Demuren v. Old Dominion University

• Decision Date: 12 January 1999
• Docket Number: No. 2:98cv479.,2:98cv479.
• Citation: 33 F.Supp.2d 469
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Ayodeji O. DEMUREN, Moustafa R. Moustafa, Due Thai Nguyen, and Ramamurthy Prabhakaran, Plaintiffs, v. OLD DOMINION UNIVERSITY, Ernest J. Cross, Jr., William Stanley, Jo Ann Gora, William A. Drewry, and Robert L. Ash, Defendants.

33 F.Supp.2d 469

Ayodeji O. DEMUREN, Moustafa R. Moustafa, Due Thai Nguyen, and Ramamurthy Prabhakaran, Plaintiffs, v. OLD DOMINION UNIVERSITY, Ernest J. Cross, Jr., William Stanley, Jo Ann Gora, William A. Drewry, and Robert L. Ash, Defendants.

No. 2:98cv479.

United States District Court, E.D. Virginia, Norfolk Division.

January 12, 1999.

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Thomas F. Hennessy, III, SuAnne L. Bryant, Hardee & Hennessy, P.C., Chesapeake, VA, for plaintiffs.

Guy Winston Horsley, Jr., Margaret Alice Browne, Office of the Attorney General, Richmond, VA, Patrick Brian Kelly, Special Assistant Attorney General, Norfolk, VA, for defendants.

MEMORANDUM OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This case is before the court on defendants' motion for summary judgment. For the reasons stated below, defendants' motion is GRANTED.

I. Factual and Procedural History

The four plaintiffs, all university professors, filed a Motion for Judgment in the Circuit Court for the City of Norfolk on April 9, 1998. The six defendants are: Old Dominion University ("ODU"); Jo Ann Gora, Provost of ODU since 1992; Ernest J. Cross, Dean of the College of Engineering at ODU from 1984 to 1996; William Stanley, Chair of the Engineering Technology Department since 1991; William Drewry, Chair of the Civil and Environmental Engineering Department from 1992 to 1997; and Robert Ash, Chair of the Department of Mechanical Engineering from 1984 to 1993. Each plaintiff states a claim against ODU, Dean Cross, and Provost Gora, as well as his specific department chair.

The four plaintiffs and their claims are as follows:

1. Ayodeji Demuren, who is of Nigerian descent, is a tenured Full Professor in the Mechanical Engineering Department. He claims that because of his national origin and in retaliation for his participation in protected activity, he was denied promotion to Full Professor in 1994 and 1995,¹ and his salary is below that of similarly-situated Caucasian professors.

2. Moustafa Moustafa, who is of Egyptian descent, is a tenured Associate Professor in the Engineering Technology Department. He claims that because of his national origin, his salary increases since 1992 have been below those of similarly-situated Caucasian professors with inferior records of achievement.²

3. Due Thai Nguyen, who is of Vietnamese descent, is a tenured Full Professor in the Civil and Environmental Engineering Department. He claims that because of his national origin, his salary and salary increases are lower than similarly-situated Caucasian professors, despite his allegedly outstanding professional record.³

4. Ramamurthy Prabhakaran, who is of Indian descent, is a tenured Full Professor in the Mechanical Engineering Department. He alleges that because of his national origin and in retaliation for his participation in protected activity: 1) his salary is unfairly low; 2) he was excluded from the College's Dean Search Committee; 3) he was denied the 1996 University Outstanding Research Award; and 4) he was denied Eminent Scholar status.

Plaintiffs allege that defendant ODU's actions, with respect to each of them, violated 1) Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2; 2) 42 U.S.C. § 1981; and 3) 42 U.S.C. § 1983.⁴ They claim that the actions of the individual defendants violated § 1981 and § 1983.

Defendants filed a notice of removal to federal court on April 29, 1998. On August 31, 1998, defendants filed a motion for summary judgment. On September 14, 1998, plaintiffs responded to defendants' motion, and defendants filed a reply on September 21, 1998. The court held a hearing on defendants' motion on October 14, 1998. Accordingly, defendants' motion is ripe for decision.

II. Standard of Review

Summary judgment is appropriate only when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); 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); Terry's Floor Fashions, Inc. v. Burlington Indus., 763 F.2d 604, 610 (4th Cir.1985). Once a party has properly filed evidence supporting a motion for summary judgment, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must instead set forth specific facts illustrating genuine issues for trial. Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 322-24, 106 S.Ct. 2548. Such facts must be presented in the form of exhibits and sworn affidavits. A mere "scintilla of evidence" is not sufficient to withstand a motion for summary judgment. Rather, the evidence must be such that the jury reasonably could find for the nonmoving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In a discrimination case, a court must take special care when considering a summary judgment motion because motive is often the critical issue. However, summary judgment is still appropriate if the plaintiff cannot prevail as a matter of law. Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996).

III. Analysis

In their motion for summary judgment, defendants not only challenge the merit of plaintiffs' case, but also claim to be immune from suit under 42 U.S.C. § 1981 and § 1983, and argue that most of plaintiffs' claims are untimely.

A. Defendants' Immunity from Suit Under § 1981 and § 1983

The Eleventh Amendment to the United States Constitution prohibits suits against state actors by individuals in federal court, absent consent or Congressional abrogation. U.S. Const. amend XI; Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The Supreme Court has recognized Congressional abrogation of Eleventh Amendment immunity for suits under Title VII, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), but not for suits under 42 U.S.C. § 1983, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). With respect to suits under 42 U.S.C. § 1981, this court concurs with the view held by a number of other federal courts that Eleventh Amendment immunity also is not abrogated.⁵ Like § 1983, § 1981 lacks the requisite clear congressional intent to abrogate.⁶ Moreover, in Seminole Tribe, the Supreme Court held that Congress may abrogate Eleventh Amendment immunity only for causes of action created pursuant to § 5 of the Fourteenth Amendment. Congress originally passed § 1981 pursuant to the Thirteenth Amendment. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-437, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (describing the legislative history of the Civil Rights Act of 1866, a portion of which is now § 1981). In light of the absence of Congressional abrogation of immunity, and since there is no evidence of consent in this case, defendants are immune from suit under both § 1981 and § 1983, if they qualify as state actors under the Eleventh Amendment.

With respect to defendant ODU, a number of circuits have ruled that state colleges and universities are agents of the state, and thus immune from suit under the Eleventh Amendment. Brine v. University of Iowa, 90 F.3d 271, 275 (8th Cir.), cert. denied, 519 U.S. 1149, 117 S.Ct. 1082, 137 L.Ed.2d 217 (1997); Watson v. University of Utah Med. Ctr., 75 F.3d 569, 575 (10th Cir. 1996); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 491 (3d Cir.) In accordance with these decisions, this court holds that ODU is immune from suit under 42 U.S.C. § 1981 and § 1983. Thus, the only statutory basis under which ODU may be held liable to plaintiffs is Title VII.

With respect to the individual defendants, the Supreme Court has held that the Eleventh Amendment does not bar suits in federal court seeking to impose personal liability on individual state officials. Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court does recognize "qualified immunity" from suits for damages for the actions of government officials that do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In applying Harlow, the Fourth Circuit has stated that a key determination is "whether the rights alleged to have been violated were clearly established at the time of the challenged actions." Pinder v. Johnson, 54 F.3d 1169, 1173 (4th Cir.1995). "Where the law is clearly established, and where no reasonable [official] could believe he was acting in accordance with it, qualified immunity will not attach." Id.

There is no question that the protections afforded individuals under 42 U.S.C. § 1981 and § 1983 are clearly established. The individual defendants also cannot possibly argue that if they did, in fact, discriminate against plaintiffs on account of their nationality or retaliate against them for their protected activity, they were unaware that such actions violated federal law. Therefore, if plaintiffs' allegations regarding the individual defendants' actions are true, those defendants do not enjoy qualified immunity for those actions, and are subject to suit under § 1981 and § 1983.

B. Timeliness of Plaintiffs' Claims

Defendants argue that the applicable statutes of limitations bar plaintiffs' claims under Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. A Title VII claim arising in Virginia must be filed with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the allegedly discriminatory action, else it is barred.⁷ 42 U.S.C. § 2000e-5(e); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 442 (4th Cir.1998). If the EEOC takes no action, the complainant then must file suit within 90 days. 42 U.S.C. §...