Robert Lipset v. Ohio University**

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
ROBERT LIPSET
Complainant
Complaint No. 9516
and (COL) A1060802 (29522) 070302
22A – A2 – 03445
OHIO UNIVERSITY
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
JIM PETRO
ATTORNEY GENERAL
Patrick M. Dull, Esq. Gerald A. Mollica, Esq.
Associate Attorney General Mollica, Gall, Sloan & Sillery
Civil Rights Section 35 North College Street
State Office Tower, 15th Floor P. O. Drawer 958
30 East Broad Street Athens, OH 45701-0958
Columbus, OH 43215-3428 740 – 593 – 3357
614 – 466 – 7900
Counsel for Respondent
Counsel for the Commission
ALJ'S REPORT BY:
Denise M. Johnson
Robert Lipset Chief Administrative Law Judge
118 Canterbury Court Ohio Civil Rights Commission
Blacksburg, VA 24060 1111 East Broad Street, Suite 301
Columbus, OH 43205-1379
Complainant 614 – 466 – 6684

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INTRODUCTION AND PROCEDURAL HISTORY
Robert Lipset (Complainant) filed a sworn charge affidavit with the
Ohio Civil Rights Commission (Commission) on July 3, 2002.
The Commission investigated the charge and found probable cause
that Ohio University (Respondent) engaged in unlawful employment
practices in violation of Revised Code Section (R.C.) 4112.02(A).
The Commission attempted, but failed to resolve this matter by
informal methods of conciliation. The Commission subsequently issued a
Complaint on June 12, 2003. The Complaint alleged that Respondent
failed and refused to promote Complainant, offer him tenure, and
terminated him, for reasons not applied equally to all persons without
regard to their age.
Respondent filed an Answer to the Complaint on July 24, 2003.
Respondent admitted certain procedural allegations, but denied that it
engaged in any unlawful discriminatory practices. Respondent also pled
affirmative defenses.

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A public hearing was held on January 22, 2004 at Ohio University
Baker Center on West Union Street in Athens, Ohio.
The record consists of the previously described pleadings, a
transcript of the hearing (210 pages), exhibits admitted into evidence during
the hearing, and the post-hearing briefs filed by the Commission on
July 14, 2004 and by Respondent on August 13, 2004.1
1 On May 26, 2005, the Commission filed a Motion to Re-Open the Record and
Reconvene the Hearing. Respondent filed a Memorandum in Opposition on June 27,
2005. The basis for the Motion is that the Commission had a witness to come forward
after the hearing who could testify to a statement allegedly made to him by the
Chairman of the DIMSE, Dr. Robert Parks. Dr. Hale worked for Respondent and was
available to testify at the hearing on January 22, 2004. The Commission asserts that
Dr. Hale was reluctant to come forward because he feared that his participation in the
OCRC proceeding would jeopardize his own application for tenure. The Commission
stated in its Motion that Dr. Hale came forward after he received tenure. However,
Respondent supplied a letter dated June 15, 2005 which confirms that Dr. Hale had not
received notice regarding his tenure and promotion application at the time that the
Commission filed the Motion. The Commission’s Motion was, therefore, denied.

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FINDINGS OF FACT
The following findings of fact are based, in part, upon the
Administrative Law Judge’s (ALJ) assessment of the credibility of the
witnesses who testified before her in this matter. The ALJ has applied the
tests of worthiness of belief used in current Ohio practice. For example,
she considered each witness’s appearance and demeanor while testifying.
She considered whether a witness was evasive and whether his or her
testimony appeared to consist of subjective opinion rather than factual
recitation. She further considered the opportunity each witness had to
observe and know the things discussed, each witness’s strength of
memory, frankness or lack of frankness, and the bias, prejudice, and
interest of each witness. Finally, the ALJ considered the extent to which
each witness’s testimony was supported or contradicted by reliable
documentary evidence.
1. Complainant filed a sworn charge affidavit with the Commission
on July 3, 2002.

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2. The Commission determined on May 22, 2003 that it was
probable that Respondent engaged in unlawful discrimination in violation of
R.C. 4112.02(A).
3. The Commission attempted to resolve this matter by informal
methods of conciliation. The Commission issued the Complaint after
conciliation failed.
4. Respondent hired Complainant for the position of Assistant
Professor in the Department of Industrial and Manufacturing Systems
Engineering (DIMSE) on January 1, 1995. At the time he was hired he
was forty-five (45) years old.
5. When a faculty member is hired they are normally put on a
seven-year tenure track. Faculty members submit their cases for
promotion and tenure during the sixth year of their employment.
6. In December 2000 Complainant submitted his case for tenure
and promotion to Dr. Charles Parks, the Chair of the DIMSE.

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7. Pursuant to written departmental criteria, policies and
procedures, Dr. Parks convened a departmental promotion and tenure
committee (DIMSE Committee). The Committee consisted of all the
tenured faculty in the Department. The minimum size for the DIMSE
Committee is three.
8. At that time there were only two tenured faculty members in the
DIMSE, Dr. David Koonce, chairman, and Dr. Richard Gerth. Complainant
was permitted to recommend the third member of the DIMSE Committee,
Dr. Sampson.
9. Complainant was informed by letter dated January 23, 2001
that the DIMSE Committee voted not to recommend his promotion or
tenure case to the college.
10. Although the DIMSE Committee evaluated his teaching and
service record as excellent, they saw a “significant weakness” in
Complainant’s research and scholarship record.

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11. The letter further cited the promotion and tenure criteria that “a
deficiency in one category cannot be outweighed by superior performance
in one or both of the other categories.”
12. Complainant then followed the appeals procedure in the faculty
handbook.
13. His first level of appeal was to the DISME Committee who
rejected his appeal.
14. The next level of appeal was to the dean of the college. The
dean instructed Complainant to add an extra step in the process and send
his appeal instead to Dr. Parks.
15. On February 19, 2001, Complainant submitted an appeal of
DISME Committee’s decision to Dr. Parks.
16. Dr. Parks indicated that he had little jurisdiction over the DISME
Committee’s denial, and Dr. Parks denied the appeal.

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17. Complainant then appealed to Dr. Jerrel Mitchell, Interim Dean
of the Engineering College.
18. Dr. Mitchell rejected Complainant’s appeal stating that there
was not much he could do about the decision.
19. Complainant then appealed to Dr. Garret Shumacher, Interim
Provost.
20. Dr. Schumacher rejected Complainant’s appeal. Thereafter,
Complainant appealed to the Standing Committee on Promotion and
Tenure of the Faculty Senate (Standing Committee).
21. Complainant’s appeal was accepted by the Standing
Committee who stated that their only recourse was to send the case back
for re-evaluation at the first level at which it had been turned down.
The Standing Committee directed the DIMSE Committee to re-evaluate
the case, paying special attention to Complainant’s collaborative work.

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22. The DIMSE Committee was reconvened for that purpose.
Dr. Lonnie Welch replaced Dr. Gerth, who was no longer working for
Respondent.
23. Complainant was then able to submit additional materials to the
DIMSE Committee for review regarding his collaborative research.
24. The reconstructed DIMSE Committee once again rejected
Complainant’s appeal.
25. Complainant appealed once more to the Standing Committee,
petitioning them to hold a formal hearing on the matter. The Standing
Committee rejected Complainant’s petition to hold a formal hearing.
26. Having exhausted all avenues of appeal available to him
through the faculty handbook, Complainant consulted with Bill Smith
(Smith), Respondent’s Director of Institutional Equity, regarding the tenure
situation and how he was treated as an individual.

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27. Smith suggested that Complainant appeal to Respondent’s
president, Dr. Robert Glidden.
28. Complainant then appealed to Dr. Glidden on the basis of
denial of due process and inadequate consideration of his case.
29. Complainant’s appeal was once again rejected.
30. Complainant’s last day of work for Respondent was June 8,
2002.

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CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments of the
parties have been considered. To the extent that the proposed findings
and conclusions submitted by the parties and the arguments made by them
are in accordance with the findings, conclusions, and views stated herein,
they have been accepted; to the extent they are inconsistent therewith,
they have been rejected. Certain proposed findings and conclusions have
been omitted as not relevant or as not necessary to a proper determination
of the material issues presented. To the extent that the testimony of
various witnesses is not in accord with the findings therein, it is not
credited.2
1. The Commission alleged in the Complaint that Respondent failed
and refused to promote Complainant, offer him tenure, and terminated him,
for reasons not applied equally to all persons without regard to his age.
2 Any Finding of Fact may be deemed a Conclusion of Law, and any Conclusion
of Law may be deemed a Finding of Fact.

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2. This allegation, if proven, would constitute a violation of R.C.
4112.02, which provides, in pertinent part, that:
It shall be an unlawful discriminatory practice:
(A) For 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.
R.C. 4112.01(A)(14) defines age as “at least forty years old.”
3. The Commission has the burden of proof in cases brought under
R.C. Chapter 4112. The Commission must prove a violation of R.C.
4112.02(A) by a preponderance of reliable, probative, and substantial
evidence. R.C. 4112.05(G) and 4112.06(E).
4. Federal case law generally applies to alleged violations of R.C.
Chapter 4112. Columbus Civ. Serv. Comm. v. McGlone (1998), 82 Ohio
St.3d 569. Therefore, reliable, probative, and substantial evidence means
evidence sufficient to support a finding of unlawful discrimination under the
Age Discrimination in Employment Act of 1967 (ADEA).

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5. Under ADEA and Title VII case law, the Commission is normally
required to first establish a prima facie case of unlawful discrimination by a
preponderance of the evidence. McDonnell Douglas Co. v. Greene, 411
U.S. 792 (1973). The proof required to establish a prima facie case may
vary on a case-by-case basis. Id., at 802. The establishment of a prima
facie case creates a rebuttable presumption of unlawful discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
6. Once the Commission establishes a prima facie case, the burden
of production shifts to Respondent to “articulate some legitimate,
nondiscriminatory reason” for the employment action.3 McDonnell Douglas,
supra at 802. To meet this burden of production, Respondent must:
3 Although the burden of production shifts to Respondent at this point, the
Commission retains the burden of persuasion throughout the proceeding. Burdine,
supra at 254.
The defendant’s burden is merely to articulate through some proof a
facially nondiscriminatory reason for the failure to promote an denial of
tenure; the defendant does not at this stage of the proceedings need to
litigate the merits of the reasoning, nor does it need to prove that the
reason relied upon was bona fide, nor does it need to prove that the
reasoning was applied in a nondiscriminatory fashion.
EEOC v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir. 1992) (citations and
footnote omitted).

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. . . “clearly set forth, through the introduction of admissible
evidence,” reasons for its actions which, if believed by the trier
of fact, would support a finding that unlawful discrimination was
not the cause of the employment action.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993),
quoting Burdine, supra at 254-55.
The presumption created by the establishment of a prima facie case “drops
out of the picture” when the employer articulates a legitimate,
nondiscriminatory reason for the employment action. Hicks, supra at 511.
7. In this case, it is not necessary to determine whether the
Commission proved a prima facie case. Respondent’s articulation of a
legitimate, nondiscriminatory reason for Complainant’s discharge removes
any need to determine whether the Commission proved a prima facie case,
and the “factual inquiry proceeds to a new level of specificity.” U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713 (1983), quoting
Burdine, supra at 255.
Where the defendant has done everything that would be
required of him if the plaintiff has properly made out a prima
facie case, whether the plaintiff really did so is no longer
relevant.
Aikens, supra at 713.

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8. Respondent met its burden of production with the introduction
of evidence to support their position that Complainant was denied
promotion and tenure due to his inadequate record of research and
scholarship.
9. Respondent having met its burden of production, the inquiry
moves to the ultimate issue of the case, i.e., whether Respondent failed to
promote Complainant because of his age. Hicks, supra at 511. The
Commission must show by a preponderance of the evidence that
Respondent’s articulated reason for Complainant’s discharge was not the
true reason, but was “a pretext for discrimination.” Id., at 515, quoting
Burdine, supra at 253.
[A] reason cannot be proved to be a “pretext for discrimination”
unless it is shown both that the reason is false, and that
discrimination is the real reason.
Hicks, supra at 515.
10. Thus, even if the Commission proves that Respondent’s
articulated reason is false or incomplete, the Commission does not
automatically succeed in meeting its burden of persuasion:

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That the employer’s proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the . . .
[Commission’s] proffered reason of . . . [age] is correct. That
remains a question for the factfinder to answer . . . .
Id., at 524.
Ultimately, the Commission must provide sufficient evidence for the
factfinder to infer that Complainant was, more likely than not, the victim of
age discrimination.
11. In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated reason for
failure to promote. The Commission may directly challenge the credibility
of Respondent’s articulated reason by showing that the reason had no
basis in fact or it was insufficient to motivate the employment decision.
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.
1994). Such direct attacks, if successful, permit the factfinder to infer
intentional discrimination from the rejection of the reason without additional
evidence of unlawful discrimination.

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The factfinder’s disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may together with the elements of the
prima facie case, suffice to show intentional discrimination.
Thus, rejection of the defendant’s proffered reasons will permit
the trier of fact to infer the ultimate fact of discrimination,
and . . . no additional proof of discrimination is required.4
Hicks, supra at 511, (bracket removed); See also Reeves v.
Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2108
(2000).
12. The Commission may indirectly challenge the credibility of
Respondent’s reason by showing that the sheer weight of the circum-
stantial evidence makes it “more likely than not” that the reason is a
pretext for age discrimination. Manzer, supra at 1084. This type of
showing, which tends to prove that the reason did not actually motivate the
employment decision, requires the Commission produce additional
evidence of unlawful discrimination besides evidence that is part of the
prima facie case. Id.
4 Even though rejection of a respondent’s articulated reason is “enough at law to
sustain finding of discrimination, there must be a finding of discrimination.” Hicks,
supra 511, n. 4.

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13. The Commission introduced evidence at the hearing of remarks
by Complainant’s peers and superiors that it contends are ageist in nature.
14. Normally, age-based comments by coworkers are not evidence
of age discrimination unless there is proof that the decision-makers relied
upon the comments in making their decision. Khachikian v. VASF Corp.,
64 FEP cases 1842, 1849-50 (D.C. N.Y. 1993).
15. Evidence regarding remarks made by supervisory employees
who participated in the decisional process are admissible. However, stray
remarks by decision-makers unrelated to the decisional process are “rarely
given great weight.” McMillan v. Mass. SPCA, 140 F.3d 288, 301 (1st Cir.
1998).
It is well established in the Sixth Circuit that isolated and
ambiguous comments are too abstract, in addition to being
irrelevant and prejudicial, to support a finding of . . .
discrimination.
Grant v. Harcourt Brace, 12 F.Supp.2d 748, 758 (D.C. S.Ohio
1998) (citations and quotations omitted).

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See also Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (stray
remarks, statements by nondecision-makers, and statements by decision-
makers unrelated to the decisional process are insufficient to conclude that
the employer relied on an impermissible factor in reaching decision).
(O’Connor, J., concurring).
16. Ageist remarks that are remote in time and unrelated to the
decisional process, even those made by a supervisor who took the adverse
employment action, are not probative of intentional discrimination.
[S]uch remarks, when unrelated to the decisional process, are
insufficient to demonstrate that the employer relied on
illegitimate criteria, even when such were uttered by a decision-
maker.
Hong v. Children’s Mem. Hosp., 993 F.2d 1257, 1266 (7th Cir.
1993).
17. In addition to credibility, the ALJ considered the nature of the
statement, the speaker and the context in which it was made, and whether
it was a stray remark unrelated to the decisional process. In determining
whether a statement is a stray remark:

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[C]ourts look to the relationship between the remarks and the
decisional process, the age-based substance of the statements,
the specificity of the statements, both with regard to the actual
employment decision at issue . . . as well as the relationship of
the remarks to the plaintiff’s situation, and the remoteness in
time from the personnel decision.
Schallehn v. Central Trust & Savings Bank, 877 F.Supp. 1315, 1327
(N.D. Iowa 1995).
18. The Commission did not establish that the ageist comments
were connected to the decisional process. All of the comments introduced
by the Commission were either an isolated use of an age-related comment,
a stray remark, or remote in time and unrelated to the decisional process.
19. Nor did the Commission establish that the DIMSE Committee’s
rating of Complainant’s research and tenure record was false or inaccurate.
20. While universities are not exempt from the Commission’s
scrutiny, it should be noted that as long as the decisions involve the
professional judgment of various faculty members, they should not be
disturbed unless evidence proves that these decisions were somehow
tainted by discriminatory bias.

20
Of all fields, which the federal courts should hesitate to invade
and take over, education and faculty appointments at a
university level are probably least suited for federal court
supervision.
Farrow v. New York Univ., 502 F.2d 1229,1231-2 (2d 1974).
As with all group decision-making, a complex of motives may
exist. Personal animus, factional infighting and politics may
influence and even determine certain . . . employment
decisions, and are legally permissible, if not praise worthy
bases for such decisions. Without a full factual inquiry,
however, it may be extremely difficult to distinguish these types
of permissible, though relatively personal, motivations from
unlawful ones.
Lam v. Univ. of Hawaii, 40 F.3d 1551, 1560 (9th Cir. 1994).
21. After a careful review of the entire record, the ALJ believes the
underlying reasons that Respondent articulated for the denial of
Complainant’s promotion and tenure.

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RECOMMENDATION
For all of the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 9516.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
October 3, 2005