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Banned
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Quote:
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Originally Posted by stevo
Why doesn't the media pick up on this stuff? With everything that went on with that professor from colorado why is there no mention of this tenured professor in the mainstream television media?
http://www.issues-views.com/index.ph...5/article/1082
Its because the elite media picks and chooses their stories and when one goes against their views they don't cover it. But once the story breaks there are still going to be people defending the university president's actions and rationalizing what happened because in their minds it is Dr. Cobbs views that are really whats wrong. |
Some other reasons for "non=coverage" to consider:
At the bottom of the link to the "story", is displayed "copyright 2001"; author
Stronach's narrative is four years old.
An opinion of the 4th district US Apellate Court, concerning litigation referred to in the "story", reveals (highlighted in bold letters), that the author of the
"story", Stronach, was an active, and presumably strongly biased participant in the much wider conflict between certain VSU faculty and the administration, amd testified in the court case against the administration, as did Dr. Cobbs.
The copyright date of the article coincides with the
Appellate Court decision, also in 2001. There is no mention of political affiliation or of "conservatism" as grounds for discrimination against faculty in
the findings of fact.
Since the Apellate Court opinion details findings of fact in the case that tend to expose the contrived descriptions in Stronach's "story" of persecution of faculty that is predicated on their republican political affiliations and their conservatism, and the obvious bias of Stronach, I question the relevance of
an extremely factually flawed, aged, and slanted piece being used as a thread starter on this forum.
Quote:
<a href="http://pacer.ca4.uscourts.gov/opinion.pdf/992137.U.pdf">http://pacer.ca4.uscourts.gov/opinion.pdf/992137.U.pdf</a>
or <a href="http://64.233.167.104/search?q=cache:Mixkk3Od5soJ acer.ca4.uscourts.gov/opinion.pdf/992137.U.pdf+forum+Dr.+Jean+R.+Cobbs+Eddie+N.+Moore&hl=en">html page link</a>
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ü FATHY M.A. SALEH; GODWIN O.
MBAGWU,
Plaintiffs-Appellees,
v.
JANESHWAR UPADHYAY,
Plaintiff,
v.
EDDIE MOORE, JR., in his individual
capacity and in his official capacity
as President of Virginia State
University; MARTHA DAWSON, in her
individual capacity and in her
official capacity as Provost of
Virginia State University; LORENZA
W. LYONS, in his individual capacity No. 99-2137 ý and in his official capacity as Dean
of the School of Agriculture,
Science and Technology of Virginia
State University; FLORENCE S.
FARLEY, in her individual capacity
and in her official capacity as
Professor of Virginia State
University; THOMAS H. EPPS, in his
individual capacity and in his
official capacity as Chairperson of
the Department of Chemistry,
Director of the MBRS Program and
Associate Professor at Virginia
State University,
Defendants-Appellants,
and þ
ü VIRGINIA STATE UNIVERSITY; GERALD
Z. DEMERS, in his individual
capacity and in his official capacity
as Chair of the Department of
Engineering Technology of Virginia
State University; EDWARD J. MAZUR,
in his individual capacity and in his
official capacity as Vice President
of Administration, Business and
Finance of Virginia State
University; RICHARD BOOKER, in his
individual capacity and in his
official capacity as Director of
Extension Services of Virginia State
University; REGINA KNIGHT MASON,
in her individual capacity and in her ý
official capacity as Assistant
Professor at Virginia State
University and in her individual
capacity and her official capacity as
Interim Chairperson of the
Department of Life Sciences at
Virginia State University; WINFREY
S. CLARKE, in his individual
capacity and in his official capacity
as Associate Dean for Agriculture
and Director of Research of the
School of Agriculture, Science and
Technology of Virginia State
University,
Defendants. þ
2 SALEH v. UPADHYAY
ü FATHY M.A. SALEH,
Plaintiff-Appellant,
and
GODWIN O. MBAGWU; JANESHWAR
UPADHYAY,
Plaintiffs,
v.
EDDIE MOORE, JR., in his individual
capacity and in his official capacity
as President of Virginia State
University; MARTHA DAWSON, in her
individual capacity and in her
official capacity as Provost of
Virginia State University; LORENZA
W. LYONS, in his individual capacity No. 99-2188 ý
and in his official capacity as Dean
of the School of Agriculture,
Science and Technology of Virginia
State University; FLORENCE S.
FARLEY, in her individual capacity
and in her official capacity as
Professor of Virginia State
University;
Defendants-Appellees,
and
VIRGINIA STATE UNIVERSITY; THOMAS
H. EPPS, in his individual capacity
and in his official capacity as
Chairperson of the Department of
Chemistry, Director of the MBRS þ
3 SALEH v. UPADHYAY
ü Program and Associate Professor at
Virginia State University; GERALD
Z. DEMERS, in his individual
capacity and in his official capacity
as Chair of the Department of
Engineering Technology of Virginia
State University; EDWARD J.
MAZUR, in his individual capacity
and in his official capacity as Vice
President of Administration,
Business and Finance of Virginia
State University; RICHARD BOOKER,
in his individual capacity and in his
official capacity as Director of
Extension Services of Virginia State
University; REGINA KNIGHT MASON, ý in her individual capacity and in her
official capacity as Assistant
Professor at Virginia State
University and in her individual
capacity and her official capacity as
Interim Chairperson of the
Department of Life Sciences at
Virginia State University; WINFREY
S. CLARKE, in his individual
capacity and in his official capacity
as Associate Dean for Agriculture
and Director of Research of the
School of Agriculture, Science and
Technology of Virginia State
University,
Defendants. þ
4 SALEH v. UPADHYAY
ü FATHY M.A. SALEH; GODWIN O.
MBAGWU,
Plaintiffs-Appellees,
and
JANESHWAR UPADHYAY,
Plaintiff,
v.
EDDIE MOORE, JR., in his individual
capacity and in his official capacity
as President of Virginia State
University; MARTHA DAWSON, in her
individual capacity and in her
official capacity as Provost of
Virginia State University; LORENZA
W. LYONS, in his individual capacity No. 00-1744 ý and in his official capacity as Dean
of the School of Agriculture,
Science and Technology of Virginia
State University; FLORENCE S.
FARLEY, in her individual capacity
and in her official capacity as
Professor of Virginia State
University; THOMAS H. EPPS, in his
individual capacity and in his
official capacity as Chairperson of
the Department of Chemistry,
Director of the MBRS Program and
Associate Professor at Virginia
State University,
Defendants-Appellants,
and þ
5 SALEH v. UPADHYAY
ü VIRGINIA STATE UNIVERSITY; GERALD
Z. DEMERS, in his individual
capacity and in his official capacity
as Chair of the Department of
Engineering Technology of Virginia
State University; EDWARD J. MAZUR,
in his individual capacity and in his
official capacity as Vice President
of Administration, Business and
Finance of Virginia State
University; RICHARD BOOKER, in his
individual capacity and in his
official capacity as Director of
Extension Services of Virginia State
University; REGINA KNIGHT MASON,
in her individual capacity and in her ý
official capacity as Assistant
Professor at Virginia State
University and in her individual
capacity and her official capacity as
Interim Chairperson of the
Department of Life Sciences at
Virginia State University; WINFREY
S. CLARKE, in his individual
capacity and in his official capacity
as Associate Dean for Agriculture
and Director of Research of the
School of Agriculture, Science and
Technology of Virginia State
University,
Defendants. þ
Appeals from the United States District Court
for the Eastern District of Virginia at Richmond.
Robert E. Payne, District Judge.
(CA-97-460)
6 SALEH v. UPADHYAY
Argued: November 2, 2000
Decided: May 31, 2001
Before WIDENER and KING, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Bradley Brent Cavedo, SHUFORD, RUBIN & GIBNEY,
P.C., Richmond, Virginia, for Appellants. Samuel M. Brock, III,
MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellees.
ON BRIEF: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,
P.C., Richmond, Virginia, for Appellants. James S. Crockett, Jr.,
Richard F. Hawkins, III, MAYS & VALENTINE, L.L.P., Richmond,
Virginia; Beverly C. Powell, Mark E. Herrmann, EURE, KINCER &
BELL, P.C., Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
These appeals were consolidated for oral argument pursuant to
U.S. Ct. of App. 4th Cir. Rule 12(b). Appeals Nos. 99-2137 and 99-
2188 XAP involve the merits of the underlying employment discrimination
actions. Appeal No. 00-1744 involves the issue of attorneys’
fees. We address the appeals on the merits first, since our disposition
7 SALEH v. UPADHYAY
of the issues presented influences our determination of the appropriate
award of attorneys’ fees.
I.
Appellees Fathy M. A. Saleh (Saleh) and Godwin O. Mbagwu
(Mbagwu) (together "Appellees"), tenured professors at Virginia State
University (VSU), brought employment discrimination actions
against several VSU administrators, including the University President
and Provost, in their individual capacities. Both Saleh and
Mbagwu alleged race and national origin discrimination under 42
U.S.C. §§ 1981 and 1983, conspiracy to interfere with their civil
rights under 42 U.S.C. § 1985, and state law claims for conspiracy to
injure them in their reputation, trade, business, or profession under
Va. Code Ann. §§ 18.2-499 & 500. Saleh also alleged retaliation for
the exercise of First Amendment Rights under 42 U.S.C. § 1983, state
law claims for tortious interference with contracts allegedly inuring
to his benefit, and defamation. Appellees claimed that, because of
their race and national origin, they were given lower annual evaluations
and correspondingly lower annual raises from 1994 to 1998, and
were denied other professional opportunities incident to their employment
at VSU.1
The cases were consolidated by the district court for discovery and
trial. Appellants Eddie N. Moore, Jr. (Moore), President of VSU; Dr.
Martha Dawson (Dawson), University Provost; Lorenza W. Lyons
(Lyons), Dean of VSU’s School of Agriculture, Science and Technology;
Dr. Florence S. Farley (Farley), Professor of Psychology; and
Dr. Thomas H. Epps (Epps), Chairperson of the Chemistry Department,
each moved for summary judgment as to all of Appellees’ claims.2
1Two other VSU professors brought related claims against VSU
administrators; however, their claims are not a part of this appeal.
2Farley was named as a defendant in Saleh’s case only. Epps was
named as a defendant in Mbagwu’s case only. Both Saleh and Mbagwu
sued Moore, Dawson, and Lyons. Saleh named three other VSU administrators
as defendants: Gerald Z. Demers, Chairperson of the Department
of Engineering Technology; Edward Mazur, Vice President of Administration,
Business and Finance; and Richard Booker, Director of Extension
Services. The district court granted the summary judgment motions
of Mazur and Booker and dismissed them as defendants. Saleh’s discrimination
and retaliation claims against Demers were presented to the jury
and a verdict was returned in Demers’ favor.
8 SALEH v. UPADHYAY
The district court granted summary judgment as to Appellees’ conspiracy
claims under federal and state law, as to Saleh’s tortious interference
and defamation claims, and as to Mbagwu’s race
discrimination claims. The district court denied summary judgment as
to the national origin discrimination claims under § 1983 and as to
Saleh’s race discrimination and retaliation claims under § 1983. The
district court determined that the underlying factual allegations were
subject to Virginia’s two-year statute of limitations. However, the district
court found that evidence respecting the time-barred allegations
was relevant to prove discriminatory intent as to the claims surviving
summary judgment.
The matter was tried before a jury. The jury rejected Saleh’s
national origin and racial discrimination claims, but found that
Moore, Dawson, Lyons, and Farley had retaliated against him. The
jury awarded Saleh $97,769.00 in compensatory damages and
$19,580.00 in punitive damages. In Mbagwu’s case, the jury found
that Moore, Dawson, Lyons, and Epps had discriminated against
Mbagwu on the basis of his national origin. The jury awarded
Mbagwu $194,829.00 in compensatory damages and $35,714.00 in
punitive damages.
Appellants moved at the conclusion of trial for judgment as a matter
of law in both cases, as well as for a new trial and for a new trial
nisi remittitur in both cases. The district court denied Appellants’
post-trial motions. They now appeal the denial of their motions for
judgment as a matter of law and for a new trial. In addition, Appellants
except to the compensatory damages awarded in both cases as
excessive. Finally, Appellants argue that the district court committed
reversible error in admitting Plaintiff’s Exhibit No. 395, a chart that
summarized faculty hiring practices at VSU. On cross-appeal, Saleh
argues that the district court erred in granting summary judgment on
his claims for conspiracy to injure another in his business or profession,
and for tortious interference with his alleged contracts.
II.
In April 1993, the Auditor of Public Accounts of the Commonwealth
of Virginia reported to the VSU Board of Visitors (BOV) that
VSU’s finances were in disarray. The BOV elected Moore, then Trea-
9 SALEH v. UPADHYAY
surer of the Commonwealth of Virginia, to be President of VSU, and
assigned him the task of reforming VSU’s finances. Moore hired
Dawson as University Provost, and appointed Lyons as Dean of
VSU’s School of Agriculture, Science and Technology (AST School).
Moore, Dawson, and Lyons are African-American.
Shortly after Moore’s election as VSU President, the Virginia General
Assembly issued a "restructuring" mandate to all state-sponsored
academic institutions in the Commonwealth. The restructuring process
required state-sponsored colleges and universities to eliminate
wasteful expenditures of taxpayer money.
As part of the state mandated restructuring process, VSU implemented
a new faculty evaluation process known as "pay for performance"
to establish faculty members’ annual raises. Under the pay for
performance guidelines, VSU faculty are rated in three categories:
teaching, research, and service to VSU. Faculty are rated either "unsatisfactory,"
"satisfactory," "noteworthy," or "outstanding" in each
category. Until 1998, the department chair averaged these ratings into
an overall rating and then recommended a pay raise from an increment
range prescribed by the pay for performance guidelines. For
example, in 1995, a faculty member receiving an overall rating of
"satisfactory" could receive a raise of between one and one-half and
two percent, at the discretion of the department chair. In 1998, the
system was changed so that all persons receiving the same overall rating
received the same pay raise.
A.
Saleh was born in Egypt in 1949 and moved to the United States
in 1976. He is of North African racial and ethnic origin. Before working
at VSU, Saleh was a tenured professor and the Director of the
Center for Energy and Environmental Studies at Southern University
in Baton Rouge, Louisiana. In 1989, VSU president Dr. Wesley
McClure invited Saleh to VSU to establish a similar center there.
Saleh accepted a tenured position as an associate professor in VSU’s
Department of Agriculture; however, Saleh was not required to teach
classes, since his planned role at VSU was to establish a research
facility.
10 SALEH v. UPADHYAY
Moore reorganized and restructured VSU, among other ways, by
eliminating several centers at VSU and by requiring all faculty to
teach. In a letter dated April 6, 1994, Lyons informed Saleh:
[Y]our new contract will be a full-time teaching appointment
within the Department of Engineering Technology [in
the AST School]. There will not be any state funding available
to support the Center for Energy and Environmental
Studies, effective May 15, 1994. By a copy of this letter to
Dr. Martha Dawson . . . I am recommending that all of your
new initiatives relate to your area of expertise and be consistent
with the goals and objectives of the Department of
Engineering Technology.
In April 1994, Moore mailed Saleh a contract for the upcoming
1994-95 school year that described Saleh as "Associate, Engineering
Technology." Saleh changed the contract by typing in the words "Professor
of Environmental Engineering, Center for Energy and Environmental
Studies," and sent the contract to Lyons. By letter dated
December 9, 1994, Lyons provided Saleh with a list of courses he was
expected to teach in Spring 1995, and requested that Saleh contact
Gerald Z. Demers (Demers), the Chair of the Department of Engineering
Technology. Saleh testified that he did not receive this letter
until the middle of January 1995. In any event, Saleh did not assume
his teaching load at the start of the spring semester. Dawson wrote
Saleh in February 1995, after the spring term had started, threatening
him with termination if he failed to assume his teaching duties. Saleh
eventually agreed to teach one class for the remainder of the semester.
<b>
On July 6, 1995, Saleh and Carey Stronach (Stronach), a white
American Physics professor at VSU, presented a paper entitled "Recent
Acts of Racial Discrimination Against White and Foreign-
National Faculty and Academic Staff at Virginia State University"
("Recent Acts") at a BOV meeting attended by Moore and Dawson.
The document listed alleged acts of discrimination against white and
foreign-born VSU faculty; almost all were alleged to have been
directed by Dawson and Lyons. The document was unsigned; however,
Saleh and Stronach discussed and concurred with its allegations
at the BOV meeting.</b>
11 SALEH v. UPADHYAY
Approximately fifteen minutes after this presentation, Saleh was
instructed to report to Dawson’s office. Dawson informed Saleh that
she intended to sue him for defamation for the "lies" contained in
"Recent Acts." According to Saleh, she also told him, "you and your
friends are going to be reprimanded, you will never do research
again."
The presentation of "Recent Acts" was discussed at a July 12, 1995
meeting of the VSU Faculty Council, a body that presents the official
opinion of the faculty on policy matters. A transcript of that meeting
reveals the following discussion:
Farley: If the name is Salla [sic], I know how Salla got here.
Salla has tenure and nobody knows that the tenure ever went
to the Board of Visitors. We have yet to find it. I was
Interim Dean when he came . . . . And if I go under my bed
in some boxes, I’m going to find a copy of the A21 [personnel
action form]. That was not signed by the Vice President
of Academic Affairs, because I keep everything for this kind
of day.
See but that’s the way he came. He came with his rank and
he came with tenure. He walked in the door with tenure, and
nobody in the Ag department acted on it. And it’s my understanding
that as of Monday morning they can find no Board
minutes that said that he was given tenure by the Board of
Visitors.
Counsel [sic] member: But then he doesn’t have tenure.
Farley: As far as I’m concerned he doesn’t have tenure. As
far as I’m concerned, he doesn’t have tenure.
Moore subsequently reported to the BOV that, in his opinion, Saleh
had been hired in a manner inconsistent with VSU policy. The board
determined, however, that Saleh had tenure. Moore purportedly told
Saleh in December 1995, "you make me work hard for you, I have
to check your file. You don’t have tenure. And I went to the board
and the board wouldn’t let me take your tenure."
12 SALEH v. UPADHYAY
Saleh testified that in October 1995 he entered into a consulting
contract with Resources Group of Virginia (RGV), an agricultural
business venture, although no contract was ever produced at trial.
Raymond Golden, who formed RGV, testified that financial support
for the project was contingent on his ability to obtain technical assistance
from VSU’s Cooperative Extension Service, headed by Richard
Booker. Golden testified that Booker told him over the telephone that
the Extension Service could not work with RGV "because Dr. Saleh
and Eddie Moore had a problem," and told him in person that "Eddie
Moore didn’t like Dr. Saleh and he could not work with me." Booker
denied making these statements, however. Another witness, Bernard
Jones, testified that, in the fall of 1995, Booker "said that I was going
to find myself in trouble hanging out with Dr. Saleh." In any event,
the RGV project never materialized.
In late October 1995, Demers evaluated Saleh’s performance for
the period beginning January 1, 1995 and ending August 30, 1995.
Demers gave Saleh an overall rating of "unsatisfactory" and recommended
no raise, citing Saleh’s failure to assume his teaching responsibilities
at the beginning of the semester. Saleh objected to this
evaluation, arguing that his failure to assume his teaching responsibilities
was due to the confusion resulting from his transfer to the
Department of Engineering Technology. At Dawson’s direction,
Demers changed the rating to "satisfactory," and recommended a one
and one-half percent raise. Saleh continued to object to this evaluation,
arguing he merited an overall rating of at least "noteworthy."
Demers refused to change the rating further, and explained this
refusal by telling Saleh that he perceived an "aura" surrounding Saleh.
This "aura," Demers acknowledged at trial, stemmed from the fact
that Lyons and Dawson were unhappy with Saleh.
There was evidence that Demers felt Saleh was not at fault for failing
to assume a teaching load. In a letter to Lyons dated November
15, 1995, Demers wrote,
Dr. Saleh, according to documentation I have, was officially
assigned to this department in February 1995. All other
information to the contrary was verbal and subject to much
on-going discussion and controversy between Dr. Saleh and
the administration.
13 SALEH v. UPADHYAY
In the same letter, Demers reflected on his qualification to complete
the 1995 evaluation of Saleh. He wrote: "I was placed in a position
of rating a faculty member while probably being the least informed
person to do so. That makes me very uncomfortable!" There was evidence
that Demers felt constrained by Lyons and Dawson from giving
Saleh an overall rating higher than "satisfactory," as he wrote to Saleh
on this subject, "I’m damned if I do and I’m damned if I don’t! . . .
From where I sit, it’s a no win situation for me . . . ."
In December 1995, Saleh presented a research proposal that provided
for a program through which high school students would study
engineering at VSU during the summer. Lyons rejected this proposal
on the ground that it would compete with a similar program already
underway.
In May 1996, Saleh submitted a "Departmental Request for Personnel
Action" form, or "A21," requesting $19,750.00 in compensation
for summer employment on a grant project. Lyons determined that the
compensation requested exceeded that authorized by VSU policies,
and unilaterally reduced the compensation requested to $13,520.00
before approving the form. When he received a check for the smaller
amount, Saleh complained to Lyons, who referred the matter to
Moore. Moore instructed VSU internal auditor Jack Spooner to conduct
an investigation and prepare a report of his findings. Based on
his own review of applicable university, state, and federal policies,
Spooner concluded that Saleh had been overpaid for summer work in
the amount of $5,794.00, and that Saleh had committed a fraud by
failing to report the overpayment. Spooner also concluded that six
other faculty members had received overpayments in the 1995-96
academic year. Moore reported Saleh’s alleged fraud to state law
enforcement officials and subsequently wrote Saleh to demand repayment
of the $5,794.00 overage. No other faculty member identified
by Spooner as having received an overpayment was reported to state
police or asked by Moore to repay any money to VSU.
In September 1996, Saleh presented to Demers and Lyons a
research grant proposal relating to a Natural Resources Research
Institute (NRRI) project funded by the United States Agriculture
Department (USDA). Lyons rejected this proposal on the ground that
14 SALEH v. UPADHYAY
projects related to Agriculture could not be conducted in the Engineering
Technology Department.
In November 1996, Demers rated Saleh for the 1995-96 academic
year, awarding an overall rating of "satisfactory" and recommending
a two percent raise, which was approved by Lyons. Saleh’s was the
lowest raise in his department. When Demers was asked at trial
whether the "aura" he had referred to had disappeared when it came
time to complete the 1996 evaluations, Demers answered, "not that I
could tell."
In November 1997, Saleh was evaluated by Demers’ replacement,
Kenneth Burbank (Burbank), for the 1996-97 academic year. Burbank
gave Saleh an overall rating of "satisfactory" and recommended a
raise of three percent, which was approved by Lyons. This raise was
also the lowest in the department. On the evaluation form, Burbank
commented,
Dr. Saleh is a "square peg in a round hole." He is very talented
and has great energy. However, his expertise and
interest lie outside the goals and objectives of this Dept. His
strained personal relationships with some of the people on
campus limited his effectiveness to teach and to complete
tasks.
Saleh asserts that, when he met with Burbank to object to this evaluation
and corresponding raise, Burbank told him, "off the record . . .
you need to get a job somewhere else. It’s not worth it . . . you know
you have sued the administration . . . . They hate you. You are a thorn
in Dr. Lyon’s side."
In 1998, Saleh received an overall rating of "satisfactory" and the
fixed raise for that rating. This was also the lowest raise given in the
department.
B.
Mbagwu was born in Nigeria in 1936 and came to the United
States in 1977 to study chemistry at VSU. He is of African descent.
15 SALEH v. UPADHYAY
Epps, Chair of VSU’s Chemistry Department, hired Mbagwu as a
chemistry instructor in 1981. Epps is African-American. Mbagwu
attained tenure as a full professor at VSU in 1995. He is wellrespected
in his field for his prodigious accomplishments in the field
of cancer research.<b>
At trial, Mbagwu endeavored to convince the jury that the orders
to discriminate against white and foreign-born faculty at VSU were
part of Moore’s "vision" for VSU. Mbagwu presented evidence that
Moore and Farley harbored a discriminatory animus towards white
and foreign-born VSU faculty. Several witnesses testified that they
heard Moore and Farley make discriminatory remarks about white
and foreign born faculty. Dr. Jean Cobbs (Cobbs), a former chair of
the Sociology Department, testified that Moore told her after he was
elected VSU president that "there were too many foreigners in Life
Sciences, and he planned to do something about that." Cobbs also testified
that at a BOV meeting she overheard Farley refer to another
board member as "that white bitch." Stronach testified that he heard
Farley refer to a foreign-born VSU professor as "some of that African
trash that Benepal [another department chair] brought over here."</b>
Another witness testified that Farley referred to Saleh as "that Egyptian
that McClure brought here." Saleh and Florence Siddiqi, the wife
of Dr. Shaukat Siddiqi (Siddiqi), a Life Sciences professor and former
plaintiff in this lawsuit, both testified about a conversation between
Moore and Mary Usry (Usry), a BOV member, at a Christmas party
at Saleh’s house. Usry had written to Moore requesting information
related to various administrative actions during his tenure as president.
According to Saleh and Mrs. Siddiqi, Usry reported at the party
that Moore had told her he "had a problem with the number of foreign
faculty at Virginia State" because foreign faculty "could not relate
with our students."
There was also evidence that Moore desired to appease Farley, who
was a former dean, department chair, and mayor of Petersburg. Siddiqi
testified that Moore told him and his wife over dinner that he
"knows Dr. Farley, and he will do anything for her not to destroy his
presidency as she did several other[s] before him." According to Mrs.
Siddiqi, Moore stated he had heard that Dr. Farley "had been instrumental
in other presidential administrations failing and . . . [that]
[h]e’d be damned if she would do it to him or his administration."
16 SALEH v. UPADHYAY
When Moore arrived at VSU in 1993, Mbagwu was designing a
grant proposal in the field of cancer research, to be funded by the
National Institute of Health (NIH). The proposal included extra compensation
in the amount of $3,541.00, to be split between Mbagwu
and another faculty member for their work on the grant. The proposal
was due at the NIH office in Bethesda, Maryland by 5:00 p.m. on
October 1, 1993. Mbagwu delivered the proposal to the VSU Office
of Grants and Contracts around the middle of September 1993. On
Monday, September 27, the Director of that office, George Byrd, told
Mbagwu that Moore would not sign the proposal because of the extra
compensation included. Moore did not meet with Mbagwu to discuss
the proposal until noon on October 1, 1993, and this meeting lasted
almost three hours. Finally, Moore signed the grant proposal, backdating
his signature to September 29, 1993. Mbagwu drove the documents
to Bethesda, but was unable to reach the NIH office before it
closed. The proposal was not accepted.
Also in the fall of 1993, Mbagwu applied for a position advertised
by the VSU administration as "Associate Dean of Science and Technology."
A search committee interviewed applicants for the position
and selected Mbagwu and Stronach as the most qualified candidates.
After the committee informed Lyons of its recommendations, however,
he announced that there was no longer funding available for the
position. Lyons then requested permission from Dawson to appoint
Physics Professor Dr. James Davenport, who is African-American, to
the position of "Assistant to the Dean" of the AST School. Davenport
worked one semester in this capacity without compensation. However,
he received twenty-five percent release time the following
semester, and eventually received a twelve month contract at this
position.
In December 1994, Epps and Lyons nominated Mbagwu for the
"Giants in Science Award" for the 1994-95 academic year; Mbagwu
later was selected as the recipient of the award. In November 1995,
Epps, Lyons, Dawson, and President Moore nominated Mbagwu for
the Virginia Council of Higher Education’s Outstanding Faculty
Award for the 1995-96 academic year; Mbagwu was selected as the
recipient of this award as well.
17 SALEH v. UPADHYAY
The two other professors in the VSU Chemistry Department, Drs.
Beck and Foster, both were born in the United States.3 In October
1995, Epps evaluated Mbagwu for the period beginning January 1,
1995 and ending August 30, 1995. Epps gave Mbagwu a "noteworthy"
in teaching, an "outstanding" in research, and a "noteworthy" in
service, resulting in an overall rating of "noteworthy," and a recommended
raise of two and one-half percent, which was approved by
Lyons. Professor Foster also received an overall rating of "noteworthy"
and a raise of two and one-half percent. Professor Beck, however,
received an overall rating of "outstanding" and a three and eighttenths
percent raise. Epps commented on Mbagwu’s evaluation form
that Mbagwu did not receive an overall rating of "outstanding"
because he "is often away from campus [and] often attends class late."
In November 1996, Epps rated Mbagwu for the 1995-96 academic
year, awarding him a "satisfactory" in teaching, a "noteworthy" in
research, and an "outstanding" in service. Epps gave Mbagwu an
overall rating of "noteworthy" and recommended a four percent raise,
which was approved by Lyons. For the same evaluation period, Foster
received an overall rating of "noteworthy," with a five and one-half
percent raise, and Beck received an overall rating of "outstanding,"
with a six percent raise. Again, Epps complained that Mbagwu failed
to start his classes on time. When Mbagwu confronted Epps about his
evaluation and raise, however, Epps asked Mbagwu, "why should
[you] expect to receive outstanding in teaching when [you] have poor
oral communication skills . . . students and colleagues in the chemistry
department [have] difficulty understanding [your] English."
Mbagwu immediately accused Epps of discrimination and demanded
an apology. Epps responded that he was sorry if Mbagwu took
offense at his comment.
In November 1997, Epps evaluated Mbagwu for the 1996-97 academic
year. Epps gave Mbagwu a "noteworthy" in teaching, an "outstanding"
in research, and a "noteworthy" in service. Epps awarded
Mbagwu an overall rating of "noteworthy" and recommended a five
3In fact, there are three other professors in the VSU Chemistry Department,
including Epps. Mbagwu compares himself to Foster and Beck
because Epps evaluated them as well as Mbagwu. Epps, however, was
evaluated by Lyons.
18 SALEH v. UPADHYAY
percent raise, which was approved by Lyons. For the same evaluation
period, Foster received an overall rating of "noteworthy," with a four
and nine-tenths percent raise, and Beck received an overall rating of
"noteworthy," with a five and one-tenth percent raise. In 1998,
Mbagwu received an overall rating of "noteworthy" and the fixed
raise for that rating; Foster received the same rating; Beck’s 1998
evaluation is not part of the record.
III.
Appellants challenge the district court’s denial of their Rule 50(b)
motion for judgment as a matter of law and alternative motions for
a new trial as to Saleh’s retaliation claim and as to Mbagwu’s national
origin discrimination claim. We review a district court’s denial of a
Rule 50(b) motion for judgment as a matter of law de novo. Konkel
v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999). A Rule
50(b) motion should be granted if the district court determines that
there is no legally sufficient evidentiary basis for a reasonable jury to
find for the non-moving party. Id.; Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 301 (4th Cir. 1998). In making our own determination
whether there was sufficient evidence for the jury verdict, we will not
set aside the jury’s credibility determinations in favor of our own.
Cline, 144 F.3d at 301 (citing Duke v. Uniroyal, Inc., 928 F.2d 1413,
1419 (4th Cir. 1991)). We will assume that all testimony in favor of
the non-movant is credible "unless totally incredible on its face." Id.
After a full trial on the merits, our "sole focus is ‘discrimination vel
non’—that is, whether in light of the applicable standard of review the
jury’s finding of unlawful retaliation [or discrimination] is supportable."
Id. at 301 (citing Jiminez v. Mary Washington College, 57 F.3d
369, 376 (4th Cir. 1995)). "[O]ur review is circumscribed with respect
to any facts the jury found, but plenary with respect to any legal conclusions
underlying the verdict." Price v. City of Charlotte, 93 F.3d
1241, 1249 (4th Cir. 1996).
A.
Saleh alleges that Moore, Dawson, and Lyons deprived him of his
First Amendment rights by retaliating against him after he presented
"Recent Acts" at the BOV meeting on July 6, 1995. To prevail on this
19 SALEH v. UPADHYAY
claim, Saleh "must first show that the expressions which are alleged
to have provoked the retaliatory action relate to matters of public concern."
Huang v. Board of Governors, 902 F. 2d 1134, 1140 (4th Cir.
1990) (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Second,
Saleh must show that the alleged retaliatory action deprived him of
some valuable benefit. Id. (citing Perry v. Sindermann, 408 U.S. 593,
597 (1972)). That is, Saleh must show that the employment actions
directed toward him were sufficiently adverse to chill a reasonable
person’s willingness to exercise his First Amendment rights. ACLU
of Md. v. Wicomico County, 999 F.2d 780 (4th Cir. 1993) (citing
Perry, 408 U.S. at 597). Third, Saleh must demonstrate a causal connection
between the presentation of "Recent Acts" and the alleged
retaliatory acts. Huang, 902 F.2d at 1140.
In order to determine whether Saleh was speaking on a matter of
public concern when he presented "Recent Acts" to the BOV, we
inquire whether Saleh was speaking as a private citizen on a matter
of public concern, or as an employee on a matter of personal concern.
Edwards v. City of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999) (citing
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). We have
explained that the answer to this inquiry "rests on ‘whether the public
or the community is likely to be concerned with or interested in the
particular expression, or whether it is more properly viewed as a private
matter between employer and employee.’" Id. at 247. Finally,
"[w]hether an employee’s speech addresses a matter of public concern
must be determined by the content, form and context of a given statement,
as revealed by the whole record." Connick v. Myers, 461 U.S.
138, 147 (1983) (citations omitted). While it is clear that personal
interest motivated Saleh in part to present "Recent Acts," we are convinced
that a presentation to the Board of Visitors of a state university
alleging a campus-wide campaign of racial discrimination in administrative
and employment decisions qualifies as a matter of public concern.
Appellants agree with this determination for the purposes of this
appeal. They contend, however, that Saleh is unable to meet his burden
as to the remaining two elements.
With regard to the second element of the Huang test, we have held
that "a showing of adversity is essential to any retaliation claim."
ACLU of Md., 999 F.2d at 784. We have defined the requisite adversity
as "some impairment of the plaintiff’s rights," id., and have not
20 SALEH v. UPADHYAY.........
...............31 SALEH v. UPADHYAY
administration . . . had supported me up to 1993. . . . The
stress has led to sleeplessness, insomnia. In the morning I
get up, I feel exhausted and tired. I feel stressed out, but I
still got to go to school because of my students. . . . When
I get to school, I feel ostracized, a sense that I do not belong
to the environment where I have made major contributions
. . . . So I feel betrayed, and sleeplessness, insomnia, you
can’t imagine what insomnia can do to you. It s 24-hour
problem, a 24-hour problem.
As in Saleh’s case, the jury was entitled to find that Mbagwu was
subjected to emotional distress throughout a period of approximately
four years. Unlike Saleh, however, Mbagwu presented no medical
evidence to corroborate his testimony about the emotional distress he
endured. Moreover, as was true of the plaintiff in Hetzel, Mbagwu
never sought medical or psychological care for his stress and insomnia.
A plaintiff’s testimony, standing alone, can support an award of
compensatory damages for emotional distress based on a constitutional
violation. See Price v. City of Charlotte, 93 F.3d 1241, 1254
(4th Cir. 1996). However, that testimony must competently demonstrate
a "genuine injury." Id. (quoting Carey, 435 U.S. at 264). Mbagwu’s
testimony, standing alone, simply does not support an award of
$150,000.00 for emotional distress. On the evidence presented, we
find that $75,000.00 in compensatory damages is the largest award
that could be sustained. We add to this the $47,667.00 in compensatory
damages for economic injury, for a total figure of $122,667.00.
Accordingly, we reduce Mbagwu’s compensatory damages award to
$122,667.00 and grant a new trial nisi remittitur at Mbagwu’s option.
VI.
Appellants argue that the district court committed reversible error
by admitting Plaintiff’s Exhibit No. 395. That document is a chart that
was composed by Appellants and produced by them in connection
with a Rule 30(b)(6) deposition of VSU’s Director of Human
Resources. The chart lists several faculty members in VSU’s AST
School, and tells the race, birthplace, time of hiring, reason for selection,
and current position of each. Appellants objected to the chart’s
admission on the grounds that its probative value was substantially
outweighed by its potentially prejudicial effect. Fed. R. Evid. 403.
32 SALEH v. UPADHYAY
Decisions regarding the admissibility of evidence are peculiarly
within the province of the district court, and will not be reversed on
appeal absent an abuse of discretion. Martin v. Deiriggi, 985 F.2d
129, 137 (4th Cir. 1992). We agree with the district court that the
chart’s prejudicial effect did not substantially outweigh its probative
value. The chart’s probative value lay in its tendency to demonstrate
that it was easier for an African-American to find employment at the
AST School than it was for a white American or foreign-born individual.
Appellants argue the chart’s potential to confuse the jury was
"manifest" because the jury "did not know the qualifications of the
persons who applied for these positions, did not know whether any of
the applicants withdrew their names from consideration, and did not
know all the factors that went into each hiring decision." App. Br. at
48. However, Appellants were not prohibited from offering this information
into evidence in order to negate any inference of discrimination
that the chart created. We cannot say that admitting the chart
amounted to an abuse of discretion.
VII.
On cross-appeal, Saleh argues that the district court erred in granting
summary judgment as to his state law claims for conspiracy to
injure another in his business or profession, and for tortious interference
with alleged contracts. We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we
affirm on the reasoning of the district court. See Saleh v. Moore, No.
CA-97-460 (E.D. Va., Feb. 25, 1999).
VIII.
Appellants argue that the district court’s award of attorneys’ fees
to Saleh and Mbagwu is excessive. We disagree. We review the
amount of an award of attorney’s fees only for an abuse of discretion.
Brodziak v. Runyon, 145 F.3d 194, 195 (4th Cir. 1998). The district
court abuses its discretion when the fee award is "clearly wrong." Id.
We have reviewed the record and the district court’s opinion, and
find no abuse of discretion. In a thorough and well-reasoned opinion,
the district court arrived at an appropriate award of attorneys’ fees.
33 SALEH v. UPADHYAY
See Saleh v. Moore, 95 F. Supp. 2d 555 (E.D. Va. 2000). The decision
of the district court is affirmed as to this issue.
AFFIRMED
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