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Bayandor v. Virginia Polytechnic and State University

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

March 25, 2019



          Elizabeth K. Dillon, United States District Judge

         Plaintiff Javid Bayandor, a former professor at Virginia Polytechnic Institute and State University (Virginia Tech), alleges that Virginia Tech and the Commonwealth of Virginia (collectively “Virginia Tech”) and its provost, Thanassis Rikakis, discriminated and retaliated against him due to his disability and/or national origin[1] by subjecting him to unjustified audits, not awarding him tenure, failing to follow the tenure appeal process in Virginia Tech's faculty handbook, and wrongfully terminating him.

         This matter is before the court on three motions. First, defendants have filed a joint motion to dismiss, which has been fully briefed and was argued before the court. (Dkt. No. 11.) Second, on the same day he responded to defendants' motion to dismiss, Bayandor filed a motion for leave to file an amended complaint and attached his proposed first amended complaint. (Dkt. No. 21.) Defendants did not file a response in opposition and noted at the hearing that they recognized that opposition to such a motion is generally not fruitful given the lenient standard. Defendants' briefing as to the motion to dismiss addressed only the original complaint, and, while the parties touched on the proposed amended complaint, defendants made clear that they were arguing to dismiss the original complaint, as filed. All parties recognized, and plaintiff made clear at the hearing, that plaintiff was withdrawing his claims in Count IV (Bowman claim) and Count VI (Title VI claim), so those claims were not argued and are not considered herein. Third, after the hearing, Bayandor filed a motion for leave to supplement the record regarding his opposition to defendants' motion to dismiss, which defendants opposed, in part. (Dkt. No. 27.)

         For the following reasons, the court will grant in part and deny in part Bayandor's motion for leave to supplement the record, and it will grant defendants' motion to dismiss, although three claims will be dismissed without prejudice. The court will also grant plaintiff's motion for leave to amend but will not allow the filing of the proposed amended complaint that was submitted with the motion, for the reasons stated herein. Instead, plaintiff will be granted leave to file a newly amended complaint with regard to the claims that are dismissed without prejudice.

         I. INTRODUCTION[2]

         In October 2009, Virginia Tech hired Bayandor, who was tenured at his previous university, as an untenured Associate Professor of Mechanical Engineering. Bayandor's national origin is Iranian, and his race is Western Asian/Middle Eastern. Bayandor alleges that he felt “ostracized at times” by Virginia Tech's “discriminatory animus against his national origin, ” an animus that Virginia Tech has a “history of.” (Compl. ¶¶ 10-11, Dkt. No. 1.) Furthermore, “[t]hroughout his career [there], Dr. Bayandor was subjected to numerous and unwarranted investigations and audits, which similarly situated American or Caucasian faculty members did not experience.” (Compl. ¶ 12.)

         Bayandor was involved in a car accident in January 2011 that caused him to suffer left shoulder, spine, and nervous system damage. Virginia Tech granted Bayandor an accommodation to allow him to recover, and he did not work actively for the fall 2011 or spring 2012 terms. It appears that Bayandor returned to work for the fall 2012 term.

         In February 2013, Bayandor applied for, and received, a one-year extension regarding his candidacy for tenure, known as a stop clock period, in order to “undergo medical procedures and help him with recovery.” (Compl. ¶¶ 17-18.) Bayandor alleges that he was asked more than once to provide an updated dossier and status report throughout the one-year extension, even though such reviews were not supposed to be performed during the stop clock period. Bayandor later verbally requested an additional one-year extension of the stop clock period, “follow[ing] applicable Departmental procedures” to request it, but his requests were ignored. (Compl. ¶ 20.) After the stop clock period ended, Bayandor applied for tenure and was denied.

         The complaint asserts that although obtaining tenure at Virginia Tech is the result of a “sophisticated, yet subjective” process (Compl. ¶ 26), the promotion and tenure committee (P & T committee) that reviewed Bayandor's application was manipulated by one of its members, Dr. Parker. Parker, Bayandor's direct supervisor, allegedly “manipulated” the decision-making process because he “took issue with . . . Bayandor's disability and related medical issues.” (Compl. ¶ 28.) Additionally, Bayandor alleges that defendants intentionally ignored a number of his positive qualifications. (Compl. ¶ 34.) He asserts that, but for defendants' “discriminatory animus against individuals with disabilities, national origin, or both” (Compl. ¶ 32), he would have been awarded tenure.

         After being denied tenure by the P & T committee, Bayandor met with the “college-level committee, ” which conducted Bayandor's first-level appeal of the P & T committee's denial of tenure, on January 21, 2016. Bayandor was informed that the college-level committee upheld the denial of tenure on January 25. Bayandor sent a letter appealing to the provost on February 24, but he did not receive a reply.

         On January 19, 2017, Bayandor filed suit in the Circuit Court of Montgomery County, asserting claims against the defendants very similar to the claims in this case but under the Virginians with Disabilities Act. Virginia Tech later filed a demurrer, plea in bar, and answer. The following month, Carolyn Fulk, Principal Auditor for Special Projects, contacted Bayandor about auditing an alleged interaction between a privately-funded project and a NASA-funded project. Bayandor cooperated with the audit, and the auditor eventually concluded that Bayandor did not violate Virginia Tech or NASA rules or regulations. (Compl. ¶ 58.) Bayandor sent another letter appealing to the provost regarding his tenure at the end of March, and again he received no reply. On April 11, 2017, Bayandor's legal counsel received an email from Virginia Tech's legal counsel indicating that he would not be awarded tenure. Bayandor argues that this email was when the tenure decision became “final.” The defendants, in contrast, claim the tenure decision was final on January 25, 2016, when Bayandor was informed that the college-level committee had upheld the denial of tenure.

         Bayandor's employment with Virginia Tech ended in May 2017 (Compl. ¶ 63), and he voluntarily non-suited his circuit court case the same month. He filed his complaint in this court on January 22, 2018. The complaint contains five counts that plaintiff pursues: Counts I-III (against Virginia Tech): discrimination, retaliation, and failure to accommodate, respectively, in violation of the Rehabilitation Act of 1973; Count V (against all defendants): due process claim for deprivation of liberty interest; and Count VII (against Provost Rikakis): discrimination and retaliation under 42 U.S.C. § 1981 based on national origin.


         A. ...

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