Davis v. Rao et al
Filing
14
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 12/12/13. (kyou, )
BONNIE NEWMAN DAVIS,
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
v.
MICHAEL RAO, et al.,
Plaintiff,
Civil Action No. 3:13–CV–239
Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants’ Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court GRANTS
Defendants’ Motion.
I.
FACTUAL AND PROCEDURAL BACKGROUND1
In the fall of 2004, Plaintiff Bonnie Newman Davis (“Ms. Davis” or “Plaintiff”) began
her full‐time employment with Virginia Commonwealth University (“VCU”) as a visiting
instructor in the School of Mass Communications. During that academic year, Plaintiff was
invited to become a contract‐renewable collateral associate professor beginning in the
2005‐2006 academic year. A plan was developed whereby Plaintiff would be converted to a
professional‐track, tenure‐eligible appointment during the 2007‐2008 academic year.
However, due to miscommunications, she was converted to a tenure‐eligible appointment
1 For the purposes of this Motion, the Court assumes all of Plaintiff’s well‐pleaded allegations to be
true, and views all facts in the light most favorable to Plaintiff’s. T.G. Slater & Son v. Donald P. &
Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993)); see Fed. R. Civ. P. 12(b)(6).
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during the 2008‐2009 academic year. In the 2010‐2011 academic year, Plaintiff applied for
tenure.
Under the VCU School of Mass Communications Promotion and Tenure Guidelines
and the Promotion and Tenure Review Guidelines for the College of Humanities and
Sciences (collectively “Promotion and Tenure Guidelines” or “Guidelines”), the University
considers three primary criteria for tenure: teaching, scholarship, and service to the
University. To be granted tenure at the rank of associate professor, the Guidelines require
that a candidate be rated: (1) excellent in the area of either teaching or scholarship and at
least a rating of very good in the other area; and (2) satisfactory or above in the area of
service.
A candidate’s application is first reviewed by a Peer Tenure Review Committee
(“Peer Review Committee”). The application is next considered by the Director or
Department Chair of the School of Mass Communications. Afterwards, the application is
reviewed by the College of Humanities and Sciences Promotion and Tenure Review
Committee (“Promotion and Tenure Review Committee”). Next, the application is reviewed
by both the Dean of the College of Humanities and Sciences and the Provost—Vice
President for Academic Affairs. Finally, a denial of tenure is appealable to the University
Promotion and Tenure Review Committee (“Appeals Committee”) and then to the
University President.
During Plaintiff’s application process she received conflicting reviews and
recommendations. The Peer Review Committee unanimously rated Plaintiff as excellent in
the area of scholarship and unanimously rated her as very good in the area of teaching.
Regarding the area of service, one committee member rated Plaintiff as excellent and four
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members rated her as very good. The Peer Review Committee unanimously recommended
that Plaintiff be granted tenure and promoted. The application was then forwarded to Dr. L.
Terry Oggel, the Interim Director of the School of Mass Communications, for review.
Dr. Oggel rated Plaintiff as excellent in the area of scholarship and very good in the
area of service. However, Dr. Oggel rated Plaintiff as only satisfactory in the area of
teaching. Dr. Oggel stated that the Peer Review Committee minimized and disregarded the
low evaluations by VCU students in Plaintiff’s classes. Further, he argued that low
numerical marks, strongly critical written student comments, a third‐year committee
report, and director’s annual reports indicated serious and recurring difficulties in the area
of teaching. Based on this rating, Dr. Oggel recommended that Plaintiff be denied tenure.
Plaintiff’s actual annual teaching evaluations reveal that she was rated as satisfactory in
two years but also rated as good or very good in four other years. A review of all the
student evaluations reveals that, while some students rated Ms. Davis harshly, many others
rated her as having been among the best teachers they had encountered at VCU. Dr. Oggel
never took the opportunity to personally observe Plaintiff’s classroom teaching nor did he
include in his report that Plaintiff met 13 of 17 guidelines for teaching established by the
Promotion and Tenure Guidelines.
Next, the Promotion and Tenure Review Committee reviewed Plaintiff’s application,
rating Plaintiff as satisfactory in the area of teaching and describing her teaching
evaluations as mediocre at best. The Promotion and Tenure Review Committee’s report
gave great emphasis to the negative student evaluations with only passing reference to
positive student evaluations. Plaintiff also received six votes of very good and one vote of
excellent in the area of scholarship. The Promotion and Tenure Review Committee
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unanimously voted against recommending Plaintiff’s promotion to tenure. The Promotion
and Tenure Review Committee’s recommendation was then forwarded for administrative
review.
Interim Dean of the College of Humanities, Fred M. Hawkridge, agreed with the
findings and recommendations of the Promotion and Tenure Review Committee and also
recommended against granting Plaintiff tenure. Following this recommendation, Plaintiff’s
application was forwarded to Beverly J. Warren, Interim Provost and Vice President for
Academic Affairs for VCU. On reviewing the record, Dr. Warren concluded that the Director
and the Promotion and Tenure Review Committee accurately assessed Plaintiff’s teaching,
scholarship, and service record and that there were no procedural or substantive reasons
to overturn their recommendations against awarding tenure.
On May 12, 2011, Plaintiff appealed the denial of her tenure to the Appeals
Committee. On June 21, 2011, the Appeals Committee, chaired by Dr. Cynthia J. Kirkwood,
advised that the Committee did not find sufficient evidence of procedural or substantive
errors to grant Plaintiff’s appeal. The Committee then recommended a denial of Plaintiff’s
appeal and refused to grant a full hearing. Plaintiff then submitted a second appeal to the
President of VCU, Michael Rao. President Rao subsequently did not respond—in violation
of VCU tenure policies and procedures. After being denied tenure, Plaintiff secured
employment as a faculty member at North Carolina A&T State University.
Plaintiff filed her Complaint on April 17, 2013. In Count I, Plaintiff alleges that
Defendant L. Terry Oggel deprived her of due process, under color of state law, in violation
of 42 U.S.C. § 1983, by arbitrarily rating Plaintiff as satisfactory in the area of teaching
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without having observed Ms. Davis’s teaching, and by refusing to accept the objective
evaluations of the former director of the School of Mass Communications.
In Count II, Plaintiff alleges that Defendant Fred M. Hawkridge deprived her of due
process, under color of state law, in violation of 42 U.S.C. § 1983, by refusing to accept the
objective evaluations of the former director of the School of Mass Communications,
arbitrarily rating Plaintiff as satisfactory in the area of teaching, and rating her scholarship
as very good rather than excellent.
In Count III, Plaintiff alleges that Defendant Beverly J. Warren deprived her of due
process, under color of state law, in violation of 42 U.S.C. § 1983, by arbitrarily refusing to
properly consider Plaintiff’s record of teaching, scholarship, and service, and also by failing
to recommend her for tenure in light of positive evaluations from her former school
director and peers.
In Count IV, Plaintiff alleges that Defendant Dr. Cynthia K. Kirkwood deprived her of
due process, under color of state law, in violation of 42 U.S.C. § 1983, by arbitrarily refusing
to properly consider Plaintiff’s record of teaching, scholarship, and service, and also by
failing to recommend her for tenure in light of positive evaluations from her former school
director and peers.
In Count V, Plaintiff alleges that Defendant Michael Rao deprived her of due process,
under color of state law, in violation of 42 U.S.C. § 1983, by failing or refusing to respond to
her appeal.
For all Counts, Plaintiff seeks an order requiring Defendants to reinstate her to the
VCU faculty with tenure. Further, Plaintiff seeks an award of compensatory damages in the
amount of one million dollars ($1,000,000.00) for (a) loss of past and future earnings; (b)
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loss of personal and professional esteem; (c) humiliation, pain and suffering, and emotional
distress; (d) punitive damages; (e) attorneys’ fees under 42 U.S.C. § 1988; and (f) costs of
suit.
Defendants filed their Motion to Dismiss on July 2, 2013. Plaintiff’s Opposition was
filed on August 6, 2013. Defendants’ Reply was filed on August 6, 2013.
II.
LEGAL STANDARD
A motion to dismiss for failure to state a claim upon which relief can be granted
challenges the legal sufficiency of a claim, rather than the facts supporting it. Fed. R. Civ. P.
12(b)(6); Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A court ruling on a Rule 12(b)(6) motion
must therefore accept all of the factual allegations in the complaint as true, see Edwards v.
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Warner v. Buck Creek Nursery, Inc., 149
F. Supp. 2d 246, 254‐55 (W.D. Va. 2001), in addition to any provable facts consistent with
those allegations, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and must view these
facts in the light most favorable to the plaintiff. Christopher v. Harbury, 536 U.S. 403, 406
(2002). The Court may consider the complaint, its attachments, and documents “attached
to the motion to dismiss, so long as they are integral to the complaint and authentic.” Sec’y
of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
To survive a motion to dismiss, a complaint must contain factual allegations
sufficient to provide the defendant with “notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Rule 8(a)(2) requires the complaint to allege facts showing
that the plaintiff’s claim is plausible, and these “[f]actual allegations must be enough to
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raise a right to relief above the speculative level.” Id. at 545; see id. at 555 n.3. The Court
need not accept legal conclusions that are presented as factual allegations, id. at 555, or
“unwarranted inferences, unreasonable conclusions, or arguments,” E. Shore Mkts., Inc. v.
J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
III.
DISCUSSION
A. Parties’ Arguments
Defendants argue that Plaintiff lacks a protected property interest because she had
no reasonable expectation of permanent or continuing employment as evidenced by the
fact that her appointments were for a single year and she was “tenure eligible” and not
“tenure assured.” (Defs.’ Mem. Supp. Mot. Dismiss 9). They further aver that “[t]he fact that
VCU has written policy to guide the discretion of tenure reviewers does not
constitutionalize her state employment status.” (Defs.’ Mem. Supp. Mot. Dismiss 10).
Defendants contend that they afforded Plaintiff with review consistent with due process
and pursuant to the Promotion and Tenure Guidelines.
First, Plaintiff asserts that she has a protected property interest because the
Promotion and Tenure Guidelines fostered a mutual understanding that Plaintiff would be
entitled to an impartial, merit‐based inquiry at her tenure review. Second, Plaintiff avers
that the denial of her tenure implicated her liberty rights because it placed a stigma on her
that follows her throughout her career.2 Third, Plaintiff asserts she was not afforded due
process because Defendant Oggel made a final decision that was arbitrary and capricious
by ignoring the Promotion and Tenure Guidelines, objective measures of teaching
2 Plaintiff first proffered this argument in her Opposition to Defendants’ Motion to Dismiss. She did not
include this argument in her initial Complaint.
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performance reviews, and selecting only the worst student evaluations as the basis for
reducing Plaintiff’s rating as a teacher.
Defendants rebut that neither eligibility for tenure nor detailed university
procedures, without more, created a property interest. Defendants aver that, even if
Plaintiff had a protected property interest, due process was afforded to Plaintiff because
due process does not require an elevation of one set of scoring or evaluations over another.
They also argue that Plaintiff has not made the case that Defendant Oggel made a purely
subjective decision or that subjectivity does not have a proper role to play in tenure
decisions.
Defendants argue that Plaintiff had no liberty interest at stake because the denial of
tenure did not constitute any stigma, the process was not made public, and there was no
falsity involved in the tenure denial process. They further assert that Plaintiff was not
harmed by any words or phrases used in the tenure process as evidenced by her ability to
continue her career at North Carolina A&T State University.
IV.
ANALYSIS
A. Due Process
The first question in any procedural due process analysis is whether the plaintiff has
been deprived of a liberty or property interest protected by the Fourteenth Amendment
because the requirements of procedural due process only apply when such protected
interests are implicated. Nofsinger v. Va. Commonwealth Univ., 3:12‐CV‐236, 2012 WL
2878608, at *6 (E.D. Va. July 13, 2012), aff’d, 12‐1961, 2013 WL 1305672 (4th Cir. Apr. 2,
2013). In order to state a section 1983 claim for deprivation of property without due
process, a plaintiff must show that she has a constitutionally protected property interest,
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and that she has been deprived of that interest by state action. See Stone v. Univ. of Md. Med.
Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988); Bd. of Regents v. Roth, 408 U.S. 564, 569–70
(1972). “Property interests, of course, are not created by the Constitution. Rather they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law.” Roth, 408 U.S. at 577. To possess a property
interest, a claimant “must have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.” Id. at 577; see also Echtenkamp v. Loudon Cnty. Pub. Sch., 263 F. Supp. 2d
1043, 1053 (E.D. Va. 2003). Once these elements are established, the question turns to
what process is due and whether it has been provided. See Stone, 855 F.2d at 172.
i. Protectable Property Interest
In Siu v. Johnson, 748 F.2d 238 (4th Cir. 1984), the Fourth Circuit rejected a
plaintiff’s claim that she had either a property interest in “reemployment itself” or a
“property interest in the [tenure application] procedures” as “conceptually unacceptable”
because it would result in circular logic:
Put this way the claim is a circular one: the state’s detailed procedures
provide the due process guarantees which create the very property interest
protected by those guarantees. . . . Its logical effect would be to
‘constitutionalize’ all state contractual provisions respecting the continuation
of public employment.
Id. at 244 n.11. In dicta, the court held that a property interest in a tenured position might
not exist absent university procedures whose application over time give rise to an
institutional “common law of re‐employment” under which the interest created by
probationary employment can be elevated to something “firmer than a mere ‘unilateral
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expectation.’”3 Id. at 243‐44. The Siu court did not, however, rest its holding on this
language but rather assumed, for the sake of argument, that the defendant university’s
contractual procedures created a protectable interest. Id. at 244.
The Fourth Circuit has, however, indicated that at‐will employees have no
protectable property interest in procedure itself. In Lehman v. Sturza, an at‐will employee
plaintiff sued state and individual defendants alleging that he was fired from his job in
derogation of his procedural due process rights. No. 93‐2133, 1994 WL 329489, at *2 (4th
Cir. 1994) (unpublished opinion). Specifically, the plaintiff alleged that the defendants fired
him without following different and more extensive procedures than the ones used. Id. The
court first held that under North Carolina state law, an at‐will employee had no legitimate
claim of entitlement to continued employment and thus no property interests for the
purposes of the Fourteenth Amendment. Id. at *3. The court went on to reject the plaintiff’s
contention that procedures and other procedural guarantees, with the force of state law,
established a legitimate claim of entitlement to continued employment: “It is by now well
established that in order to demonstrate a property interest worthy of protection under the
fourteenth amendment’s due process clause, a party may not simply rely upon the
procedural guarantees of state law or local ordinance.” Lehman, 1994 WL 329489, at *2‐3
(quoting Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. 1989), cert. denied, 493 U.S. 992
3 The court noted that:
some courts have treated the probationary tenure track appointment as if it were
indeed no more than employment at‐will, and have held that it does not therefore
give rise to a protectible property interest beyond its stated term. On the other
hand, some courts have intimated . . . that the ‘expectancy’ of tenure might be
elevated to constitutionally protectible property interest status by contractually
binding provisions which, in some form or another, require a regularized decisional
process for declining to award tenure.
Siu, 748 F.2d at 243 (internal citations omitted).
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(1989)); see also Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir. 1994) (liberty interest); Jenkins
v. Weatherholtz, 909 F.2d 105, 108 (4th Cir. 1990); Bennett v. Boston, 869 F.2d 19, 22 (1st
Cir. 1989); Stow v. Cochran, 819 F.2d 864, 867 (8th Cir. 1987); cf. Olim v. Wakinekona, 461
U.S. 238, 250‐51 (1983) (liberty interest). The court further stated that
Process is not an end in itself. . . . Its constitutional purpose is to protect a
substantive interest to which the individual has a legitimate claim of
entitlement. . . . The State may choose to require procedures for reasons
other than protection against deprivation of substantive rights, of course, but
in making that choice the State does not create an independent substantive
right.
Lehman, 1994 WL 329489, at *3 (citing Olim, 461 U.S. at 250‐51); see also Equal Access
Educ. v. Merten, 305 F. Supp. 2d 585, 614 (E.D. Va. 2004) (citing Olim, 461 U.S. at 250‐51 for
the same proposition); Amr v. Va. State Univ., 3:07‐CV‐628, 2009 WL 112829, at *8 n.15
(E.D. Va. Jan. 14, 2009), aff’d, 331 F. App’x 194 (4th Cir. 2009) (“Even if Dr. Amr were
unambiguously asserting a property interest in his employment at VSU, an untenured
professor such as Dr. Amr has no constitutionally protected property interest in continued
employment.”).
In addition, other Circuits have held that “establishment of a formal tenure process
generally ‘precludes a reasonable expectation of continued employment’ for non‐tenured
faculty.” Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992) (citing Edinger v. Bd. of Regents
of Morehead State Univ., 906 F.2d 1136, 1140 (6th Cir. 1990)); accord Lovelace v. Se. Mass.
Univ., 793 F.2d 419, 423 (1st Cir. 1986); Eichman v. Ind. State Univ. Bd. of Trs., 597 F.2d
1104, 1109 (7th Cir. 1979); see also Dube v. The State Univ. of New York, 900 F.2d 587 (2d
Cir. 1990), cert. denied, 501 U.S. 1211 (1991); Goodisman v. Lytle, 724 F.2d 818 (9th Cir.
1984); Beitzell v. Jeffrey, 643 F.2d 870 (1st Cir. 1981).
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Lastly, Virginia law also indicates that at‐will employees lack protected property
interests and are not entitled to due process. In County of Giles v. Wines, an at‐will employee
sued a defendant under section 1983 arguing that the defendant’s personnel policy
regarding discharges created an employment contract. 546 S.E.2d 721, 722 (Va. 2001). The
policy stated, in part:
An employee may be discharged for inefficiency, insubordination,
misconduct, or other just cause. Discharge may be made by the Department
Head with approval of the County Administrator in the case of employees
below department head level. The County Administrator with the approval of
the Board of Supervisors may discharge other employees. A written
statement of the reasons for such action shall be furnished the employee and
a copy shall be made part of the personnel file of the individual.
Id. The defendant argued that the policy did not constitute an employment contract
whereby the plaintiff would be terminable solely for cause. Id. at 724. The Virginia Supreme
Court held that the plaintiff, as an at‐will employee, had “no property right which is
protected by the federal constitution and, hence, his claims under 42 U.S.C. § 1983 were not
legally cognizable.” Id. at 725. The court based its holding on the strong presumption in
Virginia law that employment relationships are at‐will. Id. at 723. While not dispositive,
state law may be influential. See., e.g., Spuler, 958 F.2d at 107 (referring to Texas law in
holding that at‐will employees have no protectable interests under section 1983).
Plaintiff does not affirmatively assert that her status as a tenure‐eligible professor
created a protectable property interest. Instead, she asserts that she had a protectable
interest in a fair and merit‐based tenure review process. However, her claim fails in light
the holdings of Olim, Lehman, and the dicta in Siu. There is no indication that VCU’s
Promotion and Tenure Guidelines created an employment contract whereby Plaintiff
would be terminable solely for cause. Further, there is no indication that the Guidelines
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created a “common law of reemployment” contemplated in Siu. As in Lehman, Plaintiff may
not rely on the procedural “guarantees” of VCU’s guidelines in order to demonstrate a
property interest worthy of protection under the Due Process Clause of the Fourteenth
Amendment.
As such, the Court holds that Plaintiff has no protectable property interest in her
status as an untenured professor or in VCU’s Promotion and Tenure Guidelines.
i.
What Process was Plaintiff Due?
Assuming for the sake of argument that Plaintiff had a protectable property interest,
the next step would be to determine what process was due. It is well established that due
process typically requires that “an individual be given an opportunity for a hearing before
he is deprived of any significant property interest.” Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542 (1985). More specifically, 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.” Id.; see also Echtenkamp, 263 F. Supp. 2d at
1054.
Regarding the process due untenured employees, in Siu the Fourth Circuit rejected
the proposition that the process due cannot be less than that defined in detail by
institutional procedures. See Siu, 748 F.2d at 244. Instead they held that, “where a property
interest—including one involving academic employment—is claimed to be derived from
state law sources, . . . it is obviously necessary to look to those sources to determine the
general nature of the interest, for the process constitutionally due is dependent upon that.”
Id. (citations omitted). Further, the court held that while state law sources are important
for context, “they do not define in detail the process constitutionally due for protection of
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the interest, except to the extent that they may coincide with elements of that process as
independently defined by federal law.” Id. The Siu court went on to hold that the
procedures proscribed for making the tenure decision at issue “plainly contemplate a
subjective, evaluative decisional process by academic professionals rather than an
objective fact‐finding process by tribunals adapted to that quite different purpose.” Id.
Accordingly, the decision‐makers at issue need only make a final decision in “a way not so
manifestly arbitrary and capricious that a reviewing court could confidently say of it that it
did not in the end involve the exercise of professional judgment.” Id. at 245. “The judicial
inquiry is properly only whether the decision was made, wisely or not, by a specific
exercise of professional judgment and on the basis of factors clearly bearing upon the
appropriateness of conferring academic tenure.” Id.; see also Betts v. Rector & Visitors of
Univ. Of Va., No. 97‐1850, 1999 WL 739415, at *8 (4th Cir. 1999) (unpublished opinion)
(“[H]ere, the challenged action involves a subjective inquiry, the standard for evaluating
whether there has been a denial of procedural due process is substantially relaxed.”).
In Siu, a tenure‐eligible plaintiff was denied tenure after being considered pursuant
to university policy. 748 F.2d at 239. Under established university policy, candidates were
to be evaluated in accordance with substantive standards embodied in the university’s
Faculty Handbook. Id. Candidates were assessed on their teaching performance, research
and scholarship ability, and service to the university. Id. at 240. Under the Faculty
Handbook guidelines, a candidate was assessed in a multi‐step process including review
by: (1) faculty of his or her department; (2) an advisory committee on promotions and
tenure, after which any member of the academic community could submit comments; (3)
the collegial dean and the Vice President for Academic Affairs, who reviewed the committee
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recommendations and other materials and then made a recommendation to the President;
and (4) the President, who then rendered a decision regarding his support or non‐support
of the candidate’s nomination. Id. The plaintiff received favorable recommendations from
her department and the advisory committee. Id. However, at higher administrative levels,
her candidacy met opposition based on her “lack of strong and consistent scholarship.” Id.
A defendant dean denied her application after reviewing an abbreviated confidential file
and not the entire dossier compiled during departmental reviews. Id. at 240‐41. Next, the
President advised the plaintiff that he could not support her candidacy after reviewing the
various deans’ recommendations and considering the general qualifications of that year’s
candidates. Id. The President, however, did not base his recommendation on her full
dossier. Id. Finally, at the behest of the President of the University, the Vice President for
Academic Affairs recommended against the plaintiff’s tenure after reviewing the plaintiff’s
departmental record. Id. The Siu court held that “the tenure decision was made by
defendants on the basis of factors clearly relevant to legitimate institutional interests in
awarding tenure.” Id. at 246. Further, the court held that “it [was] obvious that the decision
was rested directly on the perceived, relative lack of scholarly potential, a factor central to
a responsible decision respecting tenure conferral.” Id.
In a later case, Wells v. Virginia Commonwealth University, a plaintiff nominated
herself for promotion to full professor from a position of assistant professor. No. 86‐1561,
1987 WL 37012, at *1 (4th Cir. 1987) (unpublished opinion). In support of her nomination,
she submitted certain documents reflecting her scholarship including published articles,
papers, and other written works. Id. After reviewing the plaintiff’s promotion file, the
school committee voted to recommend her promotion by a vote of five to two. Id. The
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plaintiff’s application was then forwarded to a dean who noted that her published work
was limited but that her commitment to scholarly activity was evident. Id. These
recommendations, along with the plaintiff’s statement of self‐evaluation and curriculum
vitae, were then forwarded to a Provost and Vice‐President for Academic Affairs. Id. The
other documents submitted by the plaintiff were not forwarded, but it was noted that they
were available upon request. Id. After reviewing some of the materials, but not the written
works submitted by the plaintiff, the Provost recommended against awarding tenure
because of her lack of scholarly activity. Id. Subsequently, a university committee also voted
against recommending the plaintiff for promotion based on the plaintiff’s lack of scholarly
activity. The plaintiff alleged that university officials violated her due process rights by
denying her tenure while failing to review all of the materials in her promotion file. Id. at
*2. The Fourth Circuit suggested that “reckless inattention to relevant materials” might
arguably make a decision arbitrary and capricious. Id. at *3 (citing Siu, 748 F.2d at 246).
However, they distinguished this suggestion by holding that “the failure of some of the
persons involved in the review process to read all of the materials submitted does not of
itself demonstrate that the decision‐making process was arbitrary and capricious.” Id. at *3.
Under Siu and Wells, assuming arguendo that Plaintiff has a property interest, she
was afforded due process by Defendants. The holding in Siu contradicts Plaintiff’s effective
argument that she was due no less than the policies included in VCU’s Promotion and
Tenure Guidelines. Instead, Plaintiff must show that Defendant Oggel and the subsequent
Defendants failed to base their decisions on factors that clearly bore on the
appropriateness of conferring academic tenure. Plaintiff does not allege a procedural
argument that Dr. Oggel failed to review all of the relevant materials in making his
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recommendation against tenure. She instead alleges a substantive argument that
Defendant Oggel gave an improper amount of weight to the negative aspects of her
application and that his assessment was not reasonable or fair under the Guidelines.4
However, under Siu, so long as Defendant Oggel made his decision with appropriate factors
in mind, Plaintiff was afforded the process due to her. Under Wells, the fact that Dr. Oggel
never took the opportunity to personally observe Plaintiff in the classroom or include in his
report the fact that Plaintiff met most of the relevant guidelines is not dispositive.5 Much
like in Siu, Defendant Oggel seemed to base his negative recommendation primarily on
Plaintiff’s teaching ability, which is clearly a relevant and legitimate institutional interest
where tenure is being awarded. Plaintiff cannot show that Defendant Oggel’s
recommendation was arbitrary and capricious.
Regarding the other Defendants, Plaintiff does not provide a comprehensive list of
the materials they reviewed when making their recommendations. She states that the
Promotion and Tenure Review Committee reviewed at least some student evaluations. She
does not provide any information about the materials viewed by Defendants Hawkridge,
Warren, and Kirkwood. Ms. Davis, however, does mention that Defendants reviewed a
“file.” VCU’s Promotion and Tenure Guidelines state that each of the defendants shall
receive a “file” and review it in accordance with the Guidelines. (ECF No. 4 Ex. 3, p. 25‐32).
The “file” is something that the Peer Review Committee creates after conducting a
4 “[I]t is precisely Ms. Davis’s argument that by ignoring more objective measures of teaching
performance and substituting the judgment of a handful of students who found Ms. Davis’s teaching
to be ‘mediocre at best,’ the denial of tenure was manifestly arbitrary and capricious.” (Pl.’s Mem.
Opp. Defs.’ Mot. Dismiss 4).
5 Plaintiff does not state that Defendant Oggel based his decision on anything other than the Peer
Review Committee’s recommendation. However, as discussed in the next paragraph, the
Committee’s recommendation likely included a file containing more.
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substantive evaluation of a candidate’s record and performance, including all accumulated
student evaluations, individualized work plans, prior reviews, written internal and external
evaluations, and solicited letters. (ECF No. 4 Ex. 3, p. 24‐25). After making a
recommendation, the Peer Review Committee’s recommendation is added to the “file.”
(ECF No. 4 Ex. 3, p. 25). Accordingly, although not specifically referenced by Plaintiff, it
stands to reason that each Defendant had access to a least the “file” assembled by the Peer
Review Committee. Plaintiff indicates as much when she referenced a letter she received
from Defendant Warren advising that her review of the file led her to conclude that the the
Interim Director and the Promotion and Tenure Review Committee had accurately
assessed her teaching, scholarship, and service record. (Compl. ¶ 41). Additionally, while
Defendant Rao may have failed to notify Plaintiff of his decision regarding her application,
the Court finds that Plaintiff was afforded the process due to her because, despite
Defendant Rao’s de facto denial, Plaintiff’s tenure application was reviewed by multiple
people at several steps throughout the relevant application process. In sum, even assuming
that Plaintiff has a protectable interest, the Court holds that Plaintiff was afforded due
process.
B. Plaintiff’s Liberty Interest
Employees have a constitutionally protected liberty interest in their “good name,
reputation, honor, or integrity,” and that this liberty interest “is implicated by public
announcement of reasons for an employee’s discharge.” Johnson v. Morris, 903 F.2d 996,
999 (4th Cir. 1990); see also Roth, 408 U.S. at 573. A person is not deprived of “liberty”
simply because they are not rehired in one job but remain free as before to seek another.
Roth, 408 U.S. at 575. In order to state a claim for violation of the liberty interest, Plaintiff
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must allege facts sufficient to show that: (1) her superiors made charges against her that
imposed a stigma on her reputation, (2) such charges were made public by the employer,
(3) the charges were made in conjunction with her termination or demotion, and (4) the
stigmatizing remarks were false. Sciolino v. City of Newport News, Va., 480 F.3d 642, 646
(4th Cir. 2007) (citing Stone, 855 F.2d at 172 n.5).
In Sciolino, a former, probationary city police officer brought a similar action
pursuant to 42 U.S.C. § 1983. 480 F.3d at 644‐45. He asserted that, when discharging him,
the city placed in his personnel file false information damaging to his good name without
granting him a name‐clearing hearing, and so deprived him of liberty rights without due
process of law. Id. at 645. The district court dismissed the plaintiff’s complaint because the
former employee did not allege facts asserting a likelihood that prospective employers or
members of the public would see the damaging information. Id. On appeal, the Fourth
Circuit held that a plaintiff must allege more than the “mere presence” of stigmatizing
charges that “may be available” to prospective employers. Id. at 649. Instead, a plaintiff
must allege that their termination is “based on false, stigmatizing charges that are likely to
be inspected by prospective employers.”6 Id.
In Echtenkamp, a plaintiff alleged that her liberty interests in her good name and
reputation were violated when she was placed on probationary status, threatened with
dismissal without due process of law, and was defamed by her supervisors and co‐workers.
6 A plaintiff can meet this standard in two ways. First, the employee could allege (and ultimately
prove) that his former employer has a practice of releasing personnel files to all inquiring
employers. Second, the employee could allege that although his former employer releases
personnel files only to certain inquiring employers, he intends to apply to at least one of these
employers. In either case, he must allege that the prospective employer is likely to request the file
from his former employer. Sciolino, 480 F.3d at 650.
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263 F. Supp. 2d at 1049. The court dismissed her claim because the plaintiff failed to allege
facts sufficient to show either publication of the statements or that they were made in the
context of a discharge or significant demotion. Id. at 1057.
In this matter, Plaintiff has failed to allege facts sufficient to show a violation of her
liberty interests. It is clear that under Roth, Plaintiff may not assert a deprivation of
“liberty” simply because she was fired. See Roth, 408 U.S. at 575. Even assuming that some
stigmatization has taken place, Plaintiff must assert more. Under Sciolino and Echtenkamp,
Plaintiff must also allege that the charges (or basis of her tenure denial) were made public
by VCU or are likely to be inspected by prospective employers, and that they were false.
Plaintiff has failed to do so in her Complaint and in her Opposition to Defendants’ Motion to
Dismiss. As such, this Court holds that Plaintiff has failed to support her claim of a violation
of her liberty interests.7
V.
CONCLUSION
For the above reasons, the Court GRANTS Defendants’ Motion to Dismiss on all
Counts. Plaintiff’s Complaint is hereby DISMISSED.
In the conclusion section of Plaintiff’s Memorandum in Opposition to Defendants’
Motion to Dismiss, Plaintiff requested leave to amend her Complaint in the event that
Defendants’ Motion to Dismiss is granted. “A district court may deny a motion to amend
when the amendment would be prejudicial to the opposing party, the moving party has
acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton
Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (citing Laber v. Harvey, 438 F.3d 404, 426 (4th
7 Because Plaintiff has not supported her claims that Defendants violated either her property or
liberty rights under the Fourteenth Amendment, the Court declines to reach the issue of qualified
immunity.
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Cir. 2006)). “Leave to amend, however, should only be denied on the ground of futility
when the proposed amendment is clearly insufficient or frivolous on its face.” Johnson v.
Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986). Here, Plaintiff did not propose any
amendment to the Court. Nonetheless, regarding Plaintiff’s alleged property interest, any
amendment would be futile because Plaintiff has no protectable property interest at stake.
Regarding Plaintiff’s alleged liberty interest, no relief could be granted under any set of
facts that could be proved consistent with the allegations in this matter because none of the
statements or charges by Defendants were objectively false. See Hishon, 467 U.S. at 73;
Ostrzenski v. Seigel, 177 F.3d 245, 252 (4th Cir. 1999). Accordingly, the Court DENIES
Plaintiff’s request for leave to amend her Complaint.
An appropriate Final Order will accompany this Memorandum Opinion.
____________________/s/_________________
James R. Spencer
United States District Judge
ENTERED this ___12th_____ day of November 2013.
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