Knepper v. Ohio State Univ.

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2011 » Knepper v. Ohio State Univ.

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-6054

Case Date: 11/22/2011

Plaintiff: Knepper

Defendant: Ohio State Univ.

Preview:[Cite as Knepper v. Ohio State Univ. , 2011-Ohio-6054.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Benjamin Knepper,                                                                          :
Plaintiff-Appellant,                                                                       :
                                                                                               No. 10AP-1155
v.                                                                                         :   (C.C. No. 2007-01851)
The Ohio State University,                                                                 :   (REGULAR CALENDAR)
Defendant-Appellee.                                                                        :
D    E    C    I    S    I    O    N
Rendered on November 22, 2011
Mowery  Youell  &  Galeano,  Ltd.,  Merl  H.  Wayman,  and
Spencer M. Youell, for appellant.
Michael DeWine, Attorney General, Randall W. Knutti, and
Amy S. Brown, for appellee.
APPEAL from the Court of Claims of Ohio.
BROWN, J.
{¶1}   Benjamin Knepper, plaintiff-appellant, appeals from two judgments of the
Court of  Claims of  Ohio. In one judgment, the court granted summary judgment to
defendant-appellee, The Ohio State University ("OSU") on Knepper's retaliation claim. In
the other judgment, the court ruled in favor of OSU on Knepper's age discrimination
claim.

No. 10AP-1155                                                                                       2
{¶2}   Knepper,  born  March                                                                  29,   1952,  was  employed  as  an  exhibition
designer/preparator with OSU's art galleries and the Wexner Center for the Arts ("Wexner
Center") from July 1980 through October 2004. He worked specifically at the Wexner
Center as an exhibition designer from  1989 until October  2004. On April  15,  2004,
Gretchen Metzelaars, the Wexner Center's director of administration, notified Knepper
that his position was being abolished effective October 17, 2004.
{¶3}   On  April                                                                              26,   2004,  Knepper's  attorney  mailed  a  letter  to  Metzelaars,
indicating that Knepper believed he was being terminated because of his age and gender.
On May 10, 2004, Metzelaars wrote a letter to Knepper's attorney, indicating that OSU
would welcome Knepper's application for any preparatory position that is posted in the
future.
{¶4}   On October 21, 2005, OSU posted a job opening for assistant exhibition
designer at the Wexner Center, and Knepper applied for the position on October  26,
2005. On November 1, 2005, OSU posted a job opening for another assistant exhibition
designer  at  the Wexner  Center,  and  Knepper  also  applied  for  the  position. William
Fugman, who was 28 years old at the time, and Patrick Weber, who was 30 years old at
the time, also applied for the assistant exhibition designer positions. Fugman and Weber
had both been temporary exhibition preparators at the Wexner Center since July 2005
and June 2005, respectively.
{¶5}   On November 17, 2005, Knepper, Fugman, and Weber were interviewed
for the two positions by Jill Davis, the exhibitions manager; Peg Fochtman, the Wexner
Center's human resources manager; and Larry Heller, the chief exhibition designer. OSU
hired Fugman and Weber for the positions.

No. 10AP-1155                                                                               3
{¶6}   On February 1, 2007, Knepper filed a complaint against OSU, alleging (1)
OSU discriminated against him when it failed to hire him for one of the two assistant
exhibition  designer  positions  and,  instead,  hired  two  less-qualified  and  younger
applicants; and  (2) OSU retaliated against him when it refused to hire him after he
complained of age and gender discrimination in the April 2004 letter.
{¶7}   On May 19, 2008, OSU filed a motion for summary judgment. On May 30,
2008, Knepper filed a motion for summary judgment. On August 27, 2008, the trial court
granted OSU's motion for summary judgment with regard to Knepper's retaliation claim
but  denied  OSU's  motion  for  summary  judgment  with  regard  to  Knepper's  age
discrimination claim. The trial court also denied Knepper's motion for summary judgment.
{¶8}   On September 2, 2008, a liability only bench trial commenced on Knepper's
age discrimination claim. On November  17,  2010, the trial court issued a judgment,
finding in favor of OSU on the age discrimination claim. Knepper appeals both judgments
in favor of OSU, asserting the following assignments of error:
[I.]   The   Lower  Court's   Judgment   On   Knepper's   Age
Discrimination Claim Is Against The Manifest Weight Of The
Evidence.
[II.]   The Lower Court Erred In Granting Summary Judgment
In Favor Of OSU On Knepper's Retaliation Claim.
{¶9}   Knepper argues in his first assignment of error that the judgment of the
Court of Claims, with regard to Knepper's age discrimination claim, was against the
manifest  weight  of  the  evidence.  In  a  civil  case,  judgments  supported  by  some
competent, credible evidence going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest weight of the evidence and

No. 10AP-1155                                                                                     4
must be affirmed by a reviewing court. C.E. Morris Co. v. Foley Constr. Co. (1978), 54
Ohio St.2d 279, syllabus. A reviewing court should not reverse a decision simply because
it  holds  a  different opinion  concerning the  credibility of  the  witnesses  and  evidence
submitted before the trial court. Seasons Coal Co., Inc. v. Cleveland  (1984), 10 Ohio
St.3d  77,  81. A finding of an error in law is a legitimate ground for reversal, but a
difference of opinion on credibility of witnesses and evidence is not. Id. The applicable
standard requires the appellate court to give the trial court's decision a presumption of
correctness, and we may not substitute our judgment for that of the trial court. Id. This
presumption arises in part because the fact finder occupies the best position to observe
the  witnesses'  demeanor,  gestures,  and  voice  inflections,  and  to  utilize  these
observations in weighing credibility. Id. at 80.
{¶10}  R.C. 4112.02(A), Ohio's general anti-discrimination statute, provides that it
is  an  unlawful discriminatory practice  for any employer,  because  of  the  race,  color,
religion, sex, military status, national origin, disability, age, or ancestry of any person, to
refuse to hire that person. Ohio courts examine state employment discrimination claims
under federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000.   Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723. Title VII
jurisprudence imposes upon the plaintiff the initial burden of establishing a prima facie
case of discrimination. Bucher v. Sibcy Cline, Inc. (2000), 137 Ohio App.3d 230, 239,
citing McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817, 1824.
Once a plaintiff establishes a prima facie case, the employer is required to set forth some
legitimate, non-discriminatory basis or bases for its action. Id. If the employer is able to
meet this burden, the plaintiff is then afforded an opportunity to prove by a preponderance

No. 10AP-1155                                                                                   5
of the evidence that the legitimate reasons offered by the employer were not its true
reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v.
Burdine (1981), 450 U.S. 248, 253, 101 S.Ct. 1089, 1093.
{¶11}  To establish a prima facie case of  age discrimination,  where no direct
evidence is available, a plaintiff must demonstrate that he or she: (1) was a member of
the  statutorily  protected  class,  i.e.,  was  at  least                                      40  years  old  at  the  time  of  the
discrimination, (2) was discharged, (3) was qualified for the position, and (4) was replaced
by, or the discharge permitted the retention of, a person of substantially younger age.
Coryell at paragraph one of the syllabus.
{¶12}  In the present case, the trial court found that Knepper had established a
prima facie case for age discrimination, and OSU successfully overcame the presumption
of  discrimination  by articulating a  legitimate,  non-discriminatory reason for not  hiring
Knepper; specifically, Knepper lacked the necessary computer skills and experience in
managing complex projects. Thus, Knepper was required to present evidence that OSU's
reasons were a mere pretext for discrimination. To establish pretext, a plaintiff must
demonstrate that the proffered reason  (1) has no basis in  fact,  (2) did not actually
motivate  the  employer's  challenged  conduct,  or                                             (3)  was  insufficient  to  warrant  the
challenged  conduct.  Dews  v.  A.B.  Dick  Co.                                                 (C.A.6,                                    2000),   231  F.3d  1016,  1021.
Regardless of which option is chosen, the plaintiff must produce sufficient evidence from
which the trier of fact could reasonably reject the employer's explanation and infer that the
employer intentionally discriminated against him. Johnson v. Kroger Co. (C.A.6, 2003),
319 F.3d 858, 866. A reason cannot be proved to be a pretext for discrimination unless it

No. 10AP-1155                                                                                    6
is shown both that the reason was false, and that discrimination was the real reason. St.
Mary's Honor Ctr. v. Hicks (1993), 509 U.S. 502, 515, 113 S.Ct. 2742, 2752.
{¶13}  Here, Knepper argues that the trial court failed to address the numerous
examples of pretext that he presented at trial. He first contests the trial court's conclusion
that Fugman and Weber were more qualified for the positions. Knepper's contentions can
be summarized as follows: (1) Fugman did not satisfy the education requirement of the
job posting because he had a bachelor's degree in media studies and not the posted
requirement of a bachelor's degree in fine arts, and (2) Fugman had only five months of
employment as a temporary exhibitions designer at OSU, while Knepper had 24 years of
experience related to the posted requirements of handling artwork in a museum setting,
managing complex projects, and in-depth knowledge of contemporary art.
{¶14}  With regard to Weber, Knepper argues he was more qualified, as well, for
the following reasons: (1) although both he and Weber had master's degrees in fine arts,
Weber had only six months of experience related to each job requirement, compared to
Knepper's  24 years of experience with regard to the posted requirements of handling
artwork in a museum setting, managing complex projects, carpentry and construction
skills; and in-depth knowledge of contemporary art,  (2) Weber listed no carpentry or
construction skills, while Knepper had 30 years of residential and commercial carpentry
and construction experience, (3)   Weber was never given the supplemental application
questions, as was Knepper, which asked questions regarding years of paid employment,
educational background and/or work experience related to fine art, years of experience in
a contemporary art setting, experience in managing complex projects, and carpentry and
constructions skills.

No. 10AP-1155                                                                                     7
{¶15}  Knepper  points  to  Weber's  and  Fugman's  failure  to  satisfy  the  listed
requirements of the position as evidence of pretext. We disagree that this necessarily
demonstrates pretext. In Wrenn v. Gould (C.A.6, 1987), 808 F.2d 493, the plaintiff argued
he was discriminated against and was the only candidate qualified for the position. In
denying the plaintiff's appeal, the court held that an initial posting that required a master's
degree was merely an employment preference and not tantamount to a "public quote
contract." Id. at  502. Additionally, the court recognized that it was permissible for an
employer to take factors into account beyond those posted when selecting among job
applicants. Id. See also Briggs v. Anderson (C.A.8, 1986), 796 F.2d 1009, 1026 (evidence
of discrimination is not conclusively proven by the employer's departure from stated
minimum   qualification   requirements,   because   a   successful   applicant's   strong
qualifications in other areas sought by the employer tend to disprove an inference of
discrimination).
{¶16}  Here, the trial court cited evidence that Fugman and Weber possessed
other qualifications and characteristics that were not specifically listed in the posting.
Specifically, Fugman and Weber had computer experience that Knepper did not possess.
On this issue, the testimony was clear. Peggy Fochtman, the human resource manager at
the Wexner Center who was present during the interviews, and Jill Davis, the exhibitions
manager at the Wexner Center, who was also present during the interviews, both agreed
that the pertinent jobs had evolved and the job postings should have listed computer
modeling and 3-D imaging as requirements. In this respect, Fochtman testified she was
looking for model-building experience and computer experience, both of which were skills
she did not believe Knepper possessed. Davis, who made the ultimate hiring decision,

No. 10AP-1155                                                                                  8
testified that she was looking for designers with up-to-date computer skills and experience
with  3-D imaging software to build digital image models. She reiterated her affidavit
testimony that Knepper never learned how to build models using the computer, and she
testified she did not believe he was open to learning new methods of doing things.
Knepper also never mentioned to her during the interview that he had computer skills,
and when Davis asked him about such, he did not respond. Knepper conceded he did not
respond to the interview question about computer modeling and skills because he was
not expecting the question.
{¶17}  Knepper points to Heller's testimony to support his claim that he possessed
sufficient computer skills. Heller, who was the chief preparator at the Wexner Center and
also  on  the  interview  committee,  testified  that  Knepper  had  computer  training  and
experience, and he believed Knepper had sufficient computer knowledge for the jobs at
issue and could receive additional training, if necessary. Heller agreed that computer
skills were absolutely necessary to the job. However, Knepper admitted he and Heller
had been "dear" friends for 15 to 20 years and would be friends forever. Davis said she
believed Heller testified that Knepper was the best person for the job because he and
Knepper are very good friends, and Heller did not want to damage Knepper's case. Davis
also said that Heller never told her that Knepper had computer experience or that he
thought Knepper was the better candidate. Thus, the trial court could have found Heller's
testimony unconvincing.
{¶18}  Knepper's  own  testimony  regarding  his  computer  experience  was  also
unpersuasive. Knepper points out that he had training in the computer design programs
VectorWorks and Visio, and both Fochtman and Davis testified they were unaware of his

No. 10AP-1155                                                                                9
experience. However, Knepper did not specify the depth of this training, except that his
VectorWorks training included self-tutorials and his Visio training was for an unspecified
period in Dublin, Ohio. Importantly, Knepper never testified that he actually could use
these programs with any proficiency. Knepper did testify that he used e-mail daily, had
early access to computers at OSU, and was "quite friendly" with computers; however, this
experience does not equate to experience with complex  3-D imaging programs and
model-building  programs.  Again,  as  mentioned  above,  Knepper  admittedly  failed  to
answer  the  question  during  his  interview  about  his  computer  and  model-building
experience, leaving the committee to question whether he had such experience.
{¶19}  As for Weber's and Fugman's computer skills, Davis testified that both had
considerable skills in this regard. Although Knepper points to the fact that Weber had no
experience  with  VectorWorks,  Davis  testified  Weber  had  experience  with  other  3-D
imaging software and was very skilled on computers. Heller also wrote in his notes that,
although Weber did  not  know how to  use  VectorWorks,  he wanted  to  learn.  Heller
believed that both Fugman and Weber were qualified for the positions, which he admitted
"absolutely" required computer skills.
{¶20}  We also note that, besides Knepper's lack of computer skills, there was
evidence presented that Knepper was deficient in other areas pertinent to the job, while
Fugman and Weber possessed favorable traits. Fochtman testified Knepper did not have
experience managing complex projects. Also, Davis, in an affidavit referred to during her
testimony, stated she believed Knepper was non-communicative, closed-minded, and
demonstrated contempt for management. She did not like how he communicated with his
boss and thought he lacked the communication skills necessary for the job. Davis also

No. 10AP-1155                                                                                  10
found Knepper quiet, reserved, an ineffective communicator, and closed to suggestions
from others. Davis also testified that Weber and Fugman were team players who got
along with the rest of the department. She believed Fugman had good communication
skills, spoke his mind, was friendly, was open to working with a team, and understood the
hierarchy of the system. As for Weber, Davis thought he was a good communicator.
Thus, we find this argument without merit.
{¶21}  Knepper also argues under this assignment of error that there was an
irregularity in the hiring process that supports evidence of pretext. Specifically, Knepper
contends that Fugman and Weber were hired for their positions prior to the interviews of
any of the candidates, pointing to two position descriptions generated by OSU during the
job-posting  process.  One  document  indicated  that  Fugman's  position  as  assistant
exhibition designer was approved and effective on September 9, 2005, six weeks prior to
the job posting, and the other document indicated Weber's position as assistant exhibition
designer was approved and effective on November 2, 2005, 11 days prior to that job
posting. However, the position descriptions were not signed, and Davis testified that she
had never seen these specific documents, and her office did not generate them. Davis
also verified that she did not make her hiring decision until all of the interviews were
completed on November 17, 2005. Fochtman did not testify regarding these documents,
and we have no further insight into their origin. Therefore, we agree with the trial court
that,  without  some  other  evidence  explaining  them  or  corroborating  the  implication
suggested  by  them,  we  cannot  find  that  they  establish  OSU  engaged  in  age
discrimination in hiring Fugman and Weber. Thus, we find this argument without merit.

No. 10AP-1155                                                                                      11
{¶22}  Knepper  also  argues  that  pretext  was  evident  in  OSU's  inconsistent
reasons for rejecting Knepper for the positions. Specifically, Knepper contends an e-mail
Fochtman sent him conflicted with Davis's trial testimony. Knepper points out that, in the
e-mail, Fochtman told Knepper that he was not chosen for the positions because he did
not have any experience managing complex projects, and the chosen candidates were
better qualified in model building and computers. He further points out that Davis testified
she believed he lacked communication skills, was not a team player, and was not open to
new methods or suggestions. However, Knepper fails to acknowledge that a significant
factor cited by Davis at trial for not hiring him was his lack of computer and model-building
skills,  which  was  the  same  reason  cited  by  Fochtman.  Knepper's  lack  of  computer
experience was a major issue at trial, and both Davis and Fochtman agreed these skills
were necessary to keep the Wexner Center moving forward. That Fochtman and Davis
might have had additional and/or personal reasons for believing Knepper was not the
best  candidate for the  positions  is  not evidence  of  pretext.  Significant  is  that  Davis
testified that the ultimate hiring decision was hers, yet Knepper never asked Davis why he
was not hired. Knepper guides us to no authority for the proposition that all members of a
hiring committee must have the same opinions about candidates, lest pretext be inferred.
For these reasons, we find this argument without merit.
{¶23}  It is important to keep in mind that the issue before the trial court was not
whether OSU made the best possible decision in not hiring Knepper, but whether it made
a discriminatory decision. See Stein v. Natl. City Bank  (C.A.6,  1991),  942 F.2d 1062,
1065 (stating it is not the function of courts to judge the wisdom of particular business
policies). There is a lack of evidence that OSU made a discriminatory decision. Rather,

No. 10AP-1155                                                                                  12
the evidence was convincing that Knepper did not possess the computer, model-building,
and 3-D imaging skills important to the position, and Weber and Fugman did. In addition,
there  was  evidence  from  Fochtman  and  Davis  that  Knepper lacked  other important
qualities desired for the position. For these reasons, we cannot find the trial court's
decision in favor of OSU on Knepper's age discrimination claim was against the manifest
weight of the evidence. Knepper's first assignment of error is overruled.
{¶24}  Knepper argues in his second assignment of error that the trial court erred
when it granted summary judgment with regard to his retaliation claim. When reviewing a
motion for summary judgment, courts must proceed cautiously and award  summary
judgment only when appropriate. Franks v. The Lima News (1996), 109 Ohio App.3d 408.
Civ.R.                                                                                         56(C)  provides  that,  before  summary  judgment  may  be  granted,  it  must  be
determined that  (1) no genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the
evidence  that  reasonable  minds  can  come  to  but  one  conclusion,  and  viewing  the
evidence most strongly in favor of the non-moving party, that conclusion is adverse to the
non-moving party. State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 1994-Ohio-
130.   When reviewing the judgment of the trial court, an appellate court reviews the case
de novo. Franks.
{¶25}  As  mentioned  above,  R.C.                                                             4112.02(l)  provides  that  it  is  unlawful  to
discriminate against a person because that person made a charge of discrimination. A
claim for retaliation invokes a shifting burden method of proof. First, a plaintiff must
establish a prima facie case, consisting of four elements: (1) she engaged in protected
activity;                                                                                      (2)  the  employer  knew of  her  participation  in  the  protected  activity;       (3)  the

No. 10AP-1155                                                                                         13
employer took adverse action against her; and  (4) a causal link existed between the
protected activity and the adverse action. Chandler v. Empire Chem., Inc. (1994), 99 Ohio
App.3d  396.  If  the  plaintiff  establishes  a  prima  facie  case,  the  burden  shifts  to  the
defendant-employer, and it must state a legitimate, non-discriminatory reason for taking
the adverse action. Id. Finally, if the defendant-employer proves equal to its burden, the
burden shifts back to the plaintiff, and she must prove that the defendant-employer's
reason is mere pretext for unlawful retaliation. Id. A reason cannot be proved to be a
pretext for discrimination unless it is shown both that the reason was false and that
discrimination was the real reason. St. Mary's Honor Ctr. at 515.
{¶26}  In the present case, the trial court granted summary judgment to OSU
based upon findings that (1) Knepper's April 26, 2004 letter to Metzelaars, the Wexner
Center's director of administration, expressing his belief that he had been discriminated
against did not rise to the level of protected activity, which relates to the first element of a
prima facie case of retaliation, and  (2) even if Knepper's letter constituted protected
activity, Knepper failed to demonstrate a causal connection between his April 2004 letter
and OSU's November 2005 decision not to hire him, due to the length of time between
the two events, which relates to the fourth element of a prima facie case of retaliation.
{¶27}  Although Knepper herein contests both of the trial court's bases for granting
summary judgment, we will address the causation element first, as our analysis of that
element is dispositive of the entire claim. With regard to causation, Knepper argues that
the trial court erred when it concluded that there was insufficient evidence of a causal
connection between his April 26, 2004 letter to OSU and OSU's decision not to re-hire
him based upon the length of time that elapsed between the events. A causal connection

No. 10AP-1155                                                                                    14
is shown through direct evidence or through knowledge coupled with a closeness in time
that creates an inference of causation. Nguyen v. Cleveland (C.A.6, 2000), 229 F.3d 559,
566. Close temporal proximity between the employer's knowledge of the protected activity
and  the  adverse  employment  action  alone  may  be  significant  enough  to  constitute
evidence of a causal connection, but only if the adverse employment action occurs "very
close" in time after an employee learns of a protected activity. Clark Cty. School Dist. v.
Breeden (2001), 532 U.S. 268, 273, 121 S.Ct. 1508, 1511; Mickey v. Zeidler Tool & Die
Co.  (C.A.6,  2008),  516 F.3d  516,  525  (employee was fired on the day his employer
learned that he had filed an EEOC complaint); Payton v. Receivables Outsourcing, Inc.,
163 Ohio App.3d 722, 2005-Ohio-4978 (two-day interval); Thatcher v. Goodwill Industries
of Akron (1997), 117 Ohio App.3d 525, 535 (three-week interval).
{¶28}  However,  if  some  time  elapses  between  the  protected  activity and  the
subsequent adverse employment action, the employee must produce other evidence of
retaliatory conduct, namely, evidence of additional discrimination, to establish causation.
Mickey at 525; see also Hall v. Banc One Mgt. Corp., 10th Dist. No. 04AP-905, 2006-
Ohio-913, ¶47 (interval of two months between complaint and adverse action "so dilutes
any inference of causation that we are constrained to hold as a matter of law that the
temporal connection could not justify a finding in [plaintiff's] favor on the matter of causal
link"), reversed on other grounds, 114 Ohio St.3d 484, 2007-Ohio-4640; Ningard v. Shin
Etsu Silicones, 9th Dist. No. 24524, 2009-Ohio-3171, ¶17 (holding that mere temporal
proximity does not suffice, especially when the events are separated by more than a few
days or weeks); Boggs v. The Scotts Co., 10th Dist. No. 04AP-425, 2005-Ohio-1264, ¶26
(additional evidence required after two-month interval); Aycox v. Columbus Bd. of Edn.,

No. 10AP-1155                                                                                      15
10th Dist. No. 03AP-1285, 2005-Ohio-69, ¶21 (additional evidence required after two- to
four-month  interval);  Briner v.  Natl.  City  Bank  (Feb.  17,  1994),  8th  Dist.  No.  64610
(additional evidence required after three-month interval).
{¶29}  In  the  present  case,  no  inference  of  causation  can  be  deduced  from
"temporal proximity." Knepper's attorney sent the letter to OSU in April 2004, and OSU
rejected Knepper for the two positions in November 2005. Thus, OSU rejected Knepper
19 months after he sent the letter alleging age discrimination.   Accordingly, to survive
summary judgment, Knepper was required to submit additional evidence of retaliatory
conduct or discriminatory intent between the time he took part in the protected activity and
the time he was rejected for a new position. See Hall at ¶47; Ford v. Gen. Motors Corp.
(C.A.6, 2002), 305 F.3d 545, 552-53.
{¶30}  However,  Knepper  has  not  submitted  additional  evidence  of  retaliatory
conduct or discriminatory intent. Indeed, the record reveals the opposite. In reply to the
April 2004 letter, Metzelaars sent Knepper a letter encouraging him to apply for another
job at OSU in the future, stating:
Should  Mr.  Knepper  still  be  interested  in  the  preparatory
position at the time the position is posted, we would welcome
his application for that job or for any positions that may open
at the Wexner Center for the Arts that match his qualifications.
On  April                                                                                          15,   2004,  Mr.  Knepper  was  given  a  listing  of
telephone numbers of OSU contacts that might be of use to
him.  One  of  those  numbers  was  Employment  Services,
specifically Kathy Henderson. Mr. Knepper may work with Ms.
Henderson for assistance with applying for open positions
within the University.
{¶31}  Knepper acknowledged Metzelaars's support at trial, testifying that he "was
encouraged by Ms. Metzel[a]ars to apply whenever there [was] an opening." In addition,

No. 10AP-1155                                                                                16
that Knepper was actually granted an interview in November 2005 after applying for the
positions is suggestive, in and of itself, that OSU was not retaliating or discriminating
against him for the April 2004 letter. Favorable conduct toward the employee after the
protected activity occurs is not indicative of retaliatory conduct. See Meyers v. Goodrich
Corp., 8th Dist. No. 95996, 2011-Ohio-3261, ¶35. Furthermore, that Fochtman and Davis
presented several reasons why Knepper was not hired, as outlined above, supports a
finding that Knepper's rejection for the new positions was based upon legitimate reasons
and not in retaliation for his letter. Thus, we conclude that Knepper did not raise any
genuine issue of material fact regarding a causal link between the protected activity and
his rejection for a new position. Knepper has failed to meet his burden of demonstrating
OSU's reasons for not hiring him  were a pretext. Therefore, the trial court properly
granted  summary  judgment  to  OSU  on  Knepper's  retaliation  claim,  and  his  second
assignment of error is overruled.
{¶32}  Accordingly, Knepper's two assignments of error are overruled, and the
judgments of the Court of Claims of Ohio are affirmed.
Judgments affirmed.
BRYANT, P.J., and TYACK, J., concur.

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