Abatena v. Norfolk State University et al

Filing 15

OPINION AND ORDER entered 5/6/14 and filed 5/7/14: For the reasons set forth in this Opinion and Order and on the record during the Motion Hearing held on March 19, 2014, Defendants' Motion to Dismiss with prejudice is GRANTED as to Count II an d Count III of Plaintiffs Complaint, Doc. 1. Defendant's Motion to Dismiss as to Count I is DENIED, with the exception of the non-viable breach of contract grounds as explained herein. (See Opinion and Order for specifics) (Signed by District Judge Henry C. Morgan, Jr. on 5/6/14). (ecav, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

HAILU ABATENA,

Plaintiff,
Civil Action No. 2:13cv699

NORFOLK STATE UNIVERSITY ET AL„

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants Norfolk State University and the Visitors

of Norfolk State University (collectively, referred to herein as "NSU" or the "University"); the
Comptroller of the Commonwealth of Virginia; Tony Atwater (in his official and individual
capacity); Sandra DeLoatch (in her official and individual capacity); and Clarence Coleman's (in
his official and individual capacity) Motion to Dismiss ("Motion") for failure to state a claim
upon which relief can be granted, Doc. 3. See Fed. R. of Civ. P. 12(b)(6).
On March 19, 2014, the Court held a hearing on the Motion, heard argument from
counsel, but withheld making findings of fact or issuing a ruling except to state for the record
that Plaintiff had alleged sufficient facts in his Complaint to support a breach of contract claim.
The Court could not determine the plausibility of Plaintiffs Section 1983 claim; accordingly, it
ordered the Plaintiff to file a more definite statement within ten days of the hearing detailing how

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

HAILU ABATENA,

Plaintiff,
Civil Action No. 2:13cv699

NORFOLK STATE UNIVERSITY ET AL.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants Norfolk State University and the Visitors

of Norfolk State University (collectively, referred to herein as "NSU" or the "University"); the
Comptroller of the Commonwealth of Virginia; Tony Atwater (in his official and individual

capacity); Sandra DeLoatch (in her official and individual capacity); and Clarence Coleman's (in
his official and individual capacity) Motion to Dismiss ("Motion") for failure to state a claim
upon which relief can be granted, Doc. 3. See Fed. R. of Civ. P. 12(b)(6).

On March 19, 2014, the Court held a hearing on the Motion, heard argument from

counsel, but withheld making findings of fact or issuing a ruling except to state for the record
that Plaintiffhad alleged sufficient facts in his Complaint to support a breach of contract claim.

The Court could not determine the plausibility of Plaintiffs Section 1983 claim; accordingly, it
ordered the Plaintiff to file a more definite statement within ten days of the hearing detailing how

NSU employees failed to follow the University's procedures in terminating his employment. As
the filings are now complete, the Court is ready to rule on Defendants' Motion.
For the reasons contained herein, Defendants' Motion to Dismiss Count I of Plaintiffs

Complaint is DENIED, but the Court hereby GRANTS Defendants' Motion to dismiss Counts II
and III.

I.

A.

BACKGROUND

Procedural Background

This is the second lawsuit Dr. Haliu Abatena ("Plaintiff) has filed against NSU and
related Defendants. See Abatena v. Norfolk State Univ., et al.. 2:13cv87 ("Abatena I"). Because

the instant Motion asserts arguments related to Abatena I, the procedural history of both cases is
recounted below.
i.

Abatena I

Plaintiff filed his first suit against the named Defendants in the instant case on February
15, 2013, see 2:13cv87, and filed an Amended Complaint on April 11, 2013. In his Amended

Complaint, Plaintiff alleged (1) age discrimination in violation of the Age Discrimination in
Employment Act (29 U.S.C. § 621, et seq.) ("ADEA") and the Fair Labor Standards Act (29
U.S.C. § 601, et seq.) ("FLSA"); (2) hostile work environment and retaliation in violation of the
ADEA and FLSA; and (3) breach of contract. On April 25,2013, Defendants filed a Motion to

Dismiss the ADEA and FLSA claims for lack ofjurisdiction and for failure to state a claim upon
which relief can be granted, and also requested dismissal of the breach of contract claim for lack
of jurisdiction. On August 23, 2013, the Court found that Plaintiffs federal claims were barred

by sovereign immunity and that Plaintiff had not met the jurisdiction prerequisites to raise a state
claim. Accordingly, the Court dismissed Plaintiffs case without prejudice.
2

ii. The instant action

Abatena filed this action in the Circuit Court of the City of Norfolk, alleging: 1) that

Defendants NSU and The Board of Visitors of NSU breached his contract of employment; 2)
that the individual Defendants violated his due process rights under 42 U.S.C. § 1983; and 3) that

NSU and the individual Defendants violated his Fourteenth Amendment right to procedural and
substantive due process and retaliated against him for exercising his due process right.

On

December 17, 2013, Defendants removed this case from Circuit Court, Doc. 1, and filed the

instant Motion to Dismiss, Doc. 2.

On January 9, 2014, Plaintiff filed his Response in

Opposition to the instant Motion, Doc. 5, and Defendants filed a reply on January 23,2014.
On March 18, 2014, the Court held a hearing on Defendants' Motion to Dismiss, but

withheld ruling until Plaintiff filed a more definite statement of facts. Plaintiff made the required
filing on March 28, 2014, Doc. 12, and Defendants filed a Reply on April 7, 2014, Doc. 13.

B.

Factual Allegations1
Dr. Hailu Abatena was a professor at Norfolk State University ("NSU") who was hired in

August, 1997 to develop and direct the Community Development Concentration ("CDC") in the
Ethelyn Strong School of Social Work ("School of Social Work") and teach courses in CDC as

well as Research Methods. Doc. 1, Compl. 1 13. During his employment with NSU, Plaintiff
taught graduate level Community Development and Research Methodology courses in the

School of Social Work until NSU "eliminated" the CDC on or about 2007-2008. Compl. \ 18.
Plaintiff continued to teach four (4) doctoral level classes as well as two (2) different sections of

"In considering a motion to dismiss, [the Court] acceptfs] as true all well-pleaded allegations and viewfs] the
complaint in the light most favorable to the plaintiff." Venkatraman v. REI Sys., Inc., 417 F.3d 418,420 (4th Cir.
2005) (citing Mvlan Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir. 1993)). The Court cautions, however, that
the facts alleged by Plaintiff are recited here for the limited purposeof deciding the instant Motion to Dismiss. The
recited facts are not factual findings upon which the parties may rely for any other issue in thisproceeding.
3

master's level Research Methodology courses full time in the School of Social Work

immediately after the CDC's closure; however, by 2010 enrollment in Plaintiffs classes had
diminished, and he taught only two classes. Compl. Tl 19. By Spring 2011, Plaintiffonly taught
one class at NSU. Id.

/. Plaintiffs grievances

In February 2006, Plaintiff filed a grievance with the NSU Faculty Senate Committee in
accordance with NSU's Grievance Procedure, as outlined in the Faculty Handbook, alleging that

NSU violated its policies and infringed upon his academic freedom by allowing three of
Plaintiffs students who had received grades lower than a "B"—the minimal grade allowed under

NSU's policy before a student would have to repeat the class—to advance in the graduate
program and graduate. Compl. ffl| 30-31. In order to resolve the dispute, Abatena's 2006

grievance was mediated, and Plaintiff and NSU entered into an Agreement to Resolve
Grievances ("the Agreement"), which was fully executed in writing by both parties in 2008.
Compl. 1J33.

As part of the Agreement, NSU assured Plaintiff that 1) the status and future of the CDC
in the School of Social Work would be reexamined by appropriate University committees before
the end of the 2007-2008 academic year; 2) that NSU would purge any derogatory reference to
the facts which gave rise to the Agreement from Plaintiffs personnel files; 3) that NSU would

adjust Plaintiffs salary during the University-wide salary study that was underway during 20072008; 4) the NSU's managers and officers would refrain from making any derogatory remarks
about Plaintiff; and 5) that NSU would pay the cost of mediation. Compl. ffl[ 34-38.
After the Agreement, Plaintiff claims that NSU failed to meet any of these obligations

and again changed one of his former student's grades to a passing score after he had assigned the
4

student a grade lower than a "B." Compl. ^ 38. In June 2010 and in response, Plaintiff filed a
complaint against Dr. Dorothy Browne, Dean of the School of Social Work, with the then-

Provost alleging retaliation and harassment, and, inter alia, that Dean Browne was trying to

remove him from teaching courses within his area of expertise and for which he was

credentialed. Compl. fflj 39-41. In his letter, Abatena outlined a dispute he was having with
Dean Browne regarding the assignment of courses and acknowledged that while he did not have

the experience to teach the courses he was assigned to teach, he believed that NSU was trying to
force him to complete Clinical Social graduate work courses so that he would be able to teach a

new curriculum. Compl. ^ 44. Plaintiff claims the Provost never responded to his complaint.
Compl. H 45. By the end of 2010, Plaintiff was registered to teach one class in the Spring of
2011, less than a full course load, and a concern registered by the Dean in her communications
with Plaintiff.

Following his June 2010 complaint against Dean Browne, Plaintiff maintains that NSU

continued to take action against him in early 2011 by convincing students to enroll in other

professors' courses after they had already enrolled in his; canceling his courses due to low

enrollment; requiring him to "retool" in the area of social welfare policy before August 1, 2011,
(so that he could teach courses he claims are outside of his field); attend training ten (10) hours
per week, to be led by a junior faculty member, so as to learn how to advise students; and submit

a complete manuscript of his most recent book for publication no later than the following
summer. Compl. H 46-47.

Believing that these actions imposed upon him new job requirements, Abatena filed an

additional grievance on February 22, 2011 against the Dean Brownecomplaining that the Dean's

January 2011 directives constituted further retaliation and harassment for his having exercised
5

his academic freedom and rights under the NSU Faculty Grievance Procedure. Compl. ffi[ 5152.

However, on February 14, 2011 the Faculty Senate Grievance Committee ("Grievance

Committee ") had issued a memorandum to Vice Provost Clarence Coleman summarizing its
review of and findings and recommendations relating to Plaintiffs December 28, 2010 grievance.
Compl. TCJ 53-54. The Grievance Committee found that Dean Browne's actions towards

Abatena appeared to be "capricious, ill - conceived and manipulative" and that NSU had

manipulated Plaintiffs class enrollment so as to "starve" his class sections, making it appear that

his enrollment was low, thereby providing an excuse to force Plaintiffto retool. Doc. 12, U1. The
Grievance Committee recommended that Plaintiff be reinstated to his full-time status to teach the

Research Methodology courses for which he was credentialed and be relieved of the ten hour per
week "training for advising." Id at If 2, % Plaintiff claims that Provost Coleman violated the
4.

Faculty Handbook, § 8.7.4, by failing to respond to the Grievance Committee's findings, but
instead terminating his employment. Id

Also on February 14, 2011, Dean Browne notified Abatena that she was recommending
his dismissal from NSU for failure to meet his contractual obligations. Specifically, the Dean
noted that Abatena had failed to execute his contractual obligations; had been derelict in his

duties as atenured faculty member; had been insubordinate towards her by refusing to comply
with her instructions and directive that he re-tool so that he could teach adifferent curriculum;

and was in non-compliance with University policies which continued to negatively impact the
School of Social Work. Doc. 3, Ex. G.

On April 7, 2011, Vice Provost Coleman notified Plaintiffby letter that it was his

intention to dismiss Abatena, for cause, based on the violations noted by Dean Browne. IdL

Coleman noted that he had elected to wait until April 7th in the "hope that [Abatena] would take
actions to remedy the violations and failures stated in Dr. Browne's letter," id, but that Abatena's
continued violation of the terms of his employment contract left NSU with no choice but to

dismiss him for cause. Id Coleman provided Plaintiff five (5) days to provide aresponse to the
allegations. Id

On April 12, 2011, Plaintiffand his attorney met with the Vice Provost so that Plaintiff

could respond to the allegations against him. During the meeting Abatena stated the following:

1. That he had complied with his supervisor's directive and had followed the University's
contractual policy that he post office hours and provide advisement for students;
2. that he had not retooled as recommended by Dean Browne, but would take action in
that regard within two weeks;

3. that he was only teaching one course during the Spring 2011 semester even though his
contract and the Faculty Handbook required that Abatena teach nine hours each semester;
and

4. that he had previously filed a grievance that had not been resolved to his satisfaction.

Doc. 3, Ex. G. Coleman explained that Abatena's grievance was not relevant to the concerns
regarding his work duties and responsibilities, his non-compliance under his Contract and under

the Faculty Handbook, and the directives given to him by Dean Browne in her February 14, 2011

letter. See Doc. 3, Ex. Gat 1-2. Following the meeting, the Vice Provost gave Plaintiff time to
retool, as directed byDean Browne in February, so that he could teach other courses.

On June 14, 2011, Coleman notified Abatena via letter, citing §8.3.3 (I) and (7) ofthe
Faculty Handbook, that he was dismissed from his position at NSU. Doc 3, Ex. G. The letter
detailed NSU's efforts to work with Plaintiff and stated the numerous reasons for Plaintiffs

dismissal. Id In the letter, Coleman stated that he had determined that Abatena's actions and

behavior demonstrated the following: (1) a willful resistance to teach the prescribed nine credit
hours course load during the Spring 2011 semester, which thereby resulted in his teaching only
one course, (2) a failure by Abatena to advise students, (3) a failure by Abatena to have ten office

hours a week, (4) a failure and lack of effort and initiative by Abatena to meet the directive that
he retool, and (5) a refusal by Abatena to respond to and/or to comply with the directives of Dean

Browne. Id

Coleman decided that Abatena's actions and behaviors were unacceptable and

significantly affected the functioning of the School of Social Work and/or University. He
concluded that NSU was left with no choice but to dismiss Abatena from his employment. Id
On August 9, 2011, Abatena filed a formal grievance concerning his dismissal in

accordance with the grievance procedure outlined in the Faculty Handbook, arguing that his
termination violated the Faculty Handbook, NSU's own policies that governed the termination of

fully-tenured faculty, and that the December 2010 and February 2011 grievances had not even
made their way through the entire grievance process. Id. He further stated that these actions

deprived him of his right to due process. Compl. ffl 57-60. Pursuant to the University's
grievance procedures, the Grievance Committee held a grievance hearing on October 7, 2011 and
issued its findings and recommendations on October 17, 2011. Compl. 1fl| 61-62; Doc. 3, Ex. H.
However, instead of issuing its findings to the Office of the Provost, pursuant to NSU procedure,
it provided its recommendations to the President of NSU, Mr. Atwater.2 President Atwater

refused to rule on the Grievance Committee 's findings, instead forwarding the matter to Interim

" The Faculty Committee felt that having the office of the individual who had issued the dismissal also review the
Faculty Committee's findings and recommendations regarding said dismissal constituted a conflict of interest.
8

Provost and Vice President for Academic Affairs Sandra DeLoatch over Plaintiffs written

objections based upon the claimed conflict ofinterest. Compl. ffl| 63-64.
On November 15, 2011, DeLoatch sent Plaintiff and the Chair of the Grievance

Committee a letter rejecting all of that Committee's findings and refusing to reinstate Plaintiff.
Compl. f 66. Plaintiff appealed DeLoatch's decision to President Atwater, which thePresident
also rejected. On April 10,2012, Plaintiff again appealed, this time to the Rector of the Board of

Visitors; however, on June 22,2012, that body also rejected Plaintiffs appeal, notifying him that
his termination was effective as ofJune 19,2012. Compl. f]| 67-72.
ii. The Employment Contract

After being hired in 1997, Dr. Abatena was granted Tenure Faculty Appointment in 1999,

with the terms ofthat position governed by a 2003 Appointment and a 2007 Faculty Handbook.
Compl. fflj 17, 76-77. The 2003 Appointment provides that "NSU appointments must be
approved by the Board of Visitors and are subject to the prevailing regulations in the most recent

edition of the Faculty Manual. Doc. 3, Ex. A, 2. At the time of Abatena's termination, the most

recent edition of the Faculty Manual was the 2007 Teaching Faculty Handbook (the "Faculty
Handbook"), which defines the standard for the dismissal ofa tenured faculty member for cause,
as well as the process that must be followed prior to dismissing a tenured faculty member.
Compl. 1 26, 1 77. According to the Faculty Handbook, a tenured faculty member could

only be terminated for cause. Plaintiff also contends that the Faculty Handbook incorporated
by reference the American Association ofUniversity Professors* (AAUP) policies, which add
additional requirements and procedures universities must follow before discharging a tenured

professor, (like establishing "clear and convincing evidence" that cause exists to terminate).

Collectively, the 2003 Appointment and the Faculty Handbook constitutes the parties' agreement

concerning Plaintiffs' tenure appointment, and are considered the "Employment Contract" (or

"Contract") for the purposes ofthis Motion.3
II.

LEGAL STANDARDS

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; it does not resolve

contests surrounding the facts, the merits of a claim, or the applicability of defenses. Republican
Party of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). "To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is

plausible on its face.'" Ashcroft v. Iabal. 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twomblv. 550 U.S. 544, 570 (2007)); see also Venkatraman v. REI Svs.. Inc.. 417 F.3d 418,420

(4th Cir. 2005) ("In considering a motion to dismiss, we accept as true all well-pleaded
allegations and view the complaint in the light most favorable to the plaintiff) (citing Mylan
Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir. 1993)). Although a court must accept as true

all well-pleaded factual allegations, the same is not true for legal conclusions. Id. "Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678.

In deciding the motion, a court may consider the facts alleged on the face of the

complaint, as well as '"matters of public record, orders, items appearing in the record of the case,
and exhibits attached to the complaint.'" Moore v. Flagstar Bank. 6 F. Supp. 2d 496, 500 (E.D.

Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §
1357 (1990)).

The court may look to documents attached to the complaint and those

incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for

3The parties disagree overwhether theAAUP policies area part of theContract at issue.
10

summary judgment. See Pueschel v. United States. 369 F.3d 345, 353 n.3 (4th Cir. 2004)
(citations omitted).
III.

ANALYSIS

Defendants seek to dismiss the instant case by arguingthat each of Plaintiffs three claims
fails the Iqbal/Twomblv plausibilitystandard of pleading.
A.

Breach of Contract

In Virginia, the elements of a claim for breach of an implied covenant of good faith and
fair dealing are (1) a contractual relationship between the parties, and (2) a breach of the implied
covenant. Charles E. Brauer Co.. Inc. v. NationsBank of Va.. N.A.. 251 Va. 28, 466 S.E.2d 382,
386(1996).

"[W]hile a plaintiff is not required to plead facts that constitute a prima facie case in
order to survive a motion to dismiss, [fjactual allegations must be enough to raise a right to relief

above the speculative level." Coleman v. Maryland Court of Appeals. 626 F.3d 187, 190 (4th
Cir. 2010) affd sub nom. Coleman v. Court of Appeals of Maryland. 132 S. Ct. 1327 (U.S. 2012)

(citations omitted). Courts frequently use the evidentiary frameworks set forth above to inform
their evaluation of a plaintiffs allegations at the motion to dismiss stage. Hart v. Lew, No. 1203482 ELH, 2013 WL 5330581 *16 (D. Md. Sept. 23, 2013); Coleman. 626 F.3d at 190;
McDoueall v. Maryland Transit Admin.. No. 11-3410 WDQ, 2012 WL1554924 *3 (D. Md. Apr.
27,2012).

Here, Plaintiff claims that Defendants took several actions that violated his rights under

his tenure Appointment, the Faculty Handbook, and the AAUP. Unsurprisingly, Defendants
assert that Plaintiff fails to state a viable cause of action for breach of contract.

11

Instead,

Defendants argue that the facts demonstrate that, to the extent the Contract was breached, it was
Abatena who breached it.

j.

The Contract's Requirements that Faculty Follow the Directionsfrom the Head of
Their Department

First and in support of their argument, Defendants argue that Plaintiff has failed to

identify what provisions of the Employment Contract Defendant NSU breached, and that he
himself breached the Contractby failing to heed Dean Browne's directives and perform the duties

he was contractually bound to perform. Specifically, Defendants point to the fact that Plaintiff
acknowledges thatNSU eliminated the Community Development Concentration in 2007-08, that
he was asked to teach classes in the Clinical Social Work curriculum, and that he refused to
retool or learn new skills so that he could teach a new curriculum.

Defendants further assert that Plaintiffs Contract required him to follow the directives of

the head of his department. The first sentence of the 2013 Appointment states that the "[d]uties
and responsibilities of the teaching faculty will be defined by the head of the respective

department and approved by the respective dean and the Vice President for Academic Affairs."
Doc. 3, Ex. A. Thus, Defendants conclude that Abatena's refusal to retool and equip himself

with the necessary knowledge to teach another curriculum after his own program was
discontinued constitutes Plaintiffs breach of contract, not NSU's.

While Defendants' argument that Plaintiff breached his own employment contract may
have merit, a motion to dismiss is not the appropriate vehicle to raise it. As such, the Court need
not address it in ruling on the instant Motion.

12

ii.

Academic Freedom

In his Complaint, Plaintiff alleges that as a tenured professor and as the 2006 Agreement
states, he possessed the right to Academic Freedom, which NSU breach by changing three of his

former students' grades to enable them to advance in the program. Compl. fflf 30-28. Defendants
move to dismiss Plaintiffs claim for breach of contract based upon these grounds by arguing that
any violation is barred by the applicable statute of limitations, as the changes in the students'

grades occurred more than four years before the filing of the instant lawsuit.

However, Defendants ignore Plaintiffs allegation that the University once again changed

another student's grade following the 2008 Agreement that resulted from the 2006 grievance
mediation concerning the three initial grade changes. Compl. \ 40. Assuming the truth of
Plaintiffs allegation, then any such action by the University would have occurred after 2008 and
the execution of the Agreement. As Defendants have failed to provide this Court with any more
support for their statute of limitations defense, Plaintiffs claim for breach of contract on these

grounds survives the instant Motion.4
Hi.

Breach ofthe 2007 Faculty Handbook

Plaintiff complains that Defendants breached the Faculty Handbook, part of his

Employment Contract, in a number of ways. First, Plaintiff believes that NSU failed to comply
with the Post Tenure Review Process outlined at §3.8 of the 2007 Teaching Faculty Handbook

when theydismissed him because they did not provide him with a post-tenure review. Compl. ^
79. However, in Defendants' view, Section 3.8 of the Handbook is inapplicable to the situation

4Defendants also argue that "Plaintiffs complaints about academic freedom are ofno import" because 1) those
complaints do not override his contractual obligation to teach; and because 2) Plaintiffmisapprehends the nature of
academic freedom, which does not include the right to be the final arbiter of students'grades. Doc. 3 at 13.
However, as Defendants have failed to make an argument that Plaintiffs ground for breach of contract is not a
cognizable legal claim, the Court need not address it.
13

at bar because it deals with situations where a tenured professor has failed to meet minimal
obligations and standards for an annual peer evaluation for any year. Defendants maintain that

Plaintiff did not fail to meet any minimal obligation and standards but simply reftised to meet the
standards out ofinsolence. They claim that "[Pjlaintiff was not dismissed because he was unable

to teach; he was dismissed because he was unwilling to teach," and as such, the post-tenure
review provision is inapplicable to Plaintiff.

Upon review ofthe Plaintiffs Complaint and the relevant parts ofthe Faculty Handbook,
this Court finds that Plaintiff has alleged sufficient facts to support his breach of contract claim

against NSU on the stated grounds. Assuming the truth of Plaintiffs allegation that he was

unable to meet the minimal requirements, then it is clear that he should have been provided with
the post-tenure review. As the Plaintiff points out, communication between himself and the

University is full of language concerning his inability to teach more classes without retooling and
his failure to "meet minimum teaching requirements." As such, Plaintiff has alleged a plausible
claim for breach of contract.

Second, Plaintiff claims Defendants breached the Contract because Vice Provost

Coleman did not respond to the Grievance Committee's February 14, 2011 report, as he was

required to under the Faculty Handbook. See Compl. U81; Doc. 5 at 7. Defendants counter by
arguing that these factual allegations cannot support a breach of contract claim because the

February 14, 2011 report was labeled "informal," see Doc. 3, Ex. H at 2, and thus under the
Faculty Handbook § 8.7.1, the Committee's report did not require a response from NSU's

administration. However, in Plaintiffs Response, Doc. 5, he clarifies his allegation by stating
that the February 14, 2011 report was in response to his formal December 28, 2010 grievance,

which according to the Faculty Handbook Section 8.7.2, requires an affirmative response from
14

the University. Doc. 5 at 7-8. Thus, viewing these facts in the light most favorable to the
Plaintiff, the Court finds that Plaintiff has properly alleged a breach of contract claim on the
grounds described above.

Thirdly, Plaintiff makes a series of complaints that NSU breached the Contract in how

they handled his termination. Abatena asserts that the University breached the Contract by
terminating him "without consideration of his pending grievance," which he claims is a violation

of the AAUP's Recommended Institutional Regulations on Academic Freedom and Tenure,

Number 5, and various other NSU policies, because NSU did not provide clear and convincing
evidence to support the cause for termination. Compl. ffl| 81-82. Defendants, however, argue
that Plaintiff fails to identify any specific part of the Contract that this action violated, as

Defendants maintain that the AAUP standards are not part of Plaintiffs Employment Contract.
Interpretation of a contract, including its component parts, is a question of law and not

fact; thus, it is inappropriate at the motion to dismiss stage for this Court to interpret the parties*
contract and evaluate the viability of Plaintiffs claims based on the terms of the contract. See

Cruz v. Beto. 405 U.S. 319, 322 (1972). While the Court need not assume the truth of Plaintiffs

allegations that are mere legal conclusions, seeTwomblv. 550 U.S. 544, 570(2007), Plaintiffhas
provided facts that make it plausible that the University adopted the AAUP standards, and that

the University's handling of Plaintiffs termination failed to meet those standards. The Faculty
Handbook itself, which Defendants concede is part of Plaintiffs Employment Contract, states
that NSU endorses the "Statement of Principles of Academic Freedom and Tenure, not
only by virtue of its membership in the American Association of Colleges, ... but also

[because] the University feels strongly that . . . rights of due process for the faculty ... are
essential to the pursuit of academic excellence at this institution." Doc. 3, Ex. B at 43. As such,
15

the Court finds that it is plausible that Plaintiffs grievance was formal and required a written
response from Defendants; thus, Plaintiff has made out a viable claim on these grounds is
plausible.

Plaintiff further claims that NSU breached the Contract when it allowed Interim Provost

and Vice President for Academic Affairs Sandra DeLoatch to rule on his grievances, as he and
the Grievance Committee believed the referral to her office caused a conflict of interest due to

the fact that her office initially issued the dismissal. Compl. If 83. However, this allegation fails
to support a breach ofcontract claim as the University followed its own procedure, pursuant to
§8.7.2.4 of the Faculty Handbook, which requires the Vice President for Academic Affairs to

rule upon employee grievances. See Doc. 3, Ex. B § 8.7.2.4.s Therefore, this ground for breach
of contract fails to survive the instant Motion.

Relatedly, Plaintiff asserts a breach of contract claim based upon Defendant DeLoatch's

outright rejection of the Grievance Committee's findings and recommendation to reinstate

him.

In Plaintiffs view, he filed a formal grievance, (as opposed to an informal

complaint), and as such was entitled to have DeLoatch either "affirm, modify, or refer the
case back to the Hearing [Grievance] Committee for further deliberation," under Section

8.7.2(4) of the Faculty Handbook. While Defendants dispute Plaintiffs claim, and rebuts

by asserting that Plaintiffs complaint was informal and thus allowed DeLoatch to simply
reject the Grievance Committee's findings, this Court must "accept as true all well-

pleaded allegations and views the complaint in the light most favorable to the plaintiff."

5President Atwater ultimately conducted his own review ofPlaintiffs grievance, and also rejected the Plaintiffs
appeal of his dismissal. See Compl. If 68; Ex. J.

16

Mylan Labs., 7 F.3d at 1134. As such, Plaintiffs breach of contract claim on these
grounds is viable.

Next, Plaintiff complains that University President Atwater breached the Contract when

he did the following: 1) rejected the Grievance Committee's recommendations without putting
his reasons in writing, 2) failed to provide the Grievance Committee an opportunity to respond to
his rejection of their recommendations, and 3) failed to ensure that DeLoatch complied with
NSU's administrative requirements in her review of Plaintiffs complaints. Compl. ffif 84-85;
Doc. 5 at 8. Defendants rebut by arguing that according to the Faculty Handbook Section

8.7.2.3, the Grievance Committee 's findings have no binding effect upon the President. Again
assuming that Plaintiffs allegation that he filed aformal grievance with the University is true,
NSU was bound by the formal grievance process, and under Faculty Handbook Section 2.1.2,
President Atwater had a duty to ensure that his subordinate, DeLoatch, complied with
administrative procedure and to follow it himself. Accordingly, the Court finds there is an
actionable breach ofcontract claim on these grounds.

In in paragraphs 85, 86, and 87 of the Complaint, Abatena asserts generally that that

NSU: 1) "breached the employment contract" by denying his appeal of his termination 2)
"retaliate[d]" against him after he filed grievances through NSU's procedures, and 3) "failfed] to
follow their own policies." The University defends by arguing that these claims are insufficient

because they are merely conclusory allegations, and the Court agrees. Furthermore, these
assertions are merely duplicative of other allegations stated more fully in other parts of the
Complaint; consequently, they are dismissed.

17

/v.

Standardsfor interpreting the Faculty Handbook

Finally, in the instant Motion, Defendants argue that Plaintiff is incorrect in his assertion

that NSU bears the burden of proof to show for cause termination by clear and convincing
evidence. Plaintiff once again relies upon Faculty Handbook Section 8.3.3 and AAUP standards,

No. 5(c)(8) in support ofhis argument that Defendants breached the Contact by failing to abide
by these standards. Whether Defendants have the burden of proof to establish cause for

Plaintiffs termination by clear and convincing evidence is again aquestion that would call upon
this Court to determine if the AAUP's standards are incorporated into the Contract at bar. As

previously, discussed, contract interpretation is a matter oflegal construction, not offact. On its

face, Plaintiffs Complaint provides enough facts to support his allegations that the University
violated its policies by failing to produce clear and convincing evidence to terminate him for
cause; therefore, Plaintiffhas made out a viable breach of contract claim,
v.

Summary

Based upon the foregoing reasons, the Court finds that Plaintiffs breach of contract claim

survives the instant motion on certain grounds, including the allegations that Defendants violated

his Academic Freedom and that they violated the 2007 Faculty Handbook as described in depth,
above.

B.

Plaintiffs Section 42 U.S.C. § 1983 Claim for a Due Process Violation

In his Complaint, Plaintiff alleges that Defendants, generally, violated his constitutional

due process rights under Section 1983. Compl. fflf 91-102. Section 1983 is a federal statute that

provides aremedy for violations ofcivil rights by state actors acting under color oflaw. See, e.g..
Monroe v. Pape, 365 U.S. 167, 172 (1961). It does not, by itself, confer any substantive rights.
Graham v. Connor. 490 U.S. 386, 393-94 (1989).
18

Section 1983 allows lawsuits against

[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen ofthe United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.

42 U.S.C. § 1983 (emphasis added). The Supreme Court has held that "neither a State nor its

officials acting in their official capacities are 'persons' under Section 1983." Will v. Mich. Dep't
of State Police, 491 U.S. 58, 71 (1989). Under Virginia Law, Defendant Norfolk State
University is astate government entity. Va. Code §23-50.5. Accordingly, since Section 1983 is

the remedy for constitutional violations by state actors and astate is not aperson under Section
1983, NSU cannot be sued under the same. Thus, for the sake of clarity, the Court dismisses
Abatena's claims against NSU for alleged constitutional violations.6

In order to establish aprocedural due process claim in a Section 1983 action, plaintiffs

must establish three elements: (1) that they have alife, liberty, or property interest protected by
the Due Process Clause of the Fourteenth Amendment, (2) that they were deprived of this
protected interest within the meaning ofthe Due Process Clause, and (3) that the state did not

afford them adequate procedural rights prior to depriving them of their protected interest. Sylvia
Dev. Corp. v. Calvert County, 48 F.3d 810, 826 (4th Cir. 1995). "[I]n order for an individual to

be liable under Section 1983, it must be affirmatively shown that the official charged acted
6The Court also notes that neither Congress, Virginia, nor NSU have waived sovereign immunity for the claims

[hTrom T* CT **7s" """*"• V*-State Bar, 786 F. Supp. 2d 1107, 1U 1(E DVa" 2011) (hoSng

Wlt^^Xt^^St JTUnity f°r §19" CaSCS): Hlevv. V-rJwH^iH, No. 412 CVfld Wh54943P6i,at 5<WD- Va" Nov" ,3- 2012) ("Pit is well settled that the Virginia Torts Claim Actl
J01 ™ve ^S'"13 sEleve«th Amendment immunity.. ..Moreover, the Supreme Court ofViSia has

reaffirmed that [the Virginia Torts Claim Act]-* limited waiver does not extend to state agencies.") Sneer v V,
Commonwealth Univ, No. 3:12-CV-236, 2012 WL 2878608, at *12 (E.D. Va. July 13 2012) (ho dinSuhe

™%^^^^^™againstvirgiic^-^-^^^-19

personally in the deprivation of the plaintiffs rights." Garraehtv v. Virginia. Dett't of Corrections.
52 F.3d 1274, 1280 (4th Cir. 1995) (quoting Wriehtv. Collins. 766 F.2d 841,850 (4th Cir. 1985))

(internal citations omitted); Vinnedge v. Gibbs. 550 F.2d 926,928 (4th Cir. 1977). Liability
cannot attach if a defendant merely fails to act to prevent a constitutional deprivation. Rizzo v.
Goode. 423 U.S. 362, 377 (1976). An active role is essential. Id.
In Cleveland Board of Education v. Loudermill. 470 U.S. 532, 546 (1985), the Supreme

Court outlined the due process protections that are to be afforded to tenured employees.

Specifically, the Court explained that a "tenured public employee is entitled to oral or written
notice of the charges against him, an explanation of the employer's evidence, and an opportunity
to present his side of the story." Loudermill. 470 U.S. at 546. The Court further explained that
the purpose of pre-termination process is to provide "aninitial check against mistaken decisions"
but that it "need not be elaborate" or "definitively resolve the propriety of the discharge." Id. at

545. The Court went on to conclude that its "holding rest[ed] in part on the provision in Ohio for
a full-post termination hearing." Id at 546. Thus, a qualifying employee is due both notice and

an opportunity to respond to the notice prior to termination, as well as any post-administrative
procedures he is entitled to under applicable policies or statutes. See Holland v. Rimmer, 25 F.
3d 1251,1259 (4th Cir. 1994).

In the case at bar, Defendants do not dispute that as a tenured professor, Plaintiff had a

continuing propertyinterest in his employment or a liberty interest in his professional good name
and reputation, nor do they contend that his termination deprived him of a property interest.
Rather, Defendants maintain that 1) Plaintiffs 1983 claim is time-barred, and 2) Plaintiff has not

stated a claim for a violation of his procedural due process right because he was given notice of
his termination, an opportunity to respond, as well as a post-termination appellate process, which
20

he utilized. However, in Plaintiffs view, Defendants failed to provide the due process he was
entitled to because they failed to follow their own procedures and standards, namely, those
outlined in the Post Tenure Review Process Section 3.8 et seg.; the Faculty Evaluation Process,
Section 6.1 et seq.; the Dismissal for Cause sections of the Faculty Handbook; and AAUP
policies. Compl. ^[93.

Specifically, Plaintiff lists three main grounds for his 1983 procedural due process claim:
1) that President Atwater's referral of the Grievance Committee 's October 17, 2011 letter to

DeLoatch, an individual with an alleged conflict of interest, for review prevented him from
receiving a hearing by an impartial tribunal prior to his dismissal; 2) that Coleman terminated

him prior to the resolution of his grievance complaint and without any consideration of the
Grievance Committee's February 14, 2011 memorandum; and 3) that DeLoatch reviewed and

ultimately rejected the Grievance Committee 's findings and recommendations without following
the Faculty Handbook's requirement that she transmit her objections and their underlying reasons
back to the Grievance Committee for further consideration. Compl. fflf 98-102. The Court will

first address Defendants' statute oflimitations argument and then discuss the argument for failure
to state a 1983 claim.

Section 1983 does not have its own statute of limitations. Consequently, the state statute

of limitations for personal injury actions, as the most analogous state cause of action, would

typically define the time limit for bringing suit. Almond v. Kent. 459 F.2d 200, 203-04 (4th Cir.
1972); Lucas v. Henrico Cntv. Sch. Bd. 822 F. Supp. 2d 589, 605-06 (E.D. Va. 2011); Amrv.
Va. State Univ., No. 3:10cv787, 2011 WL 4404030 at *14 (E.D. Va. Aug. 11, 2011). Virginia
applies a two-year statute of limitations to personal injury claims. Va. Code Ann. § 8.01-243

21

("[E]very action for personal injuries, whatever the theory ofrecovery... shall be brought within
two years after the cause of action accrues.").

Defendants seek to dismiss Plaintiffs Section 1983 due process claim by arguing that itis
time barred. Defendants maintain that Plaintiff cannot rely on alleged acts ofdiscrimination or
retaliation that occurred more than two years (2) from the filing of the instant action. See Wilson
v- GarC'a> 471 U.S. 261, 266-69 (1985); Nasim v. Warden. Md. House of Correction. 64 F.3d

951, 955 (4th Cir. 1995) (en banc). They conclude that at the latest the statute of limitations
began to run the date Plaintiff was terminated, June 14, 2011.
Contrary to Defendants' position, this Court finds that Defendants' calculation of the

accrual date for Plaintiffs 1983 claim is improper due to the fact that the University continued to
hold hearing on the subject of Plaintiffs termination and the grievances at bar. It is of no

moment that the individual Defendants were not directly involved with the proceedings
subsequent to Plaintiffs termination; what is of import is that their decisions continued to be

review by other bodies within the University as part of an appellate process. As such,
Defendants' statute of limitation defense fails.

Next, in considering the first of Plaintiffs due process allegations that Defendants

violated his rights by failing to afford him with an impartial pretermination hearing, the Court
notes that the Fourteenth Amendment does not require that an employee necessarily receive the

full panoply of due process rights at a pretermination hearing where the available post termination procedures protect those rights. See Loudermill. 470 U.S. at 545. The right to an
impartial decision-maker is one right that may be dispensed with at a pretermination hearing, "so
long as due process is provided in a post-termination hearing." Walker v. City of Berkeley. 951
F.2d 182, 184 (9th Cir. 1991).
22

Here, Plaintiff does not contend that he was denied a meaningful and impartial post termination process, or that the Board of Visitors, who ultimately reviewed his termination, was
biased by the University's pre-termination actions. Furthermore, it would be nonsensical for this

Court to rule that Plaintiff has made out a legal claim for a procedural due process violation
because Defendants followed their own procedures in referring Plaintiffs claims to DeLoatch.

Indeed, to allow the claim to continue on these grounds would be the equivalent ofsaying that

Defendants were in ano win situation—they could have violated their own procedures by failing
to refer Plaintiffs grievance to DeLoatch, or they could have done exactly as they did and refer

the matter to her, despite the fact that her office potentially had aconflict ofinterest in reviewing
Plaintiffs complaint. Accordingly, the portion ofPlaintiffs due process claim that rests upon the
alleged conflict of interest grounds is dismissed.

Plaintiffs second and third due process allegations are relatively straightforward.

Plaintiffmaintains that according to the Faculty Handbook, §8.7.2.4, Coleman was required to
respond to the Grievance Committee's findings. Compl. If 99. Instead offollowing this
procedure, Plaintiff claims that Coleman gave no response, but instead issued the June 14, 2011

letter notifying Plaintiff ofhis dismissal effective immediately. Id. Furthermore, Plaintiffclaims

that DeLoatch's actions in outright rejecting the Grievance Committee's findings and
recommendations rather than affirming, modifying, orreferring the case back to the Grievance

Committee for further deliberation deprived him ofhis "continued employment and his liberty
interest in his good name and professional reputation." Compl. Iff 100-102.
Far from disclosing a violation ofhis constitutional rights, Plaintiffs Complaint, viewed

in his favor, reveals that NSU provided procedural safeguards beyond the requirements ofthe
Fourteenth Amendment. For example, in a letter dated February 14, 2011, Dean Browne notified
23

Plaintiff of his non-compliance with University requirements and restated Abatena's contractual

job requirements. Then, on April 7,2011, Vice Provost Coleman notified Abatena by letter that
it was his intention to dismiss Abatena for cause based on the violations noted by Dean Browne.

Doc. 3, Ex. G. Coleman specifically noted that he had elected to wait until April 7th in the "hope
that [Abatena] would take actions to remedy the violations and failures stated in Dr. Browne's

letter." Id. It is of note that Plaintiff was not officially dismissed for another two months.

Coleman also held a meeting with Abatena and his attorney on April 12, 2011, allowing

Plaintiff to explain why Coleman should not take the intended action of dismissing Abatena
based on the reasons stated in the April 7, 2011 letter. Further, no immediate action was taken

against Abatena in order to allow him additional time in which to comply and/or retool. Id.
Specifically, Abatena was given notice that in the University's view, his failure to advise

students, have ten office hours aweek, learn new material so that he could teach different classes,

and actually teach those classes constituted cause for termination. These steps taken by the
University prior to his termination ensured that Abatena received adequate notice of the

University's intent to dismiss him, and that he was given opportunities to respond. Lastly, when
Abatena was dismissed, his termination letter stated the reasons for his dismissal, which matched

the reasons Coleman gave to Abatena, pretermination, when explaining why he was
recommending dismissal. Though the University may have imprudently terminated Abatena

while his initial grievances were still pending, such processes exceeded those mandated by the
United States Constitution. As such, minor deviations from those procedures would not support
a claim under the Fourteenth Amendment and Section 1983. See Phat Van Le v. Univ. of Med.

& Dentistry of N.J., 379 F. App'x 171, 175 (3d Cir. 2010); accord. Winnick v. Manning. 460

F.2d 545, 550 (2d Cir. 1972) ("[W]e are not inclined to hold that every deviation from a
24

university's regulations constitutes a deprivation of due process."); Cobb v. Rector. Visitors of
the University of Virginia. 69 F. Supp. 2d 815, 828-29 (W.D. Va. 1999). Indeed, Plaintiff was

afforded a full post-termination hearing, which ensured that he was given adequate process; as
such, Plaintiffs allegations do not amount to a constitutional violation.

Even if Plaintiff had alleged sufficient facts to support his allegations that the individual
Defendants violated his due process rights, the individual Defendants raise the defense of

qualified immunity, and the Court agrees that its principles are applicable in the instant action.

Qualified immunity protects a government official from liability in Section 1983 actions arising
from the performance of discretionary actions. Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982).
Qualified immunity applies so long as the official's conduct "does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known." Id.

The analysis of a qualified immunity claim entails two steps. First, the court must decide

"whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz.
533 U.S. 194, 200 (2001); Bailey v. Kennedy. 349 F.3d 731, 739 (4th Cir. 2003). Then, the court

must determine whether, at the time of the violation, a reasonable person in the defendant's

position would know that his actions would violate a clearly established right. Simmons v. Poe.
47 F.3d 1370, 1385 (4th Cir. 1995). A court, however, has flexibility in the order in which it

must perform this analysis. Abbas v. Woleben. 3:13CV147, 2013 WL 5295672 (E.D. Va. Sept.
19,2013).

While this Court has already determined that Plaintiff has not alleged a violation of his

constitutional rights, it also finds that the individual defendants are entitled to qualified

immunity. As previously discussed, President Atwater was following University policy by
referring Plaintiffs grievance complaint to Deloatch's office for review; thus, even assuming for
25

the sake of argument that his action did constitute a violation of Plaintiffs rights, it is
inconceivable that he did so in knowing violation of those rights. Indeed, it is common sense to
say that no official following his own University procedure would believe that his actions

constituted a violation of another's constitutional rights. This is especially true when considering
that the same official was responsible for handling grievance appeals. As the Fourth Circuit has

said "[o]fficals are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines." Maciariello v. Sumner. 973 F.2d 295,298 (4th Cir. 1992).

While DeLoatch's "outright rejection" of the Grievance Committee's findings and
recommendations, Compl. ^J 101, may have been improper, the facts do not support the finding
that she knew or should have known her actions were in violation of Plaintiffs due process

rights. Plaintiffs claim again DeLoatch centers upon her failure to affirm, modify, or refer his
grievance back to the Grievance Committee; however, the Faculty Handbook does not limit the
extent to which the Vice President of Academic Affairs may "modify" the recommendations of

the Grievance committee. See Doc. 3, Ex. B, § 8.7.2(4). Additionally, in all cases, the Vice

President of Academic Affairs is charged with making the final, (non - appellate) decision
concerning dismissals, id. at § 8.7.2(3), and notably, under Section 8.7.2(6), the Vice President

of Academic Affairs' authority is plenary. Again, Plaintiff has failed to supply this Court with

any facts that would support the finding that a reasonable person in DeLoatch's position would

know that her actions were violative of his rights. Accordingly, DeLoatch, along with President
Atwater, is protected by qualified immunity.

Lastly, Plaintiffclaims that Vice Provost Coleman should not have terminated him "prior
to the resolution of his ongoing grievances and without consideration for the Grievance

Committee's February 14, 2011 memorandum." Compl. J 99.
26

However, like Plaintiffs

allegations against Atwater and DeLoatch, Plaintiff has failed to allege any facts that
demonstrate that a reasonable person in the Vice Provost's position would have cause to believe
his actions would violate Plaintiffs constitutional or statutory due process rights. As Defendants
point out, the Faculty Handbook does not indicate that a grievance must be resolved prior to an
employee's dismissal.

Doc. 13 at 4. Furthermore, even assuming that Plaintiffs grievance could

be designated "formal," (though the Grievance Committee's February 14, 2011 findings referred

to the hearing as "informal," to which no response would be required from Coleman), Doc. 3,
Ex. H at 2, Coleman provided a detailed explanation and in depth reasons for his dismissal of
Abatena. Accordingly, Coleman is also entitled to immunity from Plaintiffs Section 1983 claim.
In summary and for the reasons discussed above, Plaintiffs due process claim against the
University is dismissed with prejudice.
C.

Retaliation Claims Against Individual Defendants

To state a claim for retaliation under section 1983, a plaintiff "must allege either that the

retaliatory act was taken in response to the exercise of a constitutionally protected right or that

the act itself violated such a right." Adams v. Rice. 40 F.3d 72, 75 (4th Cir. 1994). Conclusory
assertions of retaliation are insufficient to establish a retaliation claim. Id. at 74.

In his third claim, Plaintiff alleges that Defendants retaliated against him as the result of

his filing a 2006 grievance. Compl. ^ 105. Specifically, Plaintiff believes that Defendants
improperly eliminated the CDC without justification as part of their retaliation against him; that
Defendants instigated an intentional campaign to make it appear that enrollment in Plaintiffs

courses was low; and that Defendants spoke poorly of him, damaging his professional reputation
and good name. Id.

27

Plaintiffs retaliation claim must fail as amatter of law as it is unsupported by facts that
render it plausible. For example, while Plaintiff alleges that NSU manipulated his course
enrollment, Compl. fl 46-47, he neglects to provide facts that would allow this Court to infer a
causal connection between the 2006 grievance and the alleged retaliatory acts. Indeed, there are
no allegations in the Complaint that Defendants Deloatch and Atwater were even aware of
Plaintiffs previous complaints against the University. While Plaintiff pleads anumber of facts
concerning actions taken against him, Compl. fl 39 -68, they fail to show any type ofretaliation
by the named Defendants. Plaintiff states that it was "NSU's violation," and that it was "Dean
Browne, in concert with others" who "began trying to move Plaintiff from his usual courses."
Comp. 138, If 41. Plaintiffs use of the passive voice describing how his "class enrollment was
manipulated to make it appear he had low enrollment" again demonstrates alack of connection

between the complained of actions by University administrators and the Defendants Atwater,
Coleman, and DeLoatch. Compl. fl 46-47. Furthermore, Plaintiffs Complaint fails to
overcome Atwater, DeLoatch, or Coleman's qualified immunity, because it does not articulate

the Defendants respective participation in the alleged constitutional violations. Accordingly,
Plaintiffs retaliation claim is dismissed with prejudice.

D.

Supplemental Jurisdiction Over Plaintiffs State Law Claim

Despite dismissing both of Plaintiffs federal claims, Count II and Count III, the Court
finds it appropriate to continue to exercise jurisdiction over Plaintiffs state law breach of
contract claim, Count I, after its initial exercise ofsupplemental jurisdiction.

Federal courts may exercise supplemental jurisdiction over state law claims ifthey "form
part of the same case or controversy" as claims that are properly within the jurisdiction of the
federal court. 28 U.S.C.A. §1367 (West 1993). "The state and federal claims must derive from a
28

common nucleus of operative fact. But if, considered without regard to their federal or state

character, aplaintiffs claims are such that he would ordinarily be expected to try them all in one
judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal
courts to hear the whole." United Mine Wnrkers of Am v na*, 383 tj.s. 715> 725 (1966); ^
^ Axel Johnson, Inc. v. Carroll Carolina Oil Co far,, 145 F.3d 660, 662 (4th Cir. 1998)
(noting that §1367 codified the Supreme Court's holding in Gibbs).

Here, there can be no argument that Defendants properly removed Plaintiffs case from

Circuit Court for the City of Norfolk, as Plaintiff clearly alleged federal statutory and
Constitutional violations on the face of his Complaint. Likewise, it is apparent that Plaintiffs

breach of contract claim arises out of the "same core of operative facts" as his procedural due
process and retaliation claims. Indeed, in pleading his state law contract Plaintiff specifically
incorporated by reference the factual allegations supporting his federal claims. All of the
allegations in the Complaint concern Defendants' handling of Plaintiffs' termination and his
subsequent grievances. Therefore, Section 1367 permits the Court discretion whether to exercise
federal jurisdiction over the state claims.

Once adistrict court's discretion is triggered under Section 1367(c)(3), it balances the

traditional "values ofjudicial economy, convenience, fairness, and comity" in deciding whether
to exercise jurisdiction. Carnegie-Mellon Univ. v. Cnhill 484 U.S. 343, 350 (1988). "The
doctrine of supplemental jurisdiction is one of flexibility, and there is no 'mandatory rulerequiring dismissal when the federal claim is disposed ofbefore trial." Id at 350 n. 7. Likewise,
the Fourth Circuit has noted that district courts enjoy "wide latitude" when deciding whether to
exercise supplemental jurisdiction in an action. Shanaghan v. Chill 58 F.3d 106, 110 (4th Cir.
1995).
29

Here, the Court finds that it is in the interest of judicial economy and fairness to retain

jurisdiction over Plaintiffs breach of contract claim. First, this Court has already expended a
considerable amount of judicial resources in ruling upon the parties' motions. As noted in the

procedural history, this Court previously adjudicated one action between Plaintiff and
Defendants in Abatena I. when it granted Defendants' Motion to Dismiss without prejudice. In

the present action, the Court has issued an order extending the time for Plaintiff to respond to
Defendant's Motion to Dismiss, Doc. 7; held a Rule 26(f) Conference; issued a Rule 16(b)

Scheduling Order; reviewed supporting memoranda and the hundreds of pages of appended
documents before holding a hearing on the instant Motion; and then decided the instant Motion

after re-examining Plaintiffs Complaint in light of his More Definite Statement and Defendants'
Reply.

Given this Court's familiarity with Plaintiffs claims, the fact that Plaintiffs breach of
contract claim involves neither an unsettled nor a complex area of state law, and that this Court

has already expended a significant amount of time and resources on Plaintiffs actions, it is
consistent with the principles of judicial economy, convenience, and fairness for this Court to
retain jurisdiction over Count I of Plaintiffs Complaint.

IV.

CONCLUSION

For the reasons set forth above and on the record, Defendants' Motion to Dismiss with

prejudice is GRANTED as to Count II and Count III of Plaintiffs Complaint, Doc. 1.
Defendant's Motion to Dismiss as to Count I is DENIED, with the exception of the non-viable
breach of contract grounds as explained herein.

30

The Clerk is REQUESTED to send acopy ofthis Order to all counsel ofrecord.
It is so ORDERED.

/s/

Henry Coke Morgan, Jr.
Senior United States District Jiifl

HENRY COKE MORGAN, JR.

SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

May b, 2014

31