Court: District Court, S.D. Ohio; August 12, 2016; Federal District Court
Jonathan Waters filed an employment discrimination lawsuit against The Ohio State University under Title IX, claiming he was terminated from his role as Director of the Marching and Athletic Band due to his gender. The university moved for summary judgment, asserting that Waters was dismissed for legitimate, non-discriminatory reasons. Waters countered that evidence of discrimination could be inferred from the favorable treatment of a similarly situated female coach and alleged flaws in the investigation leading to his termination. He also requested additional discovery under Rule 56(d). The court denied Waters's request for further discovery and granted Ohio State's motion for summary judgment.
Waters had a long history with the Marching Band, starting as a student member from 1995 to 1999, later serving as graduate assistant, assistant director, and ultimately as the full-time director from February 2013. His role included various responsibilities such as overseeing performances, staff management, budgeting, and recruitment.
In May 2014, Ohio State's Office of University Compliance and Integrity received two related Title IX complaints against Waters. The first complaint was from a female student who alleged retaliation after reporting a rape by another band member. The second complaint, from the student's parent, raised concerns about a culture of objectionable and sexualized practices within the band. Following these complaints, an investigation was initiated, as mandated by federal law and university policy, with a required completion period of 60 days.
Investigations led by Compliance Investigator Jessica Tobias and overseen by Assistant Vice President Christopher Glaros, who also held the interim Title IX Coordinator role, were conducted without external influence. They followed standard practices by reviewing complaints, formulating investigation strategies, and conducting interviews. The investigation into the first complaint found insufficient evidence to support the claim of retaliation against Waters, a finding communicated to him on July 22, 2014.
In response to a parent's complaint regarding a sexualized culture within the Band, OUCI interviewed Waters multiple times and received a written statement from him, where he expressed concerns about the Band's culture, acknowledging offensive practices such as Midnight Ramp and inappropriate nicknames. The investigation included interviews with two staff members suggested by Waters, the two complainants, and nine current and former Band members.
The investigation culminated in a 23-page report dated July 22, 2014, which concluded that the Marching Band's culture permitted sexual harassment, creating a hostile environment. The report detailed various practices corroborated by multiple witnesses, including Fesler Night, Midnight Ramp, sexually related nicknames, Rookie Introductions involving explicit questioning, and a Trip Tic containing sexually related content. Additionally, it highlighted that Waters had knowledge of some of these practices but failed to address or eliminate the sexual harassment issues. The report referenced relevant University policies on sexual harassment and guidance from the Department of Education’s Office of Civil Rights.
Individuals aware of or who should be aware of sexual harassment creating a hostile environment are obligated to take action to eliminate such harassment, prevent its recurrence, and address its effects. An investigation report concluded that Waters, a university official, failed to meet these standards in responding to sexual harassment and hostile environment complaints. Waters' approach to reforming the Band's sexualized culture was criticized as "evolving," and he deferred responsibility for change to student leaders. Notably, he permitted the Midnight Ramp event to continue for two years before discontinuing it in June 2014. Despite Waters' claims of cultural improvement within the Band, witnesses reported no significant changes.
The report recommended implementing training, counseling, and ongoing oversight for Band leaders and members to align the program with Title IX and university policies but did not suggest disciplinary action against Waters.
Dr. Michael Drake, who became President of Ohio State on June 30, 2014, was informed of an investigation into the Band's culture shortly after his arrival. He found the investigation's findings convincing, describing the environment as hostile and the Band's Songbook lyrics as potentially offensive. Drake engaged in discussions with senior university officials to contextualize the information he received, focusing on issues that arose during Waters' directorship.
Drake learned of a reported assault involving a female Athletic Band member and a male member, where Waters' decision to bar both from an upcoming trip raised concerns of retaliation. Legal Affairs intervened to ensure the female student could attend. Drake concluded that Waters had mishandled the situation and was slow to respond to sexual assault issues, showing reluctance to address them promptly and effectively. He was informed that while there were promises of Title IX training for the Band, definitive actions had not been taken.
Drake testified that he doubted Waters' honesty regarding issues within the Band, particularly after learning about a meeting in October 2013 where Waters denied a culture of misbehavior despite being confronted by a former communications employee. In an email to a public relations employee, Waters expressed surprise about concerns raised by the Board of Trustees, claiming there was no problem in the Band. Drake also discussed culture issues with Provost Steinmetz, who relayed that Waters viewed the Band's problems as historical and claimed he was addressing them. Drake found this characterization troubling and believed Waters had not adequately confronted ongoing issues.
Additionally, Drake became aware of an incident where Waters verbally attacked a student drum major, which was recorded and featured offensive language and threats. Waters denied this incident during the Investigation Report's interviews, leading Drake to conclude that Waters had made a false statement. In assessing the situation, Drake aimed to approach the matter carefully and felt it was his responsibility to determine the outcome. He considered disciplinary options but ultimately decided that a performance improvement plan was inappropriate, as he did not see the situation as "correctable" with Waters as Director. Drake emphasized the necessity of leadership change to address the culture effectively, citing Waters' dishonesty and the University’s documented issues as critical factors. He acknowledged Waters' attempts to improve the situation, such as stopping Midnight Ramp and limiting nicknames, but deemed these efforts insufficient given the continued problems during Waters' tenure. Drake maintained that the Director's role was to ensure a safe environment for students, rather than merely attempting to address issues.
The Director's inadequate leadership prompted the decision to terminate Waters’s employment, with Drake asserting that gender was not a factor in this decision. Waters received a termination letter on July 24, 2014. D. Lenee Buchman, the Head Coach of the Spirit Program at Ohio State since 2009, held an at-will position and reported to multiple supervisors, ultimately under Director of Athletics Eugene Smith. Buchman's responsibilities included managing cheer, dance, and mascot programs, overseeing a budget, and advising about student needs.
In July 2012, a male cheerleader raised concerns about a potentially inappropriate text from assistant coach Eddie Hollins but requested no action be taken. Buchman was unaware of Hollins sending private messages and subsequently held a staff meeting to encourage open communication among coaches. In April 2013, complaints surfaced against Hollins and another assistant, Dana Bumbrey, alleging sexual harassment and inappropriate touching, leading to their termination on May 23, 2013.
Although Buchman was not directly implicated in these complaints, the investigation revealed that she had knowledge of Hollins's inappropriate communication. This resulted in her being placed on a performance improvement plan for failing to report the issue as required by University policy. Buchman received a letter of reprimand on June 20, 2013, for not following proper procedures and attempting to resolve the matter internally.
A letter informed Buchman, a coach, of her obligation to report any reasonable complaints of sexual harassment to human resources and mandated attendance at sexual harassment training in July 2013. Jarmond identified two reasons for placing Buchman on a performance improvement plan: to guide her after she failed to report a concerning text message and to educate the coaching staff regarding sexual harassment issues related to prior complaints against assistant coaches. The plan required biweekly meetings over six months to discuss improvement in communication, culture, leadership, and recruiting. Jarmond clarified that termination was never intended, as the April 2013 complaints were not against Buchman, and the performance improvement plan was solely focused on enhancing her performance, unrelated to any misconduct by her or her gender.
In August 2013, a cheerleading student accused Buchman of retaliation for his participation in an investigation against other coaches, but she was cleared of these allegations. However, the investigation uncovered that Buchman had attended a cheerleading camp run by a terminated coach and did not act when another former coach appeared unexpectedly at a practice. Human Resources conducted an investigation into these incidents, leading to Buchman's termination in November 2013. Gene Smith cited her failure to demonstrate expected leadership by associating with the terminated coach and not addressing the presence of the other former coach at practice as reasons for her dismissal.
The Band and Spirit Squad collaborated at various events but operated independently regarding performance content and design, with no joint practices. Both teams attended operational meetings to coordinate logistics for home football games, involving multiple university departments and personnel, and utilized headsets for communication during events.
The group maintained communication about activities during timeouts, such as performances by the Band and cheerleaders. The Band and Spirit Squad occasionally traveled together to various events, including away games and bowl games, with travel arrangements coordinated by the Athletics Department, which also provided per diems. Although Buchman and Waters communicated regarding logistics, each was responsible for their respective program members during travel.
In July 2010, the U.S. Department of Education’s Office of Civil Rights (OCR) began a proactive compliance review of Ohio State’s Title IX program, unrelated to any specific complaint. By May 2013, OCR indicated that the review was nearly complete, providing positive feedback and only minor recommendations. However, in August 2013, OCR issued a draft resolution agreement, which surprised Ohio State given the earlier feedback. A December 2013 meeting clarified that the resolution agreement was necessary to conclude the review, prompting Ohio State to provide updated information regarding actions taken against coaches in the Spirit Program due to sexual harassment complaints.
Ohio State reported the termination of coaches Hollins and Bumbrey following substantiated allegations and noted Buchman's performance improvement plan and subsequent termination for leadership failures related to the situation. Following Waters's termination in July 2014, Ohio State’s General Legal Counsel contacted OCR to report "significant Title IX problems" within the Marching Band, leading to a meeting on August 13, 2014, with University officials and OCR staff, including the new Title IX Coordinator and a Deputy General Counsel.
The meeting with Ohio State representatives and the Office for Civil Rights (OCR) lasted approximately one hour, during which the university detailed its investigation into complaints related to the marching band, including the investigation process, findings, and analyses under University policy and Title IX. The university reported that a retaliation complaint against Mr. Waters was investigated thoroughly but not substantiated. OCR reviewed the Investigation Report prior to the meeting and aligned with its conclusions. A revised resolution agreement presented by OCR included specific actions for Ohio State, such as enhancing Band leadership, updating policies for Title IX compliance, training staff on Title IX issues, offering counseling for sexual harassment victims, distributing educational materials, and assessing the effectiveness of cultural changes within the Band. President Drake signed this revised agreement on September 8, 2014, and OCR confirmed the conclusion of its compliance review in a letter dated September 11, 2014, indicating ongoing monitoring of compliance.
In February 2016, Dr. Christopher Hoch was appointed as the new Director of the Band, marking the first permanent appointment since Mr. Waters' termination.
The excerpt also outlines the standard for summary judgment under Federal Rule of Civil Procedure 56, stating that it is appropriate when there is no genuine dispute regarding material facts, placing the burden on the moving party to demonstrate the absence of such disputes. The nonmoving party must provide substantial evidence to challenge this absence, and only material facts that could influence the case's outcome prevent summary judgment.
A district court reviewing a motion for summary judgment is not permitted to weigh evidence or assess credibility. Instead, it must ascertain if there is sufficient disagreement in the evidence to warrant a jury's consideration or if the evidence is overwhelmingly in favor of one party. All evidence and permissible inferences must be viewed favorably towards the nonmoving party. A mere scintilla of evidence supporting the plaintiff's position is insufficient; there must be enough evidence for a reasonable jury to potentially rule in favor of the plaintiff.
In the context of reverse gender discrimination under Title IX, which prohibits sex-based discrimination in federally funded education programs, courts typically apply the McDonnell Douglas burden-shifting framework derived from Title VII discrimination claims. To establish a prima facie case, a plaintiff must demonstrate (1) membership in a protected class, (2) suffering an adverse employment action, (3) qualification for the position, and (4) that a similarly situated non-protected individual was treated more favorably.
Ohio State contends that Waters fails to establish a prima facie case, particularly arguing that reverse discrimination claims require a heightened standard showing background circumstances indicating unusual discrimination against the majority. This position is supported by some case law. Conversely, Waters argues against the imposition of such a heightened standard, which is also supported by case law. Concerns are raised regarding the fairness of requiring a higher burden for plaintiffs who are white or male compared to their non-white or female counterparts.
Ohio State successfully argued for summary judgment based on the failure of Waters to identify a similarly-situated female employee who received more favorable treatment. To meet the fourth prong of the McDonnell Douglas framework, a plaintiff must show that they are similarly situated to a non-protected employee in all relevant respects, considering factors such as the same supervisor, standards, and conduct without significant differentiating circumstances. Waters proposed Lenee Buchman as a comparator because both held the title of “Director” in unclassified positions; however, the court found that they were not similarly situated. Key distinctions included their employment in separate departments—Waters in the School of Music and Buchman in the Department of Athletics—with different supervisors and decision-makers involved in their respective disciplinary actions. The court affirmed that these differences meant Waters and Buchman did not share relevant employment aspects, undermining Waters's claim of differential treatment.
Drake indicated that his discussions regarding the Band were appropriately directed to the Provost, acknowledging the established reporting structure of the School of Music. In contrast, Buchman was placed on a performance improvement plan by Jarmond, following consultation with the Athletics Department's HR Director, Heaton. The distinct departments and supervisors involved in the disciplinary actions of Waters and Buchman suggest they were not similarly situated. Case law supports that different employment decisions by different supervisors are typically not comparable for discrimination claims, as supervisors may exercise discretion differently.
Drake was unaware of Buchman's situation at the time he decided to terminate Waters, as Buchman's performance plan and termination occurred before his tenure at Ohio State. He only learned about Buchman in summer 2015, a year after Waters' termination. Drake's initial misunderstanding regarding Waters' department was clarified when he verified that the Band was not part of the Athletics Department before making the termination decision.
Evidence indicates that Drake did not consider Waters as an Athletics employee and did not consult with Smith on how to address Waters' situation. While both Waters and Buchman held the title of Director as unclassified employees, these similarities were deemed superficial in the context of Ohio State's size. Waters failed to demonstrate how these similarities were significant, and the discovery process revealed differing standards applied by Drake and Jarmond in their respective decisions.
Managerial and non-managerial employees can be deemed similarly situated under a uniform company policy, as established in a 2015 Sixth Circuit case. However, in this instance, the decision to terminate Waters was made solely by Drake, who had recently joined Ohio State and was unfamiliar with specific policies. Drake believed the Investigation Report substantiated serious issues within the Band and concluded that Waters had acted dishonestly and failed in his leadership role. In contrast, Buchman’s termination involved consultation with a Human Resources Director, who guided her on performance improvement plans and reporting obligations, leading her to prioritize education over discipline.
The court determined that Waters and Buchman did not engage in comparable conduct, noting that for employees' actions to be viewed as equivalent, they must be similar in nature and severity. Waters was under investigation for two Title IX complaints, which highlighted his knowledge of significant cultural problems within the Band, including awareness of an assault and rape incidents. He had direct involvement in problematic events, such as attending Midnight Ramp and possessing a directory with explicit nicknames. Conversely, Buchman had limited knowledge regarding inappropriate conduct and acted based on a student's request to remain uninvolved. The distinctions in their respective knowledge and involvement were key factors in the court’s analysis.
Waters was implicated in inappropriate conduct while working with students, including having copies of Trip Tics and being present on a bus where students engaged in sexually suggestive behavior in September 2013. He verbally attacked a student drum major and attempted to prevent a female student from traveling with the Band after she reported a sexual assault. In contrast, Buchman had no record of witnessing or participating in misconduct before her performance improvement plan, though she failed to report a concerning text message. Despite this, both Waters and Buchman faced termination for their respective actions: Waters for his reluctance to address Title IX issues and his evasive responses, and Buchman for not reporting the text message, despite her prompt action in addressing the issue with her staff afterward.
The court noted Waters’ history of inaction regarding Title IX matters, including his failure to conduct training and his denial of a cultural problem within the Band before the Title IX complaints were filed. His preferred approach to change was to rely on student leaders. Conversely, Buchman responded quickly to the allegations she was aware of, even though she did not report them through the proper channels.
The court rejected the plaintiffs' argument that marching bands and cheerleaders are comparable in this context, clarifying that the relevant conduct involved the handling of sexualized behavior within the Band rather than their public appearances. Consequently, the court found that the plaintiff failed to identify a similarly situated individual, undermining the claim of reverse gender discrimination. Furthermore, even if a prima facie case was established, Ohio State provided legitimate, non-discriminatory reasons for the terminations, meeting the burden of proof necessary for summary judgment.
Ohio State has established that Drake had justifiable reasons for terminating Waters due to his inadequate leadership and erosion of trust, which Waters contests as a pretext for the termination. Once Ohio State met its burden of proof, the onus shifted to Waters to demonstrate that the reasons provided were pretextual, which he could do by showing that the reasons lacked factual basis, did not motivate the termination, or were insufficient for such a decision. Waters claimed that his conduct was comparable to that of Buchman, who received only a performance improvement plan; however, the court found that Waters’ actions were more serious.
Waters also argued that Dr. Christopher Hoch, who was aware of the Band's sexualized culture and subsequently replaced him, was retained despite similar concerns. Nevertheless, Drake clarified that he terminated Waters due to the latter's failure to enact necessary changes as Director, emphasizing that Hoch was not responsible for those failures.
Additionally, Waters alleged that his termination was motivated by Ohio State's aim to satisfy the Office of Civil Rights (OCR) following Title IX complaints. However, testimony indicated that OCR did not influence the investigation's conduct or outcomes, nor did it threaten sanctions against Ohio State. This lack of support for Waters' claims undermines his argument that the termination was based on gender discrimination.
In employment discrimination cases alleging disparate treatment, the central issue is whether the plaintiff experienced intentional discrimination, as established in Bobo v. United Parcel Serv. Inc. Evidence regarding the termination of Waters by Ohio State indicates no discriminatory animus against men was present. Testimonies from Drake and Glaros confirm that gender did not influence the termination decision, and there was no indication from the Office for Civil Rights (OCR) of bias against Waters or men. Waters' claim that Ohio State delayed informing OCR to control the narrative lacks support for gender-based animus. The treatment of a female comparator, Buchman, further illustrates that Ohio State applied the same procedures for both male and female terminations.
The court concludes that Waters has not met the burden of demonstrating that Ohio State’s termination rationale was a pretext for discrimination. Additionally, Waters invokes a "cat’s paw" theory, which suggests liability when a supervisor, free from bias, is influenced by another person who harbors discriminatory intent. This theory requires proof of a biased supervisor intending to cause adverse employment action, which must be shown to have proximately caused the termination. Ohio State contends that the cat’s paw theory is inapplicable under Title IX, arguing that Title IX does not incorporate agency principles, unlike Title VII.
Waters argues that Ohio State's application of agency law is relevant only to harassment claims, as established in the Gebser case, and not to adverse disciplinary actions by educational institutions. He cites David S. Cohen's work advocating for agency principles in non-harassment Title IX claims. However, the court avoids this legal question, confirming that Ohio State is entitled to summary judgment based on the facts surrounding the "cat's paw" theory. Waters claims that Glaros and Tobias influenced Drake’s decision through their Investigation Report, which did impact Drake's conclusion, despite his consideration of other factors. Nonetheless, there is no evidence that Glaros or Tobias acted with discriminatory intent toward Waters; both individuals testified they harbored no gender bias against men during the investigation. Additionally, they previously cleared Waters of retaliating against a female student. The court also notes that the drafts of the Investigation Report do not indicate any discriminatory motive. Waters criticizes the investigation’s methodology, highlighting shortcomings such as limited witness interviews and the inclusion of irrelevant content. However, this critique does not establish gender-based animus or demonstrate that the investigation was a sham designed to conceal discrimination. Hearsay evidence provided by Waters does not substantiate his claims either.
One interviewee indicated that his comments were omitted from the Investigation Report, another felt unasked about the context of her nickname, and the last did not perceive sexual harassment within the Band. Despite these hearsay statements, they do not negate the sexualized culture outlined in the Investigation Report. The tradition surrounding nicknames, particularly during the Midnight Ramp, was characterized as lighthearted. The record shows that Ohio University conducted a timely and thorough investigation of the Title IX complaint, interviewing relevant parties, objectively reporting findings based on corroborated evidence and admissions, and accurately applying Title IX standards to make reasonable recommendations. There is no evidence suggesting that the Investigation Report was influenced by discriminatory motives against men. Consequently, the court determines that Ohio State is entitled to summary judgment against the plaintiffs’ cat’s paw theory. Waters failed to establish a prima facie case or demonstrate that the rationale for his termination was a pretext, thus justifying summary judgment on his Title IX reverse gender discrimination claim. Additionally, recent amendments to Rule 26(b) of the Federal Rules of Civil Procedure emphasize the relevance and proportionality of discovery, aiming to foster cooperation among judges and attorneys to minimize litigation costs and expedite case resolution.
The proportionality standard mandates that judges and practitioners reshape discovery culture by tailoring discovery requests to the specific needs of a case. Lawyers, under judicial guidance, must justify the relevance and necessity of the information sought, demonstrating its importance for case resolution and the reasonableness of resource expenditure. Courts are tasked with a case-specific assessment of discovery scope, considering the burden and expense of compliance.
Chief Justice Roberts emphasized that implementing the 2015 civil rule amendments necessitates adaptation and innovation, urging improved case management, cooperation among attorneys, and proactive judicial involvement. To facilitate this, measures may include early case management conferences, joint discovery plans, timely dispute resolution, regular conferences, stays of discovery for legal issues, and the use of affidavits to assess the necessity of costly discovery methods.
In practice, the court conducted an early review to identify legal issues pertinent to the claims. Following Ohio State's motion for judgment on the pleadings, which sought to dismiss certain claims, the court stayed discovery to address threshold challenges. This decision was influenced by the anticipated substantial burden on Ohio State and third parties, including concerns over attorney-client privilege and privacy, especially given that the plaintiff's initial disclosures named 40 individuals potentially possessing discoverable evidence.
The court largely granted the motion for judgment on the pleadings, leaving only the plaintiffs' reverse gender discrimination claim active. Following this, a discovery conference was held on May 1, 2015, aimed at defining the scope and timeframe for discovery pertinent to the remaining claim. The court emphasized the need for active management of the case to resolve legal issues affecting discovery.
During the conference, tensions emerged between Ohio State, which contended that the only identified comparator, Buchman, was not similarly situated to Waters due to differing departments and supervisors, advocating for limited discovery, and Waters, who sought extensive discovery beyond departmental boundaries and time constraints, aiming to uncover evidence of discrimination and additional comparators.
The court permitted limited initial discovery focused on direct and circumstantial evidence of reverse gender discrimination relating to Buchman, the School of Music, and adverse employment actions by President Drake and other relevant entities. The scope was designed to align with the elements of the plaintiff's disparate treatment claim, with the court intending to closely monitor the case and facilitate resolution of any discovery disputes. The parties were instructed to submit a joint discovery plan by June 29, 2015, in a bid to foster cooperative management of litigation expenses and timelines.
Subsequent disputes arose from the expansive nature of the plaintiff's requests versus the defendants' narrower responses, prompting the court to assert that these conflicts undermined the principles of recent amendments to the Federal Rules of Civil Procedure, necessitating active court involvement to ensure efficient and expedited proceedings.
The court emphasized the necessity of identifying the decision-makers behind Waters's termination, specifically naming Dr. Michael V. Drake, the university president, as the primary decision-maker. The plaintiff is authorized to depose Dr. Drake regarding his reasons for the termination, any potential gender-based bias, and communications related to the decision. However, the court denied the plaintiff's request to depose the Board of Trustees to prevent excessive and potentially irrelevant inquiries, establishing that the decision was made solely by Dr. Drake. Instead, the Board is required to provide meeting minutes from the six months prior to the termination and affidavits from members detailing their involvement, if any, in the decision. After receiving affidavits stating that Board members did not participate in the termination, the court saw no need for further involvement from them in discovery. Similarly, Provost Joseph Steinmetz and Director Richard Blatti, who had supervisory roles over Waters, must submit affidavits outlining their roles in the termination. Additionally, Athletics Director Gene Smith is required to submit an affidavit concerning his involvement in the termination process.
The court allowed the deposition of Christopher Glaros due to the significant role the Investigation Report likely played in the termination decision. The plaintiff is permitted to question Glaros about any actions or statements indicating gender-based bias against men, as well as any similar investigations he may have conducted. However, the deposition will not cover the findings or procedures of the Investigation Report. The court previously directed discovery related to potential "cat's paw" individuals, including Drake, the Board of Trustees, Steinmetz, Blatti, and Glaros, and will continue to allow such inquiries as warranted by the facts.
Furthermore, the court clarified that Glaros could be questioned about his own attitudes and any differences in his treatment of male and female investigations, but it denied the plaintiff's request for a detailed examination of the Investigation Report itself. A discovery deadline was set for September 15, 2015. On that date, the plaintiff sought to expand discovery to include red-line drafts of the Investigation Report, depositions of Jessica Tobias and Lenee Buchman, a representative from OCR, and communications between Ohio State and OCR. The court instructed both parties to summarize previous depositions to assess the relevance to the Title IX claim.
The court approved the requests for the production of red-line drafts and Tobias's deposition, noting that Tobias was crucial in the investigation and Report's preparation, which had undergone multiple revisions. The remaining requests required further evaluation, prompting the court to call for expedited briefings. Although Buchman was recognized as a valid discovery subject, the plaintiff did not depose her during the discovery period or obtain her affidavit, as she expressed discomfort in signing a statement that did not accurately reflect her views.
Ohio State established a legal argument asserting that Buchman was not similarly situated to Waters due to their differing departmental employment and supervision. The court ruled that these distinctions were not conclusive under Sixth Circuit law, emphasizing that the relevance of the same supervisor criterion varies by case specifics. Limited discovery regarding Buchman’s performance improvement plan led the court to allow the plaintiff to depose both Buchman and Martin Jarmond, who issued the plan. Regarding requests related to the Office for Civil Rights (OCR), the court observed that Waters already received substantial documentation via a Freedom of Information Act request and prior document production from Ohio State, concluding that additional discovery from Ohio State or OCR would likely not yield significant evidence or be proportional to the case's needs.
The plaintiff contended that the discovery process was unduly restrictive, hindering his ability to counter Ohio State’s summary judgment motion. Under Rule 56(d), a non-movant can request further discovery if they demonstrate an inability to present essential facts for their opposition. The plaintiff's motion specified three areas for additional discovery: findings of misconduct by assistant cheerleading coaches Eddie Hollins and Dana Bumbrey, details on employees who received performance improvement plans or were terminated due to issues of sexualized culture or harassment within the past five years, and the factual basis and methodology of the Investigation Report. The plaintiff argued that evidence concerning Hollins and Bumbrey's misconduct could substantiate claims of a similar environment within the Spirit Squad to that in the Band before Waters's termination.
Ohio State argues that the plaintiff's discovery request is both untimely and irrelevant to the case's needs, a position the court supports. The plaintiff was aware of Buchman as a comparator from the outset and referenced "sexualized behavior" in the cheerleading crew in the complaint. Ohio State notified the plaintiff on June 8, 2015, about the termination of two assistant cheerleading coaches for inappropriate conduct. Despite obtaining a declaration from Bumbrey on August 17, 2015, the plaintiff did not pursue relevant information during the discovery period and failed to explain the delay adequately. The court notes that the requested discovery does not align with Rule 26(b) since Ohio State acknowledges that both Hollins and Bumbrey engaged in misconduct warranting their terminations. The plaintiff's inquiry into the specifics of their misconduct does not address the critical issue of Buchman's involvement or knowledge of the misconduct, which is essential for comparison with Waters' situation. Buchman testified she was unaware of the misconduct until after being placed on a performance improvement plan, and this testimony remains unchallenged. Additionally, the proposed interrogatory regarding individuals placed on performance improvement plans is deemed untimely and disproportionate, as the plaintiff did not justify the delay in proposing it post-summary judgment motion. The plaintiff's request for broader University-wide discovery also lacks relevance to Waters' termination, as it predates the arrival of the decision-maker, Drake. Lastly, the court concludes that the plaintiff has already received sufficient discovery regarding the methodology and basis of the investigation report.
Glaros testified regarding various aspects of the Title IX investigation, including the intake meetings, investigation timetable, roles of personnel involved, witness selection and interview processes, and the drafting of the Report. Tobias provided similar testimony and detailed efforts to corroborate evidence. During his deposition, plaintiffs' counsel aimed to examine whether the investigation methodology was influenced by gender-based bias. Despite extensive testimony and review of 800 pages of investigation drafts, plaintiffs have not presented evidence supporting claims of gender bias influencing the methodology. The court states that further discovery on this matter is unwarranted.
The plaintiff argues for discovery to determine if Ohio State's termination reasons were pretextual for discrimination, but the Sixth Circuit requires evidence showing the employer did not "honestly believe" in the stated nondiscriminatory reasons. The plaintiff has not provided evidence suggesting Drake did not honestly believe the Report's findings, as Drake described the Report as "detailed," "consistent," and "convincing." He also gathered supporting information about the Band’s culture. Although the plaintiff interprets Drake's statement at a meeting as indicating a belief that certain practices were historical, this does not refute the idea that Drake believed some practices continued during Waters’s time as Director.
Ohio State has established its case with uncontroverted evidence, demonstrating that the requested discovery would not help the plaintiff succeed on his cat’s paw theory. To prove that the reasons for his termination were factually false, the plaintiff must show that the justifications for his discharge did not occur. This presents a significant challenge, as concessions made by Waters indicate that some of the findings were based on factual evidence rather than being entirely false. Waters admitted awareness of offensive nicknames and inappropriate behavior within the organization, acknowledging issues related to the band’s culture. Furthermore, he did not take immediate action to eliminate these behaviors until an investigation was initiated.
The court concluded that the plaintiff is not entitled to the discovery sought, as it would not address the pretext issues. Consequently, Ohio State’s motion for summary judgment is granted, and Waters’s request for Rule 56(d) relief is denied. The judgment favors the defendant.
Additionally, the position of Title IX Coordinator was temporarily filled by Glaros following the resignation of Goldblum, who had previously filed an unsubstantiated gender discrimination complaint against OUCI. An incident involving a male band member's rape and subsequent disciplinary actions is also noted, with Waters confirmed as a participant in the related discussions. The decision to terminate Waters was made by Drake, who lacked familiarity with the specific performance improvement policies at Ohio State but understood the general concept. Jarmond relied on Heaton’s expertise for the development of the performance improvement plan. Human Resources did not determine whether Buchman was aware of the sexual nature of certain texts, with Buchman testifying she had no such knowledge. The Investigation Report outlined corrective actions based on prior agreements with other institutions, and the plaintiff has not claimed that Glaros or Tobias communicated with Drake regarding the report. Additionally, the plaintiff admits that Buchman had no personal knowledge of the misconduct in question after her termination.
