[Cite as Grubach v. Univ. of Akron, 2020-Ohio-3467.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Paul Grubach, : 

 Plaintiff-Appellant, : 

 No. 19AP-283 

v. : (Ct. of Cl. No. 2017-00750)

University of Akron, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on June 25, 2020 

 

On brief: Daniel D. Domozick, for appellant. 

On brief: Dave Yost, Attorney General, Randal W. Knutti, 

and Amy S. Brown, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

SADLER, P.J. 

{¶ 1} Plaintiff-appellant, Paul Grubach, appeals from a judgment of the Court of 

Claims of Ohio in favor of defendant-appellee, University of Akron. For the reasons that 

follow, we reverse. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} In August 2014, when appellant was 61 years old, he entered appellee's 

Integrated Bioscience ("IB") doctoral program with the goal of obtaining his Ph.D. in 

biology. Appellant had a master's degree in biology when he entered the IB program, and 

he had published works in the fields of ichthyology and ecology. Prior to entering the IB 

program, appellant had corresponded with Dr. Stephen Weeks via email regarding their 

mutual interest in having appellant attend the university as a doctoral candidate. Appellant 
No. 19AP-283 2 

had learned of Dr. Weeks' work with invertebrate ecology and appellee's IB program via the 

internet. At the time appellant contacted Dr. Weeks, Dr. Weeks held the dual positions of 

chairman of the Department of Biology and director of the IB program. Dr. Weeks also 

holds a Ph.D. in ecology and evolutionary biology. Though appellant and Dr. Weeks 

corresponded via email prior to appellant's arrival on campus, the two did not meet prior 

to that time. 

{¶ 3} There is no dispute in this case that the process of obtaining a Ph.D. in biology 

is set out in some detail in appellee's IB Graduate Student Handbook ("IB Handbook"). 

According to the IB Handbook, prior to the completion of the first semester of graduate 

work, the student must choose a major advisor and a Ph.D. advisory committee, typically 

consisting of the major advisor and four other faculty members with diverse expertise in 

areas related to the student's proposed course of study. Appellant chose Dr. Weeks to be 

his major advisor because of Dr. Weeks' expertise in invertebrate ecology in general and 

clam shrimp in particular. Appellant selected a Ph.D. advisory committee consisting of 

Dr. Randy Mitchell, a Ph.D. in biology, Dr. Zhong-Hui Duan, a Ph.D. in applied 

mathematics, Dr. Anne Wiley, a Ph.D. in zoology, ecology, evolutionary biology and 

behavior, and Dr. Peter Lavrentyev, a Ph.D. in aquatic ecology. 

{¶ 4} The IB Handbook sets out the requirements for obtaining a Ph.D., including 

the time in which the doctoral candidate must complete certain milestones, in relevant part 

as follows: 

J. Doctoral Candidacy Examination 

 Scope of Examination: The comprehensive written 

examination shall be administered by the PhD 

Advisory Committee before the beginning of the 

5th semester. * * * 

 Administration of the Examination 

* * * There shall be only two possible outcomes of the 

examination, determined by majority vote of the PhD 

Advisory Committee: Pass or Fail. The Examination will 

consist of two parts: a written exam that, if passed, is 

followed by an oral exam. If the student fails either of the 

exams, they will be given one chance to retake the entire 

exam. A student cannot fail more than one exam (i.e., cannot 

fail the written, pass on a second try, and then fail the oral). 
No. 19AP-283 3 

Failure to pass the make-up exam or failing more than one 

exam results in dismissal from the program. * * * 

K. Research Proposal Defense 

The student will work with the major advisor to develop a 

research proposal to be presented and defended to the PhD 

Advisory Committee. * * * The PhD Advisory Committee shall 

decide on the time of defense, which should be no later than 

two months after the Comprehensive Examination. * * * 

* * * 

N. Annual Progress Reports 

The degree candidate will present an annual written progress 

report to the PhD Advisory Committee each Spring semester. 

Unsatisfactory progress as determined by the majority of the 

Committee may result in dismissal from the program. These 

reports should be forwarded to the Director of the program 

for inclusion of the students file. 

O. Completion of Research and Defense of 

Dissertation 

All PhD projects must be completed and dissertation 

defended within 6 years of beginning enrollment. * * * 

(Emphasis added; bold sic.) (Def.'s Ex. E, attached to Nov. 27, 2018 Mot. For Summ. 

Jgmt.) 

{¶ 5} Other requirements of the IB doctoral program include maintaining at least 

a "B" average in classes and serving as a teaching assistant ("TA"), for which the candidate 

is paid a biweekly stipend during the academic year. There is no dispute in this case that 

appellant's grades were excellent as was his teaching and research. 

{¶ 6} Even though appellant's classwork, teaching, and research continued to be 

well received, things took a turn for the worse when appellant sat for his comprehensive 

written examination. In July 2016, appellant took his written comprehensive examination. 

The format of the examination was generally open book, with each advisory committee 

member posing three questions to appellant. Pursuant to the IB Handbook, the advisory 

committee members graded the answers and individually determined a grade of pass or 

fail. On July 26, 2016, Dr. Weeks sent the committee members the following email: 

Please get me your scores by the end of the week. I will need 

to report two things to [appellant]: 
No. 19AP-283 4 

1) An overall scoring of "pass" or "fail" for your portions of the 

writtens. That can be determined however you see fit. 

Everyone had multiple questions, so you will need to 

determine whether [appellant] did an acceptable job across all 

your questions. You can weight questions equally or 

differentially as you see fit. 

2) A short overview of how [appellant] did, which includes 

both positives and negatives in his performance. If you 

believe he failed the writtens, please think about how much 

specific feedback you want to give [appellant] in case you will 

be asking him a similar set of questions for his 2nd attempt 

(i.e., don't "telegraph" exactly what he should have said on 

your various questions if you think you will ask him the same 

or similar questions for round 2). 

(Def.'s Ex. G, attached to Mot. For Summ. Jgmt.) 

{¶ 7} When the results of the examination came in, Dr. Weeks and Dr. Mitchell 

graded appellant as a "fail," but Dr. Wiley and Dr. Duan graded appellant as an "overall 

pass." Dr. Lavrentyev responded as follows: 

l have reviewed [appellant's] written exam now. I did expect 

a deeper understanding and more work at the PhD level, 

particularly given the fact that the exam was open-book. 

However, I accept his answers as satisfactory. So he passes 

the exam.

Specifically, [appellant] is a bit shaky on some key ecological 

concepts such as meta-population and trophic cascades. 

While his answers are not wrong per se, they are verbose, 

generic, and not very precise. This is especially true about the 

second question (eco-physiology). The literature sources he 

used are few and mostly dated. He also needs to learn how to 

build and test research hypotheses (third question). 

(Emphasis added.) (Def.'s Ex. G, attached to Mot. For Summ. Jgmt.) 

{¶ 8} Appellant argues that had Dr. Weeks accepted Dr. Lavrentyev's original 

passing grade, he would have passed the written examination. Both the IB Handbook and 

the evidence support appellant's claim, as a passing grade from the majority of the 

committee means the student passes the written exam. Nevertheless, after receiving the 

grades, Dr. Weeks sent the following email correspondence to Dr. Lavrentyev: 

BTW — I just wanted to let you know that both Randy and I 

failed [appellant] on our portions of the written exams. It was 

for the exact same reason that you noted: he did not show a 

deep understanding of the material. 
No. 19AP-283 5 

Thus, if you really feel that his understanding of the topic(s) on 

your questions weren't up to the level expected of a PhD 

student, please don't feel that you would be "the bad guy" if you 

failed him. Let me know if you think he really showed an 

acceptable level of understanding for your questions. 

(Def.'s Ex. G, attached to Mot. for Summ. Jgmt.) 

{¶ 9} Dr. Lavrentyev replied as follows: "l hate to reverse my own evaluation, but I 

didn't know that passing/failing could be done separately for different questions. While his 

first answer was OK, the second and third were pretty weak. I just don't know whether he 

didn't take the exam seriously enough or it is the true measure of his abilities." (Def.'s Ex. 

G, attached to Mot. for Summ. Jgmt.) Dr. Weeks responded: 

You can score it however you deem appropriate. Both Randy 

and I scored each question separately and then came up with 

the overall score for the exam. It was easy for the two of us 

because he failed all 3 questions for both of us, so he naturally 

failed the entire exam for both Randy and myself. 

If you think he passed one question and failed two others, then 

you need to decide if all 3 questions were equally important. 

If so, then he failed the entire exam. On the other hand, if the 

one question he passed is much more important than the 

other two, then you would have to make a judgement [sic] call 

as to whether he should pass the exam overall. 

It is fine to "reverse" your decision, if you feel he did poorly. 

From your message below, if you are questioning whether he 

"took it seriously enough," to me that suggests you believe he 

didn't do well enough to pass? If you feel that way, then that 

is how you should score his performance. 

(Def.'s Ex. G, attached to Mot. for Summ. Jgmt.) 

{¶ 10} Dr. Lavrentyev replied: "In this case, I think he should redo the 2nd and 3rd

questions to pass." (Def.'s Ex. G, attached to Mot. for Summ. Jgmt.) On July 28, 2016, 

Dr. Weeks wrote to the committee members that appellant "passed two but failed three of 

the written exams, and thus he failed overall." (Def.'s Ex. H, attached to Mot. for Summ. 

Jgmt.) The evidence submitted by appellant reveals that Dr. Weeks never told appellant or 

any of the advisory committee members that Dr. Lavrentyev had originally graded 

appellant as a pass. 

{¶ 11} Dr. Weeks testified in his deposition that prior to the written examination, he 

had a "good relationship" with appellant. (Weeks Dep. at 42.) However, when Dr. Weeks 
No. 19AP-283 6 

met with appellant after the examination results were revealed, appellant and Dr. Weeks 

got into a "very heated" discussion during which appellant accused him of "trying to 

torpedo his Ph.D." (Weeks Dep. at 100.) Appellant reportedly told Dr. Weeks he no longer 

wanted him as his major advisor. 

{¶ 12} On September 30, 2016, Dr. Weeks sent appellant an email, copied to 

Dr. Hazel Barton, the new director of the IB program, wherein Dr. Weeks told appellant 

that he had not received any information from him regarding a new advisor or a plan to 

move forward. Dr. Weeks advised appellant "[u]nless we hear about your plan soon, you 

could be deemed 'not making sufficient progress' on your degree, which will put your 

funding at jeopardy." (Pl.'s Ex. 12, attached to Barton Dep.) On that same day, appellant 

informed Dr. Weeks and Dr. Barton that he had met with two faculty members but neither 

agreed to be his major advisor. 

{¶ 13} On October 18, 2016, Dr. Barton presented appellant with a proposed written 

agreement setting forth certain milestones appellant was to accomplish in order for him to 

remain in the IB Ph.D. program along with deadlines in which to complete them. Appellant 

refused to sign the agreement claiming it was "flawed." (Pl.'s Ex. 16, attached to Barton 

Dep.) In his deposition, appellant clarified that the flaws in the agreement included an 

unrealistic timeline in which to complete the milestones and the fact that the agreement 

referenced Dr. Weeks as appellant's major advisor when he was no longer serving as such. 

At the point in time when Dr. Barton drafted the letter to appellant, he had been in the IB 

program a little more than two years. 

{¶ 14} On January 18, 2017, Dr. Barton sent appellant a letter stating that he was 

behind on his Ph.D. studies and that he needed to complete the necessary milestones by 

the end of the Spring 2017 semester, including passing the candidacy written exam, passing 

the candidacy oral exam, completing and passing the proposal defense, and submitting a 

yearly progress report. Appellant testified he did not receive this letter until his attorney 

gave it to him in April or early May 2017. (Grubach Dep. at 98.) On April 14, 2017, 

appellant's legal counsel sent a letter to appellee complaining of unfair and discriminatory 

treatment by Dr. Weeks based on age, as well as multiple instances where appellant claims 

he was treated more harshly than other doctoral candidates. The letter also sought help for 

appellant in his efforts to find a new major advisor. 
No. 19AP-283 7 

{¶ 15} Mark Stasitis, assistant general counsel for appellee, advised appellant's 

counsel that his investigation into the matter revealed no wrongdoing on the part of 

appellant's advisory committee or the IB department head and suggested that appellee's 

Office of Equal Employment Opportunity Programs and Affirmative Action ("EEO/AA") 

was the proper forum for appellant's claim of age discrimination. In his May 1, 2017 followup letter to Stasitis, appellant's counsel asked for a specific response to his request that 

appellee provide assistance to appellant in finding a new major advisor. Stasitis responded 

by informing appellant's counsel that it is the student's responsibility to find a major 

advisor. 

{¶ 16} On May 10, 2017, appellant's Ph.D. advisory committee met to determine 

appellant's future in the program. Appellant attended the meeting and was given an 

opportunity to discuss his progress and defend his position. The committee found 

appellant had failed his written exam in summer 2016 and had neither retaken the test or 

found another major advisor. The committee voted unanimously that appellant was not 

making satisfactory progress toward his Ph.D. On May 17, 2017, Dr. Barton sent appellant 

a letter informing him that she had recommended his dismissal to Dr. Chand Midha, Dean 

of the Graduate School. On May 18, 2017, Dean Midha notified appellant that he was 

academically dismissed as a result of his failure to complete his written or oral candidacy 

exams or pass his proposal defense in accordance with the guidelines set forth in the IB 

Handbook. Appellant was dismissed from the IB Ph.D. program less than three years after 

commencing his studies. As a result of his dismissal from the IB Ph.D. program, appellant 

lost his job as a TA. 

{¶ 17} On May 31, 2017, appellant submitted a request for a grievance hearing to 

Dean Midha. Stasitis reviewed the request and concluded the proper forum for the 

complaint was appellee's EEO/AA. On August 4, 2017, appellee's EEO/AA completed its 

review of appellant's complaint of age discrimination against Dr. Weeks and Dr. Barton and 

found they were not in violation of university policy or applicable laws. 

{¶ 18} On September 8, 2017, appellant filed his complaint against appellee alleging 

breach of contract, age discrimination in violation of R.C. Chapter 4112(A), and retaliation 

in violation of R.C. Chapter 4112(I). On November 27, 2018, appellee filed a motion for 

summary judgment as to each of appellant's claims, arguing appellant had not produced 
No. 19AP-283 8 

evidence to support a finding in his favor as to any of the elements of his prima facie case. 

On April 1, 2019, the Court of Claims issued a decision and judgment entry granting 

appellee's motion for summary judgment as to each of appellant's claims on finding that 

appellant failed to produce evidence to satisfy critical elements of his prima facie case for 

breach of contract, age discrimination, and retaliation and that appellee was entitled to 

judgment as a matter of law. In granting summary judgment in favor of appellee, the Court 

of Claims declined to address appellee's alternative argument that appellant's claims for age 

discrimination and retaliation fail, as a matter of law, because all of appellant's allegations 

of discrimination and retaliation relate to appellant's status as a doctoral candidate and are 

not related to his employment as a TA. Appellant has reasserted those alternative grounds 

in this appeal. 

II. ASSIGNMENTS OF ERROR 

{¶ 19}Appellant assigns the following as trial court error: 

[1.] The trial court erred in granting summary judgment 

against Appellant on his Breach of Contract claims. 

[2.] The trial court erred in granting summary judgment 

against Appellant on his Discrimination claim. 

[3.] The trial court erred in granting summary judgment 

against Appellant on his Retaliation claim. 

III. STANDARD OF REVIEW 

{¶ 20} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the 

following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the 

moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most 

strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, 

that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing 

Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary judgment on grounds that the 

non-moving party cannot prove its case, 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 that demonstrate the absence of a genuine issue of material fact on an essential 

element of the non-moving party's claims." Lundeen v. Graff, 10th Dist. No. 15AP-32, 

2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). "Once the 

moving party meets its initial burden, the nonmovant must set forth specific facts 
No. 19AP-283 9 

demonstrating a genuine issue for trial." Dunlop v. Ohio Dept. of Job & Family Servs., 10th 

Dist. No. 19AP-58, 2019-Ohio-3632, ¶ 6, citing Dresher at 293. 

{¶ 21} Appellate review of summary judgment is de novo. Gabriel v. Ohio State 

Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. 

Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate 

court reviews a trial court's disposition of a summary judgment motion, it applies the same 

standard as the trial court and conducts an independent review, without deference to the 

trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One 

Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). We must affirm the trial court's 

judgment if any of the grounds raised by the movant at the trial court are found to support 

it, even if the trial court failed to consider those grounds. Eichenberger v. Woodlands 

Assisted Living Residence, L.L.C., 10th Dist. No. 14AP-272, 2014-Ohio-5354, ¶ 10, citing 

Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995). 

IV. LEGAL ANALYSIS 

 A. First Assignment of Error 

{¶ 22} In his first assignment of error, appellant contends the Court of Claims erred 

when it granted summary judgment to appellee on his contract claim. We agree. 

{¶ 23} In order to survive summary judgment, appellant must produce some 

evidence to support each element of his claim for breach of contract. McDade v. Cleveland 

State Univ., 10th Dist. No. 14AP-275, 2014-Ohio-4026. Accordingly, appellant "was 

required to present evidence of 'the existence of a contract, performance by the plaintiff, 

breach by the defendant, and damage or loss to the plaintiff.' " Id. at ¶ 15, quoting Jarupan 

v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, ¶ 18 (10th Dist.), citing Powell v. Grant 

Med. Ctr., 148 Ohio App.3d 1, 10 (10th Dist.2002). See also Tate v. Owens State 

Community College, 10th Dist. No. 10AP-1201, 2011-Ohio-3452. 

{¶ 24} "It is axiomatic that '* * * when a student enrolls in a college or university, 

pays his or her tuition and fees, and attends such school, the resulting relationship may 

reasonably be construed as being contractual in nature.' " Bleicher v. Univ. of Cincinnati 

College of Medicine, 78 Ohio App.3d 302, 308 (10th Dist.1992), quoting Behrend v. State, 

55 Ohio App.2d 135, 139 (10th Dist.1977). See also Tate at ¶ 21; Jefferson v. Univ. of Toledo, 

10th Dist. No. 12AP-236, 2012-Ohio-4793, ¶ 15. In addressing the issue of whether such 
No. 19AP-283 10 

contract has been breached, the trier of fact appropriately looks to the terms of the contract 

as found in the college guidelines supplied to students. Bleicher at 308, citing Embrey v. 

Cent. State Univ., 10th Dist. No. 90AP-1302 (Oct. 8, 1991), citing Smith v. Ohio State Univ.,

53 Ohio Misc.2d 11, 13 (1990). See also Lewis v. Cleveland State Univ., 10th Dist. No. 10AP606, 2011-Ohio-1192, ¶ 14; Buescher v. Baldwin Wallace Univ., 86 F.Supp.3d 789, 807 

(N.D.Ohio 2015), citing Embrey. A trial court's standard for reviewing the academic 

decisions of a college or university is not merely whether the court would have decided the 

matter differently but, rather, whether the faculty action was arbitrary and capricious. 

Bleicher at 308. Accordingly, a trial court is required to defer to academic decisions of the 

college unless it perceived such a substantial departure from accepted academic norms as 

to demonstrate that the person or committee responsible did not actually exercise 

professional judgment. Id. 

{¶ 25} Appellant alleges appellee breached the contract as found in the IB 

Handbook, Graduate Assistant Handbook, and Graduate Bulletin in a number of different 

respects including "failing to ensure that Dr. Weeks and other faculty members treated 

[appellant] fairly, professionally and appropriately and free of arbitrary conduct," "failing 

to ensure that [appellant] was free from discrimination and retaliation," and "failing to 

permit [appellant] a grievance hearing." (Compl. at ¶ 42.) Though much of the contractual 

language quoted in the complaint, which is taken either from the IB Handbook, Graduate 

Assistant Handbook, and/or Graduate Bulletin, can be fairly characterized as aspirational 

in nature, the graduate bulletin does provide that "[b]y our behavior with one another we 

endorse a culture of diversity, celebrating the uniqueness of the individual and developing 

our understanding and tolerance of differences in gender, ethnicity, age, spiritual belief, 

sexual orientation, and physical or mental potential." (Emphasis added.) (Pl.'s Ex. 1 at 4-

5, attached to Memo. Contra in Opp.) Accordingly, under the particular circumstances of 

this case, we disagree with appellee's threshold contention that the cited provisions are too 

vague and indefinite to support an actionable claim for breach of contract. Moreover, 

because this court's decision in Bleicher represents the "well settled 'standard for reviewing 

the academic decisions of a college,' " we will apply the Bleicher standard in our review of 

appellant's contract claim. McDade at ¶ 27, citing Jefferson at ¶ 16. See also Kaczkowski 

v. Ohio N. Univ., 3d Dist. No. 6-05-08, 2006-Ohio-2373, ¶ 23 (Bleicher sets fort the 
No. 19AP-283 11 

standard for "determining whether an implied contract between a university and a student 

* * * ha[s] been breached." (Emphasis sic.)). 

1. Appellant's Failing Grade on the Written Comprehensive Examination 

{¶ 26} Appellant's primary contention is that appellee breached the contract by 

failing him on the written comprehensive examination. Appellant claims that Dr. Weeks' 

conduct in convincing Dr. Lavrentyev to change appellant's grade on the comprehensive 

written examination from pass to fail raises a factual issue whether Dr. Weeks and 

Dr. Lavrentyev substantially departed from accepted academic norms and failed to actually 

exercise professional judgment in performing their respective roles as committee members. 

The Court of Claims made the following determination regarding appellant's claim: 

Upon review of the emails between Dr. Weeks and 

Dr. Lavrentyev, it is clear that the discussion between two 

committee members regarding [appellant's] written exam 

scores was not a breach of the contract. Indeed, the IB 

Handbook requires that the PhD advisory committee take a 

majority vote to determine whether the IB student passes or 

fails the written exams. After determining that two of the 

committee members had rated [appellant] as "overall pass," 

and two committee members had rated [appellant] as "fail," 

the IB Handbook required' that Dr. Weeks, as chair of the 

committee and [appellant's] major advisor, determine 

whether [appellant] passed Dr. Lavrentyev's portion of the 

exam. The contents of the emails show that Drs. Weeks and 

Lavrentyev were discussing [appellant's] performance on the 

questions that they had drafted pursuant to the procedures in 

the IB Handbook. The end result of the discussions was a 

determination that [appellant] had failed three portions and 

passed two portions, resulting in an overall fail. Nothing in 

the email shows that Dr. Weeks harbored a discriminatory 

animus toward [appellant] based on his age. Furthermore, 

the discussion displayed in the emails shows that all of the 

committee members were using their professional judgment 

to determine whether [appellant] was demonstrating the level 

of understanding of the material expected from a PhD 

candidate. In short, the emails demonstrate that the 

committee members were exercising their professional 

judgment regarding [appellant's] performance on the written 

exams. 

(April 1, 2019 Decision at 11-12.) 
No. 19AP-283 12 

{¶ 27} Appellant takes exception to the lack of consideration by the Court of Claims 

of his theory that Dr. Weeks' age-related bias toward appellant provided probative and 

persuasive evidence in support of his breach of contract claim. Our initial review of the 

Court of Claims' decision reveals a certain degree of factfinding as opposed to a 

determination whether appellant provided evidentiary support for his breach of contract 

claim, as is required in the context of summary judgment. Additionally, by focusing solely 

on the text of the email correspondence in determining whether Dr. Weeks breached the 

academic contract, the Court of Claims essentially disregarded appellant's testimony that 

Dr. Weeks made several derogatory age-related comments to appellant prior to the written 

examination and that Dr. Mitchell made a derogatory age-related comment to appellant in 

October 2015. 

{¶ 28} In appellant's deposition, he was asked about a comment Dr. Weeks made to 

him on their first meeting. The deposition reads in relevant part as follows: 

Q. Sometime in the summer of 2014, you say that Dr. Weeks 

said – and I'm not sure if this is an exact quote, but said, in 

substance, "I don't mean to sound ageist, but you are older 

than the typical graduate student, are you sure you want to 

continue, it may be a long time for you to find a job." 

Did I read that right? 

A. Yes, sir. 

Q. Tell me how and where you say that Dr. Weeks made those 

remarks. 

A. That remains a deep impression in my mind because that's 

the first thing he ever said to me when he saw me the first time 

in my entire life. We were in his office, and I wanted to have 

a meeting with him, and I walked into his office, he saw me for 

the first time, and that's exactly what he said. And I'll never 

forget that. 

(Grubach Dep. at 38.) 

{¶ 29} Dr. Weeks did not deny making a statement of this nature to appellant when 

they first met. It is certainly reasonable to conclude that Dr. Weeks' comment was more 

than merely a vague or ambiguous reference to appellant's age and that it represents 

probative evidence of a potential bias against Ph.D. candidates of appellant's age. There is 

no dispute that appellant was much older than appellee's typical Ph.D. candidates. Other 

evidence presented by appellant supports the conclusion that the age-related statement 
No. 19AP-283 13 

Dr. Weeks made to appellant in August 2014 was not an isolated comment or stray remark, 

as appellant testified that Dr. Weeks made similar age-related statements in fall 2014 and 

summer 2015. According to appellant, Dr. Weeks asked him "[s]o how old are you?" and 

when appellant replied "[s]ixty-one," Dr. Weeks exclaimed "[o]h." (Grubach Dep. at 44.) 

When discussing appellant's hobby of practicing mixed martial arts in fall 2014, Dr. Weeks 

reportedly asked appellant "[s]o why do you still do that at your." (Grubach Dep. at 45.) 

Appellant testified Dr. Weeks stopped short of saying the word "age." (Grubach Dep. at 44-

45.) Again, in summer 2015, Dr. Weeks ran into appellant in a hallway and said "[y]ou look 

surprisingly good for your age." (Grubach Dep. at 50.) Thus, the record contains evidence 

that Dr. Weeks made several comments to appellant that demonstrate a possible agerelated bias towards his doctoral candidacy. 

{¶ 30} At his deposition, appellant stated that Dr. Mitchell also made a comment to 

him that may reasonably be construed as evidence of an age-related bias against appellant. 

Appellant testified that in October 2015, Dr. Mitchell began asking appellant highly 

technical and complex questions during a discussion. According to appellant, when he 

asked for more time to provide answers, Dr. Mitchell inquired "[w]ell, how much time do 

you need? How old are you?" (Grubach Dep. at 63.) Though it is reasonable to construe 

Dr. Mitchell's statement as merely an expression of frustration with appellant, the 

statement is probative evidence of a possible age-related bias against appellant's doctoral 

candidacy. Dr. Mitchell failed appellant on all three questions on the comprehensive 

written examination and subsequently declined to become appellant's major advisor, 

essentially ending appellant's doctoral candidacy. 

{¶ 31} The Court of Claims, in granting summary judgment to appellee on the 

breach of contract claim, gave no consideration to appellant's evidence that Dr. Weeks 

harbored a discriminatory animus towards him based on age and that such animus may 

have motivated Dr. Weeks to persuade Dr. Lavrentyev to change appellant's grade from 

pass to fail. The Court of Claims considered such evidence only in the context of appellant's 

statutory age discrimination and retaliation claims. In his deposition, Dr. Lavrentyev 

discussed, on cross-examination, the decision to change appellant's grade on the written 

examination from pass to fail. His testimony is as follows: 

Q. So if Weeks doesn't send you an email on July 28, you 

would not have changed your grade, you would have said he 
No. 19AP-283 14 

passed right? The only reason you changed it from pass to fail 

is because of Dr. Weeks email, right? 

A. Well, no, because I discussed it with him, and he explained 

how it works, because the Ph.D. Program was something new 

at the time. 

Q. The what was? 

A. It was new to me at the time because I was only on a few 

committees, and I never had faced this situation where a 

student performed poorly on a written exam, that's why I 

wasn't sure what it would entail if I failed the student. I didn't 

want to fail him to the point he would be dismissed. 

Q. Why not? 

A. Well, because I just felt he could perform better. 

Q. So let me ask it again. 

If Weeks doesn't send this e-mail on the 28th, and you don't 

have that phone conversation with him, then [appellant] 

would have passed his exam, you wouldn't have changed your 

grade, correct? 

A. Well, you could say that, yes, but it was my own decision. 

Q. It was your own decision because Weeks told you that 

[appellant] could redo Questions 2 and 3, correct? 

A. He told me that I could grade questions separately. 

(Lavrentyev Dep. at 80-81.) 

{¶ 32} As set forth above, Dr. Lavrentyev's decision to change appellant's grade on 

the written examination from pass to fail created a significant impediment to appellant's 

progress toward his Ph.D. Dr. Weeks was the IB department head, the IB department 

chairman, and appellant's major advisor at the time the critical emails were exchanged. 

Dr. Lavrentyev admitted he was relatively new to the process at the time he graded 

appellant's written examination. Dr. Barton and the members of appellant's committee 

agreed it would be unfair and improper to consider a student's age in reviewing a student's 

academic performance. Dr. Barton further stated that it would not be proper for a major 

advisor to reveal to another member of the committee that the student had failed the 

advisor's portion of the written examination when the other committee member had yet to 

issue a grade for the student. The emails between Dr. Weeks and Dr. Lavrentyev establish 

that Dr. Weeks revealed to Dr. Lavrentyev that both he and Dr. Mitchell failed appellant on 
No. 19AP-283 15 

every question. Dr. Barton also asserted she would never ask another committee member 

to change the grade he or she had given the student on the written comprehensive 

examination. Dr. Weeks admitted that it would be improper for a student's major advisor 

to instruct another committee member how to grade the written examination. (Weeks Dep. 

at 27.) Yet, the emails permit the inference that Dr. Weeks improperly influenced 

Dr. Lavrentyev to change appellant's grade from "overall pass" to "fail." 

{¶ 33} In our view, when construed in appellant's favor, as is required when ruling 

on a motion for summary judgment, appellant's evidence, if believed, demonstrates 

Dr. Weeks harbored a discriminatory animus toward appellant based on age. The email 

correspondence between Dr. Weeks and Dr. Lavrentyev, when viewed in appellant's favor, 

permits the conclusion that Dr. Weeks substantially departed from accepted academic 

norms by persuading Dr. Lavrentyev to change appellant's grade from pass to fail. Thus, it 

is permissible on this record to infer that an age-related bias, rather than the exercise of 

professional judgment, was the reason Dr. Weeks persuaded Dr. Lavrentyev to change 

appellant's grade on the written comprehensive examination. Dr. Weeks has admitted that 

he never told appellant, Dr. Barton, or any of the other committee members that 

Dr. Lavrentyev had originally given appellant a passing grade on the written examination. 

(Weeks Dep. at 104.) According to Dr. Mitchell, however, Dr. Weeks told him "everybody 

is saying the same thing" about appellant's performance on the written examination. 

(Mitchell Dep. at 54.) 

{¶ 34} Appellant also contends Dr. Weeks substantially departed from accepted 

academic norms when he refused to allow appellant to amend his responses to the two 

questions on which his responses were deemed "a bit shaky." (Def.'s Ex. G, attached to Mot. 

for Summ. Jgmt.) Dr. Lavrentyev testified on cross-examination as follows: 

Q. So [appellant] could have retaken Questions 2 and 3 for 

you? 

A. Yes. 

Q. And assuming it was a good answer, you would have 

passed him? 

A. Yes. Definitely. 

Q. Did you tell that to Dr. Weeks? 

A. I did. 
No. 19AP-283 16 

Q. Did you ever discuss it with him? 

A. Yes. He said that, "[appellant] should contact you about 

retaking the written exam." 

Q. Dr. Weeks told you? 

A. Yes. 

Q. That [appellant] was going to contact you about retaking 

the exam? 

A. Right. 

Q. Did you know Dr. Weeks would not allow [appellant] to 

retake Questions 2 and 3 for you? 

A. I don't know that. 

(Lavrentyev Dep. at 61-62.) 

{¶ 35} Dr. Lavrentyev testified he "fully expected [appellant] to come back and 

retake [the two exam questions]." (Lavrentyev Dep. at 62.) However, when Dr. Weeks was 

asked on cross-examination whether he told appellant Dr. Lavrentyev had offered to let him 

retake a portion of the written examination, he answered "I don't believe so." (Weeks Dep. 

at 101.) Appellant confirmed he was never told about Dr. Lavrentyev's offer. 

{¶ 36} In granting summary judgment for appellee, the Court of Claims cited 

provisions in the IB Handbook which arguably require a student to retake the entire 

examination on receiving a failing grade. Appellant, however, presented evidence that 

another doctoral candidate had been given an opportunity to retake a portion of a 

comprehensive written examination in the recent past. (Weeks Dep. at 105; Pl.'s Ex. 10, 

attached to Jan. 31, 2019 Memo. Contra in Opp.) Dr. Weeks also acknowledged it was 

"unclear from our guidelines" whether a committee member could permit a student to 

retake a portion of the written examination. (Weeks Dep. at 101.) Dr. Mitchell testified as 

follows: 

Q. Okay. Is that permitted, as far as you understand, that 

you're allowed to change your grade from pass to fail if a 

student retakes a portion of your exam? 

A. Yes, it seems to me that I don't see anything that would 

stop you from doing that. 

(Mitchell Dep. at 52.) 

{¶ 37} Appellee's position in this litigation is that Dr. Lavrentyev's original grade of 

"overall pass" was not a final determination but was subject to change. Because appellant 
No. 19AP-283 17 

had not been given a final grade by Dr. Lavrentyev at the time he discussed an offer to have 

appellant retake certain questions on the written exam and because the IB Handbook is 

"unclear" about a student retaking a portion of an examination, an issue of fact arises 

whether Dr. Weeks substantially departed from accepted academic norms by dictating the 

manner in which Dr. Lavrentyev administered and graded his portion of the written 

examination. (Weeks Dep. at 101.) 

{¶ 38} The Court of Claims, nevertheless, made the following determination 

regarding the results of the written examination: "After determining that two of the 

committee members had rated [appellant] as 'overall pass,' and two committee members 

had rated [appellant] as 'fail,' the IB Handbook required that Dr. Weeks, as chair of the 

committee and [appellant's] major advisor, determine whether [appellant] passed 

Dr. Lavrentyev's portion of the exam." (Decision at 11.) The Court of Claims did not, 

however, identify any specific provision in the IB Handbook which would cloak a major 

advisor, such as Dr. Weeks, with authority to "determine whether [appellant] passed 

Dr. Lavrentyev's portion of the exam," and this court can find no such provision. (Decision 

at 11.) Nor has appellee cited any provision in the IB Handbook that would support the 

conclusion of the Court of Claims on this particular matter. Moreover, there is no evidence 

in this case to support a finding that it would be academically acceptable for one member 

of the advisory committee to determine whether a student passed a written examination 

administered by another member of the committee. Thus, the pronouncement of the Court 

of Claims on this issue is not defensible either under the IB Handbook or the evidence 

produced. 

{¶ 39} We recognize that even though Dr. Weeks admitted making certain agerelated comments to appellant, he denied that appellant's age played any role in his conduct 

as appellant's major advisor, and he denied improperly influencing Dr. Lavrentyev to 

change appellant's grade on the written examination. Dr. Weeks has maintained that he 

treated appellant fairly and that appellant's own conduct was the true reason appellant 

failed to make progress towards his Ph.D. The record does contain some support for Dr. 

Weeks' opinion, as there is evidence that appellant's behavior towards Dr. Weeks on 

learning that he had failed the written examination caused Dr. Weeks to withdraw from his 

position as appellant's major advisor and may have discouraged others from taking 
No. 19AP-283 18 

appellant on. Appellant's subsequent inability to obtain a new major advisor after his 

falling out with Dr. Weeks ultimately led to appellant's dismissal from the IB Ph.D. program 

less than three years after he entered. Similarly, Dr. Lavrentyev insisted his decision to 

change appellant's grade from pass to fail resulted from the exercise of his own professional 

judgment, and he was not convinced by Dr. Weeks to fail appellant. A trier of fact could 

certainly find Dr. Lavrentyev's testimony believable even though he exhibited a degree of 

equivocation. 

{¶ 40} " 'A court cannot weigh credibility when considering evidentiary material 

presented in favor of, or in opposition to, a summary judgment motion.' " Havely v. 

Franklin Cty., 10th Dist. No. 07AP-1077, 2008-Ohio-4889, ¶ 36, quoting Whiteside v. 

Conroy, 10th Dist. No. 05AP-123, 2005-Ohio-5098, ¶ 75, citing Killilea v. Sears, Roebuck 

& Co., 27 Ohio App.3d 163 (10th Dist.1985). "Thus, 'the credibility of an affiant [or 

deponent] is not generally considered when a court determines whether genuine issues of 

material fact exist * * * [and] a court should not choose among reasonable inferences or 

weigh the credibility of witnesses in deciding whether summary judgment is appropriate.' " 

Havely at ¶ 36, quoting Hassan v. Progressive Ins. Co., 142 Ohio App.3d 671, 676 (10th 

Dist.2001). Such functions are for the trier of fact, not for a judge ruling on a motion for 

summary judgment. Havely at ¶ 36, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

255 (1986). In the context of summary judgment and on this record, Dr. Weeks' and 

Dr. Lavrentyev's credibility is for the trier of fact to determine. Because there are factual 

issues whether Dr. Weeks and Dr. Lavrentyev substantially departed from accepted 

academic norms and did not exercise professional judgment in connection with appellant's 

written comprehensive examination, we hold the Court of Claims erred when it granted 

summary judgment in favor of appellee as to the breach of contract claim. 

2. Appellant's Request for A Grievance Hearing

{¶ 41} Appellant also contends appellee breached the contract by refusing to allow 

his grievance to be heard in accordance with the IB Handbook, Graduate Assistant 

Handbook, and Graduate Bulletin. The IB Handbook contains the following reference to 

the student grievance policy: 

I. PhD Candidacy 

A student will be considered a PhD candidate only after 

having passed the Doctoral Candidacy Examination and the 
No. 19AP-283 19 

Research Proposal Defense. * * * Potential student 

grievance(s) regarding his/her candidacy will be handled 

according to the specific grievance procedures outlined in the 

Graduate Student Bulletin.

(Emphasis added; bold sic.) (Def.'s Ex. E, attached to Mot. for Summ. Jgmt.) 

{¶ 42} The grievance procedures appear in an appendix to the Graduate Bulletin and 

are identified as University Rule 3359-24-02. Under the heading "purpose," the rule states: 

"The procedures set forth in this document are intended to provide graduate students with 

a formal channel of appeal and redress of grievances arising out of their academic and/or 

employment relationship with the University." (Pl.'s Ex. 1, attached to Memo. Contra in 

Opp.) The rule generally requires an initial effort on the part of the student to resolve the 

dispute with the faculty member, a recommendation by the dean of the graduate school to 

the senior vice president and provost as to the disposition of the complaint, a hearing before 

a student committee either on the request of the dean of the graduate school or the student, 

and an appeals process.1 University Rule 3359-24-02 does not specify the type of issues 

that fall within the scope of the rule. Nor does the rule state the pursuit of a grievance is 

the exclusive remedy provided to a student who complains of unfair treatment in the 

academic or employment setting. 

{¶ 43} On May 10, 2017, appellant's committee met and voted to dismiss appellant 

from the IB Ph.D. program. On May 31, 2017, appellant filed the following request for a 

grievance hearing with Dean Midha: 

Please accept this correspondence as the filing of my grievance 

over my expulsion from the Integrated Bioscience Program. 

More specifically, I have been subjected to a long series of 

unusual, biased, unfair and discriminatory treatment, 

including my treatment regarding the written test procedures, 

which I did not pass. 

Also, it is claimed that I was released from the program 

because I failed to take the written test, oral exam and 

proposal defense within a three year period. Nevertheless, 

other students in the program have failed to meet these 

criteria, and they were not expelled from the program. 

The attachments to this correspondence set forth in detail my 

claims of biased, unfair and discriminatory treatment as well 

 

1Additional provisions detail the composition of the hearing committee, hearing procedures, decisions and 

actions, recordkeeping, and appeal. 
No. 19AP-283 20 

as [appellee's] failure to follow its own procedures in 

dismissing me from the PhD program.2

(Pl.'s Ex. 21, attached to Memo. Contra in Opp.) 

{¶ 44} On June 1, 2017, a series of email correspondence regarding appellant's 

grievance were exchanged between Dean Midha, Dr. Weeks, and Rex D. Ramsier, Senior 

Vice President and Provost, University of Akron. In the last of this correspondence, Provost 

Ramsier expressed his opinion regarding appellee's grievance procedures: "In my opinion 

failure to make progress toward degree should be handled like a grade appeal and not be 

subject to grievance. The latter is an archaic process with a hearing committee composed 

of students and faculty. I would rescind the rule if I had the authority." (Pl.'s Ex. 22, 

attached to Memo. Contra in Opp.) 

{¶ 45} Following this correspondence, Stasitis determined the proper forum to 

resolve appellant's complaint was appellee's EEO/AA. Appellant did not receive a grievance 

hearing or the "grade appeal" referenced by Provost Ramsier. (Pl.'s Ex. 22, attached to 

 

2 An attachment to appellant's grievance reads as follows: 

This is an attachment to my grievance regarding my expulsion from the 

Integrated Bioscience Program. 

Dr. Weeks violated the rules regarding the written test and PH D 

proposal defense in the Integrated Bioscience Graduate (IBG) 

Student Handbook. 

Dr. Weeks, Dr. Barton and company purported to apply the IBG Student 

Handbook to my expulsion. However, this was not the case: 

First, Dr. Weeks specifically excluded my Ph.D. proposal from being on 

the written test, because sometime in January or early February of 2016, 

he told me to put my initial, unfinished Ph.D. proposal off to the side and 

concentrate on the readings for the test. We never had one meeting about 

my Ph.D. proposal in the entire year of 2016. And most importantly, my 

Ph.D. proposal is not on the list of things to study for the written test—it 

was thereby excluded from the written test. 

During the course of the Spring 2016, Dr. Weeks stated that I would be 

tested on the Ph.D. proposal at my Ph.D. proposal defense. The written 

exam and Ph.D. proposal defense are two different tests, as is made clear 

in the IBG Student Handbook (page 7). But he then turned around and 

tested me on my Ph.D. proposal in his written exam, as every single one of 

his questions dealt with my initial, unfinished Ph.D. proposal. 

Thus, he violated the rules by misleading me--he conflated the written 

exam with the Ph.D. proposal defense, thus violating the rules in the IBG 

Student Handbook. 

(Emphasis sic.) (Pl.'s Ex. 21, attached to Memo. Contra in Opp.) 
No. 19AP-283 21 

Memo. Contra in Opp.) In granting summary judgment to appellee, the Court of Claims 

found as follows: "[W]ith regard to [appellant's] allegation that he was entitled to a 

grievance hearing, the only reasonable conclusion is that [appellee] exercised professional 

judgment when it directed [appellant] to the EEO office of the university to hear his 

complaints, when he specifically complained of unfair and discriminatory treatment." 

(Decision at 14.) We disagree with the conclusion reached by the Court of Claims. In our 

view, a reasonable reading of appellant's grievance request and the attachment thereto does 

not require the conclusion that a claim of unlawful discrimination, specifically age 

discrimination, is appellant's only complaint. The request does not mention appellant's age 

and does not reference any of the age-related comments made to appellant by Dr. Weeks 

and Dr. Mitchell. The attachment to appellant's grievance complains of purely academic 

decisions made by Dr. Weeks. 

{¶ 46} Moreover, the IB Handbook provides "[p]otential student grievance(s) 

regarding his/her candidacy will be handled according to the specific grievance procedures 

outlined in the Graduate Student Bulletin." (Def.'s Ex. E, Section I, attached to Mot. for 

Summ. Jgmt.) Given the academic aspects of appellant's complaints and the mandatory 

language used in the IB Handbook, it is certainly reasonable to conclude that appellee's 

refusal to submit appellant's complaint to the grievance process was a substantial departure 

from accepted academic norms. Furthermore, in light of Provost Ramsier's expressed 

antagonism towards the grievance procedure, it is certainly reasonable to conclude that the 

decision to circumvent the grievance process was not the result of an exercise of 

professional judgment. Accordingly, we hold that the Court of Claims erred when it 

determined, as a matter of law, that appellee did not breach the contract by failing or 

refusing to follow the contractual grievance procedure. 

{¶ 47} Based on the foregoing, we hold that there are genuine issues of material fact 

as to appellant's breach of contract claim and that the Court of Claims erred when it granted 

summary judgment to appellee on that claim. Appellant's first assignment of error is 

sustained. 

 B. Second Assignment of Error

{¶ 48} While our analysis of appellant's breach of contract claim in the first 

assignment of error under the Bleicher standard necessarily focused on the academic 
No. 19AP-283 22 

aspects of the contract between the parties, our analysis of appellant's age discrimination 

and retaliation claims must focus on the terms and conditions of appellant's employment 

with appellee as a TA. Employment discrimination and retaliation claims under R.C. 

4112.02(A) and (I) are generally to be interpreted in accordance with interpretations of 

federal antidiscrimination laws including Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

2000e-2 and the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. Soliday v. 

Fluor Fernald, Inc., S.D.Ohio No. 1:04-CV-350 (Jan. 18, 2006), citing Plumbers & 

Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm., 66 Ohio St.2d 192, 

196 (1981). See also Rufo v. Dave & Busters, Inc., S.D. Ohio No. 1:04-CV-698 (Dec. 16, 

2005), aff'd by 6th Cir. No. 06-3111 (Jan. 31, 2007). 

{¶ 49} In appellant's second assignment of error, appellant contends the trial court 

erred when it granted summary judgment in favor of appellee on appellant's claim of age 

discrimination. We disagree. 

{¶ 50} R.C. 4112.02(A) prohibits "any employer, because of the * * * age * * * 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." (Emphasis 

added.) "To prevail in an employment discrimination case, a plaintiff must prove 

discriminatory intent" and may establish such 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). Absent direct 

evidence of age discrimination, a plaintiff may indirectly establish discriminatory intent 

using the analysis promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 

as adopted by the Supreme Court of Ohio in Barker v. Scovill, Inc., 6 Ohio St.3d 146 (1983), 

and modified in Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723.3

 

3 Under the federal regulatory scheme, the substantive provisions prohibiting age discrimination and 

retaliation in the terms and conditions of employment are found in the Age Discrimination in Employment 

Act, 29 U.S.C. 621 et seq. Section 623 provides in relevant part as follows: 

Prohibition of age discrimination 

(a) Employer practices. It shall be unlawful for an employer— 

(1) to fail or refuse to hire or to discharge any individual or otherwise 

discriminate against any individual with respect to his compensation, 
No. 19AP-283 23 

1. Direct Evidence

{¶ 51} "Direct evidence is evidence that, if believed, requires the conclusion that 

unlawful discrimination was at least a motivating factor in the employer's actions." Ceglia 

v. Youngstown State Univ., 10th Dist. No. 14AP-864, 2015-Ohio-2125, ¶ 16, citing Conley 

v. U.S. Bank Natl. Assn., 211 Fed.Appx. 402, 405 (6th Cir.2006), citing Wexler v. White's 

Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003). "If that evidence is credible, 

'discriminatory animus may be at least part of an employer's motive, and in the absence of 

an alternative, non-discriminatory explanation for that evidence, there exists a genuine 

issue of material fact suitable for submission to the jury without further analysis by the 

court.' " Ceglia at ¶ 16, quoting Norbuta v. Loctite Corp., 1 Fed.Appx. 305, 312 (6th 

Cir.2001). "If a plaintiff can produce direct evidence of a discriminatory animus, ' "the 

burden [of production and persuasion] shifts to the employer to prove by a preponderance 

of the evidence that it would have made the same decision absent the impermissible 

motive." ' " Ceglia at ¶ 16, quoting Skelton v. Sara Lee Corp., 249 Fed.Appx. 450, 454 (6th 

Cir.2007), quoting Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir.2005). 

{¶ 52} In Tessmer v. Nationwide Life Ins. Co., 10th Dist. No. 98AP-1278 (Sept. 30, 

1999), this court stated "[d]iscriminatory comments directed at or relating to the plaintiff 

[that] have not been found to be vague, ambiguous or isolated * * * have been found to be 

sufficient, direct evidence in a discrimination case." Id. In determining whether the 

employer's statements constitute direct evidence of age discrimination, the trial court must 

consider the following four factors: 

(1) whether the statements were made by a decision-maker or 

by an agent within the scope of his employment; (2) whether 

the statements were related to the decision-making process; 

(3) whether the statements were more than merely vague, 

ambiguous or isolated remarks; and (4) whether they were 

made proximate in time to the act of termination. 

 terms, conditions, or privileges of employment, because of such 

individual's age; 

(2) to limit, segregate, or classify his employees in any way which would 

deprive or tend to deprive any individual of employment opportunities or 

otherwise adversely affect his status as an employee, because of such 

individual's age; or 

(3) to reduce the wage rate of any employee in order to comply with this 

Act. 
No. 19AP-283 24 

Ceglia at ¶ 17, citing Krupnick v. ARCADIS of U.S., Inc., S.D.Ohio No. 2:12-CV-273 

(Mar. 13, 2014), citing Skelton at 455, citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 477-

78 (6th Cir.2002) (internal citation omitted). 

{¶ 53} In concluding the age-related comments made by Dr. Weeks and Dr. Mitchell 

in 2014 and 2015 did not constitute direct evidence of age discrimination, the Court of 

Claims found as follows: 

Upon review of the above-mentioned comments, the only 

reasonable conclusion is that any comments made in 2014 and 

2015 are not proximate in time to the act of termination, i.e., 

dismissal from the IB program. Therefore, the first five 

comments are not direct evidence of age discrimination. * * * 

Thus, none of the comments [appellant] alleges can be 

considered direct evidence of age discrimination. 

(Decision at 17.) 

{¶ 54} The Court of Claims acknowledged the statements reportedly made by 

Dr. Weeks in 2014 and 2015 and Dr. Mitchell in 2015 would constitute direct evidence of 

age discrimination had the comments been made to appellant more proximate in time to 

appellant's dismissal from the IB Ph.D. program on May 10, 2017. However, in granting 

summary judgment to appellee on the age discrimination claim, the Court of Claims did not 

consider whether Dr. Lavrentyev's decision to change appellant's grade on the written 

examination would qualify as an adverse employment action for purposes of an age 

discrimination claim.4 The evidence is that appellant was given a failing grade on the 

comprehensive written examination in July 2016, ten months prior to his dismissal from 

the IB Ph.D. program. The IB Handbook makes clear that passing the written examination 

is a required first step in appellant's effort to successfully complete the IB Ph.D. program 

and that a failure to pass the written examination after two attempts would result in 

appellant's dismissal from the program and the loss of his TA position. Because the 

evidence permits the conclusion that age discrimination was a factor motivating the change 

of appellant's grade on the written examination and because appellant's failing grade on the 

 

4 "The Sixth Circuit defines an adverse employment action as a ' "materially adverse change in the terms and 

conditions of [plaintiff's] employment because of [the] employer's conduct." ' " Allen v. Ohio Dept. of Job & 

Family Servs., 697 F.Supp.2d 854, 884 (S.D.Ohio 2010), quoting Smith, 378 F.3d at 575, quoting Hollins v. 

Atlantic Co., 188 F.3d 652, 662 (6th Cir.1999). " '[A] materially adverse change in the terms and conditions 

of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities.' " 

(Internal quotation omitted.) Allen at 884-85, quoting Hollins at 662. 
No. 19AP-283 25 

written examination resulted, at least indirectly, in appellant's dismissal as a TA, such 

conduct arguably constitutes an adverse employment action that could support a prima 

facie case for discrimination. Smith v. Salem, 378 F.3d 566, 575-76 (6th Cir.2004) 

("Examples of adverse employment actions include firing, failure to promote, reassignment 

with significantly different responsibilities, a material loss of benefits, suspensions, and 

other indicies unique to a particular situation."). Whether the age-related statements made 

by Dr. Weeks and Dr. Mitchell in 2014 and 2015 were sufficiently proximate to the conduct 

that led to the change to appellant's grade on the written examination in July 2016 was not 

a question considered by the Court of Claims. 

{¶ 55} Nevertheless, even if this court were to decide that appellant produced direct 

evidence of age discrimination, appellee has argued, alternatively, that the alleged 

discriminatory comments made by Dr. Weeks and Dr. Mitchell are not actionable under 

R.C. 4112.02(A) because they relate exclusively to appellant's academic progress and did 

not relate to his employment as a TA. This argument was raised by appellee in the Court of 

Claims but was not expressly relied on by the Court of Claims in granting summary 

judgment to appellee. In support of this argument, appellee relies on several federal court 

decisions arising under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000e-2.5

{¶ 56} The federal court decisions on which appellee relies hold that if a graduate 

student holding a position as a paid TA at a university can be considered an "employee" for 

purposes of Title VII claims, such an employee does not have standing to invoke the 

protections of Title VII when the allegations of discrimination relate solely to the 

employee's studies or progress toward a degree. The decision of the district court in 

Bucklen v. Rensselaer Polytechnic Inst., 166 F.Supp.2d 721 (N.D.N.Y.2001), is typical of 

these cases. In Bucklen, the issue for the district court was whether a graduate student who 

also worked as a TA had standing to assert a Title VII retaliation claim. The plaintiff argued 

the school discriminated against him on the basis of sex and national origin by failing to 

grant his requests to modify the format of the preliminary oral examination required for 

 

5 42 U.S.C. 2000e-2, entitled "Employer practices," contains the same operative language as R.C. 4112.02(A) 

and provides in relevant part: "It 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." 
No. 19AP-283 26 

obtaining his doctoral degree and assigning him a failing grade on three separate occasions. 

Id. at 723. The plaintiff further alleged the failing grades caused him to be dismissed from 

the doctorate program which resulted in the loss of his job as a TA. Id. The district court 

decided even if the plaintiff had standing as an "employee" to file a Title VII action, the 

court could not "extend the parameters of Title VII to encompass purely academic 

decisions, such as the testing and qualification of doctoral students, that have only a 

tangential effect on one's status as an employee." Id. at 725. 

{¶ 57} Other federal courts that have taken up the issue have reached similar 

conclusions. See, e.g., Stewart v. Morgan State Univ., 46 F.Supp.3d 590, 596 

(D.Md.2014), aff'd by 606 Fed.Appx. 48 (4th Cir.2015) ("Plaintiff's argument that he 

received two 'Cs' from Dr. Welsh based on racial discrimination is unavailing considering 

that the grades he received in those two classes concerned his role as a student, not as an 

employee in the internship." (Emp. sic.)); Stilley v. Univ. of Pittsburgh, 968 F.Supp. 252, 

261 (W.D.Pa.1996) (granting summary judgment as to plaintiff's discrimination claims 

against the university because "[a]ll issues pertaining to the completion of plaintiff's 

dissertation relate to plaintiff's role as a student and not as an employee. Accordingly [those 

issues] are not proper for a Title VII claim * * *."); Seaton v. Univ. of Pennsylvania, E.D.Pa. 

No. 01-2037 (Nov. 30, 2001) (dismissal of Title VII claim appropriate where "[t]he 

complaint does not suggest that Seaton was retaliated against as an employee; indeed, it 

emphasizes that the recipient of the [retaliatory] letter is Seaton's academic advisor" 

(Emphasis omitted.)); Bakhtiari v. Lutz, 507 F.3d 1132, 1137 (8th Cir.2007) (summary 

judgment for university appropriate as to plaintiff's Title VII retaliation claim where the 

alleged discriminatory activities "pertain to Bakhtiari's status as a student * * * and not as 

a TA employed by UMR"); Al-Maqablh v. Univ. of Cincinnati College of Medicine, S.D.Ohio 

No. 1:11-cv-531 (Nov. 5, 2013 magistrate's recommendation)6 (citing Bakhtiari, Seaton, 

Bucklen, and Stilley with approval and recommending summary judgment for the 

university as to plaintiff's Title VII race or national origin discrimination claims because 

"the undisputed evidence establishes that the University's decision to dismiss Plaintiff from 

the Graduate Program was an academic decision unrelated to Plaintiff's alleged 

employment with the University [as TA]"). 

 

6 Adopted by Al-Maqablh v. Univ. of Cincinnati College of Medicine, S.D.Ohio No. 1:11-cv-531 (May 19, 2014). 
No. 19AP-283 27 

{¶ 58} The parties have not directed the court to any Ohio case law taking up this 

particular issue in the context of an R.C. 4112.02(A) discrimination claim, and this court 

has not uncovered any. Nevertheless, R.C. 4112.02(A) prohibits the same conduct 

prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, and the Age 

Discrimination in Employment Act, 29 U.S.C. 621 et seq. Consequently, R.C. 4112.02(A) is 

generally construed in identical fashion to Title VII. Soliday, S.D.Ohio No. 1:04-CV-350, 

citing Plumbers & Steamfitters, 66 Ohio St.2d at 196. See also Kimble v. Intermetro 

Industries, 288 F.Supp.2d 876, 879 (N.D.Ohio 2003), citing Plumbers & Steamfitters at 

196; Blankenship v. BMI Refractories, 966 F.Supp. 555, 557 (S.D.Ohio 1997), citing 

Plumbers & Steamfitters at 196. Accordingly, "evidence sufficient to support a finding of 

discrimination under Title VII of the Civil Rights Act of 1964 is necessary before a violation 

of § 4112.02(A) can be found." Kimble at 879, citing Plumbers & Steamfitters at 196. 

{¶ 59} In response to appellee's alternative argument, appellant relies on several 

federal court decisions including Stewart; Cuddeback v. Florida Bd. of Edn., 381 F.3d 1230 

(11th Cir.2004); and Ruiz v. Trustees of Purdue Univ., N.D.Ind. No. 4:06-CV-130-JVB-PRC 

(Feb. 20, 2008 magistrate’s recommendation).7 However, we find these decisions do not 

support appellant's position. 

{¶ 60} Cuddeback merely holds that a graduate student who also holds a position 

with the university as a paid TA may be considered an employee for purposes of Title VII. 

Cuddeback does not address the question whether a student/employee has standing to 

pursue a Title VII discrimination or retaliation claim where the allegations of 

discrimination relate solely to the student/employee's academic pursuits and do not relate 

to the student/employee's status as an employee. 

{¶ 61} Similarly, in Ruiz, a doctoral candidate alleged that she was given poor grades 

and dismissed from the Ph.D. program due to discrimination. Because Ruiz's paid graduate 

assistant position was contingent on satisfactory academic progress, her dismissal from the 

Ph.D. program resulted in the loss of her position. In recommending summary judgment 

for the university, the magistrate noted that Ruiz's "discrimination claim is somewhat 

removed from her work" but noted that the university did not argue that failing grades did 

 

7 Adopted by and summary judgment granted in Ruiz v. Trustees of Purdue Univ., N.D.Ind. No. 4:06-CV-130-

JVB (Mar. 26, 2008). 
No. 19AP-283 28 

not qualify as an "adverse employment action" under Title VII. Id. at fn. 4. Though the 

magistrate did find that Ruiz's work for Purdue qualified Ruiz as an "employee" for 

purposes of Title VII, the court cited the Bucklen case for the proposition that a 

student/employee may not have standing to file a Title VII action when the allegations of 

discrimination relate exclusively to academic decisions, " 'such as the testing and 

qualification of doctoral students, that have only a tangential effect on one's status as an 

employee.' " Ruiz at fn. 4, quoting Bucklen, 166 F.Supp.3d at 725. Ruiz does not support 

appellant's position. 

{¶ 62} Finally, as noted above, the Stewart decision supports appellee's argument 

that a student/employee's discrimination claims are not actionable under Title VII where 

the alleged discriminatory conduct of the university relates exclusively to the 

student/employee's academic status. Accordingly, we find appellant's opposition to 

appellee's alternative argument unconvincing.8

{¶ 63} Title VII of the Civil Rights Act of 1964, in general, and 42 U.S.C. 2000e-2, in 

particular, prohibit an employer from discriminating against an employee with respect to 

the terms, conditions, and privileges of employment on the basis of sex, age, and race.9 See

also Meritor Savs. Bank v. Vinson, 477 U.S. 57, 63 (1986); Blankenship at 557; Kimble at 

879. R.C. 4112.02(A) prohibits the same conduct in the context of the employment 

relationship as a matter of state law and is generally construed in identical fashion to Title 

VII. Kimble at 879, citing Plumbers & Steamfitters, 66 Ohio St.2d at 196; Blankenship at 

557, citing Plumbers & Steamfitters at 196. Accordingly, "evidence sufficient to support a 

finding of discrimination under Title VII of the Civil Rights Act of 1964 is necessary before 

a violation of § 4112.02(A) can be found." Kimble at 879, citing Plumbers & Steamfitters at 

196. See also Patrick v. Ferguson Ents., S.D.Ohio No. 1:10-CV-00045 (Feb. 3, 2011) (age 

discrimination case). 

{¶ 64} The allegations of age discrimination appellant leveled against appellee both 

in the complaint and as discussed herein, relate exclusively to appellant's studies and 

progress toward a Ph.D. Under the federal case law interpreting Title VII employment 

 

8 In affirming the district court, the Fourth Circuit in Stewart v. Morgan State Univ., 606 Fed.Appx. 48 (4th 

Cir.2015), did not expressly adopt the district court's ruling on standing. 

9 As previously noted, the substantive federal legislation preventing age discrimination is found in the Age 

Discrimination in Employment Act, 29 U.S.C. 621 et seq. 
No. 19AP-283 29 

discrimination claims, where the allegations of discrimination made by a paid TA relate 

exclusively to his or her status as a student and do not relate to the conditions of 

employment as a TA, the adverse employment decision is not actionable under federal 

antidiscrimination legislation, as a matter of law. Bakhtiari; Seaton; Bucklen; Stilley; AlMaqablh. In such circumstances, the TA does not have standing to invoke the protections 

of Title VII. Bakhtiari; Seaton; Bucklen; Stilley; Al-Maqablh. Because Ohio courts 

generally follow federal precedent established under 42 U.S.C. 2000e-2 and in analyzing 

discrimination claims brought pursuant to R.C. 4112.02(A) and because the operative 

language of R.C. 4112.02(A) mirrors that of 42 U.S.C. 2000e-2, we hold that appellant's 

allegations of age discrimination are not actionable under R.C. 4112.02(A), as a matter of 

law. 

{¶ 65} For the foregoing reasons, we hold the Court of Claims did not err when it 

granted summary judgment to appellee on appellant's discrimination claim, albeit for 

different reasons than the Court of Claims. See Grenga v. Youngstown State Univ., 10th 

Dist. No. 11AP-165, 2011-Ohio-5621, ¶ 26 ("We review a summary judgment de novo and 

must affirm the trial court's judgment if any grounds the movant raised in the trial court 

support it."), citing Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th 

Dist.1994), citing Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th 

Dist.1993); Ecker, 101 Ohio App.3d at 41-42. See also Brogan v. Family Video Movie Club, 

Inc., 6th Dist. No. L-13-1283, 2015-Ohio-70, ¶ 37 (in our de novo review of summary 

judgment matters, we may still inquire whether the judgment dismissing appellant's 

discrimination claim may be affirmed on alternative grounds); Howell v. Whitehurst Co., 

6th Dist. No. L-05-1154, 2005-Ohio-6136, ¶ 20-21 ("W[e] conclude that, presuming 

appellant can establish a prima facie case, we can alternatively affirm summary judgment 

on grounds that appellant cannot rebut appellee's legitimate justifications for her 

termination by showing pretext."). Appellant's second assignment of error is overruled. 

 C. Appellant's Third Assignment of Error 

{¶ 66} In appellant's third assignment of error, appellant argues the trial court erred 

when it granted summary judgment in appellee's favor on his retaliation claim. We 

disagree. 
No. 19AP-283 30 

{¶ 67} R.C. 4112.02(I) makes it unlawful "[f]or any person to discriminate in any 

manner against any other person because that person has opposed any unlawful 

discriminatory practice defined in this section or because that person has made a charge, 

testified, assisted, or participated in any manner in any investigation, proceeding, or 

hearing under sections 4112.01 to 4112.07 of the Revised Code." "The language of R.C. 

4112.02(I) is virtually identical to 42 U.S.C. 2000e-3(a). Due to the similarities in Title VII 

and R.C. Chapter 4112, Ohio courts look to federal case law addressing Title VII for 

assistance in interpreting R.C. Chapter 4112." Smith v. Dept. of Pub. Safety, 10th Dist. No. 

12AP-1073, 2013-Ohio-4210, ¶ 60. 

{¶ 68} "The antidiscrimination provision [42 U.S.C. 2000e-2(a)] seeks a workplace 

where individuals are not discriminated against because of their racial, ethnic, religious, or 

gender-based status * * *. The antiretaliation provision [42 U.S.C. 2000e-3(a)] seeks to 

secure that primary objective by preventing an employer from interfering (through 

retaliation) with an employee's efforts to secure or advance enforcement of [Title VII of the 

Civil Rights Act of 1964's] basic guarantees." Burlington N. & S. F. R. Co. v. White, 548 

U.S. 53, 63 (2006). "The substantive provision seeks to prevent injury to individuals based 

on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to 

individuals based on what they do, i.e., their conduct." Id.

{¶ 69} "An employee's activity is 'protected' for purposes of R.C. 4112.02(I) if the 

employee has 'opposed any unlawful discriminatory practice' (the 'opposition clause') or 

'made a charge, testified, assisted, or participated in any manner in any investigation, 

proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code' (the 

'participation clause')." Veal v. Upreach, LLC, 10th Dist. No. 11AP-192, 2011-Ohio-5406, 

¶ 18, citing HLS Bonding v. Ohio Civ. Rights Comm., 10th Dist. No. 07AP-1071, 2008-Ohio4107, ¶ 15; Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 719-20 (6th Cir.2008). 

{¶ 70} Appellant contends that Dr. Weeks and Dr. Barton dismissed him from the 

IB program in retaliation for his decision to hire legal counsel and complain to appellee 

about age discrimination. The trial court set forth the following reasoning in granting 

summary judgment to appellee on appellant's retaliation claim: 

[Appellant] alleges that the letters that his attorney sent to 

university officials in an effort to obtain a new advisor and to 

generally complain of [appellant's] treatment in the program 
No. 19AP-283 31 

constitute a protected activity. However, it is undisputed that 

any participation that [appellant] engaged in, specifically, 

filing an EEO action, occurred after he was dismissed from the 

program. Therefore, any retaliation claim on that basis fails 

as a matter of law. Lastly, any opposition activity, i.e., letters 

from [appellant's] attorney, fall into the category of "a vague 

charge of discrimination in an internal letter or 

memorandum" and thus, are insufficient to constitute 

opposition to an unlawful employment practice. See Booker, 

supra. Accordingly, construing the evidence most strongly in 

[appellant's] favor, the only reasonable conclusion is that 

[appellant] has failed to state a prima facie case of retaliation. 

(Decision at 20.) 

{¶ 71} We agree with the conclusion of the Court of Claims that appellant failed to 

produce evidence to support a retaliation claim based on the participation clause because 

there is no dispute that appellant did not make his request for a hearing until after appellee 

dismissed him from the IB program. It is more difficult, however, to reconcile the 

conclusion of the Court of Claims regarding the opposition clause with the evidence 

produced by appellant. 

{¶ 72} Appellant's opposition clause claim is predicated on two letters sent to 

appellee by appellant's attorney, Daniel D. Domozick. The first letter, dated April 14, 2017 

and addressed to Assistant Dean Charles Beneke, contains a lengthy recitation of 

appellant's complaints about Dr. Weeks' conduct as his major advisor. The letter also 

contains a complaint about Dr. Barton's failure to help appellant find a new academic 

advisor even though Assistant Dean Beneke had informed appellant that "it was his 

understanding" she would do so. (Pl.'s Ex. 17 at 9, attached to Memo. Contra in Opp.) The 

April 14, 2017 letter closes with the following: 

Thus, my investigation to date demonstrates that [appellant] 

is an outstanding Ph. D. candidate. However, [appellant] was 

treated much differently than other graduate students and 

was repeatedly threatened with expulsion, causing [appellant] 

an enormous financial and emotional injury. At a minimum, 

Dr. Weeks is responsible for his wrongful conduct of 

discrimination and retaliation directed at [appellant]

because of his age. My investigation also uncovered a 

number of age related comments directed at appellant] by 

Dr. Weeks, including Dr. Weeks asking [appellant] his age, 

making comments that [appellant] was "older" than the 

typical graduate student and that [appellant] "looked 
No. 19AP-283 32 

surprisingly good for his age." Consistent with these age 

related comments, at every step Dr. Weeks' intentional and 

deliberate wrongful acts and omissions directed at 

[appellant] were done to harm [appellant]. There is no other 

rational explanation for Dr. Weeks' conduct.10

(Emphasis added.) (Pl.'s Ex. 17 at 10, attached to Memo. Contra in Opp.)11

{¶ 73} The Court of Claims' characterization of the April 14, 2017 letter as "a vague 

charge of discrimination in an internal letter or memorandum" is difficult to square with 

the plain language used by appellant's legal counsel. (Decision at 20.) In our view, the 

complaints about age discrimination levied against appellee in counsel's April 14, 2017 

letter may be reasonably construed as a clear expression of opposition to discriminatory 

academic practices based on appellant's age. Nevertheless, even though we disagree with 

the conclusion of the Court of Claims that the April 14, 2017 letter is merely "a vague charge 

of discrimination in an internal letter or memorandum," we nevertheless agree that the two 

letters from appellant's legal counsel "are insufficient to constitute opposition to an 

unlawful employment practice." (Decision at 20.) 

{¶ 74} As set forth earlier in our discussion of appellant's second assignment of 

error, appellee has convincingly argued that the age discrimination claim fails as a matter 

of law because the alleged discrimination related exclusively to appellant's academic 

progress in the IB Ph.D. program and was not related to his employment as a TA. 

Bakhtiari; Seaton; Bucklen; Stilley; Al-Maqablh. As also set forth in our discussion of 

appellant's second assignment of error, there are a number of federal court decisions 

holding that a student/employee cannot maintain a Title VII retaliation claim where the 

claim of protected conduct on the part of the student/employee relates exclusively to 

discriminatory practices in the academic setting, such as the testing and qualification of 

doctoral students, that have only a tangential effect on one's status as an employee. Seaton; 

Bucklen. 

 

10 As of the date attorney Domozick drafted the letter, neither appellant nor his legal counsel were aware that 

Dr. Lavrentyev had changed appellant's grade on the written comprehensive exam from an "overall pass" to 

"fail." 

11 In a May 1, 2017 letter to Stasitis, appellant's counsel complained about Dr. Barton's lack of follow through 

on finding appellant a new major advisor and disputed Stasitis's claim that Dr. Weeks remained appellant's 

major advisor. The letter does not mention age discrimination. 
No. 19AP-283 33 

{¶ 75} Here, even if we were to conclude that a factual issue exists whether the two 

letters from appellant's attorney constitute clear opposition to discriminatory age-related 

practices, none of the alleged discriminatory practices about which appellant complains 

relate to the conditions of his employment as a TA. Because there is no question that the 

discriminatory academic practices opposed by appellant are not related to the conditions 

of appellant's employment as a TA, appellant's conduct in opposition to those practices is 

not a protected activity under R.C. 4112.02(I), as a matter of law. Seaton; Bucklen. See also

Bakhtiari; Stilley; Al-Maqablh. 

{¶ 76} For the foregoing reasons, we hold the Court of Claims did not err when it 

granted summary judgment to appellee on appellant's retaliation claim, albeit for a 

different reason than expressed by the Court of Claims. Appellant's third assignment of 

error is overruled. 

V. CONCLUSION 

{¶ 77} Having overruled appellant's second and third assignments of error but 

having sustained appellant's first assignment of error, we affirm in part and reverse in part 

the judgment of the Court of Claims of Ohio and remand this matter for further proceedings 

consistent with this decision. 

Judgment affirmed in part and reversed in part; 

cause remanded.

BROWN, J., concurs. 

LUPER SCHUSTER, J., concurs in part and dissents in part. 

LUPER SCHUSTER, J., concurring in part and dissenting in part. 

{¶ 78} I agree with the majority's resolution of the portion of appellant's first 

assignment of error finding that there remains a question of material fact as to whether 

appellee failed to or refused to follow the contractual grievance procedure, and I join in that 

portion of the majority's decision. However, because I would not sustain the portion of 

appellant's first assignment of error related to appellant's failing grade on the written exam, 

and because I would overrule appellant's second and third assignments of error on more 

limited grounds than the majority, I respectfully concur in part and dissent in part. 

{¶ 79} As the majority notes, in a breach of contract case, the plaintiff bears the 

burden of presenting evidence establishing the existence of a contract. McDade v. 

Cleveland Univ., 10th Dist. No. 14AP-275, 2014-Ohio-4026, ¶ 15. Though appellant relies 
No. 19AP-283 34 

on the IB Handbook, Graduate Assistant Handbook, and Graduate Bulletin as creating a 

contract between appellant and appellee, it is also appellant's burden to demonstrate 

specific language in those materials that create binding contractual provisions. In 

considering whether there remains a genuine issue of material fact on appellant's claim for 

breach of contract related to his failing exam grade, the majority relies on Bleicher for the 

standard a court must apply in reviewing college academic decisions. Though I agree that 

Bleicher sets forth the proper standard, I do not agree with the majority that appellant 

adequately established the existence of specific contract language to trigger the Bleicher

analysis. 

{¶ 80} Here, the majority characterizes the language appellant relies upon as 

creating a contract related to his failing grade as "aspirational in nature," yet nonetheless 

concludes this language is sufficient to support an actionable claim for breach of contract. 

I disagree. 

{¶ 81} Appellant points to language in the student materials providing that students 

will not be subjected to discrimination or be treated unfairly. However, "[i]ndefinite and 

aspirational language does not constitute an enforceable promise under Ohio law." Ullmo 

ex rel. Ullmo v. Gilmour Academy, 273 F.3d 671, 676-77 (6th Cir.2001) (holding "a breach 

of contract claim will not arise from the failure to fulfill a statement of goals or ideals"), 

citing Rulli v. Fan Co., 79 Ohio St.3d 374, 376 (1997). I would conclude these terms in the 

student materials are aspirational in nature and not specific enough to create enforceable 

terms of a contract. See Knelman v. Middlebury College, 898 F. Supp.2d 697, 709 (holding 

"[l]anguage in a college handbook or other official statement that is merely aspirational in 

nature, or that articulates a general statement of a school's 'ideals,' 'goals,' or 'mission,' is 

not enforceable"), citing Ullmo at 676-77. See also Clayton v. Cleveland Clinic Found., 8th 

Dist. No. 101854, 2015-Ohio-1547, ¶ 11 (finding anti-discrimination and anti-harassment 

provisions in an employee handbook do not create any contractual obligation or rights); 

Pierce v. Bishop, 4th Dist. No. 10CA6, 2011-Ohio-371, ¶ 13, 22 (noting that the existence of 

a duty for purposes of a negligence action can be found in the express or implied terms of a 

contract, but that "general and aspirational" policies regarding general concern for the 

safety of a company's employees and the public are not sufficient to create contractual 

language establishing a duty); Sagonowski v. The Andersons, Inc., 6th Dist. No. L-03-1168, 
No. 19AP-283 35 

2005-Ohio-326, ¶ 51-55 (holding that an "Employee Bill of Rights" did not create specific 

contractual terms but rather reflected "qualified aspirational statements" that were 

insufficient to create a question of material fact regarding the existence of a contract in an 

at-will employment setting); Olive v. Columbia/HCA Healthcare Corp., 8th Dist. No. 

75249, 2000 Ohio App. LEXIS 914 (Mar. 9, 2000) (concluding a hospital's "aspirational 

statement of policy that it would take corrective action in a uniform, consistent, and nondiscriminatory manner" was not sufficient to create a binding contract). 

{¶ 82} Because I would conclude that appellant did not identify any portion of the 

student materials creating enforceable contract provisions related to his allegation that 

appellee breached a contract not to discriminate, I would not proceed to engage in the 

Bleicher analysis. Instead, I would overrule the portion of appellant's first assignment of 

error related to his failing exam grade because he did not present evidence demonstrating 

the existence of an enforceable contract provision related to discrimination. However, 

because appellant does point to specific, enforceable contractual language related to the 

grievance procedure, I concur with the majority's decision sustaining that portion of the 

first assignment of error. 

{¶ 83} As to appellant's second and third assignments of error, I agree with the 

majority that both appellant's discrimination and retaliation claims fail because appellant's 

allegations relate exclusively to his academic studies and progress toward his degree and 

do not relate to the conditions of his employment. As such, I find it unnecessary to analyze, 

as the majority does, whether appellant set forth sufficient facts to overcome summary 

judgment on his discrimination and retaliation claims because his claims are legally 

insufficient. Thus, I would accordingly limit the analysis on the second and third 

assignments of error to appellant's failure to allege discriminatory conduct related to his 

employment, and I would overrule those two assignments of error on that basis. 

{¶ 84}Based on these reasons, I respectfully concur in part and dissent in part. 

_______________