Guseh v. North Carolina Cent. University

• Decision Date: 14 March 2005
• Docket Number: No. 1:04CV42.,1:04CV42.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: James GUSEH, Plaintiff, v. NORTH CAROLINA CENTRAL UNIVERSITY through the Board of Governors of the University of North Carolina and Bernice D. Johnson, in her individual and official capacity as Dean of the College of Arts and Sciences of North Carolina Central University, Defendants.

423 F.Supp.2d 550

James GUSEH, Plaintiff, v. NORTH CAROLINA CENTRAL UNIVERSITY through the Board of Governors of the University of North Carolina and Bernice D. Johnson, in her individual and official capacity as Dean of the College of Arts and Sciences of North Carolina Central University, Defendants.

No. 1:04CV42.

United States District Court, M.D. North Carolina.

March 14, 2005.

COPYRIGHT MATERIAL OMITTED

Caitlyn T. Fulghum, The Fulghum Law Firm, PLLC, Durham, NC, for Plaintiff.

John P. Scherer, II, N. C. Department of Justice, Raleigh, NC, for Defendants.

RECOMMENDATION AND ODER OF UNITED STATES MAGISTRATE JUDGE

DIXON, United States Magistrate Judge.

Plaintiff, a faculty member at Defendant North Carolina Central University (NCCU), has sued under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), under 42 U.S.C. § 1983, and under the North Carolina Constitution, alleging discrimination based upon nationality. Under Title VII, Plaintiff has sued NCCU through the Board of Governors of the University of North Carolina (Board of Governors) for damages and attorney's fees. Under § 1983, Plaintiff has sued NCCU, through the Board of Governors, and Dr. Bernice Johnson (Dean Johnson), in her official capacity, for declaratory and injunctive relief; and has sued Dean Johnson, in her individual capacity, for declaratory and injunctive relief and monetary damages. Under the North Carolina Constitution, Plaintiff has sued NCCU through the Board of Governors and Dean Johnson in her official capacity for damages. Plaintiff has received a Right-to-Sue letter from the Equal Employment Opportunity Commission (EEOC). This matter is before the court on Defendants' motion for summary judgment (docket no. 10). The parties have filed responsive pleadings and this matter is ripe for disposition.

Also before this court are Defendants' motion to strike (docket no. 19) affidavits and other hearsay in Plaintiffs opposition to Defendants' motion for summary judgment, and `Plaintiff's motion to strike (docket no. 24) Defendants' reply brief. Plaintiff has responded to Defendants' motion to strike and Defendants have responded to Plaintiffs motion to strike.

I. Factual Background

Plaintiff, a native of Liberia and a naturalized American citizen, is a tenured full professor at NCCU in the Department of Public Administration. He was hired in 1997 as an assistant professor and was promoted to full professor and granted tenure in 2002. Defendant Dean Johnson recommended Plaintiffs hiring, promotion, and tenure, and she endorsed his nomination for a Faculty Achievement Award in 2002. Dean Johnson is an African-American, a native of the United States.

Plaintiff has a strong background in areas that inform the discipline of Public Administration. He holds a Bachelors Degree in Economics from Brandeis University, a Masters Degree in Economics from the University of Oregon, a joint Juris Doctor and Masters of Public Administration from Syracuse University, a Masters Degree in Political Economy from the University of Texas at Dallas, and a Ph.D. in Political Economy from the University of Texas at Dallas. In addition to his work at NCCU, Plaintiff has served the Ministry of Finance of the Republic of Liberia both as Assistant Minister of Justice for Commercial Transactions and as an attorney, and has served as Assistant Professor and Director of the Center for Alternative Programs at Shaw University.

The Department of Public Administration at NCCU experienced many problems and much transition during the 1990's and through August 2002, when Ronald Penny (Penny) was hired as the chairperson of that department. Prior to Plaintiffs joining the NCCU faculty, a financial audit and personal scandal forced the resignation of chairman Clarence Brown. When Plaintiff was hired as a faculty member in 1997, Dr. William Lewis (Dr. Lewis) was the chair of the department, but he stepped down in 1999 after what Defendants claim to be a "similarly disastrous tenure." Defs.' Mem. in Supp. of Summ. J., p. 2. Student and faculty morale dropped as did the number of students enrolled in the department; enrollment shrank from 200 in 1994 to fewer than 80 in 2000. Id.

After Dr. Lewis stepped down in 1999, the position of chairperson came open four separate times before Penny's hiring in 2002; twice the position was open as an "acting chairperson" and twice as a permanent position. Applications were not taken for the two appointments of "acting chairperson," and there is dispute about whether Plaintiff timely applied for the permanent position in 2000. Plaintiff did apply for the permanent position in 2002. Four times the job was given to someone other than Plaintiff, each time to a native of the United States, and each from outside the department. Plaintiff was twice appointed to serve as Assistant to the Acting Chair.

The final round of hiring in 2002 was the subject of Plaintiffs EEOC complaint. See Charge of Discrimination (attached to docket no. 10) ("I applied for and failed to get a promotion to the position for which I applied in January, 2002."). The charging document identifies August 2, 2002, as both the earliest and latest date that discrimination took place. Plaintiff explained:

I was told ... that the position was given to ... Penny, an African-American, because of what he planned to do with the department. I believe that this was a pretext for discrimination because the person who was selected for the position did not meet the key requirements as outlined in the vacancy announcement. I feel that my education and work experience in higher education, research and government indicate that I meet the key requirements for the position.

Id. In his EEOC complaint, Plaintiff did not discuss any of his previous applications for the chairperson position.

II. Defendants' Motion for Summary Judgment Standard of Review: Summary Judgment Standard

Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Zahodnick v. International Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir.1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires a trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact-finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir.1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex Corp., 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting). When making the summary judgment determination the court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir.1997).

Discussion

The Motions to Strike

The court will address the motions to strike by each side before addressing the substance of the case. Defendants have moved to strike affidavits and other hearsay in Plaintiffs opposition to the summary judgment motion. Defendants make the point that the affidavits of Margaret James and Dr. Kofi Johnson are not properly sworn to and should be stricken. Plaintiff has been permitted leave to cure that deficiency, however, and this much of the motion will be denied. Defendants also move to strike so much of Ms. James' statement that repeats an alleged statement by Dr. Lewis who has not testified to date; a set of unauthenticated NCCU class schedules; various paragraphs of an affidavit from Emmanuel Oritsejafor; various paragraphs of an affidavit from Dr. Kofi Johnson; various paragraphs from Plaintiffs affidavit; and various paragraphs from Behrooz Kalantari's affidavit. Specifically, Defendants contend that certain portions of the challenged affidavits are not based on the personal knowledge of the affiants, or they contain inadmissible hearsay, or both.

In considering a motion for summary judgment, the court can evaluate the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits in making its determination. FED. R. CIV. P. 56(c). According to Rule 56(e), affidavits filed in support of a summary judgment motion

shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers ... referred to in an affidavit shall be attached thereto or served therewith ... the adverse party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial.

As Rule 56(e) makes clear, an affidavit submitted on summary judgment "must present evidence in substantially the same form as if the affiant were testifying in court." Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.1996). Thus, in the absence of an affirmative showing of personal knowledge of specific facts, a court cannot consider such an affidavit in making its summary judgment determination. See Antonio v. Barnes, 464 F.2d 584, 585 (4th Cir.1972). Furthermore, summary judgment affidavits...