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Earl v. Norfolk State University

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

June 26, 2014

DR. ARCHIE EARL, Plaintiff,


MARK S. DAVIS, District Judge.

This matter is before the Court on a third motion to dismiss filed by Norfolk State University ("NSU"), the Board of Visitors of Norfolk State University ("BOV"), the Commonwealth of Virginia, and Dr. Tony Atwater (collectively "Defendants"), pursuant to Federal Rules of Civil Procedure 12(b) (1) and 12(b)(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. Civ. P. 78(b); E.D. Va. Loc. R. 7(J). For the reasons set forth below, Defendants' motion is GRANTED IN PART, and DENIED IN PART.


A. Background

Dr. Archie Earl ("Plaintiff") is a "66 year old, Black, male Associate Professor in the Department of Mathematics at Norfolk State University, a "state supported" university located in "the Commonwealth of Virginia." Pl.'s Second Am. Compl. ¶ 1, ECF No. 23.[2] Aside from his professorial duties at NSU, Plaintiff also serves as "Chair of the NSU Faculty Salary Issues Research Committee" ("the Committee"). Id . In 2006, according to Plaintiff's Second Amended Complaint, the Committee began to study "gross inequities in faculty salaries." Id . ¶ 10. The purpose of the Committee's study was to "advise the NSU administration of its findings, in order that remedial steps could be taken to redress such inequities, if any, as may be uncovered." Id . Plaintiff alleges that the Committee requested the relevant "data from the NSU Human Resources Office, " but claims that "the data provided were filled with serious errors that would have led to unreliable results." Id . Plaintiff does not describe the nature of the alleged errors found in the data. The "Committee then decided to modify its study" to analyze "only sample data" from the Committee members' own departments. Id . ¶ 11. According to Plaintiff, NSU advised the Committee "that it was preparing its own study of the salary inequities question, promising to reveal the results of this study so that the matter may be resolved reasonably, amicably, and with dispatch." Id.

Meanwhile, "based on the Committee's ongoing analysis, " Plaintiff asserts that he discovered that his own salary was "woefully inadequate" compared to "recent hires, and white faculty, and younger faculty, and female faculty, " although Plaintiff alleges that "he was at least as qualified" and that "the responsibilities of the job[s] were essentially equivalent." Id . ¶ 12. "[U]sing inferential statistical analyses" of the sample data, the Committee determined that NSU was discriminating against "[b]lack faculty, " "men, " and "aged (over 40) faculty." Id . ¶¶ 14-16. However, Plaintiff does not provide the results of the Committee's "inferential statistical analyses" or otherwise describe the results of the study, except with respect to his own salary. Id.

On "December 8, 2011, " after failed "attempts at discussions with the administration, " Plaintiff filed in his own name a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), "alleging discrimination based on the basis of race, gender, and age." Id . In the Charge of Discrimination ("EEOC charge"), Plaintiff named "NORFOLK STATE" as his employer, alleged that the discrimination occurred between April 1, 2008 and December 8, 2011, and checked the appropriate box to indicate a "CONTINUING ACTION." EEOC Charge, ECF No. 14-1.[3] As the types of discrimination he allegedly suffered, Plaintiff checked the boxes for "RACE, " "SEX, " "AGE, " and "OTHER, " with the words "Equal Pay" typed in a box next to the checked "OTHER" box. Id . In the "Particulars" section of the EEOC charge, Plaintiff stated the following:

I. I was hired on or about August 1991 as a Mathematics Professor in the College of Science, Engineering and Technology.
II. On or about April 4, 2008 as a result of a study completed by the Faculty Senate Salary Issues Research Committee I learned that as a tenured faculty member I was paid less than newly hired instructors and assistant professors. These findings were presented to the Board of Visitors, the President of the University, and the Provost of the University. No corrective action has been taken regarding this inequity in salary.
III. I believe that on the basis of sex (male) and age I continue to be paid unequal wages than younger and female employees of the University in violation of Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act of 1963, as amended and the Age Discrimination in Employment Act of 1967, as amended and the Virginia Human Rights Act, VA Code, 2.2-3900, et seq.

Id. Plaintiff asserts that, on December 21, 2012, after the "EEOC ended its investigation, " the EEOC "issued a right-to-sue letter to Plaintiff." Pl.'s Second Am. Compl. ¶ 12, ECF No. 23.

B. Plaintiff's Causes of Action

Plaintiff's Second Amended Complaint is hardly a model of clarity. See Fed.R.Civ.P. 10(b). Plaintiff alleges no "Counts" against Defendants, but instead presents four "Causes of Action, " incorporating "each and every preceding paragraph numbered above, inclusive, just as though they were fully set forth herein." Pl.'s Second Am. Compl. at 10, ECF No. 23. Each Cause of Action cites the statute allegedly violated by Defendants, but fails to clearly identify the type of discrimination alleged or the theories supporting Plaintiff's claims. However, because the Court must "view[) even poorly drafted complaints in a light most favorable to the plaintiff, " Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 n.4 (4th Cir. 1993), the Court liberally construes Plaintiff's four Causes of Action and attempts to present the pertinent facts, scattered throughout his Second Amended Complaint, to support each Cause of Action.

1. Title VII Race Discrimination

First, Plaintiff's Second Amended Complaint alleges wage discrimination by Defendants on the basis of race, in violation of "Title VII, 42 U.S.C. § 2000 et seq." Pl.'s Second Am. Compl. ¶ 18, ECF No. 23. Plaintiff brings his Title VII race discrimination claim as a class action, pursuant to Federal Rule of Civil Procedure 23, Id . ¶ 8, on behalf of "all Black Faculty at Norfolk State, " Id . ¶ 18. Plaintiff's Cause of Action alleges that Defendants advanced a "policy of unequal salaries for essentially the same work as White faculty, requiring equal skill, effort, and responsibility by otherwise comparable Black faculty." Id.

Paragraph 14 of Plaintiff's Second Amended Complaint asserts that, "using inferential statistical analyses" on the sample data obtained from the Committee's members, the Committee determined that "NSU was engaging in a pattern or practice of discrimination, based on race, in its policy of faculty remuneration, in violation of Title VII." Id . ¶ 14. Specifically, Plaintiff alleges that "[b]lack faculty of equal qualifications, and responsibilities, and job assignments were much disadvantaged in terms of salaries, as compared to white faculty." Id . The only "[b]lack faculty" mentioned in Plaintiff's Second Amended Complaint is Plaintiff himself. Id.

In support of his Title VII race discrimination claim, Plaintiff identifies two white comparators, whom he refers to as "Wl and W2 (to keep their identities private)." Id . Plaintiff alleges that W1 and W2 are "both on the same nine month contract as Plaintiff, " and "work under the same supervisor [as Plaintiff], " but asserts that W1 and W2 teach only "9 hours per semester... while Plaintiff teaches 12 hours per semester." Id . Plaintiff asserts that W1 is an untenured assistant professor, "with far less teaching experience than Plaintiff, " and that W2 is a tenured associate professor "with about the same number of years teaching as Plaintiff." Id . Plaintiff alleges that W1 "earned $58, 000 and W2 earned $68, 505, " and "yet Plaintiff earned $57, 605." Id.

2. Equal Pay Act/Title VII Sex Discrimination

Next, Plaintiff's Second Amended Complaint alleges wage discrimination by Defendants based on sex, in violation of the "Equal Pay Act, 29 U.S.C. § 206(d)." Id . ¶ 19. Plaintiff brings his EPA claim "as a collective action, " "pursuant to 29 U.S.C. § 216(b) (the Fair Labor Standards Act collective action provision, " Id . ¶ 8, on behalf of "all male faculty at NSU who chose [sic) to opt in, " Id . ¶ 19. Plaintiff alleges an "inequity of pay as between female faculty and similarly qualified male faculty at NSU, for equal work on jobs requiring equal skill, effort and responsibility." Id.

Paragraph 15 of Plaintiff's Second Amended Complaint asserts that the Committee concluded, "after similar statistical analyses, ... that NSU was impermissibly discriminating against men, and in favor of women, of comparable qualifications and responsibilities, and skill in salary assignments, and all this in violation of the Equal Pay Act." Id . ¶ 15. Plaintiff is the only affected male faculty member mentioned in his Second Amended Complaint.

In support of his EPA claim, Plaintiff identifies two female comparators, whom he refers to as "Fl, and F2 (to protect their privacy)." Id . Plaintiff asserts that Fl and F2 "teach in the same department as Plaintiff, and they all teach the same courses, or, at worst, courses that are fungible." Id . Plaintiff asserts that they "work under the same chairperson, and work under nine month contracts, even though Fl and F2 teach nine hours per semester, while Plaintiff carries a twelve hour load." Id . According to Plaintiff, Fl is an untenured assistant professor with "very little teaching experience, " and F2 is an untenured associate professor with "experience nearly as much as Plaintiff's." Id . Plaintiff alleges that "F1 earns $62, 000, and F2 earns $61, 852, while Plaintiff earns $57, 605." Id.

Plaintiff's second Cause of Action asserts that the alleged "violations of the Equal Pay Act are also, ipso facto, violations of Title VII." Id . ¶ 19. Plaintiff brings his Title VII sex discrimination claim as a class action, pursuant to Federal Rule of Civil Procedure 23. Id . ¶ 8. Plaintiff asserts no additional facts specific to his Title VII sex discrimination claim.

3. ADEA Age Discrimination

Plaintiff's third Cause of Action in the Second Amended Complaint alleges wage discrimination by Defendants on the basis of age, in violation of the "Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq." Id . ¶ 20. Plaintiff brings his ADEA age discrimination claim "as a collective action, ... pursuant to 29 U.S.C. § 216(b) (the Fair Labor Standards Act collective action provision." Id . ¶ 8. Plaintiff bases his age discrimination claim upon allegedly "discriminatory practices and policies at NSU, continued wherein older faculty are treated unequally in terms of salaries, and also in respect of the new Post Tenure Review policy, enforced by Pres. Tony Atwater." Id . ¶ 20. Plaintiff's Second Amended Complaint mentions no other "older faculty" besides Plaintiff himself. Id.

Paragraph 16 of Plaintiff's Second Amended Complaint asserts that, "relying on statistical analyses of the sample data, " the Committee determined "that NSU was discriminating against its aged (over 40) faculty in terms of salary." Id . ¶ 16. Plaintiff identifies three comparators, all "under 40 years of age, " whom Plaintiff refers to as "P1, P2, and P3." Id . Plaintiff alleges that all three comparators are untenured and "have minimal teaching experience, as compared to Plaintiff." Id . He asserts that the younger comparators "work under the same conditions in the same department, " teaching "a nine hour load each semester, compared to Plaintiff's twelve hour load." Id . Plaintiff alleges that "P1 earns $62, 000, P2 earns $58, 000, and P3 earns $63, 000, while, of course, Plaintiff earns $57, 605." Id.

Plaintiff's Second Amended Complaint also describes "NSU's new policy of post tenure review (PTR), " which "contains a provision requiring faculty who were tenured for twenty or more years at NSU to be subjected to PTR three years after the enactment of the policy." Id . Plaintiff asserts that "[o]ther tenured faculty have a longer time from the enactment of the policy to their first PTR, " and concludes that the PTR "policy has a discriminatory impact on older faculty." Id . Plaintiff does not further explain either the PTR process or how being subjected to PTR earlier than other tenured faculty has an adverse discriminatory effect on older faculty.

Plaintiff brings his ADEA age discrimination claim "solely against Dr. Tony Atwater, in his individual capacity, since it was he who enforced the policy, and it was he who refused to discuss reform." Id.

4. Retaliation

Plaintiff's final Cause of Action asserts retaliation by Defendants, "grounded on [Defendants'] alleged violations of Title VII, ADEA, and EPA." Plaintiff claims that Defendants retaliated against him "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 . ¶ 21. Plaintiff alleges that his "decision to file an EEOC complaint... triggered a new wave of retaliatory acts that perpetuated this hostile and intimidating environment within which he was being forced to operate from 2006 forward." Id . Specifically, Plaintiff alleges the following "retaliatory acts" by Defendants:

a) "his most recent request for sabbatical leave, in 2008, was denied by NSU; with excuse that he could not be spared;'"
b) "he was denied (all of 2011, and 2012) the right to present an oral report, as Faculty Senate president, at meetings of the Board of Visitors;"
c) "his reports to the Board of Visitors were omitted, without explanation, (March, December, 2011) from the BOV meeting handbook;"
d) NSU, "through the University Counsel, demanded (10/26/2010) copies of all [Plaintiff's] emails pertaining to the most recent presidential search, even though Faculty were excluded from the search process;"
e) NSU "disposed (Fall, 2011) of Faculty Senate office furniture, [office equipment], office supplies, financial records, check books, grievance records, without proper authorization... and then blamed [Plaintiff]:"
f) "the president of [NSU], Dr. Atwater, as well as the University Director of Human Resources and the [BOV] refused, on several occasions (9/6/2011, 7/3/2012), to meet with [Plaintiff] or even to respond to his communications;"
g) "the Board attempted (January, 2010 through February, 2011) to induce the Provost to terminate [Plaintiff's] contract with [NSU], notwithstanding that this would have been without cause, and violative of his tenure status."


Plaintiff alleges that Defendants'"actions had the effect of subjecting the Plaintiff to public embarrassment and humiliation, feelings of insecurity in his job, public ridicule, [and] belittlement." Id . Furthermore, Plaintiff contends that Defendants' retaliatory acts forced him "to operate in an environment that was hostile and filled with pervasive intimidation, and insult that was sufficiently severe as to significantly alter the conditions of his employment, creating an uncomfortable and threatening working environment." Id . Plaintiff also asserts that, when he was "snubbed by the Board, " and "when a tenured faculty member... was summarily fired, in 2012, the intimidation level rose, as the faculty morale sank." Id.

C. Procedural History

Plaintiff filed his original Complaint in this Court on March 21, 2013. ECF No. 1. Defendants filed a Motion to Dismiss Plaintiff's Complaint on July 22, 2013, ECF No. 4, which was rendered moot when Plaintiff filed an Amended Complaint on August 12, 2013, ECF No. 12. Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint, arguing that the Court lacked subject matter jurisdiction over Plaintiff's ADEA claim and that his Title VII and EPA claims "fail[ed] to state a cause of action for which relief may be granted." ECF No. 13.

Upon review of Defendants' Second Motion to Dismiss, the Court identified numerous deficiencies in Plaintiff's Amended Complaint and dismissed the Amended Complaint without prejudice. Recognizing that it was "at least conceivable that Plaintiff could set forth sufficient facts to support his discrimination and retaliation claims, " the Court granted Plaintiff leave "to file a Second Amended Complaint curing the deficiencies identified" upon the Court's review of Defendants' Second Motion to Dismiss. ECF No. 21 at 28-29; Earl v. Norfolk State Univ., No. ...

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