Dragulescu v. Virginia Union University et al

Filing 159

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

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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

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