[Cite as Nelson v. Univ. of Cincinnati, 2016-Ohio-1278.]

{¶1} This cause came to be heard on a complaint brought by Plaintiff, John 

Russell Nelson, for race and gender discrimination in violation of R.C. 4112. The case 

proceeded to trial on the issues of liability and damages on December 14-15, 2015. 

Plaintiff’s post-trial brief was filed on December 24, 2015 and Defendant’s post-trial brief 

was filed on December 28, 2015. The following constitutes the Court’s Findings of Fact 

and Conclusions of Law. 

FINDINGS OF FACT 

{¶2} Plaintiff, an African-American male, began his employment with Defendant 

on October 12, 2009, as an Assistant Dean of Administrative Services for Clermont 

College, which is one of Defendant’s regional colleges. 

{¶3} On October 19, 2012, Plaintiff was terminated for his conduct in making an 

unauthorized telephone call to David Cannon (Cannon), the Vice Chancellor for Finance 

at the Ohio Board of Regents (OBR). 

{¶4} By making the call, Plaintiff disregarded the hierarchy at the college and 

bypassed the authority of Greg Sojka (Plaintiff’s supervisor), Kathy Qualls (Senior Vice 

Provost for Academic Finance and Administrative Affairs), Lawrence Johnson (Provost), 

and Robert Ambach (Vice President of Financial Affairs). 

JOHN RUSSELL NELSON 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI 

 Defendant 

Case No. 2014-00830 

Judge Dale A. Crawford 

DECISION 
Case No. 2014-00830 -2- DECISION 

{¶5} After the call was made to OBR, Margaret Rolff (Assistant Vice President of 

Government Relations and University Communications) spoke with Cannon, and 

subsequently shared the information about the call with Ambach and Qualls. 

{¶6} Qualls sent an email on September 21, 2012, to Johnson, relaying the 

information given to her by Rolff. 

{¶7} Johnson forwarded the message to Sojka, indicating his displeasure at the 

circumstances. 

{¶8} Although Qualls may have had a brief conversation with Sojka about the 

incident and while Johnson may have advised Sojka to terminate Plaintiff,1 the decision 

to terminate Plaintiff was ultimately Sojka’s. 

{¶9} Plaintiff’s responsibilities were eventually taken over by Maria Keri, a 

Caucasian female, over six months after Plaintiff’s termination. However, over fifty 

percent of Keri’s duties were different from Plaintiff’s and she did not hold the same title. 

CONCLUSIONS OF LAW 

{¶10} R.C. 4112.02 states, in part: 

{¶11} “It shall be an unlawful discriminatory practice: 

{¶12} “(A) For any employer, because of the race, color, religion, sex, military 

status, 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.” 

{¶13} Disparate treatment discrimination has been described as “the most easily 

understood type of discrimination. The employer simply treats some people less 

favorably than others because of their race, color, religion, sex, or national origin.” 

 1

The Court notes that Johnson did not know Plaintiff and was not aware of his race. 
Case No. 2014-00830 -3- DECISION 

Teamsters v. United States, 431 U.S. 324, 335–336 (1977) fn. 15. In a disparate 

treatment case, liability depends upon whether the protected trait actually motivated the 

employer’s decision. Hazen Paper Co. v. Biggins, 507 US. 604, 610 (1993). “Whatever 

the employer’s decision making process, a disparate treatment claim cannot succeed 

unless the employee’s protected trait actually played a role in that process and had a 

determinative influence on the outcome. Id. 

{¶14} As a general rule, this Court will not substitute its judgment for that of the 

employer and will not second-guess the business judgment of employers regarding 

personnel decisions. Kirsch v. Bowling Green State Univ., 10th Dist. Franklin No. 

95API11-1476, 1996 WL 284717 (May 30, 1996). Additionally, in a discrimination case, 

the Court must examine the employer’s motivation, not a Plaintiff’s perceptions. Wrenn 

v. Gould, 808 F.2d 493, 502 (6th Cir.1987). Plaintiff is an employee-at-will and can be 

terminated at any time for a non-discriminatory reason. Sutton v. Tomco Machining, 

129 Ohio St.3d 153 (2011). “The cornerstone of this analysis [whether there was 

discriminatory intent] is whether the employment action is the result of discrimination—

not merely whether the action is unfair or the justification questionable.” Price v. Matco 

Tools, 9th Dist. No. 23583, 2007-Ohio-5116, ¶ 31. “Even if the reasons are foolish or 

trivial or even baseless” that fact is not sufficient to justify a finding of discrimination. 

Hartley v. Wilson Bell Inc., 124 F.3d 887, 890 (7th Cir.1997). Therefore, it is not the 

Court’s responsibility to determine whether Defendant’s personnel decision was correct 

or to determine the content of the call, but rather the Court must determine whether race 

or gender were factors in the decision to terminate Plaintiff’s employment. 

{¶15} To establish an employment discrimination claim, a plaintiff is required to 

either “present direct evidence of discrimination or introduce circumstantial evidence 

that would allow an inference of discriminatory treatment.” Johnson v. Kroger Co., 319 

F.3d 858, 864-865 (6th Cir.2003). If there is no direct evidence of discrimination, the 

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 
Case No. 2014-00830 -4- DECISION 

792 (1973), will apply. Under McDonnell Douglas, a plaintiff establishes a prima facie 

case of race discrimination by establishing that he: 1) was a member of a protected 

class; 2) suffered an adverse employment action; 3) was qualified for the position held; 

and 4) that comparable, nonprotected persons were treated more favorably. ld. at 802. 

{¶16} In reverse-discrimination cases, the first and fourth prongs are modified, 

requiring Plaintiff to “demonstrate background circumstances [to] support the suspicion 

that the defendant is that unusual employer who discriminates against the majority * * * 

and that the defendant treated differently employees who were similarly situated but 

were not members of the protected class.” Sutherland v. Mich. Dep’t of Treasury, 344 

F.3d 603, 614 (6th Cir. 2003). 

{¶17} Applying McDonnell Douglas to Plaintiff’s race discrimination claim, it is 

uncontroverted that Plaintiff, as an African-American male, is a member of a protected 

class, that he suffered an adverse employment action when he was terminated from his 

position, and that he was qualified for the position. The only element at issue for 

Plaintiff’s race discrimination claim is whether comparable, nonprotected persons were 

treated more favorably. With regard to Plaintiff’s gender discrimination, the analysis 

changes slightly as set forth in Sutherland. Plaintiff has to establish that background 

circumstances were present that show Defendant discriminated against the majority. 

{¶18} In support of his prima facie case, Plaintiff testified that three Caucasian 

women received salary increases while his request for a salary equity adjustment was 

denied. Plaintiff also alleged discrimination based on the premise that he was replaced 

by Keri. However, Sojka testified that the three women who received salary increases, 

Mary Sterns, Mae Hanna, and Glenda Neff, all took on substantial, additional 

responsibilities. Sojka also testified that Keri, the person who ultimately took over 

Plaintiff’s responsibilities, came in under a different title, the Director of Business Affairs, 

and had two main additional duties—1) the entire human resources function for faculty 

and administration; and 2) creating the entire program’s cost study. Furthermore, Sojka 
Case No. 2014-00830 -5- DECISION 

testified that Keri spent more than fifty percent of her time performing the duties that 

Plaintiff never performed. Based on this testimony, the Court finds that Plaintiff has not 

established that comparable nonprotected persons were treated more favorably as 

required by the McDonnell Douglas framework on both his race and gender claim. 

{¶19} Nevertheless, assuming that Plaintiff has stated a prima facie case for 

discrimination, the analysis continues and the burden of production shifts to Defendant 

to “articulate some legitimate, nondiscriminatory reason for [its action.]” McDonnell 

Douglas, supra, at 802. If Defendant succeeds in doing so, then the burden shifts back 

to Plaintiff to prove that the legitimate, nondiscriminatory reasons offered by Defendant 

were a mere pretext for discrimination. Id. To meet his burden, Plaintiff must submit 

evidence that an employer’s proffered reason (1) had no basis in fact, (2) did not 

actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant 

the challenged conduct. Knepper v. Ohio State Univ., 10th Dist. Franklin No. 10AP1155, 2011-Ohio-6054, ¶ 12. Under any of the three options, Plaintiff must produce 

sufficient evidence from which the trier of fact could reasonably reject an employer’s 

explanation and infer that the employer intentionally discriminated against him. Id. “A 

reason cannot be proved to be a pretext for discrimination unless it is shown both that 

the reason was false, and the discrimination was the real reason.” Crase v. Shasta 

Beverage, Inc., 10th Dist. Franklin No. 11AP-519, 2012-Ohio-326, ¶ 21. 

{¶20} According to Sojka’s testimony, Plaintiff’s conduct in making the 

unauthorized telephone call to Cannon was the reason for his termination. Thus, the 

Court finds that Defendant has articulated a legitimate, nondiscriminatory reason for 

terminating Plaintiff. Upon Defendant presenting a nondiscriminatory reason for 

Plaintiff’s termination, the burden shifts back to Plaintiff to provide evidence that the 

reason was not merely pretext for discrimination. 

{¶21} “[P]retext does not address the correctness or desirability of reasons 

offered for employment decisions”; rather, “it addresses the issue of whether the 
Case No. 2014-00830 -6- DECISION 

employer honestly believes in the reasons it offers.” Wigglesworth v. Mettler Toledo 

International, Inc., 10th Dist. Franklin No. 09AP-411, 2010-Ohio-1019 (internal citations 

omitted). “[I]n order to discredit the employer’s proffered reason, a plaintiff cannot 

simply show that the employer’s decision was wrong or mistaken, since the factual 

dispute at issue is whether discriminatory animus motivated the employer, not whether 

the employer is wise, shrewd, prudent, or competent.” Id. 

{¶22} In support of his pretext argument, Plaintiff testified that Qualls made things 

difficult for him and that he thought Qualls never believed he was qualified for the 

position. Plaintiff further testified that Qualls falsified pertinent information in her email 

which was ultimately delivered to Sojka, and that the information contained in the email 

ultimately led to Plaintiff’s termination. However, Sojka testified that Plaintiff was not 

terminated for poor performance but rather for his conduct in merely making the call to 

Cannon. More specifically, Sojka stated that he was concerned that the trust and 

confidence with OBR had been violated. He was surprised and disappointed “that an 

employee would attempt an end run without [his] knowledge with the Ohio Board of 

Regents.” While there may be some dispute as to the specifics of the call, it is clear that 

Sojka and Johnson believed that the call itself circumvented the chain of command at 

the college and that making the call to OBR was inappropriate. Furthermore, although 

Cannon testified that he could not recall the specifics of the call, he described the call as 

“unusual” and “awkward.” He also testified that he believed the call was so unusual that 

he discussed the call with Rolff. 

{¶23} Based on the foregoing, the Court finds that Defendant’s reason for 

terminating Plaintiff was for making the call to Cannon and not for any discriminatory 

reason. The Court also finds that the call was unauthorized and inappropriate, and 

regardless of the content of the call or whether the information was conveyed 

incorrectly, Plaintiff has failed to show that Defendant’s articulated reason for his 
Case No. 2014-00830 -7- DECISION 

termination was merely pretext. Accordingly, judgment shall be rendered in favor of 

Defendant. 

 DALE A. CRAWFORD 

 Judge 
[Cite as Nelson v. Univ. of Cincinnati, 2016-Ohio-1278.]

{¶24} This case was tried to the Court on the issues of liability and damages. 

The Court has considered the evidence and, for the reasons set forth in the decision 

filed concurrently herewith, judgment is rendered in favor of Defendant. Court costs are 

assessed against Plaintiff. The clerk shall serve upon all parties notice of this judgment 

and its date of entry upon the journal. 

 DALE A. CRAWFORD 

 Judge 

cc: 

Jonathan B. Allison 

525 Vine Street, 6th Floor 

Cincinnati, Ohio 45202 

Eric A. Walker 

Lindsey M. Grant 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed February 22, 2016 

Sent To S.C. Reporter 3/25/16 

JOHN RUSSELL NELSON 

 Plaintiff 

 v. 

UNIVERSITY OF CINCINNATI 

 Defendant 

Case No. 2014-00830 

Judge Dale A. Crawford 

JUDGMENT ENTRY