Mitchell v. Ohio State Univ.

Deborah Mitchell, PhD., Plaintiff, v. The Ohio State University, et al., Defendants.

Case No. 2:19-cv-4162

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

September 3, 2020

JUDGE SARAH D. MORRISON

Magistrate Judge Vascura

OPINION & ORDER

Plaintiff Deborah Mitchell, Ph.D. alleges that Defendants The Ohio State University, Michael Drake, M.D., Bruce McPheron, Ph.D., Anil Makhija, Ph.D., Walter Zinn, Ph.D., and Paul Velasco terminated her employment based upon her gender and in retaliation for her gender discrimination complaints to Ohio State. She also alleges Defendants violated her due process and equal protection rights during the termination process. Defendants' Motion to Dismiss ("Motion") is fully briefed. (ECF No. 44.) After due consideration, the Court DENIES the Motion in part and GRANTS the remainder.

I. BACKGROUND

The Second Amended Complaint details incidents dating back to 1990. The following recitation of facts is limited to the relevant timeframe and is accepted as true only for the purposes of the instant motion.

A. Dr. Mitchell's Employment at Ohio State

Ohio State University is an institution of higher education with a business school named the Fisher College of Business. (ECF No. 38 at ¶ 9). Ohio State hired Dr. Mitchell in March 2012 as a Clinical Associate Professor at Fisher in the marketing and logistics department. Id. ¶ 8. At the time, Ohio State knew that Dr. Mitchell served as President of CypressTree Corp., her own consulting business. Id. ¶¶ 87-88.

1. Executive Education

Dr. Mitchell taught for the Fisher Executive Education ("Executive Education"), a unit within Fisher focused on teaching executive-level individuals. Id. ¶¶ 65-66, 94-96. Non-defendant John Resnick is a program manager for Executive Education. Id. ¶ 68. Non-defendant Marty Schwalbe was his boss. Id. ¶¶ 69-74. In 2014, Dr. Mitchell told Mr. Schwalbe that Mr. Resnick was sexually harassing female Executive Education staffers. Id. ¶ 69. That same year, she also told Mr. Schwalbe that Mr. Resnink had changed teacher evaluations without authorization. Id. ¶ 73. Fisher took no action regarding her complaints. Id. ¶ 72. Instead, Mr. Resnick was promoted. Id.

Dr. Mitchell taught employees from the Ohio Department of Medicaid ("ODM") "business concepts for their professional development" through the Executive Education program. Id. ¶¶ 94, 96. After the course completed, Dr. Mitchell personally followed-up with those employees twice in the summer of 2015. Id. ¶ 99. Shortly after her final visit with those students, ODM and CypressTree entered in an embedded consulting agreement ("ODM Contract") in August 2015 involving material different from that covered in the Executive Education program. Id. ¶¶ 103, 104, 110.

Defendant Paul Velasco became the Executive Director of Executive Education in April 2016. Id. ¶ 119. In May 2016, Mr. Schwalbe told Mr. Velasco that the ODM Contract violated Dr. Mitchell's Executive Education contract. Id. ¶ 120. Dr. Mitchell was not notified of Mr.Schwalbe's complaint at that time. Id. ¶ 123. Instead, CypressTree continued to perform under the ODM Contract, which was ultimately extended. Id. ¶ 121.

2. The 04-Complaint Process and Dr. Mitchell's Termination.

On January 3, 2017, Mr. Velasco lodged a complaint against Dr. Mitchell pursuant to Ohio Administrative Code ("OAC") 3335-5-04¹ ("04-Complaint") with Defendant Dr. Anil Makhija, Fisher's Dean. Id. ¶ 124. The 04-Complaint alleged that the ODM Contract constituted "grave misconduct" because it "unfairly competed" with Ohio State. Id. ¶ 125. Specifically, the 04-Complaint asserted that Dr. Mitchell, via the ODM Contract, violated the: (1) Faculty Conflict of Commitment Policy; (2) Faculty Financial Conflict of Interest Policy; and (3) no solicitation clause in her Executive Education teaching contract. Id. ¶ 115. Pursuant to OAC 3335-5-04(B)(5), Dr. Makhija sent the 04-Complaint to Dr. Mitchell's department chair, non-defendant Dr. Tom Goldsby, for initial review. Id. ¶ 129. Dr. Goldsby found probable cause only as to the Faculty Financial Interest Policy ("Policy") count and referred the matter to Dr. Makhija under OAC 3335-5-04(C)(2). Id. ¶¶ 116, 129.

This triggered Dr. Mitchell's February 2017 meeting with Dr. Makhija under OAC 3335-5-04(D)(1). Id. ¶ 132. During that encounter, she presented him with two binders of documents supporting her position that she had not violated the Policy. Id. Seven months later, Dr. Makhija determined that probable cause existed as to the violation and that an informal resolution was inappropriate. He then turned the 04-Complaint over to Fisher's College Investigation Committee ("CIC") pursuant OAC 3335-5-04(D)(2). Id. ¶ 134. The CIC was comprised of Dr. Mitchell's peers from Fisher. Id. ¶ 135.

Dr. Mitchell received no communication from the CIC until February 26, 2018, when it asked for a redacted document that she had previously provided to Dr. Makhija in February 2017. Id. ¶ 136. Due to a miscommunication Dr. Mitchell did not provide the requested information. Id. ¶¶ 137, 140, 143. A CIC member contacted ODM to obtain the information, although the OAC required him to keep the 04-Complaint confidential. Id. ¶¶ 143-44. Dr. Mitchell requested that member be removed from the CIC for that action but her request was denied. Id. ¶ 145.

The CIC concluded in July 2018 that Dr. Mitchell had violated the Policy and recommended that she be immediately terminated. Id. ¶ 148. One month later, Dr. Makhija affirmed the Committee's decision and barred Dr. Mitchell from teaching at Fisher while requiring her to perform her other regular duties. Id. ¶¶ 150-51.

Dr. Mitchell appealed Dr. Makhija's decision to Dr. Bruce McPheron, Ohio State's Executive Vice President and Provost and Chief Academic Officer.² Id. ¶¶ 11, 154. In November 2018, Dr. McPheron affirmed the decision, so Dr. Mitchell appealed his determination. Id. ¶ 155.

Her appeal resulted in an April 29, 2019 hearing before the Faculty Hearing Committee ("FHC"). The FHC was comprised of faculty from across Ohio State. At the hearing, she presented evidence and testimony but was unable to examine the complainants, Mr. Schwalbe and Mr. Velasco. Id. ¶¶ 155-57. Ohio State did not present any testimony at the hearing,choosing instead to rely upon documentary evidence in support of the recommendation for termination. Id. ¶¶ 157-59.

The FHC also ruled against Dr. Mitchell, so she appealed to Ohio State President Dr. Michael Drake. Id. ¶ 160. On July 31, 2019, Dr. Drake recommended that Ohio State's Board of Trustees affirm her termination. Id. ¶ 162. The Board agreed, and Dr. Mitchell's employment at Ohio State was terminated on August 30, 2019. Id. ¶ 163.

3. Reappointment

Dr. Mitchell's 2018-2019 reappointment request was proceeding simultaneously with the later stages of the 04-Complaint process. Dr. Mitchell provided her updated dossier to Dr. Goldsby in the fall of 2018 as part of the reappointment process. Id. ¶ 229. The reappointment decision was to be completely separate from the 04-Complaint. Id. ¶ 230.

After the voting faculty members within her department considered her materials, zero voted to renew, two voted not to renew and nine abstained. Id. ¶ 233. The votes against reappointment were based on the ODM Contract's failing to enhance Fisher's national and international reputation and on the committee's inability to gauge Dr. Mitchell's effectiveness at teaching a core class.³ Id. ¶ 237. Dr. Makhija noted the two votes against renewal when declining to reappoint Dr. Mitchell. Id. ¶ 236. Ohio State hired a male professor without a marketing degree to replace her. Id. ¶¶ 241-42.

Dr. Mitchell appealed the non-renewal to Ohio State's Committee on Academic Freedom and Responsibility ("CAFR") which decided that Fisher had utilized an improper reappointmentprocess because nine abstentions out of eleven did not produce a quorum. Id. ¶¶ 243-45. But her August 30, 2019 termination mooted her reappointment and CAFR's decision. Id. ¶ 246.

B. Second Amended Complaint

Dr. Mitchell filed her Charge Affidavit with the United States Equal Employment Opportunity Commission on October 25, 2018. Id. ¶ 2. She instituted this case within ninety days of receiving her Right to Sue Letter. Id.

Dr. Mitchell's first two counts are against Ohio State for gender discrimination under Title VII, 42 U.S.C. § 2000 et seq., and for retaliation under Title IX, 20 U.S.C. § 1681. Id. ¶¶ 232-39. The remaining two counts are against Dr. Drake, Dr. McPheron, Dr. Makhija, Dr. Zinn and Mr. Velasco (collectively "Individual Defendants") in their personal and official capacities. Those claims allege violation of due process and equal protection under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Id. ¶¶ 260-83. She seeks declaratory, injunctive, and monetary relief. Id. at Wherefore ¶¶ a-g.

II. STANDARD OF REVIEW

Defendants proceed under Fed. R. Civ. P. 12(b)(1) when arguing that some of Dr. Mitchell's claims fall outside the governing statutes of limitations. Rule 12(b)(1) provides that the defendant may file a motion to dismiss based on a "lack of jurisdiction over the subject matter." The standard of review of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction depends on whether the defendant makes a facial or factual challenge to subject matter jurisdiction. Wayside Church v. Van Buren County, 847 F.3d 812, 816-17 (6th Cir. 2017). Only the former is present here. A facial attack "questions merely the sufficiency of the pleading." Gentek Bldg Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). It requiresthe court to "take[] the allegations in the complaint as true." Id. The plaintiff has the burden of proving jurisdiction when subject matter jurisdiction is challenged. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986).

Defendants...