The OSU is one of the state’s largest employers and, as a result, is a frequent target of lawsuits, which sometimes are found to have merit. Here’s just two from this calendar year. In the most recent, the Sixth Circuit affirmed OSU’s judgment on a failure to promote claim. In the second, the Court reversed OSU’s judgment on a Title VII claim brought by a Ph.D student.
In August, a divided Sixth Circuit reversed OSU’s summary
judgment and a professor’s jury verdict on claims that the professor had sexually
harassed and retaliated against a Ph.D student/Graduate Fellow, finding that
she could be an employee protected by Title VII, that her physical pushing him
away was protected conduct and that evidence was improperly excluded from trial
that could have possibly help to rebut some of the professor’s defenses. Huang v.
OSU, No. 23-3469 (6th
Cir. 8/28/24). She blamed her advisors for her initially failing
her exam by unanimous vote of the committee and did not tell anyone about the
alleged harassment until after she failed her Ph.D examination. The dissent noted that she had failed to
raise arguments before the trial court, and thus, waived her right to challenge
certain rulings on appeal. Moreover, some of the evidence actually was
submitted to the jury, which still found in favor of the professor. The case is very fact specific and there were
no corroborating witnesses to her allegations of physical touching, but several witnesses
supported the professor’s defenses.
In October, the Sixth Circuit affirmed OSU’s summary
judgment on a race discrimination claim where the plaintiff nurse had been
rejected 89 times for promotion to an APP position and the hospital allegedly
only employed two black nurses in that position. Solis v.
OSU Wexner Medical Center, No. 24-3230 (6th Cir.
10/25/24). The APP position generally required an advance
degree and the hiring manager had advised her to obtain acute care experience
if she wanted to be promoted. Nonetheless,
she never sought or obtained that experience or an advanced nursing degree,
although she did obtain NP certification in family medicine. She only challenged not being hired for one
of the positions, which was given to a white male who had recently graduated with
his masters nursing degree and had substantial and recent acute care experience
and with LVADs (which would be regularly required in that department and which
she lacked).
Although she alleged a prima facie case, she failed to
produce evidence that the explanation for her non-hiring was pretextual. She could not create a disputed issue of material
fact by simply subjectively asserting that the hiring manager was not credible.
The court rejected her challenge to OSU’s reliance on his
LVAD experience and graduation when it was not mentioned in the job description
and she was not asked about it in any interview.
An employer is not “rigidly bound
by the language in a job description.” .
. . Nor does Title VII “diminish lawful
traditional management prerogatives in choosing among qualified candidates.” . . . Here, Wexner was free to consider candidates’
LVAD experience as a factor external to its posted job description when
selecting among suitable applicants. . .
. [his] duties as a nurse attending to patients with acute-care needs required
a more advanced understanding of LVADs because of the patients’ unstable
conditions. [She] lacked this knowledge. Her patients generally did not require
acute care, so she had less experience with LVADs. OSU was permitted to weigh [his]
LVAD-specific background in his favor when deciding whom to hire. . . .
The Court also rejected her argument that OSU’s explanation “shifted”
to only later mention the LVAD experience:
The record reveals that Wexner has
consistently noted [his] significant experience in acute care as a rationale
for preferring [him] over [her]. And during this litigation, the hospital has
clarified that [his] prior job as an acute care nurse required specific,
advanced LVAD use that [hers] did not see day-to-day as a staff nurse.
Moreover, [the manager] offered additional insight into why he hired [him] over
[her] that in no way contradicts the hospital’s prior justifications. As
previously noted, [the manager], in a sworn deposition, stated that he
preferred recent graduates because they have hands-on experience and strong
muscle memory from recent rotations that can be applied to the APP job
immediately. That additional reason does not constitute a “shifting
justification” giving rise to pretext. Wexner did not abandon its initial
hiring justification in lieu of another conflicting reason. Instead, it gave
additional, permissible explanations for why Wade was the superior applicant.
The Court also rejected her argument that the interviewers’
subjective evaluations of the candidates was discriminatory. “Proof an employer used subjective criteria
does not, without more, establish pretext.”
While we agree that the hospital
used some subjective criteria in its candidate evaluation process, doing so
does not demonstrate pretext. An employer may consider subjective factors like
attitude, self-confidence, teamwork, and other nondiscriminatory criteria in
its evaluation process. . . . . And in
fact, the job description put applicants on notice that these factors would be
considered. More still, it is not within the court’s purview to investigate how
[the manager] weighed candidates’ subjective qualities such as “teamwork” and
“customer focused”, . . . , when making
the ultimate hiring decision. . . . .
The law does not require Wexner to make a perfect decision, nor does it forbid
the hospital from making decisions that [she] disagrees with. . . . [She]
may oppose the interviewers’ ultimate conclusions about how she faired
throughout the interview process, but without more, she has not shown that
Wexner acted with a discriminatory motive when placing secondary value on
certain subjective qualities.
The Court also rejected her statistical evidence. First, her expert relied on the number of qualified
black applicants nationwide instead of in Central Ohio, which was the relevant
labor market. Secondly, OSU apparently
contended that it did not keep track of the race of its employees or require
them to disclose their race, calling into question the number of black APP
nurses it employed.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
