An Ohio state appeals court has reversed a trial court’s grant of summary judgment to Ohio Northern University, which was sued by its former head football coach for breach of contract and other claims.
In so ruling, the appeals court found that it was premature to rule on the defendant’s summary judgment motion since the “evidence in the record” had not been sufficiently developed through discovery.
The plaintiff in the case was Thomas A. Kaczkowski, who had joined Ohio Northern in 1984 as an assistant football coach. He became the head football coach in 1986, a position he retained until he was terminated by the university in 2004.
The legal controversy surfaced in the summer of 2003 when Kaczkowski’s players began participating in voluntary throwing sessions and workouts. The court noted that on August 18, 2003, approximately 50 players returned early to the campus with plans to practice together prior to the date set aside for official practices by the NCAA.
“According to Kaczkowski,” wrote the court, “he realized the potential for both chaos and injury unless there was some organization to the ‘unplanned’ workouts and instructed his assistants to let the players know when the weight rooms would be open and what field each group of players could use each day. On that same day, Kaczkowski admitted to stopping by the group workout session and answering players’ questions and making suggestions about drills to run and/or techniques to practice.”
The problem was further compounded on August 19, 2003, when an NFL scout arrived at Ohio Northern seeking game films and other information regarding the team’s senior quarterback.
“When the scout realized that the senior quarterback was on campus and conducting throwing sessions, he wanted to observe him,” noted the court. “Kaczkowski escorted the scout onto the field and introduced him to the senior quarterback. During the visit on the field, Kaczkowski allegedly directed the senior quarterback on plays to make while the scout observed.”
Shortly after the scout’s visit, Ohio Northern’s AD Thomas Simmons approached Kaczkowski and advised him that neither he nor his assistants should be out on the field with the players before pre-season camp officially began. The next morning, Simmons visited Kaczkowski in his office and “repeated his concern” about coaches being present before the pre-season camp. “Simmons further indicated that he would place a memorandum in Kaczkowski’s personnel file,” which read as follows:
“As we discussed today, I am informing you that contact with your players outside the NCAA-approved dates is not acceptable and I am required to enforce those dates. If this occurs again I will have no choice but to self-report to the NCAA. This note will be kept in your confidential file and will not be shared with anyone on campus.”
Even after the memo, “Ohio Northern, with the assistance of counsel, started the process of conducting an investigation into allegations that surfaced regarding the pre-August 24, 2003, activities of Kaczkowski conducting football practices in violation of NCAA rules. Simmons met with Kaczkowski after a morning practice and ordered him to have Assistant Coach Denver Williams report to a conference room for questioning. The following day, Simmons ordered Kaczkowski to have 12 players report for interviews.”
Coach’s Dismissal Is Expedited
Kaczkowski’s position grew even more tenuous when, on September 3, he was escorted off the football field during practice to report to Dr. Anne Lippert, the Vice-President of Academic Affairs for Ohio Northern.
“When he arrived in her office, he was introduced to Christopher Yost, a labor and employment attorney from Vorys, Sater, Seymore & Pease, Ohio Northern’s outside legal counsel, and he was asked to introduce Attorney Yost to the players. Attorney Yost announced to the team that an investigation into possible NCAA rule violations was under way, and that he would be escorting several players off the practice field to be questioned. On September 3 and 4, 2003, Attorney Yost continued his internal investigation and interviewed approximately 32 witnesses, including football players and assistant coaches.”
On September 5, Kaczkowski met with Dr. Lippert and was informed that his resignation was being requested both as a coach and a faculty member. The following day, Kaczkowski met with Dr. Lippert again and was informed that he had been suspended. He was offered the opportunity to resign his employment with a severance package and a neutral reference on any subsequent job search. Kaczkowski refused the offer.
A day later, school president Dr. Kendall L. Baker allegedly initiated proceedings to dismiss Kaczkowski, pursuant to the dismissal procedure outlined in Ohio Northern’s Faculty Handbook. That same day, Dr. Baker and Simmons informed the football team that Kaczkowski had committed NCAA violations and had been placed on administrative leave due to those violations. Dr. Baker shared the news with the media as well.
“Kaczkowski eventually received a hearing before a five-person faculty committee of his peers,” according to the court. “The hearing was conducted through several sessions over a period of several weeks and apparently provided both Kaczkowski and Ohio Northern an opportunity to present evidence in support of their positions and to object as necessary. The hearing apparently resulted in several hundreds of pages of transcripts, as well as a written post-hearing brief by both Appellant and Ohio Northern.
“In any event, after several months, the faculty committee determined that sufficient evidence existed to find just cause existed to terminate Kaczkowski’s employment with Ohio Northern. On May 5, 2004, Kaczkowski was notified by certified letter that the Board of Trustees had voted to dismiss him from the faculty and that his employment at Ohio Northern was thereby terminated effective May 1, 2004.”
Kaczkowski appealed his dismissal on May 10, 2004, asking to proceed directly to stage five of the grievance procedures. The next day, Ohio Northern accepted Kaczkowski’s proposal in writing and informed his attorney in writing that he had one week from May 10, 2004, in which to file a written grievance with Dr. Jonathan Smalley, the Chair of Ohio Northern’s Grievance Committee. However, Kaczkowski never did submit a grievance with Dr. Smalley within the allotted seven days, voiding the appeal.
On November 16, 2004, Kaczkowski filed suit in state court, alleging six causes of action against Ohio Northern, Dr. Baker, and Simmons including (1) Breach of Employment Contract; (2) Intentional Interference with Employment Contract; (3) Defamation by Defendant Baker; (4) Defamation by Defendant Simmons; (5) Intentional Infliction of Emotional Distress; and (6) Age Discrimination.
On January 13, 2005, Ohio Northern, Dr. Baker and Simmons filed a joint motion to dismiss and/or motion for summary judgment. Five months later, without any discovery filed, the trial court granted summary judgment for the defendants.
Kaczkowski appealed on July 8 of the same year, arguing essentially that the trial court’s decision was premature, since a limited amount of discovery had taken place.
The court agreed, finding that “the evidentiary record in this case was not developed in the manner necessary to properly determine a motion for summary judgment.
“As a result of these errors, the record is significantly deficient with regard to the underlying facts and circumstances of the dismissal in this case, which we view as fundamental to any determination of summary judgment.”
Questions Remain Unanswered
“In any event, these unanswered questions include:
“(1) to what extent, if any, the letter or memorandum of reprimand placed in the coach’s file by Simmons is a binding part of a progressive discipline policy which may have been violated by jumping directly to dismissal without further incident;
“(2) exactly which “just cause” from the list of just causes for dismissal in the university handbook is alleged and relied upon by the university for the dismissal, See Ohio Northern Faculty Handbook Section 2.7.1;
“(3) although the coach was apparently brought in to consult with Dr. Anne Lippert, there is no indication in the record as to whether the requisite faculty mediation committee was ever activated as specified in the handbook prior to any dismissal notice or whether any requisite recommendation of the committee to the President was made, See Ohio Northern Faculty Handbook Section 2.7.2;
“(4) there is no indication in the record as to whether following the mediation efforts and committee recommendation, the requisite letter, statement or “charging document” from the University President as specified in the handbook, was issued to the coach, or if issued, what it stated, See Ohio Northern Faculty Handbook Section 2.7.2-3;
“(5) although there was apparently a considerable number of player interviews and/or other testimony before a faculty hearing committee over several months, supposedly relevant to the circumstances constituting the alleged “just cause” for dismissal, none of this testimony or evidence is in the record – again providing no evidentiary indication of the extent to which any violations by the coach were willful, persistent or otherwise constituted a defined “just cause” for dismissal as listed in the handbook;
“(6) the final decision of the faculty hearing committee, while declaring just cause for termination, neither recites any evidence, nor identifies which just cause from the listed causes in the handbook was determined by the committee, See Ohio Northern Faculty Handbook Section 2.7.10;
“(7) although required and specified in the handbook, a final letter of termination to be issued by the University Trustees based upon the action of the faculty committee is not in the record, See Ohio Northern Faculty Handbook Section 2.7.12.
“In sum, while summary judgment in this case could still eventually prove to be appropriate upon proper discovery and the creation of an adequate evidentiary record pursuant to the standards of Civ. R. 56, the existing record before us does not permit a fair or sound determination of such a judgment as to any of the issues raised in the complaint. Simply put, it is our conclusion that as a result of the absence of evidence in the record, neither party can properly demonstrate from the existing record the absence or presence of genuine issues of material fact at this time. Accordingly, and to this extent only, the assignments of error are sustained.
“However, because additional discovery efforts were initiated but never completed in the trial court, we are not prepared to simply deduce that genuine issues of material fact must exist, reverse the judgment of the trial court, and remand for trial. On the contrary, while incomplete, the existing record gives ample indication that evidence and documentation exists in this case which if produced and entered into the record, would likely enable the trial court and/or this court to make a proper determination, one way or the other, of the summary judgment motions.
“Accordingly, the trial court’s order of summary judgment is vacated and the matter is remanded to the trial court for the conduct and/or completion of any new or previously requested discovery, introduction of underlying University transcripts and documents by the parties pursuant to Civ. R. 56, such as may be necessary to properly determine any currently filed or subsequently filed supplemental motions for summary judgment, or for any other proceedings consistent with this opinion.”
Thomas H. Kaczkowski v. Ohio Northern University, et al.; Ct. App. Ohio, 3d App. Dist., Hardin Co.; Case Number 6-05-08; 2006 Ohio 2373; 2006 Ohio App. LEXIS 2275; 5/15/06
Attorneys of record: (for appellant) Marc J. Kessler, Columbus, OH. John M. Tudor, Kenton, OH. (for appellees) G. Ross Bridgman Attorney at Law, Kelly Jennings Yeoman, Attorney at Law, Columbus, OH, For Appellees.
