There is an interesting decision in the case of Ohio Northern University law professor Scott Gerber (left), who sued over what he described as a pattern of bullying by this colleagues, including assault and battery law professor Stephen Veltri (right), who had served as associate dean and interim dean in 2011 and 2012, in grading and squeezing his shoulder. U.S. District Judge Jack Zouhary ruled that Berber could pursue claims of assault and battery, but not intentional infliction of emotional distress. The case is Gerber v. Ohio Northern Univ., 2015 U.S. Dist. LEXIS 56767
The Amended Complaint of over 200 pages details more than seven years of examples of workplace grievances where Gerber claims to have been, according to the decision, “bullied, lied to, retaliated against, and wrongly denied more than one hundred thousand dollars in retirement benefits.” The decision below details run-ins with the faculty over its internal grievance procedures, particularly over a decision not to reappoint Berger to an academic chair. The faculty eliminated provisions under which Gerber had filed grievances in a rising level of conflict over the actions. The Court then describes the actionable squeeze:
“Veltri figures chief among Gerber’s “bullies” in the Complaint. Veltri “had previously sworn at and blown up at Mr. Gerber” during a 2007 faculty meeting chaired by Crago, [*12] who asked Veltri to issue Gerber a written apology (id. at ¶ 17). In 2011, Veltri “hit Mr. Gerber with his door to the office while he was yelling at Mr. Gerber that he is ‘not accountable to’ Mr. Gerber.” Gerber complained to Crago about this second incident (id.). Veltri had “yelled at other people” at ONU, too (id. at ¶ 18).
Then, in October 2012, Veltri “verbally berated and attacked Mr. Gerber as he grabbed and squeezed Mr. Gerber’s shoulder in a tight and strong fashion with the belief that an injury was substantially certain to occur, which it did” (id. at ¶ 17). One year later Gerber sought medical treatment for shoulder pain that he believed Veltri caused (Doc. 8-2 at 49-51). Dr. Michael Muha concluded in his written assessment that Gerber’s right shoulder pain, possibly a rotator cuff tear, was “[p]robably mostly degenerative in nature” (id. at 50). Dr. Muha did not opine in writing on Veltri’s role in causing the shoulder pain. But Gerber affirms under penalty of perjury (see Doc. 8 at 34) that Dr. Muha “indicated that, at a minimum, the painful symptoms Mr. Gerber has experienced with his torn rotator cuff since the incident were caused by Mr. Veltri’s conduct on October 8, 2012” (id. at ¶ [*13] 38; see also Doc. 20 at 5-6).
Gerber promptly reported the alleged assault to ONU security officer Ellie Laubis, “who concluded that Mr. Veltri had committed on assault on Mr. Gerber” (Doc. 8 at ¶ 25). At Officer Laubis’ direction, Gerber also reported the incident to the Campus Security Hotline (Doc. 8-3 at 44). He traded e-mails with Director of Human Resources Tonya Paul, who asked to interview Gerber. When pressed by Gerber to identify a University policy that called for Human Resources involvement, Paul responded that the “intent” of ONU campus security policies was that campus security and the Campus Security Hotline should be contacted “only . . . when criminal activity involving a student(s) arises on campus.” She explained that ONU’s past practice of responding to staff-on-staff violence included investigation by Human Resources (id. at 44-45). Gerber says Paul lied to him about “whether Ohio Northern University Security has jurisdiction over workplace violence” (Doc. 8 at ¶ 22). The relevant policies clearly state that campus security should be contacted in all cases of on-campus criminal activity (see Doc. 8-1 at 43-44, 46-47).
Gerber later reported the incident to the Occupational Safety [*14] and Health Administration (the first of five such complaints on different topics, Doc. 8 at ¶ 68), the Kenton City Prosecutor, the Ada Police Department, the American Bar Association, and the National Association of Scholars (“NAS”) (id. at ¶ 78). Paul initially denied that OSHA had “jurisdiction” over ONU. OSHA found the response unacceptable, and ONU admitted that OSHA did in fact have jurisdiction over the Veltri incident (id. at ¶ 68).
Back at the Law School, Veltri began “glaring” at Gerber (id. at ¶ 45). Crago appointed Veltri interim Law School Dean over Gerber’s objection (id. at ¶ 18).”
Gerber says that things only got worse, particularly after OSHA closed its investigation. Gerber continued to grieve including another complaint to OSHA that the university had not properly compensated him for his many publications. He also says that, in April 2013, Professor Mike Lewis (right) allegedly “bullied” Gerber and Crago refused to meet with Gerber about the episode. He also alleges that the later Dean started recording meetings with him and ordered Gerber to teach an extra course on a topic he had not studied in law school and which fell outside of his scholarly focus. He was also allegedly barred from serving on a faculty committee aside from the Tenure Committee. In 2013, Gerber also complained about bullying and other issues to the ABA’s 2013-14 re-accreditation site team during its visit but says that the school ignored the team’s suggestion that such concerns be addressed.
The complaint alleges Breach of Contract (Count I); Assault and Battery (Counts II and III) as to Veltri; Intentional Infliction of Emotional Distress (Count IV) as to Bales, Crago, Paul and Veltri; Negligent Retention and Supervision (Count V); an ERISA claim (Count VI); Retaliation under Ohio Revised Code § 4113.52 (Count VII); and Common law retaliation (Count VIII). He also brought in two derivative-liability claims for the actions of its employees on the basis of respondeat superior: Assault and Battery (Counts II and III) and Intentional Infliction of Emotional Distress (Count IV) because of the individual Defendant’s conduct.
The court rejects most of the claims in fairly harsh language:
“None of the many actions listed in any of Gerber’s IIED claims, directed against the individual Defendants, allege a plausible IIED claim. Gerber alleges dozens of purportedly outrageous actions. This Court will not discuss each of these meritless claims in detail. But to take only a few examples: As a matter of law, Crago and Veltri’s support for modifications to the Internal Grievance Procedure is not outrageous; it is an example of a common dispute between a university administrator (who favors procedures granting the administration greater discretion) and a faculty member (who favors procedures that check administrator discretion).
It is neither extreme nor outrageous that Crago asked Gerber to teach an additional class on a topic Gerber had not taken in law school; a request to take on extra work, dealing with unfamiliar issues, is a normal part of many jobs.”
However, after refusing to allow Gerber to amend his complaint, the Court allows him to proceed on a few surviving counts: Count V (Negligent Retention and Supervision, based on the Veltri incident) as to the university and VI (ERISA violation), and Counts II (assault) and III (battery) against Veltri. I remain a bit skeptical on the chances for Counts II and III. My initial impression would be that any chance, if any, of recovery would come under Counts V and VI against the university.
The lawsuit shows an incredible breakdown of faculty relations, a breakdown that will only grow worse with further litigation. It is a remarkable turn of event for both Gerber and his colleagues. Professor Gerber has an impressive background as a lawyer and as an academic:
Professor Gerber clerked for U.S. District Judge Ernest C. Torres of the District of Rhode Island and practiced with the Boston-based law firm Bingham, Dana & Gould (now Bingham McCutchen). He is a member of the Massachusetts, Colorado, and Virginia bars, as well as the U.S. Supreme Court bar. He is the 2002, 2009, 2011, and 2012 winner of the Fowler V. Harper Award for excellence in legal scholarship and the 2004 and 2013 recipient of the Daniel S. Guy Award for excellence in legal journalism. He held the Ella & Ernest Fisher Chair in Law at Ohio Northern University from 2008-10. In 2008, he was appointed to a two-year term on the Ohio Advisory Committee of the U.S. Commission on Civil Rights. He was reappointed to a second two-year term in 2010, to a third two-year term in 2012, and to a fourth two-year term in 2014. StateStats.org named him one of the top law professors in Ohio. – See more at: https://law.onu.edu/faculty_staff/faculty_staff_profiles/scott_d_gerber#sthash.IsTGCv2D.dpuf
Here is the opinion: Gerber Opinion