Silberstein v. Montgomery Cty. Community College Dist.Silberstein v. Montgomery Cty. Community College Dist.
Rendered on the 20TH day of November, 2009.
JEFFREY M. SILVERSTEIN, Atty. Reg. #0016948, and JASON P. MATTHEWS, Atty. Reg. #0073144, Jeffrey M. Silverstein and Associates, 627 South Edwin C. Moses Boulevard, Suite 2-C, Dayton, Ohio 45417
Attorney for Plaintiff-Appellant
ERIKA PEARSOL-CHRISTIE, Atty. Reg. #0069418, Ohio Attorney General’s Office, Education Section, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215
and
BROOKE E. LESLIE, Atty. Reg. #0081179, Ohio Attorney General’s Office, Employment Law Section, 30 East Broad Street, 23rd Floor, Columbus, Ohio 43215
Attorney for Defendant-Appellee
FAIN, J.
{¶ 1} Plaintiff-appellant David Silberstein appeals from a summary judgment rendered in favor of defendant-appellee Montgomery County Community College
{¶ 2} We conclude that Silberstein failed to present sufficient evidence to sustain his burden on the issue of age discrimination. Although Silberstein presented a prima facie case of age discrimination, the prospective employer offered legitimate non-discriminatory reasons for its hiring decisions, which were not rebutted. We further conclude that Silberstein failed to establish a prima facie case of sex discrimination, because his proof, even when viewed in a light most favorable to him, did not meet the modified test applied in cases of reverse discrimination, which requires applicants to demonstrate background circumstances supporting the suspicion that a defendant is the unusual employer who discriminates against the majority, and that the employer treated differently employees who are similarly situated but are not members of the protected class. Finally, we conclude that the trial court did not err in rejecting Silberstein’s claim for violation of
{¶ 3} Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 4} In 2006, Jan Tyler became employed as the Director of Academic
{¶ 5} Approximately 282 people applied for the position, including 196 females, 82 males, and four persons whose sex was “undisclosed.” Tyler formed a search committee to review the applications and interview candidates. The committee consisted of Tyler, who was the female chairperson, as well as two other females, and one male, all of whom were employed by Sinclair. One female was a senior academic advisor, and the other was an associate professor in the Life and Health Science Division. The male was a part-time senior academic advisor, and was one of three males out of about 24 academic advisors at Sinclair.
{¶ 6} The members of the search committee individually reviewed the application materials of the 282 people who had applied, and then met as a group to choose finalists to interview. Nine finalists were selected, including Silberstein, who was the only male chosen.
{¶ 7} Among the requirements for the position were a bachelor’s degree in education or other relevant academic area, and a minimum of two years experience in education or business. Candidates were also required to have a thorough knowledge of degree requirements and course names, and an understanding of the needs of a
{¶ 8} At the time of his interview, Silberstein was fifty-nine years old. Silberstein had excellent credentials, including an undergraduate degree in history, and a master’s degree in education in student personnel services and higher education. After graduating from college, Silberstein worked for Cleveland State University for two and a half years as coordinator of evening student affairs. Cleveland State was a four-year college. Silberstein was then employed by Quinsigamond Community College in Massachusetts for a year and a half as coordinator of student affairs. This position was similar to that of an academic advisor, with new student orientation included. Silberstein was hired by Indiana University East (IUE) in 1980, and was still employed there when he interviewed with Sinclair.
{¶ 9} Between 1980 and the early 2000s, IUE was a two- and four-year degree-granting institution, but primarily granted two-year degrees. When Silberstein first started at IUE, Indiana did not have a community college system. During the present decade, Indiana has officially created community colleges from what were previously called “ivy techs,” which were trade-type schools that did not offer two-year degrees. As part of this process, Indiana moved developmental course work from colleges like IUE to the community colleges.
{¶ 10} When Silberstein first became employed at IUE, he was the director of academic advising. He advised all students who did not have a major, supervised a number of other units, and was responsible for new student orientation. As director, Silberstein had supervisory responsibilities over three academic advisors, a work-study employee, and a clerical employee. Throughout his career at IUE, which spanned 28
{¶ 11} Silberstein was interested in the Sinclair position for several reasons, including the fact that he lived in the Dayton area and did not want to continue commuting to Richmond, Indiana, where IUE was located. Furthermore, Silberstein’s position was changing, due to decentralization of the academic advising department at IUE. IUE was also making admission requirements more stringent, as part of the new community college system. Remedial students were Silberstein’s area of specialization, and he favored Sinclair’s open admission policy, which would still allow him to deal with these students.
{¶ 12} Silberstein was also acquainted with Tyler, who had worked at IUE as the director of career counseling before coming to Sinclair. Silberstein and Tyler were on friendly terms, and had worked together closely on a project that was not yet completed when Tyler left to take a job at Sinclair.
{¶ 13} When Silberstein applied, he was unaware that Sinclair had more than one level of academic advisors, and he was not told that it was an entry-level position. The minimum salary listed for the position was substantially less than Silberstein currently earned at IUE. Nonetheless, Silberstein wanted the job, for the reasons previously mentioned, and because he loved working with students.
{¶ 14} Silberstein interviewed with the search committee on October 17, 2007. Prior to the interviews, the committee developed a set list of questions. The committee
{¶ 15} One of the top candidates was a female who was employed as an academic advisor at The Ohio State University, but she withdrew before an offer could be made. A position was then offered to Linda Bakkum, who was employed at the time as an assistant director of undergraduate studies in business at Bowling Green State University. Bakkum had also previously worked as an academic advisor in undergraduate studies in business at Bowling Green from 1995 to 1998, and in student support services from 1988 to 1995.
{¶ 16} Bakkum was selected because of her background in academic advising and good communication skills. She also had a strong background in business advising, which was needed in Sinclair’s advising office. In addition, Bakkum had thorough knowledge of transfer assurance guides and had worked extensively with Sinclair students who were transferring to Bowling Green. Bakkum was over forty years of age.
{¶ 17} The other position was offered to Tanya Sturm, who was twenty-four years old. Sturm met the minimum qualifications for the position, having received a bachelor’s degree in psychology and personnel and industrial relations in 2004. Sturm also had about two years of work experience in the educational area in a variety of internships and paid positions, none of which were full-time. At the time of the interview, Sturm was pursuing a master’s degree in student affairs in higher education
{¶ 18} During her internship, Sturm was supervised by Tyler and worked directly with Douglas Erhard, one of the committee members. Tyler indicated that one of the factors leading to Sturm’s identification as a top candidate was her experience as an intern in the academic advising office, which gave Sinclair the ability to see Sturm demonstrate her skills with students. Sturm also had an understanding of the academic advising center and Sinclair’s curriculum.
{¶ 19} As to why Silberstein was not selected, Tyler stated as follows during her deposition:
{¶ 20} “This position is an entry level grunt, to be perfectly blunt, grunt level academic advisor position. This position is at your desk, seeing students back to back, no committee work, no coordinating significant projects in the office, day-to-day, in and out, academic grunt level advising. David has wonderful experience. He has been an advisor and he’s been an administrator. And looking at this grunt-level position, there would be no opportunities to do the kinds of work that he had done in his previous employment. In my mind, David would make a great senior academic advisor because of the level of administrative responsibility as well as day-to-day advising.” Tyler Deposition, p. 42.
{¶ 21} Tyler further commented in a later affidavit that:
{¶ 22} “David Silberstein was not one of the top candidates. Silberstein lacked the community college experience the committee preferred and lacked the requisite
{¶ 23} Silberstein was informed on October 31, 2007, that he had not been selected for the job. The following day, Silberstein’s wife, who is an attorney, sent a public records request to Tyler, asking for all public records in Sinclair’s possession concerning the recently filled position of Academic Advisor, including affirmative action or demographic information showing the sex, age, and ethnicity of the successful candidates. Silberstein also asked for all notes of interviews conducted with Silberstein and the successful candidates by any persons involved in the interviews, and all notes and correspondence regarding meetings that were held after the interviews or that related to the selection of the successful candidates or to Silberstein’s non-selection. Sinclair’s legal department promptly responded, stating that it would provide the requested records, but stressing that not all notes of an individual are public records. Silberstein was then furnished various records in mid-November 2007, including Tyler’s notes. However, the notes of other committee members were not provided. The committee members were never contacted by anyone to request that they preserve
{¶ 24} Silberstein filed suit against Sinclair in April 2008, alleging that Sinclair had discriminated against him on the basis of age and sex. Silberstein filed an amended complaint in January 2009, adding claims for spoliation and for destruction of public records in violation of
{¶ 25} The trial court concluded that Silberstein failed to establish a prima facie case of sex discrimination, because the field of academic advising is primarily female, and an imbalance in the number of males interviewed and hired is merely reflective of the applicant pool. The court further concluded that Silberstein had established a prima facie case of age discrimination, but that Sinclair had asserted legitimate, non-discriminatory reasons for failing to hire Silberstein. Silberstein did not, however, demonstrate that Sinclair’s explanation for hiring Bakkum and Sturm is pretextual. The trial court additionally found the spoliation claim without merit, and also concluded that the committee members’ notes are not public records.
{¶ 26} Silberstein appeals from the judgment of the trial court.
II
{¶ 27} Silberstein’s First Assignment of Error is as follows:
{¶ 28} “THE TRIAL COURT ERRED IN FINDING THAT APPELLANT FAILED
{¶ 29} Under this assignment of error, Silberstein contends first that he presented sufficient evidence of pretext from which a reasonable factfinder could conclude that he was denied an academic advisor position due to his age. Silberstein also contends that the record contains sufficient evidence from which a reasonable factfinder could infer that Sinclair discriminates against males in filling positions within its academic advising department.
{¶ 30} “We review summary judgment decisions de novo, which means that we apply the same standards as the trial court.” GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 133, 2007-Ohio-2722, at ¶16. “A trial court may grant a moving party summary judgment pursuant to
{¶ 31}
{¶ 32} “A claim of discrimination may be proven by either direct or circumstantial evidence. * * * To establish a discrimination claim based upon circumstantial evidence, a plaintiff must initially demonstrate a prima facie case of discrimination.” Temple v. City of Dayton, Montgomery App. No. 20211, 2005-Ohio-57, at ¶85. (Citations omitted). A plaintiff can establish a prima facie case by establishing that “(1) she was a member of a protected class; (2) she applied for and was qualified for the position * * *; (3) she was considered for and denied the position, and (4) she was rejected in favor of another person with similar qualifications who was not a member of her protected class.” Betkerur v. Aultman Hosp. Assn., (C.A.6 1996), 78 F.3d 1079, 1095, citing Brown v. Tennessee (C.A. 6 1982), 693 F.2d 600.
{¶ 33} In Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, the Supreme Court of Ohio modified the fourth prong of this test, by replacing it with “a requirement that the favored employee be substantially younger than the protected” individual. Id. at ¶19. The Supreme Court of Ohio declined to define “substantially younger.” Id. at ¶22. Instead, the court noted that “[t]he term ‘substantially younger’ as applied to age discrimination in employment cases defies an absolute definition and is best determined after considering the particular circumstances of each case.” Id. at ¶23.
{¶ 34} Once a plaintiff establishes a prima facie case, the burden shifts to the employer, who must show that it had a “legitimate, nondiscriminatory reason for its action. * * * The burden of persuasion, however, always remains with the plaintiff. * * * If the employer articulates such a reason, the employee must show that the articulated reason was merely a pretext for discrimination.” Temple, 2005-Ohio-57, at ¶85. (Citations omitted.)
{¶ 35} Silberstein met his initial burden of establishing a prima facie case of age discrimination. At age 59, he was within the protected class, and met the minimum
{¶ 36} Sinclair also met its burden of articulating legitimate, non-discriminatory reasons for its actions. Although Sturm’s overall resume is not as impressive as Silberstein’s, Tyler voiced legitimate reasons for preferring Sturm and Bakkum as candidates. Unlike these two candidates, Silberstein did not have experience with Ohio community colleges or with transfer regulations. More than one committee member also expressed concern about Silberstein’s ability to be satisfied with entry-level work, given the high-level decision-making he had been doing as a director.
{¶ 37} Silberstein contends that Sinclair’s stated reasons are pretextual, for several reasons. He notes first that expertise in Ohio’s collegiate system is not a stated requirement for the position. Second, Silberstein observes that he worked in Ohio’s collegiate system for about two years, from 1976-1978, and at a community college in Massachusetts, for about two years, from 1978-1980. Silberstein also contends that Sturm did not meet the minimum qualifications for the position, and that a gross disparity exists between their qualifications. Finally, Silberstein contends that Sinclair’s hiring process was improperly subjective, because there were no precise or formal selection criteria.
{¶ 38} We disagree. As an initial point, we note that all applicants were subjected to the same interview process and the same set of standard questions. There was also no evidence that subjectivity entered this process, beyond intangible factors that are necessarily inherent in any hiring process. We have previously acknowledged that “the use of overly subjective criteria in hiring decisions can mask discriminatory intent * * * .” Senu-Oke v. Bd. of Edn. of Dayton City School Dist., Montgomery App. No. 20967, 2005-Ohio-5239, at ¶37 (citation omitted). Nonetheless, we also stressed in Senu-Oke that “consideration of somewhat intangible factors, such as interpersonal skills and teamwork, is worthwhile and appropriate.” Id.
{¶ 39} There is no doubt that Silberstein is well-qualified in the field of academic advising. This fact, however, does not necessarily mean that Silberstein was the best person for the positions in question, which were entry-level positions. Furthermore, the candidates who were hired had specific experience working with Sinclair students, the Ohio community college system, and the Ohio transfer process – qualifications that Silberstein did not possess. Silberstein also offered no proof that Sinclair’s explanation was a pretext, other than the mere fact of his age. We noted in Senu-Oke that “mere conjecture that an employer‘s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Id. at ¶38 (citation omitted).
{¶ 40} Citing Bender v. Hecht‘s Dept. Stores (C.A. 6, 2006), 455 F.3d 612, Silberstein contends that summary judgment should have been denied because his qualifications were so far superior to those of Sturm that no reasonable employer would have chosen Sturm. In Bender, the Sixth Circuit Court of Appeals noted that:
{¶ 41} “[I]n the case in which there is little or no other probative evidence of
{¶ 42} If the position at issue were that of a senior advisor or a director of academic advising, we might agree with Silberstein. But the position was an entry-level position, for which a reasonable argument could be made that Sturm was more qualified in the sense of being better suited for the position. Two committee members also had an opportunity to work closely with Sturm for several months, and were able to observe her ability to perform and to relate to students. Under the circumstances, we cannot say that no reasonable employer would have preferred Sturm for the academic advisor position. In Bender, the court stressed that “If two reasonable decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one candidate‘s qualifications are not significantly better than the other‘s.” Id. at 628.
{¶ 43} Accordingly, the trial court did not err in concluding that Silberstein failed to present sufficient evidence to sustain his burden on the issue of age discrimination. We reject Silberstein’s arguments about sex discrimination for the same reasons.
{¶ 44} Silberstein’s First Assignment of Error is overruled.
III
{¶ 45} Silberstein’s Second Assignment of Error is as follows:
{¶ 46} “THE TRIAL COURT ERRED IN FINDING THAT INSUFFICIENT EVIDENCE WAS CONTAINED IN THE RECORD TO ALLOW A REASONABLE FACT FINDER TO CONCLUDE THAT CIRCUMSTANCES SUPPORTED THE SUSPICION THAT APPELLEE DISCRIMINATES AGAINST MALES.”
{¶ 47} Under this assignment of error, Silberstein contends that the record contains evidence that Sinclair discriminated against males in filling positions within its academic advising department. The evidence Silberstein cites is statistical, as follows: (1) only three of Sinclair’s 24 academic advisors are male; (2) three of the four search committee members are female; (3) the head of the academic advising department is female; and (4) Silberstein is the only male candidate out of the nine candidates that the committee interviewed.
{¶ 48} The trial court concluded that Silberstein failed to establish a prima facie case of sex discrimination, because his proof did not meet the modified test applied in cases of reverse discrimination. We agree with the trial court.
{¶ 49} “[I]n a ‘reverse discrimination’ case, the complainant ‘bears the burden of demonstrating that he was intentionally discriminated against “despite his majority status[,]” ’ and, in order to establish such a claim, the typical requirements for a prima facie case of sex discrimination are modified. * * * Thus, a prima facie case of reverse discrimination requires the plaintiff to demonstrate: ‘(1) background circumstances that support the suspicion that defendant is that unusual employer who discriminates against the majority; and (2) that the employer treated differently employees who were
{¶ 50} Silberstein notes in his brief that females dominate the field of higher education and academic advising, in particular. In view of this fact, and the other facts relating to a low degree of male participation in advising at Sinclair, Silberstein contends that a suspicion of discrimination in academic advisor positions can be inferred. We disagree. If a field is dominated by females, the fact that an employer interviews and hires fewer males does not, without more, demonstrate that the employer is the unusual employer who discriminates against males. In addition, Silberstein failed to present evidence that Sinclair generally treats males differently from females.
{¶ 51} Accordingly, the Second Assignment of Error is overruled.
IV
{¶ 52} Silberstein’s Third Assignment of Error is as follows:
{¶ 53} “THE TRIAL COURT ERRED IN FINDING THAT INTERVIEW QUESTION FORMS DESTROYED [SIC] MUNN, KRONENBERGER, AND ERHARDT WERE NOT PUBLIC RECORDS.”
{¶ 54} Under this assignment of error, Silberstein contends that the trial court erred in finding that the interview questions forms that were destroyed are not public records. As was noted, the committee devised a set of standard questions that were asked of each candidate. The interview question forms also had spaces where the committee members could take notes. Sinclair’s legal department provided
{¶ 55}
{¶ 56} When Silberstein asked for records relating to the academic advisor positions, Sinclair’s legal department said it would release various items. Sinclair also maintained, however, that not all notes of an individual constitute public records. Sinclair cited State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 1993-Ohio-32, as legal authority for its position. In response, Silberstein asked for the notes of all interviewers. When Silberstein subsequently received the records, it would have been obvious that only one interviewer’s notes were included. Nonetheless, Silberstein never commenced a mandamus action to compel production of the records, as authorized by
{¶ 57} Silberstein instead filed his complaint for age and sex discrimination in April 2008. He then filed an amended complaint in January 2009, and added claims for spoliation and for improper destruction of records under
{¶ 58}
{¶ 59} In moving for summary judgment, Sinclair argued that the notes of the committee members were for their own personal use, were not disclosed to others, and are not public records. The trial court concluded that the committee members’ personal notes are not public records under State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, and State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 1993-Ohio-32. Silberstein argues that Cranford and Steffen do not control, because they were decided prior to Kish v. Akron, 109 Ohio St.3d 162,
{¶ 60} In Cranford, the Supreme Court of Ohio considered whether personal notes taken during a predisciplinary conference by the Cleveland City Planning Commission Director are “public records” under
{¶ 61} “Therefore, based on Steffen, * * * [the planning commission director’s] personal notes are not public records subject to disclosure under
{¶ 62} The Supreme Court of Ohio also stressed in Cranford that its decision was
{¶ 63} In Kish, the Supreme Court of Ohio considered the interpretation of
{¶ 64} The court concluded in Kish that because of the broad nature of
{¶ 65} “Indeed, any record that a government actor uses to document the organization, policies, functions, decisions, procedures, operations, or other activities of a public office can be classified reasonably as a record. * * * So can any material upon which a public office could rely in such determinations. * * * The document need not be
{¶ 66} Kish does not deal with personal notes, and does not indicate an intention to change the law previously established by the Supreme Court of Ohio in Cranford and Steffen. In fact, after Kish was decided in March 2006, the Supreme Court of Ohio once again rejected an attempt to obtain personal notes. See State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714. Carr was decided in December 2006, and involves a request for various records, including assessments done in connection with promotional examinations for the City of Akron’s Division of Fire. Id. at ¶1-26. The Supreme Court rejected requests for the assessors’ personal notes, stating that “the assessors’ personal notes are not public records.” Id. at ¶56, citing Cranford, 2004-Ohio-4884, ¶21-22.
{¶ 67} Like the individuals in Cranford and Steffen, the Sinclair committee members took personal notes for their own convenience, and their notes were not used by others. The notes, therefore, are not public records for purposes of
{¶ 68} Accordingly, Silberstein’s Third Assignment of Error is overruled.
V
{¶ 69} All of Silberstein’s assignments of error having been overruled, the judgment of the trial court is Affirmed.
Copies mailed to:
Jeffrey M. Silverstein
Jason P. Matthews
Erika Pearsol-Christie
Brooke E. Leslie
Hon. Barbara P. Gorman