Virginia Lawyers Weekly//April 3, 2023
Virginia Lawyers Weekly//April 3, 2023//
Where a professor at Norfolk State University failed to show that he engaged in protected conduct, and failed to causally connect his alleged protected activity to the adverse employment action, his retaliation suit was dismissed.
Dr. Mamadou Konate began his employment with Norfolk State University, or NSU, as an adjunct faculty member in 2016 and later became a full-time professor. In May 2019, NSU “terminated Dr. Konate’s contract.” Plaintiff complained to the Faculty Senate that his termination failed to comply with NSU procedure and he was reinstated to his tenure-track contract in September 2019.
On Sept. 10, 2020, plaintiff contacted NSU’s Board of Visitors to make a complaint. The next day, plaintiff received a one-year terminal contract. NSU’s provost told plaintiff that he had received a one-year terminal contract because of “poor performance,” namely, absences during plaintiff’s fall 2019 separation from NSU and “other false allegations.”
In this suit, plaintiff asserts a claim for retaliation. NSU has filed a motion to dismiss.
Plaintiff timely filed suit three weeks before the deadline on May 10, 2021. The circuit court later sustained NSU’s plea in bar to the complaint, but did not dismiss the case, and allowed plaintiff the opportunity to amend.
Plaintiff then filed the amended complaint on Feb. 28, 2022. The amended complaint substitutes a claim for “Retaliation in violation of Title VII” for “Retaliation in violation of Virginia Code § 40.1-27.3” and adds certain allegations, but is otherwise nearly identical to plaintiff’s initial complaint.
NSU argues the amended complaint cannot relate back to the initial complaint because of the circuit court’s ruling on the plea in bar, which NSU avers had the effect of a dismissal without prejudice. The court disagrees.
Under Fed. R. Civ. P. 15(c), “[a]n amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” The facts set forth in the amended complaint in most respects mirror those in plaintiff’s initial complaint. The amended complaint asserts a claim “that arose out of the conduct, transaction, or occurrence” set out in the initial complaint. Thus, it relates back to the date of the initial complaint and is timely.
The amended complaint states that “[o]n 2/19/20, Plaintiff filed a complaint (Retaliation and Discrimination)” and that he “filed a Title VII complaint in NSU’s Office of Institutional Equity against Dr. Sheen for trying to dismiss him by not providing a fair and unbiased evaluation process.” While the filing of a complaint is reasonably viewed as “opposition,” it is unclear what activity or practice Dr. Konate was opposing.
The amended complaint does not provide any additional information as to the basis for plaintiff’s complaint, allege what unlawful activity he opposed or state that he was discriminated against based on his “race, color, religion, sex, or national origin.” Similarly, plaintiff’s sparse allegations do not address whether plaintiff “opposed an unlawful employment practice which he reasonably believed had occurred or was occurring.”
Even assuming protected activity and NSU’s understanding of such protected activity, NSU argues there is a lack of causation such that plaintiff cannot state a plausible clam for relief. The court agrees with NSU. Standing alone, plaintiff’s receipt of a terminal contract on Sept. 11, 2020, occurred too long — almost nine months — after his Feb. 19, 2020, complaint to suggest a causal connection.
Plaintiff is correct that “courts look to ongoing retaliatory animus or intervening antagonism during the period between the protected activity and the adverse action in order to find a causal connection where there is a lack of temporal proximity.” But the acts plaintiff asserts were “ongoing retaliation” do not live up to that label, even drawing all reasonable inferences in plaintiff’s favor.
Defendant’s motion to dismiss granted.
Konate v. Norfolk State University, Case No. 2:22-cv-125, March 17, 2023. EDVA at Norfolk (Hanes). VLW 023-3-142. 14 pp.