MARK R. ABEL, United States Magistrate Judge.
Plaintiff Dr. Sheryl L. Szeinbach ("Szeinbach") has brought this action alleging claims against Defendant The Ohio State University ("OSU") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for retaliation and for discrimination and retaliation by association. This matter is before the Court on OSU's motion for summary judgment (Doc. 122).
The following facts are drawn from the parties' pleadings, the deposition transcripts and exhibits filed in this case, and the exhibits accompanying the summary judgment motion and its opposition. The Court notes at the outset that the factual record in this case is voluminous, encompassing twenty-four depositions and hundreds of pages of exhibits. Plaintiff's memorandum contra summary judgment, aside from its attachments, is some 121 pages long, and contains an exhaustive narrative concerning Szeinbach's disputes with her colleague Dr. Raj Balkrishnan, the nature and progress of an investigation into alleged research misconduct on her part, and her extensive arguments—supported by the testimony of two expert witnesses—that OSU should have conducted thorough investigations of three of her colleagues as well. Although it has reviewed the factual record, given this wealth of detail the Court will herein summarize that portion of the undisputed factual record directly relevant to the issues raised by the motion for summary judgment and the parties' briefs of those issues.
Szeinbach came to OSU's College of Pharmacy ("COP") from the University of Mississippi in 1999, starting as a full professor with tenure. (Doc. 122-17 at 3.) Szeinbach is currently employed in COP's Division of Pharmacy Practice and Administration ("PPAD"). In 2002, COP hired Dr. Enrique Seoane-Vazquez ("Seoane"), a native of Spain, as an assistant professor.
In 2005, Dr. Milap Nahata ("Nahata"), the chairman of PPAD, appointed Balkrishnan to prepare and present Seoane's February 9, 2005 annual review to PPAD's promotion and tenure committee. According to Szeinbach, she had observed Balkrishnan and Nahata discriminating in favor of students of Indian origin. (Doc. 135-1 at 3.) During the review, Balkrishnan apparently made plain his opinions that Seoane was not a productive member of the COP faculty. (Doc. 98 at 4; 98-1 at 7.) The next day, Szeinbach sent an email to Robert Brueggemeier, the dean of COP, stating:
(Doc. 98-1 at 7.) In the following months, Szeinbach deliberately got to know Seoane better, and "wanted to work with him so that . . . I could find out . . . where's all this coming from, maybe the faculty is right, maybe there's something wrong with this guy." (Doc. 110 at 56.) She concluded that there was "absolutely nothing wrong with Enrique" and that "for some reason people were really trying to sabotage his efforts to do research . . . that's when I became concerned and said, whoa, this—this has to stop." (Id.)
On August 22, 2005, Seoane submitted an internal complaint at OSU, alleging "discrimination and retaliation." (Doc. 98 at 4.) Szeinbach did not help him file it, and was not aware at the time that Seoane had filed the complaint. (Doc. 110 at 55-56.) She provided Seoane with a copy of her February 10, 2005 email to Dean Brueggemeier, but did nothing else in particular to support his complaint except that she "listened to him." (Id. at 56.) The COP's investigation committee investigated Seoane's OSU HR complaint, interviewing numerous faculty, including Szeinbach, Balkrishnan, Cynthia Carnes ("Carnes"), Craig Pedersen ("Pedersen"), and Phillip Schneider ("Schneider"). Szeinbach told the committee that Balkrishnan had attempted to change the ranking of one of Seoane's students, that students had reported to her that Balkrishnan did not want Seoane's students to do as well as his, and that an Indian graduate student had been told to switch to an advisor of Indian national origin. (Doc. 135-5 at 4.) An OSUHR investigator separately, in October 2005, interviewed Szeinbach, Seoane, Schneider, and two graduate students concerning Seoane's racial discrimination claims. Szeinbach told the OSU-HR investigator that Nahata and Balkrishnan were working together to end Seoane's employment, and that some COP students were being told not to take her classes. She also told the investigator that Nahata had falsely reported that she had voted in favor of a negative annual review for Seoane. (Id.)
On November 3, 2005, Szeinbach sent an email to Dr. James Dalton ("Dalton"), the chairman of the promotion and tenure committee, complaining of several inaccuracies and omissions in materials which Nahata had recently circulated for Seoane's fourth-year review. (Doc. 98-1 at 9-10.) Dalton responded to this email, noting that Brueggemeier had recently announced that the college would be restarting Seoane's review and discarding all existing materials. (Id.)
Balkrishnan and Szeinbach clashed repeatedly. Pedersen testified at deposition that he had seen Szeinbach and Balkrishnan "go at it pretty good in faculty meetings"; they would "typically raise their voice at each other. And they would typically not treat the other one with respect." He opined that they were both equally to blame for their personal conflicts, and that "they were both very good at raising the ire of the other one." (Doc. 109 at 58.) Brueggemeier testified that for three years in a row he had to inform Balkrishnan that he was receiving a lower annual raise because of "his lack of ability to . . . appropriately interact with students and faculty in the Division". He referred to disagreements Balkrishnan had with
On February 16, 2006, Balkrishnan sent an email to Dean Brueggemeier and Nahata complaining about teaching assistantship ("TA", "GA", or "GTA") position allocations, and stating that he nevertheless understood if the department was funding "unqualified GAS" "for fear of additional `discrimination' law suits, which are as usual, totally baseless." (Doc. 118-11 at 2.) In May and June 2006, Balkrishnan allegedly advised his students not to participate in a research program Szeinbach advised, and complained about Szeinbach to a group of peers at a national conference. (Doc. 132 at 4; Doc. 130 at 15.) On June 23, 2006, Balkrishnan sent an email to Brueggemeier and Nahata alleging that a faculty candidate had been contacted several times by Szeinbach and advised not to come to the COP, because of discrimination there and the bad influence of Balkrishnan himself. (Doc. 118-11 at 6.) He alleged further that she had complained to a prospective PhD student that he was a "slaved river" and "an evil person", and that the candidate should work with her instead. Finally, he claimed that Szeinbach had slandered him and the COP at the recent International Society for Pharmacoeconomics and Outcomes Research ("ISPOR") meeting, and that she had falsely reported to OSU HR that he was harassing her students. (Id.) On July 14, 2006, Balkrishnan sent an email to Brueggemeier complaining that in one of her classes Szeinbach gave her students the answers to exam questions the day before the exam. (Id. at 9.)
Several of Szeinbach's colleagues (although not including Balkrishnan), sent Brueggemeier a letter on June 6, 2006, "to express the collective frustration and dissatisfaction of several Senior members of [PPAD] with . . . Dr. Sheryl Szeinbach." (Doc. 127-1 at 32.) They complained that she rarely attended division meetings, and that when she did so she disrupted the proceedings and was disrespectful of others, "so much so that several members refuse to attend the meetings, and most dread them." The writers alleged specifically that Szeinbach had done a poor job teaching individual classes, and that three graduate students had asked to have their advisor reassigned. They stated that "[n]one of us feel that . . . the Graduate Program [is] better now than when she came", and stated that the complaints they were addressing were known to colleagues around the country, reflecting poorly on COP's reputation. (Doc. 127-1 at 32-33.)
On September 6, 2006, Seoane filed a charge of discrimination against OSU with the Equal Opportunity Commission ("EEOC") and the Ohio Civil Rights Commission ("OCRC"). Szeinbach again did nothing specific to assist Seoane with filing this charge. (Doc. 111 at 27.) On the same day, Szeinbach sent Balkrishnan an email claiming that one of her graduate students reported that Balkrishnan had been harassing her to join his research instead. (Doc. 118-11 at 10.) Balkrishnan forwarded this email on to Brueggemeier and Nahata, stating that he was tired of baseless allegations and "harassment" from Szeinbach, and that "she also has a tendency to storm into my office and say things which do not make any sense". (Id.) He then forwarded the email to Ms. Chitra Iyer, an HR officer at OSU, accompanied by a lengthy complaint against harassment on the part of Szeinbach. (Doc. 122-5 at 22.) Balkrishnan alleged the harassment had included:
(Id.) Balkrishnan claimed further that Szeinbach had been misusing her senior faculty rank to harass and intimidate him, and that she had told him that she wanted him to leave as soon as possible. (Id.) Later that day, Brueggemeier sent a follow-up email to Vice Provost Barbara Snyder, Iyer, and Nahata, stating:
(Id. at 21.)
Later, on September 8, 2006, Balkrishnan sent an email to Brueggemeier reporting that two of Szeinbach's students who held TA positions also worked full-time elsewhere, and complaining that this was unfair to his students. (Id. at 11.) On September 21, 2006, he sent another, complaining that Szeinbach's graduate students were being permitted to keep their TA positions despite having failed to enroll in a compulsory seminar. (Doc. 118-11 at 14.) On September 26, 2006, Balkrishnan sent another email to Iyer in response to her voice mail, complaining again of false allegations leveled by Szeinbach and Seoane, and claiming that he and his students had been harassed. (Doc. 118-10 at 6-7.)
In November 2006, Szeinbach filed an EEOC charge against OSU. In it, she stated:
(Doc. 122-2 at 2.) In December 2006, Szeinbach filed an internal complaint with OSU's Office of Human Resources ("OSU HR"), alleging that Brueggemeier had retaliated against her for her support of Seoane's EEOC complaint.
On February 13, 2007, Balkrishnan sent an email to Brueggemeier and Nahata claiming that one of his research collaborators had reported to him that Szeinbach had called to complain at length about Balkrishnan and to report that he had been discriminating against Seoane. Balkrishnan commented that "[t]hese obviously seem to be the rantings of someone who is quite discontent and unhappy here". (Doc. 118-11 at 48.) He sent several more emails throughout 2007 complaining about Szeinbach, Seoane, their graduate students, and their alleged misconduct. (See Doc. 118-12 at 1-2 (unprofessional TA conduct);
On April 28, 2007, Balkrishnan sent an email to Dr. Mark Levy, editor of Primary Care Respiratory Journal, concerning an article which Szeinbach had co-authored and which his journal had recently published. Balkrishnan stated that the 2007 article had reported "exactly identical results just analysing the data slightly differently" from a 2005 article Szeinbach had co-authored in a different journal, and that the 2007 article had failed to reference the 2005 article.
Soon thereafter, Balkrishnan filed an OSU "whistleblower" complaint charging Szeinbach with research misconduct.
Upon initial review, Dean Brueggemeier determined that the similarities between the two articles might meet the definition of research conduct under the Interim Research Policy and should be referred to a CII. (Doc. 102-1 at 16.) He recommended to Vice President McGrath that the matter not be resolved through alternative dispute resolution. (Doc. 68-1 at 177.) McGrath organized a CII, charging it with determining whether Balkrishnan's allegations contained sufficient evidence of possible misconduct to warrant further investigation under the disciplinary rules. (Doc. 122-7 at 6.) The CII first met on August 15, 2007, and again in September and October 2007. On November 16, 2007, it produced its preliminary report. The CII considered four potential areas of misconduct. It rejected three of these, but found potential misconduct in Szeinbach's failure to cite her 2005 article in her 2007 article "seriously deviates from commonly accepted practices within the research community and as such represents misconduct."
In June 2007 Szeinbach submitted a correction note, which was published in the Primary Care Respiratory Journal, stating that she and the other authors of the 2007 article "were remiss" in not acknowledging that the article used the same data set as the 2005 article, and in not making reference to the 2005 article. (Doc. 122-4 at 5.) In the same issue, the publishers of the Journal issued an editorial chastising Szeinbach and the other authors of the 2007 article for failing to cross-reference the two. (Doc. 160-2 at 15.) On August 13, 2007, Balkrishnan emailed a copy of the editorial to the entire COP faculty, accompanied by a note that he was "extremely saddened to report that a major clinical journal has published this. This is a matter
At a September 4, 2007 faculty meeting to discuss graduate teaching assistantship allocations, Balkrishnan and Szeinbach argued about TA qualifications. Finally, Balkrishnan exploded at Szeinbach, shouting at her and calling her a "bitch". (Doc. 118-13 at 5.) On September 17, 2007, Brueggemeier sent a letter to Balkrishnan, informing him that his actions at the meeting had been "very unprofessional, extremely rude, and totally unacceptable." (Doc. 119-2 at 2.) He stated that Balkrishnan's actions would not be tolerated, and that he had told him before not to engage in discussions or interactions with Szeinbach, Seoane, or their graduate students outside of classes. "The last time that I emphatically made these points was in early August 2007 following the exchange of e-mails between you and Dr. Szeinbach that were sent to the entire College faculty." Brueggemeier restricted access to Balkrishnan's endowed chair development funds, except for the purpose of finding a "coach or mentor". He urged Balkrishnan to seek anger management assistance from OSU's HR office. (Id.) Balkrishnan eventually received counseling. (Doc. 119 at 13-14.)
Finally, on October 12, 2007, Szeinbach filed a second charge with the EEOC, citing the research misconduct investigation and Balkrishnan's outburst at the September 4, 2007 faculty meeting. On August 27, 2008, she filed this lawsuit. Balkrishnan left OSU to move to the University of Michigan in Spring of 2009.
In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (concluding that the court must draw all
However, the Burlington Northern Court cautioned, not all actions which could be construed as retaliatory in motive are materially adverse; the statute is intended to protect an employee only "from retaliation that produces an injury or harm." Id. at 67, 126 S.Ct. 2405.
Id. at 68, 126 S.Ct. 2405 (citations omitted). See also Garner v. Cuyahoga County Juvenile Court, 554 F.3d 624, 640 (6th Cir. 2009) (producing an "injury or harm" a fundamental requirement for demonstrating retaliation). This is an objective test, and "should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Burlington Northern, 548 U.S. at 71, 126 S.Ct. 2405. "[T]he significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." Id. at 69, 126 S.Ct. 2405.
A substantial body of Sixth Circuit caselaw exists concerning materially adverse actions. Many of these decisions followed an older, more restrictive, standard which Burlington Northern abrogated for claims of retaliation. See, e.g., Primes v. Reno, 190 F.3d 765, 767 (6th Cir.1999). Others, however, postdate Burlington Northern or are earlier decisions which have not been abrogated. These generally give guidance as to what sort of employment actions should qualify as adverse. For instance, in Michael v. Caterpillar Financial Servs. Corp., 496 F.3d 584, 596 (6th Cir.2007), the court found that the brief placement of an employee on paid administrative leave and the establishment of a performance plan for her could meet the "relatively low bar" established by Burlington Northern. In Wharton v. Gorman-Rupp Co., 309 Fed.Appx. 990, 997-98 (6th Cir.2009), the court found a threatening confrontation with a superior in a parking lot to be a materially adverse employment action. In Halfacre v. Home Depot, USA, Inc., 221 Fed.Appx. 424, 425 (6th Cir.2007), the court found that low employee performance evaluation scores could constitute an adverse employment action if they actually impacted the employee's wages and professional advancement.
However, in James v. Metropolitan Gov't of Nashville, 243 Fed.Appx. 74, 79 (6th Cir.2007), cert. denied, 552 U.S. 1140, 128 S.Ct. 1066, 169 L.Ed.2d 807 (2008), the court found that an employee who had received bad employment evaluations, had been denied a lateral transfer, and had had
This court has previously held that receiving verbal warnings concerning employee misconduct or the dismissal of an employee's grievance related to a performance evaluation do not amount to an adverse employment action, if an employee cannot demonstrate that these actions significantly impacted her professional advancement. Covert v. Monroe County Dep't of Job and Family Servs., 2010 WL 2346550 at *8-9 (S.D.Ohio June 8, 2010). See also Taylor v. H.B. Fuller Co., 2008 WL 4647690 at *8-9 (S.D.Ohio Oct. 20, 2008) (verbal warning with no accompanying detrimental effect on career not an adverse employment action). Furthermore, in one case where a professor at Ohio State University claimed that he had been retaliated against for complaining of race discrimination by having his dean file a complaint against him, this court found that "the mere lodging of a complaint cannot reasonably chill an employee from himself complaining of discrimination." Alexander v. Ohio State Univ. College of Social Work, 697 F.Supp.2d 831 (S.D.Ohio 2010).
In Mitchell v. Vanderbilt Univ., 389 F.3d 177 (6th Cir.2004), a professor of medicine who had continued to work after the age of sixty-five alleged that he had suffered adverse employment actions, including a reduction in his allotted research lab space, the revocation of his mentor status, the loss of his graduate research assistant, a proposed (although unimplemented) reduction in pay and reassignment, the forced review of his grant applications, the removal of an administrative responsibility, and the university's failure to select him as medical director of clinical laboratories.
Finally, and significantly in this case, "[t]he law in our circuit is that actions that are not implemented are not adverse employment actions." Scott v. Metropolitan Health Corp., 234 Fed.Appx. 341, 348 (6th Cir.2007), citing Mitchell, 389 F.3d at 182. Where potentially harmful actions are merely contemplated, or are taken but then immediately rescinded, the employee has not suffered an adverse employment action. Id. These attempts to modify an employee's position, especially where they do not rise to the level of credible threats by a decision maker, do not amount to an "injury or harm" sufficient to satisfy Burlington Northern.
(Doc. 130 at 1-2.)
These alleged adverse employment actions are generally divisible (based upon the facts which Szeinbach cites in support of them) into actions allegedly performed by Dr. Balkrishnan, other alleged actions performed by OSU itself, and the research misconduct investigation.
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir.2008). The first element in the Hawkins test implies two prongs: that the co-worker's conduct amounted to an adverse employment action, and that it was retaliatory in nature. Owen v. Peake, 2008 WL 4449011 at *4 (S.D.Ohio Sept. 26, 2008). Szeinbach alleges that Balkrishnan committed several adverse employment actions, that they were retaliatory, and that OSU is liable for them.
However, the actions she claims Balkrishnan committed amount for the most part to his ineffectual complaints about Szeinbach, her work, and her students, and her characterizations of them appear to be exaggerated. Based upon the evidence she cites in support of them, no reasonable finder of fact could determine, even under the Burlington Northern standard, that they amounted to conduct sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination, rather than commonplace academic in-fighting or griping.
Her claim (No. 8) that there was an attempt to prohibit her from teaching required COP courses or advising doctoral students is based upon an August 6, 2007 email Balkrishnan sent to Dr. Patrick Osmer, dean of graduate studies, on which he copied Hayton, Bruggemeier, Nahata, and Carnes. In it, he claimed that Szeinbach had lodged a complaint that he had been barring his students from taking a required course Szeinbach taught. Balkrishnan denied the accusation, but alleged in turn that his students had been reporting that Szeinbach's class was incompetently taught. Citing the research misconduct allegations against Szeinbach as well, he stated:
(Doc. 118-12 at 57-58.) This hectoring by one of Szeinbach's colleagues, which she does not allege ever resulted in any action, cannot reasonably be construed as an "attempted prohibition" OSU imposed on her teaching or advising. Szeinbach furthermore does not explain how OSU encouraged or condoned this "attempt", except to note that "nobody except Dean Osmer suggested Balkrishnan's email might be inappropriate." (Doc. 130 at 39.) As to Osmer, she simply cites his email response of the next day that complaints of academic misconduct were handled through the university's process, and that any action concerning academic misconduct had to await the outcome of that process. (Doc. 118-12 at 59.)
Szeinbach's claim (No. 9) that there was an attempt to cancel her scheduled classes is similarly based upon a June 18, 2007 Balkrishnan email to several colleagues relating to graduate teaching assistant stipends. At the end, he noted concerning Dr. Szeinbach: "Also she is teaching 326 this summer with only 1 student enrolled. Is that being allowed?" (Doc. 127-1 at 14.) She again does not allege that this inquiry led to any action against her, and instead simply asserts that "none of the recipients of this email suggested that it was in any way inappropriate." (Doc. 130 at 37.) However, this email is not plausible support for the proposition that OSU condoned or supported an effort by Balkrishnan to have Szeinbach's classes cancelled. It is also not clear why this email, though it might have been intended to annoy Szeinbach, would have of itself posed an inappropriate inquiry; at most, it amounts to de minimis academic squabbling or bureaucratic tattling.
The allegation of an attempt to eliminate funding to Szeinbach's teaching assistants (No. 10) is based upon a series of emails Balkrishnan sent to Nahata, Pedersen, Brueggemeier, and/or Hayton complaining about actions or inactions on the part of Szeinbach's TAs, such as failure to do enough teaching work, full-time employment other than at COP, and failure to participate in graduate student activities. (Doc. 118-11 at 1-2, 11, 14.) Finally, on February 22, 2007, Balkrishnan sent an email to Brueggemeier with a copy to several
Hayton responded to this email by stating that risking graduate students' good academic standing over attendance at the seminar would be a non-trivial change that the faculty would have to decide upon and make clear to the students. He also commented, "[h]as the eligible faculty ... made the decision that seminar attendance is precondition to holding a GTA and has that been communicated to students?" (Id. at 1.) Szeinbach characterizes this tepid response as "Hayton told Balkrishnan his plan to eliminate funding for Szeinbach and Enrique's teaching assistants was premature... But, Hayton proposed a modification of COP rules so Balkrishnan could accomplish his goal." (Doc. 130 at 29.) No reasonable finder of fact could give credence to this interpretation of Hayton's statement. In any case, once again, Szeinbach has not presented any evidence to suggest that funding for her TAs was ever affected by this email.
Finally, Szeinbach's allegation of "attempted limitations on Szeinbach's ability to participate in COP promotional votes" (No. 11) is based upon a June 14, 2007 email from Balkrishnan to Brueggemeier, Nahata, and a Dr. Dasta stating his opinion that, given his pending HR complaint against Szeinbach, she should excuse herself from participating in any review of Balkrishnan's professional accomplishments, and noted that he himself had done so with respect to Dr. Seoane.
Listed action No. 2, Balkrishnan's defamatory attacks on Szeinbach's character that caused her to suffer physical and psychological harm, encompasses a broad range of communications and actions by him. The Court notes initially that the existence, extent, and nature of medical treatment which Szeinbach allegedly sought as a result of such defamatory attacks is not relevant to the question of whether the attacks were, as a matter of law, an adverse employment action. This is because Burlington Northern imposed an objective standard evaluating what distress an action would cause a "reasonable worker", not a subjective standard evaluating what effect an action actually did have on a particular plaintiff. The issue at hand, therefore, is whether Balkrishnan's
Szeinbach refers in part to Balkrishnan's emails relating to the publication misconduct controversy, the alleged poor quality of her teaching, or of her graduate students' alleged lack of professionalism. (Doc. 130 at fn 2.) She also refers to a September 20, 2007 email from Balkrishnan to a student advising him that he had explicit instructions not to interact with students of Drs. Seoane and Szeinbach, "based on complaints filed by these faculty and their students against me for harrassment and discrimination, a charge I strongly deny." (Doc. 118-12 at 24.) Furthermore, on October 8, 2007, Balkrishnan sent an email to Larry Lewellen, an OSU HR investigator, refusing to cooperate further with his investigation and referring Lewellen to his lawyer. In this, Balkrishnan described Szeinbach's allegations against him as "harrassment" and "discrimination" based on "false allegations by disgruntled faculty whose previous allegations... have proven to be false." (Doc. 119-2 at 12.) The "defamatory attacks" in these emails appear to amount to little more than denials of Szeinbach's allegations, and are de minimis.
Balkrishnan's dislike of Szeinbach, however, led to at least one public confrontation at a September 4, 2007 faculty meeting concerning TA appointments for graduate students. According to the account of Dr. Carnes, who was present:
(Doc. 118-13 at 4-5.) According to Carnes, Szeinbach then addressed Balkrishnan's arguments further and made some additional points about graduate student policy. Following some additional discussion and a faculty vote, most of the professors left; Szeinbach remained to see the results of the vote and to discuss TA positions with Carnes. (Id. at 5.)
This outburst, though Defendant concedes it was unprofessional and unacceptable, amounted, even viewed in the light most favorable to Szeinbach, to a heated argument between two colleagues. In Somoza v. University of Denver, 513 F.3d 1206 (10th Cir.2008), the court found that
In addition, Plaintiff argues that Balkrishnan's January 25, 2007 complaint to OSU HR about being harassed by false allegations was an adverse employment action. (Doc. 130 at 26.) However, as this court has held before, "the mere lodging of a complaint cannot reasonably chill an employee from himself complaining of discrimination." Alexander, 697 F.Supp.2d at 852. Szeinbach cannot reasonably complain that Balkrishnan's engagement in the protected activity of filing an HR complaint was an action which would have dissuaded her from filing her own; it appears, in fact, that seeing another file a false report with which she disagreed would make a reasonable worker more likely to file her own. Moreover, as noted below, an internal investigation unaccompanied by any significant ramifications does not inflict an injury or harm amount to material adversity.
It is abundantly clear from the record that Dr. Balkrishnan disliked Szeinbach. He appears to have made repeated efforts to annoy or embarrass her, by publicizing the research misconduct allegations against her, complaining about her graduate students and their TA positions, and not concealing his opinions that she was unworthy of her academic position. These are, however, the "personality conflicts at work that generate antipathy" which the Burlington Northern Court said that Title VII would not police. Id. at 68, 126 S.Ct. 2405. That professors in research universities will criticize each other—even savagely—or try to steal each others' research funds is not news to a reasonable person in Szeinbach's position. She has, in her allegations, exaggerated this course of rude and unprofessional activity—which the evidence shows consisted mostly of Balkrishnan complaining about her to anyone who would listen, to no apparent effect—into an organized and widespread campaign to destroy her. Title VII, as the Burlington Northern Court stated, does not set forth "a general civility code for the American workplace." Id. The presence of protected activity will not elevate griping emails and shouting matches into materially adverse employment actions.
(Doc. 130 at 67.) She alleges that Dean Brueggemeier, who was responsible for awarding salary increases, diminished her raises in retaliation (No. 3). However, she does not present any other evidence that, for example, at a time when she was informed of her raise for the upcoming year, she was informed that it had been decreased due to her being under an academic misconduct investigation.
Defendant argues, and the Court agrees, that Nahata and Bennett are not comparable members of faculty. Nahata is the chairman of her division; due to his presumed administrative responsibilities, he is not directly comparable to Szeinbach in the way in which his accomplishment is evaluated or in the nature of his role at the COP. Bennett is a clinical track professor, a group for whom research and scholarship—including number of publications— are not weighted as importantly as clinical activities. (Doc. 134-16 at 22.)
The valid comparators therefore are Buerki and Balkrishnan (who left OSU in 2009). To summarize the data presented:
2008: Buerki: 1 publication, 2 grants. 4.50% raise. Balkrishnan: 27 publications, 2 grants. 3.25% raise. Szeinbach: 3 publications, 0 grants. 3.00% raise. 2009: Buerki: 4 publications, 1 grant. 2.75% raise. Balkrishnan: 20 publications, 5 grants. 3.00% raise. Szeinbach: 3 publications, 0 grants. 2.00% raise. 2010: Buerki: 2 publications, 0 grants. 2.25% raise. Szeinbach: 5 publications, 0 grants. 2.00% raise.
(Docs. 146-1 at 1; Doc. 161 at 3-10.) The evidence Szeinbach has presented about pay raises, however, is insufficient to demonstrate adverse employment action against her. In none of the years at issue did Szeinbach suffer a decrease in pay. That other faculty received raises greater than her by a percentage point or less in almost every case is de minimis, especially given the differences amongst the three professors in base salary upon which these percentages were imposed and the importance attributed by the COP to the ability of faculty to obtain grant funding and the volume of their publication.
Listed action No. 6 alleges that Szeinbach was prohibited from advising Balkrishnan's graduate students after he left OSU. This is based upon an August 4, 2008 email sent by Balkrishnan, part of an email chain to several persons concerning Balkrishnan's new appointment at the University of Michigan. Balkrishnan was addressing the matter of his current graduate students, some of whom would be going to Michigan with him, and others of whom would be staying at OSU. Balkrishnan stated that Nahata would be advising Jun, one of his students, and Kathy Brooks, the Graduate Program Coordinator, responded that Nahata did not have the necessary "Category P" status to advise students. Balkrishnan replied:
(Doc. 119-2 at 20.) Nahata responded: "I will submit my CV for P status. It is my understanding that GRC does not meet during the summer but they can consider
Szeinbach argues that Balkrishnan and Nahata "made sure Szeinbach could not engage in research with any of Balkrishnan's students." (Doc. 130 at 46.) Although Nahata did not say in his reply that he intended to do so, drawing all inferences most strongly in Szeinbach's favor could support a conclusion that Nahata intended to assist not merely with the effort to advise Jun but with Balkrishnan's idea of his former students not being advised by Szeinbach or Seoane. However, Szeinbach has again presented no evidence that Nahata (and Balkrishnan) ever succeeded in barring Szeinbach from advising any of Balkrishnan's former students. Moreover, although Szeinbach asserts generally that the alleged prohibition "reduced" her "ability to work with graduate students", she does not present evidence that, or even allege that, she had any interest in working with any of Balkrishnan's former students and was prevented from doing so. Failure to receive a benefit of employment in which one has expressed no interest does not constitute a materially adverse action. Louisville Water Co., 302 Fed.Appx. at 348.
Szeinbach makes two allegations related to structural changes in the programs at the COP. First, her claim that her ability to perform research with graduate students and attract new students was reduced because her required classroom exposure was reduced is based upon the actions of Brueggemeier's MS Task Force, which he organized in February 2008 to make recommendations regarding the MS in Health System Pharmacy program (No. 7). The MS Task Force eventually made several recommendations:
(Doc. 133-1 at 10.) Szeinbach contends that the task force's recommendations were intended to retaliate against Szeinbach and Seoane "to keep Balkrishnan happy", because Szeinbach and Seoane taught Pharmacy 821 and 824.
Second, Szeinbach alleges that she suffered from the suspension of student enrollment in an OSU graduate program which largely eliminated her ability to perform research with graduate students (No. 1). This is a reference to the fact that, on October 24, 2008, Carnes, the director of pharmacy administration graduate programs, announced that admission of graduate students to the PPAD graduate program was suspended "until there are additional faculty to support this program." (Doc. 53-3.) According to Szeinbach, this decision only affected her and
A claim of retaliation requires that the defendant "took an adverse employment action toward him". Fox v. Eagle Distributing Co., Inc., 510 F.3d 587, 591 (6th Cir.2007) (emphasis added). The filing of EEOC complaints does not utterly insulate a member of a university faculty from unfavorable administrative changes to courses or programs. The definition of adverse employment action, while it is not limited merely to direct and obvious changes in the conditions of employment such as demotion, does not encompass any action whatsoever an organization might take which discomfits or inconveniences a person engaging in protected activity. For a company to fire an employee could certainly amount to an adverse employment action, but for that company to instead close the factory at which the employee works cannot rationally be deemed an adverse employment action directed at a single employee. For a college, as here, to periodically review the curriculum of required courses and make moderate alterations is, in the words of the Mitchell court, "properly considered good institutional administration rather than a materially adverse employment action." Mitchell, 389 F.3d at 182. Likewise, a court cannot rationally consider a college's failure to keep open a graduate program with only two remaining faculty an adverse employment action taken against the remaining instructors.
Finally, Szeinbach alleges generally that there was an "attempted termination" of her employment (No. 5). In her memorandum contra, Szeinbach referred by this not to the academic misconduct investigation, but to a body called the PPAD Visions and Strategy Group ("VSP"). This was a group of faculty organized in 2007 in response to the competing claims of discrimination filed by Szeinbach, Balkrishnan, Seoane, and Dr. Jessie Au, "to explore options for taking action against disruptive behaviors ... and to discuss ways to change the culture of the division." (Doc. 133-1 at 24; see also Doc. 53-1 at 84.) Szeinbach points out that the membership of the VSP consisted entirely of persons who had complained in writing in June 2006 to Dean Brueggemeier about Szeinbach, and notes a September 29, 2007 email in which the OSU HR staff member coordinating the VSP emailed Dean Brueggemeier asking him to speak at the next meeting about the "feasibility of moving Dr. Szeinbach" and the "process for enacting Faculty Rule 6-04". (Doc. 133-1 at 24.) However, despite what could be inferred as its hostility to her interests, the VSP, whether or not it attempted to do so, did not terminate Szeinbach's employment, and Szeinbach has presented no evidence of any injury or harm she suffered by its actions.
In the case of Balkrishnan, who actually discovered the correlation between the two publications, notified the editors, sent emails to colleagues concerning the matter, and filed the whistleblower complaint which formally began the process, his activities with respect to the investigation are obvious. However, even drawing all reasonable inferences in Szeinbach's favor, the evidence she cites in her memorandum contra does not support the proposition that Nahata, Brueggemeier, Pedersen, Schneider, or Hayton—the other alleged participants in the "Retaliation Plan"— performed or conspired to perform the adverse employment action of subjecting Szeinbach to a research misconduct complaint. As far as the Court can tell, Plaintiff only alleges that Hayton and Pedersen were involved in the process to the extent that Balkrishnan once forwarded an email to them from one of the editors of Szeinbach's publications and discussed over email with them whether any subsequent investigation should involve the student co-author of the publication. (Doc. 130 at 55.) She does not appear to make any concrete allegation at all concerning Schneider. (Doc. 130 at 53-65.) These contentions appear either to be meritless or to have been abandoned. Szeinbach likewise does not appear to make any allegation that Nahata was involved in Balkrishnan's misconduct complaint, except again to the extent that Nahata was copied on Balkrishnan's emails announcing what he had discovered and vague assertions that Balkrishnan discussed the whole matter with his colleagues before filing his complaint.
Brueggemeier, according to Szeinbach's memorandum contra, "provided life support" to Balkrishnan's "dead in the water" complaint when he concluded that the matter might meet the definition of misconduct under the Interim Research Policy and should be referred to a Committee of Initial Inquiry. (Doc. 130 at 56, citing Doc. 102-1 at 16.) "Then, before the CII was organized, Brueggemeier torpedoed Szeinbach's attempts to resolve the dispute via ... alternative dispute resolution." (Id., citing Doc. 68-1 at 177.) This refers to Brueggemeier's recommendation to Vice President McGrath that the matter be referred to a CII instead of to alternative dispute resolution.
In any case, as before, the fundamental question is whether the investigation constituted an adverse employment action at all. On its face, of course, being investigated for potential research misconduct is not an experience which any worker would care to face. Plaintiff cites to Franko v. City of Cleveland, 654 F.Supp.2d 711, 719 (N.D.Ohio 2009) and Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir.1996), for the proposition that a worker placed under investigation suffers an adverse employment
These cases, however, do not support a proposition that any internal investigation of an employee by her employer is an adverse employment action. Courts have certainly held that suspensions coupled with a loss of pay, even where the monetary harm is later cured, constitute adverse employment actions. See, e.g., Burlington Northern, 548 U.S. at 72-73, 126 S.Ct. 2405; see also Michael, 496 F.3d at 596 (placement on paid administrative leave and 90-day performance improvement plan upon return constituted adverse employment actions). However, persons who have engaged in protected conduct do not thereby become sacrosanct and immune from review or evaluation. In Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772, 785 (7th Cir.2007), another circuit court of appeals concluded that placement of an employee upon paid administrative leave pending the outcome of an investigation was not an adverse employment action. In Couch v. Board of Trustees of Memorial Hosp. of Carbon County, 587 F.3d 1223, 1238 (10th Cir.2009), the court concluded that a doctor who had been the subject of two investigations for disruptive conduct at a hospital had not suffered an adverse employment action. Moreover, in Mitchell, 389 F.3d at 182, subjecting a professor to a forced review of all grant applications he prepared did not rise to the level of an adverse employment action.
Szeinbach, even with all inferences of fact drawn in her favor, alleges only that Balkrishnan filed a research misconduct report against her, that it was processed in accordance with OSU's Interim Research Misconduct Policy, and that the investigation was later dismissed without referral to the 04-Process. Although she presents evidence that use of this investigative process was rare, and alleges that some of her colleagues should have undergone it at well, Szeinbach was not subjected to an imposition unreasonable enough to a university research professor that it might well have deterred her from engaging in protected conduct. Burlington Northern requires an objective evaluation "from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances", and provides that "the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." Burlington Northern, 548 U.S. at 69, 71, 126 S.Ct. 2405. Aside from harm to her pride or reputation, about which there is little evidence, in the context here Szeinbach suffered little injury or harm from having OSU investigate the academic significance of conduct which she admitted having done.
The Burlington Northern Court, though it expanded the application of Title VII's retaliation provision beyond an employer's actions directly affecting terms, conditions, or status of employment, nevertheless found that it "protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. at 67, 126 S.Ct. 2405. As noted above, Szeinbach has presented no evidence that she suffered any palpable damage to her career from actions taken by Balkrishnan or OSU. She was not forced out or subjected to the faculty termination process, and did not suffer any cut in pay or academic rank. There is also no evidence from which a finder of fact could reasonably infer that Szeinbach had suffered diminished pay increases. Any actions taken by OSU which altered her conditions of employment were the result of administrative changes on a division-or college-wide scale, and her teaching load has not substantially changed since 2005. She remains a tenured professor, "happy here" at OSU. Consequently, the evidence that she has suffered no "retaliation that produces an injury or harm" which "well might have dissuaded a reasonable worker from making or supporting a claim of discrimination" sufficient to meet the standard of Burlington Northern and the law of this circuit is "so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendant is accordingly entitled to summary judgment.
Accordingly, Defendant's motion for summary judgment (Doc. 122) is
(Doc. 110 at 14.)