United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge
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 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.
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.)
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.
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. ¶
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.
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
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
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.
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.
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.