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Earl v. Norfolk State University

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

February 13, 2014

DR. ARCHIE EARL, Plaintiff,


MARK S. DAVIS, District Judge.

This matter is before the Court on the motion to dismiss filed by Norfolk State University, the Board of Visitors of Norfolk State University, and the Commonwealth of Virginia (collectively "Defendants"), pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7(J). For the reasons set forth below, Defendants' motion to dismiss is GRANTED.


Dr. Archie Earl ("Plaintiff") is a "66 year old, Black, male Associate Professor in the Department of Mathematics at Norfolk State University" ("NSU"). Pl.'s Am. Compl. ¶ 1.[2] NSU "is a state supported" university located in "the Commonwealth of Virginia." Id . ¶ 2. Plaintiff also serves as "Chair of the NSU Faculty Salary Issues Research Committee" ("the Committee"). Id . ¶ 1. In 2006, the Committee began to study "gross inequities in faculty salaries." Id . ¶ 9. The Committee, having discovered errors in data provided to the Committee by NSU's Human Resources Office, conducted a study of "sample data" consisting of "departmental data" accessible by "Committee members." Id . ¶¶ 9-10. During "the Committee's ongoing analysis, " Plaintiff claims he discovered that, "with respect to recent hires, and white faculty, and younger faculty, and female faculty, " Plaintiff's salary was "woefully inadequate, " even though Plaintiff "was at least as qualified" and "the responsibilities of the job were essentially equivalent." Id . ¶ 11.

When Plaintiff's "attempts at discussions with the administration" failed, he began "grievance proceedings" with the Equal Employment Opportunities Commission ("EEOC") and the Virginia Council on Human Rights, "alleging discrimination on the basis of race, gender, and age." Id . Plaintiff filed a charge of discrimination with the EEOC "on December 8, 2011" and the EEOC "issued a right-to-sue letter to Plaintiff on December 21, 2012." Id . Plaintiff alleges that his "decision to file an EEOC complaint... triggered a wave of retaliatory acts that created a hostile and intimidating environment within which he was forced to operate." Id . ¶ 20. Plaintiff's Amended Complaint lists the following "retaliatory acts" by Defendants:

• Denial of Plaintiff's "most recent request for sabbatical leave;"
• Denial of Plaintiff's "right to present an oral report, as Faculty Senate president, at meetings of the Board of Visitors" ("BOV") in 2011 and 2012;
• Omission of Plaintiff's "reports to the Board of Visitors... from the BOV meeting handbook" in March and December, 2011;
• Demand for copies of Plaintiff's "emails pertaining to the most recent presidential search" on October 26, 2010;
• Disposal of Faculty Senate property in Fall 2011 and blaming Plaintiff for failing to obtain "proper authorization;"
• Refusal to meet with Plaintiff or "respond to his communications" on September 6, 2011 and July 3, 2012; and
• Attempts "to induce the Provost to terminate [Plaintiff's] contract with [NSU]" from January 2010 through February 2011.

Id. ¶ 20. Plaintiff alleges that Defendants' "actions had the effect of subjecting the Plaintiff to public embarrassment, feelings of insecurity in his job, public ridicule, [and] belittlement." Id . Furthermore, Plaintiff contends that he was forced "to operate in an environment that was hostile and permeated with discriminatory intimidation, and insult that was sufficiently severe as to alter the conditions of his employment, creating an abusive working environment." Id.

On March 21, 2013, Plaintiff filed a Complaint in this Court, "individually, and as a class action, with respect to the Title VII claims, " alleging violations by Defendants of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Equal Pay Act ("EPA"), and the Age Discrimination in Employment Act ("ADEA"). ECF No. 1. Defendants filed a Motion to Dismiss on July 22, 2013. ECF No. 4. Plaintiff filed an Amended Complaint on August 12, 2013, adding a claim of retaliation. ECF No. 12. In his Amended Complaint, Plaintiff contends that "inferential statistical analyses" show "a pattern or practice of discrimination [by NSU], based on race... in violation of Title VII." Id . ¶ 13. Plaintiff further alleges that "similar statistical analyses" revealed that NSU "was impermissibly discriminating against men, and in favor of women, ... in violation of the [EPA]." Id . ¶ 14. Plaintiff also alleges that NSU "discriminat[ed] against its aged (over 40) faculty" in violation of the ADEA, both "in terms of salary" and with respect to its "new policy of post tenure review, " which "has a discriminatory impact on older faculty." Id . ¶ 15. Finally, Plaintiff's Amended Complaint alleges that Plaintiff endured "retaliation by the Defendants for having led in the fight against salary inequities, for having been a vocal and persistent critic of the NSU administration for its uneven treatment of its faculty, and for his having filed charges of discrimination with the... EEOC." Id . ¶ 20. Defendants filed a second Motion to Dismiss on August 27, 2013. ECF No. 13. Defendants' second Motion to Dismiss has been fully briefed and is therefore ripe for review.[3]


A. Subject Matter Jurisdiction - Rule 12(b)(1)

A party may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The party asserting jurisdiction "has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999). When considering a motion to dismiss pursuant to Rule 12(b)(1), a court should "regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id . (internal citation omitted). When "the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law, " the moving party's motion to dismiss should be granted. Id . (internal citation omitted).

B. Failure to State a Claim - Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint, or a claim within a complaint, based on the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), so as to "give the defendant fair notice of what the... claim is and the grounds upon which it rests, '" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)) (omission in original). The United States Supreme Court has interpreted the pleading standard set forth in Rule 8(a) as requiring that a complaint include enough facts for the claim to be "plausible on its face" and thereby "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, ...

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