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Zeng v. Marshall University

United States District Court, S.D. West Virginia, Huntington Division

March 21, 2018

WEI-PING ZENG, Plaintiff,



         Proceeding pro se, Wei-Ping Zeng, Ph.D. (“Plaintiff”), commenced this suit alleging that Marshal University (“MU”[1] or “Defendant”) engaged in unlawful employment practices that resulted in Plaintiff's discharge from Marshall University School of Medicine (“MUSOM”). Compl., ECF No. 2. Mr. Zeng claims that, in addition to being denied tenure based upon ethnic discrimination, he was retaliated against, and fired, because he raised questions regarding the denial of tenure. Compl., at 1. Per standing order, the Court referred this case to Magistrate Judge Eifert for Proposed Findings and Recommendations (“PF&R”). Standing Order, ECF No. 3.

         Since that time, Magistrate Judge Eifert has issued two sets of PF&Rs, one on November 6, 2017 and one on December 1, 2017. In the first PF&R (“November PF&R”), Magistrate Judge Eifert addressed Defendant's Motion to Dismiss, and recommended that this Court grant, in part, and deny, in part, that motion. Nov. PF&R, ECF No. 36, at 2. In the second PF&R (“December PF&R”), Magistrate Judge Eifert recommended that this Court deny Plaintiff's Motion for Preliminary Injunction, with additional instructions to the parties. Dec. PF&R, ECF No. 47, at 1.

         The parties have filed various objections to both of Magistrate Judge Eifert's PF&Rs. On November 20, 2017, Plaintiff and Defendant both respectively filed Objections to the November PF&R. Pl.'s Obj. to Nov. PF&R, ECF No. 44; Def.'s Obj. to Nov. PF&R, ECF No. 43. Additionally, Plaintiff filed Objections to the December PF&R on December 14, 2017. Pl.'s Obj. to Dec. PF&R, ECF No. 48. Reviewing the objections of both parties under a de novo review, the Court does not agree with them.

         As explained below, the Court ADOPTS Magistrate Judge Eifert's findings and recommendations in both PF&Rs (ECF No. 36 & 47), consistent with this Memorandum Opinion and Order. Accordingly, the Court GRANTS, IN PART, and DENIES, IN PART, Defendant's Motion to Dismiss (ECF No. 17), and DENIES Plaintiff's Motion for Preliminary Injunction (ECF No. 32).

         I. Background

         Plaintiff is a naturalized United States citizen, originally hailing for China. Compl., at 1. On September 1, 2009, Plaintiff began his employment with MUSOM as an associate professor in the Department of Biochemistry and Microbiology. Id. Plaintiff understood that, by taking this position, he would eventually be considered for a tenure position, or on “a tenure track.” Id. at 5. Generally, in order to be considered for tenure, a professor must demonstrate proficiency in teaching, achievement in research and publishing, and involvement in service to the University. Id. at 5-9. MUSOM maintains a policy that each appointed faculty member should receive the requirements and guidelines for achieving tenure, including the department specific requirements. Id. at 7. Notwithstanding this policy of advance notice, MUSOM did not provide Plaintiff with the tenure requirements or guidelines. Id. at 7. Plaintiff alleges that this is the first of irregular or unlawful practices directed at his employment with MU. Id.

         Indeed, even before the submission of his tenure application, Plaintiff claims Defendant began treating him differently. In 2012, three years after he began his employment with MUSOM, Defendant's Departmental Promotion and Tenure Committee (“DPTC”) conducted a mid-tenure review of Plaintiff. Id. at 8. During this review, Plaintiff received notification from the Committee that he must obtain external research funding in order to be considered for tenure. Id. Prior to that mid-tenure review, Plaintiff had never been told that a tenure applicant had to seek external research funding. Moreover, Plaintiff took exception to this requirement that he believed was unfair and abnormal. Id. Plaintiff claims that other professors who successfully achieved tenure positions either did not have to acquire external funding, or were given the benefit of preexisting, earmarked funding to satisfy the funding requirement. Id.

         In addition to the imposition of allegedly post hoc funding requirement, Plaintiff claims he experienced various instances of discriminatory treatment, taking a variety of forms. Plaintiff was allegedly denied the opportunities to take certain teaching assignments, meet visiting scholars, and have access to data and research support. Id. at 9. Further, Plaintiff claims that higher-ups in his department had already decided that Plaintiff would not receive a tenure recommendation, even before Plaintiff had submitted his tenure application. Id.

         Finally, in October 2015, Plaintiff submitted his tenure application to the DPTC. Id. at 5. At that point, Plaintiff apparently exceeded departmental standards in nearly all of his primary employment responsibilities and tenure requirement categories. Id. at 5-9. But according to Plaintiff, the DPTC cited incorrect information regarding almost every aspect of Plaintiff's qualifications for meeting tenure requirements. Id.

         After the submission of his application, Plaintiff received signals that he would not be awarded tenure. On February 8, 2016, the Dean of MUSOM sent Plaintiff a letter indicating that Plaintiff would not be recommended for tenure. Id. at 10. The letter suggested that Plaintiff meet with the dean to discuss this decision. Id.

         During the February 22, 2016 meeting between Plaintiff and the MUSOM Dean, the Dean apparently offered Plaintiff a conciliatory deal. Plaintiff's current employment contract with MU was set to expire on August 31, 2016. Id. However, Plaintiff and a former Chair and Associate Dean had made an agreement whereby Plaintiff's employment contract would not expire until February 2017. Id. In this February 22, 2016 meeting, the Dean offered to honor the February 2017 contract expiration date if Plaintiff agreed not to challenge the tenure decision. Id. The Dean even offered that that expiration date might be extended to June 2017. However, if Plaintiff did challenge the tenure determination, the Dean supposedly informed Plaintiff that his employment with MU would end on June 30, 2016, prior to the expiration of his then-current contract. Id.

         After unsuccessfully attempting to resolve the situation with other members of MU's administration, on March 21, 2016, Plaintiff filled out an Equal Employment Opportunity Commission (“EEOC”) questionnaire regarding employment discrimination and retaliation. Id. Roughly a month thereafter, MU's President made the final decision denying Plaintiff's tenure application. Id. In an effort to amicably resolve what appeared to be an embittered relationship, MU's associate general counsel reiterated the terms of offer made by the Dean in a May 5, 2016 email. Id. at 10-11. Plaintiff, however, did not take the deal.

         Continuing to pursue remedial options to address what he believed was disparate treatment, Plaintiff filed a grievance with the West Virginia Public Employees Grievance Board on May 20, 2016. Id. at 11. And on June 30, 2016, Defendant terminated Plaintiff's employment relationship with the institution. Id.

         Despite MU's rationale that he was denied tenure because of the failure to secure external research funding, Plaintiff claims that MU denied his tenure application because of his race and national origin. See generally Id. Plaintiff claims that Asian tenure applicants were treated differently from their non-Asian counterparts. Id. at 8-11. In addition to facing additional, non-standard requirements-such as the external funding requirement-Plaintiff alleges that Asian tenure applicants had to outperform their non-Asian counterparts in order to receive a tenure award. Id. Reflecting the difficulty of this task, Plaintiff asserts that the only two Asian professors that received recommendations for tenure were exceptionally successful faculty members, winning awards, and ranking in the top 5-10% of the MUSOM faculty. Id. at 9.

         Plaintiff contrasts these heightened standards for applications by Asian professors with the acceptable, tenure-worthy applications of two Caucasian MUSOM professors. Id. 5-11. He claims that the two Caucasian professors carried comparable class loads to Plaintiff, but received tenure despite working at MUSOM for fewer years, having lower evaluation scores and fewer publications in less recognized journals, and achieving less national and professional success than Plaintiff. Id. Adding insult to injury, Plaintiff claims that these two professors were not only awarded tenure, but were paid more than Plaintiff. Id.

         On May 23, 2017, Plaintiff filed a complaint with this Court, asserting various claims stemming from the allegedly unlawful employment practices of MU. In Count 1, Plaintiff claims Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq, by maintaining discriminatory employment practices, including denying him equal pay and a tenure award, which was improperly motivated by discrimination on the basis of national origin (Chinese) and race (Asian). Id. at 11. In Count 2, Plaintiff alleges that Defendant retaliated against him in violation of Title VII and 42 U.S.C § 1981, by prematurely terminating his employment contract because Plaintiff refused to abandon his challenge of MU's employment practices. Id. Count 3 includes Plaintiff's contention that Defendant unlawfully discriminated against him due the DPTC's distorting of Plaintiff's tenure application, intentional downgrading his accomplishments, and denying him a tenure recommendation, which constitutes a “grievance” under, and violates, West Virginia Code § 6C-2-2(i). Finally, in Count 4, Plaintiff asserts a claim for retaliation under West Virginia Code § 6C-1-1, et seq., the West Virginia Whistle-blower Law (“WVWBL”).

         Roughly three months after the filing of the complaint, Defendant filed a Motion to Dismiss. Def.'s Mot. to Dismiss, ECF No. 17. In the motion, Defendant puts forth multiple reasons why the Court should dismiss Plaintiff's claims. First, Defendant claims that Plaintiff failed to exhaust his available administrative remedies, depriving this Court of jurisdiction to hear this matter. Id. at 1. Second, Defendant asserts that MU enjoys the sovereign immunity protections afforded to the States under the Eleventh Amendment to the United States Constitution. Id. Third, Defendant argues that even if the preceding two arguments fail, Plaintiff's complaint fails to state claims for which relief can be granted. Id.

         In the November PF&R, Magistrate Judge Eifert recommended that this Court grant, in part, Defendant's Motion to Dismiss. Agreeing with Defendant and relying upon the Eleventh Amendment, Magistrate Judge Eifert found that MU was entitled to sovereign immunity with respect to both Plaintiff's 42 U.S.C. § 1981 claim and his claim under the WVWBL. Nov. PF&R, at 18-19, 21-23. Additionally, she found that Plaintiff had failed to state a claim under Article 2 of Chapter 6C of the West Virginia Code, entitled the West Virginia Public Employees Grievance Procedure (“WVPEGP”). Id. at 19-20. Magistrate Judge Eifert concluded that the West Virginia Code did not create a private cause of action for a claim of discrimination under WVPEGP. Id. In reaching these findings, she recommended that this Court dismiss Plaintiff's § 1981 claim alleged in Count 2 of his complaint, in addition to dismissing the entirety of Counts 3 and 4. Id. at 23.

         But Magistrate Judge Eifert also recommended that the Court deny, in part, Defendant's Motion to Dismiss, allowing two of Plaintiff's claims to continue. Magistrate Judge Eifert found that, not only had Plaintiff exhausted his administrative remedies for the Title VII claims, but she also concluded that Defendant was not entitled to sovereign immunity for those Title VII claims. Id. at 11-16. Magistrate Judge Eifert found that Congress had expressly abrogated Eleventh Amendment, and therefore MU's, sovereign immunity, in passing Title VII. Id. Finally, reviewing the sufficiency of the pleading, Magistrate Judge Eifert found that Plaintiff had made a satisfactory showing, and stated facially plausible Title VII claims for discrimination and retaliation. Id. at 16-19.

         Prior to the issuance of the November PF&R, citing concern for his biological samples and reagents, as well as other supplies and lab equipment, Plaintiff filed a Motion for Preliminary Injunction. Pl.'s Mot. for Prelim. Inj., ECF No. 32. In that Motion, Plaintiff asserts that Defendant had threatened to discard or destroy his valuable biological and experimental items and samples that constitutes a large portion of Plaintiff's academic work. Id. at 1. Additionally, Plaintiff contends that MU had denied him access to one of their scientific facilities that is normally made available to outside researchers. Pl.'s Mem. in Supp. of the Mot. for Prelim. Inj., ECF No. 33, at 4. Plaintiff requests that the Court issue a preliminary injunction, preventing MU from discarding Plaintiff's materials, and preventing MU from denying Plaintiff access to the lab, his materials, and the noted scientific facility. However, Magistrate Judge Eifert determined that these contentions were insufficient.

         In the December PF&R, Magistrate Judge Eifert recommended the denial of Plaintiff's Motion for Preliminary Injunction because Plaintiff had failed to show that he was likely to suffer irreparable harm upon the denial of the injunction. Dec. PF&R, at 6-7. Citing the availability of private storage facilities, Magistrate Judge Eifert concluded that although Plaintiff might want to avoid the expense of taking his samples and materials elsewhere, this aversion to cost would not substantiate the strong showing necessary to justify an injunction. Id. That Plaintiff had options for safe storage of his biological and experimental items defeated his claim of irreparable harm. Id. However, Magistrate Judge Eifert did provide that Plaintiff should have a reasonable time, not to exceed thirty days, to retrieve his property from MU. Id. at 9. Again finding Plaintiff's showing on the irreparable harm element insufficient, Magistrate Judge Eifert also recommended the denial of Plaintiff's request to enjoin MU from preventing Plaintiff from accessing certain of its scientific facilities. Id. at 7-9.

         II. Standard of Review

         This Court conducts a de novo review of those portions of the magistrate judge's proposed findings and recommendations to which a party objects. 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.”). The Court, however, is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendations to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).[2]

         With regard to the November PF&R, analyzing Defendant's Motion to Dismiss, both parties maintain various objections. Plaintiff has submitted three objections: (1) Plaintiff claims that typographical confusion resulting from his choice of font resulted in the Magistrate Judge misconstruing the code on which Plaintiff's argument relied; (2) that MU has no sovereign immunity from suit under the WVWBL; and (3) Federal and West Virginia law create additional, applicable causes of action, which Plaintiff had not included in his current complaint, but wishes add to an amended complaint at some point. Pl.'s Obj. to Nov. PF&R, at 1-5. Defendant also advances three objections, but they generally boil down to a central premise: the Magistrate Judge erred by finding that Plaintiff does not have to exhaust his ongoing administrative proceedings before the PEGB. See generally Def.'s Obj. to Nov. PF&R.

         Only Plaintiff filed objections to the December PF&R, recommending the denial of the Motion for Preliminary Injunction. Plaintiff objected on four bases: (1) the Magistrate Judge did not take into account that Defendant created the adverse relationship between the parties; (2) that Defendant did not show likelihood of harm; (3) that Magistrate Judge erred in her determination regarding the showing of irreparable harm; and (4) that the Magistrate Judge incorrectly determined that 42 U.S.C. § 2000a, prohibiting discrimination in places of public accommodation, did not provide a basis of relief in this instance. See generally Pl.'s Obj. to Dec. PF&R Having explained the lengthy context of this matter, the Court will address each of the motions, and their respective PF&Rs, in turn.

         III. Discussion

         A. Defendant's Motion to Dismiss and the November PF&R

         Having reviewed, de novo, the objections, the PF&R, and the relevant facts and law, the Court agrees with the conclusions of the Magistrate Judge and will accept the recommendations contained within the November PF&R. The Court rejects the parties' objections. The Court will dispense with Plaintiff's objections first, then the Court will confront Defendant's objections.

         a. Standard of Review

         Although neither party challenges Magistrate Judge Eifert's statement of the relevant standards under which to analyze Defendant's Motion to Dismiss, the Court will briefly restate them here in the interest of clarity.

         Defendant's first moves to dismiss Plaintiff's claims based upon a lack of exhaustion and Eleventh Amendment sovereign immunity. If well-taken, these grounds would preclude this Court's jurisdiction over this matter, constituting a motion under Rule 12(b)(1).[3]See Hentosh v. Old Dominion Univ., 767 F.3d 413, 417 (4th Cir. 2014) (describing the exhaustion requirement of Title VII as jurisdictional); Coleman v. Md. Ct. App., 626 F.3d 187, 190, 194 (4th Cir. 2010) (reviewing and affirming, in relevant part, a district court's granting of a 12(b)(1) motion to dismiss due to Eleventh Amendment sovereign immunity); see also D.T.M ex rel. McCartney v. Cansler, 382 Fed.Appx. 334, 336 (4th Cir. 2010) (unpub.) (referring to Eleventh Amendment sovereign immunity as a concern of subject-matter jurisdiction under 12(b)(1)); Andrews v. Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000) (“Our cases have been unclear on whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject-matter jurisdiction under Rule ...

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