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Friday, March 29, 2024

Judge denies full dismissal of Marshall discrimination suit

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HUNTINGTON – A federal judge has ruled that a discrimination lawsuit against Marshall University by a former teacher will only be dismissed in part.

The lawsuit was filed by Dr. Wei-Ping Zeng in May in U.S. District Court for the Southern District of West Virginia. Two proposed findings and recommendations were filed in November and December and District Judge Robert C. Chambers filed his opinion and order on March 21.

In the November PF&R, the magistrate judge recommended that the court grant, in part, the motion to dismiss, agreeing with Marshall that it was entitled to sovereign immunity with respect to two of Zeng’s claims, according to the order.

The magistrate judge also concluded that Zeng failed to state a claim under the West Virginia Public Employees Grievance Procedure.

“In reaching these findings, she recommended that this Court dismiss Plaintiff’s § 1981 claim alleged in Count 2 of his complaint, in addition to dismissing the entirety of Counts 3 and 4,” the order states.

The magistrate judge also recommended that the court deny, in part, the defendant’s Motion to Dismiss, allowing two of the plaintiff’s claims to continue.

“Magistrate Judge Eifert found that, not only had Plaintiff exhausted his administrative remedies for the Title VII claims, but she also concluded that Defendant was not entitled to sovereign immunity for those Title VII claims,” the recommendations stated. “Magistrate Judge Eifert found that Congress had expressly abrogated Eleventh Amendment, and therefore MU’s, sovereign immunity, in passing Title VII.”

Chambers wrote that the magistrate judge also recommended denial of a motion for preliminary injunction that Zeng had filed.

“In that Motion, Plaintiff asserts that Defendant had threatened to discard or destroy his valuable biological and experimental items and samples that constitutes a large portion of Plaintiff’s academic work,” Chambers wrote. “Additionally, Plaintiff contends that MU had denied him access to one of their scientific facilities that is normally made available to outside researchers.”

Zeng requested that the court issue a preliminary injunction, preventing Marshall from discarding his materials, and preventing the university from denying him access to the lab, his materials and the noted scientific facility.

“However, Magistrate Judge Eifert determined that these contentions were insufficient” Chambers wrote. “In the December PF&R, Magistrate Judge Eifert recommended the denial of Plaintiff’s Motion for Preliminary Injunction because Plaintiff had failed to show that he was likely to suffer irreparable harm upon the denial of the injunction.”

Citing the availability of private storage facilities, the magistrate judge concluded that although the plaintiff might want to avoid the expense of taking his samples and materials elsewhere, this aversion to cost would not substantiate the strong showing necessary to justify an injunction.

Chambers granted in part and denied in part the motion to dismiss and denied the motion for preliminary injunction. He also directed Marshall to permit a reasonable amount of time, not to exceed 30 days from the date of issuance of the order, during which the plaintiff may remove his property from Marshall.

Zeng was a professor in the Department of Biochemistry and Microbiology in the university’s medical school, according to the complaint.

Zeng claims he and two other professors in the department applied for tenure over the last several years, but Zeng was denied tenure, while the other two professors were granted tenure.

In the one-year period immediately prior to the plaintiff’s tenure application, his overall medical teaching evaluation score was 4.449, which was better than his two colleagues who had been granted tenure, according to the suit.

Zeng claims he continued to deliver excellent teaching performance the semester, after he learned that he was not recommended for tenure and, for the two courses he taught, he received averages of 4.640 and 4.557, both of which were better than the department averages of 4.635 and 4.464.

The plaintiff had taught seven graduate courses, averaged at 20.83 hours per year and had mentored five graduate students and medical residents, which he believes his teaching activities were much more than or at least comparable to the other two professors’, according to the suit.

Zeng claims after complaining about the discrimination, the university retaliated against him by ending his employment early.

The plaintiff believes he was denied tenure because he had not brought in any external funding to support his work, which was not a tenure requirement, according to the suit.

On Feb. 8, 2016, the medical school dean, Dr. J. Shapiro, sent Zeng a decision letter informing him that he was not being awarded tenure. A meeting was held on Feb. 22, 2016, in which Shapiro told Zeng that if he “did not make a fuss” about the tenure decision, the dean would allow him to continue working for the school through 2017.

On March 21, 2016, the plaintiff filed a questionnaire with the EEOC regarding discrimination based on race and national origin and retaliation for opposing unlawful discrimination, according to the suit.

The defendant threatened early termination if he continued with the grievance and followed through with its threat on June 30, 2016, according to the suit.

Zeng is representing himself in the lawsuit.

U.S. District Court for the Southern District of West Virginia case number: 3:17-cv-03008

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