# Gingold v. West Virginia University, Board of Governors

> District Court, N.D. West Virginia · September 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10726784

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726784

## How later opinions describe it (automated extraction)

- affirming dismissal as to certain defendants because there were no allegations against them

## Opinion text

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
REPORT AND RECOMMENDATION IN PART,
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

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726784. Public record. Not legal advice.