Bowers v. Rector and Visitors of University of Va

Decision Date16 March 2007
Docket NumberCivil No. 3:06cv00041.
Citation478 F.Supp.2d 874
PartiesDena BOWERS, Plaintiff, v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, et al., Defendants.
CourtU.S. District Court — Western District of Virginia

Deborah Chasen Wyatt, Wyatt & Associates, Charlottesville, VA, for Plaintiff.


MOON, District Judge.

This matter is before the Court on cross motions for summary judgment: Defendants' Motion for Summary Judgment, filed on January 26, 2007 (docket entry no. 48) and Plaintiff's Motion for Summary Judgment, filed on January 28, 2007 (docket entry no. 51). For the reasons that follow, Defendants' Motion for Summary Judgment will be granted in part and denied in part and Plaintiff's Motion for Summary Judgment will be denied, both in an order to follow.


Plaintiff Dena Bowers was an employee of the University of Virginia ("University"), which, at the time, was trying to persuade the Virginia General Assembly to pass legislation allowing the University to restructure its pay scale system, allegedly to the detriment of some University employees.

The local chapter of the National Association for the Advancement of Colored People ("NAACP"), of which Plaintiff was a member, opposed the proposed legislation and met on October 10, 2005, to discuss the results of their research into the proposals. Kobby Hoffman ("Hoffman"), a fellow University employee and friend of Plaintiff s, was also a member of the NAACP but could not attend the meeting. Hoffman asked Plaintiff to send Hoffman a copy of the documents and charts that had been distributed at the NAACP meeting.

Prior to working hours the next morning (October 11, 2005), Plaintiff used her University email account to send to Hoffman what Plaintiff describes as a personal email that included as attached files the documents Hoffman had requested. The documents were, according to Plaintiff, clearly labeled as NAACP documents. Plaintiff alleges that sending the email was not a part of her job and had nothing to do with her University duties. However, she left in place her "signature" or "stamp," which identified her as a University Human Resources employee.

Hoffman, also using her University email account, forwarded Plaintiff's email to an unknown number of other people, some of whom shared it with still others. Hoffman also labeled the attachments as NAACP documents. One of the subsequent recipients sent the attachments to a University employee and elected worker representative E. Howard Booker ("Booker") with a note indicating that Plaintiff had "done the analysis for HR." Booker, believing the documents were official University information and concerned about their contents as a worker representative, used his University email account to forward the email to "hundreds" of other people.

Plaintiff, on learning of the confusion, told Booker and an unknown number of others to clarify that the documents were not from HR, but were from the NAACP. When asked by Booker and others what to do about the negative implications for salary increases and leave policies, she again used her University email to send him a suggested letter to be used as a template for communications with the Governor's office.

Plaintiff stayed home from work on October 20, 2005, because she was ill. Defendant Yoke San Reynolds ("Reynolds"), the University's chief financial officer, called Plaintiff at Plaintiff's home to inquire about the email. Reynolds, who, according to Plaintiff, has no direct supervisory role over her, was joined by others, including Defendants Nat Scurry ("Scurry") and Lucinda Childs-White ("Childs-White"), both of whom are Plaintiff's supervisors. During the course of the telephone call, Plaintiff answered all of Defendants' questions except one: from where the information used to create the NAACP documents originated. Plaintiff withheld answering this question because she felt that the answer would call for revealing private NAACP information that the University did not have a right to demand.

Plaintiff met with Childs-White and Scurry on October 21 to discuss possible disciplinary action arising from the email incident.

Approximately one month later, on November 17, 2005, Scurry and Childs-White met with Plaintiff and told her that she was facing termination and that she should "present her defense" by noon on November 21, 2005, because there would be a hearing at 3 p.m. on November 22, 2005. Effective November 17, 2005, Plaintiff was placed on paid leave until the November 22 hearing. Although Plaintiff claims in her complaint that she was then told neither the nature of the claims against her nor what she had done wrong (see Compl. ¶ 38), she also claims that Defendants "indicated that this was for sending the email and for her reactions and interactions afterwards" (Pl.'s Mem. in Opp'n to Defs.' 12(b)(6) Mot. to Dismiss and in Supp. of Mot. to Strike 7).

On November 21, Plaintiff asked Scurry to specify the nature of the charges against Plaintiff, but Scurry did not respond. That evening, however, Plaintiff received, "indirectly and from a totally different source," what she claims was either "non-specific" information about the charges (Compl. ¶ 40) or "slightly more specific" information about the charges (PL's Mem. 8).

At 3 p.m. on November 22, Plaintiff met with Scurry and Childs-White and asked for an opportunity to be heard, but Plaintiff was denied such an opportunity. (See Pl.'s Mem. 8 ("[S]he was handed [two] pink slips but her request to speak was refused.")) Scurry and Childs-White informed Plaintiff that her employment with the University had been terminated.

Accordingly, Plaintiff brought this action in Virginia state court and Defendants timely removed it to this Court. Plaintiff originally alleged four causes of action in her complaint: deprivation of procedural due process (Count I); violations of the First Amendment (Count II); civil conspiracy under Virginia law1 (Count III); and common law breach of contract (Count IV). The Court dismissed two counts pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted: Count III (civil conspiracy) and Count IV (breach of contract); the Court left intact Count I (deprivation of due process) and Count II (First Amendment violations). The Court then granted Defendants' motion for judgment on the pleadings with respect to Defendant University and all individual defendants in their official capacities, leaving only the First Amendment and Due Process claims against Leonard Sandridge ("Sandridge"), Reynolds, Scurry, and Childs-White in their individual capacities.

Plaintiff's First Amendment claims can be summed up thus: (1) Plaintiff was fired in retaliation for exercising her constitutional right to freedom of speech and (2) Plaintiff was fired for her association with the NAACP in that, having identified that the contents of the emailed attachments originated with the NAACP, she was terminated for not revealing how the NAACP had assembled that content. Plaintiff's Due Process claim can be gummed up thus: Plaintiff was fired without notice and an opportunity to be heard.

Plaintiff and Defendants have both filed motions for summary judgment.


Federal Rule of Civil Procedure 56(c) provides that a court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment under Rule 56 is appropriate only when the court, viewing the record as a whole and drawing reasonable inferences in the light most favorable to the nonmoving party, determines that the Rule 56(c) standard has been met. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994); Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985).

If the nonmoving party bears the burden of proof, "the burden on the moving party may be discharged by `showing' ... an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the moving party shows such an absence of evidence, the burden shifts to the nonmoving party to set forth specific facts illustrating genuine issues for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

A court must grant a motion for summary judgment if, after adequate time for discovery, the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but ... [must] by affidavits or as otherwise provided in ... [Rule 56] set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Indeed, Plaintiff cannot defeat a properly supported motion for summary judgment with mere conjecture and speculation. Glover v. Oppleman, 178 F.Supp.2d 622, 631 (W.D.Va.2001) ("Mere speculation by the non-movant cannot create a genuine issue of material fact.").

A. Defendants Sandridge and Reynolds

Defendants Sandridge (executive vice president and chief operating officer) and Reynolds (vice president and chief financial officer) move for summary judgment in their favor on the grounds that there is no evidence that they were responsible for Plaintiff's firing.

Plaintiff alleged in her complaint that Sandridge, "based on information and belief,...

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