United States District Court, W.D. Virginia, Roanoke Division
[Copyrighted Material Omitted]
For Harold Garner, Plaintiff: Andrew Paul Connors, Keith Finch, LEAD ATTORNEYS, The Creekmore Law Firm, P.C., Blacksburg, VA; Steven K. Hoffman, LEAD ATTORNEY, PRO HAC VICE, James & Hoffman, P.C., Washington, DC; James Robert Creekmore, The Creekmore Law Firm, P.C., Blacksburg, VA.
For Mark McNamee personally and in his official capacity as Provost, Robert Walters personally and in his official capacity as Vice President for Research, Dennis Dean personally and in his official capacity as Executive Director, Virginia Bioinformatics Institute, Defendants: Kay Kurtz Heidbreder, LEAD ATTORNEY, UNIVERSITY LEGAL COUNSEL, VIRGINIA TECH, BLACKSBURG, VA; Marvin Hudson McClanahan, LEAD ATTORNEY, Virginia Polytechnic Institute and State University Associate University Legal Counsel & Spcl Assistant Atty Gen, Blacksburg, VA.
Glen E. Conrad, Chief United States District Judge.
Pending before the court is defendants' motion to dismiss the first amended complaint, Dkt. No. 3, which seeks dismissal of plaintiff's amended complaint in its entirety. Plaintiff has filed a response in opposition, Dkt. No. 12, and defendants have filed a reply, Dkt. No. 13. The court heard oral argument on the motion and it is now ripe for disposition. For the reasons set forth below, the motion to dismiss is granted in part and denied in part.
A. General Factual Background and Parties
Accepting the well-pled facts in the first amended complaint as true, as this court must when ruling on a motion to dismiss, see Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008), the facts of case are as follows:
Plaintiff Harold Garner (" Garner" ) is currently employed as a professor at Virginia Polytechnic Institute and State University (" Virginia Tech" or the " University" ). Garner was hired in October 2009 to be the Executive Director of the Virginia Bioinformatics Institute (" VBI" ). In March 2012, Garner's position was changed to that of Director of the Medical Informatics and Systems Division at VBI. Garner brought this action against Charles Steger (" Steger" ), former President of Virginia Tech; Mark McNamee (" McNamee" ), Provost of Virginia Tech; Robert Walters (" Walters" ), Vice President for Research at Virginia Tech; and Dennis Dean (" Dean" ), current Director of VBI, in their official and individual capacities. The court recently allowed plaintiff to substitute Timothy D. Sands, the current President of Virginia Tech, in place of Steger as to claims asserted against Steger in his official capacity. Dkt. No. 17. Garner's complaint contains three claims brought pursuant to 42 U.S.C. § 1983. All three allege that his change in position constituted a denial of due process in violation of the United States Constitution. Dkt. No. 2, ¶ ¶ 1-9.
B. Original Hiring and Subsequent Audit
Garner was hired as the Executive Director of VBI in October 2009. In a document titled the " Terms of Faculty Offer" and signed by Garner and by Steger on behalf of Virginia Tech, the only monetary compensation referenced was Garner's salary--a base salary of $250,000 plus a $60,000 annual administrative supplement. See Dkt. No. 3-1 at 1-3. In a letter sent to Garner enclosing that document, Steger also referred to " other matters related to his appointment as Executive Director of the [VBI]." Dkt. No. 3-1 at 4-6. That letter stated additional terms that were not in the signed " Terms of Faculty Offer" document. Specifically, the letter provided
that Garner would be provided with a start-up package that would include a one-time equipment expenditure of $300,000 to $500,000, as well as $1,000,000 in annual salaries to hire laboratory staff and key researchers. Id. at 5. As described by the complaint, $500,000 of that was for laboratory funding and was " in lieu of an endowed chair" and the other $500,000 of that annual expenditure was designed " to launch and grow a new medical informatics division for VBI." Dkt. No. 2, ¶ 13. Garner served as the Executive Director of VBI without incident until August 2011.
In August 2011, Walters informed Garner that he and VBI would be audited. Dkt. No. 2, ¶ 23. Garner cooperated with University officials during the audit, and the auditors interviewed Garner on December 15, 2011. Id. ¶ 26. On February 29, 2012, the auditors sent Garner a draft of their report and assured Garner that he would have an opportunity to review the report for factual accuracy and respond to its draft findings. Id. ¶ 27. Garner reviewed the report and sent a response to the auditors on March 5, 2012, copying Walters, McNamee, and University General Counsel Kay Heidbreder. Id. ¶ 28. That same day, Garner met with Walters, McNamee, and two auditors in order to review the draft report and Garner's response. Id. ¶ 29. Although the draft report contained information about errors related to VBI accounting, no one present at the meeting indicated that Garner would be removed as the director of VBI or otherwise be disciplined. Id. ¶ ¶ 30-31. The auditors then distributed their final report on March 8, 2012. Id. ¶ 33.
C. Garner's Change in Position
On March 8, 2012, Walters met with Garner in Walters' office and gave Garner a letter informing him that his position was being changed to that of Director of the Medical Informatics and Systems (" MIS" ) division of VBI. Id. ¶ 34. The letter stated that Garner's salary would not be reduced as a result of this position change. Dkt. No. 3-3. It further explained that he was being transferred to " allow [him] to focus more fully on the [MIS] Division, a program that has significant potential for growth through its contributions to research at the interface of medicine, molecular biology and informatics." Id. Additionally, Walters ...