Hughes v. Youngstown State Univ.

[Cite as Hughes v. Youngstown State Univ., 2021-Ohio-2079.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jimmy Hughes, :
Plaintiff-Appellant, : No. 20AP-73
(Ct. of Cl. No. 2017-00458JD)
v. :
(ACCELERATED CALENDAR)
Youngstown State University, :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 22, 2021
On brief: Percy Squire, for appellant. Argued: Percy
Squire.
On brief: Dave Yost, Attorney General, Randall W. Knutti,
and Timothy M. Miller, for appellee. Argued: Timothy M.
Miller.
APPEAL from the Court of Claims of Ohio
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Jimmy Hughes, appeals from a decision of the Court of
Claims of Ohio granting the motion for summary judgment of defendant-appellee,
Youngstown State University ("YSU"), on Hughes's claims of race discrimination and
retaliation. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On May 18, 2017, Hughes filed a complaint against YSU alleging claims of
race discrimination and retaliation pursuant to R.C. Chapter 4112, 42 U.S.C. 1983, and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The claims arose from Hughes's
application for employment with YSU for the position of chief of police of the YSU Police
Department. Hughes, who is African American and previously worked as the chief of police
No. 20AP-73 2
for the city of Youngstown from 2006-2011, alleged in his complaint that YSU refused to
consider his application for employment and that YSU's decision to hire a white man for
the position constituted racial discrimination.
{¶ 3} In its answer filed June 5, 2017, YSU agreed it hired a white male to fill the
chief of police position but asserted it did not refuse to consider Hughes's application
because of his race. Rather, YSU asserted that by the time Hughes submitted his
application for the chief of police position, YSU had already completed its initial review of
the applicants, had already conducted first-round interviews, and had already scheduled
second-round interviews, thus having no need to review additional candidates by the time
Hughes submitted his application. Specifically, YSU stated it posted the position online on
February 15, 2017 and Hughes did not submit his application until March 23, 2017.
{¶ 4} YSU filed a motion for summary judgment on October 11, 2019. In the
evidentiary materials YSU filed supporting its motion for summary judgment, YSU
demonstrated it formed a four-person search committee in February 2017 to review
applications, interview applicants, and recommend which candidates should be considered
to YSU's hiring manager. That four-person committee met on March 3, 2017 and again on
March 10, 2017. At the March 10, 2017 meeting, the search committee reviewed the
approximately 22 applications that had been submitted and selected four applicants to be
interviewed in first-round videoconferencing interviews. The search committee then
recommended that three of those four applicants be invited to campus for in-person
interviews. YSU completed the second-round interview process from April 4 to April 6,
2017 and extended an offer of employment to YSU's interim chief of police, Shawn Varso,
who had previously been a lieutenant with the YSU Police Department.
{¶ 5} When Hughes submitted his application on March 23, 2017, YSU still had the
job posting on its website. It was YSU's standard practice to keep job postings online until
it had officially filled the position. However, the committee did not evaluate any applicants
who submitted applications after March 10, 2017, believing it had already identified several
qualified applicants during their initial review. YSU received eight applications for the chief
of police position after March 10, 2017, including Hughes's application, and YSU did not
consider any of the applications.
No. 20AP-73 3
{¶ 6} Though Hughes never had any contact with the hiring committee, he received
a phone call from someone at YSU informing him that his application would not be
considered. Hughes then sent a letter to YSU dated April 4, 2017 stating he believed the
failure to consider his application was a mistake. YSU responded in an April 7, 2017 letter
explaining that the search committee had conducted its initial review of applicants on
March 10, 2017 and that Hughes's application was not considered as it was not submitted
until after the initial applicant review.
{¶ 7} There are 18 full-time police officers in the YSU Police Department and
approximately 63 intermittent police officers. Hughes worked as an intermittent police
officer for YSU for over 30 years, most recently as a dormitory officer on Fridays through
Sundays. Hughes was employed by YSU at the time he submitted his application for the
chief of police position.
{¶ 8} On May 25, 2017, Hughes filed a charge of discrimination against YSU with
the Ohio Civil Rights Commission ("OCRC"). The OCRC ultimately found there was no
probable cause to file a complaint.
{¶ 9} Hughes filed a memorandum contra YSU's motion for summary judgment on
December 4, 2019. Hughes argued there remained a genuine issue of material fact as to
whether he was treated differently from similarly situated individuals outside of his
protected class. Specifically, Hughes asserted that YSU's selection process was a sham
designed to award the chief of police position to a white man. In support of his position,
Hughes points to (1) YSU's failure to communicate to the public that it intended to stop
considering applications after March 10, 2017, (2) YSU's failure to extend any second-round
interviews to African-American candidates, (3) the search committee's composition of only
white men, and (4) Hughes's position that he was more qualified for the position of chief of
police than the successful applicant. YSU filed a reply in support of its motion for summary
judgment, arguing Hughes failed to support his arguments with Civ.R. 56 evidence and that
his arguments were irrelevant to the ultimate question before the court.
{¶ 10} In a January 3, 2020 decision, the trial court granted YSU's motion for
summary judgment. As an initial matter, the trial court found it lacked jurisdiction to
consider Hughes's claims brought under 42 U.S.C. 1983 and dismissed those claims. The
trial court then determined that, construing the evidence most strongly in favor of Hughes,
No. 20AP-73 4
although Hughes was able to demonstrate a prima facie case of race discrimination, YSU
was able to demonstrate a legitimate non-discriminatory reason for not selecting Hughes
for employment. Thus, the trial court concluded that because Hughes failed to present
evidence that would lead a reasonable person to believe that the reason given for not
considering his application was merely a pretext, YSU was entitled to summary judgment
on Hughes's claim for employment discrimination based on race. Additionally, the trial
court concluded Hughes did not present evidence supporting his claim for retaliation,
noting Hughes did not file his complaint with the OCRC until after he had been notified by
YSU that his application for the chief of police position would not be considered. The trial
court journalized its decision entering judgment in favor of YSU in a January 3, 2020
judgment entry. Hughes timely appeals.
II. Assignment of Error
{¶ 11} Hughes assigns the following error for our review:
The trial court erred when it granted summary judgment on
plaintiff's race discrimination claim under R.C. 4112.
III. Discussion
{¶ 12} In his sole assignment of error, Hughes argues the trial court erred in
granting YSU's motion for summary judgment. More specifically, Hughes asserts there
remain genuine issues of material fact on his claim of race discrimination. Hughes does
not challenge the trial court's disposition of his 42 U.S.C. 1983 claims or his retaliation
claim.
{¶ 13} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is appropriate
only when the moving party demonstrates (1) no genuine issue of material fact exists,
(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
could come to but one conclusion and that conclusion is adverse to the party against whom
the motion for summary judgment is made, that party being entitled to have the evidence
most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
No. 20AP-73 5
{¶ 14} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
{¶ 15} Hughes claims that YSU discriminated against him on the basis of his race in
violation of Title VII of the Civil Rights Act, codified in 42 U.S.C. 2000e, and R.C. Chapter
4112.
{¶ 16} R.C. Chapter 4112 governs anti-discrimination actions brought under Ohio
law. R.C. 4112.02(A) provides that it is an unlawful discriminatory practice "[f]or any
employer, because of the race, color, religion, sex, military status, national origin, disability,
age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise
to discriminate against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or indirectly related to employment." R.C.
4112.99 authorizes civil actions for any violations of R.C. Chapter 4112. And pursuant to 42
U.S.C. 2000e-2(a), "[i]t shall be an unlawful employment practice for an employer — (1) to
fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin."
Generally, Ohio courts look to federal anti-discrimination case law when examining
employment discrimination cases made under state law. Nelson v. Univ. of Cincinnati,
10th Dist. No. 16AP-224, 2017-Ohio-514, ¶ 31, citing Coryell v. Bank One Trust Co. N.A.,
101 Ohio St.3d 175, 2004-Ohio-723, ¶ 15. But see Williams v. Akron, 107 Ohio St.3d 203,
No. 20AP-73 6
2005-Ohi0-6268, ¶ 31 (stating Ohio courts are not bound to federal interpretation of
analogous statutes).
{¶ 17} In order to prevail in an employment discrimination case, a plaintiff must
prove discriminatory intent through either direct or indirect methods of proof. Ricker v.
John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998), citing Mauzy v. Kelly
Servs., Inc., 75 Ohio St.3d 578, 583 (1996); United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 714 (1983), fn. 3. Where, as here, a plaintiff seeks to establish
discriminatory intent through indirect methods of proof, the claim is subject to the burden-
shifting analysis promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
first adopted by the Supreme Court of Ohio in Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 197 (1981). A
plaintiff claiming discrimination in employment through indirect evidence must first
demonstrate a prima facie case of discrimination. Bowditch v. Mettler Toledo Internatl.,
Inc., 10th Dist. No. 12AP-776, 2013-Ohio-4206, ¶ 15. If a plaintiff establishes a prima facie
case, the burden of production shifts to the employer to articulate some legitimate
nondiscriminatory reason for the challenged action. Id. at ¶ 16. If the employer meets its
burden of production, a plaintiff must prove by a preponderance of the evidence that the
employer's legitimate nondiscriminatory reason is merely a pretext for unlawful
discrimination. Id. at ¶ 17.
{¶ 18} A plaintiff establishes a prima facie case of discrimination by showing that:
(1) he or she was a member of a statutorily protected class, (2) he or she was subjected to
an adverse employment action, (3) he or she was qualified for the position, and (4) he or
she was replaced by, or that the removal permitted the retention of, a person not belonging
to the protected class. Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-
1068, 2012-Ohio-5036, ¶ 15. The trial court found that summary judgment in favor of YSU
was warranted because, pursuant to the burden-shifting analysis, YSU put forth a
legitimate non-discriminatory basis for not hiring Hughes, namely that YSU had internally
closed the application date and had already selected candidates for second-round
interviews by the time Hughes applied. Thus, as Hughes was unable to respond with
additional evidence demonstrating that reason was mere pretext, the trial court granted
summary judgment in favor of YSU. While we agree with the trial court that YSU put forth
No. 20AP-73 7
a legitimate non-discriminatory basis for not hiring Hughes and that Hughes did not
demonstrate the reason was pretext, we find that summary judgment in favor of YSU was
warranted here for a more fundamental reason: Hughes did not demonstrate a prima facie
case of discrimination.
{¶ 19} There is no dispute that Hughes is African American, that he was qualified
for the position, and that YSU hired a person not belonging to the protected class for the
chief of police position. At issue, however, is the second element of a prima facie case. In
its analysis, the trial court seemed to assume that YSU's decision not to hire Hughes
constituted an adverse employment action. A court determines whether an employer's
actions constitute an adverse employment action on a case-by-case basis. Samadder v.
DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340, ¶ 38 (10th Dist.). Generally, a
refusal to hire is an adverse employment action within the meaning of R.C. 4112.02. See id.
at ¶ 39. Here, however, the Civ.R. 56 evidence submitted in support of YSU's motion for
summary judgment demonstrated that YSU never even considered Hughes's application
for employment because its internal deadline for the submission of applications had already
passed. On these facts, it cannot be said YSU refused to hire Hughes. Simply put, YSU
never considered Hughes's application because Hughes applied after the internal deadline.
Under these specific circumstances, we do not construe YSU's failure to consider Hughes's
application to be an adverse employment action as is required for a prima facie case of
discrimination. Instead, Hughes's application for a job that had already closed its deadline
for applications is more akin to a prospective job applicant failing to apply for the job at all.
See, e.g., Hargrette v. RMI Titanium Co., 11th Dist. No. 2009-T-0058, 2010-Ohio-406,
¶ 36 (plaintiff failed to demonstrate a prima facie case of employment discrimination based
on refusal to hire where plaintiff did not actually apply for the position because it paid less
and required more schooling).
{¶ 20} We are mindful that at the time Hughes submitted his application for the
chief of police position, YSU still had the job opening listed on its website and had not yet
filled the position. However, the undisputed evidence submitted in support of YSU's
motion for summary judgment is that the search committee had set an internal deadline
for submission of applications of March 10, 2017. Hughes did not submit his application
until 13 days after the internal deadline, by which time YSU had conducted first-round
No. 20AP-73 8
interviews and had identified the candidates that would move on to second-round
interviews. Not only did YSU not consider Hughes's application submitted after the
internal deadline, it did not consider any applications from other prospective employees
who submitted their applications after March 10, 2017. Hughes does not provide any
evidence that YSU indicated it would, or was required to, keep the application window open
until a certain date, nor does Hughes demonstrate that YSU was required to notify the
public of its internal deadline on the application window. Accordingly, we find YSU's non-
consideration of Hughes's employment application submitted after the internal deadline
for submission of applications does not constitute an adverse employment action within
the meaning of the McDonnell Douglas burden-shifting analysis. Thus, as Hughes did not
satisfy the second element of a prima facie case of discrimination, YSU was entitled to
summary judgment.
{¶ 21} We overrule Hughes's sole assignment of error.
IV. Disposition
{¶ 22} Based on the foregoing reasons, the trial court did not err in granting YSU's
motion for summary judgment, though we reach that conclusion for different reasons than
the trial court. Having overruled Hughes's sole assignment of error, we affirm the judgment
of the Court of Claims of Ohio.
Judgment affirmed.
BROWN and MENTEL, JJ., concur.