting circumstantial evidence that would support an inference of
discrimination. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). Direct evidence
is where an employer’s statement directly shows discriminatory motive. See Schlett v. Avco Fin.
Servs., Inc., 950 F. Supp. 823, 828 (N.D. Ohio 1996). Evidence that would require the jury to
infer a fact is not direct evidence. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078,
1081 (6th Cir. 1994). Direct evidence, in the form of verbal comments, will be similar to an
employer telling its employee, “I fired you because you are disabled.” Smith v. Chrysler Corp.,
155 F.3d 799, 805 (6th Cir. 1998); see also In re Rodriguez, 487 F.3d 1001, 1008-09 (6th Cir.
2007) (plaintiff had direct evidence of discrimination where a decision-maker stated that the
plaintiff would not receive a promotion because of his Hispanic speech pattern and accent). The
discriminatory statement must bear some kind of connection to the adverse action. See, Cesaro v.
Lakeville Cmty. Sch. Dist., 953 F.2d 252, 254 (6th Cir. 1992).

15

An isolated comment by a member of the employer's hiring committee that they “wanted
a grass roots guy” does not constitute direct evidence of discrimination “because the critical inquiry
[in a sex discrimination case] is whether gender was a factor in the employment decision at the
moment it was made.” White v. Columbus Metropolitan Housing Auth., 429 F.3d 232, 239 (6th
Cir. 2005) (citations and internal quotations omitted, emphasis added). Similarly, generalized
comments by an employer's managers about reducing their workforce's average age does “not
constitute direct evidence of age-based bias against th[o]se particular plaintiffs.” Rowan v.
Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 548 (6th Cir. 2004).
Here, while Plaintiff twice uses the phrase “direct evidence,” PageID 2077, 2084, he does
not argue that he has direct evidence sufficient to withstand summary judgment, relying instead
on the McDonnell Douglas, 411 U.S. 792, 802-04 (1973), burden-shifting paradigm.
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), when a claim is
based on circumstantial evidence, a plaintiff must first establish a prima facie case of
discrimination, the elements of which vary slightly depending on the theory asserted. The Sixth
Circuit applies a modified McDonnell Douglas framework when a majority plaintiff is involved.
See, e.g., Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir. 2002). Plaintiff must
establish the first prong of a prima facie case by showing “background circumstances [to] support
the suspicion that the defendant is that unusual employer who discriminates against the majority.”
Id. (internal quotations omitted). The other prongs remain familiar: (2) that the plaintiff was
qualified for the job; and (3) suffered an adverse employment action. Arendale v. City of Memphis,
519 F.3d 587, 603 (6th Cir.2008). Under prong (4), Plaintiff must show that he was treated

16

differently than similarly situated employees of a different race. Romans v. Michigan Dep't of
Human Servs., 668 F.3d 826, 837 (6th Cir. 2012)
Additionally, under the “same-actor inference,” when a plaintiff is terminated by the same
person who hired him with knowledge of his membership in a protected class, it is unlikely that
discrimination was the reason for the discharge. Buhrmaster v. Overnite Transp. Co., 61 F.3d 461,
464 (6th Cir. 1995). “This principle is grounded in the idea that there is inherent dissonance in a
decision maker hiring someone and then shortly thereafter firing that person on the basis of the
person’s age, race, or some other protected classification.” Mora v. Walgreen Co., 2013 U.S. Dist.
LEXIS 40427, *12 (S.D. Ohio Feb. 8, 2013). Mainous knew that Plaintiff was a male and English
when she hired him. She was the same person that made the decision to remove him from the
directorate 15 months later. This time span is sufficiently short. See, Brooks v. Cincom Sys., 2013
U.S. Dist. LEXIS 188132, *24 (S.D. Ohio June 10, 2013) (21 months deemed sufficiently short).
Wright State “agrees that, to its knowledge, Plaintiff possessed the minimum qualifications
for the Director position and [the] Professor [position]; [Wright State]…does not concede,
however, that he met its legitimate performance expectations.” PageID 2027 n.11. Thus, Wright
State concedes that Plaintiff meets the second element when hired, but not when he lost these
positions. Wright State also contests the third element of the prima facie case with respect to the
loss of his Director position. Wright State argues that Plaintiff’s “constructive discharge” was a
voluntary resignation.
If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant to offer evidence of a legitimate, nondiscriminatory reason for its adverse action. If the

17

defendant satisfies its burden, the burden shifts back to the plaintiff to identify evidence from
which a reasonable jury could find that the stated reason is a pretext for discrimination.
Plaintiff cannot show that he was treated differently than other similarly situated
individuals of different races or genders. Mainous made numerous changes in her faculty’s
administrative appointments – more so than other deans did. (Cutcliffe Dep. 374-75; Bashaw Dep.
144). Mainous removed Plaintiff from his Director role; Donna Curry from her position as
Associate Dean for Graduate Programs; Bobbe Gray from the Doctor of Nursing Practice Program;
and Barbara Fowler from her Director of Research role (prior to Plaintiff’s arrival). (Mainous Dep.
276-81; Bashaw Dep. 144). These are true comparators – tenured College of Nursing Health
faculty members who were placed in at-will administrative positions to serve at the pleasure of the
Dean in addition to their teaching duties.
Even if Plaintiff could establish a prima facia case of discrimination, Wright State
proposed a legitimate reason for terminating Plaintiff’s directorship.

Plaintiff has offered

minimal evidence why the reason put forth by Mainous for the removal of him as Director was a
pretext for discrimination/retaliation. He cannot show that the reason for his removal: 1) had no
basis in fact; 2) was not the actual reason; or, 3) was insufficient to explain the decision. Manzer
v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
A court “may not reject an employer’s explanation [of its action] unless there is sufficient
basis in the evidence for doing so.” Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 600 (6th
Cir. 2001). However, not every evidentiary conflict regarding an employer’s non-discriminatory
reason entitles a plaintiff to a trial. Rather, the circumstances of the conflicting evidence must
suggest in some way that the employer acted for discriminatory reasons. Braithwaite v. Timken

18

Co., 258 F.3d 488 (6th Cir. 2001). Plaintiff is required to show “more than a dispute over the
facts upon which the discharge was based.” Id. at 494. Plaintiff must show that Wright State did
not “honestly believe” in the stated reason. Majewski v. Automatic Data Processing, Inc., 274 F.3d
1106, 1117 (6th Cir. 2001) (“As long as an employer has an honest belief in its proffered
nondiscriminatory reason for discharging an employee, the employee cannot establish that the
reason was pretextual simply because it is ultimately shown to be incorrect.”).
A defendant employer can demonstrate that its belief in its purportedly legitimate and nondiscriminatory reason is “supported by particularized facts after a reasonably thorough
investigation.” Davis v. City of Clarksville, 2012 U.S. App. LEXIS 14481, *24-25 (6th Cir. July
13, 2012); Wright v. Murray Guard, Inc., 455 F.3d 702, 709 (6th Cir. 2006).
Wright State responded to Plaintiff’s inquiries for his loss of his Director position with a
letter explaining their legitimate non-discriminatory reasons for his demotion. Wright State
asserts, Mainous relieved Plaintiff as Director because of the reports of alienation she received
from College of Nursing Health faculty and staff, as well as witnessing his behavior herself in
meetings and in a staff retreat. (Mainous Dep. 72). Plaintiff concedes that there was “growing
discontent” with him from Wright State employees beginning in late 2015, including Berberich,
Mainous, and at least four other faculty members. (Cutcliffe Dep. 60-63). Mainous pointed out
that by Plaintiff’s own admission, multiple colleagues were unhappy with his performance.
(Mainous Dep. 73-74). Mainous indicated that it was well over 50% of faculty and staff; there
were “many, many reports.” Id. at 74-75. Mainous counseled Plaintiff numerous times about his
behavior. Id. at 78.

19

Further, Mainous witnessed Plaintiff’s presentation on July 28, 2015 at a College of
Nursing Health staff retreat on assertiveness. (Cutcliffe Dep. 243).

Plaintiff was “rude,

condescending, tried to embarrass people, he cut them off.” (Mainous Dep. 78). The evaluation
comments were not favorable: Plaintiff left the staff “angry and bewildered;” “a polarizing figure
like Dr. Cutcliffe was not an ideal choice for ‘assertiveness training;’” “the presentation by Dr.
Cutcliffe gave great examples of bullying – by the presenter to the participants;” and so on. (Ex.
L).
At least two faculty members who gave “brown bag lunch presentations” at events
coordinated by Plaintiff reported to Mainous that they would never do that again because Plaintiff
demeaned them in front of the group. (Mainous Dep. 80-81). At least one junior faculty member
was afraid of Plaintiff. Id. at 84-86. On another occasion, Plaintiff stood up as Mainous was
seated and screamed at her until his face turned purple. Id. at 87. Another faculty member
informed Mainous that Plaintiff had provided her with his CV, told her to read it, and said he would
quiz her on it the next day. Id. at 88. Plaintiff incorrectly told faculty that the College of Nursing
Health did not have a statistician to support their research. Id. at 89-91. Faculty accused Plaintiff
of creating a hostile work environment. Id. at 123-24. Interpersonal communication was a “big
issue.” Id. at 284. Mainous dissuaded others from documenting these instances because it was
disrupting the business of College of Nursing Health. Id. “There were so many complaints and
problems, I would spend all day documenting on [Plaintiff] just to keep up with it.” Id.
Many members of the College of Nursing Health faculty and staff did not want to work
with Plaintiff, Id. at 177, whose primary function was to work with faculty members to further
their research and scholarly activity.

20

Additionally, Mainous granted course releases (a reduction in their teaching load) to two
faculty members who were working under the leadership of Plaintiff. (Mainous Dec., ¶6). In midOctober 2015, Mainous asked these faculty members how the project was progressing. They
indicated that Plaintiff had not yet called a meeting although the semester had begun in August.
(Mainous Dep. 92-94). When Mainous approached Plaintiff to discuss the matter, he screamed
at her for checking on the status because she “had no business asking … how they’re doing on the
project.” Id. at 96. Plaintiff tried to order Mainous to stop questioning the faculty. Id. at 97. The
first meeting was not held until late November and both faculty members verified this. Id.
Accordingly, Mainous directed that no future course releases would be granted for Plaintiff. Id. at
362; Cutcliffe Dep. 62-63; Ex. 24.
Wright State’s letter further explained that Mainous asked Plaintiff to hire a Graduate
Research Assistant to support the grant-writing efforts of College of Nursing Health faculty.
(Mainous Dep. 97-98). Mainous believed that to advance their research, College of Nursing
Health faculty needed assistance with writing grants. He refused. Id. at 99-101. In another
Graduate Research Assistant-hiring situation in 2015, after several candidates were interviewed –
Plaintiff was one of the interviewers – not a single candidate offered the position would accept,
each giving the reason that she did not want to work with Plaintiff. Id. at 104-08. Similarly,
Mainous asked Plaintiff to support faculty and student attendance at the Midwest Nursing Research
Society. Id. at 131-33. Wright State had previously sent two to four students with their mentors.
Plaintiff flatly refused to support this activity, telling Mainous that he had no respect for regional
research organizations. Id.

21

In addition, Plaintiff informed Mainous that he did not support the College of Nursing
Health’s Strategic Plan’s goals and thought they were inappropriate. Id. at 134-35. Mainous
directed Plaintiff to conduct an assessment and propose edits by spring 2016. She never heard
back from him. Id. at 134-35, 143.
Plaintiff was to administer the College of Nursing Health’s external mentor program.
Mainous asked Plaintiff to find a research mentor for every College of Nursing Health faculty
member who wanted one. Mainous admits that Plaintiff obtained two mentors, but seven or eight
faculty members desired one. Plaintiff did not believe the program was of value, and refused to
engage in it by 2016. Id. at 136-41.
Next, Wright State’s letter explained that Mainous directed Plaintiff to develop research
collaborations with local entities to further the interests of the College of Nursing Health and its
faculty. Id. at 113. Mainous contacted Grandview Hospital towards the end of Plaintiff’s time as
Director and learned that although he had met with the Hospital, instead of establishing research
connections to the benefit of College of Nursing Health, he pitched Grandview a proposal for his
personal business, Cutcliffe Consulting.5 Id. at 114. According to the Hospital, Plaintiff never
pursued any research. Id. at 119. Plaintiff admits engaging in this pursuit of self-beneficial
activity. (Cutcliffe Dep. 437-40).
At Premier Health, Plaintiff got into a disagreement with the Director of Research and they
wound up calling each other liars. Premier asked Mainous not to send Plaintiff to any further
meetings. (Mainous Dep. 126-28). The arrangement was a “bomb.” Id. at 188. At Wright
Patterson Air Force Base, Mainous was unaware of any outcomes and she learned that Plaintiff
had waited 15 months after his initial meeting to conduct any follow-up. Id. at 128-30.

22

While all parties agree that Plaintiff’s record of publications was excellent, he failed to
conduct any research himself at Wright State. Mainous expected Plaintiff to model behavior for
junior faculty, and this included conducting research and writing grants. Id. at 153-54. She saw
no evidence of this. Id.
Rather, Plaintiff was preparing to submit a major grant (SAMHSA) in April 2016.
Plaintiff repeatedly reported to Mainous that he was making progress. Due to the size of the grant,
steps needed to be taken months in advance of submission. This included coordination with
Wright State’s Office of Research. Mainous was concerned about the grant’s progress, so she
checked with the Office in March 2016 to learn that: Plaintiff had not interacted with the Office at
all; and Wright State was not eligible for the grant in the first place. Id. at 154-57. Plaintiff did
apply for other grant funding, but nothing was awarded. (Cutcliffe Dep. 384).
Wright State’s letter also cited other events that contributed to the decision to remove
Plaintiff as Director. (See generally, Mainous Dep. 157- 59, 163-177). These included Plaintiff
being invited to assist with a proposal being spearheaded by a Wright State Engineering Professor.
Id. at 168-73. Instead of assisting, Plaintiff took over the project and usurped the Professor’s
authority. The professor contacted Mainous and informed her that he wanted Plaintiff off the
project (he told Mainous that he was trying “to find an elegant way to distance myself from the
current project with [Plaintiff]”). (Id.; Ex. LL, p. 2). The Engineering Dean got involved. Id. at
172. When Plaintiff learned of the Professor’s withdrawal from the project, he directed the
professor to put his reasons in writing (which, the professor declined). (Mainous Dep. 169;
Cutcliffe Dep. 319).

23

In another example, a College of Nursing Health professor took offense at Plaintiff
directing the word “guys” at her on the basis of her status as an African-American female. This
was in October 2015, and Mainous forwarded the email exchange between Plaintiff and the
professor to Berberich with the admonition, “We are treading in dangerous territory here.”
(Mainous Dep. 333-34; Ex. Z).
In determining whether Wright State had an “honest belief” in the basis for the Director
removal, the Court examines whether Mainous established a “reasonable reliance” on the
particularized facts available to her. Braithwaite, 258 F.3d at 494. “The critical inquiry is whether
Defendants made a ‘reasonably informed and considered decision.’” Id., quoting Smith v. Chrysler
Corp., 155 F.3d 799, 806-07 (6th Cir. 1998). “[W]e do not require that the decisional process
used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is
whether the employer made a reasonably informed and considered decision before taking an
adverse employment action.” Id. Here, Plaintiff has failed to cite any evidence suggesting that
Mainous did not hold an honest belief in her reasons for removing him as Director or that Mainous
failed to make a “reasonably informed and considered decision.” See Abdulnour v. Campbell Soup
Supply Co., 502 F.3d 496 (6th Cir. 2007) (affirming grant of summary judgment for employer
where decision maker had before him complaints from various people about plaintiff’s inadequate
job performance and demeaning treatment of others, and where decision maker personally
observed that plaintiff failed to address problems that were his responsibility). A decision is
insulated by the honest belief rule even when the employer has numerous reasons for the plaintiff’s
removal, but only told the Plaintiff he was being terminated for a “personality conflict,” and not

24

poor performance; and were “skeptical of undocumented accounts of employee conduct that may
have been created post-termination.” Id. at 503.
Because Plaintiff has no direct evidence that gender or national origin animus motivated
employment action against him, was not replaced as Director, and cannot disprove the stated nondiscriminatory reasons as pretext, summary judgment will be awarded to Wright State on
Plaintiff’s employment discrimination claims.
B.

Retaliation Claim
Title VII forbids employer actions that discriminate against an employee because the

employee participated in protected activity, such as an EEO investigation. Burlington N. & Santa
Fe Ry. Co v. White, 548 U.S. 53, 59 (2006). Where a plaintiff relies on indirect evidence to
establish his claim, the familiar McDonnell Douglas burden-shifting framework applies. Laster v.
City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). To establish a prima facie case of
retaliation, a plaintiff must demonstrate that: “(1) he engaged in activity protected by Title VII; (2)
his exercise of such protected activity was known by the defendant; (3) thereafter, the defendant
took an action that was materially adverse to the plaintiff; and (4) a causal connection existed
between the protected activity and the materially adverse action.” Id. To satisfy the third prong,
the plaintiff “must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. Ry., 548 U.S. at 67-68
(internal quotation omitted). The standard is objective and does not protect a plaintiff from trivial
harms, such as petty slights, minor annoyances, and a simple lack of good manners, which are not
likely to deter victims from complaining to the EEOC. Id. at 68.

25

“Opposing conduct” sufficient to support a Title VII retaliation claim includes complaining
to anyone— management, other employees, unions or newspapers— about allegedly unlawful
practices; refusing to obey an order because the worker thinks it is unlawful, and opposing
unlawful acts by persons other than the employer, such as former employers and co-workers.
Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000). Courts do not require that a
plaintiff’s complaints be lodged with absolute formality, clarity, or precision. Stevens v. St.
Elizabeth Med. Ctr., Inc., 533 Fed. Appx. 624, 631 (6th Cir. 2013).
Cutcliffe raised concerns about discrimination, hostility, incivility and bullying directed at
him with Wright State Administrators Berberich and Bill Rickert on November 10, 2015. “[T]o
establish actionable retaliation, the relevant decision maker, not merely some agent of the
defendant, must possess knowledge of the plaintiff’s protected activity.” Escher v. BWXT Y-12,
LLC, 627 F.3d 1020, 1026 (6th Cir. 2010). Mainous had no knowledge of any protected activity.
(Mainous Dec., ¶8)

Therefore, there is no causal connection.

Thus, Plaintiff’s Title VII

retaliation claims fail as well.
Because Plaintiff can show no causal connection between his complaints to Wright State
administrators and the decision of Mainous to terminate his Director position and because other
incidents of which he complains do not amount to actionable facts, the Court will award summary
judgment to Wright State on Plaintiff’s retaliation claim.
C.

Constructive Discharge
To demonstrate a constructive discharge, Plaintiff must adduce evidence to show that 1)

“the employer ... deliberately create[d] intolerable working conditions, as perceived by a
reasonable person,” and 2) the employer did so “with the intention of forcing the employee to

26

quit....” Logan v. Denny's, Inc., 259 F.3d 558, 568–69 (6th Cir. 2001) (quoting Moore v. KUKA
Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999).” “To determine if there is a constructive
discharge, both the employer's intent and the employee's objective feelings must be examined.” Id.
(citing Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982)).
Whether a reasonable person would feel compelled to resign depends on the facts of each
case, but the following factors are relevant: (1) demotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under
a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to
encourage the employee's resignation; or (7) offers of early retirement or continued employment
on terms less favorable than the employee's former status. Logan v. Denny's, Inc., 259 F.3d 558,
569 (6th Cir. 2001) (citing Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000); and Barrow
v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).
As regards Plaintiff’s cessation of work, Plaintiff must first exhaust the administrative
remedies available to him for each Title VII claim prior to filing suit in federal court. Haithcock v.
Frank, 958 F.2d 671, 675 (6th Cir. 1992). Pursuant to 42 U.S.C. § 2000e-5(e)(1), an EEOC
charge must be filed within 300 days after the unlawful act occurred. Here, Plaintiff was informed
that he was removed as Director on March 23, 2016, and he filed his EEOC charge on July 8, 2016.
(Ex. TT). Plaintiff never filed another EEOC charge. His right to sue letter was issued on April
4, 2017. (Ex. UU). Plaintiff resigned after his letter was issued, on May 15, 2017. (Cutcliffe Dep.
402; Ex. VV).
Plaintiff did not file a charge after his alleged constructive discharge occurred on May 15,
2017. The “scope of investigation” doctrine requires a constructive discharge claims to arise from

27

the EEOC investigation. See Flowers v. Potter, 2008 U.S. Dist. LEXIS 23980, *31-33 (S.D. Ohio
Mar. 11, 2008) and Schaefer v. United States Postal Serv., 254 F. Supp. 2d 741, 750-51 (S.D. Ohio
Dec. 9, 2002).
Moreover, Title VII is not a general civility code. see Oncale v. Sundowner Offshore Servs.,
523 U.S. 75 (1998). The conduct alleged does not rise to “intolerable working conditions.”
Because Plaintiff did not administratively exhaust his constructive discharge claim, and
because the conduct alleged does not rise to “intolerable working conditions,” the Court will award
summary judgment to Wright State on Plaintiff’s retaliation claim.
D.

Wright State’s Counterclaim
“A plaintiff must establish the following three elements to prove unjust enrichment: (1) a

benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the
benefit; and (3) retention of the benefit by the defendant under circumstances where it would be
unjust to do so without payment.” Maghie & Savage, Inc. v. P.J. Dick, Inc., 10th Dist. No. 08AP487, 2009-Ohio-2164, ¶33.
After he was removed as Director, Plaintiff’s salary was never decreased; he was to receive
his Director salary through July 31, 2017, but resigned in May 2017. (Cutcliffe Dep. 374; Ex. PP).
Mainous and Plaintiff never talked to one another after he was removed as Director. (Mainous
Dep. 53; Cutcliffe Dep. 394).9
Plaintiff claims he worked throughout summer 2016. (Cutcliffe Dep. 391). On August 25,
2016, Plaintiff emailed the Provost claiming that when his office was moved down the hall over
the summer, his assigned computer has been “stolen and replaced – by [Wright State] – with an

28

inferior computer.” (Ex. EEE). Plaintiff admits that these allegations turned out to be false.
(Cutcliffe Dep. 452). It is unclear what work Plaintiff could have done that summer.
Plaintiff began teaching two courses during the fall semester 2016, which started in late
August. (Cutcliffe Dep. 93). He took a leave of absence as of September 19, 2016, and never
returned.
Plaintiff submitted FMLA paperwork on September 28, 2016, requesting retroactive
FMLA leave beginning September 19. (Ex. HHH). Berberich requested a second opinion, as
authorized under the collective bargaining agreement, because “it was difficult to ascertain from
the documentation whether he could accomplish his work as a faculty member.” (Berberich Dep.
76; Ex. JJJ). Plaintiff refused to attend this medical appointment (Cutcliffe Dep. 465), yet Wright
State approved his FMLA request for the full 12 weeks from September 19 - December 11, 2016.
(Cutcliffe Dep. 470; Ex. QQQ). Plaintiff exhausted his accrued vacation time on October 18, and
Wright State no longer paid him as of this date. (Ex. MMM).
The remainder of Plaintiff’s time as a Wright State employee consisted largely of Wright
State sending him various communications inquiring about his return to work status and
encouraging him to pursue other forms of leave(s) if unable to return, and Plaintiff not responding.
(Dep. Exs. NNN, OOO, PPP, RRR). Plaintiff’s medical care provider never supplied him with a
return-to-work date and he never felt capable of returning to work. (Cutcliffe Dep. 468). Plaintiff
acknowledges that Wright State considered him to be, and notified him that he was absent without
leave effective the first day after his FMLA leave expired, December 12, 2016. (Id. at 480; Ex.
PPP). Plaintiff never attempted to substantiate his leave post-December 12 – indeed he never

29

even requested leave beyond December 30, 2016 – and tendered his voluntary resignation on May
15, 2017. (Cutcliffe Dep. 402-03; Ex. VV).
Wright State conferred a benefit on Plaintiff by compensating him for a time period when
Plaintiff otherwise should not have been paid (because he was on leave not doing any work and
had exhausted all of his paid vacation time). Second, Plaintiff was aware of the benefit as he
received the compensation in his bank account. He also received notice through the efforts
Wright State took to try to recoup the money.
Berberich sent Plaintiff an email on November 21, 2016, explaining that his paid leave had
expired on October 18, 2016. (Ex. MMM). On December 7, 2016, Henne sent Plaintiff an email
and notified him that Wright State would be contacting him separately to address the repayment
of the six weeks of unearned compensation. (Ex. NNN). The next day, Henne sent Plaintiff a
letter detailing the overpayment amounts and requesting payment by December 15, 2016. (Ex.
OOO). On March 13, 2017, Henne sent Plaintiff a letter explaining that Wright State had
provided insurance premiums to him through January 31, 2017, and requesting payment. (Ex.
SSS). She also warned Plaintiff that payment for his premiums for the month of February 2017
were considered to be past due if payment was not received by March 31, 2017. Id. Henne
informed him that in order for Plaintiff to bring himself current in all coverages through February
2017, he was required to remit $5,385.00 by March 27, 2017. Id. On March 29, 2017, Henne sent
Plaintiff a letter notifying him that since he had not provided any insurance premium payments,
that his various benefits were cancelled retroactively effective January 31, 2017. (Ex. TTT). On
May 23, 2017, Wright State’s Payroll Manager sent Plaintiff a letter demanding repayment of
$17,460.24. (Ex. VVV).

30

Third, Plaintiff retained the benefit of these overpayments. Cutcliffe claims that the denial
of his paid sick leave request was “fraudulent.” (Cutcliffe Dep. 475). Plaintiff’s assertion is
insufficient to overcome summary judgment.

Wright State overpaid wages and benefits to

Plaintiff and has provided calculations to Plaintiff setting forth these amounts. (See Exs. OOO,
VVV; and SSS, TTT).
An unjust enrichment claim is the proper mechanism to recover an overpayment of wages
by an employer to an employee. See, e.g., Cent. Ohio Sheet Metal, Inc. v. Walker, 10th Dist. No.
03AP-951, 2004-Ohio-2816. Wright State is entitled to summary judgment on its claim of unjust
enrichment against Plaintiff in the amount of $22,845.24.
Plaintiff argues that Wright State breached a duty of “good faith and fair dealing” by
requiring Plaintiff to attend a “second opinion” medical exam. (See Memo Contra, p.10 et seq.).
However, none of the cases cited by Plaintiff in his opposition (See Memo Contra, pp.10-13)
recognize “good faith and fair dealing” as a defense to an unjust enrichment claim. Moreover,
the Ohio Supreme Court “ha[s] rejected the contention that a party breaches the implied duty of
good faith and fair dealing merely by seeking to enforce the contract or by acting as permitted by
its express term.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, 97
N.E.3d 458, ¶ 43. Therefore, Defendant Wright State University will prevail on its Motion for
Summary Judgment on Its Counterclaim. ECF 32.
IV.

Conclusion
Because Plaintiff has no direct evidence that gender or national origin animus motivated

employment action against him, was not replaced as Director, and cannot disprove the stated nondiscriminatory reasons as pretext, and because Plaintiff can show no causal connection between

31

his complaints to Wright State administrators and the decision of Mainous to terminate his Director
position and because other incidents of which he complains do not amount to actionable facts, and
because Plaintiff did not administratively exhaust his constructive discharge claim, and because
the conduct alleged does not rise to “intolerable working conditions,” Defendant’s Motion for
Summary Judgment, ECF 31, is GRANTED.
Because Wright conferred a benefit on Cutcliffe and because Cutcliffe had knowledge of
the benefit, and because retention of the benefit by Cutcliffe would be unjust the Court GRANTS
Defendant Wright State University’s Motion for Summary Judgment on Its Counterclaim, ECF
32, is GRANTED.
Defendant’s Motion to Strike ECF 38 Response in Opposition to Motion, ECF 42, is
DENIED. Wright State University is ORDERED to submit a proposed judgment entry by
February 1, 2019.
DONE and ORDERED in Dayton, Ohio, this Thursday, January 24, 2019.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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