Szeinbach v. Ohio State University (987 F. Supp. 2d 732, 2013)

DECISION

MARK R. ABEL, United States Magistrate Judge.

This matter is before the Court on defendant The Ohio State University’s May 22, 2013 renewed motion for summary judgment (doc. 123).

I. Overview

Szeinbach came to OSU’s College of Pharmacy (“COP”) from the University of Mississippi in 1999, starting as a full professor with tenure. (Szeinbach Dep.; Doc. 122-17 at 3.) Szeinbach is currently employed in OOP’s Division of Pharmacy Practice and Administration (“PPAD”). In 2002, COP hired Dr. Enrique SeoaneVazquez (“Seoane”), a native of Spain, as an assistant professor. In 2005, it hired Dr. Rajesh Balkrishnan (“Balkrishnan”), a native of India, as an associate professor with tenure. Prior to Balkrishnan’s hiring, Szeinbach had met him at a meeting and formed an opinion that he was rude and disrespectful. (Id. at 10.) At the faculty meeting to approve Balkrishnan’s tenure, Szeinbach voiced her concerns about him, and she was displeased when he was hired. (Id. at 8,10.)

In 2005, Dr. Milap Nahata (“Nahata”), the chairman of PPAD, appointed Balkrishnan to prepare and present Seoane’s February 9, 2005 annual review to PPAD’s promotion and tenure committee. According to Szeinbach, she had observed Balkrishnan and Nahata discriminating in favor of students of Indian origin. (Doc. 135-1 at 3.) At Seoane’s review, Balkrishnan apparently made plain his opinion that he was not a productive member of the COP faculty. (Doc. 98 at 4; 98-1 at 7.) The next day, Szeinbach sent an email to Robert Brueggemeier, the dean of COP:

Dear Bob: I attended the P & T meeting yesterday. I have questions regarding the fairness of the evaluation that was performed for Enrique SeoaneVazquez. I felt the presentation of the evaluation was intentionally very biased against Enrique — there was a lot of discussion as well. I was wondering if Enrique should be evaluated at all given his extensive illness, where his recovery took several months. Also, I wanted to provide a message a priori so there is an awareness of the situation—

I would not send this message unless I felt very strongly that something is not right—

(Doc. 98-1 at 7.) In the following months, Szeinbach deliberately got to know Seoane better, and “wanted to work with him so that ... I could find out ... where’s all this coming from, maybe the faculty is right, maybe there’s something wrong with this guy.” (Doc. 110 at 56.) She concluded that there was “absolutely nothing wrong with Enrique” and that “for some reason people were really trying to sabotage his efforts to do research ... that’s when I became concerned and said, whoa, this — this has to stop.” (Id.)

On August 22, 2005, Seoane submitted an internal complaint at OSU, alleging “discrimination and retaliation.” (Doc. 98 at 4.) Szeinbach did not help him file it, and was not aware at the time that Seoane had filed the complaint. (Doc. 110 at 55-56.) She provided Seoane with a copy of her February 10, 2005 email to Dean Brueggemeier, but did nothing else in particular to support his complaint except that she “listened to him.” (Id. at 56.) The COP’s investigation committee investigated Seoane’s OSU-HR complaint, interviewing numerous faculty, including Szeinbach, Balkrishnan, Cynthia Carnes (“Carnes”), Craig Pedersen (“Pedersen”), and Phillip Schneider (“Schneider”). Szeinbach told the committee that Balkrishnan had attempted to change the ranking of one of Seoane’s students, that students had reported to her that Balkrishnan did not want Seoane’s students to do as well as his, and that an Indian graduate student had been told to switch to. an advisor of Indian national origin. (Doc. 135-5'at 4.) An OSU-HR investigator separately, in October 2005, . interviewed Szeinbach, Seoane, Schneider, and two graduate students concerning Seoane’s racial discrimination claims. Szeinbach told the OSU-HR investigator that Nahata and Balkrishnan were working together to end Seoane’s employment, and that some COP students were being told not to take her classes. She also told the investigator that Nahata had falsely reported that she had voted in favor of a negative annual review for Seoane. (Id.)

On November 3, 2005, Szeinbach sent an email to Dr. James Dalton (“Dalton”), the chairman of the promotion and tenure committee, complaining of several inaccuracies and omissions in materials which Nahata had recently circulated for Seoane’s fourth-year review. (Doc. 98-1 at 9-10.) Dalton responded to this email, noting that Brueggemeier had recently announced that the college would be restarting Seoane’s review and discarding all existing materials. (Id.)

Balkrishnan and Szeinbach clashed repeatedly. Pedersen testified at deposition that he had seen Szeinbach and Balkrishnan “go at it pretty good in faculty meetings”; they would “typically raise their voice at each other. And they would typically not treat the other one with respect.” He opined that they were both equally to blame for their personal conflicts, and that “they were both very good at raising the ire of the other one.” (Doc. 109 at 58.) Brueggemeier testified that for three years in a row he had to inform Balkrishnan that he was receiving a lower annual raise because of “his lack of ability to ... appropriately interact with students and faculty in the Division”. He referred to disagreements Balkrishnan had with Szeinbach, Seoane, Pedersen, and Schneider. (Doc. 116 at 6-7.)

On February 16, 2006, Balkrishnan sent an email to Dean Brueggemeier and Nahata complaining about teaching assistant-ship (“TA”, “GA”, or “GTA”) position allocations, and stating that he nevertheless understood if the department was funding “unqualified GAs” “for fear of additional ‘discrimination’ law suits, which are as usual, totally baseless.” (Doc. 118-11 at 2.) In May and June 2006, Balkrishnan allegedly advised his students not to participate in a research program Szeinbach advised, and complained about Szeinbach to a group of peers at a national conference. (Doc. 132 at 4; Doc. 130 at 15.) On June 23, 2006, Balkrishnan sent an email to Brueggemeier and Nahata alleging that a faculty candidate had been contacted several times by Szeinbach and advised not to come to the COP, because of discrimination there and the bad influence of Balkrishnan himself. (Doc. 118-11 at 6.) He alleged further that she had complained to a prospective PhD student that he was a “slavedriver” and “an evil person”, and that the candidate should work with her instead. Finally, he claimed that Szeinbach had slandered him and the COP at the recent International Society for Pharmacoeconomics and Outcomes Research meeting, and that she had falsely reported to OSU-HR that he was harassing her students. (Id.) On July 14, 2006, Balkrishnan sent an email to Brueggemeier complaining that in one of her classes Szeinbach gave her students the answers to exam questions the day before the exam. (Id. at 9.)

Several of Szeinbach’s colleagues (although not including Balkrishnan), sent Brueggemeier a letter on June 6, 2006, “to express the collective frustration and dissatisfaction of several Senior members of [PPAD] with ... Dr. Sheryl Szeinbach.” (Doc. 127-1 at 32.) They complained 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 alleged specifically that Szeinbach had done a poor job teaching individual classes, and that three graduate students had asked to have their advisor reassigned. They stated that “[njone of us feel that ... the Graduate Program [is] better now than when she came”, and stated that the complaints they were addressing were known to colleagues around the country, reflecting poorly on OOP’s reputation. (Doc. 127-1 at 32-33.)

On September 6, 2006, Seoane filed a charge of discrimination against OSU with the Equal Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). Szeinbach again did nothing specific to assist Seoane with filing this charge. (Doc. Ill at 27.) On the same day, Szeinbach sent Balkrishnan an email claiming that one of her graduate students reported that Balkrishnan had been harassing her to join his research instead. (Doc. 118-11 at 10.) Balkrishnan forwarded this email on to Brueggemeier and Nahata, stating that he was tired of baseless allegations and “harassment” from Szeinbach, and that “she also has a tendency to storm into my office and say things which do not make any sense”. (Id.) He then forwarded the email to Ms. Chitra Iyer, an HR officer at OSU, accompanied by a lengthy complaint against harassment on the part of Szeinbach. (Doc. 122-5 at 22.) Balkrishnan alleged the harassment had included:

email 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 (she also has filed a false complaint in this regard with OSU human resources).

(Id.) Balkrishnan claimed further that Szeinbach had been misusing her senior faculty rank to harass and intimidate him, and that she had told him that she wanted him to leave as soon as possible. (Id.) Later that day, Brueggemeier sent a follow-up email to Vice Provost Barbara Snyder, Iyer, and Nahata, 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.

(Id. at 21.)

Later, on September 8, 2006, Balkrishnan sent an email to Brueggemeier reporting that two of Szeinbach’s students who held TA positions also worked full-time elsewhere, and complaining that this was unfair to his students. (Id. at 1Í.) On September 21, 2006, he sent another, complaining that Szeinbach’s graduate students were being permitted to keep their TA positions despite having failed to enroll in a compulsory séminar. (Doc. 118-11 at 14.) On September 26, 2006, -Balkrishnan sent another email to Iyer in response to her voice mail, complaining again of false allegations leveled by Szeinbach ' and Seoane, and claiming that he and his students had been harassed. (Doc. 118-10 at 6-7.)

In 2004 and 2005, Szeinbach had received 2.75% salary increases. (Szeinbach’s July 10, 2010 Deposition, p. 408, Doc. Ill, PagelD 7396.) But in 2006 she received just a 1% salary increase. (Id., pp. 419-20 and 424-25, PagelD 7399 and 740Ó.) in November 2006, Szeinbach filed an EEOC charge against OSU. In it, she stated:

In August 2006 and prior, I complained to Bob Brueggemeier, Dean, of his discriminatory treatment of a male colleague. In September 2006,1 received a below average performance rating and a low salary increase, although previous wage increases were higher and performance ratings were good.

I believe I was retaliated against because of my sex, female, and opposing of discriminatory practices in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Doc. 122-2 at 2.)

In December 2006, Szeinbach filed an internal complaint with OSU’s Office of Human Resources (“OSÚ-HR”), alleging that Brueggemeier had retaliated against her for her support of Seoane’s EEOC complaint. On January 25, 2007, Balkrishnan filed a formal internal complaint with OSU-HR against Szeinbach and Seoane, alleging that he had been discriminated against and harassed on the basis of his national origin, race, and comparatively superior academic productivity. (Doc. 118-10 at 5.) He claimed that the mistreatment had lasted for over two years, and that his previous complaints had not led to “an agreeable solution”.

On February 13, 2007, Balkrishnan sent an email to Brueggemeier and Nahata claiming that one of his research collaborators had reported to him that Szeinbach had called to complain at length about Balkrishnan and to report that he had been discriminating against Seoane. Balkrishnan commented that “[t]hese obviously seem to be the rantings of someone who is quite discontent and unhappy here”. (Doc. 118-11 at 48.) He sent several more emails throughout 2007 complaining about Szeinbach, Seoane, their graduate students, and their alleged misconduct. (See Doc. 118-12 at 1-2 (unprofessional TA conduct); Doc. 118-12 at 16 (Szeinbach should recuse herself from tenure decisions about him); Doc. 118-12 at 17 (Szeinbach teaching a course with too few students enrolled); Doc. 118-22 at 57-58 (Szeinbach promised everyone in a course A grades).)

On or about April 25, 2007, Priscilla Hapner concluded her investigation of an internal OSU civil rights complaint Szeinbach made against Balkrishnan. (Priscilla Hapner’s April 25, 2007 Letter to OSU Associate Legal Counsel Mary G. Menkedick Ionna, Doc. 131, PagelD 11222.) No later than May 8, 2007, Balkrishnan had learned that Hapner had concluded her investigation. (Balkrishnan Dep. Ex. 146, Doc. 118-12, PagelD 9785.)

On April 28, 2007, Balkrishnan sent an email to Dr. Mark Levy, editor of Primary Care Respiratory Journal, concerning an article which Szeinbach had co-authored and which his journal had recently published. Balkrishnan stated that the 2007 article had reported “exactly identical results just analyzing the data slightly differently” from a 2005 article Szeinbach had co-authored in a different journal, and that the 2007 article had failed to reference the 2005 article. (Doc. 98-1, PagelD 5081.) The same day, he emailed Nahata with the same allegations, although Balkrishnan characterized this email as seeking Nahata’s advice on the situation given his experience as editor of (an unrelated) journal. (Id., PagelD 5083.) Balkrishnan apparently forwarded his correspondence with Dr. Levy to Nahata and Brueggemeier, as well as to Dr. Craig Pedersen (“Pedersen”), a professor in PPAD, and Dr. William Hayton (“Hayton”), OSU’s Associate Dean of Research. (Id., PagelD 5085.) On May 1, 2007, Balkrishnan also sent his email correspondence about the alleged duplicate publications to a group of professors at other universities, adding an allegation that Szeinbach had presented this research at the 2005 International Society for Pharmacoeconomics and Outcomes Research meeting, and that she planned to present it again in 2007. (Id., PagelD 5089.) Pedersen responded, recommending that Szeinbach’s graduate student co-author be kept out of the investigation. Balkrishnan responded, stating that “I will defer to the rest of the group for the final decision, but I will respectfully disagree with Craig about this”. (Id. at 16.)

Balkrishnan testified that he conferred with Brueggemeier, Nahata, and other faculty before filing his “whistleblower” complaint. (Balkrishnan Dep., Doc. 118, p. 355, PagelD 8784.) Sometime in early May, he filed the complaint charging Szeinbach with research misconduct. This formally activated the investigative procedure set out in OSU’s “University Research Committee Interim Policy and Procedures Concerning Misconduct in Research or Scholarly Activities” (the “Interim Policy”). (See Doc. 99-3.) This policy prohibited, and defined as misconduct, activities which included “other practices that seriously deviate from those that are commonly accepted within the relevant scholarly community”. (Id. at 4.) The Interim Policy stated that misconduct charges could be filed by anyone, and that anyone receiving such charges should immediately refer them to the Office of the Vice President for Research. Upon such referral, the Office of the Vice President for Research, the Dean of the relevant college, and the Coordinator designated by the university to administer the policy, were to conduct a preliminary review and investigation of the charges, to determine whether sufficient evidence existed to warrant an inquiry, and whether the complained-of activity fell within the definition of misconduct. (Id. at 5.) If the Dean and Coordinator were to determine that the charges contained sufficient evidence to warrant an inquiry and that the charges fell within the definition of misconduct, they were to reduce them to writing and meet with the accused researcher to present the charges and advise them of the pending investigation. Then, the Vice President for Research would form a Committee of Initial Inquiry (“CII”), to consist of at least three persons. (Id. at 7.) The purpose of the CII was to make a preliminary evaluation and investigation of the evidence and determine whether there was sufficient evidence of possible scientific misconduct to warrant an investigation under OSU’s disciplinary rules. It was then to prepare a Preliminary and a Final Report. If the CII were to determine that sufficient evidence existed to warrant an investigation, then it would trigger a lengthy and complex faculty discipline process established by University Rule 3335-5-04 (the “04 Process”), which could ultimately result in a faculty member’s termination. ' (Id. at 10.)

Upon initial review, Dean Brueggemeier determined that the similarities between the two articles might meet the definition of research misconduct under the Interim Research Policy and should be referred to a CII. (Guttman Dep., 57, Doc. 102-1, Pa-gelD 5942.) He recommended to Vice President McGrath that the matter not be resolved through alternative dispute resolution. (Moseley Dep., 177-78, Doc. 68-1 PagelD 3541-42.) McGrath organized a CII, charging it with determining whether Balkrishnan’s allegations contained sufficient evidence of possible misconduct to warrant further investigation under the disciplinary rules. (Doc. 122-7 at 6.) The CII first met on August 15, 2007, and again in September and October 2007. On November 16, 2007, it produced its preliminary report. The CII considered four potential areas of misconduct. It rejected three of these (duplicate publications, authorship, and self-plagiarism), but found potential misconduct in Szeinbach’s failure to cite her 2005 article in her 2007 article. The committee did find that “most of the prose in the 2007 article has been directly taken from the 2005 article”, and concluded that “the practice of using large sections of previous work, particularly without citation, represents the poorest of scholarly practices.... ” (Id., p. 4.) The report noted that both articles used much the same data set and found many of the same conclusions, but the focus of the articles were' different. While “extensive sections of the two articles were identical and obtained from the first publication,” additional scholarship was performed to reach the conclusions drawn in the 2007 article. (Id., at 3-4.) The report stated the committee’s belief “that the failure to quote the 2005 article in the 2007 article seriously deviates from commonly accepted practices within the research community and as such represents misconduct.” (Id. at 8.) The committee reasoned that Szeinbach, “who not only had written the 2005 article but used its text and data extensively in preparation of the 2007 article ...”, had to have known that citation to the 2005 article was required. (Id.)

After reviewing objections from Szeinbach, including evidence that she argued showed that other faculty such as Brueggemeier and Balkrishnan had engaged' in similar practices, the CII issued a substantively similar Final Report on January 9, 2008. (Id. at 26.) Dr. Kinghorn, a professor in the College of Pharmacy, dissented from the finding that there was sufficient evidence of research misconduct to warrant further investigation. (Id. at 25.) By majority vote, the CII’s final determination was that sufficient evidence existed to warrant an investigation under the 04 Proeess. Moseley testified that this is the only occasion she knew of where a CII found sufficient evidence of a failure to cite a previous publication to warrant a further disciplinary investigation. (Moseley Dep., 166, Doc. 68-1, PagelD 3530.)

However, no further investigation was ever conducted. On February 19, 2009, Brueggemeier sent Szeinbach a letter reporting that in May 2008 OSU had adopted a new research policy to supplant the Interim Policy. That policy did not contain a provision prohibiting “other practices that seriously deviate from those that are commonly accepted within the relevant scholarly community”. (Id. at 2-3.) Consequently, Brueggemeier stated, as the finding against Szeinbach had been based on a practice which was no longer prohibited, he did not feel that the matter warranted further investigation. (Id. at 3.)

In June 2007 Szeinbach submitted a correction note, which was published in the Primary Care Respiratory Journal, stating that she and the other authors of the 2007 article “were remiss” in not acknowledging that the article used “the same data source, data collection and back and background .literature that was used in our previous study addressing a different issue” published in 2005. They further acknowledged that they were “remiss in not referencing the previously published AAAI paper in the manuscript” they submitted to PCRJ. (Doc. 138-1, PagelD 13175.) In the same issue, the publishers of the Journal issued an editorial chastising Szeinbach and the other authors of the 2007 article for failing to cross-reference the two. The editorial stated, in relevant part:

The journal recently published an article which, unknown to the editors — there was no author declaration of any previous related publications — presented an analysis of data previously used to answer a different research question in an earlier paper published in another journal____ [I]t is the responsibility of authors to ensure that previous publications, particularly those using the same data, are cross-referenced when reporting. This did not occur in this instance, and resulted in a third party complaint. ... A full investigation ensued. ...

We have concluded that the paper submitted to the PCRJ was not a duplicate publication.... However; there is no doubt that substantial parts of the text of the PCRJ paper — including parts of the introduction, methods, results and discussion sections — are extremely similar to the paper published previously in the AAAI. In addition, the authors had not declared to the editors ... of the PCRJ the fact that the AAAI paper — in which they had used the same dataset— had been published. Furthermore, in not referencing the AAAI paper they did not permit readers of the PCRJ to put the later PCRJ paper in context. A correction is published in this issue of the PCRJ.

(Id., PagelD 13173.) On August 13, 2007, Balkrishnan emailed a link to the editorial to the entire COP faculty, accompanied by a note saying he was “extremely saddened to report that a major clinical journal has published this. This is a matter of great shame and disrepute” to COP. (Doc. 127-1, PagelD 10945.) Szeinbach sent a rebuttal to the faculty on August 21, 2007 containing a copy of an email from the editor of the Journal commenting that Balkrishnan had mischaracterized their editorial, and stating that Balkrishnan had sent his email to further retaliate against her and Seoane. (Doc. 118-8, PagelD 9485.) This was followed by an August 21 email from Balkrishnan to the entire COP faculty stating that he had not even mentioned Szeinbach or Seoane by name in his email, and that his concern had simply been that the “reputation of the college has been compromised”. (Doc. 132-1, PagelD 11479.) The email further included cut and paste attachments which Balkrishnan stated included “a copy of my letter to Dr. Levy and concerned authorities in the OSU whistleblower report form----” (Id.)

At a September 4, 2007 faculty meeting to discuss graduate teaching assistantship allocations, Balkrishnan and Szeinbach argued about -TA qualifications. During the argument, Balkrishnan exploded at Szeinbach, shouting at her and calling her a “bitch”. (Doc. 118-13 at 5.) On September 17, 2007, Brueggemeier sent a letter to Balkrishnan, informing him that his actions at the meeting had been “very unprofessional, extremely rude, and totally unacceptable.” (Doc. 119-2 at 2.) He stated that Balkrishnan’s actions would not be tolerated, and that he had told him before not to engage in discussions or interactions with Szeinbach, Seoane, or their graduate students outside of classes. “The last time that I emphatically made these points was in early August 2007 following the exchange of e-mails between you and Dr. Szeinbach that were sent to the entire College faculty.” Brueggemeier restricted access to Balkrishnan’s endowed chair development funds, except for the purpose of finding a “coach or mentor”. He urged Balkrishnan to seek anger management assistance from OSU’s HR office. (Id.) Balkrishnan eventually received counseling. (Doc. 119 at 13-14.)

Finally, on October 12, 2007, Szeinbach filed a second charge with the EEOC, citing the research misconduct investigation and Balkrishnan’s outburst at the September 4, 2007 faculty meeting. On August 27, 2008, she filed this lawsuit. Balkrishnan left OSU to move to the University of Michigan in Spring of 2009.

II. Allegations in the Second Amended Complaint

Plaintiff Sheryl Szeinbach met OSU Assistant Professor Enrique Seoane-Vazquez (“Seoane”) when he was hired on August 19, 2002. (May 5, 2010 Second Am. Compl. at ¶ 9.) Seoane’s national origin is Spanish. (Id. at ¶ 10.) Dr. Milap Nahata is the Chair of the Division of Pharmacy Practice and Administration of OSU’s College of Pharmacy. In 2004, Nahata appointed Seoane as a member of a search committee to fill a faculty opening. (Id. at ¶ 11.) During the faculty search, plaintiff, Seoane and other search committee members developed concerns about the qualifications and background of one of the finalists, Dr. Rajesh Balkrishnan based on his admission that he had experienced conflicts with colleagues where he was currently employed. (Id. at ¶ 12.) Nahata with plaintiff and Seoane’s concerns from the search committee and hired Balkrishnan without a hiring recommendation from' the committee. (Id. at ¶ 13.) Balkrishnan and Nahata’s national origin is Indian. (Id. at ¶ 14.) Plaintiff believes that Nahata told Balkrishnan that plaintiff and Seoane opposed his hiring. (Id. at ¶ 15.)

Shortly after Balkrishnan joined the Division of Pharmacy Practice and Administration, plaintiff and Seoane observed Nahata’s preferential treatment of faculty and students of Indian national origin and his detrimental treatment of faculty of Spanish origin. Nahata told one of Seoane’s Indian students that because he was Indian, he should be working with Balkrishnan. (Id. at ¶ 16.)

During meetings in 2004, Nahata and Balkrishnan consistently dismissed plaintiffs suggestions and concerns regarding Seoane and other issues. As a result, plaintiff attended fewer meetings. (Id. at ¶ 17.) In 2004, plaintiff only received a 2.75% salary increase in retaliation for her support of Seoane even though similarly situated faculty salary increased received increases of at least 3.5%. (Id. at ¶¶ 18-19.)

Nahata asked Balkrishnan to prepare and present Seoane’s 2005 annual review to the Division. (Id. at ¶ 20.) Because the review contained prejudicial and discriminatory materials, plaintiff sent Dean Robert Brueggemeier an email expressing her concerns about Balkrishnan’s conduct. (Id. at ¶ 21.) On August 22, 2005, Seoane filed a complaint alleging discrimination and retaliation. (Id. at ¶22.) Plaintiff supported the filing and prosecuting of Seoane’s complaint. (Id. at ¶ 23.)

In 2005, Plaintiff received a lower salary increase compared to similarly situated faculty members. (Id. at ¶ 29.) On September 6, 2006, Seoane filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). (Id. at ¶ 32.) On November 3, 2006, plaintiff sent an email to OSU employee James Dalton who chaired Seoane’s four-year review highlighting Nahata’s discriminatory and retaliatory involvement in the review process. (Id. at ¶ 34.)

In December 2006, plaintiff filed a complaint with OSU’s Office of Human Resources alleging Brueggemeier retaliated against her for her support of Seoane’s EEOC complaint. (Id. at ¶ 36.) In 2006, plaintiff received a 1% salary increase, which was lower than other similarly situated faculty members. (Id. at ¶¶ 37-38.)

On April 27, 2007, Balkrishnan attended a presentation of one of plaintiffs graduate students. Differences and similarities between two publications authored in part by plaintiff were discussed. (Id. at ¶ 39.) On April 28, 2007, Balkrishnan sent an email to the editor of one of plaintiffs publications stating that the articles contained identical results but analyzed the data slightly differently. (Id.. at ¶ 40.) Balkrishnan sent the email in retaliation for plaintiff’s support of Seoane’s protected activities. (Id. at ¶ 42.) Prior to sending the email, Balkrishnan asked Nahata to advise him on how to address the articles. (Id. at ¶ 43.) On May 1, 2007, Balkrishnan emailed Nahata, Brueggemeier, Pedersen and OSU Associate Dean of Research Dr. William Hayton stating that he would defer the final decision regarding how to use plaintiffs publications to them. (Id. at ¶ 46.) Plaintiffs publications were used as a venue for retaliating against her for supporting Seoane’s protected activities. (Id. at ¶ 47.) Balkrishnan emailed professors at several universities informing them of the similar publications. (Id. at ¶ 48.)

In May 2007, Balkrishnan filed a complaint with OSU alleging that plaintiffs publications violated the Interim Policy and Procedures on Misconduct in Research or Scholarly activities. (Id. at ¶ 52.) On June 5, 2007, plaintiff was charged with violating the research misconduct policy. (Id. at ¶ 54.) Oh June 11, 2007, plaintiffs request that the charge be dismissed or resolved through the alternative dispute resolution provisions was denied, and Brueggemeier recommended that formation of a Committee of Initial Inquiry (“CII”). (Id. at ¶ 56.)

On August 12, 2007, plaintiff filed a complaint with Human Resources asking for an investigation into Brueggemeier, Hay-ton, Nahata and Balkrishnan’s retaliation. (Id. at ¶ 60.) Three days later, Balkrishnan sent an email to approximately 100 OSU employees stating that plaintiffs publications caused great shame and disrepute to the College of Pharmacy. (Id. at ¶ 61.) Balkrishnan sent a second email on. August 21, 2007 containing the correspondence with editors of publications that published plaintiffs articles. (Id. at ¶ 65.) These emails violated the confidentiality provisions of the research misconduct policy. (Id. at ¶ 65.)

During a September 4, 2007 meeting, Balkrishnan told plaintiff to shut up and stop being a bitch. (Id. at ¶ 69.)

The CII concluded that plaintiffs publications were not duplicate publications but the reuse of a 'data set without a cross-reference warranted further investigation. (Id. at ¶ 71.) Plaintiff received a 3% increase in 2007, which was a lower salary increase than similarly situated faculty. (Id. at ¶¶ 72-73.) OSU’s failure to discipline Brueggemeier, Nahata, Balkrishnan, Moseley, and Lee for engaging in more egregious publication and/or grant submission practices demonstrates that the investigation in to plaintiffs publications was retaliatory. (Id. at ¶ ¶ 75-78.)

III. Summary Judgment

Summary judgment-shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as' a matter of law.” Fed.R.Civ.P. 56(a). A party asserting the absence or presence of a genuine dispute must support that assertion by either “(A) citing to particular parts' of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials”; or “(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

A party may object that the cited material “cannot be presented in a form that would be admissible in evidence,” and “[t]he burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2); Fed. R.Civ.P. 56 advisory committee’s note. If a party uses an affidavit or declaration to support or oppose a motion, such affidavit or declaration “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

While the court must consider the cited materials, it may also consider other materials in the record. Fed.R.Civ.P. 56(c)(3). However, “[i]n considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273, 279 (6th Cir.2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “The central issue is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Id., 489 F.3d at 279-80 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

IV. Discussion

A. Scope of the EEOC Charge

Defendant OSU argues that it is entitled to judgment on all of Dr. Szeinbach’s allegations and claims that are beyond the scope of the October 16, 2007 EEOC charge. OSU maintains that Dr. Szeinbaeh’s claim of retaliation based upon her alleged support of Dr. Seoane was not raised in her second EEOC charge and is therefore beyond the scope of the charge.

Plaintiffs October 16, 2007 EEOC Charge, executed on October 12, states:

I started working for Ohio State University on January 19, 1999; my most recent position is Tenured Professor at the College of Pharmacy. On June 5, 2007, false allegations were made against me. On September 4, 2007, I was harassed. On November 22, 2006,1 filed an EEOC charge of discrimination and several internal complaints since that time against the Respondent. On June 5, 2007,1 was charged with research misconduct by Dr. Brueggemeier (Dean of the College of Pharmacy) and Dr. Hayton (Dean for Research). On September 4, 2007, during a meeting of certain faculty and students of the College of Pharmacy, Dr. Rajesh Balkrishnan clenched his fists and screamed at me threateningly, “You just need to shut up and stop being a bitch.” Dr. Robert Lee and Dr. Balkrishnan both engaged in research conduct similar to what I have allegedly done and no research misconduct proceedings were initiated against them.

I believe I have been retaliated against by being harassed for both filing a previous charge of discrimination with the EEOC and several internal complaints against the Respondent, in violation of Title VII of the Civil Rights Act, of 1984, as amended.

(Doc. 98-1, at 2, PagelD 5071.)

In response to defendant’s argument that the claims in her second amended complaint are not within the scope of her 2007 EEOC charge, plaintiff argues that her Allegations of Employment Discrimination Form (“AED Form”) explicitly identified her support of Dr. Seoane as a basis for her retaliation claims. Szeinbach completed the AED Form on September 6, 2007 to support the second charge that she later filed with the EEOC. On that form, she stated that she had been retaliated against because she “engaged in protected activity by filing internal and EEOC Complaints and by testifying as a witness in an Ohio State University investigation of complaints brought by two others.” (Doc. 135-5, PagelD 12558.) She indicated that she had both filed a charge of discrimination on November 22, 2006 and complaints with the Ohio State University on October 9, 2006 and August 12, 2007, later amended on August 13, September 4, and September 6, 2007. Id. Szeinbach described the type of harm she had suffered in Attachment A to the AED Form:

My supervisors, Dean Robert Brueggemeier and Associate Dean for Research William Hayton of the Ohio State University College of Pharmacy, have taken retaliatory action against me for making and supporting charges of discrimination and retaliation by initiating formal proceedings against me under Ohio State University’s Research Misconduct policy without any legitimate basis.

Id., PagelD 12564. Her description of the events leading to the harm she suffered was set out in AED Form Attachment C:

Beginning on June 5, 2007 I was subjected to retaliation for my support of complaints filed by a junior faculty member, Dr. Enrique Seoane-Vazquez, and for filing complaints myself.

On June 5, 2007 I was charged with research misconduct (Document 10) by Dr. Brueggemeier ... and Dr. Hayton ... without any type of due process, prior knowledge of the complaint, and no opportunities to explain or have legal counsel present.

Later, I learned that the complaint was initiated by Dr. Rajesh Balkrishnan.... Dr. Balkrishnan filed this complaint as an act of retaliation for the actions involving the internal OSU complaints and EEOC charges of discrimination against Dr. Balkrishnan that were filed earlier by Dr. Enrique Seoane-Vazquez and myself.

Filing these complaints by Dr. Balkrishnan against me was intentional and initiated with malice. On April 28, 2007 Dr. Balkrishnan attended a seminar where the results of a certain study were presented and compared to a study that had been the subject of a different'publication. These research papers were in the area of his discipline and he knew in advance that the publications were different. Nonetheless, on April 29, 2007 he filed a maliciously fraudulent complaint to the editors where the two papers were published one in 2005 and the other in 2007 claiming that the papers were duplicate publications. Then Dr. Balkrishnan sent email to key administrators at the Ohio State University and Drs. Brueggemeier, Nahata, Hayton, all of the College of Pharmacy. Despite the recommendations of the staff of the Office of Research Compliance, Dr. Jennifer Moseley and Dr. Robert McGrath that there was no basis for formal proceedings against me, Drs. Brueggemeier, Nahata, and Hayton pressured the Office of Research Compliance into proceeding with an inquiry as an act of retaliation against me for my support of Dr. Enrique Seoane-Vazquez, who is also a co-author of the paper that published in the Primary Care Respiratory Journal, and for prior complaints and charges that I have filed against Drs. Brueggemeier, Nahata, and Balkrishnan. OSU’s Research Misconduct policy ... provides that this process can be stopped at any time, yet these individuals continue to push this process forward.

Moreover, on September 4, 2007, at a meeting of certain faculty and students of the College of Pharmacy, ... Dr. Balkrishnan jumped out of his chair, moved directly in front of me, clenched "his fists, and screamed at me threateningly, “You just need to shut up and stop being a bitch!” This was witnessed by numerous Pharmacy faculty and student's, including Dr. Nahata, and represents the hostile environment to which I am being subjected.

(Id., PagelD 12566.) In response to the form’s request for comparative data about how similarly situated persons were treated, Szeinbaeh alleged the following facts in AED Form Attachment D:

The following individuals engaged in research conduct similar to what I have allegedly done: Dr. Robert Lee; .Dr. Rajesh Balkrishnan. They were treated better than me because no research misconduct proceedings were initiated against them despite that they each published articles that are duplicative in the same ways that mine allegedly were. Neither of them has been retaliated against by having to defend themselves against a research misconduct investigation. In my case, that investigation is completely within basis and solely for retaliatory purposes. .

(Id., PagelD 12567.) ' Plaintiff also contends that a review of the issues raised in the OSU-HR complaints demonstrates that Dr. Szeinbaeh informed the EEOC of her support of Dr. Seoane. Under the form’s category of “Miscellaneous' Information,” Szeinbaeh set out a detailed time line of the acts of retaliation she alleged in AED Form Attachment F. (Id., PagelD 12569-71.) These events begin April 27, 2007 and end September 4, 2007. The events set out relate to Dr. Balkrishnan and his claim that Szeinbach’s 2005 and 2007 articles were research reports with the same results that analyzed the data slightly differently and the responses of various OSU administrators to Balkrishnan’s and Szeinbach’s position's and his emails. The events also specifically references Balkrishnan’s emails to the journal, OSU faculty and administrators, and to other regarding his allegations about duplicate publications. It ends with Dr. Balkrishnan telling Szeinbaeh at September 7, 2007 meeting of COP students and faculty, “You just need to shut up and stop being a bitch.” (Id.) Neither the October 16, 2007 charge of discrimination nor the September 6, 2007 AED Form allege a lesser wage increase or any other actions by Brueggemeier or Nahata, other than those they took or failed to take related to Balkrishnan’s research misconduct charge against Szeinbaeh, as retaliation for her having filed an EEOC complaint and internal OSU discrimination complaints.

Defendant argues that none of the allegations in paragraphs 41^18 (Balkrishnan’s false statements and emails about Szeinbach’s publications) and 72-73 (a lesser pay raise for the 2007-08 academic year) of the amended complaint have any relation to the scope of the charge. Szeinbaeh’s charge and AED Form do allege retaliation related to Balkrishnan’s filing research misconduct charges against Szeinbaeh and OSU’s failure to reject those charges and/or terminate the investigation of those charges. However, there are no allegations in the charge concerning Szeinbach’s pay raise for the 2007-08 academic year or any other year.

Plaintiff argues that her 2006 internal OSU-HR complaint, referenced in her AED Form, alleged that Brueggemeier retaliated against her for her support of Seoane’s 2006 EEOC charge. The OSU-HR investigator summarized that 2006 complaint as alleging that Brueggemeier gave her a lower performance review and salary increase because of her sex and her support of Seoane’s discrimination complaint. (Priscilla Hapner’s April 25, 2007 Letter to OSU Associate Legal Counsel Mary G. Menkedick Ionna, Doc. 131, Pa-gelD 11222.)

Szeinbach’s October 16, 2007 charge alleges only retaliation by Balkrishnan, Brueggemeier, and Hayton related to the research misconduct charge. The references to Szeinbach’s internal OSU complaints are not to the substance of those complaints. Rather, Szeinbach asserted the reason Brueggemeier permitted Balkrishnan’s research misconduct charge to go forward was that she had filed EEOC and internal OSU civil rights complaints. When she described in the AED Form the harm she suffered as a result of the retaliation and the events leading to that harm, Szeinbach referred only to the research misconduct charge and Balkrishnan’s treatment of her.

The charge and AED Form were prepared by Szeinbach’s attorneys. (July 9, 2009 Deposition of Sheryl Szeinbach, Doc. 110, p. 196-97, PagelD 7182-83.) Plaintiffs charge is clear about what allegedly prompted OSU’s retaliation — Szeinbach’s filing an EEOC charge and internal civil rights complaints — and the retaliatory conduct — permitting a research misconduct charge to go forward and tolerating Balkrishnan’s retaliatory conduct.

A plaintiff asserting a Title VII claim must first file an administrative charge of discrimination with the EEOC or the Ohio Civil Rights Commission and cannot file suit until the administrative proceeding is terminated. 42 U.S.C. § 2000e-5(e)(1). Filing an administrative charge gives the employer notice of the claimed violation of Title VII, gives the EEOC or Ohio Civil Rights Commission an opportunity to investigate the charge, and provides the parties and the administrative agency an opportunity to settle the claim without further litigation. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361-62 (6th Cir.2010); Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 534 (6th Cir.2001). The Secretary’s regulations provide:

(a) Each charge should contain the following:

(3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices: See § 1601.15(b);

(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of....

29 C.F.R. § 1601.12. A plaintiffs Title VII claims are “limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.” EEOC v. McCall Printing Corp., 633 F.2d 1232, 1235 (6th Cir.1980); Younis, 610 F.3d at 362; Davis v. Sodexho Cumberland College, 157 F.3d 460, 463 (6th Cir.1998); EEOC v. Bailey Co., 563 F.2d 439 446 (6th Cir.1977); Jackson v. Ohio Bell Telephone Co., 555 F.Supp. 80, 83 (S.D.Ohio 1982). The rationale for this rule was discussed in Davis:

One reason for the expanded rule is that charges are frequently filed by lay complainants, and the courts recognize that subsequent actions should not be restricted by the failure of a complainant to attach the correct legal conclusion to the EEOC claim, conform to procedural technicalities, or include “the exact wording which might be required in a judicial pleading.” Bailey, 563 F.2d at 447; see McCall Printing, 633 F.2d at 1235. This expanded rule does not mean, however, that plaintiffs are excused from filing charges on a particular discrimination claim before suing in federal court.

When the EEOC investigation of one charge in fact reveals evidence of a different type of discrimination against the plaintiff, a lawsuit based on the newly understood claim will not be barred. [Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970).]

Similarly, where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim. [Farmer v. ARA Services Inc., 660 F.2d 1096, 1105 (6th Cir.1981).]

157 F.3d at 463. The Davis court held that an unrepresented employee who checked the “race” and “other” box on the form charge of discrimination could not plead an age discrimination claim when the EEOC did not investigate an age claim and the facts set out in the charge did not indicate that age was basis of the discrimination claimed. 157 F.3d at 464. Similarly, the court in Younis, 610 F.3d at 362-63, held that a plaintiff who did not check the “retaliation” box on the EEOC form and did not include facts that would place the employer on notice that he was asserting a retaliation claim could not plead a retaliation claim. See also, Coleman v. Cardinal Health 200, LLC, 2013 WL 5954428 (E.D.Mich. November 7, 2013) (Plaintiff could not bring a race claim when she checked the “retaliation” box, but not the “race” box on the EEOC form).

Retaliation that occurred before the plaintiff filed a charge should be included in the charge. Spengler v. Worthington Cylinders, 615 F.3d 481, 489 (6th Cir.2010); Ang v. Procter & Gamble Co., 932 F.2d 540, 547 (6th Cir.1991). Exhaustion of administrative remedies is a statutory prerequisite, but it is not a a limitation on subject matter jurisdiction. Spengler, 615 F.3d at 489-90.

Here Szeinbach was represented by counsel when she filed her 2007 charge of discrimination. There is a split in authority about whether the liberal “expected scope of investigation” test applies when an employee was represented by counsel when she filed her charge with the EEOC. In Ang, 932 F.2d at 546, an employee, who was represented by counsel, checked only the EEOC form box for ‘national origin’ discrimination, and his statement of facts did not allege discrimination based on race. The court held:

Courts require this broad reading of the charge because most Title VII claimants are unschooled in the technicalities of the law and proceed without counsel. See Sanchez, 431 F.2d at 463; Scott [v. City of Overland Park], 595 F.Supp. [520] at 526 [(D.Kan.1984)]; Obradovich [v. Federal Reserve Bank of New York], 569 F.Supp. [785] at 789 [(S.D.N.Y.1983)]. Ang, however, was assisted by counsel throughout the administrative investigation. Liberal construction is not necessary where the claimant is aided by counsel in preparing his charge. Hawley v. Dresser Indus., Inc., 737 F.Supp. 445, 452 n. 3 (S.D.Ohio 1990)

Because Ang’s Asian race and Indonesian ancestry are closely related and may have both contributed to any discrimination he suffered, the district court could have concluded that .an investigation could reasonably include discrimination based on race and national origin. The court, however, did not clearly err in concluding that Ang’s failure to raise race discrimination in his EEOC charge was a fatal flaw as Ang was assisted by counsel in writing his charge, his charge did not specifically allege race discrimination, and the EEOC did not investigate race discrimination.

In contrast to Ang, the court in Spengler, 615 F.3d at 490, held that employees who were represented by counsel when they filed their EEOC charges are entitled to a liberal construction of the charge:

Defendant argues that liberal construction of Plaintiffs EEOC charge is inappropriate because Plaintiff was represented by counsel. However, as this Court has previously stated, the fact that we liberally construe EEOC charges filed by pro se complainants “does not mean that a broad reading may not, or should not, be given in cases where a plaintiff has counsel.” Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 536 (6th Cir.2001); see also Johnson v. Cleveland City Sch. Dist., 344 Fed.Appx. 104, 109 (6th Cir.2009). In a case such as this where a plaintiff clearly sets forth a retaliation claim in the narrative of the EEOC charge such that both the defendant and the EEOC were on notice of the plaintiffs retaliation claim, a broad reading of the EEOC charge is appropriate regardless of whether the plaintiff was represented by counsel when filing the charge. [Footnote omitted.]

Since Spengler was more recently decided, I conclude that a charge filed by a plaintiff who is represented by counsel should be liberally read. Here Szeinbach checked the “retaliation” box on the EEOC form. Further, although there are no facts set out in either her charge or AED Form giving notice of her lesser pay raise retaliation claim, Brueggemeier was alleged to have retaliated against Szeinbach by making the decision to let the preliminary investigation go forward and by his condoning, tolerating, or encouraging Balkrishnan’s retaliatory actions. In all of the cases deciding whether a claim is within the scope of the investigation that could be expected to arise out of the charge, the employee had not checked the EEOC form box for that claim. Here Szeinbach did check the retaliation box, and a principal actor in the research misconduct charge retaliation claim was the decision-maker who allegedly retaliated for her engaging in protected activities by giving her a lesser salary increase. Consequently, an investigation of the charge would likely have led to the lesser salary increase retaliation claim. I conclude that the claim is within the scope of the investigation that could be expected to arise out of the charge.

B. Retaliation

Title VII prohibits employers from retaliating against employees for engaging in protected activity:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.

42 U.S.C.A. § 2000e-3(a). To prove- a retaliation claim, a plaintiff must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013). This “but-for” test is stricter than the lessened “a motivating factor” standard of 42 U.S.C. § 2000e-2(m) that is applied to status based discrimination claims. Id. To make out a prima facie ease of retaliation, a plaintiff must establish that: (1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to the defendant; (3) the defendant thereafter took an adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir.2008) (citing Ford v. Gen. Motors Corp., 305 F.3d 545, 552-53 (6th Cir.2002)). Once the plaintiff has established a prima facie case of retaliation,- the burden shifts to defendant to assert a non-discriminatory reason for its actions. After a showing is made by the defendant, plaintiff has the burden of demonstrating that the reason asserted by the defendant is not the real reason, but rather a pretext for' discrimination. See Clay v. United Parcel Serv., Inc., 501 F.3d 695, 713 (6th Cir.2007) (citing Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir.2007) (holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims)).

Title VII prohibits retaliation against someone so closely related to and associated with the person exercising his or her statutory rights that it would discourage or prevent that person from pursuing those rights. Thompson v. North American Stainless, L.P., 562 U.S. -, 131 S.Ct. 863, 870, 178 L.Ed.2d 694 (2011). A plaintiff may establish proof of a causal connection “indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant.” DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987) (internal quotations and citations omitted).

A plaintiff can establish a claim under Title VII by producing either direct or circumstantial evidence of discrimination. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004). “[DJirect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). Once the plaintiff has produced credible direct evidence, the burden shifts to the employer to show that it would have taken the employment action of which the plaintiff complains even in the absence of discrimination. Id.

When a plaintiff relies on circumstantial evidence to support her claim, she has the burden of demonstrating a prima facie case of discrimination using the McDonnell Douglas framework. DiCarlo v. Potter, 358 F.3d at 414. Once the plaintiff has shown a prima facie case, the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for the employment decision. Seay v. Tenn. Val ley Auth., 339 F.3d 454, 463 (6th Cir.2003). If the defendant meets this burden, the plaintiff must demonstrate that defendant’s stated reason is mere pretext for its true discriminatory motives. Id.

OSU argues that plaintiff cannot establish a prima facie case of retaliation under Title VIL OSU maintains that Dr. Szeinbach does not have a cause of action for associational retaliation based on Thompson v. North American Stainless, L.P. Defendant contends that Dr. Szeinbach cannot demonstrate that she engaged in protected activity on behalf of Dr. Seoane. Plaintiff simply alleges that she made a vague complaint or made comments about unfair treatment. To be sufficient, plaintiff must have addressed conduct made unlawful under Title VII. Defendant also argues that Dr. Szeinbach’s alleged exercise of protected activity was not known to the relevant decision-makers and there was no causal link between the alleged protected activity and any adverse employment action.

1. Research Misconduct

When coworker retaliation is at issue, an employer will be liable if the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination, supervisors or members of management have actual or constructive knowledge of the coworker’s retaliatory behavior, and supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir.2008). Here, both parties focused on whether plaintiff could make a prima facie showing of retaliation and did not address the standard for co-worker retaliation as set out in Hawkins v. Anheuser-Busch, Inc. OSU argues that Balkrishnan’s conduct was not retaliatory and that animosities existed between Balkrishnan and Szeinbach prior to Szeinbach engaging in any protected activity.

The Sixth Circuit concluded that the research misconduct investigation constituted an adverse action and that a reasonable jury could conclude that Brueggemeier and Nahata condoned, tolerated or encouraged Balkrishnan’s acts of retaliation. On remand, this Court was instructed consider the other arguments advanced by OSU: (1) that there is no causal connection between the research misconduct investigation and any protected activity in which Szeinbach engaged, and (2) that the relevant decision makers during the research misconduct investigation had no knowledge of Szeinbach’s protected activity. This decision will focus on whether there is evidence of a causal connection between the research misconduct investigation and Szeinbach’s protected activity and whether the relevant decision makers had knowledge of Szeinbach’s protected activity.

Despite OSU’s assertions to the contrary, there is little question that a trier of fact could conclude Balkrishnan was hostile to Szeinbach and “retaliated” against her for what he took as her attacks on him. The evidence suggests that the relationship between Balkrishnan and Szeinbach was fraught with discord from its inception and prior to any protected activity on the part of plaintiff. Plaintiff maintains that this discord resulted from Nahata and Balkrishnan’s favoring faculty and students of Indian national origin over faculty of Spanish national origin. Without a doubt, however, there is evidence from which a reasonable trier of fact could conclude that Balkrishnan retaliated against plaintiff for her protected activity. There is also no dispute that Dean Brueggemeier and Assistant Dean Nahata had actual knowledge of Balkrishnan’s conduct directed toward Szeinbach. Brueggemeier and Nahata both received emails and other communications from Balkrishnan addressing his complaints about Szeinbach. The Sixth Circuit found that there was evidence creating an issue of material fact as to whether Brueggemeier or Nahata condoned, tolerated, or encouraged the acts of retaliation, and as a result, this issue is not before this Court.

In its motion for summary judgment, OSU