Ceglia v. Youngstown State Univ.

[Cite as Ceglia v. Youngstown State Univ., 2015-Ohio-2125.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Nickola Ceglia, :

Plaintiff-Appellant, :
No. 14AP-864
v. : (Ct. of Cl. No. 2013-00454)

Youngstown State University, : (ACCELERATED CALENDAR)

Defendant-Appellee. :

D E C I S I O N
NUNC PRO TUNC1

Rendered on September 1, 2015

Harrington, Hoppe & Mitchell, Ltd., Patrick K. Wilson, and
Matthew M. Ries, for appellant.

Michael DeWine, Attorney General, Randall W. Knutti, and
Lindsey M. Grant, for appellee.

APPEAL from the Court of Claims of Ohio

SADLER, J.
{¶ 1} Plaintiff-appellant, Nickola Ceglia, appeals from a judgment of the Court of
Claims of Ohio in favor of defendant-appellee, Youngstown State University
("University"). For the reasons that follow, we reverse the judgment in part and affirm in
part.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is a licensed social worker who received his Master of Social Work
("MSW") in 2006. Appellant began teaching social work as a part-time instructor with

1 This decision replaces, nunc pro tunc, the original decision released June 2, 2015, and is effective as of that

date. This decision changes the word "appellant" to "appellee" in the last line of paragraph 49 to correct a
clerical error.
No. 14AP-864 2

the University in 1982. In 2006, appellant was diagnosed with Multiple Sclerosis and
Parkinson's disease, and there is no dispute that the University was aware of appellant's
medical diagnosis. At appellant's request, the University had restricted appellant's class
size to 30 students in order to accommodate his medical conditions. During his lengthy
tenure as a part-time instructor with the University, appellant consistently received
favorable performance reviews and had never been disciplined.
{¶ 3} In November 2012, the University posted an opening for a full-time position
as an instructor in the Department of Social Work.2 The newly-created position was to
originate out of the University's Lakeland Community College location, and it was
designed to mirror a position currently held by instructor Karla Wyant at the Lorain
Community College location. The starting salary for the new position was $40,000 per
year as opposed to the $9,600 salary available to a part-time instructor.
{¶ 4} At the time of the posting, appellant was 58 years old. The posting
identified the following two minimum qualifications for the position: (1) five years post-
MSW work experience, and (2) demonstrated successful teaching experience at the
Bachelor of Social Work ("BSW") and MSW levels. Additional "desired" qualifications
included: (1) diverse social work experience with a range of client types and practice
settings, (2) supervisory experience, (3) prior experience serving as a social work field
instructor, and (4) demonstrated commitment to the social work profession and social
work education. Appellant timely submitted his application for the position.
{¶ 5} The University established a search committee, chaired by Dr. Dennis
Morawski, for the purpose of screening applicants for the position, conducting interviews,
and selecting a new instructor. Other members of the committee included Dr. Shirley
Keller, Dr. Melody Hyppolite, and Wyant. Dean Joseph L. Mosca had final signature
authority over the committee's hiring decision. The committee identified six candidates
who met the qualifications for the position, including appellant. The committee decided
to interview the top four candidates for the position, but appellant was not among them.
When one of the four selected candidates declined to interview, the committee decided to
interview only three candidates.

2 The term "full-time position" is used to refer to a 24-hour-per-week position with benefits.
No. 14AP-864 3

{¶ 6} On April 3, 2013, appellant asked Dr. Morawski if the committee had
chosen to interview him. According to appellant, Dr. Morawski told him that the
committee focused on the "mid-career" applicants and that he would not receive an
interview for the position. (Appellant's affidavit, ¶ 23.) Following the interview process,
the University offered the position to Michael Madry. Madry is a licensed social worker in
his thirties who had received his masters in 2004 and had been teaching social work for
three years. Madry declined the offer.
{¶ 7} The University then offered the position to Tami Holcomb-Hathy, a 44-year
old social worker who received her MSW in 2002. There is no dispute that when the
University posted the position, Holcomb-Hathy had no classroom teaching experience.
When the University interviewed Holcomb-Hathy for the position, she was six weeks into
her first semester as a part-time instructor at the University. Holcomb-Hathy accepted
the offer.
{¶ 8} In early May 2013, appellant asked Dr. Morawski "about the position being
given to a much younger candidate." (Appellant's affidavit, ¶ 24.) According to appellant,
Dr. Morawski reiterated that the committee focused on "mid-career" candidates, and he
added that the committee did not want to hire "someone who had been around for a long
time." (Appellant's affidavit, ¶ 24.) Appellant subsequently refused Dr. Morawski's offer
to return to the University as a part-time instructor.
{¶ 9} On August 5, 2013, appellant filed a complaint alleging that the University
discriminated against him on the basis of his age, disability, and perceived disability in
violation of R.C. 4112.02. On July 28, 2014, the University filed a motion for summary
judgment arguing that the only reasonable conclusion to be drawn from the evidence was
that the members of the committee held an honest belief in their proffered
nondiscriminatory reasons for denying appellant the position. On October 2, 2014, the
Court of Claims granted the motion. The court held that even though appellant had
satisfied his prima facie case for age and disability discrimination, the only reasonable
conclusion to be drawn from the evidence produced by the University was that each of the
members of the search committee honestly believed in their proffered nondiscriminatory
reasons for denying appellant the position.
No. 14AP-864 4

II. ASSIGNMENT OF ERROR
{¶ 10} Appellant assigns the following as error:
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON MR. CEGLIA'S AGE AND DISABILITY
DISCRIMINATION CLAIMS BECAUSE THE EVIDENCE
DEMONSTRATES THAT [the University's] PROFFERED
REASONS FOR NOT HIRING HIM ARE PRETEXTS FOR
UNLAWFUL DISCRIMINATION.

III. STANDARD OF REVIEW
{¶ 11} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 12} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once
the moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial. Id. at 293. Because summary judgment is a
procedural device to terminate litigation, courts should award it cautiously after resolving
all doubts in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
358-59 (1992).
{¶ 13} Appellate review of summary judgment is de novo. Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935. When an appellate
court reviews a trial court's disposition of a summary judgment motion, it applies the
same standard as the trial court and conducts an independent review, without deference
No. 14AP-864 5

to the trial court's determination. Id., citing Maust v. Bank One Columbus, N.A., 83 Ohio
App.3d 103, 107 (10th Dist.1992). We must affirm the trial court's judgment if any of the
grounds raised by the movant in the trial court are found to support it, even if the trial
court failed to consider those grounds. Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-
559, 2013-Ohio-4335, ¶ 7, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th
Dist.1995).
IV. LEGAL ANALYSIS
A. Age Discrimination
{¶ 14} R.C. 4112.02(A) states in part: "It shall be an unlawful discriminatory
practice * * * [f]or any employer, because of the * * * age * * * of any person, * * * to refuse
to hire, or otherwise to discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment, or any matter directly or indirectly related
to employment." In general, " 'Ohio courts examine state employment discrimination
claims under federal case law interpreting Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e.' " Morrissette v. DFS Servs., L.L.C., 10th Dist. No. 12AP-611, 2013-Ohio-
4336, ¶ 14, quoting Knepper v. Ohio State Univ., 10th Dist. No. 10AP-1155, 2011-Ohio-
6054, ¶ 10, citing Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723.
{¶ 15} "To prevail in an employment discrimination case, a plaintiff must prove
discriminatory intent" and may establish such intent through either direct or indirect
methods of proof. Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th
Dist.1998), citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583 (1996). Absent
direct evidence of age discrimination, a plaintiff may indirectly establish discriminatory
intent using the analysis promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), as adopted by the Supreme Court of Ohio in Barker v. Scovill, Inc., 6 Ohio St.3d
146 (1983), and modified in Coryell.
1. Direct Evidence
{¶ 16} Direct evidence is evidence that, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer's actions. Conley
v. U.S. Bank Natl. Assn., 211 Fed.Appx. 402, 405 (6th Cir.2006), citing Wexler v. White's
Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003). If that evidence is credible,
"discriminatory animus may be at least part of an employer's motive, and in the absence
No. 14AP-864 6

of an alternative, non-discriminatory explanation for that evidence, there exists a genuine
issue of material fact suitable for submission to the jury without further analysis by the
court." Norbuta v. Loctite Corp., 1 Fed.Appx. 305, 312 (6th Cir.2001). See also Blalock v.
Metals Trades, Inc., 775 F.2d 703, 707-12 (6th Cir.1985). If a plaintiff can produce direct
evidence of a discriminatory animus, " 'the burden [of production and persuasion] shifts
to the employer to prove by a preponderance of the evidence that it would have made the
same decision absent the impermissible motive.' " Skelton v. Sara Lee Corp., 249
Fed.Appx. 450, 454 (6th Cir.2007), quoting Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th
Cir.2005).
{¶ 17} In determining whether the employer's statements constitute direct
evidence of age discrimination, the Sixth Circuit cases consider the following four factors:
(1) whether the statements were made by a decision-maker or
by an agent within the scope of his employment; (2) whether
the statements were related to the decision-making process;
(3) whether the statements were more than merely vague,
ambiguous or isolated remarks; and (4) whether they were
made proximate in time to the act of termination.

Krupnic v. Arcadis of U.S., Inc., S.D. Ohio No. 2:12-CV-273 (Mar. 13, 2014), citing Skelton
at 455, citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 477-78 (6th Cir.2002) (internal
citation omitted). See also Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th
Cir.1994).
{¶ 18} In Tessmer v. Nationwide Life Ins. Co., 10th Dist. No. 98AP-1278 (Sept. 30,
1999), this court stated that "[d]iscriminatory comments directed at or relating to the
plaintiff have not been found to be vague, ambiguous or isolated and have been found to
be sufficient, direct evidence in a discrimination case." Id. Appellant's affidavit provides,
in relevant part, as follows:
23. On or about April 3, 2013, I inquired with Dr. Morawski
as to my interview status for the position, and Dr. Morawski
responded that the hiring committee was focused on the
"mid-career" candidates. At this point, I realized that I was
not being considered for the position since I was a 58-year
old, late-career professional who had been working in the field
of social work for more than 30 years.
No. 14AP-864 7

24. In early May 2013, I was in the social work department
when I again inquired with Dr. Morawski about the position
being given to a much younger candidate, and he reiterated
that the hiring committee was focused on a "mid-career
candidate" and informed me that the hiring committee "did
not want someone who had been around for a long time."

{¶ 19} There is no dispute that the remarks appellant attributes to Dr. Morawski
are those of a decision-maker as Dr. Morawski was the chairman of the search committee.
There is also no question that the remarks are related to the decision-making process
inasmuch as Dr. Morawski made the remark about "mid-career" candidates both in
response to appellant's question about his "interview status" and in response to his
subsequent query "about the position being given to a much younger candidate."
(Appellant's affidavit, ¶ 23, 24.) He made the remark about candidates who had not "been
around a long time" in direct response to the later query. (Appellant's affidavit, ¶ 24.) It
is also clear that Dr. Morawski made each of the remarks at or about the time the
University made the hiring decision. Dr. Morawski does not deny telling appellant that
the committee was focused on "mid-career" candidates and his deposition testimony
suggests that he understands that the term "mid-career candidate" may be used in
reference to age.3
{¶ 20} Although the Court of Claims acknowledged that the remarks attributed to
Dr. Morawski permit a factfinder to reasonably infer that the committee denied appellant
the position because of his age, the Court of Claims stated that the remarks do not compel
such an inference. As an example, the Court of Claims concluded that it is reasonable to
infer from Dr. Morawski's comment about candidates who have not "been around a long
time" that the committee was looking for candidates from outside the University.
{¶ 21} Dr. Morawski explained his remarks to appellant as follows:
During the spring of 2013, [appellant] did ask me about the
status of the search and how it was progressing. I informed

3Inhis deposition, Dr. Morawski testified on cross-examination as follows:
Q: Did you ever ask Mr. Ceglia about being interviewed for the instructor position?
A: No I don't believe he was ever asked.
Q: Was there a push to look for a mid-career candidate for this instructor position?
A: No. There was no mention of age, or anything like that.
(Emphasis added.) (Dr. Morawski deposition, 92.) Dr. Morawski later explained that he had used the term
"mid-career" candidates in the context of qualifications and experience. (Dr. Morawski deposition, 129-31.)
No. 14AP-864 8

him that we had received applications from many highly
qualified mid-career candidates. I used the phrase mid-career
to emphasize the fact that the candidates that we were
considering all had substantial social work experience. I did
not use mid-career in a context to denote age, but rather to
convey that the other applicants had qualifications similar to
his, and I was including [appellant] within the umbrella of
mid-career candidates. I never told [appellant] that the
search committee "did not want someone who had been
around for a long time" and certainly no member of the search
committee made any statements of that nature during any of
our meetings or discussions.

(Dr. Morawski affidavit, ¶ 17.)
{¶ 22} Dr. Morawski acknowledges that he made the remark about "mid-career"
candidates in response to appellant's question about the ongoing search. According to Dr.
Morawski, he considered all of the candidates, including appellant, "mid-career"
candidates, even though appellant is substantially older. However, Dr. Morawski does not
expressly acknowledge making the same statement to appellant after the University had
hired Holcomb-Hathy. If the trier of fact were to accept appellant's affidavit as true, given
the context in which Dr. Morawski made the second statement about "mid-career"
candidates, it is not reasonable to conclude that Dr. Morawski believed appellant fit that
description. Additionally, given the fact that appellant couched his query to Dr. Morawski
in terms of age, it is certainly reasonable to conclude that Dr. Morawski was speaking of
younger candidates when he remarked that the committee was not looking for candidates
who had "been around for a long time." (Appellant's affidavit, ¶ 24.)
{¶ 23} Nevertheless, "[c]omments or remarks that 'require a factfinder to draw
further inferences to support a finding of discriminatory animus' do not constitute direct
evidence." Krupnic, quoting Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 708 (6th
Cir.2008). But see Kohmescher v. Kroger Co., 61 Ohio St.3d 501 (1991) (evidence that
plaintiff's supervisor stated that he recommended the employer eliminate the plaintiff's
position because he was "eligible for (the) retirement window," constitutes direct evidence
of age discrimination); La Pointe v. United Autoworkers Local 600, 8 F.3d 376, 380 (6th
Cir.1993) (supervisor's ageist remarks about "oldtimers" constitute direct evidence of age
discrimination even though the comments were not specifically about or directed to the
No. 14AP-864 9

plaintiff). Accordingly, to the extent that an age bias arises only inferentially from Dr.
Morawski's remarks, the Court of Claims court did not err when it concluded that the
remarks are not direct evidence of age discrimination.
2. Circumstantial Evidence of Discrimination
{¶ 24} "In the absence of direct evidence of discrimination, [the employee] may
meet his burden by demonstrating inferentially that he was a victim of intentional
discrimination." Grant v. Harcourt Brace & Co., 12 F.Supp.2d 748, 755 (S.D.Ohio 1998),
citing McDonnell Douglas at 802; Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 256 (1981). To establish a prima facie case of intentional discrimination based on
failure to hire or promote, the employee must establish each of the following elements:
(1) he is a member of the protected class, (2) he was qualified and applied for the position,
(3) despite his qualifications, he was denied the position, and (4) the employer filled the
position with someone who is younger. Morrissette at ¶ 36. See also McDonnell Douglas
at 802 (setting forth criteria for plaintiff who brings an illegal discharge claim under Title
VII); Burdine at 256 (applying the McDonnell Douglas factors to discriminatory failure to
promote under Title VII).
{¶ 25} In this case, there is no dispute appellant is substantially older than the
other three candidates interviewed by the committee, he met the qualifications for the
new position, he was denied an interview for the position, and the University filled the
position with a younger person. Thus, it is clear that appellant met his initial burden of
proof under the McDonnell Douglas standard.
3. The Proffered Reasons for the Decision
{¶ 26} Once the employee satisfies his prima facie case for age discrimination
under the McDonnell Douglas standard, the burden shifts to the employer "to rebut the
presumption of discrimination by producing evidence that the plaintiff was rejected, or
someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine at 254.
Based on the affidavits of the committee members and other evidence submitted by the
University in support of the motion for summary judgment, the University has identified
several nondiscriminatory reasons for denying him the opportunity to interview for the
position. First, Wyant and Dr. Keller alleged that appellant had crossed boundaries with
students by taking them out to a restaurant and socializing with them outside of the
No. 14AP-864 10

classroom setting. Second, Wyant had reportedly fielded complaints from some of
appellant's former students that appellant had permitted students to forgo a mandatory
research paper. Third, Dr. Keller reportedly heard students complain that appellant gave
out "favorable grades" and that he dismissed classes early. (Dr. Morawski affidavit, ¶ 13.)
Fourth, both Wyant and Dr. Hyppolite had heard that appellant had cancelled classes.
Finally, one of appellant's references reportedly told Dr. Hyppolite that appellant "is not
the best at paperwork." (Dr. Morawski deposition, ¶ 8.)
{¶ 27} Under the Age Discrimination in Employment Act, " '[a] plaintiff will
usually demonstrate pretext by showing that the employer's stated reason for the adverse
employment action either (1) has no basis in fact, (2) was not the actual reason, or (3) is
insufficient to explain the employer's action.' " Yurasek v. Crossmark, Inc., 54 F.Supp.3d
876 (S.D.Ohio 2014), quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th
Cir.2008). "These three categories serve as a 'convenient way' to marshal evidence on the
ultimate inquiry of whether the employer took adverse action against the employee 'for
the stated reason or not.' " Reed v. Am. Cellular, Inc., 39 F.Supp.3d 951
(M.D.Tenn.2014), citing Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir.2012),
quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009). The question at the
summary judgment stage is " 'whether the plaintiff has produced evidence from which a
jury could reasonably doubt the employer's explanation.' " Id., citing Chen at 420. To
overcome summary judgment, a plaintiff need only produce enough evidence to rebut, but
not disprove, defendant's proffered reasons for the adverse employment action. Id.
Carter v. Toyota Tsusho Am., Inc., 529 Fed.Appx. 601, 609 (6th Cir.2013), quoting
Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir.2012). "[T]he trier of fact may . . .
consider the evidence establishing the plaintiff's prima facie case and inferences properly
drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual."
(Internal quotation marks omitted.) Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000).
{¶ 28} Appellant argues that he produced evidence in opposition to the
University's motion for summary judgment which raises a reasonable doubt as to the
factual basis and/or sufficiency of many of the proffered reasons for denying him the
position. We agree.
No. 14AP-864 11

{¶ 29} Appellant's affidavit provides, in relevant part, as follows:
13. * * * On a few occasions between 2010 and 2012, Dr.
Dennis Morawski held meetings and cautioned the social
work faculty about giving easy grades to students. After the
first meeting, I asked Dr. Morawski if I was one of the
instructors whom he believed was too lenient with grades,
and Dr. Morawski responded in the negative and informed
me that he had no issues with my grades.

14. Paperwork is not an issue for me at work. I have never
been disciplined at [the University] or at any other job for
paperwork-related issues. Nobody at [the University] has
ever reprimanded me or otherwise discussed paperwork
issues with me since I began teaching there in 1982.

15. I do not and never have socialized inappropriately with
my students outside of class. At the end of each semester, I do
take my class out for pizza to celebrate the end of the semester
and to discuss the curriculum. This gathering is inclusive of
the entire class and is typically at Inner Circle Pizza, which is
on [the University] campus and directly next to the building
where I taught. * * * Dr. Morawski and Dr. Shirley Keller as
well as other faculty have joined me for some of these
gatherings. Nobody from [the University] has ever raised an
issue with me about having pizza with students at the end of
the semester.

16. I also do not have a habit of letting class out early or
cancelling class. I very rarely cancel class and only in
exigent circumstances. While I am sure I have let class out a
few minutes early in my 14 years of teaching, I have kept
classes late as well.

***

19. In Fall 2009, Dr. Morawski asked me to teach his
Research Methodologies class for Spring 2010 at the Lorain,
Ohio campus. I agreed, and Dr. Morawski provided me with a
syllabus and other course materials. * * * The class required
that the students complete a research paper at the end of the
year, so Dr. Morawski gave me a good example of a research
paper from his previous class. A true and accurate copy of the
example research paper Dr. Morawski gave me is attached
hereto as Exhibit 1-4. I required the students to research a
topic and complete a research paper based on the example
No. 14AP-864 12

paper that Dr. Morawski provided. As evidence that I never
cut the research paper assignment from the course, attached
hereto as Exhibits 1-5 and 1-6 are two examples of those
research papers that I kept from the course.

(Emphasis added.)
{¶ 30} At a minimum, evidence that two of the committee members attended some
of the events that the committee now cites as a boundary violation raises a genuine factual
issue regarding the sufficiency of this proffered justification for denying appellant an
interview for the position. Moreover, Dr. Keller testified that the committee did not
discuss boundary issues during any of their meetings.
{¶ 31} Dr. Hyppolite testified that she thought that it was Dr. Keller who raised the
issue of cancelled classes at the committee meeting. However, Dr. Keller testified that she
had no knowledge of any allegation that appellant had cancelled classes. Dr. Wyant
testified that she had heard the allegation from her students and other faculty, but she
could not recall whether she had raised the issue with the committee.
{¶ 32} Additionally, in support of his averment that he did not permit students to
forgo a mandatory research paper, appellant produced copies of two research papers
purportedly submitted to him by students in the class. Dr. Morawski testified that he
asked appellant to cover the class only after he could not find anyone in the area willing to
teach the course. He acknowledged that he had difficulty getting instructors to cover the
class because "[i]t's typically a class that most practicing social workers don't teach." (Dr.
Morawski deposition, 61.) Dr. Morawski recalled that Wyant reported that her students
had complained about the class research paper but that he had never spoken to appellant
about the issue.
{¶ 33} In concluding that there was no genuine factual issue regarding the
legitimacy of the proffered reasons for denying appellant the position, the Court of Claims
stated:
Wyant's personal experience with plaintiff's former students
being inadequately prepared to perform research, coupled
with plaintiff's own reference stating that plaintiff was not the
best at paperwork, do not tend to show that defendant's
stated reasons for its actions toward plaintiff were false, and
that discrimination was the real reason. The only reasonable
No. 14AP-864 13

conclusion is that defendant's reasons for not selecting
plaintiff were not pretextual.

(Emphasis added.) (Oct. 7, 2014 Decision, 10.)
{¶ 34} While the Court of Claim's statement regarding the probative value of
evidence offered by the University is generally correct, the Court of Claim's conclusion
overlooks the evidence presented by appellant tending to show that many of the stated
reasons for denying him the position either had no basis in fact or were insufficient to
justify the decision. For example, appellant averred that in his numerous years of
employment as a part-time instructor with the University, he has never been reprimanded
for failing to submit "paperwork." (Appellant's affidavit, ¶ 14.) Appellant also produced
the testimony of Dean Mosca, who understood that the new full-time instructor would
spend less than 10 percent of his or her time completing administrative tasks.
{¶ 35} In addition to submitting evidence which, if believed, casts doubt as to the
factual basis and sufficiency of many of the University's proffered reasons for denying him
the position, appellant also produced evidence that his age was the true reason for
denying him the position. More particularly, the remarks appellant attributes to Dr.
Morawski, if believed, permit an inference that age was a motivating factor for the
committee. The Court of Claims failed to even mention Dr. Morawski's comments to
appellant in its discussion of pretext.
{¶ 36} In reviewing the Court of Clams' ruling on the University's motion for
summary judgment, we are required to view all evidence and reasonable inferences in a
light most favorable to appellant. Kohmescher. See also Warden v. Ohio Dept. of
Natural Resources, 10th Dist. No. 13AP-137, 2014-Ohio-35, ¶ 25. Viewing the alleged
discriminatory remarks in the light most favorable to appellant and in conjunction with
the other evidence of pretext produced by appellant, we find that while Dr. Morawski's
remarks may not constitute direct evidence of age discrimination, such comments may
provide circumstantial proof of pretext. Reeves at 148 ("a plaintiff's prima facie case,
combined with sufficient evidence to find that the employer's asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully
discriminated"). In the context of summary judgment, Dr. Morawski's remarks may be
probative of both pretext and discriminatory animus despite Dr. Morawski's explanation
No. 14AP-864 14

of a plausible nondiscriminatory meaning for his remarks. Kohmescher at ¶ 32 (summary
judgment for the employer is error where the employee presents evidence that a
supervisor recommended the employer eliminate the employee's position because he was
"eligible for (the) retirement window"). Accordingly, we find that appellant has
sufficiently raised an issue of fact as to pretext and discriminatory animus, and we hold
that the Court of Claims erred when it granted summary judgment in favor of the
University as to appellant's age discrimination claim.
4. Relative Qualifications
{¶ 37} "Relative qualifications establish triable issues of fact as to pretext where the
evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no
reasonable employer would have chosen the latter applicant over the former, or (2)
plaintiff was as qualified * * * if not better qualified than the successful applicant, and the
record contains 'other probative evidence of discrimination.' " Bartlett v. Gates, 421
Fed.Appx. 485, 490-91 (6th Cir.2010), quoting Bender v. Hecht's Dept. Stores, 455 F.3d
612, 627-28 (6th Cir.2006). See also Provenzano v. LCI Holdings, Inc., 663 F.3d 806,
815 (6th Cir.2011).
{¶ 38} The committee members proffered several reasons for preferring Holcomb-
Hathy over appellant. For example, Dean Mosca was of the opinion that Holcomb-Hathy
had more experience with agency settings, and he concluded that appellant was not a
good fit for the position. Wyant testified that Holcomb-Hathy had a "more well-rounded
resume."4 (Wyant deposition, 123.) Dr. Keller stated that Holcomb-Hathy had "more
field education experience" than appellant and that she was "organized and had been a
supervisor and had been effective." (Keller deposition, 127.) Dr. Keller concluded that
Holcomb-Hathy was a "better fit" for the position. (Keller deposition, 127.)
{¶ 39} The Court of Claims concluded that the University "presented evidence that
Holcomb-Hathy met the minimum qualifications for the position." (Oct. 7, 2014
Decision, 9.) Although Dr. Morawski averred that each of the committee members

4In her deposition, Wyant testified as follows:
Q: Other than that, in terms of just their qualifications, why do you believe that Miss
Holcomb was more qualified than [appellant]?
A: Because I think there was more well-rounded evidence based off of the resume.
(Wyant deposition, 123.)
No. 14AP-864 15

believed that Holcomb-Hathy demonstrated successful teaching experience at the BSW or
MSW level, it is undisputed that Holcomb-Hathy had no classroom teaching experience
when she applied for the position and that she had been teaching social work at the
university for just six weeks when the University interviewed her for the position sought
by appellant. While it can be argued that the requirement of "demonstrated successful
social work teaching experience at the BSW or MSW levels" is an imprecise standard, it is
certainly reasonable to conclude from the evidence that Holcomb-Hathy did not meet this
minimum requirement for the position. (July 28, 2014 Motion for Summary Judgment,
Exhibit D.) See Kimble v. Wasylyshyn, 439 Fed.Appx. 492 (6th Cir.2011) (genuine issue
of fact existed as to pretext where minority applicant met all of the stated qualifications
and the Caucasion applicant chosen was not qualified at the time he applied for the
position). Moreover, in reviewing the relative qualifications of the candidates to
determine if there are triable issues of fact as to pretext, the question is whether the
evidence supports the conclusion that appellant was "as qualified * * * if not better
qualified" than Holcomb-Hathy. Bartlett at 491. There is no question that appellant had
many more years of demonstrated successful teaching experience at the BSW or MSW
level than any of the other applicants who were interviewed by the committee. Dr.
Morawski admitted that when the committee offered the position to Holcomb-Hathy, her
teaching had not yet been formally evaluated by the University. (Dr. Morawski
deposition, 91.)
{¶ 40} With respect to the other listed qualifications for the position, appellant's
affidavit provides, in relevant part, as follows:
9. As an LISW-S, I am licensed to perform clinical work (i.e.,
direct patient work) without supervision. Also, I am able to
supervise students and employees in the performance of such
clinical work. For a social worker who is only a Licensed
Social Worker ("LSW"), supervision is outside of his/her
scope of practice. An LSW is not licensed to perform clinical
work without supervision.

10. Throughout my career, I have developed and
coordinated field sites in multiple agencies and supervised
more than 50 students during their internships in those field
sites. I have also supervised more than 200 employees at the
agencies and hospitals where I have worked.
No. 14AP-864 16

***

12. * * * As the Executive Director of the Trumbull County
Mental Health and Recovery Board, I provided oversight for
more than 30 agencies that provided social services. In this
above mentioned position, I worked monthly with social
workers, directors, and executive directors primarily from the
Northeastern Ohio region (Lake, Cuyahoga, Lorain, Geauga,
Ashtabula, Portage, Summit, and Trumbull Counties), but
also statewide. I am also professionally familiar with the
social work network in these counties because I have taught
social work courses for [the University] at Lakeland
Community College in Kirtland, Ohio.

(Emphasis added.)
{¶ 41} Appellant's affidavit addresses not only his own qualifications relative to the
job posting, it addresses some of the reasons proffered by the committee for preferring
Holcomb-Hathy. With regard to supervision, Dr. Keller acknowledged that LISW-S is a
social worker's credential that "shows that they have had supervisory experience, and it
shows the highest level of our profession. Also, if you are going to be supervising people
in the field with field educators, it might be something that would contribute to the job."
(Keller deposition, 133.) There is no dispute that appellant is so credentialed, but that
Holcomb-Hathy is not. Additionally, though Wyant insisted that administrative work was
a sizeable component of the new position, Dean Mosca testified that administrative duties
made up less than 10 percent of the work load. (Mosca deposition, 35.)
{¶ 42} At a minimum, the evidence produced by appellant regarding his
qualifications for the position relative to Holcomb-Hathy's creates a genuine issue of fact
whether appellant was as qualified if not better qualified for the position than Holcomb-
Hathy. Construing the evidence in appellant's favor, the University's hiring decision
appears to be based, in large part, on the individual committee member's subjective belief
that Holcomb-Hathy was a superior candidate to appellant rather than on specific
objective evidence.
{¶ 43} Nevertheless, in addition to producing evidence that he is as qualified as
Holcomb-Hathy, in order to create a triable issue of fact as to pretext, appellant is
required to produce "other probative evidence of age discrimination." Bartlett; Bender;
No. 14AP-864 17

Provenzano. In this regard, appellant relies on the discriminatory remarks allegedly
made to him by Dr. Morawski. According to appellant, the remarks were made either in
the context of explaining the progress of the search or in response to appellant's specific
inquiry as to the reason the committee offered the position to a much younger candidate.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir.1998) ("when
assessing the relevancy of an allegedly biased remark where the plaintiff presents
evidence of multiple discriminatory remarks or other evidence of pretext, we do not view
each discriminatory remark in isolation, but are mindful that the remarks buttress one
another as well as any other pretextual evidence supporting an inference of discriminatory
animus"). Dr. Morawski admits that he told appellant that the committee was focused on
"mid-career" candidates.
{¶ 44} It appears that the Court of Claims did not consider Dr. Morawski's remarks
to appellant in ruling that appellant did not produce evidence to rebut the University's
proffered reasons for preferring Holcomb-Hathy. Appellant's testimony regarding Dr.
Morawski's remarks about "mid-career" candidates and candidates who had not "been
around for a long time," if believed, constitutes "other probative evidence of pretext."
Bartlett; Bender; Provenzano. When Dr. Morawski's discriminatory remarks are
combined with the evidence produced by appellant regarding his qualifications for the
position relative to Holcomb-Hathy, a reasonable trier of fact could conclude that the
University's proffered reasons for denying him the position are merely pretextual and that
the true reason for denying him the position was his age. Accordingly, the Court of Claims
erred when it granted summary judgment in the University's favor as to appellant's claim
of age discrimination.
5. "Honest Belief" Rule
{¶ 45} The Court of Claims relied on the "honest belief" rule in holding that
appellant did not produce evidence that the proffered reasons for denying him the
position were false and that age discrimination was the true reason for the decision.
Under the "honest belief" rule, if the employer honestly, but mistakenly, believes in the
proffered reason given for the hiring decision at issue, then the employee cannot establish
the requisite pretext. Philbrick v. Holder, 583 Fed.Appx. 478, 482 (6th Cir.2014), citing
Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir.1998). The "honest belief" rule arises
No. 14AP-864 18

most frequently in cases of employee discipline, where the factual basis for the employer's
decision and the quality of the employer's investigation is an issue. See, e.g., Michael v.
Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir.2007); Parks v. UPS Supply
Chain Solutions, Inc. 6th Cir. No. 14-5609 (Apr. 17, 2015). However, the Sixth Circuit has
applied the rule in cases involving employer hiring decisions. See, e.g., Valentine v.
Remke Markets, Inc., S.D. Ohio No. 1:10-cv-922 (Sept. 13, 2012); E.E.O.C. v. AutoZone,
Inc., W.D.Tenn. No. 00-2923 (Mar. 20, 2009).
{¶ 46} The Court of Claims held that appellant's "disagreement with the facts
discussed during the committee meeting does not create a genuine issue of material fact
that would defeat summary judgment as long as [the University] 'has an honest belief in
its proffered nondiscriminatory reason.' " (Decision, 9-10, quoting Michael at 598.) As
discussed above, appellant did more than simply disagree with the University's proffered
reasons for denying him the position. Appellant supported his denials with corroborating
evidence upon which it may be reasonably inferred that many of the proffered reasons for
denying appellant the position either had no basis in fact or were insufficient to support
the decision. Appellant also produced circumstantial evidence of a discriminatory animus
based on age. Dr. Morawski's remarks to appellant and the inferences properly drawn
therefrom create a genuine factual issue whether the members of the search committee
honestly believed the proffered reasons for denying appellant the position and whether
appellant's age was the true reason for its decision.
{¶ 47} Moreover, in Valentine, the court cautioned that the legitimacy of the
articulated reason for the employment decision is subject to particularly close scrutiny
where the evaluation is subjective. Valentine, citing Burdine. The Valentine court stated
that an employer's reasons must be "clear and specific" so that the plaintiff has a full and
fair opportunity to rebut them. Id. The ultimate issue is whether the subjective criteria of
the defendant were used to disguise discriminatory action. Conner v. State Farm Mut.
Auto. Ins. Co., 273 Fed.Appx. 438, 443 (6th Cir.2008), citing Grano v. Dept. of Dev., 699
F.2d 836, 837 (6th Cir.1983).
{¶ 48} Appellant produced evidence that he was as qualified for the position if not
more qualified than Holcomb-Hathy. Though the Court of Claims impliedly
acknowledged that Dr. Morawski's statements constitute circumstantial evidence of a
No. 14AP-864 19

discriminatory animus, the Court of Claims did not discuss Dr. Morawski's remarks to
appellant in its application of the "honest belief" rule. Appellant's qualifications relative
to Holcomb-Hathy's combined with the discriminatory remarks attributed to Dr.
Morawski give rise to a genuine factual issue whether the committee's subjective reasons
for preferring Holcomb-Hathy were used to disguise a discriminatory action based on age.
Valentine; Conner. Thus, the Court of Claims erred when it held that the "honest belief"
rule shielded the University from liability, as a matter of law.
{¶ 49} For the foregoing reasons, we find that there are genuine issues of material
fact as to appellant's claim of age discrimination. Accordingly, we hold that the Court of
Claims erred when it granted summary judgment in favor of appellee as to that claim.
B. Disability Discrimination
{¶ 50} With regard to disability discrimination, R.C. 4112.02(A) makes it an
unlawful discriminatory practice for any employer, because of an employee's disability, to
refuse to hire or otherwise to discriminate against that person. Ressler v. Atty. Gen., 10th
Dist. No. 14AP-519, 2015-Ohio-777, ¶ 16. In order to establish a prima facie case of
disability discrimination, the person seeking relief must demonstrate that: (1) he was
disabled, (2) an adverse employment action was taken by an employer, at least in part,
because the individual was disabled, and (3) the person, though disabled, can safely and
substantially perform the essential functions of the job in question. Id., citing DeBolt v.
Eastman Kodak Co., 146 Ohio App.3d 474, ¶ 39 (10th Dist.2001), citing Columbus Civ.
Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571 (1998).
{¶ 51} Appellant has failed to produce any evidence upon which it may be inferred
that the University denied him the position because he suffers from Multiple Sclerosis and
Parkinson's disease. The only evidence produced by appellant in this regard is that one of
appellant's references mentioned his health issues to Dr. Hyppolite and that she repeated
that information during one of the committee meetings. However, unlike appellant's
claim of a discriminatory animus based on age, appellant presented no other evidence
upon which it could be inferred that the committee considered his disability in the
decision-making process or that appellant's disability was the true reason for denying him
the position. Consequently, there is no genuine issue of material fact that remains to be
No. 14AP-864 20

litigated and the University is entitled to judgment as a mater of law as to appellant's
disability discrimination claim.
{¶ 52} For the foregoing reasons, appellant's sole assignment of error is sustained
in part, as it relates to appellant's claim of age discrimination, but overruled in part, as it
relates to appellant's claim of disability discrimination.
V. CONCLUSION
{¶ 53} Having sustained appellant's sole assignment of error in part and overruled
appellant's assignment of error in part, we reverse the judgment of the Court of Claims of
Ohio and remand this matter for further proceedings on appellant's age discrimination
claim.
Judgment affirmed in part, reversed in part;
cause remanded with instructions.

BROWN, P.J., and TYACK, J., concur.
_________________