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Wang v. Florida Atlantic University Board of Trustees

United States District Court, S.D. Florida

March 27, 2017

CHUNXUE WANG, Plaintiff,


          KENNETH A. MARRA United States District Judge

         THIS CAUSE is before the Court on Defendants' Motion to Dismiss Counts I, II, V, and VI of the Amended Complaint and for Dismissal of Defendant John W. Kelly as a party to the action. [Dkt. 19.] The Court has carefully considered the motion, response and reply, and it otherwise fully advised in the premises. For the reasons explained below, the Court grants Defendants' Motion to Dismiss. The Court further provides Plaintiff with an opportunity to amend his Amended Complaint as to Count V.

         In the Amended Complaint, Plaintiff Chunxue Wang ("Plaintiff or "Wang, " who also goes by the name "Victor C.X. Wang" [Dkt. 17, 5]) sues Florida Atlantic University ("FAU"), a state university, and four of its senior officials for claims related to his alleged unlawful compensation, suspension, and ultimate discharge from employment at FAU. The four officials that Wang names in his Amended Complaint are: (1) John W. Kelly, Ph.D., in his official capacity as President of FAU; (2) Valerie J. Bristor, Ph.D., Dean of FAU's College of Education; (3) Robert Shockley, Ph.D., Chair of FAU's Department of Educational Leadership and Research Methodology ("ELRM"); and (4) Michele W. Hawkins, Ph.D., who was an Associate Provost at the time of Plaintiff s discharge but is now FAU's Vice Provost. [Dkt. 17, 13-16; 21, 47; see Dkt. 19 n. 2 (updating Hawkins's position for the Court).]

         As relevant to the Defendants' Motion to Dismiss, Wang seeks relief against FAU pursuant to the Florida Civil Rights Act ("FCRA") (Counts I and II), and relief against Defendants FAU, Bristor, Shockley, and Hawkins pursuant to 42 U.S.C. § 1983 (Counts V and VI). FAU has not sought to dismiss Wang's claims against FAU pursuant to Title VII of the Civil Rights Act of 1964 (Counts III and IV).

         I. Background

         As recounted in the Amended Complaint, Wang is a Chinese citizen and permanent resident of the United States. [Dkt. 17, ¶ 19.] He joined the faculty of FAU in 2011 as a tenured Professor in FAU's College of Education, and was terminated on or about May 24, 2016. [Id., ¶¶ 20-21, 47.]

         Beginning in August 2014, FAU began to receive anonymous emails which contained discriminatory statements regarding the age and sexual orientation of certain FAU faculty members and complaints regarding salary inequity between senior and newly hired faculty members.[1] [Id., ¶ 25; Dkt. 19-2 at 00003-00004.] The author of these anonymous emails consistently referred to him/herself as "Mr. Joe" or "B Russel, " [Dkt. 19-2 at 00004], and Wang's Amended Complaint alleges that these emails originated from a computer located in Indonesia. [Dkt. 17, ¶25.]

         On April 2, 2015, FAU's Office of Equity, Inclusion, and Compliance ("EIC") commenced an investigation into these emails. EIC did so on the basis of faculty members' complaints that the emails were "deliberately malicious, anonymous and attempted to smear many faculty member's personal and professional reputations by describing a litany of unsubstantiated and untrue accusations about the ELRM (Department of Educational Leadership and Research Methodology)." [Dkt. 19-2 at 00005.] FAU's investigation involved interviews with approximately 23 individuals and culminated in a published, written investigative report. [Id. at 00004.] The investigative report details that, "[d]uring the course of the investigation, " the "EIC met with a number of faculty members who believed Dr. Victor Wang is involved in the anonymous emails." [Id. at 00005.] The report notes that the faculty members connected Dr. Wang with the emails because of "reference[s] [to] a number of issues raised by Dr. Wang in personal communication which were also mentioned in the anonymous emails." [Id.] For example, the investigative report notes that "[o]n more than one occasion, Dr. Wang called members of the ELRM at home or on their cellphones to complain about his salary ... In his verbal communications, Dr. Wang cited the fact that a number of faculty members were paid more than him but produced less scholarly work." [Id.] Similarly, one of the "priority issues" raised in the anonymous emails was "pay equity allegations of lower salaries for newly hired the report explains that "Administrators who were interviewed also stated the language used in the anonymous email was very similar to language used by Dr. Wang. Specifically, Dr. Wang routinely used phrases referring to the power of particular leadership and praising them for making changes." [Id. at 00005.]

         Based on the EIC's review of both interview testimony and documentation-including "personal and work related emails, and other documents submitted to EIC" regarding Wang-the report concluded that a preponderance of the evidence supports the conclusion that "it is more likely than not Dr. Wang was the author or at least involved in the anonymous emails sent to various members of the University community that contained discriminatory remarks." [Id. at 00007.] One example of this cited in the investigative report is that, "[i]n an email to the Dean of the [College of Education], Dr. Wang references two faculty members voting against him for tenure. In the email, Dr. Wang refers to them as 'extremely senior' faculty members referring to Bogotch and Pisapia." [Id. at 00006.] "In one of the anonymous emails, " likewise, "the sender refers to the ages of both faculty members mentioned in the email to the Dean, stating they should retire." [Id.] As another example correlating the anonymous emails to Dr. Wang, the report states:

In a personal email sent to another faculty member on April, 6, 2015, Dr. Wang stated "most students enjoy working with regular faculty. I had a horrible time, working with those gays and lesbians in CA. I don't mind working with them, but don't like them introducing their partners to colleagues and students . . . And their sex life is so filthy." In the anonymous emails, the sender states that "in Florida you cannot allow people with any particular sexual orientation to be "role models" to educate and train the next generation of workforce in higher education or related fields. You already have one and you don't need more from the same place. It's called Iowa. This new faculty already has expressed his disdain at the ranking and status of FAU as a research university at several faculty meetings. Why hire people of this kind?" (April 6, 2015).

[Id.] Considering the evidence presented by the investigation, the report concludes that "Dr. Wang and the sender (1) used similar language, (2) repeatedly made reference to salary inequities in the ELRM, (3) both cited the same erroneous salary figures in the emails and the EIC complaint, (4) both cited the same erroneous ages in emails and the EIC complaint, (5) both cited issues with the ages of various faculty members in the ELRM, and (6) both referenced having issues with working with individuals of particular sexual orientations." [Id.] "Further, " the report adds, the "EIC received information from an individual who stated the same thing occurred at another University when Dr. Wang was a member of the faculty." [Id.] A copy of the investigative report was sent to the Dean of the College of Education and the Vice Provost for follow-up, [id.], and Wang contested the finding of the report by letter on July 28, 2015 [Dkt. 19-3]. On August 28, 2015, FAU sent Wang a notice of proposed disciplinary action, referencing Wang's "written response to the EIC report, " but noting that in his response he "admitt[ed] to sending the email and making the discriminatory statements" based on sexual orientation. [Dkt. 19-4.] FAU therefore provided notice to Wang that it was suspending him for five days without pay and required him to attend an Anti-Discrimination/Anti-Harassment workshop. [Id.] Wang's Amended Complaint asserts that he "did not have anything to do with the emails, " and that "FAU's conclusion that Wang sent the emails or knew who sent the emails was discriminatory." [Dkt. 17, ¶¶ 27, 30.] "FAU concluded that since Wang was Asian, and 'Joe' is from an Asian country, " Wang alleges, "then it was either Wang who sent the emails or someone that he knows from Indonesia." [Id., ¶ 28.] He adds that "FAU reached this conclusion because other professors at FAU opined that the dialect used by Wang and the dialect used in the anonymous emails is similar, essentially that Asians sound similar." [Id., ¶ 29.]

         Wang also asserts that he "learned that he was being paid considerably less than all of the other non-Chinese tenured professors, " noting that he sent a letter on March 12, 2015, "complaining about his pay disparity" and alleging that "Wang earned approximately nineteen thousand dollars, ($19, 000.00), less than the next lowest paid tenured Professor." [Id. ¶¶ 37-38, 40.] The March 12, 2015 letter includes a statement noting that Wang "fail[s] to see why Dr. Laanan, a newly hired Asian faculty, came in at $35, 307 above [his] current salary." [Dkt. 19-1 at 00029.]

         Based on Wang's "objection to the false accusations regarding the anonymous emails, and the complaint about the pay disparity, " the Amended Complaint alleges that "Wang was subjected to relentless acts of retaliation by FAU." [Dkt. 17, ¶ 41.] These retaliatory acts, as alleged in the Amended Complaint, included a "recent evaluation for Wang as a 'C, '" a "proposed disciplinary action of a 5 day suspension without pay, " and the requirement that he "attend workshops"[1] and "apologize to professors for sending emails that he did not send." [Id., ¶¶ 42-44.] Wang alleges that these "new acts of bigotry and discrimination further harmed Wang." [Id.¶45.]

         Wang received a letter from FAU on May 24, 2016, terminating his employment at FAU. [Dkt. 19-9.] On ...

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