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Verges v. Virginia Highlands Community College

United States District Court, W.D. Virginia, Abingdon Division

May 25, 2016

CARMEN A. VERGÈS, Plaintiff,

          Harris D. Butler, III and Paul M. Falabella, Butler Royals, PLC, Richmond, Virginia, for Plaintiff;

          G. William Norris, Jr., Office of the Attorney General, Richmond, Virginia, and Katherine M. DeCoster, Office of the Attorney General, Abingdon, Virginia, for Defendants.


          James P. Jones United States District Judge.

         The plaintiff in this case asserts claims of national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), age discrimination under 42 U.S.C. § 1983 and the Age Discrimination and Employment Act (“ADEA”), and breach of contract. Because I find that the Complaint fails to state a claim upon which relief can be granted under § 1983 or the ADEA, I will grant the Motion to Dismiss with respect to the plaintiff’s age discrimination claim. However, I find that the Complaint adequately pleads claims of national origin discrimination and breach of contract, and I will deny the Motion to Dismiss as to those claims.


         The Complaint alleges the following facts, which I must accept as true for purposes of deciding the Motion to Dismiss.

         The plaintiff, Carmen A. Vergès, is a seventy-nine-year-old Hispanic woman of Puerto Rican origin. She began teaching at Virginia Highlands Community College (“VHCC”) in 1972. VHCC is a public institution and part of the Virginia Community College System (“VCCS”). As of November, 2014, Vergès held the position of Associate Professor, was a tenured faculty member, and had a five-year appointment contract running from August, 2012, through May, 2017.

         Vergès taught courses in Spanish, French, and psychology. She consistently received positive evaluations from her students and VHCC administrators, and she met or exceeded her employer’s legitimate performance expectations.

         Throughout most of her employment, Vergès was the only minority faculty member at VHCC. She vocally opposed VHCC’s practices that had the effect of limiting minority hiring. At some unspecified time in the past, Vergès spoke with federal investigators about the lack of minority faculty members at VHCC. Just before the commencement of the federal investigation, Vergès was promoted to a full-time faculty position and assigned to teach nursing.[1] Vergès alleges that she was promoted “so that VHCC would have at least one minority faculty member.” (Compl. ¶ 12, ECF No. 1.) According to the Complaint, “VHCC is well aware of her view on the lack of minority representation, which has improved little through the years.” (Id. at ¶ 13.)

         In August, 2014, VHCC had a new president, defendant Gene C. Couch, Jr. At a faculty event that month, Couch recognized Vergès and another faculty member as the longest serving professors at VHCC. Couch mispronounced Vergès’s name, and she corrected him. Vergès alleges that Couch appeared angry at her correction.

         During the fall semester of 2014, Vergès taught Abnormal Psychology and three Spanish courses. In November, 2014, Couch informed Vergès that he was eliminating her position effective February 1, 2015. Couch told Vergès that the decision was based on low enrollment in Spanish classes. VHCC later stated that her position was eliminated due to budget cuts. Vergès alleges that the true reasons for her termination were age discrimination and national origin discrimination. In January, 2015, VHCC announced that it would host a retirement party for Vergès, despite the fact that she had no plans to retire.

         According to the Complaint, VHCC has sufficient financial resources to fund Vergès’s position, and enrollment in Spanish courses at VHCC has not decreased significantly. Because Vergès can and has taught courses in French and Psychology in addition to Spanish, she contends that lower enrollment in Spanish classes alone would not justify her termination. Moreover, since VHCC terminated Vergès, it has continued to offer a full slate of Spanish and psychology courses. Vergès alleges that when similarly situated younger, non-Hispanic and non-Puerto Rican professors have encountered low enrollment in their courses, VHCC has assigned them to teach other courses outside of their primary area of expertise.

         Vergès contends that her tenured status and appointment contract provided her certain preferences, procedures, and protections from lay-off, but that the defendants disregarded those protections and procedures. Her Faculty Employment Contract (“Employment Contract”), which had been signed by Couch’s predecessor in June, 2014, incorporated by reference “the general conditions of employment set forth in the VCCS Policy Manual, Virginia Highlands Community College policies, and the laws of the Commonwealth of Virginia.”[2] (Br. in Supp. of Defs.’ Mot. to Dismiss Pl.’s Compl. Ex. A, ECF No. 5-1 at 1.)

         The VCCS policy regarding faculty appointments states, “Once a faculty member has been granted a five-year appointment, subsequent three or five multi-year renewal is presumed unless cause for discontinuance is demonstrated following review by the Ad Hoc Appointment Advisory Committee.” (Id., ECF No. 5-1 at 3.) The policy governing reduction in staff for faculty states in a footnote that “[a]ll faculty appointments are subject to a contingency of possible termination in the event there is a lack of such funds appropriated to meet all of the budgeted operating expenses of the college for the period covered by the appropriation.” (Id., ECF No. 5-1 at 12.) Under the policy, VHCC’s administration “must explore all reasonable alternatives to the termination of fulltime positions” before implementing a reduction in staff. (Id., ECF No. 5-1 at 9.) The policy provides that “teaching faculty within a given discipline, teaching field, or program shall be released in order of least seniority.” (Id., ECF No. 5-1 at 10.) It further states, “Affected faculty members shall be given the right of interview for vacant permanent positions anywhere in the VCCS provided they are qualified for said positions.” (Id., ECF No. 5-1 at 11.) Moreover, the policy provides that “[a]ffected faculty members shall have first refusal of permanent positions should they be reestablished within the remaining term of their appointment.” (Id.) Additionally, faculty members who are qualified to teach in fields other than their primary field “shall be placed in such a permanent position within the college provided a vacancy exists in the secondary ...

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