Supreme Court of Ohio Clerk of Court - Filed June 15, Case No IN THE SUPREME COURT OF OHIO

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1 Supreme Court of Ohio Clerk of Court - Filed June 15, Case No IN THE SUPREME COURT OF OHIO SAM HAN, Ph.D., Plaintiff-Appellant vs. UNIVERSITY OF DAYTON, et al., Defendants-Appellees. : : : : : Case No On Appeal from the Montgomery County Court of Appeals, Second Appellate District, Case Number CA APPELLEES MEMORANDUM IN RESPONSE TO APPELLANT S MEMORANDUM IN SUPPORT OF JURISDICTION Sam Han Proceeding Pro Se 2095 Raceway Trail Beavercreek, OH (937) sam@atlantatrial.com Pro Se Plaintiff-Appellant Ana P. Crawford ( ) (Counsel of Record) PORTER WRIGHT MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH (937) /(937) Fax acrawford@porterwright.com Attorney for Defendants-Appellees

2 TABLE OF CONTENTS I. THIS IS NOT A MATTER OF PUBLIC OR GREAT GENERAL INTEREST... 1 II. RELEVANT FACTS AND STATEMENT OF THE CASE... 3 A. Relevant Facts... 3 B. Statement of the Case... 4 III. ARGUMENT IN RESPONSE TO APPELLANT S PROPOSITIONS OF LAW:... 6 A. Appellant s Proposition of Law 1: No Deference Should be Given Under Academic Freedom When Evaluating Breaches of Procedural Requirements in University Faculty Employment Contracts... 6 B. Appellant s Proposition of Law 2: Despite the Deference That Is Normally Given to Academic Institutions, That Deference Does Not Apply When a University is the Movant on Summary Judgment Because All Facts Must be Viewed in Favor of the Non-Movant... 9 IV. CONCLUSION... 11

3 I. THIS IS NOT A MATTER OF PUBLIC OR GREAT GENERAL INTEREST Appellant Sam Han tries to persuade this Court that a decision very personal to him is of public or great general interest. But in fact, it is not. At the heart of this matter is Han contesting the decision of the University of Dayton School of Law ( University ) s Promotion, Retention, and Tenure ( PRT ) committee not to renew his teaching contract a decision the University made based on Han s inadequate record of scholarly publication. By now, Han has challenged this unremarkable employment decision in the Montgomery County Common Pleas Court, the Second District Court of Appeals, the United States District Court for the Southern District of Ohio, the Sixth Circuit, and has sought (unsuccessfully) a writ of certiorari in the United States Supreme Court. While persistent, Han has not been successful in any of these Courts. Han s failure in each of these forums is easily explained. Without any sound legal basis, he is attempting to reverse a well-founded, non-renewal decision that was made well within the University s discretion. It was a decision made only after a careful review of Han s performance, and while Han continues to contest the outcome of that decision, the evidence clearly supports the University s right to make it. Han attempts to characterize the Second District s decision as one of great importance with regard to the boundaries of academic freedom, but in actuality, he is appealing the far more pedestrian decision of whether his individual teaching contract should have been renewed in light of his inadequate record of scholarly publication. Han opens his Memorandum by citing Rehor v. Case Western Univ., 43 Ohio St. 2d 224, 331 N.E.2d 416 (1975) in support of his position that issues concerning tenure are of great public importance. Han Memorandum at 3, 4. But Rehor was substantially different from the present matter. Rehor involved what this Court expressly described as questions of first impression regarding the extent to which universities

4 could retroactively change the retirement age for tenured faculty. Rehor, 43 Ohio St. 2d at 228. The significant, statewide interest in Rehor was reflected by the fact that multiple amici curiae submitted briefs on both sides of that case, including the American Association of University Professors, the Attorney General of Ohio (on behalf of Bowling Green, Central State, Cleveland State, Kent State, Medical College of Ohio at Toledo, Ohio University, University of Toledo, and Youngstown State), and the trustees of Boston University. Id. Here, in contrast, Han stands alone in challenging a routine summary-judgment decision in a teaching contract dispute. The fact that Han had to go back in time forty years to Rehor to dredge up an allegedly comparable (but actually not comparable) case of great general interest only highlights the fact that Han s issues are not of any current statewide interest beyond the parties to his specific teaching contract. While Rehor had broad applicability, the University s specific non-renewal decision in this matter only affects Han. Moreover, Han s Memorandum attempts to refute a standard that was never used by the Second District in issuing its decision. Han conflates the discretion given to universities in their retention and promotion decisions with the summary-judgment standard that courts use pursuant to Rule 56, and appears to argue that the Second District ignored the requirement to construe all facts and inferences against the University as the movant for summary judgment. See Han Mem. at 3. Rather, the aforementioned summary-judgment standard is precisely the standard used by the Second District, as reflected in paragraph 34 of its Opinion. See Han v. Univ. of Dayton, 2 nd Dist. No , 2015-Ohio-346 at 34. As the Court used the proper standard Han is insisting should be used, there is no issue for appeal, and accordingly, no issue of great public importance for this Court to accept. 2

5 In short, there is simply nothing of great public importance to be decided in this matter, and this Court should decline discretionary review of the Second District s well-reasoned decision affirming summary judgment in favor of the University. II. RELEVANT FACTS AND STATEMENT OF THE CASE A. Relevant Facts In 2008, Han was hired by the University to teach at the School of Law under the supervision of Dean Lisa Kloppenberg. Han was employed by the University pursuant to a series of three, 9-month, annually renewable, written agreements. In those agreements, each of which Han signed, Han accepted employment with the University in accordance with a set of detailed evaluation procedures and promotion, retention and tenure criteria including, most notably, a requirement for sufficient scholarly publication as outlined in the University s Faculty Handbook. In the spring of 2011, after Han failed to author any new scholarly publications during the preceding year, and after he failed to demonstrate any improvement in the deficient record of publication previously submitted, Han s PRT Committee and Dean Kloppenberg each came to the conclusion that Han had not demonstrated satisfactory scholarship or the prospect of improving scholarship sufficient to support a retention recommendation. For this reason, Dean Kloppenberg recommended that Han s teaching contract not be renewed. The University concurred and implemented that recommendation in May While Han maintains that the University breached some contract with him, at his own deposition, Han failed to identify any material affirmative statement or omitted disclosure of any material fact made by any Defendant prior to or during the time of Han s employment at the University. Additionally, he failed to identify anything that either might be deemed false or be 3

6 deemed as a clear and unambiguous commitment to perform some obligation by such Defendant that Han might have relied upon to his detriment. B. Statement of the Case This case was commenced by Han in December It was the first of two separate and unsuccessful lawsuits that Han filed regarding the May 2011 decision by University not to renew Han s teaching contract at the Law School. 1 In addition to the University, Han sued in both lawsuits the new Dean of the Law School, Paul McGreal (who was not employed by the University when the decision not to renew Han s teaching contract was made and implemented), and all six members of Han s PRT Committee (these defendants are collectively referred to herein as the University ). Curiously, Han did not sue in either lawsuit former Law School Dean Lisa Kloppenberg, who actually made the final, independent recommendation accepted by the University that Han s teaching contract not be renewed. The University s comprehensive motion for summary judgment in the underlying case was filed in August The University s motion relied upon Han s own deposition testimony, the content of undisputed documents, and other matters Han did not genuinely dispute to establish the University s entitlement to summary judgment on each of Han s claims. In September 2013, Han filed his brief in opposition. But the only affidavit Han submitted in support of his brief was his own, self-serving, 322-paragraph affidavit, which 1 Han s second lawsuit regarding the same subject matter, filed against the exact same Defendants, was filed in the trial court in May 2012, a little more than two months after Han filed his Amended Complaint in this case. That second suit was removed to federal court by Defendants and dismissed by U.S. District Judge Rose. Han v. Univ. of Dayton, No. 3:12-cv- 140, 2012 U.S. Dist. LEXIS (S.D. Ohio Dec. 21, 2012). The Sixth Circuit affirmed the District Court s opinion, and the United States Supreme Court later denied Han s petition for a writ of certiorari regarding that case. Han v. Univ. of Dayton, 541 Fed. Appx. 622, cert. denied (6th Cir. 2013) (U.S. June 2, 2014) (No ). 4

7 essentially parroted the legal and factual conclusions set forth in his amended complaint. Han s affidavit repeatedly asserted that Han disputes various facts and legal conclusions set forth in the University s summary-judgment motion because Defendants facts are incorrect, incomplete, and/or mischaracterize the evidence, but did not contradict the deposition testimony of Han upon which the University relied. In March 2014, the trial court issued its decision granting summary judgment to the University on each of the claims remaining in Han s amended complaint. The trial court found that Defendants were entitled to summary judgment on all counts asserted against them. Han v. Univ. of Dayton, Montgomery C.P. No CV (Mar. 18, 2013). Specifically with regard to the breach of contract claim, the Court stated: Id. at 5. An application of the facts here to the elements of a breach of contract claim discloses that all the elements have not been met. In some regards there is no contract and in other regards there is a lack of performance by the Plaintiff. Further, there is no breach by the Defendants. Based on lack of elements Defendants are entitled to summary judgment on Plaintiff s breach of contract claim. Han appealed the trial court s summary-judgment decision to the Second District, raising three assignments of error (including two assignments of error he has now abandoned in his appeal to this Court). After briefing and oral argument by the parties, the Second District overruled each of Han s assignments of error and affirmed the trial court s decision. Han, supra, 2015-Ohio-346. The Second District determined that: Han s teaching contract was not renewed because the Dean accepted the PRT Committee s finding that he did not produce adequate scholarship to merit continued retention as a professor at UDSL. This is the sole reason relied upon by Dean Kloppenberg when she decided not to renew Han s teaching contract. Id. at 40. 5

8 Moreover, the Second District determined that nothing submitted by Han created a genuine issue of fact precluding summary judgment. Id. at 46. Thereafter, Han filed an application for reconsideration in February 2015, as well as applications for disqualification as to each of the Second District Appellate judges on the panel. Each of these applications for disqualification was subsequently denied by this Court. Han v. Univ. of Dayton et al., Ohio Sup. Ct. Nos. 15-AP-011, 15-AP-012, 15-AP-013 (Mar. 2, 2015). The Second District overruled Han s application for reconsideration, and this appeal followed. Notably, in his appeal to this Court, Han has abandoned multiple arguments that he raised at the Second District. Whereas below Han raised assignments of error concerning his (overruled) Civ.R. 56(F) motion for a continuance, and his (overruled) request for leave to amend his complaint, Han s Propositions of Law do not concern these issues, and relate only to the Second District s affirmance of summary judgment in the University s favor on Han s meritless breachof-contract claim. For the following reasons, however, Han s Propositions of Law lack merit and present no issues of public or great general interest. III. ARGUMENT IN RESPONSE TO APPELLANT S PROPOSITIONS OF LAW A. Appellant s Proposition of Law 1: No Deference Should be Given Under Academic Freedom When Evaluating Breaches of Procedural Requirements in University Faculty Employment Contracts In his First Proposition of Law, Han complains that the Second District was required to construe all of the facts and all of the evidence against the University (the movant on summary judgment). See Han Mem. at 3. But the Second District applied precisely the summaryjudgment standard Han insists it should have used. The Second District s Opinion states: Civ.R. 56 defines the standard to be applied when determining whether a summary judgment should be granted. Summary judgment is proper when the trial court finds: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable 6

9 minds can come to but one conclusion, and that conclusion is adverse to the party against whom the Motion for Summary Judgment is made, who is entitled to have the evidence construed most strongly in his favor. Han, supra, 2015-Ohio-346 at 34 (emphasis added; internal citation omitted). Despite the Second District s application of the very summary-judgment standard Han implores should be used, he still contends (without any basis) that the Second District acted improperly. Han conflates the summary-judgment standard that courts apply under Rule 56 with the deference given to universities to make their own decisions in academic employment situations. This deference is not an evidentiary standard; rather, it prevents courts from acting as superreview committees to second-guess the employment decisions of universities or force them to justify their decision-making process. The Second District understood this when it stated in its opinion that Han cannot compel this Court to sit as a second review committee to decide if UDSL should have retained him, despite the PRT committee and the Dean s conclusion that his record of scholarship was insufficient for retention pursuant to the university s standards. Han, supra, 2015-Ohio-346 at 40. Courts in Ohio appropriately tread lightly when reviewing faculty employment decisions, especially in the area of academia. Ohio Univ. v. Ohio Civ. Rights Comm., 175 Ohio App.3d 414, 2008-Ohio-1034, 887 N.E.2d 403, at 93. This controlling principle of judicial deference to academic decision-making is not just a matter of Ohio law. See, e.g., Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir. 1980) (courts should not intrude on institutions decisions regarding tenure; determinations about teaching ability, research scholarship, and professional stature are subjective and must be left for evaluation by the professionals), and Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 598, 777 A.2d 418, 434 (Pa. 2001) 7

10 (tenured professor terminated for misconduct is not entitled to a review of the merits of his termination when the faculty handbook provided a means of review). Indeed, the principle of judicial deference to academic decision-making in matters of faculty retention and tenure is virtually universal. It would seem that nearly all courts share the belief that because tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally, judges are and ought to be reluctant to review the merits of a tenure decision. Zahorik v. Cornell Univ., 729 F.2d 85, 92, 93 (2d Cir. 1984). As the Superior Court of Pennsylvania observed: [I]t is not the place of this Court to second-guess academic decisions and judgments made in colleges and universities of this Commonwealth. We are not now and will never be experts in each and every academic field open to scholarly pursuit. We are extremely cognizant that [a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself. As a result, our Court abides by a general policy of nonintervention in purely academic matters. Swartley v. Hoffner, 1999 Pa.Super. 168, 734 A.2d 915, 921 (PA.App. 1999) (emphasis added; quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985). Because of the nature of academia, courts are generally not qualified to review and substitute their judgment for the discretionary judgments of professional experts on faculty promotions. Nor can courts engage independently in an intelligent, informal comparison of the scholarly contributions or teaching talents of one faculty member denied promotion with those of another faculty member granted a promotion. In short, courts may not engage in secondguessing the University s authorities in connection with faculty promotions or non-retention 8

11 decisions, particularly when the University acts in compliance with the procedures that it contractually agreed to with faculty. Clark v. Whiting, 607 F.2d 634, 640 (4th Cir. 1979). Ultimately, this deference to academia is made for gray-area decisions on scholarship, performance, etc. that the Court should not be able to second-guess. But this is exactly what Han is asking this Court (and has asked numerous other courts) to do. He continues to question the discretionary decision by the University not to renew his contract, but he has been unable (and cannot) show any contractual breaches made by the University in connection with that decision. Because Han conflates two very different types of standards, his First Proposition of Law lacks merit, there is no real issue for appeal, and this Court should decline to review the Second District s well-reasoned decision in this matter. B. Appellant s Proposition of Law 2: Despite the Deference That Is Normally Given to Academic Institutions, That Deference Does Not Apply When a University is the Movant on Summary Judgment Because All Facts Must be Viewed in Favor of the Non-Movant. In a manner similar to Han s First Proposition of Law, Han s Second Proposition also fails because again he conflates the summary-judgment standard with the deference given to academic institutions on matters within their special expertise. Han erects a straw-man argument because there is no holding in the Second District s Opinion that requires any special deference be afforded to universities on summary judgment in cases involving academic decisions regarding teaching contracts. Indeed, the only time the word deference appears in the Second District s Opinion is where the court (correctly) stated that, in reviewing the trial court s summary-judgment decision in favor of the University, the court of appeals would give the trial court s decision no deference at all. Han, supra, 2015-Ohio-346 at 33. As stated above, the deference afforded to universities in connection with faculty promotion and retention allows universities to make appropriately discretionary decisions with 9

12 regard to hiring and firing and is not an evidentiary standard. Here, the Second District clearly applied the proper summary-judgment standard when evaluating the evidence presented by the University in its Rule 56 motion. Further, in connection with his Second Proposition of Law, Han implies that the Second District failed to review the contracts between Han and the University and the related claims. See Han Mem. at This is simply not true. The Second District reviewed Han s claim for breach of contract thoroughly. In fact, the Second District excerpted relevant portions of Han s teaching contract in its decision. Han, supra, 2015-Ohio-346 at 39. The court of appeals fully considered Han s breach-of-contract arguments in turn, but found each to be lacking for various reasons, including the following: (1) terms identified by Han did not act to create an independent [contractual] obligation separate from the procedures imposed (Id. at 38); (2) the University substantially complied with the terms of Han s teaching contract and its own internal policies (Id. at 40); (3) Han failed to support his assertions with evidence of a breach of contract (Id. at 41); and (4) the assertions of breaches by Han had no bearing on the proceedings in any substantive manner (Id. at 44). For these reasons, the Second District properly concluded that the evidence submitted by Han did not create any genuine issue of fact precluding summary judgment. In sum, the Second District thoroughly reviewed Han s evidence under the proper summary-judgment standard. There simply is no issue of public or great general interest 10

13 meriting further appeal, and this Court should not allow a discretionary appeal of the Second District s decision in this matter. IV. CONCLUSION For all the foregoing reasons, Appellees respectfully ask this Court to deny Appellant s request for discretionary review. Respectfully submitted, /s/ Ana P. Crawford Ana P. Crawford ( ) PORTER WRIGHT MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH (937) /(937) Fax acrawford@porterwright.com Attorney for Defendants-Appellees CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing was served via regular mail, this 15th day of June 2015, upon: Sam S. Han 2095 Raceway Trail Beavercreek, OH Pro Se Plaintiff-Appellant /s/ Ana P. Crawford Ana P. Crawford 11