Gingold v. West Virginia University, Board of Governors

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

HARRY GINGOLD,

Plaintiff,

v. CIVIL NO. 1:23-CV-91

(KLEEH)

WEST VIRGINIA UNIVERSITY

BOARD OF GOVERNORS,

E. GORDON GEE,

MARYANNE REED,

GREGORY DUNAWAY, and

EARL SCIME,

Defendants.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

Pending before the Court is a Report and Recommendation

(“R&R”) by the Magistrate Judge. The R&R recommends that the Court

grant Defendants’ motion to dismiss and dismiss Plaintiff’s claims

with prejudice. For the reasons discussed herein, the Court ADOPTS

the R&R IN PART, REJECTS it IN PART, and GRANTS Defendants’ motion

to dismiss.

I. PROCEDURAL HISTORY

On November 13, 2023, the pro se Plaintiff, Harry Gingold

(“Plaintiff”), filed a complaint in this action. He filed an

amended complaint one week later. In it, he alleges that the

Defendants, the West Virginia University Board of Governors

(“WVUBOG”), West Virginia University President E. Gordon Gee

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

(“Gee”), Provost and Vice President for Academic Affairs Maryanne

Reed (“Reed”), Dean of the Eberly College of Arts and Sciences

Gregory Dunaway (“Dunaway”), and Director of the School of

Mathematics and Data Sciences Earl Scime (“Scime”) (together,

“Defendants”) violated his constitutional and statutory rights

with respect to his employment at West Virginia University. On

December 20, 2023, Defendants filed a motion to dismiss. On July

16, 2024, the Magistrate Judge filed an R&R addressing the motion

to dismiss. Plaintiff filed objections to the R&R, and it is now

ripe for decision. Due to the extensive nature of Plaintiff’s

objections, the Court reviews the R&R de novo.

II. STATEMENT OF FACTS

For purposes of analyzing Defendants’ motion to dismiss, the

Court assumes that the following set of facts, taken from the

amended complaint, is true. Plaintiff is a tenured mathematics

professor in the School of Mathematics and Data Sciences at West

Virginia University. Am. Compl., ECF No. 8, at ¶ 15. He is 78

years old and began his employment with West Virginia University

in 1981. Id. ¶ 16. Plaintiff’s allegations stem from several

events that have taken during his employment.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

A. Letter of Reprimand and Performance Evaluation

On July 1, 2021, Scime advised Plaintiff that he decided to

place a letter of reprimand in Plaintiff’s personnel file. Id.

¶ 74. Plaintiff was not given an opportunity to be heard prior to

the decision to issue the reprimand, and it is unknown what

investigation, if any, was carried out prior to Scime’s decision.

Id. ¶¶ 77, 92. Additionally, as part of Plaintiff’s 2021 annual

performance evaluation dated January 18, 2022, Scime rated

Plaintiff’s teaching as “unsatisfactory.” Id. ¶ 79. During the

previous 15 years, Plaintiff’s teaching had been rated “good” or

“excellent.” Id. ¶ 81.

On June 29, 2021,1 Plaintiff appealed these decisions to

Dunaway. Id. ¶ 85. Dunaway upheld Scime’s reprimand decision but

directed Scime to upgrade Plaintiff’s teaching evaluation. Id.

¶¶ 86-87. On November 11, 2022, Scime upgraded Plaintiff’s

teaching evaluation to “satisfactory.” Id. ¶ 91. Plaintiff was

not given an opportunity to be heard before Dunaway decided to

uphold the decision to reprimand. Id. ¶ 90. Plaintiff claims

that the placement of the reprimand letter and the teaching

evaluation made him “vulnerable to being dismissed for cause,”

1 The Court recognizes that this date, which is included in the

amended complaint, is earlier than the date of Scime’s letter

advising Plaintiff of the forthcoming letter of reprimand.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

made him “vulnerable to sanctions like suspension, demotion and/or

pay cut,” and made him ineligible for merit pay. Id. ¶¶ 82–84. He

asserts that the evaluation violated WVUBOG’s guidelines, rules,

and regulations. Id. ¶¶ 97, 99.

B. The Distinguished Professorship Award

Prior to February 20, 2023, the Eberly College of Arts and

Sciences solicitated applications for the Eberly Family

Distinguished Professor of Mathematics award (the “Distinguished

Professorship Award”). Id. ¶ 20. The call listed five criteria,

including the expectation that the individual “play a key role in

graduate student recruitment and training.” Id. ¶¶ 21, 33; Exh.

2 to Am. Compl. The application required various materials,

including a letter of availability from the applicant’s unit chair.

Am. Compl., ECF No. 8, at ¶ 23; Ex. 2 to Am. Compl. Plaintiff

requested a letter from Scime (his unit chair) and provided him

with his qualifications. Am. Compl., ECF No. 8, at ¶¶ 24, 27.

Scime responded as follows:

Sorry no, I am tied up at my other office until

1. Rather than beat around the bush, let me

get to the point. For me to write such a

letter of support, I would need to understand

how you would see yourself becomes a major

leader of research in the department and

staying in that role for the next five years.

A person holding an endowed research chair is

ideally going to lead a major research program

in the department, train students (which you

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

do), mentor younger faculty in research,

publish high visibility research, seek

research funding, and really drive research

forward in the department. It is not, in my

opinion, a “reward” for a career of excellent

research. It is instead, a leadership role

for the next five years. So how do you see

yourself engaging in that role? Is such a

role what you are wanting to do?

Exh. 2 to Am. Compl, ECF No. 8-2. Scime demanded additional

qualifications from Plaintiff that were not among the requirements

for the Distinguished Professorship Award. Am. Compl., ECF No. 8,

at ¶ 30. After the Office of the Dean learned of Scime’s

communications with Plaintiff, Scime wrote the letter of

availability on behalf of Plaintiff, but he failed to mention

Plaintiff’s successful mentoring of graduate students. Id. ¶¶ 31-

32. Plaintiff submitted his application for the Distinguished

Professorship Award on February 20, 2023, but a younger candidate

was ultimately selected. Id. ¶¶ 32-33.2

C. Sabbatical Application

On April 14, 2023, Plaintiff applied for a sabbatical for the

Spring 2024 semester. Id. ¶ 34. Plaintiff accidentally learned

that WVUBOG did not intend to award him a sabbatical. Id. ¶¶ 38-

39. On May 25, 2023, prior to receiving an official determination,

2 The Court notes that the Amended Complaint includes some

typographical errors: Plaintiff included two paragraphs labeled 32

and two paragraphs labeled 33.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

Plaintiff filed a charge with the U.S. Equal Employment Opportunity

Commission (“EEOC”). In it, Plaintiff alleged that he was being

discriminated against on the basis of age, in violation of the Age

Discrimination in Employment Act (“ADEA”), with respect to his

sabbatical application, because a younger faculty member’s

sabbatical application was approved. Id. ¶¶ 37, 41; Exh. A to

Memo. in Support of Mot. to Dismiss, ECF No. 16-1.3 On July 25,

2023, at the suggestion of the Dean’s Office, Plaintiff submitted

a modified sabbatical application, and on August 21, 2023, his

modified application was approved for the Spring 2024 semester.

Am. Compl., ECF No. 8, at ¶¶ 40, 46-47.

D. Increased Course Load

On May 3, 2023, Scime notified Plaintiff and two other faculty

members that as a part of a response to budget reductions, because

the faculty members were not currently dissertation committee

chairs for PhD students, their course loads for the Fall 2023

3 Plaintiff’s EEOC charge is an authenticated documented that is

integral to the allegations in the amended complaint and,

therefore, can be considered without converting the motion into

one for summary judgment. See Occupy Columbia v. Haley, 738 F.3d

107, 116 (4th Cir. 2013) (“A court may . . . consider a written

instrument attached as an exhibit to a pleading, as well as

documents attached to the motion to dismiss,” without converting

the motion into one for summary judgment, “so long as they are

integral to the complaint and authentic.”) (quotation marks and

citations omitted).

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

semester would increase from two to three courses. Id. ¶ 48; Exh.

3 to Am. Compl., ECF No. 8-3. Plaintiff had taught two courses

per semester for over 42 years. Am. Compl., ECF No. 8, at ¶ 49.

On May 14, 2023, based on this information, Plaintiff filed a

grievance with the West Virginia Public Employees Grievance Board

(“WVPEGB”), alleging discrimination, favoritism, reprisal, and

retaliation. Exh. 3 to Am. Compl., ECF No. 8-3. Plaintiff also

asserted these claims as part of his charge with the EEOC (filed

on May 25, 2023), alleging that the increased course load was a

result of age discrimination in violation of the ADEA. Exh. A to

Memo. in Supp. of Mot. to Dismiss, ECF No. 16-1.

On June 5, 2023, a conference was conducted among the parties

to the WVPEGB grievance, and Plaintiff informed the grievance

administrator that he was scheduled to advise a PhD student during

the Fall semester. Exh. 5 to Am. Compl., ECF No. 8-5. The parties

held the grievance in abeyance to allow WVUBOG to investigate

Plaintiff’s representation. Id. WVUBOG subsequently advised the

grievance administrator and Plaintiff that it confirmed

Plaintiff’s representation. Id. Accordingly, WVUBOG agreed to

return Plaintiff’s teaching assignment to two classes for the

semester, and on July 21, 2023, the grievance was dismissed. Id.;

Am. Compl., ECF No. 8, at ¶ 56.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

Plaintiff also generally alleges that in the past “several

years,” the Mathematics Department and/or the School of

Mathematics and Data Sciences made several tenure track faculty

appointments for positions with 40% teaching, 40% research, and

20% service, and younger faculty “exclusively” were given

preference over older candidates who were “exceptionally

qualified[.]” Am. Compl., ECF No. 8, at ¶¶ 104, 105. On October

4, 2023, the EEOC issued a Right to Sue notice. Id. ¶ 103.

Based on these allegations, Plaintiff asserts various claims

against Defendants for (1) age discrimination in violation of the

ADEA; (2) retaliation in violation of the ADEA, Title VI, and/or

Title VII of the Civil Rights Act; (3) violations of due process

under 42 U.S.C. § 1983; (4) breach of contract and/or breach of

the implied covenant of good faith and fair dealing; and (5)

hostile work environment. Plaintiff’s claims are brought against

the individual defendants in their official and individual

capacities.

III. STANDARD OF REVIEW

Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows

the Court to dismiss an action for lack of jurisdiction over the

subject matter. A plaintiff bears “the burden of proving that

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

subject matter jurisdiction exists.” Evans v. B.F. Perkins Co.,

166 F.3d 642, 647 (4th Cir. 1999). In considering a motion to

dismiss pursuant to Rule 12(b)(1), the court should “regard the

pleadings as mere evidence on the issue, and may consider evidence

outside the pleadings without converting the proceeding to one for

summary judgment.” Id. (citation omitted). The court should grant

the motion “only if the material jurisdictional facts are not in

dispute and the moving party is entitled to prevail as a matter of

law.” Id. (citation omitted). When a defendant asserts multiple

defenses, “questions of subject matter jurisdiction must be

decided first, because they concern the court's very power to hear

the case.” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4

(4th Cir. 1999) (citations and quotation marks omitted).

Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a defendant to move for dismissal upon the ground that a complaint

does not “state a claim upon which relief can be granted.” In

ruling on a 12(b)(6) motion to dismiss, a court “must accept as

true all of the factual allegations contained in the complaint.”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007)

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). A court is

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

“not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plausibility exists “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not

resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses.” Republican Party of N.C. v.

Martin, 980 F.2d 942, 952 (4th Cir. 1992). Dismissal is

appropriate only if “it appears to be a certainty that the

plaintiff would be entitled to no relief under any state of facts

which could be proven in support of its claim.” Johnson v.

Mueller, 415 F.2d 354, 355 (4th Cir. 1969).

IV. DISCUSSION

For the reasons discussed below, Defendants are entitled to

sovereign immunity in their official capacities, with respect to

all claims except those under Title VII. Regardless, all of

Plaintiff’s claims fail under Rule 12(b)(6).

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

A. With the exception of claims under Title VII, Defendants

are entitled to sovereign immunity in their official

capacities.

The Eleventh Amendment to the United States Constitution

provides, in pertinent part, “The Judicial power of the United

States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States

by Citizens of another State[.]” “[A]bsent waiver by the State or

valid congressional override, the Eleventh Amendment bars a

damages action against a State in federal Court.” Kentucky v.

Graham, 473 U.S. 159, 169 (1985). Generally, this Court, and

others, have held that WVUBOG is immune from suit under the

Eleventh Amendment. See W. Va. Univ. Bd. of Governors ex rel. W.

Va. Univ. v. Rodriguez, 543 F. Supp. 2d 526, 535 (N.D.W. Va. 2008)

(“West Virginia University and its Board of Governors are arms and

alter egos of the State of West Virginia.”); Al-Asbahi v. W. Va.

Univ. Bd. of Governors, No. 1:15CV144, 2017 WL 402983, at *10

(N.D.W. Va. Jan. 30, 2017), aff’d, 724 F. App’x 266 (4th Cir.

2018). Eleventh Amendment immunity also “applies to . . . state

employees acting in their official capacity.” Harter v. Vernon,

101 F.3d 334, 337 (4th Cir. 1996) (citation omitted). “[A] suit

against a state official in his or her official capacity is not a

suit against the official but rather is a suit against the

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

official’s office. . . . As such, it is no different from a suit

against the State itself.” Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (citations omitted).

There are three exceptions to sovereign immunity. See Lee-

Thomas v. Prince George’s Cnty. Pub. Sch., 666 F.3d 244, 248–49

(4th Cir. 2012). First, the State may waive its right to immunity

and consent to suit. Lapides v. Bd. of Regents of Univ. Sys. of

Ga., 535 U.S. 613, 618 (2002). Obviously, the State of West

Virginia did not waive its right to immunity in one of the federal

statutes at play, nor did it waive its right to immunity with

respect to any breach of contract or hostile work environment

claim. Second, “Congress may abrogate the States’ Eleventh

Amendment immunity when it both unequivocally intends to do so and

‘act[s] pursuant to a valid grant of constitutional authority.’”

Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)

(quotation marks and citation omitted). This will be discussed

below. Third, “the Eleventh Amendment permits suits for

prospective injunctive relief against state officials acting in

violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S.

431, 437 (2004) (citation omitted). Plaintiff seeks no prospective

injunctive relief here.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

While the ADEA, Title VI, and 42 U.S.C. § 1983 provide for

federal causes of action, they do not abrogate the Eleventh

Amendment. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91

(2000) (ADEA does not validly abrogate); Gomez v. Illinois State

Bd. of Educ., 811 F.2d 1030, 1038 (7th Cir. 1987) (Title VI does

not abrogate); Quern v. Jordan, 440 U.S. 332, 332 (1979) (42 U.S.C.

§ 1983 does not abrogate). The Supreme Court has held, however,

that Congress properly abrogated the states’ Eleventh Amendment

immunity for suits under Title VII. See Stewart, Jr. v. Va. Com.

Univ., 414 F. App’x 555, 556 (4th Cir. 2011) (unpublished) (citing

Fitzpatrick v. Bitzer, 427 U.S. 445, 446–57 (1976)).

Defendants are entitled to Eleventh Amendment immunity in

their official capacities with respect to claims under the ADEA,

Title VI, and 42 U.S.C. § 1983, along with claims for breach of

contract or breach of the implied covenant of good faith and fair

dealing and hostile work environment under the ADEA. The motion

to dismiss is GRANTED in this respect, and those claims are

DISMISSED against Defendants to the extent that they are asserted

against them in their official capacities.4

4 Plaintiff contends that Defendants are not immune because he

seeks recovery limited to the State’s liability insurance. See

Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743,

310 S.E.2d 675 (1983). Defendants are correct that Pittsburgh

Elevator speaks only to immunity granted by the West Virginia

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

B. Regardless of whether any immunity applies, Plaintiff

has failed to state a single claim, and all claims fail

as a matter of law.

As discussed below, Plaintiff has failed to plead sufficient

facts to state any claims to relief that are plausible on their

face. Accordingly, they fail as a matter of law.

1. Title VI and Title VII

Title VI does not provide any protections against age

discrimination. Rather, Title VI governs “race, color, or national

origin” discrimination and retaliation claims in connection with

denial of benefits under federally assisted programs. See 42

U.S.C. § 2000d. Similarly, Title VII does not provide any

protections against age discrimination. See Faulconer v. Centra

Health, Inc., 808 F. App’x 148, 150–51 (4th Cir. 2020). Rather,

“Title VII prohibits employment discrimination based on race,

color, religion, sex, or national origin.” Id. (citing 42 U.S.C.

§§ 2000e-2, 2000e-3). Plaintiff has asserted no facts in the

amended complaint indicating that he was discriminated against on

the basis of his race, color, national origin, religion, or sex.

He raises claims of age discrimination. Accordingly, to the extent

Constitution, not the sovereign immunity set forth in the Eleventh

Amendment to the United States Constitution. See Wriston v. W.

Va. Dep’t of Health and Human Res., No. 2:20-CV-00614, 2021 WL

4150709, at *7 (S.D.W. Va. Sept. 13, 2021).

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

that he asserts that Defendants violated Title VI or Title VII,

those claims are DISMISSED.

2. Defendant Maryanne Reed

Reed is identified by title in Paragraph 5 of the amended

complaint but never mentioned again. Because the amended complaint

fails to allege any conduct whatsoever by Reed, the claims against

her must be, and hereby are, DISMISSED. See Weller v. Dep’t of

Soc. Servs. for City of Baltimore, 901 F.2d 387, 397–99 (4th Cir.

1990) (affirming dismissal as to certain defendants because there

were no allegations against them).

3. ADEA

Certain of Plaintiff’s theories of liability under the ADEA

fail because he did not exhaust his administrative remedies.

Further, Plaintiff has failed to state a claim of discrimination

under the ADEA because he has failed to plead that the younger

candidate was similarly (or less) qualified than he was. Finally,

he has failed to state a claim of retaliation under the ADEA

because he has not identified any causal link between a protected

activity and a retaliatory action.

a. Discrimination

The ADEA provides that it is unlawful for “an

employer . . . to discharge any individual or otherwise

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s age[.]” 29 U.S.C. § 623(a). Without

direct evidence of intentional discrimination, courts analyze ADEA

claims under the McDonnell Douglas burden-shifting framework

established for Title VII claims. See Darnell v. Tyson Foods,

Inc., 536 F. App’x 366, 369 (4th Cir. 2013). A plaintiff must

first establish a prima facie case of age discrimination:

[A plaintiff] must demonstrate that: (1) he is

a member of a protected class; (2) he suffered

an adverse employment action; (3) he was

performing his job duties at a level that met

his employer’s legitimate expectations at the

time of the adverse employment action; and (4)

the position remained open or was filled by a

similarly qualified applicant outside the

protected class. Hill, 354 F.3d at 285.

Id. “Ít is well settled that before filing suit under . . . the

ADEA, a plaintiff must exhaust [his] administrative remedies by

bringing a charge with the EEOC.” Walton v. Harker, 33 F.4th 165,

172 (4th Cir. 2022) (citation omitted). “The allegations contained

in the administrative charge of discrimination generally limit the

scope of any subsequent judicial complaint.” Id. (citation

omitted).

Here, Plaintiff’s EEOC charge complains of (1) the increased

course load and (2) the initial denial of his sabbatical

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

application. In the amended complaint, Plaintiff cites the

following actions that could, hypothetically, be construed as

adverse employment actions: (1) the placement of the reprimand

letter in his file, (2) the increased course load, (3) the initial

denial of his sabbatical request, and (4) not being awarded the

Distinguished Professorship Award. Because Plaintiff did not

exhaust his administrative remedies with respect to the reprimand

letter or the Distinguished Professorship Award, those allegations

cannot form the basis of a discrimination claim.5

Even if the reprimand letter or the Distinguished

Professorship Award could be considered, for all four of these

potentially adverse employment actions, Plaintiff has failed to

satisfy the fourth element of his prima facie case: that the

position was filled or opportunity was given to a similarly

qualified applicant outside the protected class. While Plaintiff

alleges that a younger candidate was selected for the Distinguished

Professorship Award, he has not asserted any other information

about that candidate. To the extent that Plaintiff mentions

younger faculty receiving opportunities he did not, he has failed

5 The Court also finds that these events are not “reasonably

related” to the facts asserted in the EEOC charge and would not be

“developed by reasonable investigation of the original

complaint[.]” See Walton, 33 F.4th at 172.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

to plead that the younger candidates were similarly (or less)

qualified than he was. He has not sufficiently pled that

Defendants engaged in age discrimination under the ADEA, and any

such claims are DISMISSED for this reason.

b. Retaliation

“An employer violates the ADEA by retaliating against an

employee for engaging in a protected activity.” Johnson v.

Mechanics & Farmers Bank, 309 F. App’x 675, 684 (4th Cir. 2009)

(unpublished) (citing 29 U.S.C. § 623(d) (2000)). A plaintiff

must satisfy the following elements to establish a prima facie

case of retaliation under the ADEA: “(1) the plaintiff engaged in

a protected activity; (2) the employer took an adverse employment

action against the plaintiff, and (3) a causal connection existed

between the protected activity and the adverse employment action.”

Id. (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th

Cir. 1989)).

Here, Plaintiff has not pled facts that satisfy the third

element: a causal connection. The alleged retaliatory actions

taken by Defendants were (1) the denial of Plaintiff’s requested

sabbatical, and (2) Plaintiff’s increased course load. After

reviewing the amended complaint, the Court discerns that the only

potential protected activities that Plaintiff engaged in were (1)

MEMORANDUM OPINION AND ORDER ADOPTING

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REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

his filing of the WVPEGB grievance on May 14, 2023, and (2) his

filing of the EEOC charge on May 25, 2023. Plaintiff has failed

to sufficiently allege a link between the protected activities and

any alleged retaliation.

When Plaintiff filed his EEOC claim (after unofficially

learning that WVUBOG had no intention to allow him to take a

sabbatical), Plaintiff was permitted to submit a modified

sabbatical application. Nothing about Defendants’ actions was

retaliatory with respect to the initial sabbatical application

sabbatical. To the contrary, it was conciliatory. Further, the

decision to increase Plaintiff’s course load was made before

Plaintiff filed his grievance and before Plaintiff filed his EEOC

charge. To the extent that Plaintiff asserts that one or more of

these actions, which took place in 2023, was in retaliation for

Plaintiff’s dispute of the 2021 reprimand letter, there is nothing

in the record indicating that the instances were related. Overall,

Plaintiff has not identified any causal link between a protected

activity and a retaliatory action. Accordingly, he has not

sufficiently pled that Defendants engaged in retaliation under the

ADEA, and any such claims are DISMISSED for this reason.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

4. Violations of Due Process Under 42 U.S.C. § 1983

First, a section 1983 cannot be asserted against WVUBOG. See

Will, 491 U.S. at 71 (“[N]either a state nor its officials acting

in their official capacities are ‘persons’ under § 1983.”).

Accordingly, the section 1983 claim is DISMISSED against WVUBOG.

Second, the amended complaint contains no allegations regarding

Gee or Dunaway in connection with Plaintiff’s due process violation

claim under section 1983. The amended complaint appears to allege

that Plaintiff was denied due process when the letter of reprimand

was placed in his personnel file, which resulted in his

ineligibility for a merit pay increase. There are no allegations,

however, that Gee or Dunaway personally issued or had any

involvement in the reprimand decision. At best, the amended

complaint alleges that Dunaway and Gee upheld the decision.

Plaintiff, however, cannot use vicarious liability to hold an

individual defendant liable in his or her individual capacity for

the alleged actions of his or her office. See Iqbal, 556 U.S. at

676 (“Because vicarious liability is inapplicable to . . . § 1983

suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has

violated the Constitution.”). Accordingly, the section 1983 claim

is DISMISSED against Gee and Dunaway.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

The Court must analyze whether a section 1983 claim has been

sufficiently pled against Scime. Scime purportedly violated

Plaintiff’s due process rights by issuing the letter of reprimand.

Plaintiff asserts that the letter of reprimand made him vulnerable

to being “dismissed for cause.” Am. Compl., ECF No. 8, at ¶ 82.

He also alleges that it made him vulnerable to sanctions like

suspension, demotion, and/or pay cuts, and that it made him

ineligible for merit pay. Id. ¶¶ 83, 84.

Plaintiff relies on the WVPEGB’s decision in Sam Nadler, Jr.

v. West Virginia University, No. 05-HE-455, 2006 WL 1976851 (June

22, 2006), to argue that Scime has violated his constitutional

right to due process. In Nadler, the Education and State Employees

Grievance Board found that an employee must be given notice and

opportunity to be heard prior to imposition of discipline (which

includes the placement of a reprimand in an employee’s personnel

file). Id. at *3. Here, Plaintiff has failed to plead that he

was denied the requisite opportunity to be heard. On July 1, 2021,

Scime notified Plaintiff of his decision to place the letter of

reprimand in his file. Am. Compl., ECF No. 8, at ¶ 74. This

afforded Plaintiff the opportunity to file a grievance before the

letter was actually placed in his file. At all relevant times,

the public employee grievance procedure was available to him. See

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

W. Va. Code §§ 6C-2-1, et seq.6 Plaintiff also pleads that he

appealed Scime’s decisions to Dunaway. See Am. Compl., ECF No. 8,

at ¶ 85.

To the extent that Plaintiff asserts that he has been deprived

of his property, he does not identify any employment contract or

other statutory rule or regulation entitling him to merit pay.

Courts have recognized that where merit pay is based on meeting

certain criteria or contingencies, it is not a concrete property

interest actionable under the Due Process Clause. See Veit v.

Heckler, 746 F.2d 508, 511 (9th Cir. 1984) (holding that an

employee had no property interest under a merit pay statute that

did not “create[] any expectation or entitlement to either a merit

pay increase or to notice that an employee will receive a

relatively low performance rating”); Swartz v. Scruton, 964 F.2d

607, 610 (7th Cir. 1992) (holding that a professor does not have

a property interest under the Due Process Clause in merit pay where

that pay is subject to conditions outside of his control).

Accordingly, Plaintiff has also failed to state a claim under

section 1983 against Scime for violation of his due process rights.

6 Under the statute, an aggrieved public employee can challenge an

adverse employment action and seek relief. See W. Va. Code § 6C-

2-3.

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

a. Even if Defendants technically committed a

constitutional violation, they are entitled to

qualified immunity in their individual

capacities.

Qualified immunity “protects government officials from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 230 (2009) (quotation marks and citation omitted).

It “may be invoked by a government official sued in his personal,

or individual, capacity.” Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 306 (4th Cir. 2006). In order to be entitled

to qualified immunity, a defendant must either show (1) that no

constitutional or statutory violation occurred, or (2) that the

right violated was not clearly established at the time it was

violated. Hunter v. Town of Mocksville, 789 F.3d 389, 396 (4th

Cir. 2015). A court may consider either prong first. Pearson,

555 U.S. at 236. “For a right to be clearly established, existing

precedent must have placed the statutory or constitutional

question beyond debate.” Safar v. Tingle, 859 F.3d 241, 246 (4th

Cir. 2017) (quotation marks and citation omitted).

As discussed above, Plaintiff has not sufficiently pled that

Defendants denied him the opportunity to appeal the decision to

place the reprimand letter in his file. Nor has he demonstrated

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

a property interest beyond an abstract need or desire for it. For

the same reasons that the Court found that Plaintiff has not stated

a section 1983 claim against Scime and the other individual

defendants, the Court finds that it was not clearly established at

the time of their actions that they were in violation of the

Fourteenth Amendment. Plaintiff has not shown that “existing

precedent . . . [has] placed the . . . constitutional question

beyond debate.” See Safar, 859 F.3d at 246. Accordingly, to the

extent that Plaintiff asserts a section 1983 claim against

Defendants in their individual capacities, they are entitled to

qualified immunity, and the claims against them are DISMISSED.

5. Breach of Contract and/or Breach of the Implied

Covenant of Good Faith and Fair Dealing

“In West Virginia, the elements of breach of contract are (1)

a contract exists between the parties; (2) a defendant failed to

comply with a term in the contract; and (3) damage arose from the

breach.” Nance v. Huntington W. Va. Hous. Auth., No. 16-0855,

2017 WL 2210152, at *5 (W. Va. May 19, 2017) (citation omitted).

West Virginia does not recognize a standalone legal claim for

breach of the implied covenant of good faith and fair dealing.

See Hanlon v. AXA Equitable Life Ins. Co., No. 15-0337, 2016 WL

2968990, at *3 (W. Va. May 20, 2016).

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

Here, Plaintiff has failed to plead that a contract exists.

While he alleges that he is a contract employee, he does not

identify a contract in the amended complaint or how it was

breached. Accordingly, his claims for breach of contract and

breach of the implied covenant of good faith and fair dealing fail

as a matter of law. Even if Plaintiff had identified a contract

and how it was breached, his contract with one or more of the

defendants would be a contract with them in their official

capacities. As discussed above, all official capacity claims have

been dismissed. Accordingly, Plaintiff’s breach of contract claim

fails. Defendants’ motion to dismiss is GRANTED in this respect,

and Plaintiff’s claims of breach of contract and breach of the

implied covenant of good faith and fair dealing are DISMISSED.

6. Hostile Work Environment

Under the ADEA, a plaintiff must exhaust administrative

remedies before the EEOC before filing a hostile work environment

claim in district court. See Chacko v. Patuxent Inst., 429 F.3d

505, 511, 513 (4th Cir. 2005). Here, Plaintiff’s EEOC charge did

not include a claim for hostile work environment. Accordingly,

the claim must be dismissed. See Parker v. Reema Consulting

Servs., Inc., 915 F.3d 297, 306 (4th Cir. 2019) (“[W]hen the claims

in [the] court complaint are broader than the allegation of a

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

discrete act or acts in [the] administrative charge, they are

procedurally barred.”) (quotation marks and citation omitted)).

Even if Plaintiff had exhausted his administrative remedies

with respect to his hostile work environment claim, he has failed

to state a claim. “[A] hostile [work] environment exists when the

workplace is permeated with discriminatory intimidation, ridicule,

and insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment.”7 Dufau v. Price, 703 F. App’x 164, 166–67 (4th Cir.

2017) (citation omitted). “Among the factors a court should

consider are the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Id. (quotation marks and

citation omitted). Here, Plaintiff has failed to identify any

conduct by Defendants that would constitute “severe or pervasive.”

He has, therefore, failed to state a hostile work environment

claim. Defendants’ motion to dismiss is GRANTED with respect to

his hostile work environment claim, and it is DISMISSED.

7 Defendants’ motion and the R&R discuss hostile work environment

claims in the context of Title VII, but hostile work environment

claims may also be asserted in the context of the ADEA.

GINGOLD V. WVUBOG ET AL. 1:23-CV-91

MEMORANDUM OPINION AND ORDER ADOPTING

REPORT AND RECOMMENDATION IN PART,

REJECTING IT IN PART, AND GRANTING MOTION TO DISMISS

7. Interference with EEOC Investigation

To the extent that Plaintiff alleges that Defendants

interfered with the EEOC investigation, the Court DENIES those

allegations as moot because the EEOC ultimately issued Plaintiff

a Right to Sue.

Vv. CONCLUSION

For the reasons discussed, with respect to the R&R [ECF No.

44], the Court ADOPTS it IN PART, to the extent that it is

consistent with this Memorandum Opinion and Order, and REJECTS it

IN PART, to the extent that it is not. Defendants’ motion to

dismiss is GRANTED [ECF No. 15]. This action is DISMISSED and

STRICKEN from the Court’s active docket.

It is so ORDERED.

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record by email and to the pro se

Plaintiff by certified mail, return receipt requested.

DATED: September 20, 2024

Ton 8 Kl

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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