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Davis v. Rao

United States District Court, E.D. Virginia, Richmond Division

November 12, 2013

BONNIE NEWMAN DAVIS, Plaintiff,
v.
MICHAEL RAO, et al., Defendants

For Bonnie Newman Davis, Plaintiff: Scott Gregory Crowley, LEAD ATTORNEY, Crowley & Crowley, Glen Allen, VA.

For Michael Rao, PhD, individually, L. Terry Oggel, PhD., individually, Fred M. Hawkridge, PhD., individually, Beverly J. Warren, PhD., individually, Cynthia K. Kirkwood, Pharm.D., individually, Defendants: Sydney Edmund Rab, LEAD ATTORNEY, Office of the Attorney General, Richmond, VA.

OPINION

Page 684

MEMORANDUM OPINION

James R. Spencer, United States District Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court GRANTS Defendants' Motion.

Page 685

I. FACTUAL AND PROCEDURAL BACKGROUND[1]

In the fall of 2004, Plaintiff Bonnie Newman Davis (" Ms. Davis" or " Plaintiff" ) began her full-time employment with Virginia Commonwealth University (" VCU" ) as a visiting instructor in the School of Mass. Communications. During that academic year, Plaintiff was invited to become a contract-renewable collateral associate professor beginning in the 2005-2006 academic year. A plan was developed whereby Plaintiff would be converted to a professional-track, tenure-eligible appointment during the 2007-2008 academic year. However, due to miscommunications, she was converted to a tenure-eligible appointment during the 2008-2009 academic year. In the 2010-2011 academic year, Plaintiff applied for tenure.

Under the VCU School of Mass. Communications Promotion and Tenure Guidelines and the Promotion and Tenure Review Guidelines for the College of Humanities and Sciences (collectively " Promotion and Tenure Guidelines" or " Guidelines" ), the University considers three primary criteria for tenure: teaching, scholarship, and service to the University. To be granted tenure at the rank of associate professor, the Guidelines require that a candidate be rated: (1) excellent in the area of either teaching or scholarship and at least a rating of very good in the other area; and (2) satisfactory or above in the area of service.

A candidate's application is first reviewed by a Peer Tenure Review Committee (" Peer Review Committee" ). The application is next considered by the Director or Department Chair of the School of Mass. Communications. Afterwards, the application is reviewed by the College of Humanities and Sciences Promotion and Tenure Review Committee (" Promotion and Tenure Review Committee" ). Next, the application is reviewed by both the Dean of the College of Humanities and Sciences and the Provost--Vice President for Academic Affairs. Finally, a denial of tenure is appealable to the University Promotion and Tenure Review Committee (" Appeals Committee" ) and then to the University President.

During Plaintiff's application process she received conflicting reviews and recommendations. The Peer Review Committee unanimously rated Plaintiff as excellent in the area of scholarship and unanimously rated her as very good in the area of teaching. Regarding the area of service, one committee member rated Plaintiff as excellent and four members rated her as very good. The Peer Review Committee unanimously recommended that Plaintiff be granted tenure and promoted. The application was then forwarded to Dr. L. Terry Oggel, the Interim Director of the School of Mass. Communications, for review.

Dr. Oggel rated Plaintiff as excellent in the area of scholarship and very good in the area of service. However, Dr. Oggel rated Plaintiff as only satisfactory in the area of teaching. Dr. Oggel stated that the Peer Review Committee minimized and disregarded the low evaluations by VCU students in Plaintiff's classes. Further, he argued that low numerical marks, strongly critical written student comments, a third-year committee report, and director's annual reports indicated serious and recurring difficulties in the area of teaching. Based on this rating, Dr. Oggel recommended that Plaintiff be denied tenure.

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Plaintiff's actual annual teaching evaluations reveal that she was rated as satisfactory in two years but also rated as good or very good in four other years. A review of all the student evaluations reveals that, while some students rated Ms. Davis harshly, many others rated her as having been among the best teachers they had encountered at VCU. Dr. Oggel never took the opportunity to personally observe Plaintiff's classroom teaching nor did he include in his report that Plaintiff met 13 of 17 guidelines for teaching established by the Promotion and Tenure Guidelines.

Next, the Promotion and Tenure Review Committee reviewed Plaintiff's application, rating Plaintiff as satisfactory in the area of teaching and describing her teaching evaluations as mediocre at best. The Promotion and Tenure Review Committee's report gave great emphasis to the negative student evaluations with only passing reference to positive student evaluations. Plaintiff also received six votes of very good and one vote of excellent in the area of scholarship. The Promotion and Tenure Review Committee unanimously voted against recommending Plaintiff's promotion to tenure. The Promotion and Tenure Review Committee's recommendation was then forwarded for administrative review.

Interim Dean of the College of Humanities, Fred M. Hawkridge, agreed with the findings and recommendations of the Promotion and Tenure Review Committee and also recommended against granting Plaintiff tenure. Following this recommendation, Plaintiff's application was forwarded to Beverly J. Warren, Interim Provost and Vice President for Academic Affairs for VCU. On reviewing the record, Dr. Warren concluded that the Director and the Promotion and Tenure Review Committee accurately assessed Plaintiff's teaching, scholarship, and service record and that there were no procedural or substantive reasons to overturn their recommendations against awarding tenure.

On May 12, 2011, Plaintiff appealed the denial of her tenure to the Appeals Committee. On June 21, 2011, the Appeals Committee, chaired by Dr. Cynthia J. Kirkwood, advised that the Committee did not find sufficient evidence of procedural or substantive errors to grant Plaintiff's appeal. The Committee then recommended a denial of Plaintiff's appeal and refused to grant a full hearing. Plaintiff then submitted a second appeal to the President of VCU, Michael Rao. President Rao subsequently did not respond--in violation of VCU tenure policies and procedures. After being denied tenure, Plaintiff secured employment as a faculty member at North Carolina A& T State University.

Plaintiff filed her Complaint on April 17, 2013. In Count I, Plaintiff alleges that Defendant L. Terry Oggel deprived her of due process, under color of state law, in violation of 42 U.S.C. § 1983, by arbitrarily rating Plaintiff as satisfactory in the area of teaching without having observed Ms. Davis's teaching, and by refusing to accept the objective evaluations of the former director of the School of Mass. Communications.

In Count II, Plaintiff alleges that Defendant Fred M. Hawkridge deprived her of due process, under color of state law, in violation of 42 U.S.C. § 1983, by refusing to accept the objective evaluations of the former director of the School of Mass. Communications, arbitrarily rating Plaintiff as satisfactory in the area of teaching, and rating her scholarship as very good rather than excellent.

In Count III, Plaintiff alleges that Defendant Beverly J. Warren deprived her of due process, under color of state law, in violation of 42 U.S.C. § 1983, by arbitrarily refusing to properly consider Plaintiff's

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record of teaching, scholarship, and service, and also by failing to recommend her for tenure in light of positive evaluations from her former school director and peers.

In Count IV, Plaintiff alleges that Defendant Dr. Cynthia K. Kirkwood deprived her of due process, under color of state law, in violation of 42 U.S.C. § 1983, by arbitrarily refusing to properly consider Plaintiff's record of teaching, scholarship, and service, and also by failing to recommend her for tenure in light of positive evaluations from her former school director and peers.

In Count V, Plaintiff alleges that Defendant Michael Rao deprived her of due process, under color of state law, in violation of 42 U.S.C. ยง 1983, by ...


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