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Balas v. Visitors of Longwood College

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

February 3, 2017

AYSENILGUNBALAS, Plaintiff,
v.
THE VISITORS OF LONGWOOD COLLEGE et al., Defendants.

          OPINION

          John A. Gibney, Jr. Judge

         Ayse Nilgun Balas-a woman of Turkish ethnicity and national origin-taught marketing at Longwood University ("Longwood") in the College of Business and Economics (the "CBE"). After Longwood denied her tenure application, Balas sued the Visitors of Longwood University and eight people in both their individual and official capacities. Balas alleges a procedural due process violation in Count I, and discrimination and retaliation under 42 U.S.C. § 1981 in Counts II and III. The defendants have moved to dismiss the case. Because the tenure application process does not give rise to a protected property interest under the Fourteenth Amendment, the Court GRANTS the motion to dismiss Count I. Nevertheless, because of the inference drawn from remarks that Balas did not "fit in" at Longwood because of her accent, and because Balas complained of discrimination before her termination, the Court DENIES the motion as to Counts II and III.

         I. BACKGROUND

         Longwood, a state-supported university, hired Balas in 2009 as an assistant professor of marketing in the CBE. After a five-year probationary period, Balas could apply for a tenured position. Each year during the probationary period, both the relevant department chair and the Promotion and Tenure Committee (the "P&T Committee")[1] evaluated the faculty member's performance. The performance reviews focus on three areas: teaching, scholarship, and service.

         In November 2011, Balas's department chair, John Gaskins, sent a letter reviewing her professional file and noted: "One area for potential improvement is in the speech patterns in your presentation. Your command of the vocabulary and grammar is excellent, and your accent does not interfere with comprehension, but the cadence and inflections in your speech patterns might be difficult for some to follow." (Reply Ex. I.)[2] In Balas's annual performance evaluation dated May 10, 2012, Gaskins rated Balas's teaching as "Satisfactory, " and commented that "[l]ittle progress has been made ... in addressing the cadence and inflection issues cited earlier. As we discussed, I am concerned that you may not be projecting sufficient presence in the classroom." (Opp'n Ex. 1.) Gaskins rated Balas's scholarship, service, and overall performance as "Needs Improvement." On May 17, 2012, Balas responded to Gaskins's evaluation, noting her objections.

         On May 21, 2012, the Dean of the CBE, Paul Barrett, told Balas that Longwood would not renew her contract. Dean Barrett told Balas "that he was issuing a terminating contract because [Balas was] 'not a good fit' with the College." (Am. Compl. Ex. 2.) Longwood issued a terminating contract on June 11, 2012. On June 22, 2012, Balas appealed the terminating contract to the Faculty Status and Grievance Committee (the "FSGC"). On June 30, 2012, Balas signed the terminating contract, but added a statement that Dean Barrett, Department Chair Gaskins, and others had unlawfully discriminated against her.

         On September 28, 2012, the FSGC recommended reversing the termination decision and reissuing Balas a contract for the next academic year. The FSGC based its decision on the "troubling" process, most notably the timeline between the annual performance evaluation and the recommendation to issue a terminating contract. In the same letter, however, the FSGC noted that no violation of university policy occurred when Gaskins rated Balas as "Needs Improvement" in her performance evaluation. On October 5, 2012, Dean Barrett and the Provost, Kenneth Perkins, affirmed the findings of the FSGC and reappointed Balas for another year.

         In October 2013, the P&T Committee met to discuss probationary faculty members, including Balas. At that time, two of the defendants. Claire La Roche and Cheryl Adkins, and two non-defendants, Glenn Dardick and Raymond Brastow, made up the P&T Committee. During a discussion of faculty members with foreign accents, including Balas, La Roche expressed an opinion that some faculty members did not "fit in" at Longwood. La Roche also shared that she had "received complaints from students that could not understand Dr. Balas." (Am. Compl. Ex. 3.) When questioned about these comments by Dardick, La Roche did not elaborate. La Roche also raised concerns about Balas's grading curve and research publications, but did not raise similar concerns about another faculty member under evaluation. After this meeting, Dardick expressed concerns to Dean Barrett and Provost Perkins about discrimination by the P&T Committee against Balas.

         Charles White replaced Gaskins as department chair, and Gaskins replaced Dardick on the P&T Committee. Balas asked Gaskins to recuse himself from considering her tenure application with the P&T Committee based on his prejudice against her for asserting her rights. Gaskins refused.

         In May 2014, Department Chair White rated Balas's teaching, scholarship, and service as "Meets Expectations." Then, in October 2014, White told Balas he could not recommend her for tenure based on the quality of her scholarship. On the same day, the P&T Committee-now made up of Gaskins, La Roche, Adkins, and Frank Bacon-agreed not to support Balas for tenure. Both White and the P&T Committee denied Balas's requests for reconsideration. Dean Barrett and Provost Perkins concurred in the recommendation against tenure.

         On January 16, 2015, Balas submitted a grievance for the denial of tenure to the FSGC. On February 20, 2015, after conducting a hearing, the FSGC issued its opinion. The FSGC noted some "alarm*' at the process used by the P&T Committee and described the P&T Committee's "sloppy work." The FSGC did find some of Balas's claims unsubstantiated, such as Department Chair White's assessment of the quality of her scholarship.[3] Nevertheless, the FSGC recommended correcting some of the procedural errors, giving Balas an opportunity to submit additional information, then having Department Chair White and the P&T Committee reassess Balas's tenure application. Presumably after completing these steps, White and the P&T Committee reiterated their recommendation against tenure. Balas appealed to Dean Barrett, Provost Perkins, the President of Longwood University, and the Board of Visitors. All appeals were denied. On June 30, 2015, Longwood issued Balas a terminating contract.

         II. DISCUSSION[4]

         Balas alleges three counts in her amended complaint: (I) deprivation of due process in violation of 42 U.S.C. § 1983; (II) national origin discrimination under § 1981 in violation of § 1983; and (III) retaliatory discharge under § 1981 in violation of § 1983. The defendants move to dismiss all counts.

         As an initial housekeeping matter, the Court dismisses the Visitors of Longwood University as immune from suit under the Eleventh Amendment. The Eleventh Amendment extends to state universities and their boards of visitors, and Congress has not abrogated Eleventh Amendment immunity for claims brought under § 1981 or § 1983. See Herron v. Va. Commonwealth Univ.,366 F.Supp.2d 355, 363-64 (E.D. Va. 2004), aff'd 116 F.App'x 467 (4th Cir. 2004). Nevertheless, the Court will allow the claims against the individual defendants in their official capacities to proceed under the doctrine of Ex Parte Young, ...


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