Fendley v. Wright State Univ.

[Cite as Fendley v. Wright State Univ., 2019-Ohio-1963.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Ryan Fendley, :

Plaintiff-Appellant, :

No. 18AP-113

v. : (Ct. of Cl. No. 2015-1059)

Wright State University, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on May 21, 2019

On brief: Eberly McMahon Copetas LLC, Theodore C.

Copetas, and David A. Eberly, for appellant.

Argued: Theodore C. Copetas.

On brief: Dave Yost, Attorney General, Lee Ann Rabe, and

Jeanna V. Jacobus, for appellee. Argued: Jeanna V.

Jacobus.

APPEAL from the Court of Claims of Ohio

KLATT, P.J.

{¶ 1} Plaintiff-appellant, Ryan Fendley, appeals a judgment of the Court of Claims

of Ohio in favor of defendant-appellee, Wright State University. For the following reasons,

we reverse that judgment and remand this matter to the trial court.

{¶ 2} Wright State employed Fendley as an unclassified staff member for 11 years.

In May 2015, Fendley was working as the senior advisor to the provost when the university

placed him on indefinite paid administrative leave. David R. Hopkins, then the president

of Wright State, instituted the leave because the federal government was investigating

whether Fendley, along with two other Wright State employees, had engaged in visa fraud.

No. 18AP-113 2

On May 4, 2015, Hopkins informed Fendley about the federal investigation and handed

him a letter, which, in relevant part, stated:

As you are aware, Wright State University continues to

cooperate with an ongoing outside investigation. The

University has begun its own internal investigation, as well. In

furtherance of the investigations, the University hereby places

you on paid administrative leave from your position as Senior

Advisor until further notice.

(Pl.'s Ex. 4.)

{¶ 3} In August 2015, Hopkins met with federal attorneys to discuss the ongoing

visa fraud investigation. After that meeting, Hopkins believed that "three individuals

employed by Wright State had conspired to commit visa fraud," and he decided that "it was

in the best interest of the university to remove all three from * * * their administrative

positions." (Tr. at 82.) Fendley was one of those individuals. Consequently, in a letter to

Fendley dated August 12, 2015, Hopkins stated:

You were informed on May 4, 2015 that you were being placed

on a paid administrative leave as a result of an ongoing outside

investigation, as well as an internal investigation.

Subsequent to your paid administrative leave and as a result of

the ongoing investigation, I have determined that it is in the

University's best interests to end our employment relationship

with you.

As a result, this letter is to inform you that you are being

terminated from your position at Wright State University,

effective Wednesday, August 12, 2015.

(Pl.'s Ex. 5.)

{¶ 4} At the time of Fendley's firing, an employment policy known as the Wright

Way Policy No. 4004 governed the conditions of employment for the unclassified staff.

Wright Way Policy No. 4004.1, entitled "Termination Notification," provided:

a. The unclassified staff of Wright State University who have

been hired on a Continuing Employment Agreement can be

terminated by the university. The affected staff members shall

be notified in writing as specified in the following paragraphs.

***

No. 18AP-113 3

b. Employees can be terminated for documented just cause as

provided in applicable laws, rules, and regulations or because

of financial exigency, without notice. * * *

c. Notice of termination without just cause shall be as follows:

Term of Employment Notification

Less than 3 years 2 months

At least 3 years but less than 6 years 6 months

At least 6 years but less than 15 years 9 months

15 or more years 1 year (12 months)

(Pl.'s Ex. 3.) Wright State did not provide Fendley any notice prior to terminating his

employment.

{¶ 5} On December 24, 2015, Fendley filed suit against Wright State, alleging a

claim for breach of contract. Fendley contended that Wright State's failure to provide him

advance notice of his discharge violated the contractual terms governing his employment.

Because Fendley had worked for Wright State for 11 years, he claimed that Wright Way

Policy No. 4004.1 entitled him to nine months' notice.

{¶ 6} A trial before a magistrate occurred. At that trial, the parties litigated whether

Wright State had terminated Fendley's employment for "documented just cause as

provided in applicable laws, rules, and regulations." If Wright State discharged Fendley for

"documented just cause as provided in applicable laws, rules, and regulations," then it owed

Fendley no notice. On the other hand, if Wright State discharged Fendley without such just

cause, then it breached its contractual obligation to provide Fendley nine months' notice

prior to terminating his employment.

{¶ 7} During the trial, the parties presented the evidence set forth above.

Additionally, Fendley testified that he was not involved in securing the visas at issue in the

federal investigation, and he stated that he was never indicted for visa fraud.

{¶ 8} In a decision dated September 19, 2017, the magistrate recommended that

the trial court issue a judgment in favor of Wright State. The magistrate explained:

Upon review of the testimony and evidence presented, the

magistrate finds that defendant terminated plaintiff's

No. 18AP-113 4

employment for documented just cause. * * * Although plaintiff

was not indicted, and he had no personal involvement with

procuring H1-B visas, the magistrate finds that the fact that

plaintiff was under investigation by the federal government for

visa fraud constitutes "just cause" for his termination. * * * The

magistrate further finds that defendant complied with Wright

Way Policy [No.] 4004.1, when it sent him two letters referring

to an ongoing investigation, the nature of which plaintiff was

aware.

(Sept. 19, 2017 Decision of the Mag. at 5-6.)

{¶ 9} Fendley objected to the magistrate's decision. In a judgment entered

January 19, 2018, the trial court overruled all Fendley's objections. The trial court agreed

with the magistrate that the federal visa investigation targeting Fendley constituted just

cause for Fendley's termination and the May and August 2015 letters adequately

documented the university's just cause for its decision to discharge Fendley. The trial court,

therefore, entered judgment for Wright State.

{¶ 10} Fendley now appeals the January 19, 2018 judgment, and he assigns the

following errors:

[1.] THE COURT OF CLAIMS' DETERMINATION THAT

WRIGHT STATE TERMINATED MR. FENDLEY FOR JUST

CAUSE IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

[2.] THE COURT OF CLAIMS' DETERMINATION THAT

WRIGHT STATE HAD "DOCUMENTED" JUST CAUSE TO

TERMINATE MR. FENDLEY IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

[3.] THE COURT OF CLAIMS ABUSED ITS DISCRETION BY

ADMITTING DR. HOPKINS' TESTIMONY ABOUT WHAT

INVESTIGATING U.S. ATTORNEYS TOLD HIM.

[4.] THE COURT OF CLAIMS ABUSED ITS DISCRETION BY

ADMITTING DR. HOPKINS' TESTIMONY ABOUT WHAT HE

BELIEVED ABOUT MR. FENDLEY'S CONDUCT, BECAUSE

SUCH TESTIMONY LACKED FOUNDATION AND WAS

IRRELEVANT.

{¶ 11} We will address Fendley's first two assignments of error together because

they are interrelated. By those assignments of error, Fendley asserts that the manifest

No. 18AP-113 5

weight of the evidence does not support the trial court's conclusion that Wright State fired

Fendley for "documented just cause as provided in applicable laws, rules, and regulations."

We agree.

{¶ 12} Before considering the evidence, we must segregate the undisputed issues in

this case from the sole issue before us. First, Wright State does not contest that it and

Fendley shared a contractual relationship and that Wright Way Policy No. 4004.1 was a

term of the parties' employment contract. Wright State also does not dispute that it could

only dispense with providing Fendley a termination notice if it discharged Fendley for

"documented just cause as provided in applicable laws, rules, and regulations." The point

of contention in this case is the meaning of the phrase "documented just cause as provided

in applicable laws, rules, and regulations." Thus, we must first interpret that phrase.

{¶ 13} Interpretation of contracts is a matter of law, and questions of law are subject

to de novo review on appeal. St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d

387, 2007-Ohio-5026, ¶ 38. When construing a contract, a court's principle objective is to

ascertain and give effect to the intent of the parties. Hamilton Ins. Serv., Inc. v. Nationwide

Ins. Cos., 86 Ohio St.3d 270, 273 (1999). "The intent of the parties to a contract is presumed

to reside in the language they chose to employ in the agreement." Kelly v. Med. Life Ins.

Co., 31 Ohio St.3d 130 (1987), paragraph one of the syllabus. In determining the parties'

intent, a court must construe the contract as a whole and give effect, if possible, to every

part of the contract. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention

Facilities Auth., 78 Ohio St.3d 353, 361-62 (1997). If an undefined term is used in a

contract, a court will give that word its ordinary meaning, unless manifest absurdity results

or some other meaning is clearly evidenced in the contract. Sunoco, Inc. (R&M) v. Toledo

Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, ¶ 38.

{¶ 14} Here, the term "just cause" appears at the core of the phrase "documented

just cause as provided in applicable laws, rules, and regulations." Wright Way Policy No.

4004 does not define that term. In the employment context, "just cause" " 'is that which,

to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular

act.' " Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 697

(1995), quoting Irvine v. Unemployment Comp. Bd. of Review, 19 Ohio St.3d 15, 17 (1985).

This definition correlates with the ordinary meanings of "just," defined as "having a basis

No. 18AP-113 6

in fact: REASONABLE, WELL-FOUNDED, JUSTIFIED," and "cause," defined as "a reason

or motive for an action." Webster's Third New International Dictionary 1228, 356 (1966).

Consequently, we will use this definition to interpret Wright Way Policy No. 4004.1.

{¶ 15} Two descriptors modify the term "just cause:" (1) "documented" and (2) "as

provided in applicable laws, rules, and regulations." While the parties do not dispute the

meaning of "documented," they do not agree on the meaning of "as provided in applicable

laws, rules, and regulations." Quite simply, the phrase "just cause as provided in applicable

laws, rules, and regulations" means that applicable laws, rules, and regulations must

provide the just cause for the discharge decision. An employer may find just cause to

discharge an employee in an applicable law, rule, or regulation if an employee fails to

perform as directed in a law, rule, or regulation or ignores a prohibition in a law, rule, or

regulation. Thus, for example, an employer would have just cause to fire a tardy employee

who violates a rule requiring timely attendance or an employee who engages in sexual

harassment in contravention of laws and rules prohibiting such behavior. Because in such

scenarios just cause arises from a law, rule, or regulation, Wright State would not owe the

tardy or harassing employee any notice prior to firing the employee.

{¶ 16} The trial court, however, found that the phrase "just cause as provided in

applicable laws, rules, and regulations" meant that Wright State had just cause to fire

employees for any lawful reason. If the phrase at issue read "as provided in law," we would

agree with the trial court's construction. But, given the dissimilarity between the phrases

"as provided in applicable laws, rules, and regulations" and "as provided in law," we cannot

accept the trial court's interpretation.

{¶ 17} The phrase "as provided in law" differs in meaning from "as provided in

applicable laws, rules, and regulations" due to the wide variety of reasons an employer may

legally discharge an at-will employee, like Fendley. Basically, an employer may terminate

the employment of an at-will employee for any reason not contrary to law. Ressler v. Atty.

Gen., 10th Dist. No. 14AP-519, 2015-Ohio-777, ¶ 27. As a consequence, at-will employees

face discharge for good reasons, bad reasons, or no reason at all. Id. In other words, an

employer may legally fire an at-will employee for a reason not provided for in an applicable

law, rule, or regulation. Therefore, by interpreting the phrase at issue to permit a just-cause

discharge for any lawful reason, the trial court deviated from and expanded the contractual

No. 18AP-113 7

language. This rewriting of a contract is impermissible. See Bluemile, Inc. v. Atlas Indus.

Contrs., Ltd., 10th Dist. No. 16AP-789, 2017-Ohio-9196, ¶ 23 ("A court may not rewrite a

contract under the guise of construing it."). In interpreting a contract, a court must give

effect to the words used, not insert new words. Cleveland Elec. Illuminating Co. v.

Cleveland, 37 Ohio St.3d 50, 53 (1988).

{¶ 18} Having determined the meaning of the phrase "documented just cause as

provided in applicable laws, rules, and regulations," we can now consider Fendley's

manifest-weight challenge. Appellate courts will only reverse a judgment as being against

the manifest weight of the evidence if it is not supported by some competent, credible

evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280 (1978). In

determining whether the record contains the necessary evidence, an appellate court weighs

the evidence and all reasonable inferences, considers the credibility of witnesses, and

determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost its

way. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. However, when

conducting its review, an appellate court "must always be mindful of the presumption in

favor of the finder of fact." Id. at ¶ 21. Appellate courts give deference to the trial court's

factual findings because "the trial judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80

(1984).

{¶ 19} Here, the trial court discussed two reasons for Fendley's termination: (1) he

was the target of a federal investigation into visa fraud, and (2) Hopkins believed that

Fendley had actually committed visa fraud. We, therefore, must review the evidence to

determine whether either of these reasons constitute "documented just cause as provided

in applicable laws, rules, and regulations," thus justifying Wright State's failure to provide

Fendley with a pre-discharge notice.

{¶ 20} We will first consider Hopkins' belief that Fendley engaged in visa fraud.

According to Wright State, it documented this reason for Fendley's discharge in the letters

of May 4, 2015 and August 12, 2015. While both letters refer to an "ongoing outside

investigation," neither letter mentions or suggests that Hopkins believed that Fendley had

committed visa fraud. (Pl.'s Ex. 4 & 5.) Wright State, therefore, did not document Hopkins'

No. 18AP-113 8

belief in Fendley's guilt. Consequently, that reason for Fendley's firing does not qualify as

"documented just cause as provided in applicable laws, rules, and regulations."

{¶ 21} The second reason offered for Fendley's termination was the existence of the

federal investigation into visa fraud. The trial court found that reason documented in the

May and August 2015 letters. We agree with the trial court's finding. Both letters name the

"ongoing outside investigation" as the reason motivating the university's actions. (Pl.'s Ex.

4 & 5.) The allusions to an "ongoing outside investigation" could only refer to the federal

visa fraud investigation. Thus, the existence of the federal investigation into Fendley's

conduct was the documented reason for Fendley's discharge.

{¶ 22} We next must consider whether the federal investigation is a reason for

discharge that is "provided in applicable laws, rules, and regulations." Fendley asserts that

the evidence establishes that mere investigation into potential wrongdoing is not a just

cause for discharge "as provided in applicable laws, rules, and regulations." The record

contains evidence supporting this assertion. First, Fendley introduced into evidence

Wright State's answer to an interrogatory asking Wright State to "[i]dentify any and all

policies, procedures, rules, regulations or laws that Defendant believes Plaintiff violated."

(Pl.'s Ex. 1 at No. 3.) Wright State did not claim that being under investigation contravened

a law, rule, or regulation. Instead, Wright State replied that then "President Hopkins

understood, after a meeting with Assistant United States Attorneys, that Plaintiff allegedly

engaged in criminal behavior related to immigration matters while employed at Wright

State University." Id. Because Wright State named the alleged visa fraud as the sole

violation of a law, rule, or regulation, Wright State tacitly admitted that the documented

cause for Fendley's firing—the federal investigation—did not violate a law, rule, or

regulation. Second, during trial, Hopkins conceded that he was not aware of Wright State

ever documenting that Fendley violated any law, rule, or regulation. Because the existence

of the federal investigation was documented, Hopkins' testimony amounts to a concession

that being under investigation does not violate any law, rule, or regulation. Finally, Fendley

acknowledged the existence of the federal investigation, but stated that he had not violated

any laws, rules, or regulations in connection with his employment at Wright State. Given

the foregoing evidence, we can only conclude that the existence of a federal investigation is

not a reason for discharge "as provided in applicable laws, rules, and regulations."

No. 18AP-113 9

Therefore, the federal investigation does not constitute "documented just cause as provided

in applicable laws, rules, and regulations."

{¶ 23} In sum, neither of the reasons advanced for Fendley's discharge qualifies as

"documented just cause as provided in applicable laws, rules, and regulations." We

conclude, therefore, that the trial court's finding that Wright State fired Fendley for

"documented just cause as provided in applicable laws, rules, and regulations" is against

the manifest weight of the evidence. Consequently, we sustain Fendley's first assignment

of error.

{¶ 24} Fendley's second assignment of error challenges only the trial court's

conclusion that Wright State documented the cause of his discharge. We have concluded

that the manifest weight of the evidence shows that documentation of the federal

investigation occurred, so we overrule the second assignment of error.

{¶ 25} Our resolution of Fendley's first assignment of error requires us to reverse

the trial court's decision. Accordingly, the third and fourth assignments of error are moot,

and we will not rule upon them.

{¶ 26} For the foregoing reasons, we sustain Fendley's first assignment of error and

overrule Fendley's second assignment of error. Our ruling on Fendley's first assignment of

error moots the third and fourth assignments of error. We reverse the judgment of the

Court of Claims of Ohio, and we remand this matter to that court so that it may determine

the amount of damages to award Fendley.

Judgment reversed; cause remanded.

BROWN, J., concurs.

SADLER, J., concurs in part and dissents in part.

SADLER, J., concurring in part and dissenting in part.

{¶ 27} Because I agree with the trial court that the university president's good-faith

belief that Fendley was guilty of visa fraud provided Wright State with documented just

cause for termination of Fendley's employment, without notice, I would overrule Fendley's

first and second assignments of error, proceed to a consideration of Fendley's third and

fourth assignments of error, and overrule those assignments of error as well. Because the

majority sustained Fendley's first assignment of error, I respectfully concur in part and

dissent in part.

No. 18AP-113 10

{¶ 28} In Fendley's first and second assignments of error, Fendley contends the trial

court's determination that Wright State terminated his employment for documented just

cause, as provided in applicable laws, rules, and regulations, is against the manifest weight

of the evidence. In sustaining Fendley's first assignment of error, the majority finds that

Wright State failed to document the university president's good-faith belief that Fendley

was guilty of visa fraud. Based on this finding, the majority overrules the decision of the

trial court without making any determination whether the weight of the evidence supports

the trial court's conclusion that university president Holbrook held a good-faith belief that

Fendley was guilty of visa fraud or whether Holbrook's good-faith belief in Fendley's guilt

provided Wright State with just cause for termination of Fendley's employment, without

notice, as provided in applicable laws, rules, and regulations.

{¶ 29} In holding that Wright State failed to document Hopkins' belief that Fendley

had committed visa fraud, the majority acknowledges that the term "documented," as used

in Wright State Policy No. 4004.1, is not defined in the parties' agreement. Hopkins' letter

to Fendley, dated August 12, 2015, states:

You were informed on May 4, 2015 that you were being placed

on a paid administrative leave as a result of an ongoing outside

investigation, as well as an internal investigation.

Subsequent to your paid administrative leave and as a result of

the ongoing investigation, I have determined that it is in the

University's best interests to end our employment relationship

with you.

As a result, this letter is to inform you that you are being

terminated from your position at Wright State University,

effective Wednesday, August 12, 2015.

(Emphasis added.) (Pl.'s Ex. 5.)

{¶ 30} The majority concedes the ongoing investigation mentioned in the August 12,

2015 letter "could only refer to the federal visa fraud investigation." (Majority Decision at

¶ 21.) The majority also acknowledges the letter of May 4, 2015 adequately documents the

existence of the federal investigation as the reason for the suspension, even though the

terms "just cause," "visa fraud," or "federal" do not appear in the May 4, 2015 letter. In his

August 12, 2015 letter to Fendley, Hopkins uses the following language: "[A]s a result of the

No. 18AP-113 11

ongoing investigation, I have determined that it is in the University's best interests to end

our employment relationship with you." (Emphasis added.)

{¶ 31} Fendley testified that in February or March 2015, Hopkins told him of an

ongoing investigation into suspected visa fraud at Wright State and that he could contact

the Ohio Attorney General for further information. Fendley was subsequently told by

someone at the Ohio Attorney General's Office that investigators would need access to his

office and computer. In March 2015, Fendley hired private counsel to represent him in any

potential criminal proceeding involving visa fraud. On May 4, 2015, Fendley received the

letter suspending him with pay due to the ongoing investigation of visa fraud. Several

months later, Fendley received the August 12, 2015 letter from Hopkins informing Fendley,

"as a result of the ongoing investigation, I have determined that it is in the University's best

interests to end our employment relationship with you." (Emphasis added.) In my view,

the evidence supports the trial court's finding that Hopkins' August 12, 2015 letter to

Fendley adequately documents Hopkins' subjective belief of Fendley's guilt as the reason

for Fendley's discharge.

{¶ 32} The majority concludes the trial court misinterpreted the language of Policy

No. 4004.1 in finding that Wright State had the right to terminate Fendley's employment,

without notice, for any reason not prohibited by law. In my view, the majority

mischaracterizes the trial court's conclusion. The trial court construed Policy No. 4004.1

as authorizing Wright State to discharge an unclassified employee, without notice, for any

documented business reason, not contrary to law. Moreover, as previously noted, the trial

court found the documented reason for Fendley's discharge was Hopkins' good-faith belief,

based on the ongoing federal investigation, that Fendley had committed visa fraud. The

trial court concluded Hopkins' good-faith belief in Fendley's guilt fit within "the plain and

ordinary meaning of 'just cause.' " (Jan. 19, 2018 Decision at 6.)

{¶ 33} I do not disagree with the majority's conclusion that Policy No. 4004.1

modified Fendley's at-will employment agreement in some meaningful way. However, it

cannot be seriously maintained that federal laws proscribing visa fraud are not applicable

to Wright State and its employees. Nor can it be reasonably concluded that Policy No.

4004.1 prohibited Wright State from discharging Fendley for suspected visa fraud absent

indictment or conviction. Had the parties intended an indictment or conviction to be

No. 18AP-113 12

required, they certainly would have spelled that out in Policy No. 4004.1 or elsewhere in

the policy manual. Furthermore, to the extent Policy No. 4004.1 requires the documented

reason for discharge to be a suspected violation of a law, rule, or regulation directly related

to Fendley's employment at Wright State, there is no dispute in this case that the federal

investigation of visa fraud involved foreign workers employed as research assistants on

Wright State affiliated projects.

{¶ 34} Under Ohio law, an employee may not be terminated under the just cause

provision of an employment contract unless he engages in misconduct that necessarily

injures the place of employment. Zimmerman v. Eagle Mtge. Corp., 110 Ohio App.3d 762,

774 (2d Dist.1996). Where an employee who is accused of misconduct denies the

allegations, an employer is required to determine just cause with good faith and on the basis

of substantial evidence. Young v. Am. Diabetes Assn., 30 F.Appx. 360, 364 (6th Cir.2002),

citing Chrvala v. Borden, Inc., 14 F.Supp.2d 1013, 1017 (S.D.Ohio 1998). In such cases, the

issue for the trier of fact is to determine whether the employer acted in good faith, not to

adjudicate the merits of the facts or suspicions on which it is predicated. Cochran v.

Columbia Gas of Ohio, Inc., 138 Ohio App.3d 888, 895 (10th Dist.2000).

{¶ 35} In my view, the university president's good-faith belief that Fendley

committed visa fraud and/or will be indicted for visa fraud constitutes just cause for

termination of Fendley's university employment, without notice, as provided in applicable

laws, rules, and regulations. The question for this court in addressing Fendley's manifest-

weight challenge is to determine whether the evidence supports the trial court's finding that

Hopkins held a good-faith belief that Fendley committed visa fraud.

{¶ 36} At trial, Hopkins testified, over the objection of Fendley's trial counsel, as

follows:

Q. Dr. Hopkins, in August of 2015, was there an event that led

you to believe that termination of Mr. Fendley was

appropriate?

A. Yes. I met with our special counsel with the two

investigating U.S. attorneys at their office in downtown

Dayton and I spent an hour with them. I requested it because

I wanted to see firsthand what was going on. We were getting

hearsay, as we've said here today, from our counsel to our

board. But I thought it was important for me to talk directly

No. 18AP-113 13

to the U.S. attorneys about where the investigation was. So

that was the event that precipitated my decision.

Q. And when you left that meeting, had you formed any belief

as to Mr. Fendley's conduct?

A. Yes. I believed –

MR. COPETAS: Objection. Again, I object to the relevancy of

any of this testimony because Dr. Hopkins' belief is not what's

important here. It's whether or not Ryan Fendley did

something. That's what we're here for, are there facts that

establish that.

THE COURT: Ms. Rabe?

MS. RABE: I would argue that we don't need to try the criminal

case against Mr. Fendley; that the decision maker, Dr.

Hopkins, I believe, will testify that he thought he had just cause,

and that's sufficient.

MR. COPETAS: True. We don't have to try a criminal case. We

have different standards of proof here. But the issue is still the

same. Did Ryan Fendley violate a law, a rule or a regulation.

That's the issue. Did he do that. Not whether or not Dr.

Hopkins may have believed it. And if they want to establish

that he did, they can try to establish that he did. But not based

on what someone believes. That's not relevant.

THE COURT: Okay. Dr. Hopkins, I'm allowing you to testify

about your impression after the meeting, but I don't want the

details of what was said to you.

THE WITNESS: Okay.

So my impression was that three individuals employed by

Wright State had conspired to commit visa fraud and that my

decision at that point, I thought it was in the best interest of

the university to remove all three from the – from their

administrative positions.

BY MS. RABE:

Q. Did you reach any conclusion at that time as to whether

those three individuals had violated any federal law?

A. Based on conversation with U.S. attorneys, yes.

MR. COPETAS: Objection.

No. 18AP-113 14

THE COURT: Overruled.

MR. COPETAS: You can't talk about conversations with –

THE COURT: Overruled.

Q. At that point, did you feel you had any choice but to

terminate Mr. Fendley's employment?

A. Personally I consulted with the chair of the board. I

consulted with our director of HR. And through the

conversations with them, I came to the conclusion I needed to

remove all three from their administrative positions, including

Mr. Fendley.

Q. And did you do that?

A. I did.

(Emphasis added.) (May 22, 2017 Tr. at 80-83.)

{¶ 37} The trial court found Wright State "had a legitimate concern regarding

[Fendley's] involvement in visa fraud and/or eventual prosecution for visa fraud and acted

on this concern when it terminated [Fendley's] employment." (Jan. 19, 2018 Decision at

6.) Hopkins' testimony, if believed, supports the trial court's finding that Hopkins

discharged Fendley because he had formed a belief, based on the information he received

during his meeting with the investigating United States attorneys and Wright State's special

counsel, Fendley had committed and/or conspired with other Wright State employees to

commit visa fraud. Hopkins also testified that he followed up his meeting with investigators

by consulting with Wright State's director of human resources and chairman of the board

before making his decision to discharge Fendley, without notice.

{¶ 38} For the above stated reasons, I do not believe the trial court's finding that

Wright State discharged Fendley for documented just cause, as provided in applicable laws,

rules, and regulations, is against the manifest weight of the evidence, and I would overrule

Fendley's first and second assignments of error.

{¶ 39} In Fendley's third and fourth assignments of error, Fendley argues the trial

court abused its discretion when it permitted Hopkins to testify about his belief in Fendley's

guilt because Hopkins formed his belief based on hearsay statements made to him by

investigators. I disagree.

No. 18AP-113 15

{¶ 40} Pursuant to Evid.R. 801(C), hearsay is "a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted." As can be seen from the transcript of Hopkins' trial testimony,

Wright State offered evidence of Hopkins' belief in Fendley's guilt of visa fraud not for the

purpose of proving that Fendley committed visa fraud or to prove the truth of the

information Hopkins received from investigators but for the purpose of showing that

Hopkins had formed a belief in Fendley's guilt and the substantial basis on which he formed

that belief. In determining whether the evidence in this case supported Fendley's discharge,

without notice, the issue for the trial court was whether Hopkins determined Fendley had

committed visa fraud in good faith and on the basis of substantial evidence. Fendley's

hearsay argument is predicated on the mistaken premise that neither Hopkins' belief in

Fendley's guilt nor the basis on which Hopkins formed his belief are relevant evidence in

this case.

{¶ 41} When viewed in the proper context, Fendley's testimony was neither

irrelevant nor hearsay. Moreover, the Supreme Court of the United States has recognized

that an employer need not determine there is just cause for terminating an employee on the

basis of actual, admissible evidence. See Waters v. Churchill, 511 U.S. 661, 676 (1994). In

Waters, the Court explained it is inappropriate to force an "employer to come to its factual

conclusions through procedures that substantially mirror the evidentiary rules used in

court. * * * [E]mployers * * * often do rely on hearsay, on past similar conduct, on their

personal knowledge of people's credibility, and on other factors that the judicial process

ignores." Id. Thus, the fact that Hopkins relied on information reported to him by

investigators does not render Hopkins' testimony inadmissible in this case.

{¶ 42} Based on the foregoing, I would hold the trial court did not abuse its

discretion when it overruled Fendley's objections to Hopkins' testimony. Accordingly, I

would overrule Fendley's third and fourth assignments of error.

{¶ 43} For the foregoing reasons, I would overrule Fendley's assignments of error

and affirm the judgment of the Court of Claims of Ohio. Because the majority does

otherwise, I respectfully concur in part and dissent in part.

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