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Hentosh v. Old Dominion University

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

March 7, 2014



HENRY COKE MORGAN, Jr., District Judge.

This matter is before the Court on the Defendant Old Dominion University's ("ODU" or "Defendant") Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and/or 12(b)(6) ("Motion"). Doc. 2. For the reasons stated herein, the Court DENIES the Motion.


A. Factual Allegations[1]

Since 2006, Patricia Hentosh ("Plaintiff' or "Hentosh"), a White woman, has been a professor with ODU's School of Medical Laboratory and Radiation Sciences ("MLRS"), one of several schools/departments within the College of Health Sciences ("CHS"). Doc. 1, Ex. 1; see also Doc. 1 ¶ 13.[2] In late 2011. Plaintiff's application for tenure was denied, and on June 8, 2012, Plaintiff was extended an untenured terminal appointment that terminated her employment with ODU in July 2013. Doc. 1 ¶¶ 102, 110. Plaintiff alleges that she had satisfied "the legitimate requirements of ODU" for tenure, and only suffered this adverse employment action as a result of discriminatory and retaliatory actions by ODU. Id . in ¶¶ 111-12.

According to the Complaint, the facts relevant to the claims in the instant action are tied to a dispute between Plaintiff and Anna Jeng, an Asian professor, in ODU's School of Community and Environmental Health ("CEH"), a division of CHS. Doc. 1 In ¶¶ 13, 17-18.[3] A dispute ensued between the two over Hentosh's concerns of perceived lab safety issues created by Jeng. Id . ¶¶ 22-23. Ultimately, Jeng filed a complaint with ODU's Equal Opportunity/Affirmative Action Office ("EO/AA") alleging Hentosh's actions created a hostile work environment. Id . ¶¶ 31-34.

On April 27, 2009, EO/AA Senior Investigator Barbara Reynolds submitted a report concluding that Hentosh's interactions with Jeng were in violation of ODU's disruptive behavior policy (the "Reynolds Report"). Doc. 1 ¶ 42. The Reynolds Report was shared with CHS administrators and incorporated into Plaintiff's 2009 performance evaluation. Id .; see also id. at ¶ 43.[4]

On June 2, 2009, Plaintiff filed a discrimination complaint with the EO/AA, raising allegations of gender discrimination and retaliation against Jeng and the chair of CEH. Doc. 1 ¶ 46. On June 10, 2009, Plaintiff learned that the EO/AA had excluded Jeng as a co-respondent, and would not investigate Jeng as a party to Plaintiff's complaint. Doc. 1 ¶ 47. On August 21, 2009, the EO/AA issued a memorandum rejecting Plaintiff's complaints. Doc. 1 ¶ 49.

On May 11, 2010, Plaintiff filed a formal written grievance with ODU, alleging race discrimination. Doc. ¶ 54. Shortly thereafter, on May 26, 2010, Plaintiff filed her First Discrimination Charge with the Equal Opportunity Employment Commission ("EEOC"), alleging race discrimination and retaliation ("First EEOC Charge"). Doc. ¶ ¶ 55. ODU informed Plaintiff that it would not process her grievance on July 23, 2010. Doc. ¶ 57.

On June 25, 2010, Jeng filed a complaint with the EO/AA, alleging Plaintiff had continued to engage in conduct that violated the disruptive behavior policy and created a hostile work environment. Doc. ¶ 61. An independent investigation was conducted, and the EO/AA issued a report finding that Plaintiff had violated ODU's disruptive behavior policy. Doc. 1 ¶ 65. Plaintiff was informed of the report's findings on December 3, 2010, and instructed to meet with CHS's interim dean, Deanne Shuman. Doc. 1 ¶ 67. Following the December 14, 2010 meeting, Shuman found Plaintiff guilty of violating ODU's disruptive behavior policy and issued a written sanction. Doc. 1 ¶ 69.[5]

In Fall 2011, Hentosh began preparing her application for tenure with ODU. Doc. ¶ 86. Ranking professors at ODU are invited to apply for tenure toward the end of their probationary period, usually during their fifth year of teaching. Doc. 1, Ex. 13 pp. 52. Tenure decisions are based on "merit" and "the determined long-term needs of the department, college, and university." Doc. 1, Ex. 13 pp. 52. The tenure review process at ODU comprises several steps. Doc. ¶¶ 78-84.

Before submitting her application materials, Plaintiff learned that Jeng was a member of the CHS College Tenure Committee. Doc. 1 ¶ 87. Plaintiff expressed her objection to Jeng's participating in her tenure review to Sophie Thompson, chair of MLRS, and asked how to request that Jeng be excluded from Plaintiff's tenure evaluation. Doc. 1 ¶ 88. Thompson met with the dean of CHS, Shelley Mishoe, to discuss the conflict of interest, and apparently left that meeting thinking Jeng would be recused from the College Tenure Committee. Doc. 1 ¶ 89.

On September 29, 2011, the MLRS Tenure Committee met to discuss and vote on Plaintiff's tenure application. Doc. 1 ¶ 90.[6] Two members of the committee voted in favor of granting Plaintiff tenure, while two voted against tenure. Id .; see also Doc. 1, Ex. 16. All committee members gave Plaintiff high marks for teaching, but the two voting against tenure found that Plaintiff did not meet the requirements for research. Id . Plaintiff alleges that the Committee did not explain their negative marks, in violation of ODU policy. Id . Plaintiff further alleges those voting against tenure voted inconsistent with a prior recommendation in 2010, recommendating tenure for Angela Bell, a Black professor with "no grant funding, " "extremely limited grant submissions, " and "no publications." Id.

After receiving the MLRS tenure committee's recommendation, Thompson, as chair of MLRS, conducted her own tenure evaluation. Doc. 1 ¶ 91. On October 12, 2011, Thompson submitted a recommendation that Plaintiff be granted tenure to Shelley Mishoe, CHS Dean. Id . ¶ 91.

On November 1, 2011, the CHS Tenure Committee met to discuss and vote on Plaintiff's tenure application. Doc. 1 ¶ 92. Serving on the committee were Richard Heller (from MLRS); Carolyn Rutledge (from the School of Nursing); Gayle McCombs (from the School of Dental Hygiene); Gail Grisetti (from the School of Physical Therapy); and Jeng (from CEH). Id . Members of the CHS Tenure Committee were aware of the Jeng-Hentosh dispute, and at least one member suggested that Jeng should recuse herself Doc. 1 ¶ 97. Jeng refused and voted on Plaintiff's tenure application. Id . Ultimately, the committee voted against tenure by a vote of four to one, after finding that Plaintiff's "scholarly activities fall below expectations of a tenured faculty member." Doc. 1, Ex. 18 at 2. The committee specifically cited to Plaintiff's failure to obtain external funding for her research. Id.

On November 8, 2011, after receiving the CHS tenure committee memo, Plaintiff wrote an email to CHS Dean Mishoe, requesting an explanation as to why Jeng was not excluded from voting on Plaintiff's tenure application. Doc. 1 ¶ 100; see also Doc. 1, Ex. 23. Mishoe responded the same day, assuring Plaintiff that Jeng's participation as an elected member of the committee was not an indication that Plaintiff's concerns were ignored, but rather, a reflection of ODU's commitment to the fairness of the tenure review process. Doc. 1, Ex. 23. Specifically, Mishoe noted: "[i]ri keeping with academic freedom and integrity, the tenure review process (through voting and progressive stages of independent decision making) ensures fairness in the consideration of your merits, along with the long-term needs and mission of the school, college, and university." Id . Mishoe informed Plaintiff that she was evaluating her application and would inform Hentosh of her decision when it was made. Id.

On December 15, 2011, Mishoe sent a memorandum to ODU's Provost, Carole Simpson, recommending denial of Plaintiff's tenure application. Doc. 1 ¶ 102. In explaining her recommendation, Mishoe noted, "[Hentosh] has been unable to develop a solid research program consistent with the level of full professor as specified in the faculty handbook." Doc. 1, Ex. 24. Mishoe recognized Plaintiff's efforts, but noted "Dr. Hentosh has been unable to establish a research program in cancer research or related areas, reflected by her lack of grants, publications, and national presentations." Id . Mishoe also recognized Plaintiff's teaching and service contributions; and specifically referenced Plaintiff's positive external reviews, while also noting that none of the external reviews considered Plaintiff's "current rank and research productivity." Id.[7]

On February 10, 2012, Plaintiff sent an email to ODU's Office of University Counsel, requesting information about the procedure for seeking review of her tenure recommendations. Doc. 1 ¶ 104. Plaintiff was referred to Professor Chandra DeSilva, the faculty member designated by the Provost to address faculty members' concerns and questions regarding tenure. Doc. 1 ¶ 101. On February 11, 2012, Silva informed Plaintiff that she would need to make a request for review in writing to the Provost, who would review her materials and decide whether the tenure file would receive further review. Doc. 1 ¶ 105. Plaintiff was also informed that if the Provost decided against further consideration of her bid for tenure, the decision was final. Id.[8]

On April 6, 2012, Plaintiff submitted a written request for review of her tenure decision to the Provost. Doc. 1 ¶ 106. On April 11, 2012, Plaintiff received a letter indicating that her request for review was untimely filed, as it was not received by the December 20, 2011 deadline. Doc. 1 ¶ 107.[9] When Plaintiff objected to the letter, stating that she had not been informed of the deadline, she was told "there is nothing we can do." Doc. 1 ¶ 108. As a result, Plaintiff did not attempt to seek further review of her ...

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