Lill v. Ohio State Univ. ( 2019 )

[Cite as Lill v. Ohio State Univ., 2019-Ohio-276.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Nancy L. Lill, Ph.D., :
Plaintiff-Appellant, :
No. 17AP-733
v. : (Ct. of Cl. No. 2015-00387)
The Ohio State University, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on January 29, 2019
On Brief: The Gittes Law Group, and Jeffrey P. Vardaro, for
plaintiff-appellant. Argued: Jeffrey P. Vardaro.
On Brief: [Dave Yost], Attorney General, Lee Ann Rabe and
Emily S. Tapocsi, for defendant-appellee. Argued: Lee Ann
Rabe.
On Brief: Marshall and Forman LLC, John S. Marshall, and
Louis A. Jacobs, for amici curiae.
APPEAL from the Court of Claims of Ohio
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Nancy L. Lill, Ph.D., appeals an adverse judgment of the
Court of Claims of Ohio entered on September 8, 2017. By judgment, it held that Lill is not
entitled to any damages from defendant-appellee, The Ohio State University ("OSU"), as a
result of OSU's termination of Lill's employment before affording her a valid tenure
evaluation. The Court of Claims concluded this was a breach of contract case and that Lill
had failed to present evidence she was entitled to benefits beyond those detailed in her
employment contract. For the reasons that follow, we reverse and remand this matter for
calculation of Lill's monetary damages for OSU's wrongful termination of her employment.
No. 17AP-733 2
I. FACTS AND PROCEDURAL BACKGROUND
A. Overview
{¶ 2} We acknowledge at the outset that liability is not at issue here. After a three-
day trial in June 2016, the Court of Claims found OSU had breached its employment
contract with Lill by not affording her a fair, impartial tenure review as provided for in the
contract. The Court of Claims memorialized its decision in an interim order entered on
July 12, 2016, and granted Lill equitable relief by sending back the matter to OSU for a new,
fair, and impartial tenure evaluation. OSU subsequently conducted a proper evaluation of
Lill's tenure qualifications, and on May 3, 2017, OSU informed Lill that she was denied
tenure. This appeal concerns only Lill's claim for monetary damages from OSU for
terminating her employment on June 30, 2013, based on the defective tenure denial OSU
had handed down in 2012, almost five years before the valid tenure review process was
completed.
{¶ 3} The central question Lill presents on appeal is whether a fair and impartial
tenure review is a condition precedent to nonrenewal based on tenure denial, such that
OSU must provide a faculty member continued employment and a new terminal year
following the faculty member's successful appeal of an improper tenure review.
{¶ 4} Lill argues that, because her new, fair, and impartial tenure review was not
completed until May 3, 2017, OSU's termination of her employment on June 30, 2013
constituted an unlawful termination for which she is entitled to damages. She seeks back
pay, subject to mitigation for the job she later obtained, all from her 2013 termination date
through the year of her first proper tenure denial (2016-2017), followed by front pay for the
required terminal year following the negative decision (2017-2018).
{¶ 5} OSU argues that this is not a wrongful termination case but a breach of
contract case. OSU submits that its contract with Lill promised her a maximum of five years
employment: four probationary years and, in the event tenure was not granted at the end
of the fourth year, one terminal year. OSU argues that because Lill was employed by OSU
for five years, she should not receive any damages or, at most, damages for one additional
year commensurate with her base salary.
B. Prior Proceedings
{¶ 6} It is undisputed that Lill joined the OSU faculty in September 2008 as a
tenure-track associate professor in OSU's Department of Pathology in the College of
No. 17AP-733 3
Medicine. She was employed pursuant to a written contract, the terms of which were
contained in her hiring letter, and she was placed on a four-year tenure track. Her
appointment was probationary, with her tenure review process being governed by the
University Faculty Rules ("the Rules") and Department of Pathology's Appointment
Promotion & Tenure Document ("AP&T"), all of which the parties stipulated were
incorporated into Lill's employment contract entered into by the parties on August 14,
2008.
{¶ 7} Lill began her tenure review process in the summer 2011. Her department
chair, college dean, OSU's provost, OSU's president, and the OSU Board of Trustees
recommended against tenure, and she received a notice of termination in June 2012, during
her fourth probationary year, which started the clock running on her terminal year. She
timely appealed her tenure denial to the Committee on Academic Freedom and
Responsibility ("CAFR"), alleging numerous violations of her tenure review process. In
September 2012, CAFR found grounds existed for asserting that Lill's tenure evaluation was
improper and referred her appeal to the University Faculty Hearing Committee ("Hearing
Committee"). The Hearing Committee agreed that Lill's tenure evaluation was flawed and
granted her appeal. On April 8, 2013, the Hearing Committee reported to OSU's then-
Executive Vice President of Academic Affair and Provost, Dr. Joseph Alutto, and to OSU's
then-President, Dr. E. Gordon Gee, its findings that Lill's complaint alleging improper
evaluation should be upheld. The Rules required Alutto as the provost to promptly "take
such steps as may be deemed necessary to assure" that Lill received "a new, fair, and
impartial evaluation." (June 6, 2016 Def.'s Trial Ex. I at Rules 3335-5-05(C)(6) and (7).)
{¶ 8} Alutto, however, disagreed with the Hearing Committee's findings of error
and, on April 26, 2013, issued instead a decision denying Lill any further tenure review
procedure and upholding the original tenure evaluation that the Hearing Committee had
found improper. Acting on the June 2012 termination notice and based on the improper
tenure review, OSU ended Lill's employment on June 30, 2013.
{¶ 9} The record before us indicates that Lill, following her June 30, 2013
termination, first secured new employment on December 3, 2014.
{¶ 10} In April 2015, Lill commenced the underlying action against OSU in the
Court of Claims, alleging OSU had denied her a new, fair, and impartial evaluation of her
No. 17AP-733 4
application for tenure, which resulted in "the wrongful and premature termination of [her]
employment and the interruption of her ongoing cancer research." (Apr. 21, 2015 Compl.
at 2.) Lill sought damages, along with declaratory and equitable relief, for breach of
contract and conversion.
{¶ 11} In June 2016, the matter was tried to the Court of Claims, which issued an
oral decision granting in part and denying in part Lill's request for relief. The Court of
Claims ruled OSU had breached Lill's contract by denying her a new, fair, and impartial
tenure evaluation. On July 12, 2016, the Court of Claims issued an interim decision that
memorialized its findings of fact and conclusions of law, dismissed Lill's conversion claim,
and rendered judgment in favor of Lill's breach of contract claim. Although the Court of
Claims had been presented with evidence from both parties regarding Lill's damages, it
deferred the calculation of damages until after OSU had conducted a new tenure review.
The Court of Claims granted Lill equitable relief by sending the matter back to OSU's
provost "to take such steps as he or she deemed necessary to assure a new, fair and impartial
evaluation with respect to [Lill's] tenure review." (Sept. 8, 2017 Decision at 1.)
{¶ 12} OSU subsequently provided a new evaluation of Lill's tenure qualifications,
in compliance with the Court of Claim's interim decision. On May 3, 2017, Lill received an
email from OSU advising that her new tenure evaluation was negative, and she was denied
tenure.
{¶ 13} On May 4, 2017, the parties notified the Court of Claims of Lill's tenure denial.
On May 19, 2017, the Court of Claims ordered the parties to file briefs in lieu of a damages
trial. Lill filed her post-trial brief on June 16, 2017, OSU filed its post-trial brief on July 14,
2017, and Lill filed her post-trial reply brief on July 28, 2017.
{¶ 14} Lill contended she should receive back pay (subject to mitigation for the job
she later obtained) from her June 30, 2013 termination date through the year of her first
proper tenure denial (2016-2017), followed by front pay for the required terminal year
following the negative decision (June 30, 2018). Lill prefaced her damages demand with
the following explanation:
Prior to the Court's Interim Decision, the extent of Dr. Lill's
damages were indefinite; it could be determined only after a
new, fair, and impartial evaluation. Now that she has received
the evaluation, this has become a straightforward case of
wrongful termination in breach of a written contract. Dr. Lill's
No. 17AP-733 5
contract and the Rules did not permit her termination until she
was denied tenure through a proper evaluation. Until that
occurred, there was no way to determine when her
employment should have ended. Now there is. Dr. Lill's
contract guaranteed her employment through the conclusion
of the academic year following her legitimate denial of tenure
(her "terminal year"). Because that denial occurred during the
2016-2017 academic year, her contractual right to employment
ends June 30, 2018, at the end of the 2017-2018 academic year.
Dr. Lill's total lost wages through that period are $545,000.
These lost wages, by operation of law and Dr. Lill's contract,
must also entail additional retirement contributions according
to the formula applicable to all faculty members, as well as
statutory prejudgment interest. The total of Dr. Lill's damages
is thus $669,210.97. Although OSU has failed to carry its
burden of demonstrating Dr. Lill's interim earnings, she is
voluntarily clarifying the record, post-trial, with the attached
affidavit, setting out her interim earnings, less her related
interim expenses. In the event OSU withdraws its stated
objection to the admissibility of such additional evidence, Dr.
Lill's damages will be reduced to $367,715.73.
(June 6, 2017 Pl.'s Post-Trial Brief at 1-2.) Lill also renewed her claim for relief for losing
the use of her granted-funded laboratory equipment.
{¶ 15} Lill's post-trial brief set forth the basis for her monetary damages, premised
on the argument that she was guaranteed employment until such time as she was denied
tenure through a proper evaluation and for one terminal year thereafter. She asserted that
she was not an at-will employee but, rather, a tenure-track associate professor whose
probationary appointment could be terminated only under the procedures set forth in Rule
3335-6. Section 3335-6-03(G) provides:
Probationary appointments may be terminated during any
probationary year because of inadequate performance or
inadequate professional development. At any time other than
the fourth year review or mandatory review for tenure, a
nonrenewal decision must be based on the results of a formal
performance review conducted in accord with fourth year
review procedures as set forth in paragraph (C)(3) of this rule.
Notification of nonrenewal must be consistent with the
standards of notice set forth in rule 3335-6-08 of the
Administrative Code.
Id. at 3. Lill continued:
It is undisputed Dr. Lill was not terminated pursuant to a
fourth year review or a formal performance review conducted
No. 17AP-733 6
in accord with fourth year review procedures. (Trial
Transcript, Vol. II, p. 300). [Fn. 1 omitted.] OSU's only
permissible basis for terminating Dr. Lill was therefore
pursuant to a mandatory review for tenure. Dr. Lill's tenure
review was deemed an improper evaluation by the University
Senate Hearing Committee, which meant a new, fair, impartial
evaluation was required. Rule 3335-5-05(6)(B) (Trial Exh. I, p.
3). As the Court's Interim Decision established, OSU failed to
provide Dr. Lill with such a new evaluation prior to her June
2013 termination. Having failed to satisfy the essential
requirements of OSU's tenure process, OSU failed to meet the
only condition in Section 3335-6-03(G) that would have
permitted Dr. Lill's termination. In short, Dr. Lill was
subjected to a wrongful termination in violation of her
contractual rights. She was not permitted to be terminated
until she was denied tenure pursuant to the new review ordered
by the Court, after which she should have remained employed
for a terminal year. [Fn. 2 omitted.] Her proper termination
date is June 30, 2018.
Id. at 3-4.
{¶ 16} Lill argues that any claim by OSU that "Rule 3335-6-03(G) permits it to
terminate probationary faculty pursuant to any tenure review, irrespective of whether the
review meets the standards set out in the Rules for a fair and impartial evaluation * * *
cannot be the case," given that the tenure review procedures "are important enough to be
codified in detail in the University Faculty Rules, and * * * are protected through the
mandatory appeal provision of Rule 3335-5-05." (Emphasis sic.) Id. at 4.
{¶ 17} In a footnote, Lill observed that the Rules' provision for a terminal year of
employment following a negative tenure evaluation did not apply in the case of a
discretionary seventh-year review, which could be granted if new information arises after a
fair review:
No new terminal year is provided in that instance because the
faculty member has already been duly notified of his or her
termination pursuant to an initial, proper review. OAC 3335-
6-05(B) (Exh. 18, OSU_5479-80). No such exception appears
in the Rules' discussion of new, fair, impartial evaluations
ordered by the Hearing Committee, even though it appears in
the same section of the Rules as the seventh-year review
process. (OAC 3335-6-05(A); Trial Tr. Vol. II, pp. 394-395).
The only plausible explanation for this is the Rules' intent to
provide for a new terminal year when a candidate is denied
tenure through a new, fair, and impartial review.
No. 17AP-733 7
(Emphasis sic.) Id. at 4, fn. 2. Lill asserted that "[t]his clear statement of OSU's policy has
only one possible meaning: it is a contractual promise not to terminate a faculty member's
probationary appointment based on an evaluation the Hearing Committee deems
improper." (Emphasis sic.) Id. at 5. She continued:
This conclusion is supported not just by the express language
of the Rules, but by common sense. As became clear through
the testimony of Dr. Alutto, the provost who terminated Dr.
Lill, it would be absurd to allow an improper evaluation to
trigger Rule 3335-6-03(G)'s termination provision. Otherwise,
OSU could skip any consideration of a candidate's tenure
credentials, informing the candidate of a denial before the
process has even begun. Although the Hearing Committee
would no doubt find such an evaluation improper, this finding
would have no practical effect, since the provost's initial denial
would already have started the Rules' 12-month termination
clock. (Rule 3335-6-08(A)(3), Exh. 18, pp. 10-11, OSU_5481-
82). Dr. Alutto admitted this is not how the rule operates. He
saw no distinction between that situation, where virtually no
evaluation occurs, and a situation where the candidate receives
a longer, but still improper, evaluation. (Trial Tr. Vol II, pp.
428-431). The fact that OSU's administration calls a process a
tenure review is not enough, where the Hearing Committee
finds the process fell short of the Rules' definition of that term.
By Dr. Alutto's own reasoning, a candidate must remain
employed until one year after a legitimate tenure evaluation
concludes.
(Emphasis sic.) Id.
{¶ 18} Lill addressed the scope of her monetary damages, including her salary and
benefits ($545,000.00 in wages, retirement contributions of $76,300.00, and compounded
interest of $47,910.97) and interim earnings. She argued the burden of showing with
reasonable certainty the amount she earned—or could have earned—while being wrongfully
excluded from employment fell on OSU, as her employer, citing State ex rel. Martin v.
Bexley City School Dist. Bd. of Edn., 39 Ohio St. 3d 36, 38 (1988) ("Since the amount of
interim earnings is to be deducted from an award of back pay (thus reducing the employer's
obligation to pay), the burden of showing what an employee earned during the period of
wrongful discharge rests upon the employer."); accord State ex rel. Hamlin v. Collins, 9
Ohio St. 3d 117, 119 (1984). Lill stated that, under the holding in Collins, in the absence of
such proof, she is entitled to her contracted salary.
No. 17AP-733 8
{¶ 19} Lill submitted with her brief her affidavit that she claimed demonstrated "the
amount and duration of her interim salary and benefits, as well as the interim expenses by
which these amounts should be offset." (Pl.'s Post-Trial Brief at 8.) Paragraph three of her
affidavit contains a table setting forth her wages and retirement contributions from
Pennsylvania State University since December 3, 2014, listed by academic year (July 1 to
June 30) and that her present compensation would continue through June 30, 2018.
{¶ 20} Lill also discussed OSU's failure to demonstrate that she failed to mitigate her
damages, as it was OSU's burden as the employer, according to Martin at 38 (the burden
falls on the employer to show what a wrongfully excluded employee did earn and, with
reasonable certainty, could have earned).
{¶ 21} Finally, Lill discussed how her loss of use of her grant-funded laboratory
equipment was an element of her breach of contract damages. She suggested that the Court
of Claims could remedy the loss by granting the specific performance remedy she requested
at trial; that is, to order OSU to transfer her remaining equipment to her current place of
employment.
{¶ 22} OSU argued that Lill had not, and could not, show that she is entitled to any
monetary damages. OSU contended Lill's employment contract with OSU expired on June
30, 2013, and she therefore was not entitled to monetary damages beyond that date. OSU
concedes, however, that if it would be determined that Lill is entitled to an additional
terminal year, her damages would be limited to an amount not exceeding one year of her
base salary.
{¶ 23} On September 8, 2017, the Court of Claims issued its decision rejecting Lill's
argument of wrongful termination and denying her any damages. The Court of Claims
decided as a matter of law that Lill's tenure-track contact had expired in 2013:
[Lill's] position provided for yearly appointment subject to
annual reviews and renewal of her appointment. (Defendant's
Ex. P). The position was a tenure-track position, and she was
to be reviewed for tenure and promotion no later than during
the fourth year of her appointment (2011-2012). Finally, [Lill's]
contract provided that if she were denied tenure, she would
receive a terminal faculty appointment for the academic year
following the tenure review year. Thus, in [Lill's] fourth year of
appointment, there were three employment outcomes
available to her.
No. 17AP-733 9
First, should she have decided not to apply for tenure or
withdraw her consideration for tenure, her contract with OSU
concluded after her four-year appointment. Second, if she
applied for tenure and was denied, she would receive one
terminal year of appointment, the 2012-2013 year. Third, if she
applied for tenure and was granted tenure, she would receive
new employment as a tenured professor with terms not
provided for under her probationary contract. Simply, if she
received tenure, her position as a tenured professor at OSU
would be under a new employment contract. Importantly,
there is no provision in her contract with OSU for her
probationary period to extend beyond the four, potentially five,
year period. In her post-trial brief and reply, [Lill] tries to
characterize this case as an improper termination case.
(Plaintiff's Post-Trial Brief, pp. 1, 3-4, Plaintiff's Reply, pp. 1-2).
The Court disagrees; this was not an improper termination by
[OSU]. Rather, [Lill's] contract expired.
(Sept. 8, 2017 Decision at 5-6.) The Court of Claims concluded:
The Court finds that [Lill] is not entitled to any monetary
damages as a result of the breach of contract by OSU. Here,
[Lill] applied for tenure, received a proper hearing, was denied
tenure, and received her terminal year of employment. She
received all the benefits afforded to her by her employment
contract with OSU. After her terminal year of employment, her
contract with [OSU] concluded, and she was not hired for a new
position. Contrary to [Lill's] argument that until a proper
evaluation was conducted there was no way to determine when
her employment would have ended, [Lill's] employment
contract with OSU determined when her employment ended.
[Lill] failed to present the Court with any evidence that her
contractual relationship with OSU entitled her to further
benefits beyond those detailed in her employment contract.
Id. at 6.
{¶ 24} Lill now appeals the Court of Claims' decision denying her any damages.
II. ASSIGNMENT OF ERROR
{¶ 25} Lill presents a sole assignment of error for our review:
The trial court erred in holding that a tenure-track professor
whose contract guaranteed she could not be terminated
without a valid tenure review, and whose employer breached
her contract by terminating her without a valid tenure review,
could not recover any damages for that wrongful termination.
No. 17AP-733 10
III. LAW AND DISCUSSION
A. Standard of Review
{¶ 26} We are presented with questions of law and fact. The preliminary question
concerns contract interpretation, which is a matter of law for the Court. "The construction
and interpretation of written contracts involves issues of law that an appellate court reviews
de novo." Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., 10th Dist. No. 16AP-
863, 2017-Ohio-5607, ¶ 36. In interpreting contracts, this Court "has emphatically stated
that contracts must be read as a whole, and individual provisions must not be read in
isolation." Nour v. Shawar, 10th Dist. No. 13AP-1070, 2014-Ohio-3016, ¶ 14. The
contract's words are given their ordinary meaning unless this will result in "manifest
absurdity" or unless "some other meaning is clearly intended from the face or overall
contents of the instrument." Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d 241, 245-
46 (1978). Where the drafters showed they knew how to include specific language in one
provision, it must be concluded they intended to exclude that from a parallel provision
where it is omitted. Nour at ¶ 12, citing Continental Tire N. Am. v. Titan Tire Corp., 6th
Dist. No. WM-09-010, 2010-Ohio-1355, ¶ 54. Any ambiguities in the contract are to be
strictly construed against the party who drafted it. See, e.g., Graham v. Drydock Coal Co.,
76 Ohio St. 3d 311, 314 (1996).
{¶ 27} The question of the amount of damages, if any, is a factual issue, and thus it
"is within the jury's [or factfinder's] province to determine the amount of damages to be
awarded." Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 475, 2007-Ohio-6948.
B. Discussion
{¶ 28} The Court of Claims rejected Lill's argument that this case had become a
straightforward case of wrongful termination in breach of a written contract. Rather, the
Court of Claims concluded it was a breach of contract case. The Court of Claims relied on
the holding in Tri-State Asphalt Corp. v. Ohio Dept. of Transp., 10th Dist. No. 94API07-
986 (Apr. 11, 1995), citing Geygan v. Queen City Grain Co., 71 Ohio App. 3d 185, 195 (12th
Dist.1991), for the proposition that "a party seeking damages for breach of contract must
present sufficient evidence to show entitlement to damages in an amount which can be
ascertained with reasonable certainty." Tri-State Asphalt; Sept. 8, 2017 Decision at 5. The
Court of Claims determined Lill had failed to present any evidence that she was entitled to
No. 17AP-733 11
benefits beyond those detailed in her employment contract, and, therefore, it denied her
any damages.
{¶ 29} Lill argues the Court of Claims erred when it interpreted her employment
contract with OSU to mean that it "expired" after the five years—four probationary years
plus one terminal year following denial of tenure—specified in her hiring letter. She submits
that OSU is contractually required to provide her a fair tenure evaluation as a condition
precedent to terminating her employment. She offers the following in support of her
argument:
By design, a contract requiring OSU to employ a tenure-track
faculty member until it provides a fair evaluation is self-
enforcing: the longer OSU withholds the guaranteed fair
review, the longer it must continue to employ the faculty
member. In contrast, the kind of contract envisioned by the
trial court, allowing a faculty member to be terminated based
on an admittedly improper evaluation, and imposing no
consequence whatsoever for withholding a proper evaluation
for years, would be impossible to enforce (and thus, a nullity).
(Dec. 18, 2017 Lill's Brief at 4-5.)
{¶ 30} OSU acknowledged that Lill was entitled to a terminal year of employment,
but claims she received one and has no right to anything more because her "application for
tenure was denied and her terminal year began to run in the late Spring of 2012." (July 14,
2017 Def.'s Post-Trial Brief at 2.)
{¶ 31} OSU's position seems objective, rational, and fair on initial consideration,
until one considers that OSU commenced Lill's terminal year in 2012, five years before
properly denying her tenure. OSU makes no distinction between the termination of a
faculty member who was denied tenure after receiving a proper tenure evaluation the first
time around and the termination of a faculty member who was denied tenure based on an
initial, improper tenure evaluation and was forced to litigate in order to receive a proper
tenure evaluation after a gap of five years. As applied here, OSU's position means Lill's
terminal year and termination of employment could be triggered by any tenure denial, even
an improper one. On review, it appears that OSU's position guts the very provisions
referenced in Lill's hiring letter underlying the parties' expectations that decisions on her
tenure or nonrenewal would be free from arbitrariness or capriciousness and would not
violate academic freedom and that she was guaranteed the right to appeal improper denials.
No. 17AP-733 12
{¶ 32} The record elucidates the situation in the instant case was of OSU's making,
from start to end. OSU adopted the Rules governing tenure track appointments,
incorporated the Rules into employment contracts, and enforced procedures implementing
the Rules. OSU could have prevented the dispute from arising altogether by simply
following its own Rules in the first instance; moreover, it could have resolved the situation
much sooner by taking corrective action before Lill commenced this action. Instead, OSU
through its Provost, Alutto, blatantly and knowingly failed and/or refused to follow its
Rules when conducting Lill's tenure review during the 2011-2012 academic year. OSU
further doggedly defended its right to act arbitrarily against its Rules until the Court of
Claims set it straight four years later, ordering OSU to take remedial action that satisfied
the requirements of its Rules. It then took OSU approximately ten more months to comply
with the Court of Claims' order.
{¶ 33} Lill's contract guaranteed one of three outcomes before the end of her
probationary period: her voluntary withdrawal from the tenure track; an award of tenure
based on a proper, positive evaluation of her tenure qualifications; or the initiation of a
nonrenewal process based on a proper, negative evaluation of her tenure qualifications and
which provides a binding appeal process.
{¶ 34} Lill's contract as OSU presents it here recognizes only the contract's reference
to a four-year probationary period and the terminal year after a tenure denial, ignoring the
prerequisites of a Rules-compliant tenure-track termination. It would appear that, until
now, OSU's view of the contract is that, regardless of contract provisions, all terminations
are valid, whether or not preceded by a proper tenure evaluation.
{¶ 35} We note that no one disputes that the probationary period between Lill's
hiring and the completion of her mandatory tenure review was supposed to be four years,
followed by a fifth terminal year if the tenure review was negative. The record indicates
other things also were supposed to happen, however. Lill was supposed to receive a fair
tenure review consistent with departmental and university procedures. She was supposed
to be able to contest an improper review through a binding appeal process. If the appeal
process resulted in a finding that her tenure evaluation was improper, she was supposed to
receive a new, fair, and impartial evaluation promptly. This lawsuit evidences, however,
that what was supposed to happen did not happen.
No. 17AP-733 13
{¶ 36} Rule 3335-6-03(B)(2) provides, "a probationary appointment may be
terminated at any time subject to * * * the provisions of paragraphs (G), (H), and (I)." (Pl.'s
Trial Ex. 18 at 3.) Paragraphs (G) and (I) provide that tenure denials and other forms of
nonrenewal "may not be arbitrary or capricious or carried out in violation of a faculty
member's right to academic freedom" and that they are subject to the appeal process in
Rules 3335-5-05 and 3335-6-05. Id. at 5-6. Rule 3335-6-05(A) clarifies that the role of
OSU's internal appeal process is to enforce its policy "to make decisions regarding the
renewal of probationary appointments and promotions and tenure in accordance with the
standards, criteria, policies, and procedures stated in these rules." Id. at 8.
{¶ 37} These rules do not provide for a tenure-track probationary appointment to
simply expire after four years. The four-year period is not a term limit. Rather, it is a
deadline by which OSU must provide a proper tenure review. Additionally, nothing in these
provisions permits OSU to end a tenure-track appointment based on an improper
evaluation. Lill's contract did not simply require a tenure evaluation; it required an
evaluation conducted "in accordance with" the Rules and a binding appeal if it was not so
conducted.
{¶ 38} If OSU's argument here were adopted, a contract that provides for a faculty
member's termination only after a valid, negative review, followed by a terminal year,
would be transformed into a contract that permits OSU to terminate a faculty member after
a fixed number of years, even if the basis for the termination is found to be invalid by the
review committee specifically authorized by the contract to do so.
{¶ 39} OSU is presumed to have drafted Lill's employment contract and to have
done so in good faith. It is further presumed that OSU did not envision a situation where
it would blatantly breach the contract provision requiring a fair and impartial tenure
evaluation and then deny a new, proper evaluation for five years. To the contrary, OSU's
provost at the time of Lill's initial, improper tenure denial testified at the June 2016 trial
that had he remanded promptly for a new tenure evaluation and the ensuing review process
had been afforded to Lill, a new denial of tenure would have been followed by a terminal
year. The terminal year was predicated on the faculty member remaining employed during
the tenure process and leaving one year after the tenure denial. The conditions interacted,
restricting OSU's authority to terminate a tenure-track faculty member. Because OSU has
No. 17AP-733 14
drafted the contract and was solely responsible for the breach of the contract, the silence of
the contract on what would happen in the event of the breach should not be held against
Lill.
{¶ 40} The Ohio State University Chapter of the American Association of University
Professors and the Ohio Employment Lawyers Association filed a brief amici curiae in
support of Lill. The brief faults the Court of Claims' ruling that "a terminal year after a
tenure decision in breach of her contract was the equivalent of a terminal year after a tenure
decision reached in compliance with her contract," stating the "ruling reflects a false
equivalence and leaves [] Lill far short of a make-whole remedy for the breach of contract."
(Dec. 18, 2017 Amici Curiae's Brief at 5.) The brief argues that "[a] terminal year is
inextricably intertwined with the tenure decision process. Only when the process is
followed as provided by the contract does the terminal year arise." Id.
{¶ 41} The amici curiae brief challenges the Court of Claims' determination that
Lill's contract had simply expired as of June 30, 2013, failing to entitle her to any damages:
[Lill's] employment contract, drafted by OSU, did not expire on
its own. In Eckel [v. Bowling Green State Univ., 10th Dist. No.
11AP-781], 2012-Ohio-3164, ¶ 28, the professor's employment
contract incorporated the University's charter, but the
"charter's failure to address BGSU's ability to suspend a
tenured faculty member" raised the issue of its authority to do
so. This Court recognized that the Charter "specifically defines
tenure" and "further provides that a faculty member's tenure
'shall continue until one of the' " delineated conditions, such as
death, occurs. Id. at ¶ 29.
As at bar, "[b]oth parties acknowledge that none of the above-
listed conditions occurred here." Id. at ¶ 30. The Court then
held: 'Because none of those events occurred, BGSU violated
plaintiff's right of tenure, as specified in Section B-I.C.3 of the
academic charter, in suspending plaintiff without pay." Id.
OSU violated Dr. Lill's contractual rights because the
conditions of her non-renewal due to denial of tenure were not
satisfied until May 3, 2017. Accord McConnell v. Howard
Univ., 818 F.2d 58, 66-67 (D.C. Cir. 1987) * * *.
There seems to be no rule that precludes OSU from granting an
additional terminal year. To comply with the conditions of Dr.
Lill's contract [,] OSU could have done so directly or used one
of a variety of appointments to do so directly. In any event, the
No. 17AP-733 15
core of the contract – employment ends when tenure is denied
and a terminal year is given – must be enforced.
The Court of Claims short-circuited this analysis by focusing on
the four-year phrase and concluding that Dr. Lill's contract had
expired after the terminal year. The Faculty Rules did not
provide merely a four-year contract that could be extended for
a fifth terminal year. They provided an entire tenure process
and standards: the middle between the fourth and final years.
Somehow, the Court of Claims divorced the duration from all
the conditions the Faculty Rules imposed.
Under the Faculty Rules, a new procedure, whenever it was
afforded, would be followed, if tenure was again denied, by a
terminal year. Because OSU forced Dr. Lill to leave at the end
of the 2012-13 academic year before the new procedure was
afforded, a make-whole remedy required that damages
consistent with the breach be awarded.
(Emphasis sic.) Id. at 7-9.
{¶ 42} The Rules govern tenure-track contracts and specify their termination, which
is only by nonrenewal and not by expiration. The conditions imposed by the Rules provide
that tenure-track faculty are subject to certain procedures and protections. The Rules
require appointment of professors or associate professors to tenure-track positions or a
probationary period not to exceed four years. OSU notified Lill of her termination in June
2012, during her fourth probationary year.
{¶ 43} During the probationary period, promotion and tenure can be terminated at
any time, but only subject to the notice provisions of Rule 3335-6-08 and the provisions of
paragraphs (G), (H), and (I) of that Rule. Rule 3335-6-03(B). Probationary appointments
also may be terminated during any probationary year due to poor performance or
inadequate professional development, subject to strict procedural requirements. OSU did
not purport to notify Lill that it was terminating her probationary appointment, pursuant
to Rule 3335-06-08 or 3335-06-03(G), (H), or (I), and it did not follow any established
procedures for doing so.
{¶ 44} At any time other than the fourth-year review or mandatory review for
tenure, a nonrenewal decision must be based on the results of a formal performance review
conducted in accord with fourth-year review procedures and standards as set forth in Rule
3335-5-05(C)(3). OSU did not purport to base Lill's nonrenewal on the results of a
No. 17AP-733 16
performance review under Rule 3335-5-05(C)(3). That left only nonrenewal pursuant to
the mandatory final review for tenure.
{¶ 45} The duration of appointments for tenure-track faculty is set by Rule 3335-6-
03. Lill was hired as an associate professor with a probationary period not to exceed four
years. Rule 3335-6-03(B)(1). The duration was conditioned by the provision of (B)(3) that
she be "informed no later than the end of the year in which [her] mandatory review for
tenure takes place as to whether tenure will be granted by the beginning of the following
year." (Pl.'s Trial Ex. 18 at 3.) Upon denial, Lill was entitled to another year of employment:
"If tenure is not granted, a one year terminal year of employment is offered." Id.
{¶ 46} An appeal may be taken from denial of tenure. If the Hearing Committee
finds the tenure evaluation was improper, as it did on Lill's appeal, the provost "shall take
such steps as may be deemed necessary to assure a new, fair, and impartial evaluation."
(Def.'s Trial Ex. I at Rule 3335-5-05(C)(6)(b).) "If a decision is remanded under paragraph
(C)(6)(b) of this rule, it shall be reconsidered promptly." (Pl.'s Trial Ex. 7 at 3, Rule 3335-
6-05(C)(7).)
{¶ 47} Based on our de novo review of the record, we find, as a matter of law, the
provisions of Lill's employment contract, taken as a whole, required OSU to conduct a
proper evaluation of Lill's tenure qualifications before issuing a tenure denial that would
trigger an ensuing terminal year. Because OSU failed to satisfy that condition prior to
terminating Lill, OSU unlawfully terminated Lill's employment on June 30, 2013.
Consequently, we find that Lill's contract did not expire, the terminal year did not start to
run at the end of the fourth year (2012), and the Court of Claims erred by concluding
otherwise. Rather, Lill's contract continued until it was nonrenewed following the
completion of a valid tenure evaluation in May 2017. Because Lill's contract with OSU
continued until it was not renewed, she had a continued right to employment at OSU
through June 30, 2018, the end of the terminal year triggered by her valid negative tenure
decision. We further find, although Lill mitigated her damages resulting from OSU's breach
of contract, she incurred monetary damages for which she is entitled to recover.
{¶ 48} Accordingly, Lill's assignment of error is sustained.
IV. CONCLUSION
{¶ 49} Having conducted a de novo review of the record, we hold that the Court of
Claims of Ohio erred in finding that Lill was not entitled to any damages. We reverse the
No. 17AP-733 17
decision of the Court of Claims of Ohio and remand this matter for a determination of Lill's
damages in a manner consistent with this decision.
Judgment reversed; cause remanded.
TYACK, J., concurs.
BROWN, J., dissents.
BROWN, J., dissenting.
{¶ 50} I agree with the Court of Claims that this case presents a breach of contract
claim and not an action for wrongful termination. There is no dispute that OSU breached
the contract with appellant and that appellant was entitled to put forth evidence as to
damages. However, I do not agree with the majority that the breach indefinitely extended
the terms of the contract until a proper tenure review, in the absence of contractual
language or evidence of other promises to that effect. I therefore respectfully dissent.