Dragulescu v. Virginia Union University et al

Filing 159

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 05/15/2017. (tjoh, )

p
p

n\

MAY 15 20IT

Ul

u

IN THE UNITED
FOR THE

STATES DISTRICT COURT

CLERK. U.S. DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

RICHMOND. VA

Richmond Division

LUMINITA DRAGULESCU,

Ph.D.,

Plaintiff,
V.

Civil Case No.

3:16cv573

VIRGINIA UNION UNIVERSITY,
Defendant.
MEMORANDUM OPINION

This matter is before the Court on DEFENDANT VIRGINIA UNION

UNIVERSITY'S MOTION

FOR SUMMARY JUDGMENT

(ECF No.

70).

By the

ORDER of May 11, 2017 (ECF No. 149), the Defendant's Motion was

granted in part and denied in part. The reasons for that Order
are set forth below.
I.

BACKGROUND

Virginia Union University (VUU)

is an historically black

college and university (HBCU). In 2012, Luminita Dragulescu, a
white female, was hired to be an Assistant Professor of English

in the Department of Languages and Literature C'L&L") of VUU's
School of Humanities and Social Sciences {''SHSS") . She served in

that position from 2012 to 2015,

accepting renewed one-year

offers of employment each year during that time. On March 24,

2016, Dragulescu received notice that her contract would not be
renewed for the following term.

Dragulescu

contract,

alleges

as well as a

that

the

decision

not

to

renew

her

reprimand that she received in 2015,

was

racially motivated in violation of Title VII of the Civil Rights
Act

of

1964.

42

U.S.C.

§

2000e-2 (a) {1).

VUU

has

moved

for

summary judgment on both claims. In evaluating VUU's motion, the
Court

must

inferences

view
arising

any

disputed

therefrom

in

"facts
the

and

light

all

most

justifiable

favorable"

to

Dragulescu, the non-moving party. Foster v. Univ. of Maryland-E.
Shore, 787 F.3d 243, 246 {4th Cir. 2015).
A.

Dragulescu was hired

in

Facts

2012 by Eveyln

Davis

{a black

female), the chair of the L&L Department at the time. Dragulescu

began teaching in the fall of 2012. Almost immediately, VUU

began receiving student complaints about her,

including one

incident in October of 2012 in which nineteen students signed a

complaint against her.' (Def. Mot., Ex. 8). Although she has not

disputed these complaints were made, Dragulescu contends that
she was not informed of "virtually all" of them, nor told that

they would jeopardize her job security. (Def. Mot. 3, PI. Resp.
3). These complaints notwithstanding, Dragulescu's contract was
renewed for the 2013-2014 school term.

' Dragulescu disputes the substantive merits of these complaints,
but does not dispute that the complaints were made.

(PLAINTIFF'S

MEMORANDUM

FOR

JUDGMENT

IN

OPPOSITION

("PI. Resp.")

TO

at 3-4).

DEFENDANT'S

MOTION

SUMMARY

In

2014,

Dragulescu

agrees

participate

in

that she was

week at

issues
that

arose
she

between

was

''Constitution

asked

Day"

at

Dragulescu
to

VUU

and

encourage
and

Davis.

students

politely

to

refused,

instructed to spend two of their office hours each

the VUU

Writing Center and

refused to

do

so,

and that

she resisted Davis in the process of selecting a common text for

English classes.

(Def. Mot.

4-5,

PI. Resp.

4).

Davis eventually

responded by issuing Dragulescu a formal reprimand,

chastising

her for various incidents and expressing the hope that she would

''make a genuine attempt to become a better colleague by working
with and not against the department." (Def. Mot., Ex. 14).

Dragulescu believed this

reprimand was unwarranted,

and

sought relief from Linda Schlichting, the outgoing dean of SHSS.
Schlichting {a white female)

inappropriate

concluded that the reprimand was

and overly harsh,

especially compared to

the

disciplinary actions taken against other faculty in the past who
had

committed

more serious

offenses.^

(PI.

Resp.,

Ex.

2).

2 In her brief in opposition, Dragulescu "disputes the substance
of all of the accusations in Dr. Davis' October 3, 2013

reprimand";

however,

Dragulescu

has since

admitted

to

the

substance of at least some of the incidents recounted in the

reprimand.
No.

131)

WRITTEN STIPULATIONS OF UNCONTROVERTED FACTS (ECF

at 2-3.

^ In a declaration prepared April 17, 2017, Schlichting testified
that the Davis reprimand was harsher punishment than black

professors had received for "far harsher offenses." (PI. Resp.,
Ex. 2) .

Her memo in 2013,

comparisons.

Id.

however, does not make any racial

Therefore,
removed

Schlichting

from

recommended
Davis

was

renewed,

instructed

Dragulescu's
Dragulescu

overruled,

file.

for

and

Davis

to

On

the

March

6,

(Def.

non-renewal.

Dragulescu's

have

Mot.,

contract

this time for the 2014-2015 term.

reprimand

2014,

was

Davis

Ex.
once

17).
again

Around the same time,

Davis was promoted to a new position within VUU, Shannan Wilson
(a black female)
male)

became the new chair,

became the new dean of SHSS.

During

the

2014-2015

complaints about Dragulescu.
to

and Michael Orok (a black

decline

to

devote

any

term,

there

(Def. Mot.
hours

to

were

more

student

4). She also continued

the

Writing

Center.

Id.

Dragulescu maintains that she was not informed of most of the
student complaints,

and that Writing Center hours had become

something less than mandatory by sometime in the spring of 2014.
(PI. Resp.

5).

In January of 2015,

Dragulescu procured on behalf of VUU

and the SHSS a substantial grant from the National Endowment of
the Humanities

{^'NEH") . Orok's personal assistant,

(a black female),

was placed in charge of administering the

grant funds within SHSS.
received

an

Tracy Lucas

invitation

to

Around this same time,
present

one

of

her

Dragulescu

papers

at

a

conference at Oxford, and began seeking funding for the trip. At

some point in March of 2015, Orok informed Dragulescu that he
hoped to be able to contribute $200 towards her trip.

In

April

of

2015,

history professor.
emailed

Orok

committee
several

for

the

Dr.

others

be

to

be

position,
on

conducted

Raymond Hylton

seeking
the

SHSS

the

the
and

a

search

a

new

(a white male professor)

chairperson

requested

committee.

for

The

of

that

overall

the

search

Dragulescu

and

composition of

the committee requested by Hylton would have included four white

professors

response

(including Dragulescu)

to the

that "Dr.

request,

and two black professors.

Lucas emailed Orok directly,

stating

Dragulescu is a no-no because you need to split her

and Hylton up."

(Pi.

Resp.,

Ex.

13).

She also requested that

Orok ''throw some different people up in there;

Americans," and offered her own suggestions.

respond

In

to

the

Lucas

email,

but

he

mainly African

lA,

ultimately

Orok did not

organized

a

committee that had four black professors and two white professor

(and did not include Dragulescu). Dragulescu cites this sequence
of events

as

part

of

the

evidence of Orok's

racial

animus

towards white individuals.

On April 30, 2015, Terry Hinton, then a professor at VUU,
claims to have had a conversation with Orok in which Orok stated

that

Dragulescu was having an affair with Hylton,

that her

office ''smelled like feet, ass, and sex," and that he considered

Dragulescu nothing but a "white trailer trash whore."
Mot.,

Ex.

57).

(Def.

Orok denies ever making these statements,

Hinton claims that he wrote down the quotations at the time.

but

He

also

claims

handwritten
Mot.,

Ex.

that,

notes

58).

at

after

some

point

preserving

Hinton was

terminated

for discrimination in response,

in

2016,

in

electronic

for

he

destroyed

cause by VUU,

and accepted a

56,

a

(Def. Mot.,

than

a

week

after

this

alleged

incident,

on

May

4,

Orok held a meeting with Dragulescu and Wilson to discuss

recent

student

returned a
''that's

a

complaint.

paper to
ridiculous

a

On

May

student

that

statement

How

1,

2015,

logic!!";

"You just

state

the

Dragulescu

included comments
could

"This shows your ignorance on the topic!";

for

sued i t

58).

Less

2015,

(Def.

lifetime ban from

the campus as part of the settlement in that action.
Exs.

form.

his

you

such as
it?!!";

''Please revise this

obvious!";

don't know what climax of a narrative is!";

support

had

"You obviously

"You don't seem to

have heard anything I talked to you!!" (Def. Mot., Ex. 21). The
student had become

upset

at

these

comments,

mother had complained to his faculty advisor,

and he

and his

Julie Malloy (a

white female). Malloy immediately alerted Wilson and Orok, who

promptly requested a meeting with Dragulescu to discuss the
matter.

At the meeting, Orok and Wilson spoke with Dragulescu about

the incident, assured her that they did not believe she intended
her

editorial

comments

to

be

offensive

in

any

way

to

the

student, and requested'' that Dragulescu apologize to the student
and her mother for the misunderstanding.

{Def. Mot.

5-7) .

an

Orok

also

explained

that

VUU

was

HBCU,

1,

Pi.

and

Resp.

allegedly

suggested that Dragulescu did not perceive why her comments had
offended

the

student

because

she

did

not

understand

black

culture and the impact that such language would have coming from

a

white professor to a

black student at

an HBCU.

(PI.

Br.

6).

The parties agree that Orok did not expressly order Dragulescu

to apologize, nor tell her that her job would be in any jeopardy
if she refused.

Almost
an

email

Dragulescu declined to apologize.

immediately after the meeting,

from Lucas

{on Orok's

behalf)

Dragulescu

informing

her

received
that

the

$200 Orok had previously pledged towards her Oxford trip would
not

be

available.

written

reprimand

Then,

from

the

Orok

next

day,

(^^Orok

Dragulescu

Reprimand")

received

that

she

a

now

alleges constitutes an independent adverse action under Title
VII.

The

Orok

Reprimand

focused

on

the

incident

with

the

student's paper, but also ^'recognize [ed] that this was not the
first

time

that

students

complained

negative behavior in the class."
document,

about

(Def.

your

Mot.,

aberrant

Ex.

24).

and

In the

Orok warned Dragulescu that the ''refusal to follow my

" The parties have repeatedly and aggressively argued about the
semantics involved in this ''request," though
Orok and Wilson "expected" her to apologize.

they

agree

that

instructions

[sic]
Id.

is

inappropriate

subsequent

actions

such

and

as

amounts

this

to

will

insubordination,

not

be

tolerated."

The reprimand also counseled Dragulescu that her ''continuous

refusal

to

follow

administrative

directions

is

professionally

irresponsible and may lead to additional personnel actions." Id.

Following

VUU's

prescribed

procedure,

Dragulescu

initiated

a

formal grievance in response.

On

May

Dragulescu's

5,

2015,

contract

Wilson

not

be

formally

renewed.

recommended

Wilson's

that

recommendation

cited concerns about Dragulescu's interactions with students and

her refusal to comply with the suggestions of superiors.

Mot.,

Ex.

26).

documentation

Orok

of

Wilson's

provided Orok with

responded

by

concerns.

various

student

requesting

(Def.

Mot.

complaints,

further

8).

as

(Def.

Wilson

well

as

documentation of Dragulescu's interactions with Davis (including

the

reprimand

Schlichting

concurred with Wilson,

had ordered

rescinded).

Id.

Orok

and issued his own recommendation that

Dragulescu's contract not be renewed.

(Def.

Mot., Ex.

27).

Dragulescu contends that several of the complaints ultimately
included in this process were specifically solicited by Wilson
from students.

(PI. Resp. 13).

The parties dispute how VUU leadership responded to the
Orok

and

Wilson

recommendations,

but

both

sides

agree

that

Dragulescu's contract was ultimately renewed for the 2015-2016

term.

VUU

President

Claude

Perkins

explained that

give

Dragulescu another opportunity to improve,

28),

but

Dragulescu contends

that

she was

he

wished to

(Def.

Mot.,

Ex.

renewed only because

any contrary decision would have violated an internal VUU policy
to

give

45

Dragulescu

days

also

notice

claims

before

that

any

non-renewal

Orok

decision.

specifically

withheld

Dragulescu's contract while he waited to see if VUU would accept
his and Wilson's

On May 11,

Dragulescu

(and

recommendation.

2015,

Wilson performed a

other

professors

in

formal

her

department).

receiving the lowest score in her department,

this

performance

already

evaluation

initiated

in

to

response

the

to

After

Dragulescu added

grievance

the

evaluation of

she

had

reprimand.

Orok

that

The

grievance process was handled by the Faculty Senate,

a body

composed of faculty members who hear such claims and provide
non-binding recommendations to the President for further action.
At one point during the grievance process,

the various

committee members exchanged emails regarding when and if Orok

would be permitted to give his side of the story.

(Pi. Resp.,

Ex. 17) . Hylton, who was on the grievance committee, commented

as part of this sequence that he was ''skeptical about Dr. Orok's
story" but was willing to hear him out.
then

forwarded

to

Orok

by

another

This exchange was

committee

member,

McShepard. Orok replied to McShepard with the following:

Gerard

Raymond Hylton is an hypocrite.
or not is irrelevant.

Whether he believes me

That is his opinion.

He wants me

to say what he wants to hear. He should go to VCU and
try that mess and see how long he will last. Dr.

Dragulescu

has

historically

abused

her

students

and

when

I asked her to apologize to the student parents
in the presence of her chair, she refused and I wrote
her up for insorbordination. Period. What is there not

to believe.

Did she

or

not?

did

she

refuse

Did

she

to do what

abuse

her

I

told her to do

student

over

the

past two years and it's documented or did she not. If
they want me there then I must bring Dr.?eve Davis to
bring all kinds of documentation and I will bring
mine. They need to settle down and teach the students,
that what they were hired to do. By the way, if I had
anything against Hylton or Dragulescu why would I have
them in the recent publication . I did not have to do
that. Also, you se to be the only Black face on this
committee. This is really a sad state of affairs. Ray
Charles

is

blind and dead and if he

saw that

woman's

rap sheet of abuse and insults he would be very upset.
Enough said. I wait on the side line and see them
scramble and throw mud.

(PI. Resp., Ex. 17)

(errors in original). Dragulescu cites this

''black

as

face"

email

additional

evidence

2015,

Faculty

of

Orok's

racial

animus.

On

September

resolutions
declared

in

20,

response

that

to

the

Dragulescu's

Dragulescu's

conduct

Senate

issued

grievance.
did

not

The

two
first

constitute

''insubordination" as that term had been defined in the Faculty

Handbook.
recommended
retracted
Committee

evaluations

(Def.
that
and

Mot.,

Ex.

the

"letter

removed

from

determined

according

that

to

the

39).
of
her

The

reprimand
record."

Wilson

Faculty

10

Committee

had

from
Id.
not

Manual,

therefore

Dr.

Orok

be

Secondly,

the

conducted

her

and

recommended

that

to

the

Zakir

evaluation be redone.

Hossain,

eventually

2016

the

oversaw

Vice

Id.

The

recommendations were sent

President

Dragulescu's

of

new

Academic

evaluation

Affairs,

in

who

January

of

(which improved from a 2.5 to a 4.24 after she was given

credit for having obtained the NEH Grant).

The

parties

resolution

Hossain

of

and

dispute

the

how

Faculty

Perkins

disagreed with it.

responded

Senate.

''pocket

refusing to act on it,

VUU

Dragulescu

vetoed"

the

to

the

first

contends

that

recommendation

by

and that they did so because Hossain

{Def. Resp. 8-9). Nevertheless, the evidence

suggests that this dispute is immaterial. Dragulescu has taken
the position that the recommendation was intended so that ''any
official

documentation

that

the

university

Dragulescu . . . make no mention of that letter.

keeps

on

Dr.

(Def. Resp.,

Ex. 9) And, Dragulescu now concedes that the Orok Reprimand was
neither

used,

nor

directly

referenced,

ultimately led to her non-renewal

in

(i.e.,

the

process

that

it was not in the

packet of materials sent to Perkins).

In January of 2016, Monique Akassi replaced Shannan Wilson
as

chair of

the

L&L

Department.

Not

long

thereafter,

Akassi

began receiving complaints from students about Dragulescu, who
allegedly "refused to cooperate" with Akassi in resolving the
issues.

(Def. Mot.,

of

student

the

Ex.

49).

complaints

Dragulescu disputes the substance

involved,

11

but

does

not

deny

that

Akassi

received

requested).

On

outgoing

with

(PI.

them

Resp.

January 21,

chair,

(or

that

she

Akassi

also

not

do

as

Akassi

38).

2016,

Wilson,

detailing

Dragulescu and recommending

from the department.
citing a

did

some

that

received a

of

her

memo

from the

previous

Dragulescu be

issues

terminated

(Def. Mot., Ex. 53).^ On February 1, 2016,

''great concern"

over an ''alarming number of students

emailing me and coming to my office,'' Akassi sent Orok a memo

concurring with Wilson's outgoing recommendation and asking that

Dragulescu's

(Def.
and

Mot.,
added

contract

Ex.

not be

53).

his

renewed for

the

2016-2017

term.

Orok concurred with the recommendation,

own

on

February

10,

2016.

Orok's

recommendation referred back to his 2015 recommendation, stating

"his

understanding"

that

his

previous

recommendation had not

been considered because it "it did not meet the threshold for

informing faculty as established in the university handbook."
Id. Orok contends that he based his 2016 recommendation on his
belief that Dragulescu had not improved her behavior. Id.

On

February

11th,

Akassi

issued

a

second

formal

recommendation of non-renewal. Id. This time, she specified only

5

Dragulescu alleges that Wilson's recommendation was racially motivated on the basis of a

single post from Twitter in April of2015, in which Wilson stated that "WHITE WOMEN HAVE
SEX WITH OUR CHILDREN AND DON'T EVEN FACE JAIL TIME NOR REGISTER
AS A SEX OFFENDER! BLASPHEMY!" (PI. Resp., Ex. 18). There is no
evidence, however, that this "tweet" pertained to Dragulescu or
the recommendation not to renew her contract.
12

that

she

had

Literature

''decided

in

a

to

take

different

the

Department

direction."

Id.

of

The

Languages

same

day,

and
Orok

forwarded Akassi's second recommendation to Hossain along with a
second

with

recommendation

Akassi.

lA.

On

of

his

own,

which

stated

15,

2016,

Hossain

February

his

agreement

endorsed

the

recommendations of Orok and Akassi and issued his own conclusory

recommendation

that

Dragulescu

be

non-renewed.

JA.

Hossain

forwarded his recommendation along with a packet of materials to

Perkins

for

his

recommendation

from

January 27, 2016;
2016;

(4)

review.

The

2015;

packet

(2)

the

contained

the

Orok

recommendation

Wilson

(1)

from

(3) the Akassi recommendation from February 1,

the Orok recommendation from February 10,

2016;

(5)

the second Akassi recommendation from February 11, 2016; and (6)

the

second

Orok

Relying on the

recommendation

recommendations

from

February

11,

of those below

2016.

him,

Id.

Perkins

notified Dragulescu of his decision not to renew her contract on
March 24, 2016.

(Def. Mot., Ex. 54).
B.

Procedural Posture

Dragulescu filed her initial EEOC Charge on December 28,
2015,

citing the Orok Reprimand and various other incidents as

evidence of discrimination.

second

charge

on

March

30,

{Def.

2016

13

Mot.,

after

Ex.

48).

she

was

She filed her

non-renewed.

Dragulescu

received

no-action

letters

in

response

to

both

charges, and promptly filed suit.

Dragulescu's FIRST AMENDED COMPLAINT

(ECF No.

10)

included

claims of defamation against Orok and Davis along with her Title
VII claims, which at the time also alleged discrimination on the
basis

of

sex

Dragulescu's

Opinion

national

defamation

{ECF No.

retaliation

and

and

30)
sex

origin

claims

on
and

have since been withdrawn.

were

December 9,
national
(ECF Nos.

in

addition

dismissed

2016,

by

to

race.

Memorandum

and her claims of

origin-based

discrimination

131, 146). All that remains

to consider on summary judgment are Dragulescu's two claims of
race-based discrimination:

one based on the Orok Reprimand and

one based on her non-renewal in 2016. VUU seeks summary judgment

on both claims, arguing that the Orok Reprimand does not qualify
as an adverse action under Title VII,

and that Dragulescu has

not produced sufficient evidence of discrimination on her nonrenewal claim. Following extensive briefing and oral argument on

the motion, the Court issued an ORDER granting summary judgment
on the former claim

the

latter

(the

(the Orok Reprimand)

non-renewal).

(ECF No.

and denying it as to

149).

Opinion sets forth the reasons for that decision.

14

This

Memorandum

II.

LEGAL

STANDARD

The parties agree that no direct evidence of discrimination
exists

in

this

framework

case

and

applies.®

that

Under

the

this

traditional

McDonnell-Douglas

burden-shifting

framework,

summary judgment analysis proceeds in three steps.

the

Step one is

the plaintiff's prima facie case.

To

establish

a

prima

plaintiff must show:
class;

(2)

(1)

facie

case

of

discrimination,

a

that she is a member of a protected

that she suffered adverse employment action;

and

(3)

that other employees who are not members of the protected class
were treated more favorably.

F.3d

124,

133

(4th

Cir.

Bryant v. Bell Atl. Md.,

2002).

If

the

Inc.,

plaintiff meets

288

this

burden, it creates an inference of discrimination that falls on

the employer to rebut.
admissible

evidence

discriminatory
Texas

Dep't

The employer can do so by producing

showing

reason

of Cmty.

for

that

the

it

had

a

challenged

Affairs

v.

Burdine,

legitimate,

employment
450 U.S.

non-

action.
248,

254

(1981).

Once a defendant produces a legitimate, non-discriminatory
reason

for

the

challenge

conduct,

the

presumption

of

® The Court is aware that there is a split of authority among the

circuits and among the district courts of the Fourth Circuit on

the

governing

indirect

legal

evidence

in

standard

for

reverse

proving

discrimination

discrimination.

Because

parties agree that the regular McDonnell-Douglas
applies, the Court need go no further in its analysis.
15

by
both

framework

discrimination

disappears.

JA.

The

plaintiff

then

''has

an

opportunity to prove by a preponderance of the evidence that the
neutral

reasons

offered

reasons,

but were a

by

Inc.,

(quoting Burdine,

450 U.S.

analysis

with

court

that

[the

plaintiff

has

the

Thus,

presented

discrimination,

and

'were

not

601

294

ultimate

burden

has

the

been

true

(4th Cir.

of

2010)

the pretext

persuading

victim of

Old

the

intentional

"the issue boils down to whether the

a

'the

F.3d 289,

its

Merritt v.

at 253). At this stage,

plaintiff]

discrimination."

employer

pretext for discrimination.'

Dominion Freight Line,

"merges

the

triable

McDonnell

question
Douglas

of

intentional

framework-with

presumptions and burdens-is no longer relevant.'"

its

at 295.

Summary judgment will therefore be appropriate only where "there
is no genuine issue as to any material fact and . .
is entitled to judgment as a matter of law." JA.;
R.

Civ.

P.

is

independent

entitled

claim

for

a

triable

non-renewal

to

of

Reprimand; however,
create

see also Fed.

56(c).

III.

VUU

. the movant

summary

judgment

discrimination

based

on

Dragulescu's

upon

the

Orok

Dragulescu has presented enough evidence to

question
was

DISCUSSION

as

motivated

to

whether
by

16

racial

Orok's

recommendation

considerations.

The

Court

therefore

denies

VUU's

motion

for

summary

judgment

as

to

Dragulescu's claim of discriminatory non-renewal.

A.

"The Orok Reprimand"

Summary judgment for VUU is appropriate on the question of
the

Orok

evidence

Reprimand
that

reprimand

because

she

(i.e.,

Dragulescu

suffered

real

a dock in pay,

has

harm

not

as

a

presented
result

of

fewer responsibilities,

any
the

etc.).

Because the Orok Reprimand ''did not lead to further discipline"

apart

from

the

ultimate

non-renewal

decision,

it

cannot

be

considered an independent adverse action under Title VII. Adams

V. Anne Arundel Cty.

Pub.

Sch.,

789

F. 3d

422,

429

{4th Cir.

2015). Consequently, summary judgment must be granted.

Dragulescu argues that the Orok Reprimand ^'worked a serious
and real employment injury" because it was "used, in fact, as a
basis" for Orok's

recommendations of non-renewal,

and because

the '^^reprimand is actually the first step under VUU's Faculty
Handbook

for

being

terminated

for

cause."

(PI.

Resp.

14).

Neither argument is persuasive.

To begin, Dragulescu now admits that the Orok Reprimand was
not actually used or directly referenced in any of the various
recommendations for her non-renewal.

Instead,

Dragulescu's argument

(Tr. of SJ Hr'g 36:8-38:6).

rests on the premise that the

17

various

actors

all memories

involved

of

the

were

events

required

that

to

forget

led to the

This view has no support in the law,

and

disregard

Orok Reprimand.

Id.

and Dragulescu has offered

no precedent suggesting otherwise. Moreover,

to the extent that

the Orok Reprimand actually was relied upon in the decision not
to renew her contract,

action.

Instead,

it would still not constitute an adverse

it would simply "become[]

relevant evidence" in

assessing the ''true adverse employment action
demotion, etc.)."
(D.

Md.

(e.g.,

discharge,

Jeffers v. Thompson, 264 F. Supp. 2d 314, 330

2003).

In any event,

the evidence in the record shows that the

Orok Reprimand was never placed in Dragulescu's file, but rather
was

relegated

used.

to

Moreover,

some

general

repository

where

Dragulescu admits that it was

it

was

never

neither included

nor directly referenced in any of the materials used by Perkins
in making the decision not to renew Dragulescu's contract.

of

SJ

Hr'g

36:8-38:6).

Under

such

circumstances,

Reprimand" was just that: a reprimand, "not [a]

the

(Tr.

'Orok

signpost [] on a

predetermined path to a true adverse employment action." Adams,
789 F.3d at 429. Thus,

it cannot therefore be used to support an

independent

discrimination

claim

of

under

judgment for VUU will therefore be awarded.

18

Title

VII.

Summary

B.

Dragulescu's
assess.

"The Non-Renewal Decision"

claim

While

she

discrimination,

VUU

non-discriminatory

specifically,
and

her

Thus,

has

has

non-renewal

proven

produced

reason

her

is

prima

evidence

for

more

the

difficult

facie

of

to
of

legitimate

a

case

and

non-renewal

decision:

Dragulescu's continuous difficulties with students

refusal

the

of

to

question

follow

becomes

the

instructions

whether

of

her

Dragulescu

superiors.

has

presented

sufficient evidence to create a triable issue as to whether "the

neutral

reasons

offered

by

the

employer

'were

not

its

true

reasons, but were a pretext for discrimination.'" Merritt v. Old
Dominion Freight Line,

Inc.,

Cognizant

contested

that

the

601 F.3d 289,

''facts

294

and

{4th Cir. 2010).

all

justifiable

inferences arising therefrom" must be construed ''in the light
most favorable" to Dragulescu at this stage, the Court concludes
that a triable issue exists as to whether Orok's recommendations

were

motivated

by

racial

animus.

Foster,

787

F.3d

at

246.

Summary judgment on Dragulescu's claim of discriminatory nonrenewal must therefore be denied.

VUU asserts two primary arguments in support of its motion

for

summary

judgment on

and foremost,

Dragulescu's non-renewal

claim.

First

VUU argues that Dragulescu has failed to produce

sufficient

evidence

of

pretext

(Def. Mot.

26-28). Alternatively but relatedly, VUU argues that

19

to

survive

summary

judgment.

any evidence of racial animus on the part of Orok is irrelevant
because

''two

layers

of

between Orok and VUU's

decision-making

authority

non-renewal decision."

.

.

at

.

rested

27.

Neither

the

Supreme

to

''resist

argument can prevail at this stage of the litigation.
Although
Court

and

VUU

the

focuses

Fourth

on evidence of pretext,

Circuit

have

cautioned

courts

the temptation to become so entwined in the intricacies of the
McDonnell Douglas proof scheme that they forget that the scheme

exists

solely

to

facilitate

determination

of

question of discrimination vel non." Merritt,
(quoting
other

the

ultimate

601 F.3d at 295

Proud v. Stone, 945 F.2d 796, 798 {4th Cir.1991)). In

words,

the

pretext

inquiry

is

not

viewed

in

a

vacuum;

instead, it must be assessed with the understanding that "[t]he

ultimate

involving

question

a

claim

in

every

of

employment

disparate

discrimination

treatment

is

whether

case

the

plaintiff was the victim of intentional discrimination." Reeves
V.

Sanderson Plumbing Prods.,

Inc.,

530 U.S.

133,

153

(2000).

Viewing the evidence in this light, Dragulescu has demonstrated
that there is a triable issue of discrimination for the jury.

On the ultimate question of intentional discrimination, the
evidence

Dragulescu
suggestive

in

this

case

is

offers

only

a

of

discrimination,

not

particularly

handful
and

of

some of

discrete
the

insufficient to show animus as a matter of law.

20

overwhelming.

incidents

incidents

are

For example,

the

only evidence

Dragulescu offers

Shannan Wilson is a

nearly

a

""^tweet,''

fully
in

single post on Twitter

year

which

SEX

OFFENDER!

before

Wilson

WITH OUR CHILDREN AND

A

declared

DON'T

words,

FACE

is

non-renewal.

^'WHITE

JAIL

WOMEN

That

HAVE

SEX

TIME NOR REGISTER AS

categorically

insufficient

challenged

and it

to

employment

is temporarily disconnected

action

in

this

case.

In

other

it is precisely the type of evidence the Fourth Circuit

has dismissed as evidence of racial discrimination.

V.

of

It does not mention Dragulescu or relate in

any way to her employment,
the

EVEN

that

on the part

from April of 2015,

Dragulescu's

BLASPHEMY!",

show racial animus.

from

to show animus

Harbour

Recreation

Club,

180

F.3d

598,

608

See Brinkley

(4th

Cir.

1999)

(''[T]o prove discriminatory animus, the derogatory remark cannot

be

stray

or

isolated

and

plaintiff

relies

question,

they cannot be evidence of

also Strauqhn v.

Cir. 2001)

.

were

Mu]nless

related

to

Delta Air Lines,

the

the

remarks

upon

employment

which

decision

[discrimination].');

Inc.,

250

F.3d 23,

36

in
see
{1st

(noting that while ''stray remarks may be material . .

their prohativeness is circumscribed if they were made in a

situation

temporally

remote

from

the

date

of

the

employment

decision, or . . . were not related to the employment decision in

question, or were

made

by

nondecisionmakers.")

(emphasis

in

original). The Wilson tweet fails all these tests. Consequently,

21

Dragulescu's contention that Wilson also harbored animus cannot

be credited in evaluating VUU's motion.^
By

contrast,

the

sufficient to create a

least,
Orok

evidence

offered

against

triable issue for the

jury.

Orok

is

At the very

Dragulescu has offered indirect evidence suggesting that
views

events

a

importantly,
renewal

at

could

jury

VUU

recommendation

evidence

that

increase

Orok:

the

ratio

was

(1)

of

through

a

reasonably
racially

find

a

lens.

to

non-

based

search

professors

More

Orok's

that

motivated

reconstituted

black

racial

on

committee

white

the

committee

lack

handling

of

^^black

face[s]"

Dragulescu's

on

the

grievance,

Faculty

and

to

professors

(omitting Dragulescu from the committee in the process),
lamented

the

(3)

(2)

Senate

called

Dragulescu a 'Vhite trailer trash whore" to one of Dragulescu's
co-workers

(Hinton)

within

a

week

of

issuing

her

a

formal

reprimand and recommending her nonrenewal in 2015.
Similarly,

a jury could surmise pretext from proof that:

(1) the Faculty Senate specifically declared that Dragulescu had
not been insubordinate (as claimed in the Orok Reprimand),

(2)

the Faculty Senate found that Wilson's evaluation of Dragulescu

One might still legitimately ask how an educated person might
make such a strange statement. One might even consider such a
comment as evincing a bent to view matters in general through
the lens of race. But, it cannot be considered as evidence of
racial animus in the non-renewal decisional process because it
was neither tethered to that process nor shown to be in any way
connected to Dragulescu.

22

was

defective

upward);

(3)

different

leading

(and

that

reasons

up

to

specifically

that

Orok
for

decision

solicited

behest. Taken together,

the

and

that

Orok's

Akassi

recommending

to

let

was

gave

later

two

go;

and

from

revised

significantly

non-renewal

her

complaints

in

(4)

the

weeks

that

Wilson

at

Orok's

students

Dragulescu has produced enough evidence

to withstand summary judgment,
find

evaluation

because a

recommendation,

on

jury reasonably could

which

Perkins

acted,

was

racially motivated.

Unlike

the Wilson tweet,

above

relates

race.

Moreover,

''white

the evidence

directly to Dragulescu,

of animus

recounted

her employment,

and her

at least with respect to the ''black face" and

trailer

trash

whore''

comments,

those

statements

are

sufficiently racially charged that a jury could interpret them
as

evidence of

racial

animus.® And,

while VUU

has

repeatedly

insisted that "Hinton's testimony is inherently incredible" and
should not

be

considered,

"[c]redibility determinations

.

.

.

are jury functions, not those of a judge." Anderson v. Liberty
Lobby,

Inc.,

477

U.S.

242,

255

(1986)

Thus,

while

reasonable

minds might well view Hinton's assertions with a skeptical eye,
at least "[i]n the summary judgment context,

a court is simply

not empowered to make such determinations." In re French,
® By contrast,

499

the fact that Orok suggested to Dragulescu that

she "did not understand black culture" during the student-paper

incident is not, even if proven, evidence of racial animus.
23

F.3d 345,

354

view

facts

all

(4th Cir.
and

2007).

Instead,

reasonable

the Court is required to

inferences

in

the

light

most

favorable to Dragulescu. Applying that principle,

Dragulescu has

shown

the

enough

question"

to

of

warrant

a

''whether

jury

the

decision

plaintiff

intentional discrimination." Reeves,

on

was

530 U.S.

the

''ultimate

victim

of

at 153.

VUU's second argument-that any racial animus in the record

is

somehow

authority

purged

.

.

.

by

the

"two

layers

of

decision-making

between Orok and VUU's non-renewal decisions-

must also fail at this stage.

(Def.

Mot.

27).

While it is true

that Dragulescu does not allege that either Hossain or Perkins
(the two decision-makers above Orok) harbored any animus towards

her,

this

does

not

preclude

liability

under

Title

VII.

Dragulescu could still prevail under the so-called "cat's paw"
theory of liability, which "imposes liability on an employer for
the

discriminatory

motivations

'principally responsible'
even

if

that

supervisor

Belyakov v. Med. Sci.
Md.

of

a

supervisor

who

was

for an adverse employment decision,
was

not

the

& Computing, 86 F.

formal

decisionmaker.

Supp. 3d 430,

443

(D.

2015).

As the
context,

Supreme

where

[discriminatory]
cause

an

"a

Court

recently explained

supervisor

performs

an

in

act

an

analogous

motivated

by

animus that is intended by the supervisor to

adverse

employment

action,

24

and

if

that

act

is

a

proximate

cause

of

the

ultimate

employment

action,

then

the

employer is liable under [the Act]." Staub v. Proctor Hosp., 562
U.S.

411,

422

(2011)

to Title VII) .

(1)

(interpreting USERRA, an act ''very similar"
Thus,

if a

jury were

to conclude both that

Orok's recommendations were racially motivated and

the recommendations were a proximate cause of Perkins'

(2)

that

decision

not to renew Dragulescu's contract, liability would attach under
Title VII.

Here,

did

conduct

not

the evidence in the record shows that Perkins
his

Dragulescu's conduct
determining

not

to

own

independent

(or that he
renew

her

investigation

even spoke with her)

contract.

To the

into

before

contrary,

the

record shows that he merely relied upon the recommendations of
his subordinates,

renew

including Orok,

Dragulescu's

fall

in

summary

contract.

Dragulescu's
judgment

(as,

favor,
at

At

in making the decision not to

this

this
the

is

very

stage,

where

sufficient
least,

it

inferences

to

survive

creates

an

additional material fact in dispute).

In sum, genuine issues of material fact exist as to whether
Orok's

and

recommendations

those

facts,

if

for

non-renewal were motivated by race,

proved

by

Dragulescu,

could

render

VUU

liable under Title VII. Thus, VUU's request for summary judgment

on the issue of Dragulescu's non-renewal must be denied.

25

IV.

For

the

reasons

set

UNION UNIVERSITY'S MOTION

CONCLUSION

forth

above,

the

DEFENDANT

FOR SUMMARY JUDGMENT

(ECF No.

VIRGINIA

70)

been granted in part and denied in part.

It

is

so ORDERED.

/s/

Hut

Robert E. Payne
Senior United States District Judge

Richmond, Virginia

Date: May Jl., 2017

26

has