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Du v. The University of Houston At Victoria

United States District Court, S.D. Texas, Houston Division

April 5, 2018

JIANJUN Du, Plaintiff,
The University of Houston at Victoria, et al., Defendants. Year Du's Composite Evaluation Score Du's Merit Increase (%)



         This case is before the court on Defendants' third motion to dismiss (Dkt. 27) and motion for summary judgment (Dkt. 32).[1] The district court has referred this matter to this magistrate judge for report and recommendation (Dkt. 26). The court recommends that Defendants' motion for summary judgment be granted.

         I. Background

         Plaintiff, Dr. Jianjun Du (Du) is an associate professor at the University of Houston at Victoria in the School of Business Administration. He was hired in 2001. Du filed a charge of discrimination with the EEOC on November 5, 2012. Du received a Right to Sue Notice from the EEOC, and filed this action in October 2016. The only claims remaining in this case are Plaintiffs Title VII discrimination and retaliation claims.[2] Defendants move to dismiss both claims, or alternatively for summary judgment.

         II. Motion to Dismiss

         A. Legal Standards for dismissal under Rule 12(b)(1) and 12(b)(6)

         Rule 12(b)(1).

         A defendant may challenge a court's jurisdiction over a claim through a motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion under 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove a plausible set of facts that establish subject-matter jurisdiction. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). "[U]nder Rule 12(b)(1), the court may find a plausible set of facts supporting subject matter jurisdiction by considering any of the following: 'the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'" Id.

         Rule 12(b)(6).

         In reviewing a pleading under Rule 12(b)(6), the court "accepts 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017) (citing Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004)). However, only facts are entitled to an assumption of truth; legal conclusions unsupported by factual allegations do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).

         B. Exhaustion of remedies

         Although Defendants filed their motion under Rule 12(b)(1), they recognize exhaustion is not a matter of jurisdiction: "While the procedural exhaustion requirements are not jurisdictional in nature, a claimant must exhaust administrative remedies before filing a Title VII suit in federal court. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982)." Dkt. 27 at 8. The Fifth Circuit has characterized the exhaustion requirement as a "precondition to filing suit, " as opposed to a jurisdictional prerequisite. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970) ("the filing of a charge of discrimination is a condition precedent to the bringing of a civil action under Title VII"); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) ("Although filing an EEOC charge is not a jurisdictional prerequisite, it is a precondition to filing suit in district court."). Because Defendants' motion to dismiss does not implicate the court's jurisdiction, the court will consider the motion under Rule 12(b)(6).[3]

         In his original complaint in this case, Du alleges that he began experiencing discrimination based on his national origin when Dr. Farhang Niroomand became dean of the SBA in 2009. Specifically, he alleges: he was denied funds for a conference in 2013; professors from America and Middle Eastern countries were promoted to full professor over him; he and faculty from other East Asian countries had points deducted from their annual evaluations; he did not receive as many pay raises as non-Asians due to low annual evaluations; and since complaining about discrimination, his treatment by Niroomand has been even worse, especially in regard to evaluations. Dkt. 1 at ¶¶ 16-20, 22-23.

         Du's 2012 charge of discrimination asserts the follows particulars:[4]

I. On or around November 23, 2011, my Dean and Associate Dean began subjecting me to harassment, intimidation, a hostile work environment, and different terms and conditions of employment. Respondent is a university. I work as Associate Professor.
II. As Senator of the Faculty Senate, I expressed my opinion regarding a proposed statement regarding the School of Business Administration culture by e-mailing Jeffrey Blodgett, Associate Dean. Shortly afterwards, I was shocked when Farhand Niroomand, Dean, embarrassed and intimidated me in front of the other 3 faculty senators. He told me that he would terminate me over an unrelated issue during our conversation about the proposed statement. He did not intimidate the other 3 senators, Ronald Salazar, Joseph Ben-Ur, and Uche Nwabueze, all non-Chinese. They were allowed to express their opinions freely whereas I was intimidated. In March 2012, the deans deducted points from my evaluation, which had never happened to me before in my employment. When I told Blodgett that I would file a grievance, he intimidated me by telling me that he would ruin my career based on a paper. Blodgett also intimidated me by falsely accusing me of unethical behavior. I believe that Niroomand and Blodgett treat senior Chinese members more harshly, and retaliate against them for issues that would not be a problem for other faculty members. They also put in younger faculty members on the appointed faculty committees. The deans send out e-mails to their trusted faculty members to direct votes for their favorite nominees and against the ones they dislike, which in violation of university policy. This lack of transparency is an abuse of power and consistently discriminates against senior Chinese faculty members.
III. I believe that I have been discriminated against because of my national origin, Chinese, and retaliated against, in violation of Title VII of the Civil Rights Act of 194, as amended. I also believe that I have been discriminated against because of my age, and retaliated against, in violation of the Age Discrimination in Employment Act of 1967, as amended. I further believe that Chinese faculty members over age 50, as a class, have been discriminated against because of their national origin and age, in violation of the above statutes.

Dkt. 1-1 at 2.

         This court's review is limited to those claims that "could reasonably be expected to grow out of the initial charges of discrimination." Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006). While Du's EEOC charge does not use the precise words "failure to promote" or "failure to give pay increases, " he does reference low evaluations and "different terms and conditions of employment" in general. In order to further the purpose of Title VII, the scope of the EEOC charge should be liberally construed. Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983) (a Title VII cause of action may be based upon "any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.").

         The court concludes that the language of the charge is broad enough to encompass Du's claims in the original complaint that Defendants' failure to promote him or give him pay increases is due to national origin discrimination.[5] As to retaliation, Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981), holds that exhaustion is not required for claims of retaliation that naturally arise after the filing of an EEOC charge.[6] For these reasons, the court recommends the Defendants' motion to dismiss Du's claims for lack of exhaustion be denied.

         C. Failure to plead an adverse employment action

         Defendants also moved to dismiss for failure to state a claim, arguing that Du's pleading does not identify any promotion for which he applied, and his other allegations do not set forth any matters that constitute adverse employment actions. A claim for Title VII discrimination must include an allegation that the plaintiff was subject to an adverse employment action, which includes only "ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." McCoy v. City of Shreveport, 492 F.3d. 551, 559 (5th Cir. 2007) (citing Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). The definition of an adverse employment action is broader in the retaliation context, and includes an action that "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. (citing Burlington N. & Santa Fe Ry, 548 U.S. 53, 68 (2006)).

         The court construes Du's complaint to assert a claim for discrimination based on the adverse employment actions of Defendants' failure to promote him and failure to give him pay increases, and for retaliation based on these actions, as well as on Niroomand's treatment of him. See Dkt. 1 at ¶¶ 17-23. While the complaint is not long on factual allegations, the court concludes that it is sufficient to state a claim for relief that is "plausible on its face." Iqbal, 556 U.S. at 678. The court recommends that Defendants' motion to dismiss Du's claims for failure to state a claim be denied.

         III. Motion for Summary Judgment

         A. Rule 56 standard of review

         Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel,274 F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact is "genuine" if the evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom,247 F.3d 218, 223 (5th Cir. 2001). "An issue is material if its resolution could ...

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