Balas v. The Visitors of Longwood College et al

Filing 37

OPINION. Signed by District Judge John A. Gibney, Jr. on 08/08/2017. (walk, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

AYSENILGUN BALAS,
Plaintiff,
Civil Action No. 3:16-cv-00553-JAG

V.

W. TAYLOR REVELEY, IV, et al.,
Defendants.

OPINION

Longwood University ("Longwood") denied tenure to Ayse Nilgun Balas, a woman of

Turkish ethnicity and national origin who taught marketing in the College of Business and
Economics (the "CBE"). According to Longwood, it denied Balas's tenure application based on
the quality of her scholarship and teaching. According to Balas, Longwood denied her tenure

application based on her national origin and her opposition to national origin discrimination.
Balas has sued for discrimination and retaliation under 42 U.S.C. § 1981.

The

defendants' have moved for summary judgment. Because Longwood denied Balas tenure for a
legitimate, nondiscriminatory reason (i.e., her scholarship and teaching), Balas's claims fail.
Accordingly, the Court will grant the defendants' motion for summary judgment.
I. BACKGROUND

Longwood, a state-supported university, typically hires new faculty members for five-

year probationary periods. Within the CBE, all probationary faculty members receive reviews

' Balas originally sued the Visitors of Longwood University and eight individuals, including the
President and Provost of Longwood, the Dean of the CBE, the two department chairs under
whom Balas taught, and the members of the Promotions and Tenure Committee that
recommended against tenure for Balas. By Opinion and Order dated February 3, 2017, the Court
dismissed the Visitors of Longwood University as immune from suit under the Eleventh
Amendment, but allowed the case to proceed against the individual defendants in their official
capacities under the doctrine of Ex Parte Young, 209 U.S. 123 (1908). For simplicity, however,
the Court will refer to the remaining defendants as either "the defendants" or "Longwood."

each fall, and all faculty members receive reviews each spring. In the fall, both the relevant

department chair and a Promotion and Tenure Committee (the "P&T Committee")^ conduct a
review of all probationary faculty members, and each makes a recommendation on whether to
renew the faculty member's contract. The reviews focus on three areas: teaching, scholarship,

and service. Following the fifth year review, the probationary faculty member may apply for
tenure. The department chair and the P&T Committee again both review the applicant and

submit separate recommendations to the Dean of the CBE.

The Dean then submits a

recommendation to the Provost, who then submits a recommendation to the Board of Visitors.
The Board of Visitors makes the ultimate decision on tenure applications.

In 2009, Longwood hired Balas for a five-year probationary period as an assistant
professor of marketing in the CBE. Longwood renewed her contract after years one (2009 to
2010) and two (2010 to 2011).

In year three (2011 to 2012), John Gaskins, Balas's department chair, reviewed Balas in
the fall and the spring. In November 2011, Gaskins reviewed Balas as a probationary faculty
member and recommended that Longwood renew her contract. In this review, Gaskins included
the following comment:

One area for potential improvement is in the speech patterns in
your presentation. Your command of the vocabulary and grammar
is excellent, and your accent does not interfere with
comprehension, but the cadence and inflections in your speech
patterns might be difficult for some to follow. I suggest that you
might video record some of your presentations and/or seek vocal
coaching.

(Mot. Summ. J. Ex. 10.) In May 2012, Gaskins conducted the annual faculty evaluation for
Balas. He rated her teaching as "Satisfactory," but rated her scholarship, service, and overall

^Four tenured members of the CBE faculty make up the P&T Committee.
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performance as "Needs Improvement." In the comments, Gaskins wrote that "[IJittle progress
has been made ... in addressing the cadence and inflection issues cited earlier. As we discussed,

I am concerned that you may not be projecting sufficient presence in the classroom." (Gaskins
Dep. Ex. 6.)

In late May 2012, Balas met with Paul Barrett, Dean of the CBE. Dean Barrett told Balas
that Longwood would not renew her contract after the 2012-2013 school year. In this meeting,
Dean Barrett told Balas "that he was issuing a terminating contract because [Balas was] 'not a

good fit' with the College." Barrett, however, did not provide "any written explanation of how a
'good fit' is defined." (Am. Compl. Ex. 2.) Longwood issued Balas a terminating contract in
June 2012.

Balas signed the terminating contract, but added a statement that Dean Barrett,

Department Chair Gaskins, and others had unlawfully discriminated against her. Balas appealed
the terminating contract to the Faculty Status and Grievance Committee (the "FSGC") who, in
September 2012, recommended reversing the decision to issue the terminating contract. Dean
Barrett and the Provost affirmed the findings of the FSGC and reappointed Balas for another
year.

In Balas's fourth year at Longwood (2012 to 2013), in November 2012, the P&T
Committee unanimously recommended that Longwood renew Balas's contract for another year.
In his separate fall review. Department Chair Gaskins expressed "grave reservations" about
recommending Balas's continued appointment. Longwood renewed Balas's contract.
In July 2013, Gaskins conducted the annual faculty evaluation for Balas. He included a
comment that Balas displayed a disrespectftil attitude by failing to use the prescribed forms for

her annual report. Balas responded by letter to Gaskins (copying Dean Barrett and the President

of Longwood) complaining about Gaskins's comment and saying that it was (1) discriminatory

and (2) retaliatory for Balas having won her appeal with the FSGC.
In Balas's fifth year (2013 to 2014), the P&T Committee met in October 2013 to review

Balas as a probationary faculty member. At that time, Claire La Roche, Cheryl Adkins, Glenn
Dardick, and Raymond Brastow made up the P&T Committee. According to Dardick, at the
same time as a discussion of faculty members with foreign accents, including Balas, La Roche

said that some faculty members did not "fit in" at Longwood.^ La Roche also shared that she
had received complaints from students that could not understand Dr. Balas. When questioned
about these comments by Dardick, however, La Roche did not elaborate. La Roche also raised

concerns about Balas's grading curve and research publications, but did not raise similar
concerns about another faculty member under evaluation. The P&T Committee voted two-two
to renew Balas's contract.

Also in October 2013, Gaskins conducted his review of Balas as a probationary faculty

member. He rated her teaching as average, her service as satisfactory, and her number of

publications as good, but expressed concerns about the quality of the publication outlets.
Gaskins commented that Balas had made "little progress in addressing the concerns I expressed

last year relating to collegiality and commitment to the institution." (Gaskins Dep. Ex. 15.)
Gaskins recommended that Longwood not renew Balas's contract.

In November 2013, in response to Gaskins's review, Balas asked Gaskins to reconsider
his recommendation.

Gaskins responded with a letter explaining why his recommendation

remained unchanged, Balas then asked Gaskins to recuse himself from her tenure-track process.

^ La Roche declared that she did not make these comments. Adkins does not remember the

conversation. This dispute of fact is not material to the resolution of the defendants' motion.
4

stating that: "your outlook toward me is devoid of impartiality, and is openly hostile, prejudiced,
and retaliatory." (Gaskins Dep. Ex. 18.)
At some point in late 2013, according to P&T Committee Member Dardick, Gaskins

came to Dardick's office topersuade Dardick not to vote for Balas for tenure.'*
At some point in late 2013 or early 2014, Charles White replaced Gaskins as department
chair, and Gaskins replaced an outgoing member of the P&T Committee.

During the 2014 to 2015 school year, Balas applied for tenure. In October 2014, both the

P&T Committee and Department Chair White reviewed Balas's tenure application. White did
not recommend Balas for tenure based on the quality of her scholarship. The P&T Committee—

now made up of Gaskins, La Roche, Adkins, and Frank Bacon—unanimously agreed to not
recommend Balas for tenure based on her teaching. Based on these recommendations, Dean
Barrett and the Provost both recommended against tenure.

Balas submitted a grievance for the denial of tenure to the FSGC. In February 2015, the
FSGC issued its opinion. The FSGC found some of Balas's grievances unsubstantiated, such as

Department Chair White's assessment of the quality of her scholarship.^ Nevertheless, the
FSGC recommended correcting some of the procedural errors that occurred during the tenure

review process, giving Balas an opportunity to submit additional information, then having

^ According to Gaskins, this never happened. This dispute of fact is not material to the
resolution of the defendants' motion.

^ The FSGC stated:
At the same time, the [FSGC] does not believe that the CBE's decision is
surprising. [Balas] received numerous warnings and reminders of the importance
of quality scholarship throughout [her] tenure track, as well as concerns about
[her] teaching. In many instances, the [FSGC] finds that [Balas] may have
disregarded crucial constructive criticism in favor of defending [her] own
teaching methods or scholarship, and furthermore did not take advantage of
opportunities to speak in person with the P&T Committee, [department chair], or
Dean about particular concerns any of them had.
(Am. Compl. Ex. 5.)

Department Chair White and the P&T Committee reassess Balas's tenure application.

Presumably after completing these steps, White and the P&T Committee reiterated their

recommendation against tenure. Balas appealed to Dean Barrett, the Provost, the President of
Longwood, and the Board of Visitors. All appeals were denied. In May 2015, Longwood issued
Balas a terminating contract.

II. discussion'

Balas has alleged national origin discrimination and retaliation in violation of 42 U.S.C.
§ 1981. Longwood has moved for summary judgment on both counts.
A. Discrimination

Balas alleges that Longwood discriminated against her based on her national origin when

it denied her application for tenure^ in violation of § 1981. Section 1981 protects the right ofall
persons to make and enforce contracts. 42 U.S.C. § 1981. To prove a claim of discrimination

^Longwood has moved for summary judgment. Rule 56 of the Federal Rules of Civil Procedure
directs courts to grant summary judgment "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). In deciding a summary judgment motion, the court must draw all reasonable inferences in
favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Nevertheless, if the non-moving party fails to sufficiently establish the existence of an essential
element to its claim on which it bears the ultimate burden of proof, the court should enter

summaryjudgment against that party. Celotex Corp. v. Catrett, All U.S. 317, 322 (1986).

^In her amended complaint, Balas also alleges that Longwood discriminated against her when it
(1) subjected her "to discrimination in the terms and conditions of her employment on account of
her Turkish race, ethnicity and national origin," (Am. Compl. | 73), and (2) terminated her
employment. Balas does not provide any evidence of the differences between the terms and
conditions in her employment and those of non-Turkish faculty. Her complaints about terms and
conditions instead seem to relate to how Longwood reviewed Balas's tenure application.
Further, Longwood terminated Balas because she did not achieve tenure at the end of her
probationary period. Accordingly, Balas's allegations of discrimination boil down to the denial
of her tenure application. Even if the Court reviewed these two alleged adverse actions as
separate claims of discrimination, however, these claims fail. Balas has provided no evidence of
discrimination in the terms and conditions of her employment. As to her termination, Balas
offers no evidence that the reason given for her termination (i.e., that Balas did not achieve
tenure) was pretext for discrimination.

under § 1981, the plaintiff must show (1) that the defendant intended to discriminate based on a

protected characteristic and (2) that the discrimination interfered with a contractual interest.

Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 434 (4th Cir. 2006). A plaintiff can prove
discriminatory intent through either (1) direct evidence of discrimination or (2) indirect evidence

of discrimination under the McDonnell Douglas^ burden-shifting framework. Id. Balas argues
that she has satisfied both standards of proof.

First, Balas points to two pieces of direct evidence of discrimination: (1) the statement

made by Barrett in May 2012 that Balas was not a "good fit" and (2) the statements made by La
Roche in the October 2013 P&T Committee meeting that Balas did not "fit in." Courts can

consider derogatory remarks as direct evidence of discrimination if the remarks have some
connection to the adverse employment decision. McCray v. Pee Dee Reg'I Transp. Auth., 263 F.

App'x 301, 305-06 (4th Cir. 2008) (citing Brinkley v. Harbour Recreation Club, 180 F.3d 598,

608 (4th Cir. 1999)). Stray or isolated derogatory remarks will not suffice. Id.^
The remarks offered by Balas as direct evidence of discrimination both fall within the

category of stray or isolated remarks unrelated to the challenged employment action. Balas

challenges her denial of tenure in October 2014. The two remarks offered as direct evidence of
discrimination based on Balas's national origin happened in May 2012 and October 2013.

Neither remark related to the decisions to deny tenure.'® Indeed, after the October 2013 remark,

^McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
^See Finkle v. Howard Cnty., 640 F. App'x 245, 248 (4th Cir. 2016) (holding that an email on an
unrelated topic reflecting a potentially unfavorable attitude about a protected characteristic sent
eight months prior to an adverse employment decision was an isolated remark unrelated to the
challenged decision, so was insufficient to provide direct evidence of discrimination).
Additionally, the record shows that the May 2012 remark by Barrett did not even relate to
Balas's national origin. (Barrett Dep. 17:24-20:2, 23:16-24:14.)

the P&T Committee voted to renew Balas's contract for an additional year. Accordingly, Balas
has not offered direct evidence of discrimination to support her § 1981 discrimination claim.
Balas offers the same evidence in support of her argument that she has shown indirect
evidence of discriminatory intent under the McDonnell Douglas framework.

Under this

framework, a plaintiff must first establish a prima facie case of discrimination. Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005). If the plaintiff establishes

a prima facie case, the burden shifts to the defendant to offer a legitimate, nondiscriminatory
reason for its actions. Id. If it does, the burden shifts back to the plaintiff to show that the

defendant's articulated reason is really pretext for discrimination. Id.

Assuming that Balas can establish a prima facie case of discrimination, Longwood has
offered a valid, nondiscriminatory reason for denying Balas tenure. Specifically, Longwood

exercised its professional judgment when it evaluated Balas in the areas of teaching, scholarship,

and service, and found her lacking.^' Balas v. Visitors ofLongwood Univ., No. 3: 16-cv-00553JAG, 2017 WL 465680, at *4 (E.D. Va. Feb. 3, 2017). At least dating back to May 2012,

Longwood alerted Balas that her scholarship and service needed improvement. In 2014, the
P&T Committee did not recommend Balas for tenure because of her teaching. Department Chair
White did not recommend Balas for tenure because of the quality of her scholarship.

The evidence offered by Balas in response does not show that this reason offered by

Longwood was pretextual. As previously discussed, the "fit"-related comments happened at
least a year before the decision to deny Balas's tenure application. Regardless, even if La Roche

" This differs from the cases cited by Balas where the reason offered for not promoting the
plaintiff was that she did not "fit in." (Opp'n 15 (quoting Patrick v. Ridge, 394 F.3d 311, 317
(5th Cir. 2004).) Longwood does not offer Balas not fitting in as the reason it denied her tenure
application. Indeed, as previously discussed, the "fit"-related comments in this case happened
long before the tenure decision.
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and Gaskins tainted the P&T Committee, Balas does not offer any evidence of discriminatory
actions or motives by Department Chair White, who independently evaluated and did not
recommend Balas for tenure.

10

Because Balas has not established that Longwood's

nondiscriminatory reason for denying her tenure application was pretext, Balas has not offered
indirect evidence of discrimination to support her claim. Accordingly, the Court grants summary
judgment to the defendants on the discrimination claim.
B, Retaliation

Balas also alleges that Longwood denied her application for tenure in retaliation to her

opposing national origin discrimination. In the absence of direct evidence, the McDonnell

Douglas burden-shifting framework also applies to retaliation claims. Foster v. Univ. ofMd.-E.
Shore, 787 F.3d 243, 253 (4th Cir. 2015).
As with her discrimination claim, Balas's retaliation claim fails because Longwood has

offered a nondiscriminatory reason for denying her tenure application, and Balas has not shown

evidence that this reason was pretextual. Accordingly, for the reasons discussed in the context of
the discrimination claim, see supra Part II.A, the Court grants summary judgment to Longwood
on the retaliation claim.

Indeed, the FSGC found Balas's grievances about White's review unsubstantiated.
Balas's claim also fails because she cannot establish a prima facie case of retaliation. To
prove a prima facie case of retaliation, the plaintiff must show (1) that she engaged in a protected
activity, (2) that her employer took an adverse employment action, and (3) that a causal
connection existed between the protected activity and the adverse action. Foster, 787 F.3d at
253. Balas arguably engaged in protected activity by complaining about discrimination in Jime
2012 when she signed her terminating contract, in July 2013 when she responded to her annual
evaluation, and in November 2013 when she asked Gaskins to recuse himself from the P&T

Committee. Longwood denied Balas tenure in October 2014. The gaps between the protected
activity and the denial decision are too long to establish a causal connection by temporal
proximity alone. Pascual v. Lowe's Home Centers, Inc., 193 P. App'x 229, 233 (4th Cir. 2006).
Balas's attempt to bridge this gap with evidence of Gaskins's conduct fails because even if
Gaskins's actions somehow impute the decision of the P&T Committee to recommend against

III. CONCLUSION

For these reasons, the Court will grant the defendants' motion for summary judgment.
The Court will enter an appropriate order.

Let the Clerk send a copy of this Opinion to all counsel of record.

/S/^

Date:

'JohnA.Oit>ney,Jr. /

2017

United States Dist^t^

Richmond, VA

tenure for Balas, no such connection exists between Gaskins's actions and the independent
decision of Department Chair White to recommend against tenure. Accordingly, Balas has not
established a causal connection between her protected activity and the decision to deny her
tenure application.
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