Collin v. Rector & Bd. of Visitors of Univ. of Va.

• Decision Date: 03 January 1995
• Docket Number: Civ. A. No. 93-0074-C.
• Citation: 873 F. Supp. 1008
• Court: U.S. District Court — Western District of Virginia
• Parties: Robert L. COLLIN, Plaintiff, v. RECTOR AND BOARD OF VISITORS OF the UNIVERSITY OF VIRGINIA, et al., Defendants.

873 F. Supp. 1008

Robert L. COLLIN, Plaintiff, v. RECTOR AND BOARD OF VISITORS OF the UNIVERSITY OF VIRGINIA, et al., Defendants.

Civ. A. No. 93-0074-C.

United States District Court, W.D. Virginia, Charlottesville Division.

January 3, 1995.

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Margaret McLeod Cain, Charlottesville, VA, for plaintiff.

James S. Gilmore, III, Office of the Atty. Gen., Richmond, VA, Earl C. Dudley, Jr., Office of the Gen. Counsel, Charlottesville, VA, James J. Mingle, General Counsel's Office, Charlottesville, VA, Beth C. Hodsdon, Charlottesville, VA, for defendants.

MEMORANDUM OPINION

MICHAEL, District Judge.

This case involves several claims of discrimination asserted against the Rector and Board of Visitors ("the Board") of the University of Virginia ("UVA") and certain Deans and faculty members of the UVA School of Architecture, Department of Urban Planning (also "Department"), by Plaintiff Collin pursuant to Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The court referred this case to the Honorable B. Waugh Crigler, United States Magistrate Judge, pursuant to a standing order, for proposed findings of fact and a recommended disposition. The Magistrate Judge filed his Report and Recommendation on October 26, 1994, recommending dismissal of the Title VII claims against the Defendants sued in their individual capacities, the § 1981 claims, and the § 1983 First Amendment claims. On November 7, 1994, the Defendants filed Objections to the Report. On November 9, Plaintiff Collin filed Objections. Said Objections having been lodged in a timely and appropriate manner, this court is required to undertake a de novo determination. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir. 1982). After de novo review of the record in this case, the court grants the Defendants' Motion to Dismiss in part and denies the Motion in part, in accordance with this Opinion.

I. FACTUAL BACKGROUND

The following is a summary of the facts as alleged in the complaint, which for purposes of a motion to dismiss must be taken as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, ___ U.S. ___, ___, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993).

Plaintiff Collin is a white man who began working for the Department of Urban Planning of the UVA School of Architecture in 1987. His direct supervisor was Dr. William Harris, an African-American man who is suing the Department of Urban Planning for race-based discrimination in another case in this court. Collin married an African-American woman in New Zealand in 1989. When he returned to UVA in the fall of 1989 he was unanimously reappointed to his position as Assistant Professor.

Collin conducted a fair housing study of the West Main Street area in 1989, in which he and his students examined issues of racial discrimination in the Charlottesville housing market. Collin met with UVA counsel James Mingle about the study before it reached completion. A student working on the study complained that Mingle interfered with students' efforts to conduct fair housing testing. In 1992 Collin and his students were "forbidden" from communicating with the West Main Street community by Dean Harry Porter.

During the 1989 period, a secretary spoke of African-Americans in racist terms to Collin and he reprimanded her. When he requested that she copy the fair housing report the next day, she refused. Collin filed a complaint against her for racially motivated insubordination. Department authorities told Collin to drop the complaint or be charged with harassment. After Collin discussed the incident with the President of UVA, Dean Porter informed him that he would not receive research support. Collin claims that he received the lowest amount of research support among the junior faculty in the Department, and that his office was moved in violation of Collin's employment contract. Collin also claims that he suffered missing mail and telephone messages, stemming in part from hostility caused by his opposition to racist speech.

Furthermore, Collin chaired a search committee in the Department in 1989. He developed a minority outreach program that was not implemented and, as a consequence of his efforts to encourage diversity, was removed from his position. Thereafter, he overheard members of the committee make racist statements about minority candidates. In addition, Collin supported the unsuccessful bid of Dr. Harris for the chairmanship of the Department. Collin spoke on Harris's behalf at faculty meetings. Collin observed a "secret petition" passed around to deny Harris the post.

The Department of Urban Planning denied Collin tenure in 1992. This suit ensued. Collin filed a Title VII complaint with the Equal Employment Opportunity Commission ("EEOC") naming the Board and the School of Architecture. The EEOC later issued the Plaintiff a right to sue letter. Collin claims that he was subjected to an altered tenure review process, on the basis of his "race and race-related associations," and that the Defendants retaliated against him for lodging race-related complaints. The racist slur by the secretary, the interference with his fair housing study, and the retaliation imposed by the Deans, reflected a hostility to Collin caused by his marriage to an African-American woman and his advocacy of African-American causes, according to his complaint.

Collin also claims related deprivations under § 1981 and § 1983. Under § 1981 he claims that he was denied the same opportunity to enter into contracts as other whites because of his marriage to an African-American woman, his other race-related associations, and his opposition to race-related unlawful employment practices. Under § 1983 he claims that he was retaliated against for his advocacy of minority recruitment and minority-related scholarship, and for his race-conscious community work, in violation of his First Amendment rights. He also asserts under § 1983 that the Defendants violated his constitutional right to equal protection.

II. ANALYSIS

A. Counts I and II: Title VII

Under Counts I and II Collin alleges that the University and its agents denied him tenure on the basis of his "race and race-related associations," and retaliated against Collin for opposing unlawful employment practices. Collin does not contest the fact that all Title VII claims should be dismissed against the Defendants insofar as the Defendants are sued in their personal capacities. The Defendants do not contest the fact that the complaint properly states claims under Title VII against the Board (referred to in Counts I and II as "the University"), and against Dean Porter in his official capacity.

Defendants Collins, Spain, Dotson, Phillips, and Lucy were not named in the EEOC complaint. Accordingly, the claims against these Defendants must be dismissed. See 42 U.S.C. § 2000e-5(f)(1). The claims against Dean Porter in his official capacity may be maintained, however, because he is substantially identified with the Department of Urban Planning, and the Department of Urban Planning was named in the EEOC complaint along with the Board. See Brewster v. Shockley, 554 F.Supp. 365, 367 (W.D.Va.1983) (exception to requirement that Defendant be named in EEOC complaint where named and unnamed Defendants are substantially identical or are in agency relationship); see also Alvarado v. Board of Trustees of Montgomery Community College, 848 F.2d 457, 461 (4th Cir.1988) (noting adoption of substantial identity exception by district courts in the Fourth Circuit without addressing validity of doctrine). On this basis, the court adopts the Magistrate's recommendation that the Defendants' motion to dismiss the claims in Counts I and II against Defendants Collins, Spain, Dotson, Phillips, and Lucy be granted, but that the motion to dismiss the claims against Defendants the Board, the Department, and Porter be denied.

B. Counts III-V: 42 U.S.C. § 1981 and § 1983 Claims Against the Board, the Department, and Porter in his official capacity¹

The court must first consider whether the Board and the Department are entitled to absolute Eleventh Amendment immunity from suit in federal court. This court has previously determined that UVA is a state agency entitled to absolute immunity. Wilson v. University of Virginia, 663 F.Supp. 1089, 1092 (W.D.Va.1987). Clearly the Department is an arm of the University and thus enjoys the same Eleventh Amendment immunity from suit as the University as a whole. The only question that requires more discussion is whether the suit against the Board is the equivalent to a suit against UVA. This question must also be answered in the affirmative.

"In order to determine whether a suit against a state agency is in reality a suit against the state, the court `must examine the particular entity in question and its powers and characteristics as created by state law.'" Muhammed v. Board of Supervisors of Southern University, 715 F.Supp. 732, 733 (M.D.La.1989) (quoting Minton v. St. Bernard Parish School Bd., 803 F.2d 129, 131 (5th Cir.1986)). Whether the agency has the authority to sue and be sued or to hold and convey property, the source and extent of the agency's management authority, and the source of the agency's funds are important considerations. Id.

The Code of Virginia establishes the Board as the governing body of the University. Va.Code Ann. Art. 2. The Board is a corporation that manages the affairs of the University under the name "the Rector and Board of Visitors of the University of Virginia." Va.Code Ann. § 23-69. The Board is under the control of the General Assembly, § 23-69, and its members are appointed by the Governor, § 23-70. The Board has supervisory control over the affairs of the University and has the power to hold and convey property. §§ 23-76, 77.1.

The Board's status under Virginia law is the same as any other state agency. Cf. Muhammed, 715 F.Supp. at 733 (finding university board the equivalent to...