REPORT AND RECOMMENDATION
LAWRENCE R. LEONARD, Magistrate Judge.
This matter was referred for disposition to the undersigned United States Magistrate Judge ("undersigned") pursuant to a July 9, 2013 Referral Order from the Chief United States District Judge, ECF No. 23, in accordance with 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), and E.D. Va. Local Civil Rule 72. Plaintiff Anand Shetty ("Dr. Shetty") brings this complaint against his previous employer, Defendant Hampton University ("the University" or "the employer"), and alleges employment discrimination based on his national origin and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"). and violations of his federal rights under the Family and Medical Leave Act, 29 U.S.C. § 2600 et seq. ("FMLA"). The University tiled a motion for summary judgment, ECF No. 19 ("the Motion"), to which Dr. Shetty filed an opposition, ECF No. 22. On July 17, 2013, the undersigned held a hearing on the Motion for Summary Judgment and on the University's Motion for Leave to file an Amended Answer. ECF No. 17, which Dr. Shetty also opposes, ECF No. 18. The undersigned has fully considered the briefs filed in support of, and in opposition to, each motion, and the oral argument presented during the hearing. For the reasons discussed more fully below, the undersigned RECOMMENDS that the University's Motion for Summary Judgment, ECF No. 19, be GRANTED, and that the University's Motion for Leave to File an Amended Answer, ECF No. 17, be DISMISSED as moot.
I. UNDISPUTED MATERIAL FACTS
Dr. Shetty is of East Indian national origin. ECF Nos. 4, ¶ 8, 16 ¶ 1; 201 ¶ 1. He holds a doctorate degree in physical education specializing in kinesiology, biomechanics, and exercise physiology. ECF Nos. 16 ¶ 12; 201 ¶ 3 (citing Dr. Shetty's Deposition I at 10-11 (May 13, 2013) (hereinafter "Shetty Dep. I")). In 1998, Dr. Shetty was hired by the University as a professor in the Physical Therapy Department ("the Department"). ECF Nos. 16 ¶ 2; 20 ¶ 8. He was granted tenure at the University in 2004. ECF No. 16 ¶ 3; Am. Compl. ¶ 15. For reasons not germane to this matter, the Department was "temporarily closed" and stopped accepting new students on or around 2005, but was still accredited by the Commission on Accreditation and Physical Therapy Education ("CAPTE") and therefore continued to teach and graduate students already enrolled in the Department until Spring of 2008, when the last class graduated. ECF Nos. 16 ¶ 5; 20 ¶ 11; Shetty Dep. I at 41-44. The Department started accepting new students again in the Fall of 2009. Shetty Dep I. at 44. By this point, in January of 2009, the University hired Dr. Bernadette Williams, an African-American woman, as the Chair of the Department. ECF Nos. 16 ¶ 5; 20 ¶ 20. Dr. Shetty's allegations are based, in large part, on interactions with Dr. Williams, and the timeline of events, as asserted in the briefs and Amended Complaint, while less than clear, can be chronologically summarized as follows.
Dr. Shetty taught Research I and II, Kinesiology, and Anatomy in the Department for the majority of his employment at the University before Dr. Williams was hired. ECF Nos. 4 ¶¶ 38-39; 20 ¶¶ 43-44; Williams Dep. 114-16. In late summer or fall of 2009, Dr. Williams instructed Dr. Shetty to order the cadavers for his Anatomy course. Around the same time, in front of other faculty members, Dr. Williams accused Dr. Shetty of failing to attend a mandatory event, Williams Dep. at 37-46, but his presence at the event was later confirmed by other faculty members. On September 30, 2009, Dr. Williams denied Dr. Shetty's request to attend the physical therapy recruitment exposition at James Madison University ("JMU"). ECF Nos. 16 ¶ 8; 20 ¶ 35. Sometime between September 20, 2009 and October 19, 2009, Dr. Shetty met with Provost, Dr. Pamela Hammond, to complain of Dr. Williams' allegation that he was not at the mandatory event, and of her denial of his travel request to JMU. Hammond Dep. at 58-59. Subsequently, on October 19, 2009, as a follow-up to Dr. Shetty's meeting with Provost Hammond, Dr. Williams and Provost Hammond exchanged emails, wherein Dr. Williams vaguely stated, "Dr. Shetty appears to be gathering information and documentation in preparation for something." Williams Dep. Ex. 15; ECF No. 16, Ex. 8 at 108-109.
In February of 2010, Dr. Shetty met with Mr. Michael Druitt, Assistant to the Dean of the School of Science, to complain of Dr. Williams' actions, which he claimed constituted discrimination. ECF Nos. 16 ¶ 9; 20 ¶ 41. Dr. Shetty experienced "a reprieve" from the alleged discrimination in the months immediately after this meeting. Id. In May of 2010, upon Dr. Shetty's request to Provost Dr. Hammond, his employment contract was changed from twelve (12) months to nine (9) months, meaning he would not teach during the summer months and would earn decreased pay as a result. ECF No. 16 ¶ 10; Shetty Dep. II at 50-51; Hammond Dep. at 52. In the fall of 2010, during a presentation to CAPTE officials, Dr. Williams summarized student evaluation ratings of Dr. Shetty as 4.35 out of 5 from 1998 to 2003, and 3.5 out of 5 from 2003 to present, while also highlighting positive feedback from student course evaluation commentary and from peer review. ECF No. 20 ¶ 42 (citing Hammond Dep. at 20; Williams Dep. at 18, 120-22). Around the same period of time, Dr. Williams removed Dr. Shetty first from teaching Anatomy, and later from teaching Research I and II and Kinesiology, and attempted to reassign him to classes offered by the Physical Education Department instead. ECF No. 16 ¶ 13; 20 ¶¶ 43-45. Subsequently, during a review of records for an upcoming CAPTE visit, Dr. Williams wrote a letter to the Dean of the School of Science, Dr. Dixon, about date discrepancies on Dr. Shetty's curriculum vitae ("CV"), which she described as "falsification of official documents, " and recommended Dr. Shetty's immediate termination. ECF No. 20 ¶¶ 47-49, Ex. 23. Neither Dean Dixon nor Provost Hammond acted upon this recommendation.
In January of 2011, Dr. Williams denied Dr. Shetty a stipend for travel to Atlanta to attend and present at an American Heart Association convention on behalf of the University. ECF Nos. 16 ¶ 15; 20 ¶ 50. This denial was subsequently reversed by Dean Dixon. Id. In February of 2011, Dr. Williams evaluated Dr. Shetty's performance as a "49, " which was in the "poor" category, and much lower than previous evaluations he had received since 1998. ECF Nos. 16 ¶ 16; 20 ¶ 53. Under the University's faculty handbook, this evaluation score triggered a process called post-tenure review ("PTR"). ECF Nos. 16 ¶ 18; 20 ¶ 53. By letter dated March 3, 2011, Dr. Shetty filed a formal complaint with Dean Dixon regarding his performance evaluation and alleged discrimination by Dr. Williams. ECF Nos. 16 ¶ 17; 20 Ex. 10. Dean Dixon met with Dr. Shetty and Dr. Williams on March 17, 2011 to address the allegations in Dr. Shetty's letter. ECF No. 16 Ex. 7. By letter dated March 21, 2011, Dean Dixon stated that Dr. Williams was firm in her position that Dr. Shetty had been fairly evaluated, and concluded that the meeting "did not result in the resolution of the allegations." Id. Dr. Shetty was advised of subsequent options, including a meeting with Provost Hammond and the filing of a formal grievance. Id. Shortly thereafter, on April 29, 2011, Dr. Shetty filed a charge of discrimination with the Virginia Council on Human Rights and the federal Equal Employment Opportunity Commission ("EEOC"). ECF No. 1 Ex. 1 at 3-4.
Effective June 30, 2011, both Dr. Williams and Dean Dixon resigned their positions and were not employed at the University during the 2011-2012 academic year. ECF No. 16 ¶¶ 22-23. In August of 2011, in accordance with the PTR process, Dr. Shetty submitted a "dossier" to the office of the Provost for consideration by the PTR committee, which was comprised of five faculty members. ECF Nos. 16 ¶¶ 25, 27; 20 ¶ 70. The PTR committee met on September 8, 13, and 20 of 2011, and initially recommended that the PTR process for Dr. Shetty terminate because Dr. Williams and Dean Dixon had not provided the justification for the low evaluation score and there was no evidence of student complaints. ECF Nos. 16 Ex. 17 at 2 (citing Ex. 16 at 3); 20 ¶ 76. After review of the PTR committee's recommendation, Provost Hammond provided the documentation to the PTR committee of Dr. Williams' rationale for the low evaluation score and student complaints. ECF Nos. 16 ¶ 29, Ex. 18, 19; 20 ¶ 72. In November of 2011, the PTR committee reconvened, voted to rescind the earlier recommendation of termination of the process, and instead recommended that Dr. Shetty develop a Performance Improvement Plan ("PIP"), which was subsequently approved by the Provost Hammond. ECF Nos. 16 ¶¶ 31-32, Ex. 20; 20 ¶ 77.
On December 2, 2011, Dr. Shetty filed a request for FMLA leave with the University to travel to India for medical treatment. ECF Nos. 16 Ex. 5; 20 ¶ 79. This request was initially approved by the new Department Chair, Dr. Rainey. ECF Nos. 16 Ex. 5 at 2; 20 ¶ 81. However, after the University received certification from Dr. Shetty's healthcare provider, the University's Director of Human Resources, Ms. Rikki Thomas, by letter dated December 9, 2011, informed Dr. Shetty that he was not eligible for FMLA leave because the certification did "not support the type of leave requested." Id. at 7. At this point, Dr. Shetty had already left for India, and therefore his leave was unauthorized. ECF Nos. 16 ¶ 34; 20 ¶ 85; Shetty Dep. II at 71. When Dr. Shetty returned in January of 2012, he lost no benefits and the University took no action of any kind against him. ECF No. 16 ¶ 37; Shetty Dep. II at 70.
Subsequently, Dr. Shetty met with Provost Hammond, and because he thought the PTR and PIP process was a "sham, " he refused to submit a PIP. ECF Nos. 16 ¶¶ 39-40; 20 ¶¶ 69, 78. Dr. Shetty resigned from the University effective May 31, 2012 and obtained a full-time and higher paying professor position in the Physical Therapy Department at the University of Saint Mary in Kansas effective June 1, 2012. ECF Nos. 16 ¶¶ 42-43; 20 ¶ 78.
This Court has jurisdiction over the subject matter and parties because the claims at issue implicate federal questions that arise under the Civil Rights Act and the Family and Medical Leave Act. See 28 U.S.C. §§ 1331, 1343; see also 42 U.S.C. § 2000e-5(f)(3) ("Each United States district court... shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice...."). The University is located in Hampton, Virginia, within this division of the Eastern District of Virginia. See E.D. Va. Local Civil Rule 3(B)(2).
Dr. Shetty filed his original complaint on September 21, 2012, ECF No. 1. He subsequently filed an Amended Complaint on November 28, 2012, ECF No. 4, wherein he alleges four counts: (1) Title VII - Discrimination Based Upon National Origin; (2) Title VII Retaliation; (3) Interference with Right to Receive FMLA Leave; and (4) Retaliation for Seeking FMLA Leave. After hearing argument of counsel and reviewing the briefs, the matter is now ripe for disposition.
III. STANDARD OF REVIEW
Summary judgment under Fed.R.Civ.P. 56 is appropriate when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A court should grant summary judgment if the nonmoving party, after adequate time for discovery, has failed to establish the existence of an essential element of that party's case, on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To defeat a motion for summary judgment, the nonmoving party must go beyond the facts alleged in the pleadings, instead relying upon affidavits, depositions, or other evidence to show a genuine issue for trial. See id. at 324. Conclusory statements, without specific evidentiary support, are insufficient. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998). Rather, "there must be evidence on which the jury could reasonably find for the [party]." Anderson, 477 U.S. at 252.
A. Count I - Title VII Discrimination Based Upon National Origin
Dr. Shetty claims that the University, through its officers or agents, "illegally discriminated disparately against" him because of his East Indian national origin. ECF No. 4 at 11-14. Specifically, because of his national origin, Dr. Shetty claims he endured: denial of work accommodations and opportunities, acts of public humiliation and embarrassment, negative and derisive comments from faculty and students, and disparate treatment. Id. Count I of Dr. Shetty's First Amended Complaint is captioned "TITLE VII - DISCRIMINATION BASED UPON NATIONAL ORIGIN." During the hearing, and throughout the opposition brief, Dr. Shetty's counsel argued that Count I contains both hostile work environment and disparate treatment claims in violation of 42 U.S.C. § 2000e-2(a)(1). See ECF No. 20 at 23-27; see also Tr. at 46-47, ECF No. 34. However, Dr. Shetty's claim "for disparate treatment based on [his national origin] is a separate and distinct claim from a claim of a hostile work environment, and cannot be transformed into a hostile work environment claim unless the facts alleged meet the separate criteria for a hostile work environment claim." Bailey v. Int'l Paper, No. 2:11-3013, 2012 WL 405719, *3 (D.S.C. Jan. 13, 2012) (citing Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C. 2003) ("Discrete acts constituting discrimination or retaliation claims... are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult."); Kilby-Robb v. Spellings, 522 F.Supp.2d 148, 164 (D.D.C. 2007) ("Alleged acts of disparate treatment cannot be transformed, without more, into a hostile work environment claim.")). When advised by the Court during the hearing that separate claims require separate counts in a complaint, Dr. Shetty's counsel more than once articulated his intention to seek leave of Court to amend his complaint again. Tr. at 46-47, 58, 76-77, ECF No. 34. Despite these assurances, the Court never received such a motion for leave to amend or a proposed amended complaint. Accordingly, the Court examines the First Amended Complaint to determine whether it sufficiently pleads, and there are material facts in dispute, to support either a hostile work environment or disparate treatment claim.
1. Hostile Work Environment under Title VII
"Because an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action." Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (internal quotation marks and citation omitted). The Court finds that standing alone, Dr. Shetty's Amended Complaint does not explicitly allege a hostile work environment claim, and because Dr. Shetty is represented by counsel, the Court is not required to liberally construe his pleadings, as it normally would with pro se parties. Viewing the evidence now before the Court in a light most favorable to Dr. Shetty, the Court finds that no reasonable jury could find for Dr. Shetty on a hostile work environment claim, even if such a claim were properly alleged in the complaint.
To survive the University's Motion for Summary Judgment, Dr. Shetty must set forth evidence on which a reasonable jury could rely to find the University created a hostile work environment, through its agents, by satisfying the following elements: (1) unwelcome conduct in a work related setting; (2) complained of conduct was based on Dr. Shetty's national origin; (3) the conduct was severe or pervasive to alter his condition of employment and to create an abusive work environment; and (4) the conduct was imputable on some factual basis to the University. Crockett, 717 F.3d at 35 (citing Spicer v. Commonwealth of Va., Dep't of Corr., 66 F.3d 705, 709-710 (4th Cir. 1995) (en banc) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993))). After a review of the evidence before the Court, the Court would find that there is no genuine issue of material fact as to the alleged hostile work environment claim, and that the University is entitled to judgment as a matter of law on this basis.
Simply stated, there are insufficient material facts before the Court to suggest that any of the actions taken by Dr. Williams, the alleged discriminating official,  were based on, or because of, Dr. Shetty's national origin. Dr. Shetty's First-Amended Complaint and Opposition to the Defendant's Motion for Summary Judgment are both replete with problems he experienced with Dr. Williams. These facts, however, do not seem to have anything to do with national origin harassment. They describe an environment where a new supervisor made assignments to Dr. Shetty with which he disagreed, and may have denied him certain "work accommodations and opportunities" to which he believed he was entitled, thereby resulting in a workplace dispute and, perhaps, some callous behavior by Dr. Williams. See ECF No. 4 at 11-14. Based on the evidence before the Court, it is clear that Dr. Williams and Dr. Shetty had a discordant relationship. Nonetheless, the proffered facts simply do not demonstrate "an abusive work environment" based on Dr. Shetty's national origin. See Bass v. E.I. DuPont & Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). In support of his contention that Dr. Williams was motivated by discriminatory animus in her treatment of him, Dr. Shetty proffered two instances of discriminatory comments allegedly directed towards him by Dr. Williams. These allegations, which were omitted from the First-Amended Complaint and only disclosed in discovery, allegedly both occurred in 2009, which is outside the statutory timeframe, as discussed in the next section. Specifically, in his answer to Interrogatory Seven, Dr. Shetty claims that, in September of 2009, Dr. Williams compared him to an "Indian terrorist" or an "Asian Terrorist." In his deposition, Dr. Shetty explained further that Dr. Williams "told me I'm a threat to the campus, I look violent. And she said that It happened in the [sic] Virginia Tech, the Chinese guy did that, and you may be Indian doing it here." Shetty Dep. II at 80-83 ("She says, You look like a little Indian terrorist, ' something like that."). The other instance Dr. Shetty proffered is when Dr. Williams allegedly told him in April of 2009 that "she did not understand my language, she wanted me to take a speech pathology class and go back to India to teach because I don't speak good English." Id. at 79.
Even viewed in a light most favorable to Dr. Shetty, these remarks are isolated and not corroborated by any other evidence. "[T]o prove discriminatory animus, the derogatory remark cannot be stray or isolated[, ] and unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of discrimination." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999) (internal citation omitted). Standing alone, these derogatory comments do not prove that Dr. Williams acted because of Dr. Shetty's national origin. Cf. EEOC v. Sunbelt Rentals, Inc., 531 F.3d 306, 315 (4th 2008) ("Title VII does not establish a general civility code for the American workplace....") (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (The "conduct must be [so] extreme [as] to amount to a change in the terms and conditions of employment.")). Absent any showing that Dr. Williams' conduct was motivated by Dr. Shetty's national origin, he cannot maintain a cause of action for hostile work environment.
Therefore, to the extent Count I in Dr. Shetty's First-Amended Complaint can be construed as alleging a claim for hostile work environment, because there are no genuine issues of material fact in dispute, the undersigned ...