Opinion
Case No. 17-CV-872
04-02-2020
Ewart SKINNER, Plaintiff, v. BOWLING GREEN STATE UNIVERSITY, Defendant.
Erica A. Probst, Kemp, Schaeffer & Rowe, Columbus, OH, for Plaintiff. Cheryl F. Wolff, James P. Silk, Jr., Spengler Nathanson - Toledo, Toledo, OH, for Defendant.
Erica A. Probst, Kemp, Schaeffer & Rowe, Columbus, OH, for Plaintiff.
Cheryl F. Wolff, James P. Silk, Jr., Spengler Nathanson - Toledo, Toledo, OH, for Defendant.
ORDER
James G. Carr, Sr. U.S. District Judge
This is an employment discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and analogous provisions of Ohio law. The plaintiff, Ewart Skinner, Ph.D., is a tenured Associate Professor in the Communications Department of the School of Media and Communications ("School of Media") at Bowling Green State University (BGSU). In his amended complaint, (Doc. 5), plaintiff alleges that BGSU engaged in race discrimination and retaliation.
Specifically, plaintiff's amended complaint alleges that BGSU engaged in race discrimination when the School of Media's Director, Laura Stafford, Ph.D., refused to recommend renewal of plaintiff's graduate faculty status - a distinction that allows professors to teach graduate level courses and serve on graduate students’ dissertation and thesis committees.
Plaintiff claims he met all the criteria for retaining such status, but Dr. Stafford failed to recommend renewal because of his race. Plaintiff further alleges that BGSU retaliated against him when he threatened to file a within-school grievance after Director Stafford told him that other faculty would replace him on two graduate student committees because he did not retain graduate faculty status.
Plaintiff also alleges that Dr. Stafford took action that constituted racial discrimination and later, retaliation: 1) lockout of his access to "Canvas," BGSU's online course management platform; and 2) Dr. Stafford's recommendation that he receive a lower than usual merit pay award.
Pending is defendant's motion for summary judgment (Doc. 11), plaintiff's opposition (Doc. 26), and defendant's reply. (Doc. 28).
For the reasons that follow, I grant defendant's motion for summary judgment.
Background
1. Graduate Faculty Status
BGSU faculty wishing to teach graduate-level courses and serve on graduate students’ committees master's theses and doctoral dissertations must obtain graduate faculty status. (Stafford Aff., ¶ 2). To retain that status, faculty members must, every five years, submit to a review of their credentials, including continuing scholarship activities. Id. In the Fall of 2014, nine faculty members in the School of Media, including plaintiff, sought graduate faculty status renewal. Id. at ¶ 4. Dr. Stafford reviewed the submitted materials with Graduate Coordinator Sung-Yeon Park, Ph.D., who initially reviewed the submissions on her own. Dr. Park brought materials and concerns to Dr. Stafford's attention. (Doc. 19, Depo. T. 26:19-24). After her own review, Dr. Stafford sent her recommendations to grant or deny graduate faculty status renewal to the Graduate College's administration. Id. at ¶ 4.
Dr. Stafford recommended non-renewal of such status as to Dr. Skinner and two white female faculty members, Professors Dr. Kathy Bradshaw and Terry Rentner. Dr. Stafford based her decision on their failure to show evidence of sufficient scholarship activities within the preceding five years. Id. at ¶ 5.
Dr. Rentner told Dr. Stafford that the standards for submissions for graduate faculty status had not formally been approved. Id. Dr. Alex Goberman, Associate Dean of the Graduate College, asked Dr. Stafford to apply the appropriate standards and re-review Dr. Skinner's, Dr. Bradshaw's and Dr. Rentner's submissions. Id.
The second review resulted in the same outcome: recommendation from Dr. Stafford on December 30, 2014, to deny renewal of status as to all three faculty members. (Doc. 18, Exh. 9, PageID 492). The Graduate College agreed with Dr. Stafford's recommendations regarding Drs. Skinner and Bradshaw; it renewed Dr. Rentner's graduate faculty status. (Stafford Aff., ¶ 5).
Dr. Stafford told plaintiff that others with graduate faculty status would replace him on the committees for two graduate students. (Doc. 18, Depo. T. 64:6-23, PageID 433). Plaintiff recollects the following exchange with Dr. Stafford:
A . -- I said: [w]ell, that's totally unfair. You know, I've been working with these guys for years.
Q . Then you went above her –
A . No, I didn't. I said to her: [w]ell, what are the avenues. And she said: [w]ell, there's no other avenue. And I said: [w]ell, then I'll have to file a grievance.
Id. at 82:17-83:1
Plaintiff sent Associate Dean Goberman his CV, Dr. Stafford's review, and a Request for Regular/Provisional Appointment to Graduate Faculty Status. (Doc. 18, Exh. 10, PageID 492). In January 2015, Associate Dean Goberman reviewed those materials; he independently determined that plaintiff did not meet the standards for maintaining graduate faculty status. Id.
During review of plaintiff's and Dr. Rentner's CVs, Dr. Park uncovered apparent inaccuracies. These included incorrect authorship order, incorrect identification of articles as having been peer-reviewed, inclusion of manuscripts that had been rejected for publications, and mis-categorization of work. (Stafford Aff., ¶ 7). Concerned, Dr. Stafford referred the matters to Dean Raymond Craig of the College of Arts and Sciences. Id. at ¶ 8. On February 13, 2015, Dean Craig and the Arts and Sciences Council Subcommittee decided that no further action as to plaintiff's CV was warranted. (Doc. 19, Exh. B, PageID 637).
After plaintiff protested to the Graduate College, Associate Dean Goberman granted plaintiff ad hoc graduate faculty status on March 11, 2015. This enabled plaintiff to continue serving on committees for his two graduate students. (Doc. 18, Depo. T. 66:4-8, PageID 434; Doc 18-1, Exh. 12, PageID 494).
2. Lockout From Learning Management System
Bowling Green State University uses an online learning management system, Canvas, for faculty and student interactions and communications. Canvas enables syllabus and assignment posting, testing, and grade recording. (Stafford Aff., ¶ 10). BGSU faculty had to post final student grades by Wednesday, December 23, 2015. (Doc. 18, Depo. T. 95:7-8, Page ID 441). On Monday, December 21st, plaintiff submitted grades for two of his three undergraduate courses. Id. at 97:2-6.
That evening plaintiff found that he was unable to access the Canvas platform. Id. at 97:11-14. He emailed BGSU's IT specialists and, with their help, regained access to the platform. Id. at 97:15-21. The same problem recurred the next morning. IT personnel could not help plaintiff again and vaguely observed that it was an issue between plaintiff and Director Stafford. Id. at 99:6-7.
With Dr. Stafford already on vacation, plaintiff approached Associate Deans Dale Klopfer and Ted Rippey about the problem. He regained access to the system only to lose it later that day. Id. at 99:17-20. He then found out that Dr. Stafford had instructed IT to freeze him out of his courses on Canvas. Id. at 101:13-18.
Dr. Stafford claims she acted in response to several student complaints about plaintiff's courses. (Stafford Aff., ¶ 11). She did not intend to keep plaintiff from accessing Canvas; her goal was to investigate the students’ concerns. She acted to ensure that the course materials did not disappear after the semester ended. (Doc. 20, Depo. T. 85:15-18, Page ID 728).
Several days after the December 23rd deadline, plaintiff was able to submit his remaining grades. Id. at 107:21-23. The College did not reprimand him or institute any sanction for the delay. Id. at 108:14-18.
3. Merit Pay
The BGSU faculty may apply annually for additional merit-based pay. To qualify for an increase, the applicant must show meritorious activity throughout the previous year. (Doc. 18, Depo. T. 39:11-24). The Merit Committee, made up of School of Media faculty members, recommends a merit score to the Director, who recommends a separate score. (Doc. 20, Depo. T. 103:15-22). Both recommendations go to the Dean for determination. Id.
In 2015, plaintiff attempted to apply for merit pay but did not submit his application before the deadline. (Doc. 18, Depo. T. 44:7-13).
In 2016, plaintiff timely filed his merit pay application. Id. at 13-14. Plaintiff believes that Dr. Stafford revised the Committee's recommended score downward and provided an even lower score as her own recommendation. Id. at 48:6-12. Plaintiff contested Dr. Stafford's score in a letter to Dr. Stafford and the Dean. Id. at 48:6; 52:18-53:2. He ultimately received a merit pay increase for 2016 but believes it should have been higher. Id. at 55:4; 54:14-15. He is not aware of the percentage increase he received in 2016, Id. at 55:5-12, nor does he know if his letter to the Dean resulted in an increased merit score. Id. at 54:20-55:2.
4. EEOC and Office of Equity and Diversity Complaints
On April 7, 2016 plaintiff signed a Charge of Discrimination with the EEOC against BGSU. (Doc. 11-3, PageID 80). The EEOC received the charge on April 20th. Id.
At some point before then, plaintiff had gone to BGSU's Office of Equity and Diversity to discuss allegations of racial discrimination. But he did not file a complaint. The University claims that this occurred in January, 2016. (Doc. 11, PageID 71). The plaintiff claims this meeting occurred sometime before December 15, 2015, but after the investigation into his CV. (Doc. 5, ¶ 25, PageID 37). Neither party points to anything of record that would support the timing of plaintiff's visit to the Office of Equity and Diversity. Standard
Summary judgment is appropriate under Fed. R. Civ. P. 56 if the moving party shows that there are no genuine disputes of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party that does not have the burden of proof at trial bears the initial burden of production to submit affirmative evidence that negates an essential element of the nonmoving party's claim, or to demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. Id. at 331, 106 S.Ct. 2548 (J. White, concurring).
If the moving party meets its initial burden, the nonmoving party must show some competent evidence of a genuine dispute as to a material fact in order to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). I view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In addition, I draw all reasonable inferences in favor of the nonmoving party, Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018), and accept the evidence of the nonmoving party as true. Eastman Kodak Co. v. Image Tech. Serv., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992).
Discussion
1. Untimely Charge With EEOC
Under Title VII, 42 U.S.C. § 2000e-5(e)(1), plaintiff had to file his EEOC charge within 180 days of the defendant's discriminatory acts. However, in "deferral states," states with fair employment agencies, claimants must file charges with the state agency before pursuing their claims with the EEOC. § 2000e-5(c). In deferral states, all complaints must be filed with the EEOC within 300 days after the act of discrimination or within thirty days after receiving notice that the state has terminated its proceedings. Id. Ohio is a "deferral state," requiring that a complaint be filed with the EEOC within 300 days after the allegedly unlawful act. See Gould v. Case Western Reserve University, 369 F.Supp.2d 915 (N.D. Ohio, 2005) (Hemann, M.J.).
Plaintiff filed his EEOC charge as to the CV inquiry and revocation of graduate faculty status on April 20, 2016. The alleged discriminatory actions must have occurred within 300 days prior to that date – June 25, 2015.
Defendant claims plaintiff failed to meet this deadline respecting the December 2014 revocation of graduate faculty status and the inquiry into the accuracy of his CV in February 2015, both of which resulted in no adverse action.
Plaintiff seeks to overcome the time barred claims via the "continuing violation" theory, where the unlawful behavior is deemed ongoing. (Doc. 26, PageID 997). Plaintiff cannot find solace in this theory. Overruling prior case law, the Supreme Court determined that:
[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleged that act. The charge, therefore, must be filed within the 180-or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of the occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory
and charges addressing those acts are themselves timely filed.
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
In his opposing motion, plaintiff states, without support in the record, that he visited the EEOC in December 2014 where he provided written information, and that he visited the EEOC again in the Fall of 2015 to report his charge of discrimination. (Doc. 26, PageID 999).
Plaintiff appears to argue, that I should find that the earlier visit to the EEOC constituted a timely filing and that subsequent amendments to those earlier charges relate back to the date of original submission, as 29 C.F.R. § 1601.12(b) allows. Id. If plaintiff were correct, he could rebut defendant's time-bar contention as to the allegedly unlawful acts in December 2014 and February 2015 on the basis that he met Ohio's 300-day limitations period.
While I must accept the nonmoving party's evidence as true for purposes of summary judgment, I need not accept as true the unsupported assertions the plaintiff makes in his opposition. The written record does not support or create a genuine issue of fact as to plaintiff's claim that he filed timely discrimination charges.
Consequently, plaintiff cannot prevail on his claims of race discrimination vis-a-vis non-renewal of graduate faculty status and the inquiry into the accuracy of his CV. I grant defendant's motion for summary judgment as to those claims.
2. Retaliation
To prevail on a retaliation claim, plaintiff must establish that a retaliatory motive played a part in an adverse employment decision. To establish a prima facie case of retaliation, the plaintiff must show: 1) he engaged in protected activity; 2) the employer knew of plaintiff's protected activity; 3) the employer subsequently took materially adverse action against the plaintiff; and 4) there was a causal connection between the protected activity and the materially adverse action. Lindsay v. Yates, 578 F.3d 407, 418 (6th Cir. 2009).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Then, plaintiff must demonstrate "that the proffered reason was not the true reason for the employment decision," but merely a pretext. Texas Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
A. Lockout From Canvas as Retaliatory Action
Plaintiff claims that he filed complaints with the EEOC and BGSU's Office of Equity and Diversity that "the false accusations regarding his CV were as a direct result of his race," and that he subsequently lost access to the Canvas platform for his courses in December 2015. Doc. 5, ¶ 25, PageID 37. I note again that plaintiff does not provide evidence of specific dates for his visits to the EEOC or the Office of Equity and Diversity, only bare assertions in his opposing motion.
There is nothing in the record showing plaintiff filed anything with the EEOC until April 2016. Further, the only information regarding the Office of Equity and Diversity comes from the plaintiff, who fails to provide any details as to the timing, purpose, or content of his visit. Rather, plaintiff's deposition testimony supports the conclusion that he never made a race-based complaint to that office.
Moreover, and even more importantly, assuming that he had alleged racial animus on Dr. Stafford's part, he has presented no evidence that, before the lockout, she knew or was aware of such allegations. No awareness; no retaliatory animus or claim. See, e.g., McQueen v. Barr , 782 Fed.Appx. 459, 465–66 (6th Cir. 2019).
Plaintiff relies on the temporal proximity between his complaint of discrimination and Dr. Stafford's allegedly retaliatory lockout to show that somehow, she knew of those "complaints." See Doc. 26, PageID 1001 ("Following Dr. Skinner's report to the Office of Equity and Diversity at BGSU and his meeting at the EEOC, Dr. Skinner was locked out of Canvas.").
Such speculation is no substitute for evidence or proof as to the essential element of knowledge on Dr. Stafford's part that plaintiff had attributed racial animus to her.
To be sure, were there is such evidence, it need not relate to a filed charge of discrimination: "[t]he lack of a pending formal charge before the EEOC or some other body does not necessarily defeat plaintiff's claim" of retaliation. Croushorn v. Board of Trustees of University of Tennessee , 518 F.Supp. 9, *22 (M.D. Tenn 1980). Anticipating a possible complaint is enough: "[i]f an employer learns, ..., that an employee intends to file a charge and [retaliates against] the employee for that reason, ..., it is obvious that the employer was motivated by a desire to retaliate ..." Id.
The question now is whether plaintiff's threat to file a grievance suffices to establish that Dr. Stafford apprehended he might allege racial discrimination and was motivated to retaliate by questioning plaintiff's CV and locking him out of Canvas. No rational jury could find that it is. This is so because plaintiff does not contend that he ever explicitly told Dr. Stafford that his grievance would allege racial bias. Nor does the record support any such apprehension on her part. Rather, when Dr. Stafford informed plaintiff that he would no longer be on the graduate student committees, he claimed that it was unfair because he had been working with those two students for so long.
Because plaintiff does not provide even a mere scintilla of evidence that Dr. Stafford knew, or even suspected he had complained, or intended to complain, about racial animus, he cannot show a prima facie case of retaliation as to the CV inquiry or the lockout.
B. Lower Merit Score Recommendations as Retaliatory Action
Finally, plaintiff alleges that Dr. Stafford retaliated by recommending a lesser merit-based score to the Dean. Defendant correctly contends that plaintiff did not include this claim in his EEOC complaint. Because that is so, plaintiff failed to exhaust his administrative remedies before filing his lawsuit. It is "firmly established that a Title VII plaintiff must, as a prerequisite to suit, (1) file a timely charge of employment discrimination with the EEOC, and (2) receive and act upon the Commission's statutory notice of the right to sue." Omabele v. Henry Ford Health Systems , 2015 WL 5439237, *9 (quoting Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 873 (6th Cir. 1984) ).
A plaintiff's federal court complaint may, however, include a claim not presented in an EEOC charge if the claim is "reasonably expected to grow out of the charge of discrimination." Id. (quoting Ang v. Procter & Gamble Co., 932 F.2d 540, 545 (6th Cir. 1991)) (overruled on other grounds, Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ). A retaliation claim based on conduct that allegedly occurred before the filing of the EEOC charge does not "grow" out of the charge. Id. at 547.
Plaintiff's ability to use this exception to the exhaustion requirement fails for want of proof that Dr. Stafford was aware of the complaint or apprehended its possible filing. Thus, as with the claim of retaliatory lockout, plaintiff cannot make out a prima facie claim of unlawful retaliatory motive on Dr. Stafford's part when she made her merit-pay score recommendation.
Conclusion
Plaintiff's claims of discrimination are time-barred. His claims based on retaliation fail for want of proof that Dr. Stafford knew or even apprehended that he had alleged racial animus with the University or had, or intended to, file an EEOC complaint.
It is, therefore, hereby
ORDERED THAT defendant's motion to for summary judgment (Doc. 11) be, and the same hereby is granted.
So ordered.