Lu v. Univ. of Dayton

2025 Ohio 1948

• Court: Ohio Court of Appeals
• Decided: May 30, 2025
• Docket: 30272; 30375
• Status: Published

Opinion

[Cite as Lu v. Univ. of Dayton, 2025-Ohio-1948.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

WEIJIE LU : : Appellant : C.A. Nos. 30272; 30375 : v. : Trial Court Case No. 2023 CV 01854 : UNIVERSITY OF DAYTON : (Civil Appeal from Common Pleas : Court) Appellee : :

...........

OPINION

Rendered on May 30, 2025

WEIJIE LU, Appellant, Pro Se

BRIAN G. DERSHAW, Attorney for Appellee

.............

HANSEMAN, J.

{¶ 1} In these consolidated cases, Plaintiff-Appellant, Weijie Lu, appeals pro se

from a trial court judgment granting summary judgment to Defendant-Appellee, University

of Dayton (“UD”), and from the trial court’s denial of Lu’s motion for relief from judgment.

While Lu’s brief fails to comply with appellate requirements and does not state

assignments of error, we interpret his brief to assert that the court erred in granting -2-

summary judgment to UD and in denying the motion for relief from judgment.

{¶ 2} After reviewing the record, we conclude the trial court correctly granted

summary judgment to UD. Lu failed to establish a prima facie case of retaliation under

R.C. 4112.02(I). Moreover, UD presented legitimate, non-discriminatory reasons for

rejecting Lu’s employment application, and there was no evidence that UD’s reasons

were a pretext for unlawful discrimination.

{¶ 3} We further conclude that the trial court did not abuse its discretion in denying

Lu’s motion for relief from judgment. Lu failed to establish any of the requirements for

relief under Civ.R. 60(B)(2) or (3). Accordingly, the judgments of the trial court will be

affirmed.

I. Facts and Course of Proceedings

{¶ 4} In April 2023, Lu filed a complaint asserting that UD had refused to hire him

for a full-time faculty position as an associate professor in the Department of Chemical

and Materials Engineering (“CME”) in retaliation for two charges of discrimination he had

filed with the Ohio Civil Rights Commission (“OCRC”) on January 5, 2021. After UD

answered the complaint, Lu sought and received permission to file an amended complaint

adding allegations he had included in a federal district court case that he intended to

dismiss.

{¶ 5} The amended complaint filed in August 2023 added information about Lu’s

background and matters pertaining to a plagiarism charge he had made against a UD

faculty member, Christoper Muratore. However, the complaint still contained only one -3-

charge of retaliation, based on Lu’s protected activity of filing the January 2021 charges

with the OCRC. See Amended Complaint (Aug. 4, 2023), ¶ 67-72. After answering the

amended complaint, UD filed a motion for summary judgment in November 2023. UD also

filed various affidavits from its personnel, including members of the search committee that

had considered Lu’s employment application.

{¶ 6} In January 2024, Lu filed his memorandum in opposition to summary

judgment and attached 25 exhibits covering various topics, including events that occurred

many years earlier, his employment as a UD adjunct professor between 2014 and 2020,

correspondence with the OCRC and UD, and so forth. Notably, the trial court case is not

the first lawsuit Lu has filed against UD that involved the same general background.

{¶ 7} In April 2022, Lu filed a complaint in federal district court alleging that UD had

committed race and national origin discrimination by not renewing his adjunct professor

contract in the summer of 2020 and by failing to select him for a full-time professor’s

position in the UD Physics Department in February 2021. After the federal court granted

summary judgment to UD on the federal claims and declined to exercise supplemental

jurisdiction on the state law claim, Lu appealed to the Sixth Circuit Court of Appeals. That

court affirmed the district court’s judgment. See Lu v. Univ. of Dayton, 2023 WL 8187299,

*1 and 3 (6th Cir. Nov. 27, 2023).

{¶ 8} As background, we note the Sixth Circuit’s observations about the case:

Plaintiff Weijie Lu is an experienced physics teacher of Chinese

descent. From 2014 to 2020, Lu taught introductory physics classes as an

adjunct professor at the University of Dayton. However, the facts underlying -4-

this case begin in 2012, prior to Lu's employment by Defendant, when Lu

served as a technical advisor through the Air Force Research Laboratory

(“AFRL”) at the Wright Patterson Air Force Base. Dayton offers graduate

students the opportunity to apply for the Defense Associated Graduate

Student Innovators program (“DAGSI”), which is funded through the Ohio

Department of Education and the United States Air Force. A Dayton

graduate student, Sorrie Ceesay, participated in this fellowship program

and worked on DAGSI-funded research under Lu's mentorship. For the

majority of Lu's time serving as Ceesay's advisor at the AFRL, he was not

employed as an adjunct professor at Dayton. Towards the end of his

mentorship of Ceesay, Lu started working as an adjunct professor at Dayton

in August 2014.

The AFRL terminated Lu in 2018. After his termination, he sent an e-

mail to the Dayton [UD] Equity Compliance Office, stating, “I am an adjunct

faculty in physics, and I lost my job and career at the Air Force Res Lab due

to government corruption and discrimination . . . . Would you please [ ]

educate me on the EEO laws .... (I have an attorney).” Bakota Aff., R. 8-1,

Page ID #44. Amy Zavadil, the then-current Title IX Coordinator in the

Equity Compliance Office at Dayton, replied and directed Lu to the local

EEOC office. Nonetheless, Lu continued to reply, “seeking advice on [his]

case with Air Force Res Lab.” Id. Kimberly Bakota, a civil rights investigator

at Dayton, subsequently replied in September 2018, also advising Lu to -5-

contact the local field office and explaining that Dayton could not assist with

a claim against the AFRL, as the two entities operated as separate

institutions.

Then, during his time as an adjunct professor in 2019, Lu learned

that his former mentee Ceesay was terminated from his research position

with the AFRL because he was allegedly not a United States citizen when,

in fact, Ceesay was a United States citizen. Believing such treatment was

due to Ceesay's African-American race, Lu e-mailed Dayton on January 28,

2020, and expressed his concern regarding the AFRL's allegedly

discriminatory acts. In relevant part, Lu claimed that “[t]he termination of Mr.

Sorrie[ ] Ceesay was a typical Jim Crow civil rights violation and a

constitutional violation, and it was at US Air Force in 2014.” Id. at Page ID

#47. Bakota once again replied that Dayton could not advise Lu or Ceesay

on issues pertaining to discrimination claims against AFRL and directed him

to the local field office of the EEOC. In addition to Bakota's reply, Scott

Segalewitz, Associate Dean for Experiential Learning and Student Success,

accidentally replied all and copied Lu, stating that “Mr. Lu just called and

gave me an earful.... Good Luck, Paul.” Id. These e-mails from Lu to various

Dayton administrators regarding the alleged discrimination towards Ceesay

occurred between January 28, 2020 and February 7, 2020.

About a month later, March 2020 marked the beginning of the

COVID-19 pandemic. The adjunct professors, including Lu, were notified in -6-

April that “[a]djuncts are currently under review by the Dean and the

Provost” because of the uncertainty caused by the pandemic. Erdei Aff., R.

9-1, Page ID #60–61. The former chair of the Physics Department, John

Erdei, e-mailed Lu about the undetermined future for adjuncts, stating: “I

need you to know that the fall is now uncertain. Most certainly, if I learn

anything I will certainly let you know.” Id. at Page ID # 61. Erdei also followed

up with Lu in June, advising him that fall adjunct contracts were still

unsettled and explaining he may know more in July.

Concrete answers finally arrived in July 2020, and Lu was informed

that a tenured professor would be teaching his previously assigned physics

classes for the upcoming fall 2020 semester due to COVID-19 uncertainty

and budgetary constraints. Dayton made the decision in summer 2020 to

replace all Physics adjunct professors with tenured ones in order to

minimize costs, as the tenured professors were already covered within the

university's budget. Accordingly, a tenure-track professor, Ivan Sudakow,

took over Lu's introductory physics class. Lu's loss of his adjunct teaching

contract, while Dayton allegedly retained other similarly-situated temporary

professors, forms the basis for his first adverse employment action

allegation. Lu also believes that this first adverse employment action

constituted retaliation for his report regarding the AFRL's discrimination

towards Ceesay.

After Lu's adjunct professor contract was not renewed, Erdei -7-

encouraged him to apply for a full-time professor position. As suggested, in

February 2021, Lu applied for a professor position in Dayton's Electro-

Optics and Photonics department. After reviewing about 40 applications,

Lu's application was rejected in the initial screening phase along with 29

other candidates due to his “[w]eak research record.” Sarangan Aff., R. 10-

1, Page ID #70-71, 79. According to his application, Lu's last publication

was over five years ago, and the position required “[a] very good record of

refereed journal and conference publications,” among other listed “Minimum

Qualifications.” Id. at Page ID #71, 74.

Lu disputes that he was unqualified and further claims that the

candidate ultimately selected for the professor position did not meet the

qualifications. Therefore, Lu also points to the search committee's failure to

hire him as a second adverse employment action, highlighting that he is

Chinese, while the successful candidate, Swapnajit Chakravarty, is Indian.

Lu believes this ultimate employment decision was based on either national

origin discrimination or was in retaliation for his discrimination complaint

regarding Ceesay.

Lu, 2023 WL 8187299, at *1-2.

{¶ 9} Regarding the adjunct position, both the district court and court of appeals

found that Lu could not make out a prima facie case that UD had discriminated by treating

him differently than a similarly situated person outside his protected class. The district

court’s decision was based on the fact that, due to the COVID-19 epidemic, UD did not -8-

hire any adjunct professors in the physics department, and the only other person

employed was a visiting professor who was not in a similar position. The Sixth District’s

decision noted that “[r]egardless of whether an adjunct professor and a visiting professor

are similarly situated, failure to point to facts indicating that the visiting professor was

outside of Lu's protected class is fatal to his prima facie case for this portion of his Title

VII discrimination claim.” Id. at *6. The court stressed that Lu had made no attempt to

establish this fact. Id. at *6 and fn. 5.

{¶ 10} Concerning the claim about the full-time Photonics position, the court of

appeals found that Lu had failed to offer any evidence that he met the required criteria

defined by the search committee’s specific rubric, as “[n]ot only did Lu lack any

publications within the past five years, but he also lacked any recent patents, as his last

two patents were from 2004.” Id. at *8. The court therefore found that Lu did not show he

was objectively qualified for the position. Id.

{¶ 11} Concerning the retaliation claims, both courts assumed Lu had established

a prima facie case but found he could not show pretext. Id. at *9. As to the adjunct job,

the court of appeals stated: “Dayton proffered a legitimate, non-retaliatory reason by

explaining that budgetary constraints and uncertainty imposed upon the university by

COVID-19 caused the non-renewal of Lu's adjunct professor contract,” and “Lu has not

shown that these concerns were pretextual.” Id. at *10. In this regard, the court stressed

that “the record contains unrebutted evidence that Dayton terminated the contracts of all

adjunct professors in the Physics Department, as well as the contracts of certain adjunct

professors in other departments – not just Lu’s or those who engaged in protected -9-

activity.” Id.

{¶ 12} In addition, the court noted the undisputed fact that Dr. Erdei (Lu’s

supervisor in the Physics Department) “was instructed to redistribute the adjunct faculty

classes to tenured professors, out of respect for the ongoing budgetary fears. Because

Erdei was instructed to redistribute courses, no ultimate budget approval was needed, as

no adjunct contracts were issued.” Id. The court of appeals further stressed that,

“Following the non-renewal of Lu's contract, Erdei even offered to stay in touch with Lu

after the fall 2020 semester and encouraged Lu to apply for a full-time job with the

university – these are not the actions of an employer acting with a retaliatory motivation.”

Id.

{¶ 13} Regarding the retaliation claim about the Photonics faculty position, the

court of appeals first noted that none of the members of the search committee had

received Lu’s e-mailed complaints about Ceesay and the AFRL program. Further, when

the committee initially screened applicants, they were not aware of and did not discuss

Lu's pending charge against Dayton or any OCRC case. Id. Therefore, Lu failed the

second prong of a prima facie case of retaliation. Id. at *11. Finally, the court stated that

even if it assumed otherwise, “Dayton has offered a legitimate, non-retaliatory reason for

Lu's non-selection – he had no recent publications or patents. In fact, the selection

committee's notes illustrate that they eliminated multiple candidates for ‘[w]eak research

record[s].’ ” Id. Accordingly, the court of appeals affirmed the dismissal of Lu’s

discrimination and retaliation claims.

{¶ 14} This background also pertains to the events at issue here. As indicated, Lu’s -10-

current case was filed in April 2023 and is based on his April 2021 application for a full-

time associate professor’s position in the CME Department at UD. This was only a few

months after Lu applied for the Photonics position. While the CME position involved a

different department at UD, Lu made allegations in the amended complaint about his

supervision of Ceesay in 2012-2013 when Ceesay was a student at UD, Lu’s 2020

complaint to UD about its discrimination against Ceesay, who was African-American,

UD’s termination of Lu as an adjunct in 2020, and Lu’s filing of a discrimination charge

against UD with the OCRC on January 5, 2021. Amended Complaint at ¶ 36-39 and 53-

56.

{¶ 15} Lu responded to UD’s summary judgment motion on January 29, 2024, and

UD replied on February 12. Before the court ruled on the summary judgment motion, Lu

filed a pro se “Notice” on July 29; in response, UD asked the court to strike the 396-page

document because Lu was represented by counsel. Lu filed another “Notice” on August

26, which was followed the next day by his counsel’s motion to withdraw. On August 29,

the court filed a decision granting UD’s motion for summary judgment. The court also

struck Lu’s July 29 and August 26 Notices and, on August 30, it granted counsel’s motion

to withdraw. Lu then appealed from the decision on September 23 (Montgomery C.A. No.

30272).

{¶ 16} After Lu appealed, he filed a pro se motion for relief from judgment in the

trial court on October 11, 2024. However, the court stayed the matter pending resolution

of the appeal, based on lack of jurisdiction. See Order and Entry Staying Ruling on

Plaintiff’s Motion for Relief from Judgment (Oct. 17, 2024). At Lu’s request, we remanded -11-

the case so the trial court could issue a decision on the Civ.R. 60(B) motion. See Order

Sustaining Motion to Remand (Nov. 1, 2024). Lu then filed a notice of remand with the

trial court on November 8.

{¶ 17} Before filing this notice, Lu filed two supplements to his motion for relief from

judgment – one on October 29 and the other on November 7. After remand, the court set

submission dates, allowing UD to file an opposition memorandum by November 27, and

permitting Lu to file a reply no later than December 2. Before UD had a chance to comply,

Lu filed a third “supplement” to his motion on November 18. At that point, UD asked the

court to deny Lu’s motion for relief from judgment, to strike the motion and supplements

from the record, and to award UD attorney fees and costs.

{¶ 18} Lu filed his reply, as directed, on December 2. He also included a motion

asking the court to strike UD’s memorandum and to sanction UD’s attorneys. UD replied

to that motion on December 5, and Lu then, on December 10, filed a “reply in opposition”

to UD’s reply. On December 30, the court denied Lu’s motion for relief from judgment,

denied both sides’ motions to strike, and sua sponte struck Lu’s October 29 and

December 10, 2024 filings from the record. Lu timely filed a pro se appeal from the

judgment in late January 2025 (Montgomery C.A. No. 30375). We consolidated the two

appeals.

{¶ 19} Notably, we also sustained in part Lu’s request to file a brief in excess of 25

pages. We ordered that Lu’s brief could not exceed 35 pages, with some exclusions, like

the cover page, table of contents, and the like. Order (Feb. 24, 2025). However, Lu’s brief,

while ostensibly 35 pages, is actually 50 pages (not including the properly excluded -12-

pages). Specifically, Lu attached an “Appendix” to his brief that contains an additional 16

pages of further argument. Consequently, we will not consider that part of the brief (while

noting it is repetitive of arguments made in the prior 35 pages).

{¶ 20} As an additional matter, while the case was on remand and after it had been

returned following the decision on remand, Lu filed various pro se documents with our

court, including: “Supplement 2 for Motion for Relief” (Nov. 7, 2024); Supplement 3 to

Motion for Relief (Nov. 18, 2024); and “Submit Brief of Appeal” (Jan 27, 2025) (a 396-

page document filed without leave for exceeding page limits). When we consolidated the

two appeals, we ordered Lu to file an amended brief and stated that, when he did so, we

would strike the brief filed on January 27, 2025. Order Consolidating Cases (Jan. 30,

2025). We reiterated that point in our February 24 order allowing Lu to exceed page limits.

Consistent with both orders, Lu’s January 27, 2025 brief will be struck from the record

and will not be considered.

II. Analysis of Summary Judgment Decision

A. Applicable Standards

{¶ 21} Before addressing Lu’s claims, we will outline the well-established

standards that apply to summary judgment. “The procedure set forth in Ohio Civ.R. 56 is

modeled after the federal rule that authorizes summary judgment in appropriate cases.”

Byrd v. Smith, 2006-Ohio-3455, ¶ 10. “ ‘Rule 56 must be construed with due regard not

only for the rights of persons asserting claims and defenses that are adequately based in

fact to have those claims and defenses tried to a jury, but also for the rights of persons -13-

opposing such claims and defenses to demonstrate in the manner provided by the Rule,

prior to trial, that the claims and defenses have no factual basis.’ ” Id. at ¶ 11, quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

{¶ 22} “Summary judgment is appropriate if (1) no genuine issue of any material

fact remains, (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

construing the evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made.” State ex

rel. Duncan v. Mentor City Council, 2005-Ohio-2163, ¶ 9, citing Temple v. Wean United,

Inc., 50 Ohio St.2d 317, 327 (1977). “ ‘As to materiality, the substantive law will identify

which facts are material. Only disputes over facts that might affect the outcome of the suit

under the governing law will properly preclude the entry of summary judgment.’ ” Turner

v. Turner, 67 Ohio St.3d 337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

{¶ 23} In considering summary judgment decisions, appellate courts apply a de

novo standard of review. A.J.R. v. Lute, 2020-Ohio-5168, ¶ 15. In this type of review, an

appellate court independently reviews evidence without deferring to the trial court's

findings. Smathers v. Glass, 2022-Ohio-4595, ¶ 30, citing Wilmington Savs. Fund Soc.,

FSB v. Salahuddin, 2020-Ohio-6934, ¶ 20 (10th Dist.). Thus, a reviewing court “examines

the evidence available in the record, including deposition or hearing transcripts, affidavits,

stipulated exhibits, and the pleadings, see Civ.R. 56(C), and determines, as if it were the

trial court, whether summary judgment is appropriate.” Id., citing Wilmington at ¶ 19. -14-

B. Discussion

{¶ 24} As noted above, Lu’s brief failed to set forth any assignments of error. He

also failed to comply with most of the remaining requirements in App.R. 16(A)(1)-(8). Lu’s

reply brief also fails to discuss assignments of error and suffers from the same defects.

Where appellants fail to comply with App.R. 16, App.R. 12(A) allows courts to disregard

the assignments of error. In re Estate of Taylor, 2024-Ohio-1496, ¶ 17 (2d Dist.). An

appellate court may also choose to consider error in the interest of justice, but it need not

do so. Id. at ¶ 18. In the interest of justice, we will consider Lu’s brief to the extent we can

decipher his arguments.

{¶ 25} As a preliminary point, we note that the brief and reply brief are riddled with

accusations of alleged crimes committed by UD and its attorney, Lu’s former attorney, the

trial court, and Muratore, who was a member of the search committee that evaluated Lu

for the CME faculty position. These accusations are unsupported by the record and will

be disregarded. The issue is whether the trial court erred in granting summary judgment

in UD’s favor on Lu’s retaliation claim. We also note that much of Lu’s brief focuses on

matters he has already contested and that were decided adversely to him in the prior

federal action against UD. These matters include discrimination in non-renewal of Lu’s

adjunct contract, failure to hire Lu for a faculty position with the Electro-Optics and

Photonics Department, and retaliation for Lu’s complaint about racism involving a prior

student (Sorrie Ceesay) and filing of civil rights complaints with ODRC in January 2021.

See Appellant’s Brief, p. 3-5 and 7-17. -15-

{¶ 26} “The doctrine of res judicata encompasses the two related concepts of claim

preclusion, also known as res judicata or estoppel by judgment, and issue preclusion,

also known as collateral estoppel.” O'Nesti v. DeBartolo Realty Corp., 2007-Ohio-1102,

¶ 6, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 381 (1995). “Claim preclusion

prevents subsequent actions, by the same parties or their privies, based upon any claim

arising out of a transaction that was the subject matter of a previous action. Id., citing Fort

Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395

(1998). “Issue preclusion, on the other hand, serves to prevent relitigation of any fact or

point that was determined by a court of competent jurisdiction in a previous action

between the same parties or their privies. . . . Issue preclusion applies even if the causes

of action differ.” Id. at ¶ 7.

{¶ 27} Both UD and Lu were parties to the federal litigation, and even though the

cause of action differs here, i.e., it involves a later hiring decision, Lu cannot relitigate the

matters that were at issue in the federal action. The relevant issue here is whether UD

retaliated against Lu in considering his application for the CME associate professor’s

position. In this matter, what would be relevant would be whether the search committee

members were aware of Lu’s prior filings with the OCRC in January 2021, which would

have been protected activity under R.C. 4112.02(I), or improperly based their decision on

that.1

1 While UD’s summary judgment motion indicated that Lu had also filed a March 30, 2021

complaint with the OCRC concerning the failure to hire Lu for the Photonics position, Lu’s complaint and amended complaint do not refer to this charge or to the Photonics position; the complaints only refer to the January 2021 OCRC filings. See UD Summary Judgment Motion, p. 3, citing Ex. 1, ¶ 41 (filed in the federal lawsuit Lu filed against UD, S.D. Ohio Case: 3:22-cv-00092) and Andrew Sarangan Affidavit, ¶ 8. According to the decisions in -16-

{¶ 28} In awarding summary judgment to UD, the trial court commented that:

The University advances three arguments in support of its request for

judgment as a matter of law on Dr. Lu's retaliation claim: (1) Dr. Lu cannot

establish the second element of a prima face case of retaliation, given that

the search committee members had no knowledge of Dr. Lu's OCRC

charges nor his plagiarism complaint; (2) Dr. Lu cannot establish the fourth

element of his prima facie case because there is no causal link between his

protected activity and termination; and (3) even assuming Dr. Lu had set

forth a prima facie case, the University has demonstrated that the decision

not to hire Dr. Lu was based on legitimate, nondiscriminatory reasons, and

Dr. Lu has failed to prove that its proffered reasons were merely pretext.

Upon review of the evidence submitted by the parties, the Court agrees with

the University and finds that there remains no genuine issue of material fact

and Dr. Lu cannot establish the second and fourth elements of his prima

facie case of retaliation, nor has he proven that the University's proffered

reason for not hiring him was merely pretext.

Final and Appealable Decision, Order, and Entry Granting Defendant's Motion for

Summary Judgment (Aug. 29, 2024), p. 11.

{¶ 29} In finding in UD’s favor, the court noted that it found “no direct or

the federal case, Lu filed a complaint with the OCRC on March 30, 2021, about UD’s failure to hire him for the Photonics job. See Lu, 2023 WL 8187299, at *3 (6th Cir. Nov. 27, 2023); Lu v. Univ. of Dayton, 651 F.Supp.3d 900 (S.D. Ohio 2023). There were no allegations in the case before us that the CME committee knew about the March 30 filing with the OCRC. -17-

circumstantial evidence that the decisionmakers were aware that Plaintiff had engaged in

a protected activity at the time they rejected his application.” Id. at p. 12. The court also

stated, “the evidence further shows that the decisionmakers were not aware of Dr. Lu's

plagiarism complaint at the time they evaluated his application.” Id. at p. 13.

{¶ 30} Under R.C. 4112.02(A), it is unlawful for “any employer, because of the

race, color, religion, sex, military status, national origin, disability, age, or ancestry of any

person, to discharge without just cause, to refuse to hire, or otherwise to discriminate

against that person with respect to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to employment.” In addition, R.C.

4112.02(I) does not allow “any person to discriminate in any manner against any other

person because that person has opposed any unlawful discriminatory practice defined in

this section or because that person has made a charge, testified, assisted, or participated

in any manner in any investigation, proceeding, or hearing under sections 4112.01 to

4112.07 of the Revised Code.” This is known as retaliation.

{¶ 31} Retaliation may be proven by either direct or circumstantial evidence. Little

York Tavern v. Lane, 2017-Ohio-850, ¶ 17 (2d Dist.). However, direct evidence is rare in

discrimination cases. Shepard v. Griffin Servs., Inc., 2002-Ohio-2283, *3 (2d Dist. May

10, 2002), citing Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). No

direct evidence was presented here.

{¶ 32} If no direct evidence of “discriminatory motive” exists, courts apply the

“order and allocation of proof” established in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 800 (1973). Williams v. Akron, 2005-Ohio-6268, ¶ 9. Under the McDonnell analysis, -18-

“If a complainant establishes a prima facie case, the burden then shifts to the employer

to ‘articulate some legitimate, nondiscriminatory reason’ for its actions.” Greer-Burger v.

Temesi, 2007-Ohio-6442, ¶ 14, quoting McDonnell at 802. “If the employer satisfies this

burden, the burden shifts back to the complainant to demonstrate ‘that the proffered

reason was not the true reason for the employment decision.’ ” Id., quoting Texas Dept.

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

{¶ 33} For purposes of a prima facie case of retaliation, “a claimant must prove

that (1) she engaged in a protected activity, (2) the defending party was aware that the

claimant had engaged in that activity, (3) the defending party took an adverse

employment action against the employee, and (4) there is a causal connection between

the protected activity and adverse action.” Id. at ¶ 13, citing Canitia v. Yellow Freight Sys.,

Inc., 903 F.2d 1064, 1066 (6th Cir. 1990). See also Little York at ¶ 18; Aubrey-Dean v.

CareSource, 2024-Ohio-3209, ¶ 48 (2d Dist.).

{¶ 34} In the case before us, Lu engaged in a protected activity by filing complaints

with the OCRC in January 2021, and UD took adverse action (at least on its face) by

rejecting Lu for the CME associate professor position. However, as the trial court noted,

Lu failed to satisfy the second and fourth prongs of the prima facie test.

{¶ 35} On a superficial level, UD as an entity was obviously aware of the January

2021 OCRC complaints. However, the members of the screening committee for the CME

position (other than Kristin Krupa) were not aware. The screening committee was the

entity with decision-making authority for the position. The members consisted of Dr.

Krupa, the chair of the CME Department, Dennis Buchanan, Division Head of the -19-

Structural Materials Division of the UD Research Institute, Donald Klosterman, Associate

Professor in the CME Department, and Christopher Muratore, also Associate Professor

in the CME Department. In her role as CME Department chair, Krupa knew of Lu’s prior

OCRC complaints. However, Krupa purposely did not comment on Dr. Lu’s application

while it was being reviewed during the initial screening of applicants and did not discuss

the charges at any point during the search process. In addition, all the search committee

members had an equal say in the decision-making process. They all, including Krupa,

limited their consideration to Lu’s qualifications as an applicant and whether he met the

minimum or preferred qualifications for the position. Krupa Aff., ¶ 1, 3, 5, 9, and 10;

Buchanan Aff., ¶ 1, 3, 5, 9, and 10; Klosterman Aff., ¶ 1, 3, 5, 9, and 10; Muratore Aff.,

¶ 1, 3, 5, 10, and 11; and Krupa Depo. at 16-23 and 32. Lu failed to present evidence

otherwise.

{¶ 36} During her deposition, Krupa described the standard process that search

committees use to evaluate applicants. First, the committee members individually review

every application. They create a checklist, by which they compare the content in the

application with all the minimum and preferred qualifications. The committee then meets

to discuss the applications. If candidates do not meet minimum qualifications, they are

immediately removed. At that point, the committee discusses the remaining candidates

in connection with the preferred qualifications, considering strengths and weaknesses.

The purpose of this is to narrow the list to between eight and 12 people who will be

interviewed either by phone or by Zoom. After the initial interviews, Human Resources

conducts a quality check, and the committee obtains letters of reference from the -20-

references that candidates provide. The committee also checks out listed publications.

That was the process used here. Krupa Depo. at 16-23.

{¶ 37} According to Krupa, Lu met the minimum qualifications for the position with

some constraints. In particular, a minimum requirement was that candidates must

summarize prior research and provide a detailed vision of the future. Lu’s vision of the

future was not very strong and was significantly lacking compared to other candidates, as

it lacked detail, ideas, and length. Id. at 28. Based on Krupa’s checklist, Lu did not make

the final list of 10 candidates who would be interviewed. As noted, Krupa did not

participate in the discussion about Lu. However, the other three committee members all

agreed that Lu was not a strong enough candidate to move forward. Of the 21 candidates

who had applied, Lu and 12 others were eliminated in the initial round because they were

deemed unqualified or not competitive. Id. at 29. See also Krupa Aff. at ¶ 6 and 8.

{¶ 38} Dr. Muratore was also on the search committee and was an associate

professor in the CME Department. Muratore had received a Ph.D. from the Colorado

School of Mines in 2002, was a post-doctoral research fellow at the U.S. Naval Research

Laboratory in Washington, D.C. for two years, and then became a visiting scientist at the

U.S. Air Force Research Laboratory in Dayton until 2009, when he was hired there as a

government employee. UD hired him as a research scientist in 2012, and he worked in

that position until being hired as an associate professor in 2017. Muratore Depo. at 11-

14 and 17.

{¶ 39} Muratore’s description of the search committee process was consistent with

what Krupa described. Id. at 33-39, 42, 50-51, 63-64 and 84-85. Like Krupa, Muratore did -21-

not include Lu on his list of candidates who should be interviewed and found Lu’s research

statement concerning his vision for the future to be very weak. Id. at 86-87. However, that

was not the only issue. Lu’s research activity, i.e., publication, had been low in the

previous six to ten years; it was not competitive with other candidates and was

significantly different. Id. at 88-90. See also Ex. 1 attached to Lu’s summary judgment

response (indicating that prior to the 2021 application, Lu’s last publication was in 2014).

Publication is an important part of being an associate professor and is a significant factor

in evaluating candidates. Muratore Depo. at 21 and 34. Again, Lu offered no evidence

disputing these points.

{¶ 40} The plagiarism charge is irrelevant here. The job description for the CME

position was posted on March 5, 2021, and the posting closed on April 30, 2021. The

committee concluded an initial review of the 21 applicants on May 20; at that time, it

eliminated Lu and 12 other applicants who failed to meet minimum qualifications or were

uncompetitive. Krupa then offered the job to Dr. Li Cao on July 9. Cao accepted and

began working in that position on August 16, 2021. Krupa Aff. at ¶ 4, 6, 8, and 12.

{¶ 41} The first notice UD had of Lu’s plagiarism complaint was on July 20, 2021,

when it received a letter from Lu, who alleged that Muratore had plagiarized his research.

Candise Powell Aff., ¶ 2 and 3. In this letter, Lu admitted that UD had not previously

known of this alleged misconduct. Specifically, Lu stated that:

The evidence of plagiarism, unethical research conduct was

submitted to the Ohio Civil Right Commission (OCRC) on March 1, 2021 as

a part of my rebuttal letter to the Position Statement letter of UD for my -22-

wrongful termination complaint and racism at UD (the OCRC Case

Number# 29165). I have assumed that UD have [sic] received the evidence

via the OCRC. Since UD did not respond after more than 4 months, I

contacted the OCRC on July 14, 2021 and I was told that OCRC did not

forward the evidence to UD.

(Emphasis omitted.) Powell Aff. at ¶ 4, quoting Lu’s “Complaint of Research Misconduct”

letter dated July 19, 2021; see also Ex. 23, p. 1 attached to Lu’s summary judgment

response. Lu failed to present evidence that anyone on the CME search committee knew

of the plagiarism allegation when his application was rejected. In fact, Lu’s own statement

reveals that no one at UD knew.

{¶ 42} Krupa and Interim Dean Margie Pinnell investigated Lu’s plagiarism

complaint and found it lacked merit. They then created a multi-page report and gave it to

Paul Benson, the UD Provost and Executive Vice President of Academic Affairs. As a

result, on August 22, 2021, Benson sent a letter to Lu informing him that UD had found

his complaint unfounded. Krupa Depo. at 31-33; Powell Aff. at ¶ 6-7 and attached Exs. A

and B. Because these facts all occurred after Lu was rejected for the CME position, his

plagiarism claim could not possibly have impacted the committee’s decision.

{¶ 43} Failure on the second prong alone is fatal to Lu’s prima facie case on the

retaliation claim. However, for the same reasons, no causal connection was shown

between the protected activity and the decision not to hire Lu. “To demonstrate a causal

connection between an adverse employment action and the exercise of protected rights,

the evidence must show that the employee's engagement in protected activity was a -23-

determinative factor, rather than just a motivating factor, in the employer's decision to

take an adverse employment action.” Aubrey-Dean, 2024-Ohio-320, at ¶ 51, citing Diller

v. Miami Valley Hosp., 2017-Ohio-9051, ¶ 46 (2d Dist.), and Little York, 2017-Ohio-850,

at ¶ 16. Here, there is no evidence that Lu’s engagement in protected activity was a factor.

{¶ 44} Furthermore, even if Lu had established a prima facie case, UD met its

burden of providing legitimate, non-discriminatory reasons for its actions. See Greer-

Burger, 2007-Ohio-6442, at ¶ 14. “If the defendant carries this burden of production, the

presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds

to a new level of specificity.” Burdine, 450 U.S. at 255. As indicated, Lu had deficiencies

both in his research statement and publications. Notably, at the point Lu was rejected,

several candidates were still in contention for the position, not just the person who was

ultimately hired.

{¶ 45} The reasons UD offered met the burden of production, and Lu presented no

evidence regarding these candidates (other than the one who was ultimately offered the

job) or evidence that would cast doubt on UD’s proffered reasons. And, as noted, a

number of candidates who met the minimum qualifications were rejected and were not

interviewed. Muratore Depo. at 90.

{¶ 46} Once a defendant meets the burden of production, the plaintiff “now must

have the opportunity to demonstrate that the proffered reason was not the true reason for

the employment decision. This burden now merges with the ultimate burden of

persuading the court that she has been the victim of intentional discrimination. She may

succeed in this either directly by persuading the court that a discriminatory reason more -24-

likely motivated the employer or indirectly by showing that the employer's proffered

explanation is unworthy of credence.” Burdine at 256.

{¶ 47} The crux of Lu’s argument is that he was the best candidate and should

have been hired for the job. That is his opinion; clearly, the committee did not share it,

nor were they required to do so. “ ‘[I]n the case in which there is little or no other probative

evidence of discrimination, to survive summary judgment the rejected applicant's

qualifications must be so significantly better than the successful applicant's qualifications

that no reasonable employer would have chosen the latter applicant over the former. In

negative terms, evidence that a rejected applicant was as qualified or marginally more

qualified than the successful candidate is insufficient, in and of itself, to raise a genuine

issue of fact that the employer's proffered legitimate, non-discriminatory rationale was

pretextual.’ ” Silberstein v. Montgomery Cty. Community College Dist., 2009-Ohio-6138,

¶ 41 (2d Dist.), quoting Bender v. Hecht's Dept. Stores, 455 F.3d 612, 627 (6th Cir. 2006).

{¶ 48} The chosen candidate, Dr. Cao, had obtained an M.S. in 2002 and a Ph.D.

in 2005 from the Chinese Academy of Sciences in Beijing, China. In addition, he obtained

an M.S. in Materials Engineering in 2020 from UD. Cao also had considerable teaching

and research experience, including as a research associate at Clemson University; a

research scientist from 2012 to 2015 in the UD CME Department; a research engineer in

the UD CME Department from 2015 to 2018; and a research professor at the UD CME

Department from 2018 to the date of the 2021 application. Cao had also taught

undergraduate and graduate classes at UD from 2016 to the date of his application, had

mentored graduate students from 2012 to that time, and had 90 publications listed on his -25-

resume. These included three then in preparation, one in revision in 2021 for a publication

called Materials Letters, and another article that had been published in 2021. See Lu Ex.

20 (filed under seal).

{¶ 49} There was no indication that Cao lacked either the minimum or preferred

qualifications for the position, and Muratore stated that he was impressed by the high

impact of Cao's publications, which had been cited by thousands of people. Muratore

Depo. at 75-77. In fact, using Google Scholar and a hyperlink for UD, Muratore found that

Cao was among the top three or at least the top five cited persons who were affiliated

with UD. Id.

{¶ 50} Lu failed to present evidence on this point other than his belief that he

should have been chosen for the job. However, “plaintiffs’ mere conjecture that their

employer's explanation is a pretext for intentional discrimination is an insufficient basis for

denial of summary judgment.” Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th

Cir. 1988). Accord Senu-Oke v. Bd. of Edn. of Dayton City School Dist., 2005-Ohio-5239,

¶ 31 (2d Dist.). Because “courts are not free to second-guess an employer's business

judgment,” a party’s assertion that he or she is equally or more qualified than a chosen

candidate is insufficient to support a finding of pretext. Instead, the decisionmaker’s

perception is the relevant factor, not the applicant’s perception of herself. Branson at 772.

{¶ 51} Lu was “an experienced physics teacher” and “taught introductory physics

classes as an adjunct professor at the University of Dayton” from 2014 to 2020. Lu, 2023

WL 8187299, at *1. Like Cao, Lu had a Ph.D. (as did all candidates who met the minimum

requirements). Lu had also previously been an associate professor at Fisk University from -26-

2004 to 2010 and had received tenure there in 2009. Lu Ex. 1 (Lu Resume), p. 1 and 6.

However, there is no dispute that prior to the 2021 application, Lu’s most recent

publication had occurred in 2014. Id. at p. 11-12. Thus, while Lu perceived himself to be

equally or more qualified, this was merely his own opinion. We also note that Lu and Cao

were both Chinese immigrants. See Ex. 20 and Lu Ex. 1. While Lu is not challenging the

hiring decision based on national origin discrimination (nor could he, since both

candidates were in the same protected class), UD’s choice to hire Cao is inconsistent

with Lu’s persistent claim that UD is a racist institution. No evidence supports that

assertion.

{¶ 52} Accordingly, and based on the preceding discussion, the trial court did not

err in granting summary judgment to UD.

III. Denial of Motion for Relief from Judgment

{¶ 53} As noted, Lu’s brief and reply brief failed to comply with App.R. 16(A) and

were filled with accusations against UD, involved attorneys, and the trial court. As before,

we will not consider those matters. The issue here is whether the trial court erred in

denying Lu’s motion for relief from judgment. We begin by outlining the appropriate

standard for such motions.

A. Civ.R. 60(B) Standards

{¶ 54} Under Civ.R. 60(B), “On motion and upon such terms as are just, the court

may relieve a party or his legal representative from a final judgment, order or proceeding -27-

for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)

newly discovered evidence which by due diligence could not have been discovered in

time to move for a new trial under Civ.R. 59(B); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the

judgment has been satisfied, released or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (5) any other reason justifying relief

from the judgment.”

{¶ 55} “To prevail on a motion brought under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time, and, where the grounds

of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order

or proceeding was entered or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146 (1976), paragraph two of the syllabus. However, “[t]hese requirements

are independent and in the conjunctive; thus the test is not fulfilled if any one of the

requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994), citing GTE at

151.

{¶ 56} “A ‘meritorious defense’ means a defense ‘going to the merits, substance,

or essentials of the case.’ ” Wayne Mut. Ins. Co. v. Marlow, 1998 WL 288912, *2 (2d Dist.

Jun. 5, 1998), quoting Black's Law Dictionary (6th Ed.Rev.1991). The movant has the

burden of demonstrating that “the interests of justice demand the setting aside of a -28-

judgment normally accorded finality.” Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,

21 (1988). “Relief from a final judgment should not be granted unless the party seeking

such relief makes at least a prima facie showing that the ends of justice will be better

served by setting the judgment aside.” Id. “Broad, conclusory statements do not satisfy

the requirement that a Civ.R. 60(B) motion must be supported by operative facts that

would warrant relief from judgment.” (Citations omitted.) GMAC Mtge., L.L.C. v. Herring,

2010-Ohio-3650, ¶ 32 (2d Dist.).

{¶ 57} Appellate review in this situation is for abuse of discretion. Id. This term “has

been defined as an attitude that is unreasonable, arbitrary or unconscionable.” AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

161 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). Most

abuses of discretion “will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.” Id. The court stressed in AAAA Ents. that

“[a] decision is unreasonable if there is no sound reasoning process that would support

that decision.” Id.

{¶ 58} With these standards in mind, we will consider the trial court’s decision.

{¶ 59} On October 11, 2024, Lu filed a motion for relief from judgment

accompanied by about 431 pages of exhibits (for a total of 446 pages). The motion did

not cite a particular ground in Civ.60(B), but from the discussion, it appears to have been

based on Civ.R. 60(B)(2) (newly discovered evidence) and/or 60(B)(3) (an adverse -29-

party’s fraud, misrepresentation, or other misconduct). Specifically, Lu alleged that Krupa

and Muratore had committed perjury during their January 8, 2024 depositions, that UD

had misled the court during its summary judgment motion, and that he had “new” evidence

relating to UD’s treatment of Sorrie Ceesay, which was attached as Ex. 2. See Motion for

Relief from Final and Appealable Decision, Order, and Entry Granting Defendant’s Motion

for Summary Judgment (Oct. 11, 2024) (“Relief Motion”), p. 2, 6, 9, and 13-14.

{¶ 60} In denying Lu’s motion, the trial court found that Lu failed to establish the

first and second prongs of the GTE test. Final and Appealable Decision, Order, and Entry

Denying Defendant’s Motion for Relief from Judgment (Dec. 30, 2024) (“Relief Decision”),

p. 9. Specifically, the court found: (1) Lu failed to cite any particular provision in Civ.R.

60(B); (2) even if the court assumed Lu referred to subsections (B)(2) and (3), any

evidence the court previously did not consider was evidence Lu could have found by due

diligence; (3) the new evidence was immaterial and merely cumulative; (4) Lu failed to

allege operative facts supporting his fraud claim; (5) Lu failed to provide evidence of a

meritorious defense but instead simply recounted speculation; (6) Lu failed to show UD’s

reason for not hiring him was a pretext; and (7) the evidence of record showed Lu was

fairly eliminated as a candidate. Id. at 9-10.

{¶ 61} Before we address the decision’s merits, we will briefly discuss the claim in

Lu’s brief about a protective order entered in the trial court. See Appellant’s Brief, p. 6

and 26-33. While Lu’s arguments are not entirely clear, he appears to contend his attorney

improperly entered into a protective order without his consent and that it was done to

prevent Muratore’s alleged crimes (obstruction and perjury under oath) from being -30-

reported to authorities. Lu also alleges various unethical actions on the trial court’s part,

presumably in entering the protective order. Lu further argues these matters show that

racism occurred in the trial court. We disagree. There is no evidence of racist or unethical

conduct.

{¶ 62} When Lu responded to UD's summary judgment motion on January 29,

2024, he asked the court for an order allowing him to exceed page limitations for his brief

and for an order letting him file Exhibit 20 of his response under seal. Before the court

ruled on these motions, UD filed a reply memorandum in support of summary judgment

on February 12, 2024. The following day, the parties filed a stipulated protective order,

permitting them to designate items as “CONFIDENTIAL - SUBJECT TO PROTECTIVE

ORDER” or “ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER.”

Stipulated Protected Order (Feb. 13, 2024), p. 1. On that day, the court granted Lu's

pending motions and also ordered that public access to Exhibit 20 would be restricted.

See Order and Entry Granting Plaintiff's Motion to Exceed Page Limitation and to File

Exhibit 20 Under Seal; Order Restricting Public/Direct Access to Exhibit 20 (“Seal Order”)

(Feb. 13, 2024).

{¶ 63} The only content in Exhibit 20 is the application that Dr. Cao submitted to

UD when he applied for the CME associate professor position. As indicated, Cao was the

person selected for that job. The application includes items like Cao’s educational

background and his curriculum vitae as of April 19, 2021. None of this information has

anything to do with Muratore or Krupa.

{¶ 64} On January 29, 2024 (the day Lu filed his summary judgment response), -31-

Lu’s attorney also filed a notice of filing deposition transcripts. These transcripts (of the

depositions of Krupa and Muratore) were filed before the court granted Lu’s motion for a

protective order. In reviewing the online docket, we found that they are not currently

available for public access on the clerk of court’s website. They were, however, available

to the trial court (which cited them), and we have reviewed them as well. Despite Lu’s

claims, there is nothing inappropriate in restricting public access to certain documents.

Parties routinely use protective orders to protect the privacy of their own materials.

Furthermore, Lu himself filed the complete depositions of both Muratore and Krupa as

attachments to his motion for relief from judgment. See Relief Motion, Appx. 1 and Appx.

32. Therefore, these documents are part of the public record, and no one has prevented

access.

{¶ 65} More importantly, Lu’s argument that the attorneys, UD, and the trial court

attempted to conceal evidence of perjury and fraud ignores the fact that Lu himself had

copies of these documents and could have used them in any way he wished. In fact, Lu

stated in his motion that he had reported the alleged “crimes” to law enforcement on July

23 and July 29, 2024. Relief Motion at p. 1 and 3; Ex. 1 attached to the Relief Motion.

{¶ 66} According to Ex. 1 (which is 28 pages long), Lu apparently sent Ex. 1 and

its 33 appendices to the trial court, the Assistant U.S. Attorney, and the Montgomery

County, Ohio Prosecutor on July 27, 2024. He also copied his own attorney. Notably, Ex.

1 makes essentially the same arguments that Lu used to support his motion for relief from

judgment. The rest of Ex. 1 (which is longer) covers irrelevant matters that Lu alleged

during the prior federal litigation and here, such as non-renewal of Lu’s adjunct teaching -32-

contract, discrimination against Ceesay, and Muratore’s alleged plagiarism.

{¶ 67} Lu also does not demonstrate why Ex. 20 and the depositions would be of

interest to anyone other than the parties to this case. Again, if the public wants to access

the depositions, they are available on the clerk’s website. As a final point, we note that Lu

claimed in the trial court that he did not discover the protective order until August 2024.

See Lu Reply in Support of Relief from Judgment (Dec. 2, 2024), p. 4. However, the

protective order was filed in mid-February 2024, months before the court rendered

summary judgment. Lu could have accessed the clerk’s website at any time and could

have found the order.

{¶ 68} Turning now to the decision on Lu’s motion for relief from judgment, courts

have held that “[t]o the extent that the language of Civ.R. 60(B)(2) provides for a new trial

on the basis of newly discovered evidence which could not have been timely obtained,

this section does not appear to be a ground for relief from judgment when the original

entry is one granting summary judgment.” Thompson v. Russ-Pol, Inc., 1989 WL 42973,

*3 (11th Dist. Apr. 28, 1989). On the other hand, where summary judgment is involved,

courts have chosen to address the matter anyway. Elliott v. Bobb, 2024-Ohio-3095, ¶ 46

(4th Dist.), citing Healey v. Goodyear Tire & Rubber Co., 2012-Ohio-2170, ¶ 10 (9th Dist.).

We have also done so. See Jackson v. Am. Lubricant Co., 2001 WL 221661, *1 (2d Dist.

Mar. 2, 2001). Consequently, we will consider the motion, beginning with the application

of Civ.R. 60(B)(2).

C. Newly Discovered Evidence -33-

{¶ 69} “To receive relief under Civ.R. 60(B)(2), the moving party must prove: (1)

the evidence is actually newly discovered, (2) the moving party exercised due diligence,

and (3) the evidence is material, not merely impeaching or cumulative, and a new trial

would probably produce a different result.” Dublin v. RiverPark Group, LLC, 2022-Ohio-

1294, ¶ 15 (10th Dist.), citing McBroom v. Bob-Boyd Lincoln Mercury, Inc., 2013-Ohio-

1679, ¶ 11 (10th Dist.). See also Ping v. Payne, 1999 WL 1267023, *2 (2d Dist. Dec. 30,

1999). “For evidence to be newly discovered, the moving party must establish that it could

not have discovered the evidence with due diligence at the time of the trial.” Dublin at

¶ 16.

{¶ 70} Having reviewed all the documents attached to Lu’s motion, we conclude

that the evidence was not actually newly discovered and could have been found with due

diligence. In his memorandum, Lu noted that Muratore’s and Krupa’s depositions were

conducted on January 8, 2024. According to the transcripts, Lu was present for both

depositions. Lu also said that he reported his “new evidence” to the trial court on July 24,

2024. Relief Motion at p. 1. He further said he discovered the evidence by opening every

storage box that he had after Muratore’s deposition. Id. at p. 2. Lu did not specify exactly

when he looked through the boxes. However, this evidence was clearly not new, since it

was in Lu’s possession. Lu was also alerted to it in January 2024 – months before the

trial court granted summary judgment.

{¶ 71} More importantly, the matters Lu submitted are not material or relevant, as

his argument primarily relates to events that occurred many years ago in connection with

UD contracts with AFRL, non-renewal of Lu’s adjunct teaching job, allegations of -34-

discrimination against Ceesay by UD and AFRL, and alleged plagiarism by Muratore. Id.

at p. 3-15. In addition, Lu raises the alleged illegal actions of UD and Muratore in

connection with contacts with DAGSI. Id. at 8-9. This is all irrelevant to Lu’s claims.

{¶ 72} We have reviewed all 33 appendices attached to Lu’s motion and agree

with the trial court’s conclusions. One example of an irrelevant item is Appx. 33, which is

a 2013 contract between UD and DSAGI. See Relief Motion at p. 3 (where Lu claims this

is “new evidence”).

{¶ 73} As indicated in the prior federal litigation, “Ceesay's Ph. D. research was

funded through the Defense Associated Graduate Student Innovators program

(“DAGSI”). . . DAGSI is an Ohio program funded by the Ohio Department of Higher

Education and the United States Air Force that supports science and engineering

graduate students and faculty who conduct research in areas targeted by the Air Force

Research Laboratory (‘AFRL’) at Wright Patterson Air Force Base.” Lu, 651 F.Supp.3d at

905. This contract would have been in effect during the time Lu worked with Ceesay. Id.

However, that matter is not relevant here. There was no evidence that the CME committee

considered Lu’s complaints about discrimination against Ceesay when it reviewed Lu’s

application.

{¶ 74} Another example is Appx. 27, which is the UD “Policy on Misconduct in

Research and Scholarship.” This policy was first effective in March 1984 and was

approved as amended on January 8, 2018. Id. at p. 2. Lu failed to provide any reason

why this document was actually new and could not have been located with due diligence.

Clearly, it could have been located with any diligence, since the policy had existed since -35-

1984.

{¶ 75} “ ‘Due diligence’ is defined as ‘such a measure of prudence, activity, or

assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable

and prudent man under the particular circumstances; not measured by any absolute

standard, but depending on the relative facts of the special case.’ ” Delong v. Springfield

Newspaper, Inc., 1996 WL 562772, *9 (2d Dist. Sept. 27, 1996), quoting Black's Law

Dictionary (6 Ed.Rev.1990). Lu was required to present evidence that he acted with due

diligence concerning Appx. 27 and to indicate how the document satisfied Civ.R. 60(B)(2)

requirements. However, he failed to do so. This is true of all the documents alleged to be

“new” evidence.

{¶ 76} While Lu represented himself pro se, “it is well established that pro se

litigants are presumed to have knowledge of the law and legal procedures and that they

are held to the same standard as litigants who are represented by counsel.” State ex rel.

Fuller v. Mengel, 2003-Ohio-6448, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family

Servs., 145 Ohio App.3d 651, 654 (10th Dist.), overruled in part on other grounds by

Weidman v. Hildebrant, 2024-Ohio-2931, ¶ 17.

{¶ 77} Based on the preceding discussion, the trial court did not abuse its

discretion concerning the claim for relief under Civ.R. 60(B)(2). The next issue concerns

Civ.R. 60(B)(3).

D. Alleged Fraud

{¶ 78} In rejecting Lu’s claim for relief under Civ.R. 60(B)(3), the court stated that -36-

“Dr. Lu has failed to allege sufficient operative facts to support his general allegations of

fraud. Dr. Lu alleges that Dr. Krupa and Mr. Muratore were dishonest when testifying at

their depositions, and he further claims that the University’s faculty members were

generally aware of his complaints of racism. However, Dr. Lu’s mere allegation that the

University’s employees lied in their affidavits and depositions is insufficient to meet his

burden under Civ.R. 60(B)(3).” Relief Decision at p. 9-10. The court further held that

neither UD nor its employees had engaged in fraud. Id. at p. 10.

{¶ 79} “The fraud or misconduct contemplated by Civ.R. 60(B)(3) is fraud or

misconduct on the part of the adverse party in obtaining the judgment by preventing the

losing party from fully and fairly presenting his defense, not fraud or misconduct which in

itself would have amounted to a claim or defense in the case.” Wells Fargo Bank, N.A. v.

Brandle, 2012-Ohio-3492, ¶ 13 (2d Dist.), citing State Alarm, Inc. v. Riley Indus. Servs.,

2010-Ohio-900, ¶ 21 (8th Dist.). “ ‘In determining the existence of fraud of an adverse

party for purposes of Civ.R. 60(B), the movant must prove the elements of fraud. . . . In

an action for fraud, the plaintiff must prove each of the following elements: (a) a

representation, which (b) is material to the transaction at hand, (c) made falsely, with

knowledge of its falsity, (d) with the intent of misleading another into relying upon it, (e)

justifiable reliance upon the representation, and (f) a resulting injury proximately caused

by the reliance.’ ” Herring, 2010-Ohio-3650, at ¶ 37, quoting Hasch v. Hasch, 2009-Ohio-

6377, ¶ 42 (11th Dist.). Ohio courts have held that “[t]he party asserting fraud has the

burden of proving it by clear and convincing evidence.” Kell v. Verderber, 2013-Ohio-

4223, ¶ 44 (1st Dist.), citing US Bank Natl. Assn. v. Marino, 2012-Ohio-1487, ¶ 15 (5th -37-

Dist.), and Hardman v. Chiaramonte, 39 Ohio App.3d 9, 11 (9th Dist. 1987). See also

Natl. Collegiate Student Loan Tr.-1 v. Payne, 2022-Ohio-2636, ¶ 18 (10th Dist.).

{¶ 80} Having reviewed the entire record, we conclude that the trial court did not

abuse its discretion. Lu has repeatedly accused UD, Krupa, and particularly Muratore of

fraud and racism. However, Lu’s accusations are based on conjecture and incorrect

assumptions or interpretations of facts. For example, in his appellate brief, Lu focuses on

DAGSI program requirements and the allegation that when Muratore received awards

from DAGSI from 2014 to 2017, he was not eligible because he was not tenured faculty

or on a tenure track. Appellee’s Brief at p. 20-22. Therefore, Lu contends Muratore lied

during his deposition and committed fraud when he applied for DAGSI contracts.

{¶ 81} We have already found Lu’s “new” information is irrelevant. Nonetheless,

we will briefly comment on this point because it typifies Lu’s lack of understanding of the

difference between fact and conjecture and of what facts are relevant to his current

claims.

{¶ 82} During the January 2024 deposition, Lu’s attorney questioned Muratore

about his education and general employment background. As noted, Muratore received

his Ph.D. in 2002, had been a full-time research scientist and engineer at UD from 2012

to 2017, and had been an associate professor at UD since 2017. Muratore Depo. at 7-9,

11-14, and 17. During the research part of Muratore’s career, UD asked him to teach

classes every semester. He also supervised both undergraduate and graduate students.

Id. at 13-14, 18, 20, and 31. Before Muratore became an associate professor, Dr.

Browning, the CME Department head, assigned him to work with Ceesay, who was a -38-

Ph.D. student, and with Rachel Ray, who replaced Ceesay and was in the process of

obtaining M.S. and Ph.D. degrees. DAGSI was the funding source for this work. Id. at 94-

98. As noted, Lu had worked with Ceesay before Browning assigned Muratore to the

project.

{¶ 83} Lu attached the DAGSI Program Information and Requirements to his

motion for relief as Appx. 2. Allegedly, this was “new” information and showed that

Muratore and UD had committed fraud because Muratore was not qualified to apply for

funding. As indicated, this was because Muratore was not tenured or on tenure track.

{¶ 84} Contrary to Lu’s claim, Appx. 2 does not restrict grants only to tenured or

tenure-track faculty. The provision in question (including the part Lu has omitted) states

that: “Faculty applicants must be full-time, tenured or tenure-track. . . Senior research

faculty may apply provided they work closely with and advise graduate students.” Id. at

p. 4. Thus, if Muratore fit within that category, he was able to apply; he did not have to be

a tenured or tenure-track faculty member. No evidence was presented to indicate that

Muratore did not qualify per this definition. According to Muratore’s deposition, he was a

research engineer and scientist; he also worked with and advised graduate students.

{¶ 85} We also note this paragraph further states that, “No faculty members other

than the applicant may receive a stipend or any miscellaneous expense monies from an

AFLR/DAGSI award without prior approval by BOTH AFLR and DAGSI.” Id. The reason

for such a provision is obvious, since the program appears to have been primarily

intended to benefit students. Lu, 651 F.Supp.3d at 905; Lu, 2023 WL 8187299, at *1. In

any event, Lu never submitted any evidence indicating that Muratore received such a -39-

stipend or expense money. Again, this “new” information was not relevant. As we have

repeatedly said, the issue before the trial court was whether UD retaliated against Lu

because he had filed complaints with the OCRC in January 2021. There was no evidence

of retaliation.

{¶ 86} Accordingly, the trial court did not abuse its discretion in finding that relief

under Civ.R. 60(B)(3) was unwarranted. In light of the preceding discussion, the second

assignment of error is overruled.

{¶ 87} As a final point, on May 2, 2025, Lu filed a document with our court entitled,

“Certification of Appellant’s Efforts to Discover Evidences Concealed by Appellee.”

However, Lu has already filed a brief and reply brief. Under App.R. 12(C), after the reply

brief has been filed, “No further briefs may be filed except with leave of court.” Because

Lu failed to request leave, this document will be struck from the record and will not be

considered.

IV. Conclusion

{¶ 88} Both of Lu’s assignments of error having been overruled, the judgments of

the trial court are affirmed. In addition, we order the clerk to strike Lu’s “Submit Brief of

Appeal” filed on Jan 27, 2025 in Case No. 30272. We further order the clerk to strike Lu’s

“Certification of Appellant’s Efforts to Discover Evidences Concealed by Appellee,” filed

on May 2, 2025, in Case Nos. 30272 and 30375.

............. -40-

EPLEY, P.J. and LEWIS, J., concur.