United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
pro se, Wei-Ping Zeng, Ph.D.
(“Plaintiff”), commenced this suit alleging that
Marshal University (“MU” 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.
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.
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.
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).
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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
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.
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.
Standard of Review
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).
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.
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,
Defendant's Motion to Dismiss and the November
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.
Standard of Review
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.
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).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 ...