US Pharm. 2011;36(4):54-56
For those who think that academic life is lived in an ivory tower where the faculty are immune from the real world of business, here is a case that reveals something that goes on in universities more frequently than most would assume.1 The primary question addressed by this case is whether the professor-plaintiff was discriminated against by her university-defendant in retaliation for complaints she lodged against another professor.
Facts of the Case
To begin, there are many complications that are not repeated here; only facts germane to the discussion of an epic battle between two senior members at a large research and teaching university are described. The names of the involved parties have been shortened to the first initial of their last names for brevity.2 That said, the 23-page opinion from the court considering this matter is both amusing and instructive to anyone who works in or with an institution of higher learning or is interested in seeing what a poisoned workplace environment is like. There are also some resources external to the opinion that may prove to be interesting as background.3-5 The story concerns the jealousy and pettiness between two senior members (Drs. S and B) of The Ohio State University (OSU) College of Pharmacy (COP) in the Division of Pharmacy Practice and Administration (PPAD) that exploded “like a bomb” into numerous lawsuits. This article focuses on one of the cases in litigation.
OSU hired Dr. S in 1999 as a full tenured professor from the University of Mississippi. In 2002, the department hired Dr. V from Spain as an associate professor. Dr. B, a native of India, was hired in 2005 as an associate professor with tenure. Dr. S had met Dr. B at a professional meeting, formed the opinion that he was rude, and objected to his hiring.
In 2005, Dr. N, also a native of India and chairman of the PPAD, asked Dr. B to prepare an annual review of Dr. V for presentation to the division’s tenure and promotion committee. Dr. S claimed that she had noticed Drs. B and N discriminating in favor of Indian students. During the committee meeting, Dr. B made it clear that he did not think Dr. V was a productive member of the COP. The following day, Dr. S sent an e-mail to the dean of the college, Dr. G, stating that she felt the presentation of Dr. V’s qualifications by Dr. B was “intentionally biased.” She made mention that Dr. V had not worked very much during the review period because of his extensive illness and recovery. The gist of the message was that Dr. V should not have been reviewed at all.
Thereafter, Dr. S made a special effort to get to know Dr. V better so she could find out where the negative views of him started. After several months of working with Dr. V, Dr. S determined that there was nothing wrong with Dr. V but that some members of the faculty were intentionally “trying to sabotage his efforts to do research.”
Other faculty members recalled that Drs. S and B repeatedly clashed and had heated arguments at faculty meetings, raising their voices and not treating each other with any respect. One faculty member stated that they were both equally at fault for their conflicts and “were both very good at raising the ire of one another.”6
Dr. G, the COP dean, testified that for 3 years in a row he had to inform Dr. B that he was receiving a lower annual raise because of “his lack of ability to…appropriately interact with students and faculty in the Division.” The dean specifically referred to disagreements Dr. B had with Dr. S, Dr. V, and others.
In May and June 2006, Dr. B allegedly told his students not to participate in a research program that Dr. S advised, and complained about her to a group of peers at a national conference. On June 23, 2006, Dr. B sent an e-mail to the dean and the department chair, alleging that a faculty candidate had been contacted several times by Dr. S and advised not to come to the COP because of the discrimination there and the bad influence of Dr. B himself. Finally, he claimed that Dr. S had slandered him and the COP at the recent International Society for Pharmacoeconomics and Outcomes Research (ISPOR) meeting, and that she had falsely reported to the OSU Human Resources (HR) that he was harassing her students.
On June 6, 2006, several of Dr. S’s colleagues (although not Dr. B) sent a letter to Dr. G “to express the collective frustration and dissatisfaction of several senior members of [PPAD] with Dr. S.” The letter stated that “she rarely attended division meetings, and that when she did so she disrupted the proceedings and was disrespectful of others, so much so that several members refuse to attend the meetings, and most dread them.” The writers of that letter also claimed that Dr. S “had done a poor job teaching individual classes, and that three graduate students had asked to have their advisor reassigned.” They stated that “[n]one of us feel that…the Graduate Program [is] better now than when she came,” and that the “complaints they were addressing were known to colleagues around the country, reflecting poorly on COP’s reputation.”
On September 6, 2006, Dr. S sent Dr. B an e-mail claiming that one of her graduate students reported that Dr. B had been harassing her to join his research team. Dr. B forwarded this e-mail to Drs. G and N, claiming that he was “tired of baseless allegations and harassment” from Dr. S and that “she also has a tendency to storm into my office and say things which do not make any sense.” He then forwarded an e-mail from an HR officer at OSU, accompanied by a lengthy complaint alleging harassment on the part of Dr. S, stating that the harassment consisted of “e-mail communication, unsolicited entry and harassing verbal communication in my office, defamation and slander in public at faculty meetings as well as to other colleagues, racially tinged remarks, and false allegations of harassing her students.” He added that Dr. S had been misusing her position “to harass and intimidate him and that she told him she wanted him to leave as soon as possible.”
Later that day Dr. G sent an e-mail to the vice-provost of OSU and Dr. N, stating: “I have ‘defused’ the situation at this time. It is clearly an issue between two tenured faculty who refuse to resolve their conflicts and would rather ‘throw bombs’ at each other.” [Emphasis added.]
Despite the dean’s optimism, Dr. B continued “throwing bombs.” In September 2006, Dr. B sent several e-mails to Dr. G complaining that Dr. S’s teaching assistants were receiving preferential treatment. Dr. B also sent another e-mail to the OSU HR department, complaining of “false allegations leveled by Drs. S and V” and that “he and his students had been harassed.”
In November 2006, Dr. S filed a complaint with the Equal Employment Opportunity Commission (EEOC) that Dr. G had discriminated against one of her male colleagues (Dr. V). She stated that in September 2006 she had received a below-average performance rating and a low salary increase, although previous ones had been good, and that she believed she was retaliated against because of her sex, which is in violation of Title VII of the Civil Rights Act of 1964, as amended. In December 2006, Dr. S also filed an internal complaint for harassment and retaliation with the OSU HR department. Not to be outdone, Dr. B filed his own internal complaint in January 2007 with HR, alleging that “he had been discriminated against and harassed on the basis of his national origin, race, and comparatively superior academic productivity.” He claimed that “the mistreatment had lasted for over two years, and that his previous complaints had not led to an agreeable solution.”
On April 28, 2007, Dr. B sent an e-mail to the editor of the Primary Care Respiratory Journal (PCRJ) concerning an article that Dr. S had coauthored, claiming she had “self-plagiarized.” Dr. B stated that this 2007 PCRJ article had reported “exactly identical results just analyzing the data slightly differently” from a 2005 article that Dr. S had coauthored in a different journal, and that the 2007 article had failed to reference the 2005 article. He sent copies of this complaint to several colleagues within the university and also sent his e-mail correspondence to a group of professors at other universities, adding an allegation that Dr. S had presented this research at the 2005 ISPOR meeting, and that she planned to present it again in 2007.
Dr. B then filed a whistleblower complaint with OSU that set into motion a formal investigation into academic misconduct against Dr. S that could have led to her termination from the university if the allegations were determined to be true. On November 16, 2007, the investigation determined that the potential misconduct in Dr. S’s failure to cite the 2005 paper in her 2007 article “seriously deviates from commonly accepted practices within the research community and as such represents misconduct.” On January 8, 2008, the investigative committee issued a final report to the effect that further investigation into Dr. S’s misconduct charges was warranted.
However, Dr. G sent a letter to Dr. S on February 19, 2009, indicating that in May 2008, OSU had adopted a new research policy to supplant the interim policy, which no longer prohibited “other practices that seriously deviate from those that are commonly accepted within the relevant scholarly community.” Dr. G concluded that the finding against Dr. S had been based on a practice that was no longer prohibited, and that he did not feel that the matter warranted further investigation.
In June 2007, Dr. S submitted a correction notice that was published in PCRJ. She stated that she and the other authors of the 2007 article “were remiss…in not making reference to the 2005 article.” The publishers of the journal issued an editorial in the same issue chastising Dr. S and the other authors for failing to cross-reference the two articles.
This set off another barrage as Drs. B and S hurled explosive ordinances against each other in various communications to the faculty and other colleagues. During a September 4, 2007, faculty meeting they got into yet another argument, culminating in Dr. B allegedly insulting Dr. S. In response, Dr. G sent a reprimand to Dr. B for his “very unprofessional, extremely rude, and totally unacceptable” conduct. After imposing some restraints on the contacts between Drs. S and B and their graduate students, as well as restricting some of Dr. B’s research funding, Dr. G told Dr. B to attend anger management training from the OSU HR department. Dr. B did so.
In October 2007, Dr. S filed a second charge with the EEOC claiming that Dr. B’s scientific misconduct charges and the insults against her in a faculty meeting constituted further harassment and discrimination. Dr. B left OSU in the spring of 2009 and moved to the University of Michigan, claiming he was tired of the OSU environment of discrimination, harassment, and litigation.
The defendant, OSU, asked the court to dismiss Dr. S’s lawsuit for discrimination and retaliation. After a lengthy analysis of the law of discrimination and retaliation, the court dismissed all charges against OSU.
In doing so, it noted that there is a distinction between significant and trivial damages and that Title VII, containing the antidiscrimination laws, does not set forth a “general civility code for the American workplace.” Petty slights, minor annoyances, and the simple lack of good manners do not amount to forbidden behavior and are part and parcel of the normal workplace. The only question for the court to consider is whether OSU’s failure to take more dramatic and corrective actions against Dr. B constituted discrimination or retaliation against Dr. S.
The standard for finding against an employer for a coworker’s untoward activities requires proof that: “1) the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination; 2) supervisors or members of management have actual or constructive knowledge of the coworker’s retaliatory behavior; and 3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.”7
The court found that Dr. S had not produced sufficient evidence to meet any of these standards. It characterized the disputes between Drs. S and B as “hectoring” and not unlawful harassment. Most of the instances Dr. S claimed were illegal acts under Title VII amounted to permissible “trivial annoyances, academic squabbling, and bureaucratic tattling.” In short, the court concluded that “the presence of protected activity will not elevate griping e-mails and shouting matches into materially adverse employment actions.”
There are a slew of other allegations and retorts between the parties addressed by the court. It found nothing in Dr. S’s lengthy list of complaints that amounted to any illegal activity by OSU. Basically, the court said that in the modern workplace, especially in universities, employees must have a “thick skin” that tolerates the slings and arrows expected in the normal course of employment. In other words, before an employer can be found liable under Title VII, it must do or fail to do something that results in measurable and material detriment to its employee. Sure, nasty stuff was being slung by Drs. S and B and other faculty members, but none of those actions resulted in demonstrable harm to Dr. S. This is just another case of “no harm, no foul.”
1. Szeinbach v. The Ohio State University (Slip Op No. 2:08-cv-823, December 10, 2010), 2010 US Dist Lexis 130813, 110 Fair Empl Prac Cas (BNA) 1858.
2. Dr. S = Sheryl Szeinbach; Dr. V= Enrique Seoane-Vazques; Dr. B = Rajesh Balkrishnan; Dr. N = Milap Nahata; Dr. G = Robert Bruggermeier.
3. Khan M. Pharmacy school lawsuits show deep divide. The Lantern. October 19, 2009. www.thelantern.com/campus/
4. Know T. Suit: OSU destroyed records vital to case. The Lantern. December 2, 2009. www.thelantern.com/campus/
5. Binkley C. Feds: professor misused grant funds. The Lantern. January 10, 2010. www.thelantern.com/campus/
6. Quoting Dr. Craig Pederson from the Opinion, see Note 1, supra.
7. Hawkins v. Anheuser-Busch, 517 F3d 321, 347 (6th Cir 2008).
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