Grubach v. Univ. of Akron

[Cite as Grubach v. Univ. of Akron, 2020-Ohio-3467.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Paul Grubach, :

Plaintiff-Appellant, :
No. 19AP-283
v. : (Ct. of Cl. No. 2017-00750)

University of Akron, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on June 25, 2020

On brief: Daniel D. Domozick, for appellant.

On brief: Dave Yost, Attorney General, Randal W. Knutti,
and Amy S. Brown, for appellee.

APPEAL from the Court of Claims of Ohio
SADLER, P.J.
{¶ 1} Plaintiff-appellant, Paul Grubach, appeals from a judgment of the Court of
Claims of Ohio in favor of defendant-appellee, University of Akron. For the reasons that
follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In August 2014, when appellant was 61 years old, he entered appellee's
Integrated Bioscience ("IB") doctoral program with the goal of obtaining his Ph.D. in
biology. Appellant had a master's degree in biology when he entered the IB program, and
he had published works in the fields of ichthyology and ecology. Prior to entering the IB
program, appellant had corresponded with Dr. Stephen Weeks via email regarding their
mutual interest in having appellant attend the university as a doctoral candidate. Appellant
No. 19AP-283 2

had learned of Dr. Weeks' work with invertebrate ecology and appellee's IB program via the
internet. At the time appellant contacted Dr. Weeks, Dr. Weeks held the dual positions of
chairman of the Department of Biology and director of the IB program. Dr. Weeks also
holds a Ph.D. in ecology and evolutionary biology. Though appellant and Dr. Weeks
corresponded via email prior to appellant's arrival on campus, the two did not meet prior
to that time.
{¶ 3} There is no dispute in this case that the process of obtaining a Ph.D. in biology
is set out in some detail in appellee's IB Graduate Student Handbook ("IB Handbook").
According to the IB Handbook, prior to the completion of the first semester of graduate
work, the student must choose a major advisor and a Ph.D. advisory committee, typically
consisting of the major advisor and four other faculty members with diverse expertise in
areas related to the student's proposed course of study. Appellant chose Dr. Weeks to be
his major advisor because of Dr. Weeks' expertise in invertebrate ecology in general and
clam shrimp in particular. Appellant selected a Ph.D. advisory committee consisting of
Dr. Randy Mitchell, a Ph.D. in biology, Dr. Zhong-Hui Duan, a Ph.D. in applied
mathematics, Dr. Anne Wiley, a Ph.D. in zoology, ecology, evolutionary biology and
behavior, and Dr. Peter Lavrentyev, a Ph.D. in aquatic ecology.
{¶ 4} The IB Handbook sets out the requirements for obtaining a Ph.D., including
the time in which the doctoral candidate must complete certain milestones, in relevant part
as follows:
J. Doctoral Candidacy Examination
 Scope of Examination: The comprehensive written
examination shall be administered by the PhD
Advisory Committee before the beginning of the
5th semester. * * *
 Administration of the Examination
* * * There shall be only two possible outcomes of the
examination, determined by majority vote of the PhD
Advisory Committee: Pass or Fail. The Examination will
consist of two parts: a written exam that, if passed, is
followed by an oral exam. If the student fails either of the
exams, they will be given one chance to retake the entire
exam. A student cannot fail more than one exam (i.e., cannot
fail the written, pass on a second try, and then fail the oral).
No. 19AP-283 3

Failure to pass the make-up exam or failing more than one
exam results in dismissal from the program. * * *
K. Research Proposal Defense
The student will work with the major advisor to develop a
research proposal to be presented and defended to the PhD
Advisory Committee. * * * The PhD Advisory Committee shall
decide on the time of defense, which should be no later than
two months after the Comprehensive Examination. * * *
***
N. Annual Progress Reports
The degree candidate will present an annual written progress
report to the PhD Advisory Committee each Spring semester.
Unsatisfactory progress as determined by the majority of the
Committee may result in dismissal from the program. These
reports should be forwarded to the Director of the program
for inclusion of the students file.
O. Completion of Research and Defense of
Dissertation
All PhD projects must be completed and dissertation
defended within 6 years of beginning enrollment. * * *
(Emphasis added; bold sic.) (Def.'s Ex. E, attached to Nov. 27, 2018 Mot. For Summ.
Jgmt.)
{¶ 5} Other requirements of the IB doctoral program include maintaining at least
a "B" average in classes and serving as a teaching assistant ("TA"), for which the candidate
is paid a biweekly stipend during the academic year. There is no dispute in this case that
appellant's grades were excellent as was his teaching and research.
{¶ 6} Even though appellant's classwork, teaching, and research continued to be
well received, things took a turn for the worse when appellant sat for his comprehensive
written examination. In July 2016, appellant took his written comprehensive examination.
The format of the examination was generally open book, with each advisory committee
member posing three questions to appellant. Pursuant to the IB Handbook, the advisory
committee members graded the answers and individually determined a grade of pass or
fail. On July 26, 2016, Dr. Weeks sent the committee members the following email:
Please get me your scores by the end of the week. I will need
to report two things to [appellant]:
No. 19AP-283 4

1) An overall scoring of "pass" or "fail" for your portions of the
writtens. That can be determined however you see fit.
Everyone had multiple questions, so you will need to
determine whether [appellant] did an acceptable job across all
your questions. You can weight questions equally or
differentially as you see fit.
2) A short overview of how [appellant] did, which includes
both positives and negatives in his performance. If you
believe he failed the writtens, please think about how much
specific feedback you want to give [appellant] in case you will
be asking him a similar set of questions for his 2nd attempt
(i.e., don't "telegraph" exactly what he should have said on
your various questions if you think you will ask him the same
or similar questions for round 2).
(Def.'s Ex. G, attached to Mot. For Summ. Jgmt.)
{¶ 7} When the results of the examination came in, Dr. Weeks and Dr. Mitchell
graded appellant as a "fail," but Dr. Wiley and Dr. Duan graded appellant as an "overall
pass." Dr. Lavrentyev responded as follows:
l have reviewed [appellant's] written exam now. I did expect
a deeper understanding and more work at the PhD level,
particularly given the fact that the exam was open-book.
However, I accept his answers as satisfactory. So he passes
the exam.
Specifically, [appellant] is a bit shaky on some key ecological
concepts such as meta-population and trophic cascades.
While his answers are not wrong per se, they are verbose,
generic, and not very precise. This is especially true about the
second question (eco-physiology). The literature sources he
used are few and mostly dated. He also needs to learn how to
build and test research hypotheses (third question).
(Emphasis added.) (Def.'s Ex. G, attached to Mot. For Summ. Jgmt.)
{¶ 8} Appellant argues that had Dr. Weeks accepted Dr. Lavrentyev's original
passing grade, he would have passed the written examination. Both the IB Handbook and
the evidence support appellant's claim, as a passing grade from the majority of the
committee means the student passes the written exam. Nevertheless, after receiving the
grades, Dr. Weeks sent the following email correspondence to Dr. Lavrentyev:
BTW — I just wanted to let you know that both Randy and I
failed [appellant] on our portions of the written exams. It was
for the exact same reason that you noted: he did not show a
deep understanding of the material.
No. 19AP-283 5

Thus, if you really feel that his understanding of the topic(s) on
your questions weren't up to the level expected of a PhD
student, please don't feel that you would be "the bad guy" if you
failed him. Let me know if you think he really showed an
acceptable level of understanding for your questions.

(Def.'s Ex. G, attached to Mot. for Summ. Jgmt.)
{¶ 9} Dr. Lavrentyev replied as follows: "l hate to reverse my own evaluation, but I
didn't know that passing/failing could be done separately for different questions. While his
first answer was OK, the second and third were pretty weak. I just don't know whether he
didn't take the exam seriously enough or it is the true measure of his abilities." (Def.'s Ex.
G, attached to Mot. for Summ. Jgmt.) Dr. Weeks responded:
You can score it however you deem appropriate. Both Randy
and I scored each question separately and then came up with
the overall score for the exam. It was easy for the two of us
because he failed all 3 questions for both of us, so he naturally
failed the entire exam for both Randy and myself.
If you think he passed one question and failed two others, then
you need to decide if all 3 questions were equally important.
If so, then he failed the entire exam. On the other hand, if the
one question he passed is much more important than the
other two, then you would have to make a judgement [sic] call
as to whether he should pass the exam overall.
It is fine to "reverse" your decision, if you feel he did poorly.
From your message below, if you are questioning whether he
"took it seriously enough," to me that suggests you believe he
didn't do well enough to pass? If you feel that way, then that
is how you should score his performance.
(Def.'s Ex. G, attached to Mot. for Summ. Jgmt.)
{¶ 10} Dr. Lavrentyev replied: "In this case, I think he should redo the 2nd and 3rd
questions to pass." (Def.'s Ex. G, attached to Mot. for Summ. Jgmt.) On July 28, 2016,
Dr. Weeks wrote to the committee members that appellant "passed two but failed three of
the written exams, and thus he failed overall." (Def.'s Ex. H, attached to Mot. for Summ.
Jgmt.) The evidence submitted by appellant reveals that Dr. Weeks never told appellant or
any of the advisory committee members that Dr. Lavrentyev had originally graded
appellant as a pass.
{¶ 11} Dr. Weeks testified in his deposition that prior to the written examination, he
had a "good relationship" with appellant. (Weeks Dep. at 42.) However, when Dr. Weeks
No. 19AP-283 6

met with appellant after the examination results were revealed, appellant and Dr. Weeks
got into a "very heated" discussion during which appellant accused him of "trying to
torpedo his Ph.D." (Weeks Dep. at 100.) Appellant reportedly told Dr. Weeks he no longer
wanted him as his major advisor.
{¶ 12} On September 30, 2016, Dr. Weeks sent appellant an email, copied to
Dr. Hazel Barton, the new director of the IB program, wherein Dr. Weeks told appellant
that he had not received any information from him regarding a new advisor or a plan to
move forward. Dr. Weeks advised appellant "[u]nless we hear about your plan soon, you
could be deemed 'not making sufficient progress' on your degree, which will put your
funding at jeopardy." (Pl.'s Ex. 12, attached to Barton Dep.) On that same day, appellant
informed Dr. Weeks and Dr. Barton that he had met with two faculty members but neither
agreed to be his major advisor.
{¶ 13} On October 18, 2016, Dr. Barton presented appellant with a proposed written
agreement setting forth certain milestones appellant was to accomplish in order for him to
remain in the IB Ph.D. program along with deadlines in which to complete them. Appellant
refused to sign the agreement claiming it was "flawed." (Pl.'s Ex. 16, attached to Barton
Dep.) In his deposition, appellant clarified that the flaws in the agreement included an
unrealistic timeline in which to complete the milestones and the fact that the agreement
referenced Dr. Weeks as appellant's major advisor when he was no longer serving as such.
At the point in time when Dr. Barton drafted the letter to appellant, he had been in the IB
program a little more than two years.
{¶ 14} On January 18, 2017, Dr. Barton sent appellant a letter stating that he was
behind on his Ph.D. studies and that he needed to complete the necessary milestones by
the end of the Spring 2017 semester, including passing the candidacy written exam, passing
the candidacy oral exam, completing and passing the proposal defense, and submitting a
yearly progress report. Appellant testified he did not receive this letter until his attorney
gave it to him in April or early May 2017. (Grubach Dep. at 98.) On April 14, 2017,
appellant's legal counsel sent a letter to appellee complaining of unfair and discriminatory
treatment by Dr. Weeks based on age, as well as multiple instances where appellant claims
he was treated more harshly than other doctoral candidates. The letter also sought help for
appellant in his efforts to find a new major advisor.
No. 19AP-283 7

{¶ 15} Mark Stasitis, assistant general counsel for appellee, advised appellant's
counsel that his investigation into the matter revealed no wrongdoing on the part of
appellant's advisory committee or the IB department head and suggested that appellee's
Office of Equal Employment Opportunity Programs and Affirmative Action ("EEO/AA")
was the proper forum for appellant's claim of age discrimination. In his May 1, 2017 follow-
up letter to Stasitis, appellant's counsel asked for a specific response to his request that
appellee provide assistance to appellant in finding a new major advisor. Stasitis responded
by informing appellant's counsel that it is the student's responsibility to find a major
advisor.
{¶ 16} On May 10, 2017, appellant's Ph.D. advisory committee met to determine
appellant's future in the program. Appellant attended the meeting and was given an
opportunity to discuss his progress and defend his position. The committee found
appellant had failed his written exam in summer 2016 and had neither retaken the test or
found another major advisor. The committee voted unanimously that appellant was not
making satisfactory progress toward his Ph.D. On May 17, 2017, Dr. Barton sent appellant
a letter informing him that she had recommended his dismissal to Dr. Chand Midha, Dean
of the Graduate School. On May 18, 2017, Dean Midha notified appellant that he was
academically dismissed as a result of his failure to complete his written or oral candidacy
exams or pass his proposal defense in accordance with the guidelines set forth in the IB
Handbook. Appellant was dismissed from the IB Ph.D. program less than three years after
commencing his studies. As a result of his dismissal from the IB Ph.D. program, appellant
lost his job as a TA.
{¶ 17} On May 31, 2017, appellant submitted a request for a grievance hearing to
Dean Midha. Stasitis reviewed the request and concluded the proper forum for the
complaint was appellee's EEO/AA. On August 4, 2017, appellee's EEO/AA completed its
review of appellant's complaint of age discrimination against Dr. Weeks and Dr. Barton and
found they were not in violation of university policy or applicable laws.
{¶ 18} On September 8, 2017, appellant filed his complaint against appellee alleging
breach of contract, age discrimination in violation of R.C. Chapter 4112(A), and retaliation
in violation of R.C. Chapter 4112(I). On November 27, 2018, appellee filed a motion for
summary judgment as to each of appellant's claims, arguing appellant had not produced
No. 19AP-283 8

evidence to support a finding in his favor as to any of the elements of his prima facie case.
On April 1, 2019, the Court of Claims issued a decision and judgment entry granting
appellee's motion for summary judgment as to each of appellant's claims on finding that
appellant failed to produce evidence to satisfy critical elements of his prima facie case for
breach of contract, age discrimination, and retaliation and that appellee was entitled to
judgment as a matter of law. In granting summary judgment in favor of appellee, the Court
of Claims declined to address appellee's alternative argument that appellant's claims for age
discrimination and retaliation fail, as a matter of law, because all of appellant's allegations
of discrimination and retaliation relate to appellant's status as a doctoral candidate and are
not related to his employment as a TA. Appellant has reasserted those alternative grounds
in this appeal.
II. ASSIGNMENTS OF ERROR
{¶ 19} Appellant assigns the following as trial court error:
[1.] The trial court erred in granting summary judgment
against Appellant on his Breach of Contract claims.
[2.] The trial court erred in granting summary judgment
against Appellant on his Discrimination claim.
[3.] The trial court erred in granting summary judgment
against Appellant on his Retaliation claim.
III. STANDARD OF REVIEW
{¶ 20} Pursuant to Civ.R. 56(C), 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). "When seeking summary judgment on grounds that the
non-moving party cannot prove its case, the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact on an essential
element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32,
2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). "Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
No. 19AP-283 9

demonstrating a genuine issue for trial." Dunlop v. Ohio Dept. of Job & Family Servs., 10th
Dist. No. 19AP-58, 2019-Ohio-3632, ¶ 6, citing Dresher at 293.
{¶ 21} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "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 to the
trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, 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 at the trial court are found to support
it, even if the trial court failed to consider those grounds. Eichenberger v. Woodlands
Assisted Living Residence, L.L.C., 10th Dist. No. 14AP-272, 2014-Ohio-5354, ¶ 10, citing
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
IV. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 22} In his first assignment of error, appellant contends the Court of Claims erred
when it granted summary judgment to appellee on his contract claim. We agree.
{¶ 23} In order to survive summary judgment, appellant must produce some
evidence to support each element of his claim for breach of contract. McDade v. Cleveland
State Univ., 10th Dist. No. 14AP-275, 2014-Ohio-4026. Accordingly, appellant "was
required to present evidence of 'the existence of a contract, performance by the plaintiff,
breach by the defendant, and damage or loss to the plaintiff.' " Id. at ¶ 15, quoting Jarupan
v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, ¶ 18 (10th Dist.), citing Powell v. Grant
Med. Ctr., 148 Ohio App.3d 1, 10 (10th Dist.2002). See also Tate v. Owens State
Community College, 10th Dist. No. 10AP-1201, 2011-Ohio-3452.
{¶ 24} "It is axiomatic that '* * * when a student enrolls in a college or university,
pays his or her tuition and fees, and attends such school, the resulting relationship may
reasonably be construed as being contractual in nature.' " Bleicher v. Univ. of Cincinnati
College of Medicine, 78 Ohio App.3d 302, 308 (10th Dist.1992), quoting Behrend v. State,
55 Ohio App.2d 135, 139 (10th Dist.1977). See also Tate at ¶ 21; Jefferson v. Univ. of Toledo,
10th Dist. No. 12AP-236, 2012-Ohio-4793, ¶ 15. In addressing the issue of whether such
No. 19AP-283 10

contract has been breached, the trier of fact appropriately looks to the terms of the contract
as found in the college guidelines supplied to students. Bleicher at 308, citing Embrey v.
Cent. State Univ., 10th Dist. No. 90AP-1302 (Oct. 8, 1991), citing Smith v. Ohio State Univ.,
53 Ohio Misc.2d 11, 13 (1990). See also Lewis v. Cleveland State Univ., 10th Dist. No. 10AP-
606, 2011-Ohio-1192, ¶ 14; Buescher v. Baldwin Wallace Univ., 86 F.Supp.3d 789, 807
(N.D.Ohio 2015), citing Embrey. A trial court's standard for reviewing the academic
decisions of a college or university is not merely whether the court would have decided the
matter differently but, rather, whether the faculty action was arbitrary and capricious.
Bleicher at 308. Accordingly, a trial court is required to defer to academic decisions of the
college unless it perceived such a substantial departure from accepted academic norms as
to demonstrate that the person or committee responsible did not actually exercise
professional judgment. Id.
{¶ 25} Appellant alleges appellee breached the contract as found in the IB
Handbook, Graduate Assistant Handbook, and Graduate Bulletin in a number of different
respects including "failing to ensure that Dr. Weeks and other faculty members treated
[appellant] fairly, professionally and appropriately and free of arbitrary conduct," "failing
to ensure that [appellant] was free from discrimination and retaliation," and "failing to
permit [appellant] a grievance hearing." (Compl. at ¶ 42.) Though much of the contractual
language quoted in the complaint, which is taken either from the IB Handbook, Graduate
Assistant Handbook, and/or Graduate Bulletin, can be fairly characterized as aspirational
in nature, the graduate bulletin does provide that "[b]y our behavior with one another we
endorse a culture of diversity, celebrating the uniqueness of the individual and developing
our understanding and tolerance of differences in gender, ethnicity, age, spiritual belief,
sexual orientation, and physical or mental potential." (Emphasis added.) (Pl.'s Ex. 1 at 4-
5, attached to Memo. Contra in Opp.) Accordingly, under the particular circumstances of
this case, we disagree with appellee's threshold contention that the cited provisions are too
vague and indefinite to support an actionable claim for breach of contract. Moreover,
because this court's decision in Bleicher represents the "well settled 'standard for reviewing
the academic decisions of a college,' " we will apply the Bleicher standard in our review of
appellant's contract claim. McDade at ¶ 27, citing Jefferson at ¶ 16. See also Kaczkowski
v. Ohio N. Univ., 3d Dist. No. 6-05-08, 2006-Ohio-2373, ¶ 23 (Bleicher sets fort the
No. 19AP-283 11

standard for "determining whether an implied contract between a university and a student
* * * ha[s] been breached." (Emphasis sic.)).
1. Appellant's Failing Grade on the Written Comprehensive Examination
{¶ 26} Appellant's primary contention is that appellee breached the contract by
failing him on the written comprehensive examination. Appellant claims that Dr. Weeks'
conduct in convincing Dr. Lavrentyev to change appellant's grade on the comprehensive
written examination from pass to fail raises a factual issue whether Dr. Weeks and
Dr. Lavrentyev substantially departed from accepted academic norms and failed to actually
exercise professional judgment in performing their respective roles as committee members.
The Court of Claims made the following determination regarding appellant's claim:
Upon review of the emails between Dr. Weeks and
Dr. Lavrentyev, it is clear that the discussion between two
committee members regarding [appellant's] written exam
scores was not a breach of the contract. Indeed, the IB
Handbook requires that the PhD advisory committee take a
majority vote to determine whether the IB student passes or
fails the written exams. After determining that two of the
committee members had rated [appellant] as "overall pass,"
and two committee members had rated [appellant] as "fail,"
the IB Handbook required' that Dr. Weeks, as chair of the
committee and [appellant's] major advisor, determine
whether [appellant] passed Dr. Lavrentyev's portion of the
exam. The contents of the emails show that Drs. Weeks and
Lavrentyev were discussing [appellant's] performance on the
questions that they had drafted pursuant to the procedures in
the IB Handbook. The end result of the discussions was a
determination that [appellant] had failed three portions and
passed two portions, resulting in an overall fail. Nothing in
the email shows that Dr. Weeks harbored a discriminatory
animus toward [appellant] based on his age. Furthermore,
the discussion displayed in the emails shows that all of the
committee members were using their professional judgment
to determine whether [appellant] was demonstrating the level
of understanding of the material expected from a PhD
candidate. In short, the emails demonstrate that the
committee members were exercising their professional
judgment regarding [appellant's] performance on the written
exams.
(April 1, 2019 Decision at 11-12.)
No. 19AP-283 12

{¶ 27} Appellant takes exception to the lack of consideration by the Court of Claims
of his theory that Dr. Weeks' age-related bias toward appellant provided probative and
persuasive evidence in support of his breach of contract claim. Our initial review of the
Court of Claims' decision reveals a certain degree of factfinding as opposed to a
determination whether appellant provided evidentiary support for his breach of contract
claim, as is required in the context of summary judgment. Additionally, by focusing solely
on the text of the email correspondence in determining whether Dr. Weeks breached the
academic contract, the Court of Claims essentially disregarded appellant's testimony that
Dr. Weeks made several derogatory age-related comments to appellant prior to the written
examination and that Dr. Mitchell made a derogatory age-related comment to appellant in
October 2015.
{¶ 28} In appellant's deposition, he was asked about a comment Dr. Weeks made to
him on their first meeting. The deposition reads in relevant part as follows:
Q. Sometime in the summer of 2014, you say that Dr. Weeks
said – and I'm not sure if this is an exact quote, but said, in
substance, "I don't mean to sound ageist, but you are older
than the typical graduate student, are you sure you want to
continue, it may be a long time for you to find a job."
Did I read that right?
A. Yes, sir.
Q. Tell me how and where you say that Dr. Weeks made those
remarks.
A. That remains a deep impression in my mind because that's
the first thing he ever said to me when he saw me the first time
in my entire life. We were in his office, and I wanted to have
a meeting with him, and I walked into his office, he saw me for
the first time, and that's exactly what he said. And I'll never
forget that.
(Grubach Dep. at 38.)
{¶ 29} Dr. Weeks did not deny making a statement of this nature to appellant when
they first met. It is certainly reasonable to conclude that Dr. Weeks' comment was more
than merely a vague or ambiguous reference to appellant's age and that it represents
probative evidence of a potential bias against Ph.D. candidates of appellant's age. There is
no dispute that appellant was much older than appellee's typical Ph.D. candidates. Other
evidence presented by appellant supports the conclusion that the age-related statement
No. 19AP-283 13

Dr. Weeks made to appellant in August 2014 was not an isolated comment or stray remark,
as appellant testified that Dr. Weeks made similar age-related statements in fall 2014 and
summer 2015. According to appellant, Dr. Weeks asked him "[s]o how old are you?" and
when appellant replied "[s]ixty-one," Dr. Weeks exclaimed "[o]h." (Grubach Dep. at 44.)
When discussing appellant's hobby of practicing mixed martial arts in fall 2014, Dr. Weeks
reportedly asked appellant "[s]o why do you still do that at your." (Grubach Dep. at 45.)
Appellant testified Dr. Weeks stopped short of saying the word "age." (Grubach Dep. at 44-
45.) Again, in summer 2015, Dr. Weeks ran into appellant in a hallway and said "[y]ou look
surprisingly good for your age." (Grubach Dep. at 50.) Thus, the record contains evidence
that Dr. Weeks made several comments to appellant that demonstrate a possible age-
related bias towards his doctoral candidacy.
{¶ 30} At his deposition, appellant stated that Dr. Mitchell also made a comment to
him that may reasonably be construed as evidence of an age-related bias against appellant.
Appellant testified that in October 2015, Dr. Mitchell began asking appellant highly
technical and complex questions during a discussion. According to appellant, when he
asked for more time to provide answers, Dr. Mitchell inquired "[w]ell, how much time do
you need? How old are you?" (Grubach Dep. at 63.) Though it is reasonable to construe
Dr. Mitchell's statement as merely an expression of frustration with appellant, the
statement is probative evidence of a possible age-related bias against appellant's doctoral
candidacy. Dr. Mitchell failed appellant on all three questions on the comprehensive
written examination and subsequently declined to become appellant's major advisor,
essentially ending appellant's doctoral candidacy.
{¶ 31} The Court of Claims, in granting summary judgment to appellee on the
breach of contract claim, gave no consideration to appellant's evidence that Dr. Weeks
harbored a discriminatory animus towards him based on age and that such animus may
have motivated Dr. Weeks to persuade Dr. Lavrentyev to change appellant's grade from
pass to fail. The Court of Claims considered such evidence only in the context of appellant's
statutory age discrimination and retaliation claims. In his deposition, Dr. Lavrentyev
discussed, on cross-examination, the decision to change appellant's grade on the written
examination from pass to fail. His testimony is as follows:
Q. So if Weeks doesn't send you an email on July 28, you
would not have changed your grade, you would have said he
No. 19AP-283 14

passed right? The only reason you changed it from pass to fail
is because of Dr. Weeks email, right?
A. Well, no, because I discussed it with him, and he explained
how it works, because the Ph.D. Program was something new
at the time.
Q. The what was?
A. It was new to me at the time because I was only on a few
committees, and I never had faced this situation where a
student performed poorly on a written exam, that's why I
wasn't sure what it would entail if I failed the student. I didn't
want to fail him to the point he would be dismissed.
Q. Why not?
A. Well, because I just felt he could perform better.
Q. So let me ask it again.
If Weeks doesn't send this e-mail on the 28th, and you don't
have that phone conversation with him, then [appellant]
would have passed his exam, you wouldn't have changed your
grade, correct?
A. Well, you could say that, yes, but it was my own decision.
Q. It was your own decision because Weeks told you that
[appellant] could redo Questions 2 and 3, correct?
A. He told me that I could grade questions separately.
(Lavrentyev Dep. at 80-81.)
{¶ 32} As set forth above, Dr. Lavrentyev's decision to change appellant's grade on
the written examination from pass to fail created a significant impediment to appellant's
progress toward his Ph.D. Dr. Weeks was the IB department head, the IB department
chairman, and appellant's major advisor at the time the critical emails were exchanged.
Dr. Lavrentyev admitted he was relatively new to the process at the time he graded
appellant's written examination. Dr. Barton and the members of appellant's committee
agreed it would be unfair and improper to consider a student's age in reviewing a student's
academic performance. Dr. Barton further stated that it would not be proper for a major
advisor to reveal to another member of the committee that the student had failed the
advisor's portion of the written examination when the other committee member had yet to
issue a grade for the student. The emails between Dr. Weeks and Dr. Lavrentyev establish
that Dr. Weeks revealed to Dr. Lavrentyev that both he and Dr. Mitchell failed appellant on
No. 19AP-283 15

every question. Dr. Barton also asserted she would never ask another committee member
to change the grade he or she had given the student on the written comprehensive
examination. Dr. Weeks admitted that it would be improper for a student's major advisor
to instruct another committee member how to grade the written examination. (Weeks Dep.
at 27.) Yet, the emails permit the inference that Dr. Weeks improperly influenced
Dr. Lavrentyev to change appellant's grade from "overall pass" to "fail."
{¶ 33} In our view, when construed in appellant's favor, as is required when ruling
on a motion for summary judgment, appellant's evidence, if believed, demonstrates
Dr. Weeks harbored a discriminatory animus toward appellant based on age. The email
correspondence between Dr. Weeks and Dr. Lavrentyev, when viewed in appellant's favor,
permits the conclusion that Dr. Weeks substantially departed from accepted academic
norms by persuading Dr. Lavrentyev to change appellant's grade from pass to fail. Thus, it
is permissible on this record to infer that an age-related bias, rather than the exercise of
professional judgment, was the reason Dr. Weeks persuaded Dr. Lavrentyev to change
appellant's grade on the written comprehensive examination. Dr. Weeks has admitted that
he never told appellant, Dr. Barton, or any of the other committee members that
Dr. Lavrentyev had originally given appellant a passing grade on the written examination.
(Weeks Dep. at 104.) According to Dr. Mitchell, however, Dr. Weeks told him "everybody
is saying the same thing" about appellant's performance on the written examination.
(Mitchell Dep. at 54.)
{¶ 34} Appellant also contends Dr. Weeks substantially departed from accepted
academic norms when he refused to allow appellant to amend his responses to the two
questions on which his responses were deemed "a bit shaky." (Def.'s Ex. G, attached to Mot.
for Summ. Jgmt.) Dr. Lavrentyev testified on cross-examination as follows:
Q. So [appellant] could have retaken Questions 2 and 3 for
you?
A. Yes.
Q. And assuming it was a good answer, you would have
passed him?
A. Yes. Definitely.
Q. Did you tell that to Dr. Weeks?
A. I did.
No. 19AP-283 16

Q. Did you ever discuss it with him?
A. Yes. He said that, "[appellant] should contact you about
retaking the written exam."
Q. Dr. Weeks told you?
A. Yes.
Q. That [appellant] was going to contact you about retaking
the exam?
A. Right.
Q. Did you know Dr. Weeks would not allow [appellant] to
retake Questions 2 and 3 for you?
A. I don't know that.
(Lavrentyev Dep. at 61-62.)
{¶ 35} Dr. Lavrentyev testified he "fully expected [appellant] to come back and
retake [the two exam questions]." (Lavrentyev Dep. at 62.) However, when Dr. Weeks was
asked on cross-examination whether he told appellant Dr. Lavrentyev had offered to let him
retake a portion of the written examination, he answered "I don't believe so." (Weeks Dep.
at 101.) Appellant confirmed he was never told about Dr. Lavrentyev's offer.
{¶ 36} In granting summary judgment for appellee, the Court of Claims cited
provisions in the IB Handbook which arguably require a student to retake the entire
examination on receiving a failing grade. Appellant, however, presented evidence that
another doctoral candidate had been given an opportunity to retake a portion of a
comprehensive written examination in the recent past. (Weeks Dep. at 105; Pl.'s Ex. 10,
attached to Jan. 31, 2019 Memo. Contra in Opp.) Dr. Weeks also acknowledged it was
"unclear from our guidelines" whether a committee member could permit a student to
retake a portion of the written examination. (Weeks Dep. at 101.) Dr. Mitchell testified as
follows:
Q. Okay. Is that permitted, as far as you understand, that
you're allowed to change your grade from pass to fail if a
student retakes a portion of your exam?
A. Yes, it seems to me that I don't see anything that would
stop you from doing that.
(Mitchell Dep. at 52.)
{¶ 37} Appellee's position in this litigation is that Dr. Lavrentyev's original grade of
"overall pass" was not a final determination but was subject to change. Because appellant
No. 19AP-283 17

had not been given a final grade by Dr. Lavrentyev at the time he discussed an offer to have
appellant retake certain questions on the written exam and because the IB Handbook is
"unclear" about a student retaking a portion of an examination, an issue of fact arises
whether Dr. Weeks substantially departed from accepted academic norms by dictating the
manner in which Dr. Lavrentyev administered and graded his portion of the written
examination. (Weeks Dep. at 101.)
{¶ 38} The Court of Claims, nevertheless, made the following determination
regarding the results of the written examination: "After determining that two of the
committee members had rated [appellant] as 'overall pass,' and two committee members
had rated [appellant] as 'fail,' the IB Handbook required that Dr. Weeks, as chair of the
committee and [appellant's] major advisor, determine whether [appellant] passed
Dr. Lavrentyev's portion of the exam." (Decision at 11.) The Court of Claims did not,
however, identify any specific provision in the IB Handbook which would cloak a major
advisor, such as Dr. Weeks, with authority to "determine whether [appellant] passed
Dr. Lavrentyev's portion of the exam," and this court can find no such provision. (Decision
at 11.) Nor has appellee cited any provision in the IB Handbook that would support the
conclusion of the Court of Claims on this particular matter. Moreover, there is no evidence
in this case to support a finding that it would be academically acceptable for one member
of the advisory committee to determine whether a student passed a written examination
administered by another member of the committee. Thus, the pronouncement of the Court
of Claims on this issue is not defensible either under the IB Handbook or the evidence
produced.
{¶ 39} We recognize that even though Dr. Weeks admitted making certain age-
related comments to appellant, he denied that appellant's age played any role in his conduct
as appellant's major advisor, and he denied improperly influencing Dr. Lavrentyev to
change appellant's grade on the written examination. Dr. Weeks has maintained that he
treated appellant fairly and that appellant's own conduct was the true reason appellant
failed to make progress towards his Ph.D. The record does contain some support for Dr.
Weeks' opinion, as there is evidence that appellant's behavior towards Dr. Weeks on
learning that he had failed the written examination caused Dr. Weeks to withdraw from his
position as appellant's major advisor and may have discouraged others from taking
No. 19AP-283 18

appellant on. Appellant's subsequent inability to obtain a new major advisor after his
falling out with Dr. Weeks ultimately led to appellant's dismissal from the IB Ph.D. program
less than three years after he entered. Similarly, Dr. Lavrentyev insisted his decision to
change appellant's grade from pass to fail resulted from the exercise of his own professional
judgment, and he was not convinced by Dr. Weeks to fail appellant. A trier of fact could
certainly find Dr. Lavrentyev's testimony believable even though he exhibited a degree of
equivocation.
{¶ 40} " 'A court cannot weigh credibility when considering evidentiary material
presented in favor of, or in opposition to, a summary judgment motion.' " Havely v.
Franklin Cty., 10th Dist. No. 07AP-1077, 2008-Ohio-4889, ¶ 36, quoting Whiteside v.
Conroy, 10th Dist. No. 05AP-123, 2005-Ohio-5098, ¶ 75, citing Killilea v. Sears, Roebuck
& Co., 27 Ohio App.3d 163 (10th Dist.1985). "Thus, 'the credibility of an affiant [or
deponent] is not generally considered when a court determines whether genuine issues of
material fact exist * * * [and] a court should not choose among reasonable inferences or
weigh the credibility of witnesses in deciding whether summary judgment is appropriate.' "
Havely at ¶ 36, quoting Hassan v. Progressive Ins. Co., 142 Ohio App.3d 671, 676 (10th
Dist.2001). Such functions are for the trier of fact, not for a judge ruling on a motion for
summary judgment. Havely at ¶ 36, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In the context of summary judgment and on this record, Dr. Weeks' and
Dr. Lavrentyev's credibility is for the trier of fact to determine. Because there are factual
issues whether Dr. Weeks and Dr. Lavrentyev substantially departed from accepted
academic norms and did not exercise professional judgment in connection with appellant's
written comprehensive examination, we hold the Court of Claims erred when it granted
summary judgment in favor of appellee as to the breach of contract claim.
2. Appellant's Request for A Grievance Hearing
{¶ 41} Appellant also contends appellee breached the contract by refusing to allow
his grievance to be heard in accordance with the IB Handbook, Graduate Assistant
Handbook, and Graduate Bulletin. The IB Handbook contains the following reference to
the student grievance policy:
I. PhD Candidacy
A student will be considered a PhD candidate only after
having passed the Doctoral Candidacy Examination and the
No. 19AP-283 19

Research Proposal Defense. * * * Potential student
grievance(s) regarding his/her candidacy will be handled
according to the specific grievance procedures outlined in the
Graduate Student Bulletin.
(Emphasis added; bold sic.) (Def.'s Ex. E, attached to Mot. for Summ. Jgmt.)
{¶ 42} The grievance procedures appear in an appendix to the Graduate Bulletin and
are identified as University Rule 3359-24-02. Under the heading "purpose," the rule states:
"The procedures set forth in this document are intended to provide graduate students with
a formal channel of appeal and redress of grievances arising out of their academic and/or
employment relationship with the University." (Pl.'s Ex. 1, attached to Memo. Contra in
Opp.) The rule generally requires an initial effort on the part of the student to resolve the
dispute with the faculty member, a recommendation by the dean of the graduate school to
the senior vice president and provost as to the disposition of the complaint, a hearing before
a student committee either on the request of the dean of the graduate school or the student,
and an appeals process.1 University Rule 3359-24-02 does not specify the type of issues
that fall within the scope of the rule. Nor does the rule state the pursuit of a grievance is
the exclusive remedy provided to a student who complains of unfair treatment in the
academic or employment setting.
{¶ 43} On May 10, 2017, appellant's committee met and voted to dismiss appellant
from the IB Ph.D. program. On May 31, 2017, appellant filed the following request for a
grievance hearing with Dean Midha:
Please accept this correspondence as the filing of my grievance
over my expulsion from the Integrated Bioscience Program.
More specifically, I have been subjected to a long series of
unusual, biased, unfair and discriminatory treatment,
including my treatment regarding the written test procedures,
which I did not pass.
Also, it is claimed that I was released from the program
because I failed to take the written test, oral exam and
proposal defense within a three year period. Nevertheless,
other students in the program have failed to meet these
criteria, and they were not expelled from the program.
The attachments to this correspondence set forth in detail my
claims of biased, unfair and discriminatory treatment as well

1Additional provisions detail the composition of the hearing committee, hearing procedures, decisions and
actions, recordkeeping, and appeal.
No. 19AP-283 20

as [appellee's] failure to follow its own procedures in
dismissing me from the PhD program.2
(Pl.'s Ex. 21, attached to Memo. Contra in Opp.)
{¶ 44} On June 1, 2017, a series of email correspondence regarding appellant's
grievance were exchanged between Dean Midha, Dr. Weeks, and Rex D. Ramsier, Senior
Vice President and Provost, University of Akron. In the last of this correspondence, Provost
Ramsier expressed his opinion regarding appellee's grievance procedures: "In my opinion
failure to make progress toward degree should be handled like a grade appeal and not be
subject to grievance. The latter is an archaic process with a hearing committee composed
of students and faculty. I would rescind the rule if I had the authority." (Pl.'s Ex. 22,
attached to Memo. Contra in Opp.)
{¶ 45} Following this correspondence, Stasitis determined the proper forum to
resolve appellant's complaint was appellee's EEO/AA. Appellant did not receive a grievance
hearing or the "grade appeal" referenced by Provost Ramsier. (Pl.'s Ex. 22, attached to

2 An attachment to appellant's grievance reads as follows:
This is an attachment to my grievance regarding my expulsion from the
Integrated Bioscience Program.
Dr. Weeks violated the rules regarding the written test and PH D
proposal defense in the Integrated Bioscience Graduate (IBG)
Student Handbook.

Dr. Weeks, Dr. Barton and company purported to apply the IBG Student
Handbook to my expulsion. However, this was not the case:
First, Dr. Weeks specifically excluded my Ph.D. proposal from being on
the written test, because sometime in January or early February of 2016,
he told me to put my initial, unfinished Ph.D. proposal off to the side and
concentrate on the readings for the test. We never had one meeting about
my Ph.D. proposal in the entire year of 2016. And most importantly, my
Ph.D. proposal is not on the list of things to study for the written test—it
was thereby excluded from the written test.
During the course of the Spring 2016, Dr. Weeks stated that I would be
tested on the Ph.D. proposal at my Ph.D. proposal defense. The written
exam and Ph.D. proposal defense are two different tests, as is made clear
in the IBG Student Handbook (page 7). But he then turned around and
tested me on my Ph.D. proposal in his written exam, as every single one of
his questions dealt with my initial, unfinished Ph.D. proposal.
Thus, he violated the rules by misleading me--he conflated the written
exam with the Ph.D. proposal defense, thus violating the rules in the IBG
Student Handbook.
(Emphasis sic.) (Pl.'s Ex. 21, attached to Memo. Contra in Opp.)
No. 19AP-283 21

Memo. Contra in Opp.) In granting summary judgment to appellee, the Court of Claims
found as follows: "[W]ith regard to [appellant's] allegation that he was entitled to a
grievance hearing, the only reasonable conclusion is that [appellee] exercised professional
judgment when it directed [appellant] to the EEO office of the university to hear his
complaints, when he specifically complained of unfair and discriminatory treatment."
(Decision at 14.) We disagree with the conclusion reached by the Court of Claims. In our
view, a reasonable reading of appellant's grievance request and the attachment thereto does
not require the conclusion that a claim of unlawful discrimination, specifically age
discrimination, is appellant's only complaint. The request does not mention appellant's age
and does not reference any of the age-related comments made to appellant by Dr. Weeks
and Dr. Mitchell. The attachment to appellant's grievance complains of purely academic
decisions made by Dr. Weeks.
{¶ 46} Moreover, the IB Handbook provides "[p]otential student grievance(s)
regarding his/her candidacy will be handled according to the specific grievance procedures
outlined in the Graduate Student Bulletin." (Def.'s Ex. E, Section I, attached to Mot. for
Summ. Jgmt.) Given the academic aspects of appellant's complaints and the mandatory
language used in the IB Handbook, it is certainly reasonable to conclude that appellee's
refusal to submit appellant's complaint to the grievance process was a substantial departure
from accepted academic norms. Furthermore, in light of Provost Ramsier's expressed
antagonism towards the grievance procedure, it is certainly reasonable to conclude that the
decision to circumvent the grievance process was not the result of an exercise of
professional judgment. Accordingly, we hold that the Court of Claims erred when it
determined, as a matter of law, that appellee did not breach the contract by failing or
refusing to follow the contractual grievance procedure.
{¶ 47} Based on the foregoing, we hold that there are genuine issues of material fact
as to appellant's breach of contract claim and that the Court of Claims erred when it granted
summary judgment to appellee on that claim. Appellant's first assignment of error is
sustained.
B. Second Assignment of Error
{¶ 48} While our analysis of appellant's breach of contract claim in the first
assignment of error under the Bleicher standard necessarily focused on the academic
No. 19AP-283 22

aspects of the contract between the parties, our analysis of appellant's age discrimination
and retaliation claims must focus on the terms and conditions of appellant's employment
with appellee as a TA. Employment discrimination and retaliation claims under R.C.
4112.02(A) and (I) are generally to be interpreted in accordance with interpretations of
federal antidiscrimination laws including Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-2 and the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. Soliday v.
Fluor Fernald, Inc., S.D.Ohio No. 1:04-CV-350 (Jan. 18, 2006), citing Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm., 66 Ohio St.2d 192,
196 (1981). See also Rufo v. Dave & Busters, Inc., S.D. Ohio No. 1:04-CV-698 (Dec. 16,
2005), aff'd by 6th Cir. No. 06-3111 (Jan. 31, 2007).
{¶ 49} In appellant's second assignment of error, appellant contends the trial court
erred when it granted summary judgment in favor of appellee on appellant's claim of age
discrimination. We disagree.
{¶ 50} R.C. 4112.02(A) prohibits "any employer, because of the * * * age * * * of any
person, to discharge without just cause, 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." (Emphasis
added.) "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 v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723.3

3 Under the federal regulatory scheme, the substantive provisions prohibiting age discrimination and
retaliation in the terms and conditions of employment are found in the Age Discrimination in Employment
Act, 29 U.S.C. 621 et seq. Section 623 provides in relevant part as follows:
Prohibition of age discrimination
(a) Employer practices. It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation,
No. 19AP-283 23

1. Direct Evidence
{¶ 51} "Direct evidence is evidence that, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer's actions." Ceglia
v. Youngstown State Univ., 10th Dist. No. 14AP-864, 2015-Ohio-2125, ¶ 16, citing 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 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.' " Ceglia at ¶ 16, quoting Norbuta v. Loctite Corp., 1 Fed.Appx. 305, 312 (6th
Cir.2001). "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." ' " Ceglia at ¶ 16, quoting 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).
{¶ 52} In Tessmer v. Nationwide Life Ins. Co., 10th Dist. No. 98AP-1278 (Sept. 30,
1999), this court stated "[d]iscriminatory comments directed at or relating to the plaintiff
[that] have not been found to be vague, ambiguous or isolated * * * have been found to be
sufficient, direct evidence in a discrimination case." Id. In determining whether the
employer's statements constitute direct evidence of age discrimination, the trial court must
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.

terms, conditions, or privileges of employment, because of such
individual's age;
(2) to limit, segregate, or classify his employees in any way which would
deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such
individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this
Act.
No. 19AP-283 24

Ceglia at ¶ 17, citing Krupnick 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).
{¶ 53} In concluding the age-related comments made by Dr. Weeks and Dr. Mitchell
in 2014 and 2015 did not constitute direct evidence of age discrimination, the Court of
Claims found as follows:
Upon review of the above-mentioned comments, the only
reasonable conclusion is that any comments made in 2014 and
2015 are not proximate in time to the act of termination, i.e.,
dismissal from the IB program. Therefore, the first five
comments are not direct evidence of age discrimination. * * *
Thus, none of the comments [appellant] alleges can be
considered direct evidence of age discrimination.

(Decision at 17.)
{¶ 54} The Court of Claims acknowledged the statements reportedly made by
Dr. Weeks in 2014 and 2015 and Dr. Mitchell in 2015 would constitute direct evidence of
age discrimination had the comments been made to appellant more proximate in time to
appellant's dismissal from the IB Ph.D. program on May 10, 2017. However, in granting
summary judgment to appellee on the age discrimination claim, the Court of Claims did not
consider whether Dr. Lavrentyev's decision to change appellant's grade on the written
examination would qualify as an adverse employment action for purposes of an age
discrimination claim.4 The evidence is that appellant was given a failing grade on the
comprehensive written examination in July 2016, ten months prior to his dismissal from
the IB Ph.D. program. The IB Handbook makes clear that passing the written examination
is a required first step in appellant's effort to successfully complete the IB Ph.D. program
and that a failure to pass the written examination after two attempts would result in
appellant's dismissal from the program and the loss of his TA position. Because the
evidence permits the conclusion that age discrimination was a factor motivating the change
of appellant's grade on the written examination and because appellant's failing grade on the

4 "The Sixth Circuit defines an adverse employment action as a ' "materially adverse change in the terms and
conditions of [plaintiff's] employment because of [the] employer's conduct." ' " Allen v. Ohio Dept. of Job &
Family Servs., 697 F.Supp.2d 854, 884 (S.D.Ohio 2010), quoting Smith, 378 F.3d at 575, quoting Hollins v.
Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999). " '[A] materially adverse change in the terms and conditions
of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities.' "
(Internal quotation omitted.) Allen at 884-85, quoting Hollins at 662.
No. 19AP-283 25

written examination resulted, at least indirectly, in appellant's dismissal as a TA, such
conduct arguably constitutes an adverse employment action that could support a prima
facie case for discrimination. Smith v. Salem, 378 F.3d 566, 575-76 (6th Cir.2004)
("Examples of adverse employment actions include firing, failure to promote, reassignment
with significantly different responsibilities, a material loss of benefits, suspensions, and
other indicies unique to a particular situation."). Whether the age-related statements made
by Dr. Weeks and Dr. Mitchell in 2014 and 2015 were sufficiently proximate to the conduct
that led to the change to appellant's grade on the written examination in July 2016 was not
a question considered by the Court of Claims.
{¶ 55} Nevertheless, even if this court were to decide that appellant produced direct
evidence of age discrimination, appellee has argued, alternatively, that the alleged
discriminatory comments made by Dr. Weeks and Dr. Mitchell are not actionable under
R.C. 4112.02(A) because they relate exclusively to appellant's academic progress and did
not relate to his employment as a TA. This argument was raised by appellee in the Court of
Claims but was not expressly relied on by the Court of Claims in granting summary
judgment to appellee. In support of this argument, appellee relies on several federal court
decisions arising under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000e-2.5
{¶ 56} The federal court decisions on which appellee relies hold that if a graduate
student holding a position as a paid TA at a university can be considered an "employee" for
purposes of Title VII claims, such an employee does not have standing to invoke the
protections of Title VII when the allegations of discrimination relate solely to the
employee's studies or progress toward a degree. The decision of the district court in
Bucklen v. Rensselaer Polytechnic Inst., 166 F.Supp.2d 721 (N.D.N.Y.2001), is typical of
these cases. In Bucklen, the issue for the district court was whether a graduate student who
also worked as a TA had standing to assert a Title VII retaliation claim. The plaintiff argued
the school discriminated against him on the basis of sex and national origin by failing to
grant his requests to modify the format of the preliminary oral examination required for

5 42 U.S.C. 2000e-2, entitled "Employer practices," contains the same operative language as R.C. 4112.02(A)

and provides in relevant part: "It shall be an unlawful employment practice for an employer—(1) to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin."
No. 19AP-283 26

obtaining his doctoral degree and assigning him a failing grade on three separate occasions.
Id. at 723. The plaintiff further alleged the failing grades caused him to be dismissed from
the doctorate program which resulted in the loss of his job as a TA. Id. The district court
decided even if the plaintiff had standing as an "employee" to file a Title VII action, the
court could not "extend the parameters of Title VII to encompass purely academic
decisions, such as the testing and qualification of doctoral students, that have only a
tangential effect on one's status as an employee." Id. at 725.
{¶ 57} Other federal courts that have taken up the issue have reached similar
conclusions. See, e.g., Stewart v. Morgan State Univ., 46 F.Supp.3d 590, 596
(D.Md.2014), aff'd by 606 Fed.Appx. 48 (4th Cir.2015) ("Plaintiff's argument that he
received two 'Cs' from Dr. Welsh based on racial discrimination is unavailing considering
that the grades he received in those two classes concerned his role as a student, not as an
employee in the internship." (Emp. sic.)); Stilley v. Univ. of Pittsburgh, 968 F.Supp. 252,
261 (W.D.Pa.1996) (granting summary judgment as to plaintiff's discrimination claims
against the university because "[a]ll issues pertaining to the completion of plaintiff's
dissertation relate to plaintiff's role as a student and not as an employee. Accordingly [those
issues] are not proper for a Title VII claim * * *."); Seaton v. Univ. of Pennsylvania, E.D.Pa.
No. 01-2037 (Nov. 30, 2001) (dismissal of Title VII claim appropriate where "[t]he
complaint does not suggest that Seaton was retaliated against as an employee; indeed, it
emphasizes that the recipient of the [retaliatory] letter is Seaton's academic advisor"
(Emphasis omitted.)); Bakhtiari v. Lutz, 507 F.3d 1132, 1137 (8th Cir.2007) (summary
judgment for university appropriate as to plaintiff's Title VII retaliation claim where the
alleged discriminatory activities "pertain to Bakhtiari's status as a student * * * and not as
a TA employed by UMR"); Al-Maqablh v. Univ. of Cincinnati College of Medicine, S.D.Ohio
No. 1:11-cv-531 (Nov. 5, 2013 magistrate's recommendation)6 (citing Bakhtiari, Seaton,
Bucklen, and Stilley with approval and recommending summary judgment for the
university as to plaintiff's Title VII race or national origin discrimination claims because
"the undisputed evidence establishes that the University's decision to dismiss Plaintiff from
the Graduate Program was an academic decision unrelated to Plaintiff's alleged
employment with the University [as TA]").

6 Adopted by Al-Maqablh v. Univ. of Cincinnati College of Medicine, S.D.Ohio No. 1:11-cv-531 (May 19, 2014).
No. 19AP-283 27

{¶ 58} The parties have not directed the court to any Ohio case law taking up this
particular issue in the context of an R.C. 4112.02(A) discrimination claim, and this court
has not uncovered any. Nevertheless, R.C. 4112.02(A) prohibits the same conduct
prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, and the Age
Discrimination in Employment Act, 29 U.S.C. 621 et seq. Consequently, R.C. 4112.02(A) is
generally construed in identical fashion to Title VII. Soliday, S.D.Ohio No. 1:04-CV-350,
citing Plumbers & Steamfitters, 66 Ohio St.2d at 196. See also Kimble v. Intermetro
Industries, 288 F.Supp.2d 876, 879 (N.D.Ohio 2003), citing Plumbers & Steamfitters at
196; Blankenship v. BMI Refractories, 966 F.Supp. 555, 557 (S.D.Ohio 1997), citing
Plumbers & Steamfitters at 196. Accordingly, "evidence sufficient to support a finding of
discrimination under Title VII of the Civil Rights Act of 1964 is necessary before a violation
of § 4112.02(A) can be found." Kimble at 879, citing Plumbers & Steamfitters at 196.
{¶ 59} In response to appellee's alternative argument, appellant relies on several
federal court decisions including Stewart; Cuddeback v. Florida Bd. of Edn., 381 F.3d 1230
(11th Cir.2004); and Ruiz v. Trustees of Purdue Univ., N.D.Ind. No. 4:06-CV-130-JVB-PRC
(Feb. 20, 2008 magistrate’s recommendation).7 However, we find these decisions do not
support appellant's position.
{¶ 60} Cuddeback merely holds that a graduate student who also holds a position
with the university as a paid TA may be considered an employee for purposes of Title VII.
Cuddeback does not address the question whether a student/employee has standing to
pursue a Title VII discrimination or retaliation claim where the allegations of
discrimination relate solely to the student/employee's academic pursuits and do not relate
to the student/employee's status as an employee.
{¶ 61} Similarly, in Ruiz, a doctoral candidate alleged that she was given poor grades
and dismissed from the Ph.D. program due to discrimination. Because Ruiz's paid graduate
assistant position was contingent on satisfactory academic progress, her dismissal from the
Ph.D. program resulted in the loss of her position. In recommending summary judgment
for the university, the magistrate noted that Ruiz's "discrimination claim is somewhat
removed from her work" but noted that the university did not argue that failing grades did

7 Adoptedby and summary judgment granted in Ruiz v. Trustees of Purdue Univ., N.D.Ind. No. 4:06-CV-130-
JVB (Mar. 26, 2008).
No. 19AP-283 28

not qualify as an "adverse employment action" under Title VII. Id. at fn. 4. Though the
magistrate did find that Ruiz's work for Purdue qualified Ruiz as an "employee" for
purposes of Title VII, the court cited the Bucklen case for the proposition that a
student/employee may not have standing to file a Title VII action when the allegations of
discrimination relate exclusively to academic decisions, " 'such as the testing and
qualification of doctoral students, that have only a tangential effect on one's status as an
employee.' " Ruiz at fn. 4, quoting Bucklen, 166 F.Supp.3d at 725. Ruiz does not support
appellant's position.
{¶ 62} Finally, as noted above, the Stewart decision supports appellee's argument
that a student/employee's discrimination claims are not actionable under Title VII where
the alleged discriminatory conduct of the university relates exclusively to the
student/employee's academic status. Accordingly, we find appellant's opposition to
appellee's alternative argument unconvincing.8
{¶ 63} Title VII of the Civil Rights Act of 1964, in general, and 42 U.S.C. 2000e-2, in
particular, prohibit an employer from discriminating against an employee with respect to
the terms, conditions, and privileges of employment on the basis of sex, age, and race.9 See
also Meritor Savs. Bank v. Vinson, 477 U.S. 57, 63 (1986); Blankenship at 557; Kimble at
879. R.C. 4112.02(A) prohibits the same conduct in the context of the employment
relationship as a matter of state law and is generally construed in identical fashion to Title
VII. Kimble at 879, citing Plumbers & Steamfitters, 66 Ohio St.2d at 196; Blankenship at
557, citing Plumbers & Steamfitters at 196. Accordingly, "evidence sufficient to support a
finding of discrimination under Title VII of the Civil Rights Act of 1964 is necessary before
a violation of § 4112.02(A) can be found." Kimble at 879, citing Plumbers & Steamfitters at
196. See also Patrick v. Ferguson Ents., S.D.Ohio No. 1:10-CV-00045 (Feb. 3, 2011) (age
discrimination case).
{¶ 64} The allegations of age discrimination appellant leveled against appellee both
in the complaint and as discussed herein, relate exclusively to appellant's studies and
progress toward a Ph.D. Under the federal case law interpreting Title VII employment

8 In affirming the district court, the Fourth Circuit in Stewart v. Morgan State Univ., 606 Fed.Appx. 48 (4th
Cir.2015), did not expressly adopt the district court's ruling on standing.
9 As previously noted, the substantive federal legislation preventing age discrimination is found in the Age

Discrimination in Employment Act, 29 U.S.C. 621 et seq.
No. 19AP-283 29

discrimination claims, where the allegations of discrimination made by a paid TA relate
exclusively to his or her status as a student and do not relate to the conditions of
employment as a TA, the adverse employment decision is not actionable under federal
antidiscrimination legislation, as a matter of law. Bakhtiari; Seaton; Bucklen; Stilley; Al-
Maqablh. In such circumstances, the TA does not have standing to invoke the protections
of Title VII. Bakhtiari; Seaton; Bucklen; Stilley; Al-Maqablh. Because Ohio courts
generally follow federal precedent established under 42 U.S.C. 2000e-2 and in analyzing
discrimination claims brought pursuant to R.C. 4112.02(A) and because the operative
language of R.C. 4112.02(A) mirrors that of 42 U.S.C. 2000e-2, we hold that appellant's
allegations of age discrimination are not actionable under R.C. 4112.02(A), as a matter of
law.
{¶ 65} For the foregoing reasons, we hold the Court of Claims did not err when it
granted summary judgment to appellee on appellant's discrimination claim, albeit for
different reasons than the Court of Claims. See Grenga v. Youngstown State Univ., 10th
Dist. No. 11AP-165, 2011-Ohio-5621, ¶ 26 ("We review a summary judgment de novo and
must affirm the trial court's judgment if any grounds the movant raised in the trial court
support it."), citing Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th
Dist.1994), citing Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th
Dist.1993); Ecker, 101 Ohio App.3d at 41-42. See also Brogan v. Family Video Movie Club,
Inc., 6th Dist. No. L-13-1283, 2015-Ohio-70, ¶ 37 (in our de novo review of summary
judgment matters, we may still inquire whether the judgment dismissing appellant's
discrimination claim may be affirmed on alternative grounds); Howell v. Whitehurst Co.,
6th Dist. No. L-05-1154, 2005-Ohio-6136, ¶ 20-21 ("W[e] conclude that, presuming
appellant can establish a prima facie case, we can alternatively affirm summary judgment
on grounds that appellant cannot rebut appellee's legitimate justifications for her
termination by showing pretext."). Appellant's second assignment of error is overruled.
C. Appellant's Third Assignment of Error
{¶ 66} In appellant's third assignment of error, appellant argues the trial court erred
when it granted summary judgment in appellee's favor on his retaliation claim. We
disagree.
No. 19AP-283 30

{¶ 67} R.C. 4112.02(I) makes it unlawful "[f]or any person to discriminate in any
manner against any other person because that person has opposed any unlawful
discriminatory practice defined in this section or because that person has made a charge,
testified, assisted, or participated in any manner in any investigation, proceeding, or
hearing under sections 4112.01 to 4112.07 of the Revised Code." "The language of R.C.
4112.02(I) is virtually identical to 42 U.S.C. 2000e-3(a). Due to the similarities in Title VII
and R.C. Chapter 4112, Ohio courts look to federal case law addressing Title VII for
assistance in interpreting R.C. Chapter 4112." Smith v. Dept. of Pub. Safety, 10th Dist. No.
12AP-1073, 2013-Ohio-4210, ¶ 60.
{¶ 68} "The antidiscrimination provision [42 U.S.C. 2000e-2(a)] seeks a workplace
where individuals are not discriminated against because of their racial, ethnic, religious, or
gender-based status * * *. The antiretaliation provision [42 U.S.C. 2000e-3(a)] seeks to
secure that primary objective by preventing an employer from interfering (through
retaliation) with an employee's efforts to secure or advance enforcement of [Title VII of the
Civil Rights Act of 1964's] basic guarantees." Burlington N. & S. F. R. Co. v. White, 548
U.S. 53, 63 (2006). "The substantive provision seeks to prevent injury to individuals based
on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to
individuals based on what they do, i.e., their conduct." Id.
{¶ 69} "An employee's activity is 'protected' for purposes of R.C. 4112.02(I) if the
employee has 'opposed any unlawful discriminatory practice' (the 'opposition clause') or
'made a charge, testified, assisted, or participated in any manner in any investigation,
proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code' (the
'participation clause')." Veal v. Upreach, LLC, 10th Dist. No. 11AP-192, 2011-Ohio-5406,
¶ 18, citing HLS Bonding v. Ohio Civ. Rights Comm., 10th Dist. No. 07AP-1071, 2008-Ohio-
4107, ¶ 15; Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719-20 (6th Cir.2008).
{¶ 70} Appellant contends that Dr. Weeks and Dr. Barton dismissed him from the
IB program in retaliation for his decision to hire legal counsel and complain to appellee
about age discrimination. The trial court set forth the following reasoning in granting
summary judgment to appellee on appellant's retaliation claim:
[Appellant] alleges that the letters that his attorney sent to
university officials in an effort to obtain a new advisor and to
generally complain of [appellant's] treatment in the program
No. 19AP-283 31

constitute a protected activity. However, it is undisputed that
any participation that [appellant] engaged in, specifically,
filing an EEO action, occurred after he was dismissed from the
program. Therefore, any retaliation claim on that basis fails
as a matter of law. Lastly, any opposition activity, i.e., letters
from [appellant's] attorney, fall into the category of "a vague
charge of discrimination in an internal letter or
memorandum" and thus, are insufficient to constitute
opposition to an unlawful employment practice. See Booker,
supra. Accordingly, construing the evidence most strongly in
[appellant's] favor, the only reasonable conclusion is that
[appellant] has failed to state a prima facie case of retaliation.
(Decision at 20.)
{¶ 71} We agree with the conclusion of the Court of Claims that appellant failed to
produce evidence to support a retaliation claim based on the participation clause because
there is no dispute that appellant did not make his request for a hearing until after appellee
dismissed him from the IB program. It is more difficult, however, to reconcile the
conclusion of the Court of Claims regarding the opposition clause with the evidence
produced by appellant.
{¶ 72} Appellant's opposition clause claim is predicated on two letters sent to
appellee by appellant's attorney, Daniel D. Domozick. The first letter, dated April 14, 2017
and addressed to Assistant Dean Charles Beneke, contains a lengthy recitation of
appellant's complaints about Dr. Weeks' conduct as his major advisor. The letter also
contains a complaint about Dr. Barton's failure to help appellant find a new academic
advisor even though Assistant Dean Beneke had informed appellant that "it was his
understanding" she would do so. (Pl.'s Ex. 17 at 9, attached to Memo. Contra in Opp.) The
April 14, 2017 letter closes with the following:
Thus, my investigation to date demonstrates that [appellant]
is an outstanding Ph. D. candidate. However, [appellant] was
treated much differently than other graduate students and
was repeatedly threatened with expulsion, causing [appellant]
an enormous financial and emotional injury. At a minimum,
Dr. Weeks is responsible for his wrongful conduct of
discrimination and retaliation directed at [appellant]
because of his age. My investigation also uncovered a
number of age related comments directed at appellant] by
Dr. Weeks, including Dr. Weeks asking [appellant] his age,
making comments that [appellant] was "older" than the
typical graduate student and that [appellant] "looked
No. 19AP-283 32

surprisingly good for his age." Consistent with these age
related comments, at every step Dr. Weeks' intentional and
deliberate wrongful acts and omissions directed at
[appellant] were done to harm [appellant]. There is no other
rational explanation for Dr. Weeks' conduct.10
(Emphasis added.) (Pl.'s Ex. 17 at 10, attached to Memo. Contra in Opp.)11
{¶ 73} The Court of Claims' characterization of the April 14, 2017 letter as "a vague
charge of discrimination in an internal letter or memorandum" is difficult to square with
the plain language used by appellant's legal counsel. (Decision at 20.) In our view, the
complaints about age discrimination levied against appellee in counsel's April 14, 2017
letter may be reasonably construed as a clear expression of opposition to discriminatory
academic practices based on appellant's age. Nevertheless, even though we disagree with
the conclusion of the Court of Claims that the April 14, 2017 letter is merely "a vague charge
of discrimination in an internal letter or memorandum," we nevertheless agree that the two
letters from appellant's legal counsel "are insufficient to constitute opposition to an
unlawful employment practice." (Decision at 20.)
{¶ 74} As set forth earlier in our discussion of appellant's second assignment of
error, appellee has convincingly argued that the age discrimination claim fails as a matter
of law because the alleged discrimination related exclusively to appellant's academic
progress in the IB Ph.D. program and was not related to his employment as a TA.
Bakhtiari; Seaton; Bucklen; Stilley; Al-Maqablh. As also set forth in our discussion of
appellant's second assignment of error, there are a number of federal court decisions
holding that a student/employee cannot maintain a Title VII retaliation claim where the
claim of protected conduct on the part of the student/employee relates exclusively to
discriminatory practices in the academic setting, such as the testing and qualification of
doctoral students, that have only a tangential effect on one's status as an employee. Seaton;
Bucklen.

10 As of the date attorney Domozick drafted the letter, neither appellant nor his legal counsel were aware that
Dr. Lavrentyev had changed appellant's grade on the written comprehensive exam from an "overall pass" to
"fail."
11 In a May 1, 2017 letter to Stasitis, appellant's counsel complained about Dr. Barton's lack of follow through

on finding appellant a new major advisor and disputed Stasitis's claim that Dr. Weeks remained appellant's
major advisor. The letter does not mention age discrimination.
No. 19AP-283 33

{¶ 75} Here, even if we were to conclude that a factual issue exists whether the two
letters from appellant's attorney constitute clear opposition to discriminatory age-related
practices, none of the alleged discriminatory practices about which appellant complains
relate to the conditions of his employment as a TA. Because there is no question that the
discriminatory academic practices opposed by appellant are not related to the conditions
of appellant's employment as a TA, appellant's conduct in opposition to those practices is
not a protected activity under R.C. 4112.02(I), as a matter of law. Seaton; Bucklen. See also
Bakhtiari; Stilley; Al-Maqablh.
{¶ 76} For the foregoing reasons, we hold the Court of Claims did not err when it
granted summary judgment to appellee on appellant's retaliation claim, albeit for a
different reason than expressed by the Court of Claims. Appellant's third assignment of
error is overruled.
V. CONCLUSION
{¶ 77} Having overruled appellant's second and third assignments of error but
having sustained appellant's first assignment of error, we affirm in part and reverse in part
the judgment of the Court of Claims of Ohio and remand this matter for further proceedings
consistent with this decision.
Judgment affirmed in part and reversed in part;
cause remanded.
BROWN, J., concurs.
LUPER SCHUSTER, J., concurs in part and dissents in part.
LUPER SCHUSTER, J., concurring in part and dissenting in part.
{¶ 78} I agree with the majority's resolution of the portion of appellant's first
assignment of error finding that there remains a question of material fact as to whether
appellee failed to or refused to follow the contractual grievance procedure, and I join in that
portion of the majority's decision. However, because I would not sustain the portion of
appellant's first assignment of error related to appellant's failing grade on the written exam,
and because I would overrule appellant's second and third assignments of error on more
limited grounds than the majority, I respectfully concur in part and dissent in part.
{¶ 79} As the majority notes, in a breach of contract case, the plaintiff bears the
burden of presenting evidence establishing the existence of a contract. McDade v.
Cleveland Univ., 10th Dist. No. 14AP-275, 2014-Ohio-4026, ¶ 15. Though appellant relies
No. 19AP-283 34

on the IB Handbook, Graduate Assistant Handbook, and Graduate Bulletin as creating a
contract between appellant and appellee, it is also appellant's burden to demonstrate
specific language in those materials that create binding contractual provisions. In
considering whether there remains a genuine issue of material fact on appellant's claim for
breach of contract related to his failing exam grade, the majority relies on Bleicher for the
standard a court must apply in reviewing college academic decisions. Though I agree that
Bleicher sets forth the proper standard, I do not agree with the majority that appellant
adequately established the existence of specific contract language to trigger the Bleicher
analysis.
{¶ 80} Here, the majority characterizes the language appellant relies upon as
creating a contract related to his failing grade as "aspirational in nature," yet nonetheless
concludes this language is sufficient to support an actionable claim for breach of contract.
I disagree.
{¶ 81} Appellant points to language in the student materials providing that students
will not be subjected to discrimination or be treated unfairly. However, "[i]ndefinite and
aspirational language does not constitute an enforceable promise under Ohio law." Ullmo
ex rel. Ullmo v. Gilmour Academy, 273 F.3d 671, 676-77 (6th Cir.2001) (holding "a breach
of contract claim will not arise from the failure to fulfill a statement of goals or ideals"),
citing Rulli v. Fan Co., 79 Ohio St.3d 374, 376 (1997). I would conclude these terms in the
student materials are aspirational in nature and not specific enough to create enforceable
terms of a contract. See Knelman v. Middlebury College, 898 F. Supp.2d 697, 709 (holding
"[l]anguage in a college handbook or other official statement that is merely aspirational in
nature, or that articulates a general statement of a school's 'ideals,' 'goals,' or 'mission,' is
not enforceable"), citing Ullmo at 676-77. See also Clayton v. Cleveland Clinic Found., 8th
Dist. No. 101854, 2015-Ohio-1547, ¶ 11 (finding anti-discrimination and anti-harassment
provisions in an employee handbook do not create any contractual obligation or rights);
Pierce v. Bishop, 4th Dist. No. 10CA6, 2011-Ohio-371, ¶ 13, 22 (noting that the existence of
a duty for purposes of a negligence action can be found in the express or implied terms of a
contract, but that "general and aspirational" policies regarding general concern for the
safety of a company's employees and the public are not sufficient to create contractual
language establishing a duty); Sagonowski v. The Andersons, Inc., 6th Dist. No. L-03-1168,
No. 19AP-283 35

2005-Ohio-326, ¶ 51-55 (holding that an "Employee Bill of Rights" did not create specific
contractual terms but rather reflected "qualified aspirational statements" that were
insufficient to create a question of material fact regarding the existence of a contract in an
at-will employment setting); Olive v. Columbia/HCA Healthcare Corp., 8th Dist. No.
75249, 2000 Ohio App. LEXIS 914 (Mar. 9, 2000) (concluding a hospital's "aspirational
statement of policy that it would take corrective action in a uniform, consistent, and non-
discriminatory manner" was not sufficient to create a binding contract).
{¶ 82} Because I would conclude that appellant did not identify any portion of the
student materials creating enforceable contract provisions related to his allegation that
appellee breached a contract not to discriminate, I would not proceed to engage in the
Bleicher analysis. Instead, I would overrule the portion of appellant's first assignment of
error related to his failing exam grade because he did not present evidence demonstrating
the existence of an enforceable contract provision related to discrimination. However,
because appellant does point to specific, enforceable contractual language related to the
grievance procedure, I concur with the majority's decision sustaining that portion of the
first assignment of error.
{¶ 83} As to appellant's second and third assignments of error, I agree with the
majority that both appellant's discrimination and retaliation claims fail because appellant's
allegations relate exclusively to his academic studies and progress toward his degree and
do not relate to the conditions of his employment. As such, I find it unnecessary to analyze,
as the majority does, whether appellant set forth sufficient facts to overcome summary
judgment on his discrimination and retaliation claims because his claims are legally
insufficient. Thus, I would accordingly limit the analysis on the second and third
assignments of error to appellant's failure to allege discriminatory conduct related to his
employment, and I would overrule those two assignments of error on that basis.
{¶ 84}Based on these reasons, I respectfully concur in part and dissent in part.
_______________