Steven Liss v. Cleveland State University, Case Number: 2013-00139
William Russell v. Cleveland State University, Case Number:  2013-00138

The Court of Claims of Ohio will conduct a hearing in December to determine if two long-term Cleveland State University employees were fired because of their age after the department they worked in was reorganized and their duties given to employees much younger than them.

The court recently rejected motions for summary judgment sought by Cleveland State on claims of age discrimination sought by employees of the Department of Student Life. The court sided with CSU in finding it did not illegally retaliate against the men, did not discriminate on the basis of disability or breach a non-union employee's contract.

Steven Liss, the former director of the Center for Student Involvement, and William Russell, the Coordinator of Greek Affairs, filed complaints against the university after their positions were abolished in September 2012.

According to the court, Liss, a 19-year CSU employee, supervised Mary Myers, the Coordinator of Student Organizations, and Russell, who worked part-time, but had been with the university in some capacity since the 1960s. In 2011, Liss' supervisor left CSU and Dean of Students James Drnek became Liss' supervisor until February 2012 when Willie Banks was hired as Associate Dean of the Department of Student Life. In spring 2012, Banks and Drnek determined to restructure the Center for Student Involvement and Banks hired a consultant, T.W. Cauthen, who the court noted was a close friend of Banks.

As a result of Cauthen's report, three new positions were created. Two of them were filled by existing employee's ages 32 and 29, and a 35-year-old that the court described as a personal friend of Banks was hired for the third job.  The positions of Liss, Myers, and Russell were abolished. At the time, Liss and Myers were 50, and Russell 66. Liss had applied for all three of the new positions and was interviewed for two. Liss states that neither of the two existing employees who received the jobs had to interview for them and both were given raises with their promotions.

Russell was a member of the university's collective bargaining unit and had “bumping” rights to take another position on campus based on seniority; however, he declined the only position identified for him because he said he did not have the skills to do the job. Liss and Russell then filed claims of age discrimination, violations of the Family and Medical Leave Act, retaliation and breach of contract against CSU. Russell also filed a claim of disability discrimination.

Court of Claims Judge Patrick M. McGrath wrote that federal case law interpreting Title VII of the 1964 Civil Rights Act sets the standard for determining age discrimination under Ohio Revised Code 4112.02. Citing the U.S. Supreme Court's McDonnell Douglas Corp. v. Green (1973), Judge McGrath stated that discrimination claims can be made by direct evidence or indirect evidence.

Direct evidence of discrimination requires proof that a decision-maker, or an employee who influences the decision-maker, made discriminatory comments related to the actions taken against the employees. In order for those statements to be evidence of discrimination the employee must prove whether the comments were made by the decision-makers; were made in relation to the decision-making process; were not vague, isolated or ambiguous; and if they happened closely to when the alleged act of discrimination took place.

Liss and Russell claim Banks made derogatory comments describing Russell and Myers as “old dogs who could not learn new tricks,” and Russell needed to get rid of his “old school” methods. Noting that Banks worked with Dean Drnek to develop the reorganization plan, Judge McGrath ruled that the court needs to hear more evidence of the claims to determine if they were related to the decision to abolish their positions and whether the comments took place at a time close to when the jobs were eliminated.

Judge McGrath said McDonnell Douglas establishes a method for proving age discrimination by indirect evidence and requires the employer to “articulate some legitimate, non-discriminatory reason” for the action against the employee. The employee must then prove that the evidence shows the employer's stated legitimate reason was not true, but was a pretext to using age as the reason. To make the case by indirect evidence, the employees must first show that they were at least 40 years old when the action took place, they were subjected to an adverse action, they were otherwise qualified for the positions, and that after they were rejected, substantially younger applicants were hired.

The court deemed that Liss and Russell both met the age requirement, both of their jobs were eliminated, they were qualified for the positions they previously held, and that substantially younger people filled the new positions. The court also pointed to an affidavit and deposition where Drnek provided a legitimate, nondiscriminatory reason for the reorganization. Drnek stated there needed to be more student activity on campus especially after construction a new student center in 2010 and a residence hall with 1,100 dorm rooms.  Drnek testified that no there was not a position to coordinate activity at the Student Center without the reorganization, and new job roles were necessary.

Drnek said he did not take the ages of Liss and Russell into consideration when he made the decision. In addition, Russell also claimed his firing was in violation of the federal Family and Medical Leave Act (FMLA) and that Drnek was aware of his need to take leave for shoulder surgery. Drnek stated in depositions that he did not consider Russell's health conditions in his decision or was aware of the extended leave until after the positions were eliminated.

Judge McGrath noted that the only staff members affected by the reorganization were 50 years or older, the existing employees younger than 40 were promoted without having to interview for the positions, that Banks hired a personal friend younger than 40 for the third position, and Banks had not hired an employee older than 40 since being employed at CSU.

“Construing the evidence most strongly in favor of the plaintiffs, issues of material fact exist with regard to pretext,” Judge McGrath wrote.

Regarding Russell's claim of a FMLA violation, McGrath said the McDonnell Douglas method can be used to circumstantially prove retaliation if the employee can demonstrate he exercised his rights under the act, that he suffered an adverse employment action, and there is proof that exercising his right caused the action. While Drnek said he did not know about the surgery, Russell claims that he had discussed it with both Banks and Drnek before the positions were eliminated. Judge McGrath ruled a hearing was required before deciding on the claim and denied CSU summary judgment.

The Court of Claims is given original jurisdiction to hear and determine all civil actions filed against the State of Ohio and its agencies.

To access information on other cases visit the Court of Claims website.

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