Maseru v. University Of Cincinnati

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

NOBLE MASERU, : Case No, 1:18-cv-106

Plaintiff, Judge Matthew W. McFarland

UNIVERSITY OF CINCINNATI,

Defendant.

ORDER DENYING DEFENDANT UNIVERSITY OF CINCINNATI'S

MOTION FOR SUMMARY JUDGMENT (Doc. 56)

This case is before the Court on Defendant University of Cincinnati's Motion for

Summary Judgment (Doc. 56), which is fully briefed and ripe for review (see Docs. 64,

68). As discussed below, genuine issues of material fact preclude summary judgment.

Accordingly, Defendant's motion is DENIED.

FACTS

This lawsuit stems from the University of Cincinnati's (“UC”) decision to not

hire Plaintiff Dr. Noble Maseru for an Associate Professor position in UC’s Department

of Environmental Health - Division of Public Health Policy Services and Management.

Dr. Maseru, an African American male, argues that he was discriminated against based

on his race and gender.

Prior to applying for the position in 2016, Dr. Maseru had over 30 years of

experience in the field of public health. He obtained a Bachelor of Science degree from

Wayne State University in 1979, a Master's degree in Public Health from Emory

University School of Medicine in 1981, and a Doctorate in Health Policy from Atlanta

University in 1989. In 1994, Dr. Maseru became the Founding Director of the

Morehouse School of Medicine’s Master of Public Health Program, where he also

served as a member of the faculty. In November 2005, Dr. Maseru was hired as the

Health Commissioner for the City of Cincinnati’s Health Department. He served in this

role for over ten years until his retirement in June 2016. During this time, Dr. Maseru

was a volunteer professor at UC and an adjunct Associate Professor at Wright State.

At UC, Dr. Maseru helped teach one component of the Master of Public

Administration (MPA) program, one component for the medical school, and

contributed to two courses at the school of nursing. For each of these courses, Dr.

Maseru would help teach one day of classes per semester. Dr. Maseru also served on

the Curriculum Committee for UC’s nursing school and, in 2006 or 2007, was a member

of various committees that helped develop the curriculum and syllabi for UC’s newly

formed Master of Public Health (MPH) program. Moreover, Dr. Maseru had previously

been appointed by UC’s President to serve on a committee to address the historic

underrepresentation of certain populations at UC. As a volunteer, Dr. Maseru was not

paid by UC for his time.

In late 2015, UC posted a position for an Associate/ Assistant Professor of Health

Policy Management in its Environmental Health Department. The job requirements

indicated that the successful candidate would have a strong record of scholarship,

funded research, excellence in teaching and advising, and service in the area of public

health. Experience in administration of a graduate program was “highly valued.” (Doc.

64-1 at § 15.) A search committee was formed to fill the positions, and Dr. Jun Ying was

appointed to chair the committee. The search committee further consisted of (1) Dr.

Glenn Talaska, (2) Dr. Aimin Chen, (3) Dr. Barbara Tobias, (4) Dr. Lenisa Chang, and (5)

Dr. Judy VanGinkel (the only non-University individual on the committee).

Having recently retired as Health Commissioner, and interested in continuing to

work full time in academia, Dr. Maseru applied. A few days after applying, Dr. Maseru

met with the committee chair, Dr. Ying for lunch. (Doc. 52 at 4.) At lunch, Dr. Ying

shared that he anticipated Dr. Maseru would do a presentation on an area of his choice

for the search committee. (Doc. 52 at 27.)

The committee reviewed applications in waves. The first wave had only one

applicant. The second wave consisted of six applicants, including Dr. Maseru and the

successful candidate, Dr. Jason Turner. For the six candidates in the second wave, the

committee predetermined that only three would receive Skype interviews.

The application review process was as follows. Dr. Ying sent the applications

and blank scoring sheets to the search committee members for review. Each applicant

was assigned scores over numerous criteria. Specifically, two of those scoring criteria

are central to this dispute. One score was a recommendation as to whether the

applicant should be (1) interviewed, (2) placed on a wait list, or (3) not interviewed.

The other score was an “overall rank” reflected on a scale of 0-10. A score of 0

represented a poor applicant, a score of 10 denoted an excellent applicant.

While Dr. Ying requested that every committee member provide a score for each

applicant, it was not mandatory. Dr. Ying would follow up with the committee

members if he did not receive a score sheet for a particular applicant. However, if the

committee member still had not provided a score sheet for a particular applicant, Dr.

Ying considered it an absent vote. Absent votes were not counted as “zeros” and thus

had no negative impact on an applicant's average score. Dr. Ying testified that the

primary measurement in deciding who would be selected for an interview was the

overall score.

Once the score sheet submission deadline passed, Dr. Ying was responsible for

calculating the average score for each individual “based on the score sheets he

received.” (Doc. 55 at 814.) The top three candidates for wave two were Dr. Jason

Turner (average score of 8.25), Dr. Daniel Bergan (average score of 7.5), and Dr.

Xiaoxing He (average score of 6). (Doc. 55 at 815-17.) Dr. Maseru scored a 5.5 and was

not one of the top three candidates.! Drs. Turner and Bergan are Caucasian. Dr. Ying

calculated these scores on his own and there was never a meeting to discuss the scoring

process. Once Dr. Ying averaged the scores, he informed the committee that Drs.

Turner, Bergan, and He would be offered an interview. Ifa second wave candidate did

not make the top three scores, he or she was no longer considered. Consequently, when

Dr. Maseru emailed to check on the status of his application, Dr. Ying responded that

! Dr. Maseru’s original overall score was a 4.67. UC concedes, however, that this score did not include a

favorable rating of Dr. Maseru from one of the committee members. Dr. Talaska had assigned plaintiff a

ranking of 8 and emailed his scoring sheet to Dr. Ying. As he would later testify, Dr. Ying did not see the

email and, therefore, the score of 8 was not originally used when calculating Dr. Maseru’s overall score.

(Doc. 55 at 815-17). When the score of 8 is included in the ranking, Dr. Maseru’s overall score increases to

5.5. UC contends that this would still not have placed Dr. Maseru in the top three applicants. Dr. Maseru

argues that it would.

the search committee had decided not to move forward with his candidacy.

After the second wave of scoring, committee members complained to Dr. Ying

that the scoring sheets were too complicated and time consuming. So, for the third

wave of applicants, the scoring process was altered: instead of having committee

members review applicants, Dr. Ying assumed sole responsibility. After Dr. Ying

scored applicants himself, he would notify the committee of the individuals he believed

were the top three candidates. Dr. Ying recommended that Drs. Jamie Jenkins, David

Chin, and Zhou Chen be offered interviews. Dr. Jenkins is an African American

female.? Prior to the Skype interview, Dr. He—one of the top three candidates from the

second wave — withdrew his name from consideration. Dr. Ying recommended that the

vacant interview slot be filled by Dr. Basia Andraka-Christou. She had recently

applied, and Dr. Ying forwarded her application to the committee to determine whether

they agreed to interview her. Dr. Maseru was not considered to fill the interview spot.

Dr. Christou is a Caucasian female.

Ultimately, Dr. Turner was hired for the Associate Professor position. Dr. Turner

was working as an Assistant Professor in the Department of Health Management and

Policy at St. Louis University, where he taught graduate level courses and served as the

Director of the Master of Health Administration Program. Dr. Turner also had eighteen

peer-reviewed manuscripts and three peer-reviewed book chapters. The Assistant

2 Dr. Maseru argues that although Dr. Jenkins “identifies as African American,” jurors could conclude

that Dr. Ying only gave her an overall rating of “6” and recommended her for an interview in an attempt

to avoid the appearance of discrimination against Dr. Maseru. UC did not respond to this argument and,

in fact, never mentions Dr. Jenkins in its briefings.

Professor position was never filled. Although UC offered it to Dr. Christou, she

ultimately declined.

On September 26, 2017, Dr. Maseru completed an intake questionnaire for the

Equal Employment Opportunity Commission, which eventually developed into the

present lawsuit.

LEGAL STANDARD

Courts must grant summary judgment if the record “reveals that there is no

genuine issue as to any material fact and the moving party is entitled to a judgment as a

matter of law.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Fed.

R. Civ. P. 56(c)). Once the movant has met its initial burden of showing that no genuine

issue of material fact remains, the nonmoving party must present “specific facts

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,, 477 U.S.

242, 248 (1986). To do so, they must present “significant probative evidence ... on which

a reasonable jury could return a verdict” in their favor. Chappell v. City of Cleveland, 585

F.3d 901, 913 (6th Cir. 2009). The court “must view the facts and any inferences that can

be drawn from those facts . . . in the light most favorable to the nonmoving

party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.2007). The court

should not resolve factual disputes by weighing conflicting evidence; it is the jury’s role

to assess the probative value of the evidence. Anderson, 477 U.S. at 249.

ANALYSIS

Dr. Maseru argues that UC discriminated against him on the basis of race and

gender. Each argument is assessed in turn below.

I. Race Discrimination

A plaintiff can prove a claim for discrimination by using either direct or

circumstantial evidence. Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013); see

also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). Since Dr. Maseru

concedes there is no direct evidence of discrimination, he must rely on circumstantial

evidence. (Doc. 50 at 230-232.) As such, the court must follow the familiar McDonnell

Douglas burden shifting framework. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th

Cir. 2015). Under this three-step analysis, a plaintiff must first show a prima facie case

of discrimination. If plaintiff can do so, then the defendant must articulate a legitimate,

nondiscriminatory reason for its action. If defendant does, then plaintiff must “prove

that the given reason is pretext for discrimination.” Ford Motor, 782 F.3d at 767. If

plaintiff cannot, summary judgment is appropriate.

A. Failure to Hire

At the outset, the Court notes that its failure to hire analysis is limited only to the

Associate Professor position and does not include an analysis of the Assistant Professor

position. In his opposition to the present motion, Dr. Maseru newly alleges that he was

discriminated against not only for the Associate Professor position, but also the

Assistant Professor position that was ultimately offered to, but declined by, Dr.

Christou. Principally, Dr. Maseru asks the Court to weigh and pass judgment on his

qualifications as compared to those of Dr. Christou. Dr. Maseru’s arguments are

without merit for two reasons.

First, Dr. Maseru’s Complaint alleged he was discriminated against only with

respect to UC’s selection of an Associate Professor. Dr. Maseru cannot assert a new

claim for the first time in opposition to a motion for summary judgment. See, e.g.,

Tucker v. Union of Needletrades, Industrial and Textile Employees, 407 F.3d 784, 788 (6th Cir,

2005) (“a non-moving party plaintiff may not raise a new legal claim for the first time in

response to the opposing party’s summary judgment motion. At the summary

judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend

the complaint.”) (citing Federal Practice and Procedure § 2723 (3d ed. Supp. 2005)); see

also Spengler v. Worthington Cylinders, 514 F.Supp.2d 1011, 1017 (S.D. Ohio 2007) (“a

plaintiff may not defeat summary judgment by asserting a claim that he did not plead

in the complaint.”).

Second, even if it was procedurally proper, Dr. Maseru’s argument fails as a

matter of law. Although the record is unclear as to how UC intended to fill the

Assistant Professor position, there is no evidence that Dr. Maseru applied for that

position. (Doc. 50-1 at 295.) Furthermore, the Assistant Professorship was never filled

by UC. And as Dr. Maseru himself notes, the relevant standard requires that after

rejection, “the position remained open and other similarly qualified individuals who

were not members of the protected class were hired.” McDonnell Douglas, 411 U.S. at 802.

(emphasis added); see also, White v. Columbus Metro. Hous, Auth., 429 F.3d 232, 240 (6th

Cir, 2005). Therefore, because no candidate was ever hired for the Assistant Professor

position, Dr. Maseru is unable to assert a viable “failure to hire” claim for that position.

Accordingly, the Court confines its analysis to the Associate Professor position, which

was filled by Dr. Turner.

1. Plaintiff’s Prima Facie Case

To establish a prima facie case for failure to hire, Dr. Maseru must demonstrate

that he: (1) is a member of a protected class; (2) applied for a job and did not receive it;

(3) was qualified for the job; and (4) was rejected in favor of a similarly situated

applicant outside his protected class, or was otherwise treated differently than such

applicant. Jenkins v. Foot Locker Inc., 598 Fed. Appx. 346, 349 (6th Cir. 2015).

UC concedes for purposes of this motion that Dr. Maseru satisfies the first three

elements. UC nevertheless contends that it is entitled to summary judgment because

Dr. Maseru cannot prove the fourth element of his prima facie case. UC does not

dispute that Dr. Turner—the successful applicant —is a Caucasian and thus outside of

the protected class. Instead, UC argues that because Dr. Maseru and Dr. Turner have

different experiences and qualifications, they are not similarly situated. This argument

fails since the standard for establishing a prima facie claim is not onerous.

As Dr. Maseru notes, at the prima facie stage, courts should compare the

qualifications of two applicants in very general terms, leaving the more rigorous

analysis for the later stages of the McDonnell Douglas framework. Philbrick v. Holder, 583

Fed. Appx. 478, 484 (6th Cir. 2014). And here, UC’s in-depth, side-by-side examination

of Dr. Turner’s and Dr. Maseru’s credentials is more relevant to the issue of pretext,

rather than whether the applicants were similarly situated. While the two applicants

indeed have different qualifications and strengths, they were both evaluated in the

same wave of applications and, as outlined further below, had similar qualifications.

Dr. Maseru has thus demonstrated a prima facie case of racial discrimination.

2. Defendant's Legitimate, Non-Discriminatory Explanation

The burden now shifts to UC to articulate a legitimate, nondiscriminatory reason

for its hiring decision. UC submits that Dr. Maseru was not interviewed or hired

simply because he was not ranked among the top three candidates. The primary reason

for this was because UC determined that Dr. Maseru had a “poor record” of academic

research, publications, teaching, and administrative experience. (Doc. 68 at 11.)

Furthermore, the Associate Professor position was primarily academic. And, unlike Dr.

Maseru, Dr. Turner had a strong academic background. He also had prior experience in

administration of an academic program which UC “highly valued.” (Doc. 64-1 at | 15.)

UC has thus proffered a legitimate, nondiscriminatory reason for its hiring decision.

3. Pretext

The final step in the McDonnell-Douglas framework requires Dr. Maseru to

demonstrate that UC’s nondiscriminatory explanation is pretextual. A plaintiff can

demonstrate pretext by showing that the employer's legitimate, nondiscriminatory

reason (1) has no basis in fact, (2) did not actually motivate the employer's decision, or

(3) was insufficient to warrant the decision. Kumar v. Aldrich Chemical Co., 911

F.Supp.2d 571, 585 (S.D. Ohio 2012); see also Loyd v. St. Joseph Mercy Oakland, 766 F.3d

580, 590 (6th Cir. 2014). A plaintiff need only rebut— not disprove—defendant’s

rationale. Shazor v. Prof’! Transit Mgmt., 744 F.3d 948, 957 (6th Cir. 2014). A plaintiff

satisfies this burden by adducing evidence by which a “jury could reasonably reject [the

employer's] explanation.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).

For two main reasons, Dr. Maseru has raised material questions of fact upon

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which a reasonable juror could conclude that UC’s nondiscriminatory reason is

pretextual. First, Dr. Maseru cites evidence that the scoring matrix used during the

interview process was “manipulated” by Dr. Ying. Second, a reasonable juror could

find that UC’s hiring decision was pretextual under the “relative qualifications” test.

Each argument is assessed in further detail below.

(i) Scoring Matrix

Much of this dispute centers around the scoring matrix that Dr. Ying and the

hiring committee used to determine which applicants would receive an interview.

More specifically, the parties disagree on how the scoring matrix operated. (Doc. 64,

Proposed Statement of Undisputed Facts.) UC argues that Dr. Maseru was not hired

simply because he was not one of the top three applicants in the second wave; the

committee had pre-determined it would only interview the top three applicants, yet Dr.

Maseru ranked fourth. UC thus argues that the scoring matrix was the true motivation

for its hiring decision not discrimination.

Dr. Maseru views the evidence differently. He contends that the true reason he

was not ranked amongst the top three applicants is because Dr. Ying discriminated

against him as an African-American. Specifically, Dr. Maseru argues that applicant

rankings were “manipulated” by Dr. Ying. Dr. Maseru’s argument is three-fold. First,

Dr. Ying did not include Dr. Talaska’s favorable ranking of 8 when calculating Dr.

Maseru’s overall score. As UC admits, this resulted in a score of 4.67, when Dr.

Maseru’s true score should have been a 5.5. Second, Dr. Ying further ignored another

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committee member’s positive feedback when calculating Dr. Maseru’s score.* Third,

Dr. Maseru contends that Dr. Ying artificially increased Dr. Bergan’s overall score to

ensure that he was amongst the top three applicants. Dr. Ying disregarded a committee

member's suggestion that Dr. Bergan was not even qualified for an interview and,

instead, calculated his score of 7.5 based on only two rankings provided by other

committee members.* If Dr. Ying had factored in the negative comment, Dr. Bergan

would not have been amongst the top three candidates.

In other words, Dr. Maseru asserts that Dr. Ying excluded negative comments of

other applicants —and thereby inflated those applicant's overall score — yet

simultaneously excluded favorable rankings and comments regarding Dr. Maseru.

Taken together, Dr. Maseru argues that these unilateral actions by Dr. Ying prevented

him from securing a spot among the top three candidates. Dr. Maseru produces a

hypothetical chart to demonstrate that, if Dr. Ying had considered these additional

factors, Dr. Maseru would have ranked third and thus qualified for an interview. (Doc.

64 at 14.) If Dr. Maseru’s view of the evidence is accepted, a reasonable juror could find

that UC’s nondiscriminatory reason “is not based in fact” and “did not actually

motivate [UC’s] decision.” Kumar, 911 F.Supp.2d at 585.

On this point, Dunlap v. Tennessee Valley Authority, 519 F.3d 626 (6th Cir. 2008) is

3 Dr. Chang noted that Dr. Maseru “has a lot of positives” and that he “can be a great resource for

teaching / mentoring as he knows the area and the university very well.” (Doc. 51-1 at 552.) Dr. Maseru

contends that these comments were not factored into his overall score. (Doc. 55-1 at 866-67.)

4 While Dr. Chen provided a scoring sheet for Dr. Bergan, he did not provide an overall rank. In the

comments, Dr. Chen noted that Dr. Bergan was not even qualified for an interview. (Doc. 52 at 17) (Doc.

51-1 at 543.)

12

instructive. There, the TVA’s hiring committee predetermined that it would only

consider the top ten applicants based on an objective set of scoring criterion. Id. at 631.

An African American applicant sued, arguing that the TVA subsequently altered its

hiring matrix to exclude racial minorities. Id. at 628. In response to plaintiff's claims,

the TVA offered an identical nondiscriminatory reason as the one here: plaintiff simply

did not score high enough on the scoring matrix to move forward in the hiring process.

Id. Plaintiff, however, presented evidence that the scoring matrix had been changed in

contravention of TVA policy, scores varied greatly, and that even the scores of

individual applicants were altered to produce a racially biased result. Id. The court

agreed and found that the TVA’s proffered reason was pretextual. Id.

The same result in Dunlap could follow here. First, it is undisputed that UC

changed its scoring process after the second wave of applicants. And, as discussed

later, Dr. Maseru has also indicated that Dr. Ying and the hiring committee may have

failed to follow UC’s Recruitment and Search Guide (“Recruitment Guide”) (Doc. 51-1

at 468.). Second, a reasonable juror could find that, while applicants were indeed

assigned objective overall scores, those scores did not accurately reflect the

qualifications of the applicants. As Dr. Maseru notes, Dr. Ying gave him a low score of

3 but gave higher scores to admittedly unqualified candidates. For example, Dr. Ying

gave Dr. Jenkins an overall score of 6. (Doc. 64 at 18.) Yet after her interview, the entire

committee agreed that she was unqualified. (Id.) As in Dunlap, a reasonable juror could

thus find that the 0 - 10 score given to each applicant was not actually based in fact or

grounded in actual qualifications but was instead influenced by bias or discrimination.

is

Dunlap, 519 F.3d at 631-32. Third, a reasonable juror could find that Dr. Ying’s control

over the calculation process which gave him the ability to ignore certain comments or

manipulate how the top three scores were formulated — was the actual reason why Dr.

Maseru was not ranked amongst the top three applicants. While Dr. Ying testified that

the overall 0 - 10 score was the “primary measure” he used in deciding who would

receive an interview, Dr. Maseru has presented evidence indicating that Dr. Ying may

have altered applicants’ scores in order to produce a racially biased result. Just as in

Dunlap, a reasonable juror could find that UC’s proffered reason is pretextual. See also,

e.g., Lam v. University of Hawai’, 40 F.3d 1551, 1560 (9th Cir. 1994) (noting that even a

single person's bias may be influential in a hiring decision, especially when that person

plays a significant role in the selection process) (citing Guizwiller v. Fenik, 860 F.2d 1317,

1327 (6th Cir. 1988)); see also Stein v. Kent State University, WL 357752 at *9 (6th Cir. May

11, 1999) (“discrimination at any stage of the academic hiring [] process may infect the

ultimate employment decision.”).

UC’s argument in response is unavailing. UC contends that Dr. Ying simply

followed predetermined hiring protocols that were applied equally to all applicants,

regardless of race. However, as discussed above, reasonable jurors could find that it

was not predetermined, neutral criterion that produced the top three applicants, but

rather, Dr. Ying’s sole determination of what scores and comments would be factored in

and what scores and comments would be ignored. Moreover, the evidentiary record in

this case does little to aid UC’s argument. The various exhibits, score sheets, and

deposition transcripts cited by both parties leave many crucial points unanswered.

14

Notably, Exhibit 24 is disorganized and is unclear on what committee members scored

the second wave applicants or even what scores were assigned to each applicant.

Although Dr. Ying used the overall score as the primary measure, the record is silent as

to whether Dr. Ying was precluded from considering other comments and scores or not

when calculating the top three applicants. And Dr. Ying’s deposition testimony does

little to clear up the ambiguity. (Doc. 55 at 814 - 817.) In other words, the parties have

fundamentally different understandings of how the scoring matrix operated, how an

applicant’s average score should have been calculated, and whether Dr. Maseru could

have been amongst the top three applicants or not.

Consequently, Dr. Maseru has pointed to evidence in the record sufficient to

raise a dispute of material fact as to pretext. For the reasons above, a reasonable juror

could conclude that UC’s nondiscriminatory reason— Dr. Maseru’s ranking as

calculated under the scoring matrix is “not based in fact” or “did not actually

motivate [UC’s] decision.” Kumar, 911 F.Supp.2d at 585.

(ii) Relative Qualifications of Dr. Maseru and Dr. Turner

Here, even assuming that the scoring matrix was insufficient to meet his burden,

Dr. Maseru has identified additional facts upon which a reasonable juror could

independently find pretext. The Sixth Circuit has held that, in failure to hire claims, the

relative qualifications of the applicants can establish a triable issue of fact as to pretext.

Bartlett v. Gates, 421 Fed. Appx. 485, 490-91 (6th Cir. 2010). Under this “relative-

qualifications test,” to escape summary judgment, a plaintiff must produce evidence

demonstrating that he was either (1) the “plainly superior candidate, such that no

15

reasonable employer would have chosen” the other applicant, or (2) “as qualified [,] if

not better qualified” than the successful applicant, and the record contains “other

probative evidence of discrimination.” Id. (citations omitted); see also Romano v. Hudson

City Sch. Dist., 772 Fed. Appx. 258, 266 (6th Cir. 2019). Here, the parties center their

arguments around the second mode of proof.

UC contends that while Dr. Maseru may have been qualified, Dr. Turner’s

qualifications were significantly better. UC argues that Dr. Turner’s experience

managing a graduate program was “highly valued” and clearly distinguished him from

Dr. Maseru, who had “no proof of teaching experience” and a “poor record of academic

research and publications, teaching, and administrative experience.” (Doc. 68 at 11.)

According to UC, no reasonable juror could find that Dr. Maseru was “as qualified” as

Dr. Turner. Yet, as discussed below, UC understates Dr. Maseru’s prior academic

experience — both in teaching and in the “highly valued” enterprise of program

administration.

At the outset, the Court notes that it must avoid “acting as a ‘super personnel

department,’ overseeing and second-guessing employers’ business decisions.” Bender v.

Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006) (citations omitted). But even under

such limited consideration, the record indicates that a reasonable juror could find that

Dr. Maseru was “as qualified” as Dr. Turner.

First, a reasonable juror could conclude that Dr. Maseru and Dr. Turner had

similar experience in academic management. Dr. Maseru not only had the “highly

valued” experience of managing a graduate program, but he was also the Founding

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Director of the MPH program at Morehouse College of Medicine. (Doc. 51-1 at p. 303.)

Moreover, Dr. Maseru helped create and structure the curriculum of UC’s own MPH

Program. In comparison, Dr. Turner was the director of a similar program at St. Louis

University. Second, a reasonable juror could conclude that Dr. Maseru and Dr. Turner

had at least comparable teaching experience. Indeed, Dr. Turner's teaching experience

is impressive, as he had previously been an Assistant Professor at St. Louis University

where he also taught graduate courses. But contrary to UC’s assertions, Dr. Maseru

also has extensive teaching experience. As outlined in his CV, Dr. Maseru was a

volunteer Associate Professor at UC for eight years, an Adjunct Associate Professor at

four different universities, a visiting professor at St. George’s School of Medicine, and a

visiting lecturer at the University of Michigan. (Doc 51-1 at p. 310-313.) Third, a

reasonable juror could conclude that Dr. Maseru’s service in the area of public health

made him as qualified as Dr. Turner. The job listing for the Associate Professor position

included an emphasis on “service in the area of public health.” (Doc. 56 at 2.) While the

record does not detail Dr. Turner’s service in the area of public health, Dr. Maseru was

the Health Commissioner for the Cincinnati Health Department for over ten years and

was certified at the highest level for public health preparedness. (Doc. 50 at p. 185.)

The Court does not suggest that Dr. Maseru should have been hired for the

position. Nor does the Court intend to suggest that Dr. Turner is not qualified for the

position. But the relevant legal analysis requires that the Court evaluate whether Dr.

Maseru had sufficient experience for a juror to consider him “as qualified” as Dr.

Turner. The Court finds that he does.

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Since Dr. Maseru has demonstrated that he was at least “as qualified” as Dr.

Turner, summary judgment should be denied so long as Dr. Maseru can point to other

probative evidence of discrimination. Dr. Maseru makes two arguments in support.

First, Dr. Maseru details the “severe” underrepresentation of African Americans

in the Department. Dr. Maseru notes that he was appointed by UC’s president to serve

on a committee to address the historic underrepresentation of minority populations at

UC. Yet despite the work Dr. Maseru and the committee completed, there were still

zero African Americans in the Department as late as 2016. And while UC states that it

is “committed to diversity in its faculty and staff,” Dr. Maseru notes that the statistics

tell a different story: only 1% of Department employees (or 2 out of 187) are African

American. In response, UC asks the Court to disregard these statistics as evidence of

pretext because Dr. Maseru was scored by criterion alike to members of all races.

Simply, it was Dr. Maseru’s lesser qualifications that resulted in a low score, not an

underrepresentation of African Americans in the Department. But as outlined above,

reasonable jurors may find that the calculation of the top three scores was either not

based in fact or was not the actual reason that motivated UC’s decision. Likewise,

reasonable jurors could find that UC’s hiring decision here was consistent with the

systemic underrepresentation in the Department.

Second, Dr. Maseru notes that the deviation from normal hiring practices may be

evidence of improper motive. See Skalka v. Fernald, Envtl. Restoration Mgmt. Corp., 178

F.3d 414, 422 (6th Cir. 1999) (holding that jury was entitled to find discriminatory

conduct when an employer “lost” ranking forms and deviated from its normal hiring

18

procedures). And here, Dr. Maseru details how the hiring committee and Dr. Ying

failed to follow UC’s Recruitment Guide, which required committees to consider and

hire applicants from minority and underrepresented populations. UC’s Recruitment

Guide requires that an Equal Opportunity Coordinator be assigned to monitor the

recruitment and hiring process. But that was not done here. The Recruitment Guide

also requires that “every reasonable effort be made” to compose a search committee

that “include[es] members who are People of Color.” (Doc 51-1 at p. 472.) Yet here,

there were no African Americans on the search committee. Finally, the Recruitment

Guide directs hiring committees to use “previously agreed upon criteria and screening

procedures.” But as described above, the process was altered for the third wave of

applicants.

In sum, when the evidence is taken in its entirety and cast in a light most

favorable to Dr. Maseru, he has shown that he can meet his burden of demonstrating

pretext. Because Dr. Maseru raises genuine disputes of material fact— with regard to

both the scoring matrix and the applicability of the “relative qualifications test” —

summary judgment is inappropriate. As such, UC’s Motion for Summary Judgment as

to Dr. Maseru’s race discrimination claim is DENIED.

II. Gender Discrimination

Although UC also moves for summary judgment on Dr. Maseru’s gender

discrimination claim, the briefings do not clearly distinguish between the race and

gender standards. UC further fails to adequately identify material facts or relevant case

law that would support its position. Without the benefit of meaningful briefing

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regarding the claim, the Court must deny the motion for summary judgment on Dr.

Maseru’s gender discrimination claim.

CONCLUSION

In sum, UC’s argument for summary judgment fails because a reasonable juror

could find that its legitimate, nondiscriminatory reason for not hiring Dr. Maseru is

pretextual. Accordingly, its motion (Doc. 56) is DENIED. This case will proceed to trial

on both the race and gender discrimination claims.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

AH atl, “Ww

Ie A

By:

JUDGE MATTHEW W. McFARLAND

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