Ilozor v. Hampton University , 286 F. App'x 834 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1463
BENEDICT D. ILOZOR, Ph.D.,
Plaintiff - Appellant,
v.
HAMPTON UNIVERSITY,
Defendant - Appellee
and
ERIC SHEPPARD; BRADFORD GRANT,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:06-cv-00090-JBF)
Argued: May 15, 2008 Decided: July 23, 2008
Before WILLIAMS, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Richard Franklin Hawkins, III, Richmond, Virginia, for
Appellant. David Edward Constine, III, TROUTMAN SANDERS, LLP,
Richmond, Virginia, for Appellee. ON BRIEF: Laura D. Windsor,
TROUTMAN SANDERS, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Benedict D. Ilozor appeals the district court’s grant of
summary judgment in favor of Hampton University (“Hampton”) on his
discriminatory discharge and breach of contract claims. Ilozor, a
former professor at Hampton, argues that Hampton failed to renew
his teaching contract because of his national origin, in violation
of Title VII, 42 U.S.C.A. § 2000e-2(a)(1) (West 2003), and because
of his age, in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2008).
Ilozor further contends that Hampton entered into a side-contract
with him to reimburse him for his moving expenses, and breached
that agreement by failing to pay. For the following reasons, we
affirm.1
I.
Because this is an appeal from the district court’s grant of
summary judgment to Hampton, we review the facts in the light most
favorable to Ilozor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (noting that all evidence must be construed in the
light most favorable to the party opposing summary judgment).
1
Ilozor also contests the district court’s denial of his
Motion to Strike addenda to Hampton’s reply memorandum in support
of its summary judgment motion. Because the challenged addenda are
not essential for Hampton to prevail, we need not resolve this
issue. Accordingly, for purposes of this appeal, we will ignore
the contested addenda and consider only the earlier-provided
evidence.
3
Ilozor is a native of Nigeria and a citizen of both Nigeria
and Australia. He received bachelor’s and master’s degrees in the
field of architecture from Nigerian institutions and a Ph.D. in
architecture from an Australian university. Until the summer of
2003, Ilozor was a tenured faculty member at the School of
Architecture and Building at Deakin University in Sydney,
Australia. At that time, Hampton, a private, Historically Black
College and University located in Hampton, Virginia, selected
Ilozor from a pool of twenty applicants for a non-tenure track
position in its Department of Architecture.
Specifically, the position for which Ilozor had applied was a
temporary annual (“TA”) post. Hampton has three different types of
faculty--TA, probationary tenure track (“PTT”), and tenured.
Unlike tenured professors, faculty with PTT or TA positions have
nine-month (academic year) contracts with no guarantee of
reappointment. PTT and TA positions differ in that TA positions
are non-tenure track, while PTT professors must apply for and be
granted tenure within six years, or else leave Hampton.
The Department of Architecture Chair, Bradford Grant, made the
decision to hire Ilozor for the TA position. Through Ilozor’s
application materials, Grant knew of Ilozor’s age (then thirty-
eight) and national origin. He offered Ilozor the job via e-mail
on July 26, 2003. Because Ilozor had raised the issue of his
4
relocation expenses in earlier discussions,2 Grant explained in the
July 26 e-mail, “I am not sure how much we can financially support
your move to Virginia and I think that it would not be more than a
flight to Virginia.” (J.A. at 337-38.) The e-mail further stated
that a contract would be ready for Ilozor to review in two or three
weeks. On September 8, 2003, Ilozor signed a faculty contract for
the 2003-2004 academic year that contained no provision for the
payment of moving expenses.
Classes at Hampton’s architecture school are often co-
taught by a team of two professors, and Ilozor was assigned to
co-teach a beginning architectural design studio with another
faculty member, Professor Shannon Chance, during his first
semester. 3 During that semester, Chance repeatedly complained
to Grant that Ilozor did not respect her, undermined her, and
gave conflicting directions in class. Ultimately, she told
Grant that she would never teach with Ilozor again. According
to Grant, students also complained that Ilozor “gave confusing
directions in class.” (J.A. at 225.)
Nevertheless, Grant gave Ilozor a favorable performance
evaluation following the completion of the 2003 Fall semester.
2
According to Ilozor, Grant told him that he would “bring
[Ilozor] over” from Australia and that Hampton “look[s] after their
people,” (J.A. at 352, 727), during these earlier discussions.
3
Design studios are courses in which architecture students
receive a “hands on” opportunity to implement the principles that
they have learned.
5
Specifically, Grant awarded Ilozor with a total numerical
rating of 410, which fell into the category of “meets full
standards.” 4 In addition, Ilozor received higher student
evaluations than Chance on the class they co-taught together.
For the 2004 Spring semester, Grant assigned Ilozor to
co-teach an intermediate design studio with another professor,
David Peronnet, with whom Ilozor had developed a good
relationship. Shortly thereafter, Peronnet, too, began
complaining to Grant about Ilozor. Peronnet told Grant he
could not teach with Ilozor and would never do so again.
Students also complained to Grant that Ilozor was assigning
too much material and failed to elaborate beyond the text in
class. The students further complained that they were
receiving conflicting directions from the two co-teachers,
which confused them.
Still, Grant recommended that Hampton retain Ilozor, and
in keeping with that recommendation, Hampton renewed Ilozor’s
contract for the 2004-2005 academic year.
To Ilozor’s chagrin, however, Grant did not offer him a
tenure-track position. Instead, when a PTT position became
available, Grant recommended that Chance fill it, and, in May
2004, Chance, who had been a TA faculty member, signed a PTT
4
The evaluation had five categories: exceeds full standards,
meets full standards, meets average standards, less than average
standards, and less than minimum standards.
6
contract for the 2004-2005 academic year. Internal memoranda
and e-mails confirm that Grant had sought to place Chance on
the tenure-track before Ilozor came to Hampton. He first made
this recommendation in a December 2002 memo, stating that
Chance was “clearly one of the most effective new teachers in
[the] Department” and praising, among other attributes, her
“keen interest in the African built environment.” (J.A. at
589.) Chance had not, however, completed a necessary three-
year review at that time.
Ilozor was upset and believed he, not Chance, should have
received the PTT contract. According to Ilozor, he confronted
Grant about this on or about August 30, 2004; Grant responded
by giving the following rationale for his decision: “[Chance]
is a good American lady, she is younger than you are, she is
free with no distraction from kids, and has a great potential
to grow.” (J.A. at 777.) 5
Also in late August/early September, Grant made two
remarks offensive to Ilozor. First, Grant told Ilozor that
the design of Martin Luther King’s Ebenezer Baptist Church
“has been criticized and not accepted for imposing Africa on
America, which is not desired. No American pretends to be an
African. I have no connection with Africa. Any link that
5
Grant denies making this remark, but, given the procedural
posture of this case, we accept Ilozor’s version of events as true.
7
exists has been cut indefinitely.” (J.A. at 461.) Then, when
Ilozor approached Grant about research related to African
architectural taxonomy, Grant said, “That’s African
architectural culture,” and “I am not an African. Go to an
African.” (J.A. at 462.) When Ilozor responded that he
thought Grant was African-American given his complexion, Grant
replied that his father was Native American. 6
On August 10, 2004, Grant met with Ilozor and informed
him that the upcoming year would be a critical one for his
future at Hampton. Given the problems occurring during the
courses Ilozor had co-taught the preceding year, Grant
assigned Ilozor to teach a class by himself. The course was
an advanced design studio in which students were to design a
church. After Ilozor selected a large church as the subject
of the course, Grant e-mailed him, telling him that “the scope
and scale of the proposed new church may be too large” and
recommending that Ilozor “try and scale back some parts of the
project to better frame the setting for a comprehensive
project.” (J.A. at 599.) Ilozor responded that he did not
consider the scale he had selected too large for a
comprehensive design project. He then proceeded with his
original syllabus.
6
Again, Grant denies making these statements, but again, we
accept Ilozor’s testimony as accurate.
8
Ultimately, Grant considered Ilozor’s class a failure.
He claimed that students (and other faculty) complained to him
that the project was too large. Also, students complained
that Ilozor was inflexible, stifled creativity, and did not
spend enough time critiquing their work. Moreover, Grant
believed certain students did very poorly and should not pass
the course; he told Ilozor of this belief, but Ilozor passed
everyone anyway.
In addition, members of the Department’s secretarial
staff complained about Ilozor ordering them to do things in an
inappropriate manner; faculty, too, complained that he had a
condescending attitude.
On December 10, Grant informed Hampton’s Provost, Dr.
Haysbert, via e-mail that he was seriously considering not
renewing Ilozor’s contract and was consulting with Dr.
Sheppard, the Dean of Hampton’s School of Engineering &
Technology, which includes the architecture department,
before finalizing and formalizing the decision. Haysbert
replied, advising that Grant submit Ilozor’s name “in a memo
with a brief rationale” and to inform Ilozor in a face-to-face
meeting; she indicated that Grant did not need to give Ilozor
a reason for not renewing his contract and advised that he not
try to do so. (J.A. at 908.)
9
Accordingly, on January 4, 2005, Grant prepared a memo
recommending non-renewal of Ilozor’s contract. The memo
stated that Ilozor’s teaching method and general outlook did
not fit well with the department, that Ilozor had not met the
expectations Grant had for him given his credentials, and that
Ilozor did not take suggestions well. The memo referenced
Ilozor’s credentials as “foreign based” and also indicated
that, “[c]oming from Nigeria via Australia and arriving in the
U.S. for the first time, Dr. Ilozor has had a very difficult
time, understanding and contributing to our mission and
direction.” (J.A. at 46.) The memo concluded that Ilozor
might to do well at another institution, but was not working
out at Hampton, which “needed a full time senior faculty with
different abilities and sensibilities than Dr. Ilozor offers
at this time.” (J.A. at 47.)
On the same day, Grant completed an evaluation for Ilozor
for the Fall semester. He gave Ilozor a 350.5 numerical
rating, the lowest score in the department but squarely within
the “meets average standards” category. Grant attached to the
evaluation supplemental comments, many of which involved the
complaints and problems discussed in Grant’s memorandum.
Sheppard concurred in Grant’s recommendation, and, on
January 7, 2005, Grant informed Ilozor his contract would not
be renewed for the following year. According to Ilozor, Grant
10
told him that Ilozor had a communication problem and did not
belong at Hampton and that Grant had “changed the direction of
the department to which you may not fit,” but that Ilozor
would be a good fit for a research university. (J.A. at 456).
Thereafter, Hampton considered two candidates for
Ilozor’s position, Donald Armstrong, a then-53-year-old
professor at Tuskegee University, and Daisy-O’lice Williams,
who was twenty-four years old at the time and had just
completed graduate school. Hampton selected Williams to
replace Ilozor after Armstrong withdrew his name from
consideration and Hampton’s Assistant Provost for Academic
Affairs deemed Williams an acceptable candidate in a
memorandum noting that Williams had a “newly minted Master’s
degree” and would “be able to bring a fresh perspective to the
department.” (J.A. at 958.) The Assistant Provost did order
that Williams be assigned a faculty mentor if hired, as she
was “relatively young in her academic professional
development.”(J.A. at 58.)
Thereafter, Ilozor filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”). The
EEOC issued him a right-to-sue letter, and Ilozor brought this
action in the United States District Court for the Eastern
District of Virginia on July 26, 2006. His amended complaint,
filed on August 4, 2006, asserted eight claims against
11
Hampton, Grant, and Sheppard. Ultimately, however, Ilozor
decided to pursue only his Title VII national-origin
discrimination claim, his ADEA claim, and his breach-of-
contract claim against Hampton. Accordingly, the parties
filed a joint order of dismissal as to the other five claims,
and the district court agreed to dismiss Counts II, IV, V, VI,
and VII of Ilozor’s complaint. The district court granted
summary judgment in favor of Hampton on the remaining claims.
Ilozor timely appealed, and we have jurisdiction pursuant
to 28 U.S.C.A. § 1291 (West 2006).
II.
We review de novo the district court’s grant of summary
judgment to Hampton, applying the same standards that the
district court was required to apply. See Laber v. Harvey,
438 F.3d 404, 415 (4th Cir. 2006) (en banc). “Summary
judgment is appropriate ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(c) (West 1992)). As noted above, we
construe the evidence in the light most favorable to Ilozor,
the non-moving party, and draw all reasonable inferences in
his favor. Id.12
A.
Ilozor argues that Hampton violated both Title VII and
the ADEA in declining to renew his teaching contract. Title
VII makes it illegal to “discharge any individual . . .
because of [his] . . . national origin,” 42 U.S.C. § 2000e-
2(a)(1), while the ADEA prohibits an employer from
“discharg[ing] any individual . . . because of such
individual’s age.” 29 U.S.C.A. § 623(a)(1). Although the
protections of these statutes are available to aggrieved
professors, “we review professorial employment decisions with
great trepidation,” remaining “cognizant of the fact that
professorial appointments necessarily involve subjective and
scholarly judgments, with which we have been reluctant to
interfere.” Jiminez v. Mary Washington College, 57 F.3d 369,
376 (4th Cir. 1995) (internal quotation marks omitted).
A plaintiff can establish a Title VII or ADEA claim
through two alternative methods of proof: (1) a “pretext”
framework that employs the burden-shifting analysis
articulated by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), or (2) the “mixed-motive”
framework established by the Supreme Court in Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989). 7 Regardless of which method
7
We have not yet decided whether an ADEA plaintiff who lacks
direct evidence of discrimination may proceed under the mixed
(continued...)
13
the plaintiff employs, “the ultimate question in every
employment discrimination case involving a claim of disparate
treatment is whether the plaintiff was the victim of
intentional discrimination.” Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 286 (4th Cir. 2004) (en
banc) (internal quotation marks omitted). “To demonstrate
such an intent to discriminate, . . . an individual . . . must
produce sufficient evidence upon which one could find that the
protected trait actually motivated the employer’s decision.”
Id. (internal quotation marks and alteration omitted). Thus,
to prevail on his Title VII claim and/or ADEA claim, Ilozor
must show that his contract was not renewed “because of a
discriminatory reason.” Jiminez, 57 F.3d at 377 (internal
quotation marks omitted).
Ilozor argues that a reasonable jury could find that the
non-renewal of his contract resulted from discrimination based
on his Nigerian origin and/or his age because: (1) the
7
(...continued)
motive approach. See, e.g., Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)
(reserving question). Two Circuits have split on the question.
Compare Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.
2004) (holding that ADEA plaintiff may present direct or
circumstantial evidence of discrimination to warrant mixed-motive
analysis) with Monaco v. American General Assurance Co., 359 F.3d
296, 300 (3d Cir. 2004) (stating that ADEA plaintiff must present
direct evidence of discrimination to warrant mixed-motive
analysis). We need not resolve this issue today, as Ilozor could
not benefit from a mixed-motive analysis in any event.
14
references to his background in Grant’s January 4, 2005 memo
constitute direct evidence of discrimination; and (2) Grant’s
comments in late August 2004 demonstrate a disdain for Africa
and a preference for Americans. Ilozor thus contends that he
has marshaled evidence sufficient to show (1) that Hampton’s
proffered reason for discharging him was a pretext for
intentional discrimination, entitling him to prevail under the
McDonnell Douglas framework, and (2) that his national origin
was a motivating factor in the non-renewal decision, meaning
he could also prevail under a mixed-motive framework.
The district court rejected both arguments. Having
thoroughly reviewed the district court’s opinion and the
parties’ briefs and submissions on appeal, and having heard
oral argument in this case, we conclude that the district
court did not err in granting summary judgment in favor of
Hampton on Ilozor’s employment discrimination claims, as
Ilozor cannot benefit from either method of proof available
to Title VII and ADEA plaintiffs.
In particular, we note that, as the district court
explained, read in context, the January 4, 2004 memorandum’s
references to Ilozor’s “[c]oming from Nigeria via Australia and
arriving in the U.S. for the first time,” (J.A. at 46), and to his
credentials as “foreign-based,” (J.A. at 46), do not render the
memo a revelation of animosity toward or stereotyping of persons
15
with Ilozor’s background. The memo simply relates the problems
with Ilozor’s teaching and suggests that his unfamiliarity with
American institutions such as Hampton might provide some
explanation for his struggles. Similarly, Ilozor has not provided
a basis to support his speculation that Grant’s statements that
students complained that Ilozor “gave confusing directions in
class,” (J.A. at 225), and that although Ilozor might do well at a
research university, he had a communication problem and did not
belong at Hampton, represent veiled references to Ilozor’s foreign
accent. He likewise has not indicated how Grant’s comments that he
did not personally consider himself an African and and that he
believed no American should pretend to be African demonstrate a
discriminatory animus towards people born in Africa.
Additionally, we, like the district court, note that the same
person that hired Ilozor and decided to renew his contract for a
second year (Grant) made the decision not to renew the contract for
a third year. Compare Proud v. Stone, 945 F.2d 796, 797, 798 (4th
Cir. 1991) (reasoning that “[f]rom the standpoint of the putative
discriminator, it hardly makes sense to hire workers from a group
one dislikes (thereby incurring the psychological costs of
associating with them), only to fire them once they are on the job”
and concluding that “[w]hen the hirer and firer are the same
individual, there is a powerful inference relating to the ‘ultimate
16
question’ that discrimination did not motivate the employer”
(internal quotation marks omitted)).
We also emphasize that Ilozor does not dispute that both
professors who co-taught a course with him complained to Grant that
they could not work with Ilozor and would not do so again; that in
response, Grant assigned him to teach a course by himself; and that
Grant ultimately considered that course a failure, in large part
due to Ilozor’s refusal to follow Grant’s suggestions. Even
viewing the evidence--in particular, Grant’s remark that Chance
received a PTT position because she was a “good American lady,”
(J.A. at 415), who was younger than Ilozor--in the light most
favorable to Ilozor, a reasonable jury simply could not conclude
that Hampton’s decision not to renew Ilozor’s contract was based on
his national origin and/or age, rather than the problems with his
performance and his difficulty working in Hampton’s collaborative
environment. See EEOC v. Clay Printing Co., 955 F.2d 936, 943 (4th
Cir. 1992) (“The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient [for the
plaintiff to prevail]; there must be evidence upon which the jury
could reasonably find for the plaintiff.” (internal quotation marks
omitted)).
B.
Ilozor also brought a breach of contract claim, which the
parties agree is governed by Virginia law, against Hampton. He
17
argues that Hampton, through Grant, promised to reimburse Ilozor
for the expenses he incurred in moving to Virginia, but failed to
honor that agreement. We agree with the district court that Grant,
by indicating that Hampton took care of its employees and stating
in the July 26, 2003 e-mail, “I am not sure how much we can
financially support your move to Virginia and I think that it would
not be more than a flight to Virginia,” (J.A. at 337-38), plainly
did not create an enforceable contract for the payment of all costs
associated with moving Ilozor and his family from Australia to
Virginia. We therefore affirm summary judgment on this claim for
the reasons stated by the district court. See generally Ilozor v.
Hampton University, 4:06cv90 (E.D. Va. 2007).
III.
For the foregoing reasons, the judgment of the district court
is . . .
AFFIRMED.
18