Zeng v. Marshall University

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

WEI-PING ZENG,

Plaintiff,

v. CIVIL ACTION NO. 3:17-3008

MARSHALL UNIVERSITY,

DR. JERMONE A. GILBERT,

DR. JOSEPH SHAPIRO,

DR. W. ELAINE HARDMAN,

DR. DONALD A. PRIMERANO,

DR. RICHARD EGLETON,

Defendants.

MEMORANDUM OPINION AND ORDER

Presently pending before the Court are seven motions for summary judgment and one

motion for leave to file a third amended complaint. See Mot. for Leave to Amend, ECF No. 288;

Zeng Mot. for Summ. J., ECF No. 332; Egleton Mot. for Summ. J., ECF No. 337; Gilbert Mot. for

Summ. J., ECF No. 339; Hardman Mot. for Summ. J., ECF No. 341; Marshall Mot. for Summ. J.,

ECF No. 345; Primerano Mot. for Summ. J., ECF No. 345; Shapiro Mot. for Summ. J., ECF No.

347. By standing order, the motions were referred to Magistrate Judge Cheryl A. Eifert for her

preliminary findings of fact and recommendations for disposition. Standing Order, ECF No. 3. On

January 28, 2020, Magistrate Judge Eifert issued two sets of Proposed Findings and

Recommendations (“PF&Rs”): one addressing Plaintiff’s motion for leave to file another amended

complaint, and a second addressing the parties’ cross-motions for summary judgment. Leave to

Amend PF&R, ECF No. 411; Summ. J. PF&R, ECF No. 412. Plaintiff has submitted corresponding

objections to each PF&R. Summ. J. Objections, ECF No. 418; Leave to Amend Objections, ECF

No. 419. The issues have been fully briefed and are ripe for resolution. For the reasons set forth

below, the Court DENIES Plaintiff’s objections and—consistent with this Memorandum Opinion

and Order—ADOPTS AND INCORPORATES HEREIN the PF&Rs. The Court accordingly

GRANTS Defendants’ motions and DENIES Plaintiff’s motions, and ORDERS this action

removed from its docket.

I. BACKGROUND

A. Factual Setting

The roots of this case extend as far back as August 2009, when Plaintiff Wei-Ping Zeng

received an offer of employment as an Associate Professor in the Department of Biochemistry and

Microbiology at the Joan C. Edwards School of Medicine at Marshall University. Letter from

Charles McKown, MD to Wei-Ping Zeng, PhD, ECF No. 332-4, at 11.1 The offer was for a

“tenure-track (probationary) appointment pursuant to the provisions of the West Virginia Higher

Education Policy Commission Title 133, Procedural Rule Series 9” that would be “renewable at

the beginning of each fiscal year.” Id. The letter set Plaintiff’s base salary at $75,000, and provided

that he would “be eligible to apply for tenure as early as [his] third year at [MUSM] and no later

than [his] sixth year of continuous full-time employment.” Id. His responsibilities would include

“[e]stablishment of an independent and externally[-]funded research program in cellular

immunology,” “[t]eaching in Medical Immunology or Medical Microbiology on an annual basis,”

“[d]irecting and teaching in one biomedical science graduate course,” serving on various

committees, and participating in a seminar program. Id. at 12.

1 All page numbers are drawn from the placement of a given citation in a given docket

entry, rather than its placement in any particular document.

On August 22, 2009, Plaintiff accepted his offer of employment and signed a Notice of

Appointment to this effect. 2009-2010 Notice of Appointment, ECF No. 343-2, at 1. The Notice of

Appointment provided that he would begin his employment on September 1, 2009, and that he

would participate “in scientific research or other scholarly activity which is consistent with [his]

educational background, training, and/or experience and which is consistent with the mission and

goals of Marshall University.”2 Id.

Pursuant to the terms of the Notice of Appointment, Plaintiff began his employment with

MUSM on September 1, 2009. Id. However, delays in preparing his laboratory apparently

prompted a discussion with Richard Niles—Chair of the Department of Biochemistry and

Microbiology—about when his appointment would actually begin. Niles emailed Plaintiff on

January 11, 2010, confirming that “[y]es, as we discussed earlier, the clock on this position does

not start until you have set up your laboratory.” Richard Niles to Wei-Ping Zeng, ECF No. 333-

18, at 4. Plaintiff began using his laboratory the next month. Wei-ping Zeng’s Comments on Mid-

Tenure Review, ECF No. 333-9, at 4.

On July 15, 2010, Plaintiff signed another Notice of Appointment providing for his

continued employment from July 1, 2010 until June 30, 2011. 2010-2011 Notice of Appointment,

ECF No. 343-3, at 1. In September 2010, Dr. Niles and Dr. Donald A. Primerano—a defendant in

this case—completed Plaintiff’s first evaluation. 2009-2010 Faculty Activities Evaluation, ECF

No. 332-2, at 13. As he did not teach a course in the 2009-2010 academic year, Plaintiff’s reviewers

did not grade his teaching abilities; nevertheless, they rated him “excellent” in research and

2 Unlike his offer letter, the Notice of Appointment does not specifically list obtaining

external research funding as a duty of his employment. Compare Letter from Charles McKown,

MD to Wei-Ping Zeng, PhD, at 12, with Notice of Appointment, at 1–2.

service.3 To improve his performance, Niles and Primerano suggested, inter alia, that Plaintiff

decrease his grant applications and increase his publications and presentations, “[a]pply for a joint

appointment in Internal Medicine,” request a student to complete a rotation in his laboratory, and

join a scientific society. Id.

On July 26, 2011, Plaintiff signed a third Notice of Appointment providing for another year

of employment at MUSM. 2011-2012 Notice of Appointment, ECF No. 343-3, at 3–4. Niles and

Primerano once again completed his faculty evaluation, rating him as “excellent” in research and

service and “good” in teaching for the Microbiology course he taught that year. 2010-2011 Faculty

Activities Evaluation, ECF No. 332-2, at 14. Plaintiff’s student evaluations ranged between

“average” and “good” over the same period, rated on a scale from very poor, poor, average, good,

and very good. 2010-2011 Student Evaluation Results, ECF No. 332-2, at 20–21. For example,

students in his Medical Immunology course thought he was average at communicating

information, ideas, and concepts in an understandable manner, id. at 21, but good at demonstrating

knowledge of established and evolving sciences, id. at 20. The overall mean of his results was a

score of 3.53, near the middle of the average range. Id. at 21.

At some point during the 2011-2012 academic year, things went somewhat awry in

Plaintiff’s teaching. After signing a fourth Notice of Appointment on July 20, 2012, Niles and

Primerano once again undertook an evaluation of Plaintiff’s performance and noted “low student

evaluations on his Medical Immunology teaching.” 2011-2012 Faculty Activities Evaluation, ECF

No. 332-2, at 15. They explained that

[w]hile his presentations may have been adequate, the students were primarily

concerned about the level of professionalism in his interactions with faculty and

3 The reviewing form provides space for faculty members to be rated as outstanding,

excellent, good, satisfactory, marginal, and unsatisfactory, in descending order of performance.

students. We advised [Plaintiff] that it would be wise to accept the advice of senior

faculty in the classroom and discuss concerns or issues in the office.

Id. Though they rated his performance in research and service as “good,” they considered his

teaching only “satisfactory.” Id. To remedy the issue, Niles and Primerano “strongly

recommend[ed] [Plaintiff] attend Dr. Susan Jackman’s lectures and team-based learning sessions

in immunology and that he participate in workshops on teaching skills and active learning offer[ed]

through the Office of Faculty Development.”4 Id. Students noticed a shift as well; Plaintiff’s

overall rating from students in his Medical Immunology course dropped nearly a full point from

3.53—well within the “average” range—to 2.56—well within the “poor” range.5 Compare 2010-

2011 Student Evaluation Results, at 21, with 2011-2012 Student Evaluation Results, ECF No. 332-

2, at 25.

Plaintiff would not wait long before receiving another evaluation, this time from the

Department of Biochemistry and Microbiology Mid-Tenure Review Committee on October 12,

2012. Mid-Tenure Review, ECF No. 333-9, at 1. The Committee was comprised of four of

Plaintiff’s colleagues, including Defendant Dr. W. Elaine Hardman, and “evaluated [Plaintiff’s]

performance in the areas of Teaching, Research, and Service, the three critical components for

tenure and promotion.” Id. In the review, the Committee offered a set of recommendations in each

4 The PF&R notes that “[t]he overall assessment of [Plaintiff’s] performance in the eyes

of Dr. Niles and Primerano was that [he] needed to improve both his teaching and research skills.”

Summ. J. PF&R, at 13. This is technically incorrect; the assessment cited in the PF&R was not

provided until 2013. Compare ECF No. 332-2, at 16, with ECF No. 333-3, at 19. Moreover, it is

not clear that Primerano had any involvement in preparing the 2013 evaluation.

5 For his part, Plaintiff attached a set of comments to his 2011-2012 Faculty Activities

Evaluation and conceded that his “teaching evaluation suffered from a poor student evaluation.”

Comments to 2011-2012 Faculty Activities Evaluation, ECF No. 332-4, at 22. He professed that

“it was truly a shock that [he] received such [a] low student evaluation,” and that it perhaps

stemmed from the fact that he “did not finish one of the lectures 10 min[utes] before the hour.” Id.

Nevertheless, he stressed that he did “not believe that the students’ evaluation reflected fairly [his]

effort and the quality of [his] teaching.” Id.

area for Plaintiff to improve his performance. Among other suggestions, they advised Plaintiff to

“attend selected lectures from successful teachers,” to “improve professionalism with colleagues,”

and to “be sure that you are an active participant on . . . committees.” Id. at 1–2. The Committee

also devoted a significant portion of its review to Plaintiff’s research performance. They noted that

“[p]ublications to support [Plaintiff’s] hypotheses are critical,” and that he had not published

sufficiently with reference to the $300,000 start-up grant he had received upon his arrival at

MUSM. Id. at 2. After making several other recommendations, they reiterated that “it is mandatory

for you to get external independent funding as stated in your contract.” Id.

On May 28, 2013, Plaintiff signed his fifth Notice of Appointment with MUSM to cover

the upcoming 2013-2014 academic year. On June 21, 2013, Dr. Niles completed Plaintiff’s 2012-

2013 Faculty Activities Evaluation.6 See 2012-2013 Faculty Activities Evaluation, ECF No. 333-

19, at 10–19. Niles noted that Plaintiff’s “overall [teaching] score in Med[ical] Immuno[logy]

improved from 2.56 in 2011-2012 to 3.61 in 2012-2013,” again placing him in the “average” range.

Id. at 13. “While these improvements are significant,” Niles continued, “his scores must improve

into the good to very good range in order to be considered for tenure.” Id. Niles accordingly marked

that Plaintiff “Needs Improvement” with his teaching, and recommended several steps to improve

his performance. Niles also registered a degree of disappointment with Plaintiff’s research work,

which he also felt needed improvement. Id. at 15. In particular, he noted that “[i]n order to be

considered for tenure, [Plaintiff] must increase publications/year and obtain external funding.” Id.

Niles marked that Plaintiff’s “Professionalism” and “Professional Development” were

6 The form used to evaluate faculty members appears to have changed between 2012 and

2013, and replaced the prior “outstanding, excellent, good, satisfactory, marginal, and

unsatisfactory” scale with an “exemplary, professional, needs improvement, and unacceptable”

scale.

“Professional,” but that his “Teaching & Mentoring” and “Research & Scholarly Activities”

needed improvement. Id. at 19.

The fact that Plaintiff had earned a rating of “Needs Improvement” required Niles to

“address” the score halfway through the calendar year. Id. In light of this requirement, Niles and

Primerano sent Plaintiff a letter on March 10, 2014 that memorialized their mid-year review. 2014

Mid-Year Review, ECF No. 333-19, at 20–21. The reviewers provided Plaintiff with several

recommendations addressing potential future research opportunities. Id. at 20. They also noted

that, while improved, they felt that Plaintiff’s “teaching still needs to improve to be in the

acceptable range.” Id. They closed their letter with a warning about Plaintiff’s approaching tenure

deadline, writing

Lastly, given that you arrived at Marshall in September 2009 and since tenure must

be granted no later than the end of your sixth year (2014-15), your application for

tenure must be submitted in October 2014. We think it is reasonable for you to ask

the departmental promotion and tenure committee for a preliminary evaluation of

your tenure application. We recognize that you may wish to request a re-set of the

tenure clock so that 2009-2010 is not counted. If this becomes material, then we

would need to get a ruling from the Promotion and Tenure Committee or the Dean.

Please contact us if you have questions or concerns.

Id. at 20–21.

Plaintiff heeded the reviewers’ advice and contacted the Departmental Promotion and

Tenure Committee (“DP&TC”) on March 14, 2014 for a preliminary review of his tenure

application. Wei-Ping Zeng to DP&TC, ECF No. 343-4, at 1. The DP&TC responded within the

month, and compared Plaintiff’s performance with tenure requirements. They reached several key

negative conclusions: that Plaintiff had “not met the requirement of excellence in either teaching

or research,”7 that he had “not met the minimum requirement of 4 years satisfactory teaching,”

7 On the other hand, the Committee concluded that Plaintiff had met the requirement of

obtaining satisfactory ratings for service. Preliminary Review, ECF No. 343-5, at 2.

that he had “not met a requirement for either effective performance or excellence in teaching,” that

he had “not received a grant since arriving at Marshall [and thus had] not established a research

program,” and that he had “not met a requirement for effective performance of excellence in

research.” Preliminary Review, ECF No. 343-5, at 1–2. The DP&TC also registered its opinion

that “[t]wo original research papers in 4.5 years does not indicate an active research program,” as

well as confusion that Plaintiff did not attend “any presentations since arriving at Marshall, not

even the local research meetings that would have cost no money to attend.” Id. (emphasis in

original). Nevertheless, Plaintiff’s shortcomings with respect to teaching and service led the

DP&TC to conclude that it did “not think [Plaintiff] would be recommended for tenure at this

time.” Id. at 2.

With this negative assessment in hand, Plaintiff contacted Defendant Dr. Joseph Shapiro

on August 1, 2014 and requested an extension of time to apply for tenure due to circumstances

outside his control. Letter from Wei-Ping Zeng to Joseph Shapiro, ECF No. 343-6. Shapiro granted

the request for a one-year extension, and Plaintiff signed a sixth Notice of Appointment on August

19, 2014.8 Donald Primerano to Wei-Ping Zeng, ECF No. 333-35, at 2; 2014-2015 Notice of

Appointment, ECF No. 343-3, at 10–11. Though he acceded to Plaintiff’s request, Shapiro and

Primerano sent a letter to Plaintiff on March 24, 2015 making clear their expectation that

“apply[ing] for tenure in the Fall [of] 2015” would be his “last opportunity . . . to apply for tenure.”

Letter from Joseph Shapiro and Donald Primerano to Wei-Ping Zeng, ECF No. 343-7, at 1. “In

the event that tenure is not approved,” they noted, “your contract would expire on June 30,

2016.” Id.

8 At some point before this exchange, Primerano replaced Niles as Acting Chair of the

Department of Biochemistry and Microbiology.

Plaintiff’s student evaluations continued to hover near or slightly below departmental

averages as the deadline for applying for tenure grew closer. See, e.g., 2014 Student Evaluation

Results, ECF No. 332-3, at 5–6; 2015 Student Evaluation Results, ECF No. 332-3, at 7–9. On May

7, 2015, Plaintiff expressed concern “about 2 dates that are mentioned in the letter from you and

the [D]ean.” Wei-Ping Zeng to Donald Primerano, ECF No. 339-8, at 1. First, he asked to postpone

the October 1, 2015 application deadline to November because “October is a busy month for grant

application[s].” Id. Second, he took issue with their belief that his contract would expire on June

30, 2016. Id. In view of the “serious delay in having a lab space,” Plaintiff thought “the end date

should be Aug[ust] 30, 2016.” Id. Plaintiff was granted a limited extension and permitted to submit

his application on October 19, 2015, but the termination date for his employment remained the

same. W. Va. Pub. Employees Grievance Bd. Hr’g Tr., ECF No. 333-6, at 145. With this

unmodified June 30, 2016 date in mind, Zeng signed his seventh Notice of Appointment with

MUSM on July 13, 2015. 2015-2016 Notice of Appointment, ECF No. 339-9, at 1–2. This final

employment agreement stated that Plaintiff’s appointment had begun on July 1, 2015 and would

expire on July 1, 2016. Id.

On October 7, 2015, Primerano sent an email to Plaintiff, Hardman, and Dr. Bonnie

Beaver. In the email, Primerano—apparently unprompted—advised Plaintiff that he would “need

to modify Appendix C [of the tenure application] indicating that I am not recommending you for

tenure.” Donald Primerano to Wei-Ping Zeng and Bonnie Beaver, ECF No. 333-18, at 2. This

email was unusual, as Plaintiff had not yet submitted an application for tenure. Nevertheless, he

did so in the coming days and the DP&TC issued a recommendation to deny Plaintiff’s application

on October 26, 2015. Application for Tenure, ECF No. 322-1; Tenure Review for Dr. Wei-Ping

Zeng, ECF No. 343-9. The DP&TC made several important findings. First, with respect to

Plaintiff’s teaching performance, they found that he “demonstrate[d] adequate teaching but [did]

not think that [he] demonstrate[d] excellence in teaching.”9 Tenure Review for Dr. Wei-Ping Zeng,

at 2 (emphasis in original). Second, they concluded that Plaintiff did not “demonstrate[] excellence

in research.” Id. (emphasis in original). These findings were of particular importance in light of

the requirement that “[p]romotion to Associate Professor requires overall evidence of superior

worth to the University as demonstrated by effective performance in all major areas of

responsibility and excellence in either teaching or research/scholarly activities.” Id. at 1 (internal

quotations omitted) (emphasis in original). The DP&TC closed its recommendation by explaining

that

The number one reason that Dr. Zeng was hired was to establish a research

program. Dr. Zeng was provided funding, time and laboratory space to establish

this program. Based on the evidence we were presented, it is clear that Dr. Zeng

has not fulfilled the expectations of the department and to which he agreed at the

time he was hired.

Id. at 3.

The next day, Primerano advised Plaintiff that the DP&TC had not recommended him for

tenure. Donald Primerano to Wei-Ping Zeng, ECF No. 333-13, at 1. Primerano—naturally enough,

given his earlier email—agreed with the DP&TC’s unanimous vote, and informed Shapiro that

Plaintiff “did not demonstrate excellence in teaching or research.” Donald Primerano to Joseph

Shapiro, ECF No. 333-21, at 2. He specifically noted that Plaintiff had failed to secure the

“establishment of an independent and externally[-]funded research program.” Id.

The MUSM Personnel Advisory Committee was next to consider Plaintiff’s application

for tenure.10 On January 25, 2016, the Committee unanimously voted against recommending

9 In making this determination, they acknowledged that “Dr. Zeng’s student evaluations

have improved to an acceptable level.” Tenure Review for Dr. Wei-Ping Zeng, at 2.

10 Defendant Dr. Richard Egleton was one of three faculty members appointed to review

Plaintiff for tenure despite acknowledging that all candidates under consideration at the time “met

the basic considerations” for tenure. Recommendations of the Personnel Advisory Committee,

ECF. No. 333-40, at 3–4. On January 29, 2016, Shapiro notified newly-appointed Marshall

University President (and Defendant) Jerome Gilbert of the Committee’s recommendation not to

award tenure to Plaintiff. Shapiro Dep., ECF No. 333-52, at 46. On February 8, 2016, Dr. Beaver

mailed a letter to Plaintiff informing him that the Committee had voted against his application for

tenure. Bonnie Beaver to Wei-Ping Zeng, ECF No. 333-22, at 1. She noted that “the primary reason

the Committee voted against a recommendation regarding your tenure related to a lack of funded

research productivity.” Id.

On March 17, 2016, Plaintiff sent a letter to President Gilbert arguing for an award of

tenure. Letter from Wei-Ping Zeng to Jerome Gilbert, ECF No. 382-3, at 23–27. The letter raised

four principal points: that he added valuable technical expertise to the MUSM faculty, that he was

better qualified for tenure than two recently-appointed colleagues, that his seventh year of

employment should not end until February 2017, and that the DP&TC did not act independently

in making their decision. Id. at 25–27. With respect to the last point, he argued that “there is clear

evidence that the committee received instruction from an authoritative administrator”—

presumably Primerano—”and voted in [sic] the will of such person.” Id. at 27. Though it is unclear

what the exact content of Gilbert’s response was, Plaintiff characterized it as “not . . . positive.”

W. Va. Pub. Employees Grievance Bd. Hr’g Tr., ECF No. 333-8, at 46. On April 30, 2016, Gilbert

formally advised Plaintiff that his tenure application was denied. Letter from Jerome Gilbert to

Wei-Ping Zeng, ECF No. 333-24, at 1. Plaintiff’s employment with Marshall concluded with the

Plaintiff’s application in detail.

expiration of his contract on June 30, 2016. See Letter from Donald Primerano to Wei-Ping Zeng,

ECF No. 334-13, at 1.

B. Procedural History

Even before his application was formally denied, Plaintiff filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”) alleging that the tenure review process was

tainted with discrimination. W. Va. Pub. Employees Grievance Bd. Hr’g Tr., ECF No. 333-8, at

47. On May 5, 2016, Marshall University’s Associate General Counsel emailed Plaintiff and

indicated that MUSM would be amenable to continuing his employment until February 2017 if he

agreed to withdraw his EEOC complaint, waive his rights to file a grievance, and refrain from

bringing “any further claims against the University, including the School of Medicine.” Jendonnae

Houdyschell to Wei-Ping Zeng, ECF No. 333-19, at 2. Obviously enough, Plaintiff did not agree

to the offer.

On May 17, 2016, Plaintiff filed a formal grievance with the West Virginia Public

Employees Grievance Board (“WVPEGB”). W. Va. Pub. Employees Grievance Board Form, ECF

No. 333-19, at 1. Plaintiff claimed that he had been denied tenure due to discrimination based on

race and had suffered early termination due to opposing that discrimination. Id. He sought reversal

of President Gilbert’s tenure decision and “[r]emoval of [the] threat of early termination of

employment.” Id. In West Virginia, state grievance proceedings have three levels of review that

are followed by judicial review in the Circuit Court of Kanawha County. W. Va. Code § 6c-2-4.

Plaintiff’s Level I hearing was held on June 20, 2016 in Huntington, with President Gilbert

selecting Steve Hensley—a former Marshall employee—to act as the Grievance Examiner. Level

I W. Va. Pub. Employees Grievance Board Hr’g Tr., at 5. Aside from Hensley, Plaintiff, and

Primerano, only Candace Kraus—Deputy General Counsel for the West Virginia Higher

Education Policy Commission—and Ms. Debra Hart—Director of Equity Programs—were

present. Id. at 2. The thrust of Plaintiff’s argument was that he was denied tenure based on his race

and national origin, and that he had always understood his end date to be February 2017. Id. at 83–

87. Marshall, on the other hand, pointed out that Plaintiff was warned for years that he was not

performing at the level necessary to receive tenure and the school’s decision was based on nothing

other than his performance. Id. at 87–90. Hensley agreed with Marshall and resolved the matter in

the university’s favor. ALJ Decision, ECF No. 343-13, at 1.

Two more rounds of grievance proceedings followed: first an unsuccessful mediation, and

then a hearing and a decision by Chief Administrative Law Judge (“ALJ”) Billie Thacker Catlett

of the WVPEGB. Id. at 1, 69. Over the course of five days, Plaintiff and Marshall essentially

advanced the same arguments as at the Level I hearing (albeit in more detail). Id. at 2. Drs.

Primerano, Shapiro, Hardman, Yu, and Beaver all testified, essentially repeating the well-worn

assertion that Plaintiff did not obtain tenure because he had not demonstrated excellence in

teaching or research and had not obtained an external grant to fund a research program. See W. Va.

Pub. Employees Grievance Bd. Hr’g Tr., ECF Nos. 333-3–8. Plaintiff also testified, arguing

extensively that two other Caucasian employees—Drs. Koc and Denvir—were similarly situated

employees with inferior records who had nevertheless obtained tenure. Id. The ALJ rendered her

decision on August 18, 2017, finding that Marshall had improperly considered Plaintiff’s failure

to obtain external grant funding in making its tenure decision. Id. at 67. Nevertheless, she

concluded that this consideration was “cured by analyzing whether the tenure decision was sound

without” taking grant funding into account, and that the decision was therefore “not contrary to

law or school policy or regulation or arbitrary and capricious.” Id. Plaintiff appealed the ALJ’s

decision to the Circuit Court of Kanawha County, West Virginia on September 20, 2017. On

November 1, 2018, the Circuit Court entered an order affirming the ALJ’s decision. Zeng v.

Marshall University, Civ. A. No. 17-AA-72 (Cir. Ct. Kan. Cnty. Nov. 1, 2018). On November 30,

2018, Plaintiff appealed the Circuit Court’s order to the Supreme Court of Appeals of West

Virginia. This appeal remains pending. Zeng v. Marshall University, No. 18-1035 (W. Va. Nov.

30, 2018).

Even before the ALJ issued her final decision, however, Plaintiff filed the instant action in

this Court on May 23, 2017. See Compl., ECF No. 2, at 1. As Plaintiff was—and still is—

proceeding pro se, the case was referred to Magistrate Judge Cheryl A. Eifert for findings of fact

and recommendations for disposition. Standing Order, at 2. This action has since spawned

hundreds of docket entries and two amended complaints, as well as dozens of orders from this

Court and Magistrate Judge Eifert. The active Second Amended Complaint is split into eleven

counts and is often quite difficult to parse. See Second Am. Compl., ECF No. 55, at 1–49. At a

broad level of generality, however, Plaintiff raises discrimination claims under the West Virginia

Human Rights Act, Title VII of the Civil Rights Act of 1964, and the United States and West

Virginia Constitutions in Counts One, Two, Three, Four, Eight, and Nine of the Second Amended

Complaint. Id. He also raises a conspiracy claim in Count Five, a retaliation claim in Count Six, a

negligent failure to prevent retaliation claim in Count Ten, a due process claim in Count Eleven,

and a breach of contract claim in Count Seven.

Over a year was set aside for discovery, and dispositive motions were ordered due by

September 16, 2019. Order, ECF No. 329. Magistrate Judge Eifert issued PF&Rs with respect to

those dispositive motions—as well as to Plaintiff’s pending motion to file a third amended

complaint—on January 28, 2020, recommending that the Court deny Plaintiff’s motions and grant

Defendants’ motions. See Summ. J. PF&R; Leave to Amend. PF&R. Plaintiff timely filed

objections to both PF&Rs, albeit exceeding the page limits established by this Court in its January

30, 2020 Order.11 See Order, ECF No. 415, at 2. Before turning to these objections, however, the

Court will undertake a brief review of the legal standards governing its analysis.

II. STANDARD OF REVIEW

As an initial matter, the Court notes that Plaintiff is proceeding pro se and is entitled to a

liberal construction of his filings. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Of course, a liberal

construction is not a limitless construction and the Court will “not construct the plaintiff’s legal

arguments for him.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Where a plaintiff files objections to a PF&R, district courts must afford de novo review to

“those portions of the . . . proposed findings or recommendations to which objection is made.” 28

U.S.C. § 636(b)(1). The reverse is true as well, and courts are not required to review those portions

of a PF&R to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The Court

will similarly decline to afford de novo review to “general and conclusory” objections, and will

address only those objections that raise specific errors in the PF&R. McPherson v. Astrue, 605 F.

Supp. 2d 744, 749 (S.D.W. Va. 2009). The same is true of objections that only reiterate earlier

factual or legal assertions. Reynolds v. Saad, No. 1:17-124, 2018 WL 3374155, at *2 (N.D.W. Va.

July 11, 2018). Any other approach—particularly in light of the scope of the parties’ filings and

11 Plaintiff also filed four motions after filing his objections to Magistrate Judge Eifert’s

PF&Rs: two “Motions for Supplemental Discovery,” a “Motion to Amend [Second] Motion for

Supplemental Discovery,” and a “Motion to File Response Exceeding Page Limit.” See Mot. for

Supplemental Discovery, ECF No. 420; Second Mot. for Supplemental Discovery, ECF No. 420;

Mot. to File Resp. Exceeding Page Limit, ECF No. 425; Mot. to Amend Mot. for Supplemental

Discovery, ECF No. 431. Defendants also filed a “Motion to Strike Portion of Plaintiff’s

Objections.” Mot. to Strike, ECF No. 426. The Court denied all these motions, reasoning that

nearly seven months had passed since the close of discovery and that Plaintiff had already filed

objections that exceeded the allotted page limits. Order, ECF No. 433 at 1–2. Nevertheless, the

Court clarified that it would consider the entirety of Plaintiff’s overlength objections in light of his

pro se status. Id.

exhibits in this case—would “render[] the initial referral to the magistrate judge useless.” Orpiano

v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Nevertheless, the Court retains the wide discretion to

“accept, reject, or modify, in whole or in part, the findings or recommendations” of the Magistrate

Judge. 28 U.S.C. § 636(b)(1)(C). It is with this legal framework in mind that the Court turns to the

pending objections.

III. DISCUSSION

As has already been noted, two sets of Plaintiff’s objections to Magistrate Judge Eifert’s

PF&Rs are currently pending: one related to Plaintiff’s Motion for Leave to Submit Third

Amended Complaint, and another related to the parties’ cross-motions for summary judgment. The

Court will consider both sets of objections separately.

A. Objections to PF&R Addressing Leave to File Third Amended Complaint

Plaintiff’s objections to Magistrate Judge Eifert’s PF&R addressing the pending Motion

for Leave to Submit Third Amended Complaint are as brief as they are futile. With respect to his

first objection—that three new counts of action and nineteen new defendants should be

incorporated into this case—he merely “maintains his arguments set forth in his previous

pleadings.” Leave to Amend Objections, at 1. This is not a cognizable objection, insofar as the

Court will not afford de novo review to objections that are merely “reiterations” of arguments

raised before a magistrate judge. Reynolds, 2018 WL 3374155, at *3 (N.D.W. Va. July 11, 2018).

Plaintiff’s second argument—an objection to “the magistrate judge’s recommendation to dismiss

the entire complaint”—is somewhat mystifying, because nowhere in the PF&R does Magistrate

Judge Eifert recommend dismissing the presently-operative Second Amended Complaint. Leave

to Amend Objections, at 1. Plaintiff’s final objection is not really an objection at all, and is styled

a “Motion to Withdraw New Count of Action 12.” Id. at 2. This is apparently in reference to the

defamation and tortious interference claims this Court already addressed in its August 22, 2019

Memorandum Opinion and Order. See Mem. Op. & Order, ECF No. 325. Given that Plaintiff’s

objection appears to concur with the PF&R’s conclusion that Count 12 was previously refused by

this Court, Leave to Amend PF&R, at 8, the Court obviously need not consider its merits. It follows

that Plaintiff’s objections with respect to Magistrate Judge Eifert’s first PF&R must be denied.

B. Objections to PF&R Addressing Summary Judgment

Plaintiff has submitted thirty-three numbered objections with respect to Magistrate Judge

Eifert’s treatment of the parties’ cross-motions for summary judgment. Though many raise similar

issues, the Court will consider each objection in turn for the sake of analytical clarity. While certain

objections are well-taken and the Court adjusts its legal analysis accordingly, none alter the

outcome of this case.

1. Application of McDonnell Douglas and Mixed-Motive Approaches

Plaintiff’s first specific objection contains two distinct arguments: (1) that application of

the burden-shifting framework established by McDonnell Douglas Corporation v. Green, 411 U.S.

792 (1973), was unnecessary and that the Court’s analysis should focus on discrimination vel non,

and (2) that Magistrate Judge Eifert should also have analyzed his claims under the “mixed-

motive” approach to reviewing Title VII claims. Resolution of the first half of this dispute is

straightforward enough, for it appears Plaintiff has misapprehended the relationship between the

McDonnell Douglas framework and discrimination vel non. The two are not separate inquiries;

rather, the McDonnell Douglas scheme “exists solely to facilitate determination of ‘the ultimate

question of discrimination vel non.’” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,

295 (4th Cir. 2010) (quoting Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991)). It is true that, on

appeal, “the issue boils down to whether the plaintiff has presented a triable question of intentional

discrimination, and ‘the McDonnell Douglas framework—with its presumptions and burdens—is

no longer relevant.’” Id. (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)). Yet

for the purposes of summary judgment, application of the McDonnell Douglas scheme to evaluate

a plaintiff’s claims is a perfectly appropriate means of reaching the ultimate question of whether a

plaintiff was a victim of intentional discrimination. See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 153 (2000). To the extent Plaintiff’s objection is construed as an argument that

McDonnell Douglas was erroneously applied, then, his objection is denied.

The second half of Plaintiff’s objection requires more discussion. “A plaintiff has two

potential avenues to avoid summary judgment in a Title VII discrimination claim.” Perkins v. Int’l

Paper Co., 936 F.3d 196, 206 n.4 (4th Cir. 2019). First, under a “mixed-motive” framework, a

plaintiff may “present direct or circumstantial evidence that creates a genuine issue of material fact

as to whether an impermissible factor such as race solely or partially motivated the employer’s

adverse employment decision.” Id. Alternatively, a plaintiff “may proceed under the McDonnell

Douglas pretext framework.” Id. Magistrate Judge Eifert based her analysis solely on the

McDonnell Douglas scheme, concluding that Plaintiff “offers no direct or circumstantial evidence

that any of the defendants discriminated against him on the basis of race or national origin.” Summ.

J. PF&R, at 85. Plaintiff objects, arguing that he “presented 42 pages of undisputed material facts

in support of discrimination” in his Motion for Summary Judgment. Summ. J. Objections, at 3.

The Court must therefore consider whether Plaintiff has presented direct or circumstantial

evidence of racial animus.

Direct evidence is “evidence which, if believed, would prove the existence of a fact in issue

without inference or presumption.” O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542

(4th Cir. 1995), rev’d on other grounds, 517 U.S. 308 (1996). For example, direct evidence could

include statements or conduct “by decisionmakers clearly showing that race was a motivating

factor in the employment decision.” McCormack v. Roanoke Reg’l Airport Com’n, No. 7:00-

CV000926, 2002 WL 32598873, at *2 (W.D. Va. Oct. 16, 2002). Plaintiff has presented no such

evidence here.

Circumstantial evidence can likewise create a genuine issue of material fact in a Title VII

case on its own, Desert Palace, Inc. v. Costa, 539 U.S. 90, 100–102 (2003), but “[t]he usual method

to establish discriminatory intent with circumstantial evidence is by proving a ‘prima facie case,’

often called the ‘McDonnell Douglas’ test,”12 Robinson v. Volvo Group of North America, LLC,

65 F. Supp. 3d 458, 462 (M.D.N.C. 2014). Nevertheless, in some situations—such as where “an

employer’s false explanation about the circumstances of the plaintiff’s termination, accompanied

by evidence that the employer acted with an illicit motive,” circumstantial evidence may prove

discriminatory intent. Arthur v. Pet Dairy, 593 F. App’x 211, 219 (4th Cir. 2015). Yet to survive

summary judgment under a mixed-motive theory, Plaintiff’s circumstantial evidence must at least

create a genuine issue of material fact as to whether his race or national origin was a motivating

factor in MUSM’s decision to decline him tenure. See Diamond v. Colonial Life & Acc. Ins. Co.,

416 F.3d 310, 318 (4th Cir. 2005). Simply put, the circumstantial evidence Plaintiff has presented

here is not sufficient to make such a determination. Even taking the evidence in the light most

favorable to Plaintiff, nothing he has placed before the Court combines to suggest that his race or

12 This is because the Fourth Circuit Court of Appeals has frequently “suggested that

circumstantial evidence is at the heart of the McDonnell Douglas approach.” Id. at 461 n.2 (citing,

inter alia, Laing v. Fed. Express Corp., 703 F.3d 713, 718–19 (4th Cir. 2013) (“Without the benefit

of direct evidence to support her claim, [Plaintiff] next seeks to rely on circumstantial evidence

under the McDonnell Douglas burden-shifting framework.”)). At a point, however, this discussion

into different schemes of proof becomes more academic than useful; after all, a “plaintiff always

bears the ultimate burden of proving that [an] employer intentionally discriminated against her.”

Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)).

national origin had anything to do with his termination. The Court is not impermissibly “weighing”

the evidence in making this determination at the summary judgment stage, as Plaintiff suggests;

rather, it is concluding that Plaintiff’s has not presented evidence to suggest the existence of

impermissible motives on Defendants’ part. As such, even under the mixed-motive framework—

which, given the facts of Plaintiff’s case, is likely more demanding than the McDonnell Douglas

scheme—his objection must still be denied.

2. “Legitimate” Expectations

Plaintiff’s next objection is that Magistrate Judge Eifert erred in considering MUSM’s

expectations for his job performance rather than its legitimate expectations for his job

performance. Summ. J. Objections, at 4. Plaintiff points to page seventy-eight of the PF&R, which

defines the third element of the McDonnell Douglas test as an inquiry into whether “at the time of

the adverse employment action, he was performing up to his employer’s expectations.” PF&R, at

78. Plaintiff is correct; though Magistrate Judge Eifert cites to Holland v. Wash Homes, Inc., 487

F.3d 208, 214 (4th Cir. 2007), for her definition of the McDonnell Douglas test, the quoted portion

she reproduces in the PF&R is not actually drawn from Holland.13 As Plaintiff notes, the third

element of the McDonnell Douglas test is a determination of whether “he was performing his job

duties at a level that met his employer’s legitimate expectations at the time of the adverse

employment actions.” Holland, 487 F.3d at 214.

Nevertheless, this is once again a legal distinction without much difference for the actual

case sub judice. Plaintiff has simply failed to demonstrate that he was performing up to MUSM’s

legitimate expectations of a faculty member deserving of tenure. See Hawkins v. Pepsico, Inc., 203

13 This language does appear in Supinger v. Virginia, 167 F. Supp. 3d 795, 807 (W.D. Va.

2016), but is obviously not binding on this Court and does not alter the Fourth Circuit’s consistent

references to “legitimate” expectations.

F.3d 274, 281 (4th Cir. 2000) (“[Plaintiff attempts to frame [Defendant]’s behavior in racial terms

by charging that [Defendant] did not subject any of [Plaintiff]’[s] white peers to similarly poor

treatment. But [Plaintiff] presents no facts that tend to show this allegedly disparate treatment was

due to race rather than [Defendant]’s admittedly low regard for [Plaintiff]’[s] individual

performance.”). The basic requirement for promotion to Associate Professor—and therefore to

receive tenure—is to demonstrate “evidence of superior worth to the University” through

“effective performance in all major areas of responsibility and excellence in either teaching or

research/scholarly activities.” See Faculty Promotion and Tenure Regulations, ECF No. 333-1,

at 4. This requirement is legitimate, and as his annual evaluations, Mid-Tenure Review, and Pre-

Tenure Review make abundantly clear, Plaintiff’s colleagues simply determined that he was not

performing at levels necessary to justify an award of tenure. See Williams v. Cerberonics, Inc., 871

F.2d 452, 456 (4th Cir. 1989) (finding that “a plaintiff’s own assertions of discrimination in and

of themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory

reasons for an adverse employment action”). Plaintiff’s objection, while meritorious, is therefore

inconsequential given the facts before the Court.

3. Reliance on Jiminez v. Washington College

Plaintiff’s next objection is somewhat difficult to decipher, but appears to center on

Magistrate Judge Eifert’s reliance on Jiminez v. Washington College, 57 F.3d 369, 376 (4th Cir.

1995), and specifically its command that courts “be ever vigilant in observing that [they] do not

sit as a super personnel council to review tenure decisions.” Essentially, Plaintiff appears to believe

that Magistrate Judge Eifert did not consider “whether the reviewers evaluate job performances in

discriminatory manners” because she had afforded undue attention to the “irrelevant issue of the

requirement for the court to give deference to the decision maker’s opinion.” Summ. J. Objections,

at 5.

As a preliminary matter, the issue of deference to a university’s tenure decision is far from

“irrelevant”—indeed, it is precisely this principle that frames a court’s approach to Title VII claims

raised in relation to tenure denials. Moreover, Magistrate Judge Eifert devoted considerable energy

to considering whether Plaintiff had demonstrated the existence of discrimination in Marshall’s

decision to deny him tenure; she simply reached a conclusion that Plaintiff disagrees with. See

Summ. J. PF&R, at 85–97. The fact that she considered binding precedent from the Fourth Circuit

Court of Appeals alongside her analysis is not only appropriate, but necessary. Plaintiff’s objection

is thus meritless and must be denied.

4. Consideration of Similarly Situated Employees

Plaintiff next argues that Magistrate Judge Eifert erred in determining that Drs. Koc and

Denvir were not comparators for the purposes of assessing his claims of disparate pay. Summ. J.

Objections, at 6. He specifically attacks her reliance on Spencer v. Virginia State University, 919

F.3d 199, 204 (4th Cir. 2019), for the proposition that “professors cannot be similarly situated with

each other.” Id. Plaintiff contends Spencer is inapposite because the comparators worked in

different departments, were former administrators, taught different levels of students, and had

salaries based on their status as former administrators. Id. This is a very weak argument; no two

cases will share exactly the same set of facts, and Magistrate Judge Eifert’s reliance on Spencer is

entirely justified given that Plaintiff and his proposed comparators also differed in several key

respects.14 In any event, she does not cite Spencer for the proposition that professors can never be

14 In particular, Plaintiff is an immunologist, Dr. Koc was an expert in proteomic and mass

spectrometry, and Dr. Denvir is a mathematician specializing in bioinformatics. Summ. J. PF&R,

at 63, 67.

similarly situated with each other; rather, she repeated its reasoning that “[p]rofessors are not

interchangeable like widgets,” and that professors’ salaries may be based on “various

considerations” including market forces and specialized skills. Spencer, 919 F.3d at 204. Within

this framework, Magistrate Judge Eifert pointed to Koc and Denvir’s “different backgrounds,

training, and fields of expertise” as evidence of the fallacy of comparing their salaries with

Plaintiff’s. Summ. J. PF&R, at 94. Nothing about this analysis warrants objection.

Plaintiff also contends that Magistrate Judge Eifert “erroneously suggested that instead of

Koc and Denvir, the plaintiff should be compared with the highly acclaimed professors Yu and

Jackman.” Summ. J. Objections, at 6. She did no such thing; the portion of the PF&R to which

Plaintiff cites is merely a summary of the Defendants’ responses to Plaintiff’s Motion for Summary

Judgment. Summ. J. PF&R, at 72. It follows that this objection must be denied.

5. Specific Evidence of Disparate Treatment

This objection is so general as to border on the unreviewable, but essentially makes out an

argument that Magistrate Judge Eifert should have lavished more attention on his comparisons

between his reviews and the reviews of Drs. Koc and Denvir. Summ. J. Objections, at 7. At the

same time, he advances the confusing argument that “this case is not about the reviewers’ opinion

of the plaintiff.” Id. To the contrary, this case is plainly about the reviewers’ opinion of the

plaintiff—specifically, whether their decision to deny him tenure was motivated by racial or

national animus. This is particularly true given the fact that the tenure committees did not compare

applicants against each other, but rather against the responsibilities outlined in their letters of

appointment and internal tenure regulations. In any event—and as Magistrate Judge Eifert points

out—the tenure committees did not have access to all of the comparison data that Plaintiff has

submitted to the Court. Summ. J. PF&R, at 88. Plaintiff’s objection is therefore denied.

6. MUSM Policies

Plaintiff next argues that Magistrate Judge Eifert mistakenly construed his comparative

record of publications as merely his own opinion rather than an accurate reflection of official

MUSM policies. Summ. J. Objections, at 8. Plaintiff is apparently referencing portions of the

PF&R that characterize his comparisons to Drs. Koc and Denvir as essentially subjective. See

Summ. J. PF&R, at 86–88. Simply put, the Court agrees with this assessment of his comparisons.

Contrary to Plaintiff’s oft-repeated assertion that he has presented “undeniable evidence” that he

published “more . . . articles of greater significance than” either Dr. Koc or Dr. Denvir, the

evidence actually shows that Dr. Koc published two original research papers in two years and that

Dr. Denvir published thirteen papers in three years. See ALJ Decision, at 45. Plaintiff, on the other

hand, published only three original research papers in his six years of employment with MUSM.

Id. Plaintiff responds by arguing that his papers were of greater importance than his colleagues’

papers, and points to the “impact factor” assigned to each paper as evidence of this fact. Summ. J.

Objections, at 8. Without citation, he claims that “[t]he generally accepted measure of importance

of publications is the impact factor.” Id. at 9. He further argues that “the school of medicine

officially acknowledged that impact factor is a criterion for research productivity.” Id. (emphasis

added). This may well be the case, but no MUSM regulation dictates that the impact factor of an

article is the only—or even the primary—factor to be considered in evaluating publications. Indeed,

they explicitly provide that the “number, quality, and importance of publications” are to be

considered. Marshall Univ. Bd. of Governors Faculty Promotion Policy, ECF No. 334-12, at 2.

Nothing about this language suggests that the impact factor of Plaintiff’s papers alone dictated a

particular outcome during the tenure review process.15 As such, his objection is denied.

15 In fact, nothing about this language actually requires a committee to consider the

7. Evidence of Teaching and Publications Before the Tenure Reviewers

Plaintiff’s next several objections challenge Magistrate Judge Eifert’s conclusion that

“much of the information now submitted by Zeng to prove his superiority to Drs. Koc and Denvir

was not contained in the tenure packet supplied by Zeng.” Summ. J. PF&R, at 88. His seventh

objection in particular makes clear that the tenure committees had access to his teaching reviews,

a list of his publications, and information about their importance. Summ. J. Objections, at 10.

Plaintiff misapprehends the PF&R, however, which makes no claim that all of the information he

presents in support of his comparisons to Drs. Koc and Denvir was not included in his tenure

review packet. Neither Magistrate Judge Eifert nor this Court deny that certain pieces of evidence

pertaining to Plaintiff’s teaching performance and publications were put before the tenure

committees as part of Plaintiff’s review. To the extent Plaintiff has objected to a conclusion

Magistrate Judge Eifert never reached, his objection is denied.

8. Comparative Data Available to Tenure Reviewers

As above, Plaintiff objects that he included certain comparative information about

publications by Drs. Koc and Denvir in his tenure application and that Magistrate Judge Eifert

erred in reasoning that it had not been included. Id. at 10. Once again, Magistrate Judge Eifert did

not find that Plaintiff failed to include all information about his colleagues’ publications with his

tenure review packet; she merely concluded that “much of the information now submitted by Zeng

to prove his superiority to Drs. Koc and Denvir was not included in the tenure application packet.”

Summ. J. PF&R, at 88 (emphasis added). As such, Plaintiff’s objection is denied.

“impact factor” of an article at all. The regulation only speaks to the “importance of publications.”

9. Use of Public Information by Tenure Reviewers

Plaintiff’s final objection related to information contained in his tenure review packet

actually stems from information that was never contained in his tenure review packet. He argues

that “the reviewers were not limited exclusively to the information in the application,” and that

they should have relied on information in the public domain. Summ. J. Objections, at 11. He further

contends that the reviewers actually did rely on some information accessible only in electronic

databases, and that this reliance should allow him to present further evidence from outside the

context of his tenure application to this Court. This reasoning is deeply flawed. At core, Plaintiff’s

burden is to demonstrate that race was an impermissible factor in his denial of tenure under either

a mixed-motive or pretextual framework. Presenting additional information to the Court that

played no role in the reviewers’ tenure decision does nothing to advance this goal. As Magistrate

Judge Eifert notes, the “witnesses universally testified that the tenure committees at MUSM judged

Drs. Koc, Denvir, and Zeng—like every other tenure applicant—on the materials that each

applicant submitted with his or her tenure application,” and that they “did not compare applicants

to each other.” Summ. J. PF&R, at 88. The mere possibility that reviewers could have accessed

favorable information about how Plaintiff stacked up against his Drs. Koc and Denvir is therefore

irrelevant in meeting his burden on his discrimination claims. The objection is accordingly denied.

10. Tabular and Numerical Presentation of Evidence

Plaintiff next takes issue with Magistrate Judge Eifert’s “accusation” that he “frequently

manipulate[ed] data in his own calculations.” Id. at 86. Whether or not “manipulation” is the

appropriate way to refer to Plaintiff’s presentation of data is largely semantic, however, and is

independent of Magistrate Judge Eifert’s actual conclusion that Plaintiff’s “data compilations do

not reflect the information actually considered by the tenure committees when performing their

deliberations and do not measure the information in the same manner as used by the committees[‘]

members.” Summ. J. PF&R, at 88. Indeed, even taking Plaintiff’s data sets at face value, “those

compilations shed little light on the key issue of whether there was an improper discriminatory

motive in the decision not to award Zeng tenure.” Id. (citing Hawkins, 203 F.3d at 280). Plaintiff’s

ex post facto arguments that the tenure committees could theoretically have accessed the

information he presents through internal Marshall records and public databases say nothing about

the tenure committees’ actual motivations in denying recommendations for tenure. It follows that

Plaintiff’s objection must be denied, even when liberally construed as an objection to Magistrate

Judge Eifert’s conclusion rather than the labels she has attached to it.

11. Meeting Marshall’s Legitimate Expectations

Not so much an objection as a recitation of legal standards, Plaintiff contends that the Court

should analyze whether he was performing at a level substantially equivalent to the lowest level

of those who received tenure in determining if he met his employer’s legitimate expectations.

Summ. J. Objections, at 16. He claims that “[i]n Duke v. Uniroyal Inc., 928 F.3d 1413 (4th Cir.

1991), the [Fourth] Circuit [Court of Appeals] defined [an] employer’s legitimate expectation as

‘performing at a level substantially equivalent to the lowest level of those retained in the group or

territory.’” Id. This is an incorrect reading of Duke, which concerned allegations of age

discrimination in circumstances where an employer’s reduction in force was motivated by business

reasons and employee performance was “irrelevant.” See Duke, 928 F.2d at 1418. In this case,

MUSM’s legitimate expectations for Plaintiff—as well as his ability to meet them—are directly

relevant; indeed, they form the very basis for his termination. Plaintiff’s amended legal standard

is inapplicable to this case, and his objection is denied.

12. Exceeding Marshall’s Expectation of Excellence in Teaching

Plaintiff’s next contention is that Magistrate Judge Eifert erred in determining that he had

not demonstrated the requisite excellence in teaching to obtain tenure. Summ. J. Objections, at 17.

He relies on a comparison table that lists seven factors for consideration in tenure decisions:

teaching load, development of new courses, development of syllabus material, student

sponsorship, resident training, courses taken to improve teaching effectiveness, and student

evaluations. Id. At the outset, the whole exercise of Plaintiff’s side-by-side comparison is once

again unavailing; as witnesses unanimously testified, the tenure committees reviewed applications

on their own merit rather than in comparison with other candidates for tenure. See Summ. J. PF&R,

at 8.

The question before the Court is therefore whether Plaintiff has presented evidence

sufficient to demonstrate that he was performing up to MUSM’s legitimate expectations. The

answer is plainly that he was not. The entire course of Plaintiff’s employment at MUSM is replete

with exhortations to improve his teaching skills and warning signs of what lay ahead if he did not.

As early as his second annual evaluation, evaluators rated his teaching as merely “good.” One year

later, they aimed even lower and rated his teaching “satisfactory.” Reviewers consistently

suggested that Plaintiff attend classes with other professors and consult with other university

resources to improve his teaching. The committee that issued Plaintiff’s Mid-Tenure Review

believed that he was not performing adequately in teaching, and suggested various remedial steps

to improve his chances of attaining tenure. Evaluations in the following years similarly suggested

various steps for improving his teaching abilities. Even allowing for some improvement in

Plaintiff’s teaching near the end of his time at MUSM, “Zeng simply did not follow through on all

of the committees’ recommendations” and did not demonstrate the sort of excellence in teaching

necessary to deserve an award of tenure. Id. at 91; see also Warch v. Ohio Cas. Ins. Co., 435 F.3d

510, 516—17 (4th Cir. 2006) (upholding grant of summary judgment where a “long string of

performance problems” led to employee’s firing). This failure to meet MUSM’s legitimate

expectations is fatal to his claim,16 and his objection is denied.

13. Exceeding Marshall’s Expectation of Excellence in Research

Plaintiff similarly objects to Magistrate Judge Eifert’s conclusion that he did not show the

requisite excellence in research to justify tenure. Summ. J. Objections, at 17–18. Again, Plaintiff

employs a comparison chart to demonstrate his purported superiority to Drs. Koc and Denvir.

Again, the Court finds little relevance in Plaintiff’s comparisons given the tenure committees’

practice of reviewing each application separately and without reference to the performance of other

candidates for tenure.

The Court therefore narrows its inquiry to a single question: whether Plaintiff has presented

sufficient evidence for a reasonable jury to conclude he had demonstrated excellence in research,

therefore meeting Marshall’s legitimate expectations. As with teaching, the answer is that he has

not met this burden. For years ahead of his final tenure decision, reviewing faculty members

advised Plaintiff that he should increase the frequency of publications, participate in conferences

and meetings, and work with other faculty members to develop grant proposals and collaborative

projects. Reviewers were likewise unimpressed by the return on his initial $300,000 research grant.

Indeed, as Plaintiff’s own evidence shows, he earned two “satisfactory” rankings and one “poor”

ranking for his research. Id. at 18. The implications of this lengthy record of constructive criticism

and apparent unresponsiveness are clear enough: Plaintiff simply did not demonstrate the

16 Plaintiff has presented no evidence or argument suggesting that MUSM’s expectations

of excellence in teaching were somehow illegitimate or a “sham designed to hide the employer’s

discriminatory purpose.” Brummett v. Lee Enter., Inc., 284 F.3d 742, 745 (7th Cir. 2002).

excellence in research that was legitimately expected of applicants for tenure. Plaintiff’s objection

that Magistrate Judge Eifert erred in making this determination is therefore denied.

14. Marshall’s Discriminatory Animus

Plaintiff also objects to Magistrate Judge Eifert’s determination that he had not shown that

Asian faculty members were held to a higher standard than Caucasian faculty members at MUSM,

thereby failing the fourth prong of the McDonnell Douglas analysis. Id. at 19. For support, he

“respectfully refers the court to his motion for summary judgment” and references several

particular portions of it. Id. As the Court will not afford de novo review to mere reiterations of

earlier arguments raised before a magistrate judge, it will not do so here. Reynolds, 2018 WL

3374155, at *2. Reviewing Magistrate Judge Eifert’s conclusion that Plaintiff had demonstrated

no discriminatory animus for clear error—and finding none—the Court denies Plaintiff’s

objection.

15. Improperly Affording Deference to the ALJ’s Decision

Plaintiff’s next objection is somewhat unclear, variously referencing “full faith and credit,”

“res judicata,” and “claim and issue [pre]clusion,” but seems to suggest that Magistrate Judge

Eifert afforded undue (or even absolute) deference to the West Virginia Public Employee

Grievance Board’s final decision. Summ. J. Objections, at 20. To the contrary, even a glancing

review of the PF&R reveals over seventy pages of a careful and searching review of the evidence

underlying this case and the arguments contained in each party’s motion.17 See Summ. J. PF&R,

at 1–72. Magistrate Judge Eifert’s references to the ALJ’s decision do not reflect deference, but

rather careful review and discussion. See, e.g., id. at 86 n.1 (noting “consideration” of the ALJ’s

17 Indeed, the PF&R contains an entire section discounting much of Defendants’ full faith

and credit argument. Summ. J. PF&R, at 118–19.

conclusions). As this Memorandum Opinion and Order makes clear, merely referencing another

adjudicator’s findings does not inherently involve the application of any deference to those

findings. The objection is therefore denied.

16. Improperly Discrediting Plaintiff’s Evidence

Plaintiff next contends that Magistrate Judge Eifert “fully adopted the grievance board’s

erroneous finding that the plaintiff manipulated evidence,” thereby exceeding her authority at the

summary judgment stage. Summ. J. Objections, at 20. In particular, the PF&R quotes the ALJ’s

opinion that Plaintiff “appears to frequently manipulate data in his own calculations to detract from

the performance of compared faculty members and enhance his own.” Summ. J. PF&R, at 86. This

statement—as well as Magistrate Judge Eifert’s subsequent substantiation of it—does not reflect

a desire to “discredit” Plaintiff’s evidence, but rather a hope to engage with underlying facts behind

that evidence. What this review uncovered was a series of discrepancies in the data Plaintiff

presented, such as his decision not to include co-authored articles or his omission of references to

relevant timeframes. None of this “discredits” Plaintiff’s actual evidence; rather, it examines the

facts underlying his chosen packaging of it. To reason otherwise would confine courts to taking

evidence like Plaintiff has presented here—primarily composed of tables and other numerical

data—at face value, entirely unable to determine if such data is grounded in reality. The Court

therefore denies Plaintiff’s objection.

17. Deference to Defendants’ Opinions of Job Performance

Plaintiff argues that Magistrate Judge Eifert “misconstrued the case law[] to think that so

long as the employer has different opinions on the employee’s job performance there is no case

for the employee.” Summ. J. Objections, at 21. To the contrary, the PF&R accurately quotes

precedent from the Fourth Circuit Court of Appeals and other district courts within the Fourth

Circuit to make the point that a “plaintiff’s disagreement with an employer’s criticisms is not

relevant because the inquiry is not whether an employer’s assessments of a plaintiff were

accurate.” Ostrem v. Arlington Cnty. Sch. Bd., No. 1:18-CV-746, 2019 WL 6188278, at *4 (E.D.

Va. Nov. 19, 2019). This principle does not suggest that a plaintiff may not bring an anti-

discrimination lawsuit where an employer has an unfavorable opinion of his or her performance,

but it does suggest that “it is the perception of the decision maker which is relevant, not the self-

assessment of the plaintiff” when determining if he or she is meeting an employer’s legitimate

expectations. Warch, 435 F.3d at 518. Inasmuch as Magistrate Judge Eifert appropriately

discounted Plaintiff’s opinions of his own performance, his objection is denied.

18. Failure to Recognize Arbitrariness of Decisions

Plaintiff’s next objection is that Magistrate Judge Eifert erred in treating “the chair’s

comments in faculty reports and tenure reviewers’ . . . evaluations as independent factors for

determining excellence in teaching or research.” Summ. J. Objections, at 21. In particular, he

argues that “the chair and other reviewers did not have a license to say whatever they wanted” and

that the blatant inaccuracy of their reviews essentially render them meaningless. Id. Plaintiff is

fundamentally incorrect. A “teacher’s competence and qualifications for tenure or promotion are

by their very nature matters calling for highly subjective determinations, determinations which do

not lend themselves to precise qualifications and are not susceptible to mechanical measurement

or the use of standardized tests.” Clark v. Whiting, 607 F.2d 634, 639 (4th Cir. 1989). The inherent

subjectivity of tenure decisions renders any opinions of an applicant’s performance vital in

determining whether that applicant is meeting his employer’s legitimate expectations. To ignore

the opinions of those who reviewed Plaintiff’s performance simply because he disagrees with them

and believes they are arbitrary would turn this Court into precisely the type of super personnel

council that it may never become. See Jiminez, 57 F.3d at 376. The objection is accordingly denied.

19. Requirement of Proving Discrimination Against Asian Faculty Members

Plaintiff’s next objection contains two sub-parts: first, that Magistrate Judge Eifert

improperly held that he would need to demonstrate a pattern of discrimination against all Asian

faculty to make his case, and second, that she erred in concluding that he had not demonstrated

such a pattern. Summ. J. Objections, at 22. With respect to the first part of Plaintiff’s objection, it

is not clear that Magistrate Judge Eifert ever concluded that he was required to demonstrate a

pattern of discrimination against all Asian faculty members to make out a successful anti-

discrimination claim; she merely suggests that he singled out just two successful Asian faculty

members to make the case that all Asian faculty members are held to a higher standard than their

Caucasian coworkers. Summ. J. PF&R, at 91.

The second half of Plaintiff’s objection is similarly unavailing, as it is essentially a bald

disagreement with Magistrate Judge Eifert’s conclusion that he had not demonstrated that MUSM

held Asian faculty members to a higher standard than their Caucasian counterparts. Indeed, he

leaves entirely unaddressed Magistrate Judge Eifert’s determination that (1) Plaintiff was one of

few Asians who was not offered tenure by MUSM and (2) that “of the group of faculty members

who did not advance, most of them were Caucasian.” Id. at 92. This evidence weighs

overwhelmingly against Plaintiff’s position, and he has not provided countervailing evidence that

could create a genuine issue of material fact. The Court therefore denies the objection.

20. Failure to Recognize Dr. Primerano’s Interference

Plaintiff contends that Magistrate Judge Eifert overlooked two pieces of evidence related

to Dr. Primerano: that he told the departmental tenure committee “years before” October 2015 that

he did not plan on recommending Plaintiff for tenure, and that he blocked his access to the same

committee’s review of his tenure application. Summ. J. Objections, at 23. This objection is simple

enough to resolve, because there is simply no evidence that either omission would alter a Court’s

consideration of whether unlawful discrimination influenced MUSM’s tenure decision.

Primerano’s premature decision to advise his colleagues that he would not recommend Plaintiff

for tenure was neither prudent nor considerate, but it has no clear relationship to Plaintiff’s race or

national origin. The same is true of Primerano’s alleged decision to “block” Plaintiff from

requesting revisions in the departmental committee’s report on his application for tenure, which

reflects a failure of effective management more than anything else. Plaintiff’s objection must

therefore be denied.

21. Failure to Recognize the Defendants’ Warnings were Disparate Treatments

Plaintiff next objects to Magistrate Judge Eifert’s finding that he “could not prove pretext

because the defendants gave multiple warnings.” Id. at 23. While he considers this logic “baffling,”

it is actually quite straightforward. To prove that an employer’s stated reasons for an adverse

employment decision are pretextual, a “plaintiff may attempt to establish that he was the victim of

intentional discrimination ‘by showing that the employer’s proffered explanation is unworthy of

credence.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Yet even before

reaching this point, an employer must produce “sufficient evidence to support a nondiscriminatory

explanation for its decision.” Id. Plaintiff’s multiple warnings that he was not performing

sufficiently well to obtain tenure are strong evidence that he was denied tenure for the exact reason

MUSM has proffered here: his lacking performance.

Of course, Plaintiff also argues that these warnings constituted “unfavorable disparate

treatments.” Summ. J. Objections, at 23. He claims that similarly situated employees performed

substantially the same and did not receive similar warnings. Id. at 24. As has been noted frequently

already, the key question in resolving Plaintiff’s discrimination claims is quite narrow: whether

the committees’ decision to deny Plaintiff a tenure recommendation was the result of

impermissible discrimination. Given the fact that each application is reviewed on its own rather

than weighted against others, comparing the relative commentary for each tenure applicant is a

largely irrelevant exercise. This objection is accordingly denied.

22. Pay Discrimination

Plaintiff also claims that Magistrate Judge Eifert erred in concluding that he was not the

subject of discrimination in salary. First, he once again argues that Spencer v. Virginia State

University, 919 F.3d at 204, is inapposite to this case because the comparators in Spencer taught

different types of students and had their salaries determined by their former status as

administrators. Summ. J. Objections, at 24. As discussed supra, Spencer is not inapposite here.

The differences between Plaintiff and Drs. Koc and Denvir are manifold, ranging from their

different backgrounds, training, and fields of experience. To succeed on a claim for discrimination

in salary, Plaintiff must demonstrate that he and his proposed comparators “had equal jobs, not

just that they all performed vaguely related tasks using nominally comparable skills.” Spencer,

919 F.3d at 205 (emphasis in original).

Of course, Plaintiff’s claim fails for an even clearer reason: that his salary of about $76,000

per year fell comfortably in the middle of other salaries in his department. See State Employees

Total Compensation, ECF Nos. 363-1–7. Some Caucasian faculty members earned less than

Plaintiff, while some Asian faculty members earned more. See Marshall Resp. in Opp’n, ECF

No. 363, at 3–5. There is simply no pattern of discrimination apparent in this publicly-available

data; rather, it suggests that MUSM pays employees based on market forces, specialization,

budgetary considerations, and current institutional needs. Plaintiff offers no persuasive evidence

in his Objections or original Motion for Summary Judgment to demonstrate that this non-

discriminatory explanation is pretextual. Instead, he fixates on largely meaningless statistical

measures—the fact that two immunologists at West Virginia University were paid between

$94,000 and $99,000 in 2009, for example. Summ. J. Objections, at 26. At best, this information

represents exactly the sort of “scintilla” of evidence that is insufficient to defeat summary

judgment. Plaintiff’s objection is denied.

23. Employment Privilege

Plaintiff’s final objection with respect to his discrimination claims rests on his argument

that MUSM discriminated against him by denying him the opportunity to teach Dr. Jackman’s

Medical Immunology course. Id. at 28. Specifically, he claims Magistrate Judge Eifert erred in

concluding that he did not suffer an adverse employment consequence from the denial and that he

did not demonstrate that MUSM’s reasoning was pretextual. Id. The Court disagrees with Plaintiff

on both counts. First, Plaintiff has presented no evidence that his application for tenure was

affected in any way by MUSM’s refusal to allow him to teach Dr. Jackman’s course. Indeed, a

core part of his argument is that his actual courseload was not factored into the tenure committees’

decisions. Id. (“[T]he primary reason the tenure committees and reviewers did not give [an]

excellent rating of the plaintiff’s teaching was because they considered, albeit falsely, the

plaintiff’s teaching load to be low.” (emphasis added)). Second, Plaintiff has failed to demonstrate

that MUSM’s stated reason for asking another professor to teach Dr. Jackman’s course—Plaintiff’s

low teaching scores—was pretextual. Though Plaintiff’s teaching scores had improved by 2015,

this fact alone is insufficient to demonstrate that his prior low teaching scores were not the actual

basis for MUSM’s decision. Moreover, the fact that the professor who took over teaching Dr.

Jackman’s course later earned low reviews does not indicate that MUSM’s original decision was

pretextual. As such, Plaintiff’s objection must be denied.

24. Conspiracy for Breach of Contract and Retaliation

It is difficult to discern exactly what portions of Magistrate Judge Eifert’s findings that

Plaintiff particularly objects to with respect to his conspiracy claim; indeed, the majority of his

objection appears to be a recitation of his earlier arguments concerning the existence of a years-

long conspiracy to retaliate against him for an EEOC complaint he had not yet filed. See id. at 29–

33. He takes issue with Magistrate Judge Eifert’s “new theory”—which is really her proposed

finding—that Drs. Primerano and Shapiro did not consider Plaintiff’s termination on June 30, 2016

to be an early termination. Id. at 29. Of course, Plaintiff’s termination on June 30, 2016 was not

an early termination; in fact, “the evidence is uncontroverted that Zeng’s seventh annual contract

with MUSM ended on June 30, 2106 and MUSM’s Tenure Regulations limited non-tenured

probationary faculty to a maximum of seven years’ employment.” Summ. J. PF&R, at 101.

He also objects to Magistrate Judge Eifert’s conclusion that “the defendants could treat

employment time of less than 1 full year as a full probationary year.” Summ. J. Objections, at 30.

It is true that Marshall regulations provide that faculty “appointed at times other than the beginning

of the academic year may choose to have those periods of appointment equal to or greater than

half an academic year considered as a full year for tenure purposes only.” See id. (emphasis added).

Yet why this language—which applies only to tenure decisions—should have any effect on the

end date of Plaintiff’s actual employment is entirely unclear, particularly given that a decision on

Plaintiff’s tenure status had already been rendered.

As a final matter, Plaintiff re-alleges his claim that Primerano and Shaprio’s joint letter of

March 24, 2015—filed over a year before Plaintiff filed his EEOC complaint and initiated

grievance procedures—marked the start of a conspiracy to retaliate against him for doing just that.

Id. at 31. He claims Magistrate Judge Eifert erred in discrediting the letter as evidence of a

conspiracy. Id. The Court disagrees, and finds Plaintiff’s argument unavailing once again. This

case neatly encapsulates the Fourth Circuit Court of Appeals’ “relatively stringent standard for

establishing section 1985 conspiracies.” Simmons v. Poe, 47 F.3d 1370, 1378 (4th Cir. 2011).

Under standards governing claims of conspiracy to discriminate in employment, courts in the

Fourth Circuit have “rarely, if ever, found that a plaintiff has set forth sufficient facts to establish

a section 1985 conspiracy, such that the claim can withstand a summary judgment motion.” Id.

Plaintiff’s unsupported conclusions are simply not enough to avoid summary judgment, and his

objection is denied.

25. Retaliation: No Alternative Interpretations of Policies

Plaintiff’s next three objections all stem from his retaliation claim, which he outlines in

Count Six of the Second Amended Complaint. This particular objection stems from Magistrate

Judge Eifert’s interpretation of Marshall policies requiring a terminal contract for certain

employees, though the precise nature of Plaintiff’s objection to her conclusion is unclear. Summ.

J. Objections, at 33. He raises two legal arguments related to implied contracts in employee

handbooks and property interests in tenure-track faculty positions, though these are more

Plaintiff’s spin on certain legal principles than cognizable objections to the PF&R.

Nevertheless, Plaintiff also raises several factual objections. Each of these is principally

centered around his own changing interpretations of Marshall policy as it related to his termination

date. He attempts to wriggle free from his prior admission that “the Faculty Promotion and Tenure

regulations would require that I apply for tenure in my sixth year (the fall of 2014)” when

requesting an extension to the fall of 2015.18 Id. at 35. He variously claims that he never mentioned

the word “policy” in his letter, and that his use of the verb “would” instead of “will” somehow

indicates uncertainty about the very tenure deadline he was requesting to extend. Id. at 35. That

Plaintiff has changed his interpretation of the regulations now to require a terminal contract

extending his employment is belied by his own prior statements and reflects nothing more than a

desire to put forth a more favorable interpretation of applicable regulations.

As a final note, Plaintiff’s focus on regulatory provisions governing terminal contracts is

misplaced. The core of his retaliation claim is that he was discharged on June 30, 2016 in retaliation

for filing his EEOC complaint and his grievance with the WVPEGB. As noted with respect to his

conspiracy claim, Plaintiff was informed that his employment with Marshall would end on that

date over a year before its arrival and well before filing any complaint or grievance. This fact alone

renders Plaintiff’s objections to Magistrate Judge Eifert’s findings on his retaliation claim a

somewhat academic exercise, though the Court of course affords them the de novo review required

by law. In any event, the objection is denied.

26. Retaliation: Premature Termination Apart from Terminal Contract

Plaintiff’s next objection does not actually reference any part of Magistrate Judge Eifert’s

PF&R, and merely claims that “the defendants should [have] issue[d] the plaintiff a notice of

faculty employment to cover ‘part of’ academic year 2016-17, from July 1, 2016 to Aug[ust] 30,

2016.” Id. at 36. It is entirely unclear how this objection relates to a particular portion of the PF&R.

In any event, the court denies the objection to the extent it is characterized as one.

18 He also argues that there was no “meeting of the minds” at a discussion with Dr.

Primerano about an extension of time to apply for tenure. Summ. J. Objections, at 35. The Court

does not attach much significance to this meeting, other than to note it is further evidence of

Plaintiff’s awareness of MUSM’s position regarding his termination date.

27. Retaliation: Plaintiff’s Protected Activities

Plaintiff next argues that Magistrate Judge Eifert erred in identifying the wrong “protected

activity” for which he was discharged. Id. at 36. He claims that his protected activities included

filing a complaint with the EEOC and a grievance with the WVPEGB in April and mid-May 2016,

and that Defendants retaliated against him by sending him a notice of termination on June 29,

2016. Id. As has been discussed already, this is a dramatically incomplete picture of what actually

occurred. Plaintiff received notice of his contract’s termination date on March 24, 2015 from both

Drs. Primerano and Shapiro. He later discussed that termination date with Primerano in person,

though it was not altered. It requires no weighing of the evidence to conclude that Plaintiff’s

contract termination date was established far before he even contemplated filing a complaint or

grievance (and, for that matter, before he was even denied tenure). The fact that Shapiro later

offered to extend Plaintiff’s employment by several months to appease him does not alter this

analysis. It belies basic logic to conclude that enforcement of a pre-set termination date is the

product of retaliation for protected activity that has not already occurred. Plaintiff’s objection is

denied.

28. Neglect to Prevent Retaliation

Plaintiff next objects to Magistrate Judge Eifert’s conclusion that summary judgment is

warranted with respect to his 42 U.S.C. § 1986 claim because she erred in concluding that he had

not demonstrated the existence of a conspiracy to retaliate under 42 U.S.C. § 1985. Id. at 37. As

discussed above, Plaintiff’s objections to Magistrate Judge Eifert’s findings on his conspiracy

claim are not meritorious. Plaintiff has failed to present sufficient evidence to succeed on a claim

for conspiracy to retaliate or for actual retaliation, and thus cannot succeed on a claim for neglect

to prevent retaliation. As he presents no other argument against Magistrate Judge Eifert’s

conclusion, his objection is denied.

29. Substantive Due Process Violation

The first of Plaintiff’s five objections related to his due process claims focuses on his

“substantive due process right in the tenure process.” Id. This is a difficult objection to parse; while

he centers it on Magistrate Judge Eifert’s purported error in concluding that “once tenure is denied

the property interest in tenure ceases to exist,” the rest of his objection seems to be that

discrimination was simply so apparent in his tenure review process that it would “shock the

conscience.” Id. at 38. It is unclear how this alleged error and the substance of this objection relate,

but the Court will address them nonetheless. As the United States Supreme Court has made clear,

substantive due process may be used to override a decision in an academic setting only where the

decision “is such a substantial departure from accepted academic norms as to demonstrate that the

person or committee responsible did not actually exercise professional judgment.” Regents of the

Univ. of Michigan v. Ewing, 474 U.S. 214, 223 (1985). There is no evidence before the Court that

rises to this high level. As Plaintiff’s substantive due process rights were not violated by the tenure

review process, his objection is denied.

30. Due Process: Property Interest

Plaintiff’s next objection again references the requirement that professors who are denied

tenure be offered a “terminal contract” for a final year of employment. Summ. J. Objections, at 38.

He claims Magistrate Judge Eifert erred in determining that he did not request an extra “terminal”

year after receiving Primerano and Shapiro’s March 24, 2015 letter, which laid out in no uncertain

terms that his final day of employment (barring an award of tenure, that is) would be June 30,

2016. Of course, the unique circumstances of Plaintiff’s time at Marshall warranted this slightly

atypical approach. Three Marshall regulations make this point clearly. First, Marshall requires

professors to apply for tenure before their sixth year of employment. See Title 133, Series 9

Procedural Rule, West Virginia Higher Education Policy Comm’n, ECF No. 334-11, at § 10.3.

Second, the maximum period of tenure-track status is capped at seven years. Id. Third and finally,

professors who are denied tenure are guaranteed a one-year written terminal contract of

employment. Id.

In normal circumstances, Plaintiff would have applied for tenure by the fall of 2014. If he

were denied, he presumably would have been offered a terminal contract for another year of

employment. Of course, Plaintiff requested an additional seventh year in which to apply for tenure.

Primerano and Shaprio granted this request, but noted that the fall of 2015 would be Plaintiff’s

“last opportunity . . . to apply for tenure.” Letter from Joseph Shapiro and Donald Primerano to

Wei-Ping Zeng, at 1. The letter also provided a plain warning that “[i]n the event that tenure is not

approved, your contract would expire on June 30[,] 2016.” Id. This arrangement made it

impossible to afford Plaintiff a terminal contract and still comply with the seven-year cap on

tenure-track appointments, but suited Plaintiff’s desire for an extension in time to apply for tenure.

To the extent Plaintiff’s objection is narrowly construed as arguing he was under no obligation to

request a terminal contract, he is correct. Yet his argument fails when placed in the broader context

of an extension in his tenure application period that had already been granted. Plaintiff was under

no obligation to request a terminal contract, but MUSM was under no obligation to offer one either;

indeed, it had already effectively done so in acceding to Plaintiff’s extended timeline. In any event,

“the mere fact that a state agency violates its own procedures does not ipso facto mean that it has

contravened federal due process requirements.” Morris v. City of Danville, 744 F.2d 1031, 1048

n.9 (4th Cir. 1984). It follows that this objection is denied.

31. Due Process: Primerano’s June 29, 2016 Letter

Plaintiff next objects to Magistrate Judge Eifert’s conclusion that the March 24, 2015 letter

he received from Primerano and Shapiro served as notice of his pending termination. Summ. J.

Objections, at 39. Instead, he argues that the June 29, 2016 letter he received from Primerano was

his notice of termination. Id. He claims that the 2015 letter was insufficient because it did not

provide him with notice of a pending termination, the reason for such a termination, or an

opportunity to challenge his termination.19 Id. at 40. Of course, the Court need not consider the

constitutional implications of these claims because none of them are true. The 2015 letter clearly

stated that Plaintiff’s contract would expire on June 30, 2016, thereby providing him notice of his

pending termination absent an award of tenure. Plaintiff’s argument that the letter did not provide

him with the reason for his termination is equally specious; indeed, it expressly conditions the end

of his employment upon his failure to obtain tenure. Finally, the letter was sent over a year before

Plaintiff’s contract was set to expire. He was afforded abundant time to challenge his dismissal—

time he took advantage of by filing a complaint with the EEOC and a grievance with the

WVPEGB. In fact, grievance proceedings moved efficiently enough that his Level I hearing was

conducted before his termination. In short, Magistrate Jude Eifert did not err in concluding that

Plaintiff received notice of his termination in 2015 and his objection is accordingly denied.

32. Due Process: Lack of Pre-Termination Hearing

Plaintiff’s penultimate objection is that Magistrate Judge Eifert erred in determining that

he was afforded adequate pre-termination due process. Id. at 40. This argument is predicated on

19 He raises these arguments in light of the United States Supreme Court’s holding that a

“tenured public employee is entitled to oral or written notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity to present his side of the story.”

Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Plaintiff, obviously enough, is

not a tenured public employee.

Plaintiff’s incorrect view that he was not provided with pre-termination notice until June 29, 2016.

Id. at 41. As is discussed with respect to the prior objection, Plaintiff was provided with notice of

his pending termination on March 24, 2015. Even before that date, Plaintiff had been told

consistently that he would need to improve his performance in order to obtain tenure. After receipt

of the 2015 letter, he engaged in discussions with Drs. Beaver, Primerano, and Shapiro about when

his application would be due and what result it was likely to yield. After his application for tenure

was denied, he filed an EEOC complaint and a grievance with the WVPEGB—a grievance that

quickly yielded a Level I hearing on June 20, 2016. Plaintiff was thus afforded a significant period

of time and several different avenues to share his version of events. This certainly meets (and, in

fact, markedly exceeds) the due process threshold for pre-termination hearings, particularly given

the length and scope of his post-termination proceedings. See Gilbert v. Homar, 520 U.S. 924, 929

(1997) (concluding that a public employee is “entitled to a very limited hearing prior to his

termination, to be followed by a more comprehensive post-termination hearing”). Plaintiff’s

objection is accordingly denied.

33. Due Process Under State and Federal Constitutions

Plaintiff’s final objection is actually structured as a “reminder” to the Court that he has

raised claims under the West Virginia Constitution and the United States Constitution, and argues

that an unbiased tribunal is a key element of due process under West Virginia law. Summ. J.

Objections, at 41–42. He argues that Magistrate Judge Eifert erred in concluding that his Level I

hearing comported with state due process requirements, and points to the appointment of Stephen

Hensley—a former Marshall employee—as the Level I hearing examiner as proof. Id. As an initial

matter, Plaintiff correctly identifies the right to an unbiased tribunal as a “fundamental element of

due process” in West Virginia. State ex rel. Skinner v. Dostert, 278 S.E.2d 624, 634 (W. Va. 1981).

Yet he has presented no evidence that the Level I hearing was actually biased against him, and in

any event was later afforded the opportunity to appeal Hensley’s decision to a mediator, an ALJ

at the WVPEGB, the Circuit Court of Kanawha County, and the Supreme Court of Appeals of

West Virginia—all of which he has done. The notion that Plaintiff has been denied due process

under the West Virginia Constitution after five rounds of review is meritless, and his objection is

denied.

IV. CONCLUSION

Pursuant to the foregoing analysis, the Court DENIES both sets of Plaintiff’s objections,

ECF Nos. 418, 419, and ADOPTS AND INCORPORATES HEREIN the PF&Rs, ECF Nos.

411, 412. The Court accordingly GRANTS Defendants’ various motions for summary judgment,

ECF Nos. 337, 339, 341, 343, 345, 347, and DENIES Plaintiff’s corresponding cross-motion for

the same, ECF No. 332. The Court likewise DENIES Plaintiff’s motion for leave to file another

amended complaint, ECF No. 288, and ORDERS this civil action removed from its docket.

The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to

counsel of record and any unrepresented parties.

ENTER: March 26, 2020