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Hentosh v. Old Dominion University

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

April 16, 2014



HENRY COKE MORGAN, Jr., District Judge.

This matter is before the Court on the Defendant Old Dominion University's ("ODU" or "Defendant") Motion for Leave to Appeal ("Motion"). Doc. 14. For the reasons stated herein. the Court DENIES the Motion.


A complete recounting of the pertinent facts and procedural history of this case can be found in this Court's Order dated March 7, 2014. Hentosh v. Old Dominion Univ., No. 2:13cv290, 2014 WL 910169, at *1-5 (E.D. Va. March 7, 2014). The Court will only recite the most relevant facts needed to decide the Motion.

This lawsuit arises out of an employment dispute between Plaintiff and Defendant that ended with Plaintiff Patricia Hentosh ("Hentosh" or "ODU") being denied tenure at ODU and subsequently being terminated in July 2013. Id. at *1. On May 26, 2010, Hentosh filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging race discrimination and retaliation relating to ODU's handling of a dispute between Hentosh and Professor Anna Jeng ("First Charge"). Id . During the pendency of the EEOC's investigation, Hentosh began applying for tenure at ODU, which was subsequently denied. Id. at * 1-2. On January 6, 2012, the EEOC dismissed her First Charge, and issued her a Notice of Right to Sue. Id. at *4. Thereafter, on April 11, 2012, ODU informed her that her request for review of the tenure decision was untimely filed and thus denied. Id. at *3.

On April 24, 2012, Hentosh filed her first lawsuit against ODU ("Hentosh I"). Id. at *4. She alleged two counts: discrimination and retaliation, both relating to her denial of tenure. Id . On August 3, 2012, this Court dismissed the discrimination claims because they were not timely raised with the EEOC. Id . Plaintiff then filed another charge of discrimination with the EEOC relating to the denial of tenure ("Second Charge") on August 23, 2012. Id . On March 13, 2013, ODU moved for summary judgment on the remaining retaliation claim. Id . Thereafter, on March 22, 2013, Hentosh filed a motion to stay and consolidate the retaliation claim with the pending discrimination claim alleged in the Second Charge before the EEOC. Id . On March 31, 2013, the EEOC dismissed the Second Charge and issued a Notice of Right to Sue. Id.

On May 21, 2013, Hentosh filed the instant action ("Hentosh II") alleging discrimination and retaliation against ODU, claiming discrimination based on a policy and practice of "minority favoritism" and retaliation for opposing discriminatory practices and filing an EEOC charge. Id. at *5. That same day, Plaintiff filed another motion to stay and consolidate Hentosh I and Hentosh II. Id. at *4. On May 28, 2013, the Court heard the summary judgment motion in Hentosh I. Id . The Court denied the motions to stay and consolidate on June 4, 2013. Id . On July 1, 2013, Plaintiff then filed a motion to voluntarily dismiss Hentosh I. Id . On July 12, 2013, the Court granted summary judgment to the Defendant and denied the motion to voluntarily dismiss. Id . This decision is currently on appeal before the Fourth Circuit. Id.

On July 19, 2013, ODU filed a motion to dismiss Hentosh II, alleging in part that she was barred under the doctrine of res judicata from bringing this suit. This Court held a hearing on the motion, and on March 7, 2014, denied the motion. The Court found that res judicata did not bar Hentosh's discrimination complaint because it was dismissed for lack of jurisdiction, and not dismissed on the merits. Id. at *7. The Court denied the motion as to the retaliation claim without prejudice, on the representation from Plaintiffs counsel that the issue to be decided on appeal is whether the Court even had jurisdiction to enter a judgment on that count.[1] Id. at *9.

Defendant filed the instant Motion and supporting Memorandum on March 17, 2014. Docs. 14-15. Plaintiff filed her response on April 1, 2014.[2] Doc. 18. Defendant filed its reply on April 7, 2014. Doc. 20. The Motion is now ripe for review.


28 U.S.C. ยง 1292(b) provides that:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

Because this is a departure from the general rule that appeals may only be taken from a final judgment, the power to grant an interlocutory appeal should be used sparingly. Difelice v. U.S. Airways, Inc. , 404 F.Supp.2d 907, 908 (E.D. Va. 2005) (citing Myles v. Laffitte , 881 F.2d 125, 127 (4th Cir. 1989)). This requires "exceptional circumstances that justify a departure from the basic policy limiting appellate review to final judgments.'" Difelice , 404 F.Supp.2d at 908 (quoting Terry v. June , 368 F.Supp.2d 538, 539 (W.D. Va. 2005)). The Fourth Circuit has stated that "the kind of question best adapted to discretionary interlocutory review is a narrow question of pure law whose resolution will be completely dispositive of the litigation, either as a legal or practical matter, whichever way it goes.'" Difelice , 404 F.Supp.2d at 908-09 (quoting Fannin v. CSX Transp., Inc., No. ...

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