UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREENSBORO DIVISION
CIVIL ACTION NO. 1:17CV00165
)
MICHAEL RODRIGUEZ,
)
)
Plaintiff,
)
DEFENDANT’S
v.
)
REPLY IN SUPPORT OF
)
MOTION FOR
ELON UNIVERSITY,
)
SUMMARY JUDGMENT
)
Defendant.
)
)
)
NOW COMES Defendant Elon University (“Elon”), in response to Plaintiff’s
Opposition to Defendant’s Motion for Summary Judgment (“Opposition”), (D.E. 23, 24),
and replies as follows:
INTRODUCTION
In his Opposition, Plaintiff raises a retaliation claim which cannot be considered at
this stage because it is waived and unexhausted. In an attempt to salvage his claims of
discrimination pursuant to Title VII and 42 U.S.C. § 1981, Plaintiff is relegated to relying
on the opinions of others who were not involved in the promotion and tenure process.
These uninformed outside opinions are insufficient to avoid summary judgment, and
Defendant objects pursuant to Local Rule 7.6 to the portions of Plaintiff’s evidence that
should be stricken or disregarded as inadmissible. Because there is no evidence that
Plaintiff was denied promotion and tenure based on discriminatory animus, Defendant is
entitled to summary judgment on his claims.

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 ARGUMENT
I.

Plaintiff Cannot Raise a Retaliation Claim for the First Time in
Opposition to Defendant’s Motion for Summary Judgment.
Plaintiff contends that Elon denied his application for promotion and tenure in

retaliation for his complaints of discrimination. It is well-established that a Title VII
plaintiff must exhaust his administrative remedies by filing a charge with the Equal
Employment Opportunity Commission (“EEOC”). See Miles v. Dell, Inc., 429 F.3d 480,
491 (4th Cir. 2005) (granting summary judgment where plaintiff did not check retaliation
box or raise retaliation in narrative of EEOC charge). Further, a plaintiff cannot raise
new claims without amending his complaint after discovery has begun. See, e.g., Barclay
White Skanska, Inc. v. Batelle Mem. Institute, 262 F. App’x 556, 563 (4th Cir. 2008).
Plaintiff did not exhaust this claim by raising it before the EEOC. (See EEOC
Charge.) He neither checked the box for retaliation nor mentioned retaliation in the
narrative. (Id.) Further, Plaintiff did not allege a claim of retaliation in his Complaint.
(See D.E. 2.) Accordingly, the Court should not consider this newly asserted claim.
Moreover, even if Plaintiff’s retaliation claim were properly before the Court,
summary judgment would be appropriate because Plaintiff cannot establish a prima facie
case. “To establish a prima facie case of retaliation, a plaintiff must prove . . . (1) that she
engaged in protected activity, (2) that an adverse employment action was taken against
her, and (3) that there was a causal link between the protected activity and the adverse
employment action.” Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 258
(4th Cir. 1998).
2

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 Plaintiff has not produced any evidence that he engaged in protected activity.
Although Plaintiff makes conclusory allegations that he complained of “discrimination”
to Provost Steven House, Dean Raghu Tadepalli, Faculty Ombudsman Mat Gendle, and
then-Associate Dean Casey DiRienzo,1 he has not provided any evidence that he
complained of unfair treatment based on his race or national origin. (See D.E. 23-1 at ll.
61:10-62:1, 73:20-75:12, 78:18-79:4; see also D.E. 20-12 at ll. 13:5-14:2.)
Nor has Plaintiff established a causal link between any complaints and the denial
of promotion and tenure.

DiRienzo was not involved in the promotion and tenure

process, and there is no evidence the Promotion and Tenure Committee (the
“Committee”), which voted unequivocally not to recommend him and which vote Provost
House gave significant weight, knew he had made such complaints. See Dowe v. Total
Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“[T]he
employer’s knowledge that the plaintiff engaged in protected activity is absolutely
necessary to establish the . . . prima facie case.”)
Finally, as explained below, even if Plaintiff could establish a prima facie case of
retaliation, Elon has rebutted that presumption with a legitimate, nonretaliatory reason for
the denial, which Plaintiff cannot show is pretextual. Accordingly, Defendant is entitled
to summary judgment on Plaintiff’s procedurally barred retaliation claim.

1

Plaintiff mischaracterizes DiRienzo’s deposition testimony as “conced[ing] a culture of
harassment at LSB because she too had experienced harassment from her department chairman.”
(D.E. 24 at 6.) In fact, DiRienzo testified that she had “professional differences of opinion” with
her department chair over the journals in which she was publishing and did not consider it an
“HR violation.” (D.E. 20-12 at ll. 14:8-24.)

3

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 II.

Plaintiff Cannot Use the Opinions of Those Not Involved in the Process to
Establish his Qualifications or Pretext.
In support of his discrimination claims, Plaintiff relies on affidavits from former

Dean Mary Gowan, (D.E. 23-9), Plaintiff’s former student Carl Hairston, (D.E. 23-7),
Business School Board of Advisors member Karl Sherrill, (D.E. 23-8), and Plaintiff’s
former colleague Randy Moser, (D.E. 23-13). As explained below, because none of these
individuals was involved in the promotion and tenure process when Plaintiff’s candidacy
was considered, their opinions cannot be used to establish Plaintiff’s prima facie case or
show that Elon’s legitimate, nondiscriminatory reason for the denial was pretextual.
Recognizing that “[t]enure is one of the most difficult of all academic decisions,”
Smith v. Univ. of N.C., 632 F.2d 316, 345 (4th Cir. 1980), the Fourth Circuit has declined
to substitute its “judgment for that of the college with respect to the qualifications of
faculty members for promotion and tenure.” Jiminez v. Mary Washington Coll., 57 F.3d
369, 377 (4th Cir. 1995) (quotation marks omitted). This is exactly what Plaintiff asks
this Court to do by relying on opinions of people entirely outside of the process.
Hairston, Sherrill, and Moser base their opinions not on the portfolio Plaintiff submitted
in support of his application for promotion and tenure or the written criteria in the Faculty
Handbook, but rather on their general “experience . . . in the private sector and
academia.” (D.E. 23-8 at ¶ 17; see also D.E. 23-7 at ¶ 12; D.E. 23-13 at ¶ 15.) Gowan
stepped down as dean in 2011, over three years before Plaintiff came up for promotion
and tenure, and left Elon in 2013, over a year before Plaintiff came up for promotion and
tenure, (D.E. 23-9 at ¶ 5); Hairston graduated from Elon in 2011, over three years before
4

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 Plaintiff came up for promotion and tenure, (D.E. 23-7 at ¶ 7); and neither Sherrill nor
Moser participated in the promotion and tenure process when Plaintiff was considered.2
This is just the kind of second-guessing of Elon’s academic judgment against which the
Fourth Circuit has warned. See Jiminez, 57 F.3d at 376-77 (holding courts “‘do not sit as
super personnel council to review tenure decisions’”).
Further, these uninformed opinions cannot establish that Elon’s legitimate,
nondiscriminatory reason for the denial was pretextual. Courts do not sit “to appraise
[the decision makers’] appraisal. Rather [the Court’s] sole concern is whether the reason
for which the defendant discharged the plaintiff was discriminatory.”
PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000).

Hawkins v.

On this point, the opinions of

Plaintiff’s colleagues, who were not decision makers, and students as to the quality of his
work are “close to irrelevant.” Id.
III.

There is No Evidence that the Decision Makers Were Influenced by
Discriminatory Animus.

Plaintiff’s argument that his denial was discriminatory rests on his speculation that
Dean Tadepalli and another faculty member, Bill Burpitt, conspired to defeat his
application for promotion and tenure, infecting the entire University-wide promotion and
tenure process. First, Plaintiff has produced no evidence that Burpitt played any role in
the promotion and tenure process, and indeed, he did not. Moreover, there is no evidence
that Dean Tadepalli was motivated by discriminatory animus or, even if he was, that he
influenced recommendations of the Committee or Provost House.
2

In fact, there is no evidence that Sherrill or Moser ever participated in the promotion
and tenure process.
5

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 A. The Undisputed Evidence Shows that the Committee Never Voted to
Recommend Plaintiff for Promotion and Tenure During the Process.
The crux of Plaintiff’s argument is that Dean Tadepalli infected the process by
convincing the Committee to vote not to recommend Plaintiff. (See D.E. 24 at 9.)
Establishing this theory is the only way he can survive summary judgment. However, the
following undisputed facts regarding the consideration of Plaintiff for promotion and
tenure during the 2014-2015 academic year defeat this argument:
The 2014-2015 Faculty Handbook governed Elon’s review of Plaintiff’s
candidacy. (D.E. 20-13 at ¶ 6; Moore Supp. Aff. at ¶ 3; see also D.E. 20-9 at ¶
5.)
During the 2014-2015 academic year, “a super majority (6 of 8 members)
[was] required for a positive recommendation” from the Committee. (Ex. A to
Moore Supp. Aff. at ELON0002493; Moore Supp. Aff. at ¶ 3.)
The Committee’s deliberations and votes were entirely separate from Dean
Tadepalli’s deliberations and without any external input beyond the portfolio
submitted by Plaintiff. (D.E. 20-13 at ¶¶ 4, 20, 22.)
The Committee held a preliminary vote at its first meeting for each candidate.
(D.E. 20-13 at ¶ 8.)
The Committee’s October 6, 2014 preliminary vote of 5 yes to 3 no on
Plaintiff’s candidacy was not a supermajority and, even if it had been a final
vote, would have been insufficient to recommend him. (See Moore Supp. Aff.

6

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 at ¶ 5; Ex. A to Moore Supp. Aff. at ELON0002493; D.E. 20-13 at ¶ 9; D.E.
23-10 at 1.)
The Committee reviewed each decision at a second meeting, with special
attention to decisions to deny promotion and/or tenure. (D.E. 20-13 at ¶ 10.)
After discussing Plaintiff’s candidacy at the second meeting, on December 4,
2014, the final vote on Plaintiff’s application was two (2) “yes” and six (6)
“no.” (Moore Supp. Aff. at ¶ 7; D.E. 20-13 at ¶ 17; D.E. 20-14.)
The Committee did not learn Dean Tadepalli’s recommendation until after it
had finalized its vote not to recommend Plaintiff, when it attended a joint
meeting of the Provost, the Committee, and Dean Tadepalli on January 28,
2015. (D.E. 20-9 at ¶ 13; D.E. 20-13 at ¶ 22; Moore Supp. Aff. at ¶ 9.)
Indeed, Dean Tadepalli’s recommendation letter is dated December 29, 2014,
almost a month after the Committee reached its final decision. (D.E. 20-10.)
Plaintiff has provided no evidence to dispute these facts. While Plaintiff speculates that
Dean Tadepalli convinced the Committee to vote not to recommend Plaintiff for
promotion and tenure, (D.E. 24 at 9), this speculation lacks any basis in the undisputed
evidence.
i. Gowan’s Testimony About the 2014-2015 Process Is Not Based
on Personal Knowledge and Should be Stricken or Disregarded.
Plaintiff attempts to rely on an affidavit from Gowan, who was not involved in the
process and had not been for more than three years before Plaintiff came up for

7

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 promotion and tenure, mischaracterizing the import of the Committee’s preliminary vote.
(See D.E. 23-9 at ¶ 5.) Such testimony should be stricken or disregarded by the Court.
Even at summary judgment, Gowan can only testify based on personal knowledge.
See Fed. R. Civ. P. 56(c)(4); see also Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954,
962 (4th Cir. 1996). “When an affidavit contains both inadmissible and admissible
portions courts are free to strike only the inadmissible portions.” Hill v. Se. Freight
Lines, Inc., 877 F. Supp. 2d 375, 381 (M.D.N.C. 2012) (internal quotation marks
omitted), aff’d 523 F. App’x 213 (2013).
Gowan states in her affidavit that “[a] simple majority is sufficient to recommend
advancement to promotion and tenure by the P&T Committee. This vote by the P&T
Committee was sufficient to recommend Dr. Rodriguez for promotion and tenure.” (D.E.
23-9 at ¶ 26.) Further, she speculates:
Dean Tadepalli’s negative recommendation of Dr. Rodriguez, in contrast to
the P&T Committee’s positive recommendation, would have triggered a
meeting between the Dean, Provost and P&T Committee whereby the Dean
could convince the parties to vote against Dr. Rodriguez for promotion and
tenure or the committee could convince the dean to change his mind.
(Id. at ¶ 31.)
There is nothing in Gowan’s affidavit to establish personal knowledge of the
2014-2015 voting requirements or meetings.

Further, there is nothing in Gowan’s

affidavit to even suggest that she had personal knowledge of the 2014-2015 Handbook,
the promotion and tenure process generally, or the promotion and tenure process as
applied to Plaintiff. See Hill, 877 F. Supp. 2d at 381-83 (striking portions of affidavit of
former coworker because coworker’s employment had ended prior to subjects on which
8

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 he opined). Accordingly, the Court should strike or disregard the above testimony from
paragraphs 26 and 31 of Gowan’s affidavit.
B. There is No Evidence of Discriminatory Animus that Played a Role in
the Promotion and Tenure Process.
Plaintiff has done nothing more than speculate that his denial was discriminatory.
“When a plaintiff alleges disparate treatment, liability depends on whether the protected
trait . . . actually motivated the employer’s decision. That is, the [protected trait] must
have actually played a role in the employer’s decisionmaking process and had a
determinative influence on the outcome.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 141 (2000).
Here, the identity of the decision makers and the decision-making process are
undisputed: the Committee and Dean Tadepalli separately considered Plaintiff’s portfolio
and submitted independent recommendations to Provost House, who made the ultimate
recommendation not to promote Plaintiff or grant tenure. (See D.E. 21 at 7.) Plaintiff has
produced no evidence that the Committee members3 or Provost House harbored
discriminatory animus towards him. His only argument as to a decision maker is that
Dean Tadepalli conspired with Burpitt to defeat his application for promotion and tenure.

3

Plaintiff’s argument that the absence of a Committee member from the Business School
was a procedural violation does not establish pretext. (See D.E. 24 at 6, 15-16.) He has
not proffered any evidence that Elon required a Committee member from the Business
School other than Gowan’s affidavit about her personal experience, which is not enough
to establish a 2014-2015 procedural requirement. Even if Plaintiff had provided evidence
of a procedural violation, this alone would be insufficient to establish pretext. See, e.g.,
Ivanova-Nikolova v. E. Carolina Univ., 4:08-CV-209-BR, 2011 WL 2462468, at *
(E.D.N.C. June 17, 2011).
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 i. There is No Evidence that Dean Tadepalli’s Decision not to
Recommend Plaintiff was Motivated by Plaintiff’s Race or
National Origin.
As an initial matter, Plaintiff does not even contend that this alleged conspiracy
between Dean Tadepalli and Burpitt was motivated by discrimination; rather, he contends
that it was in retaliation for his complaints about harassment, a new claim which cannot
be considered. See discussion supra Part I.
Even assuming Plaintiff means to argue that this conspiracy was discriminatory,
he has provided no evidence of such. Plaintiff’s entire argument rests on a single email
chain, dated over a year before his consideration for promotion and tenure. In the email,
Dean Tadepalli expresses frustration over Plaintiff’s conflict with Department Chair
Coleman Rich and attempted resignation from the Director position. Burpitt speculates
that the Committee will likely vote to recommend Plaintiff for promotion and tenure even
if Dean Tadepalli does not, giving Provost House a “hard call.” (D.E. 23-6 at 294-96.)
Nowhere in this exchange is Plaintiff’s race or national origin even alluded to.
Rather, the exchange is focused on Plaintiff’s conflicts with his department chair. (See
id.) Plaintiff does not dispute that he had unresolved conflict with Rich,4 and he has not
put forth evidence that such conflict was based on his race or national origin. Dean
Tadepalli’s legitimate criticism of Plaintiff’s unwillingness to resolve this conflict with
his supervisor is not discrimination. See, e.g., Hawkins, 203 F.3d at 282 (4th Cir. 2000)

4

Indeed, much of Plaintiff’s Complaint is focused on his conflict with Rich to no avail,
since Rich recommended Plaintiff for promotion to associate professor and tenure. (D.E.
20-6 at 160-62.)
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 (“Law does not blindly ascribe to race all personal conflicts between individuals of
different races. . . . Otherwise, supervisors . . . could not evaluate employees of different
races without the prospect of a lawsuit.”).
ii. There Is No Evidence that Provost House’s Ultimate
Recommendation for Denial was Infected by Any
Discriminatory Animus.
Even if there was evidence that Dean Tadepalli’s recommendation was motivated
by discriminatory animus (which there is not), there is no evidence that Provost House’s
decision was affected by it. The undisputed evidence is that when the Committee’s
recommendation differs from the dean’s, Provost House gives credence to the
Committee’s recommendation. (D.E. 20-2 at ¶ 10.) Here, the Committee, uninfluenced
by Dean Tadepalli’s recommendation or any discriminatory motive, recommended
denial. Accordingly, Provost House would not have recommended promotion and tenure,
regardless of Dean Tadepalli’s recommendation. Plaintiff has not otherwise provided
evidence that Provost House’s decision was motivated by Plaintiff’s race or national
origin.5 Indeed, Plaintiff himself indicated that he believed the decision was based on
Plaintiff not supporting Dean Tadepalli during the dean’s search. (See D.E. 20-5 at 2.)
iii. Plaintiff’s Laundry List of Alleged Unfair Treatment Does Not
Amount of Actionable Discrimination.
Plaintiff also identifies a number of isolated incidents, unconnected to the
decision makers or the denial, which he alleges are discriminatory. (See D.E. 24 at 4-5.)
5

In fact, Provost House did not recommend five other candidates—all of whom were
outside Plaintiff’s protected class—and did recommend the other Hispanic candidate
under consideration, which further demonstrates that neither race nor national origin was
a consideration in the process. (See D.E. 21 at 20.)
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 There is no evidence that these incidents played any role in the promotion and tenure
process. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.2d 277, 291 (4th Cir.
2004), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338 (2013).
Further, Plaintiff has failed to allege that most such incidents were at all related to
his race or national origin. (See D.E. 24 at 4-5.) The only allegations that even mention
Plaintiff’s race and national origin are his unsupported testimony that he was the subject
of “occasional insensitive comments” by unnamed faculty peers, none of whom he
alleges were Committee members, and regarding the cancellation of an Hispanic
student’s research project. (D.E. 24 at 5.) Again, Plaintiff cannot rely on his own
speculation to establish that he was discriminated against, and he has provided no
evidence to support these claims. Further, there is no evidence that the cancellation of
the research project had anything to do with Plaintiff or the student’s race or national
origin.
Thus, because Plaintiff has not produced evidence that the denial of his application
for promotion and tenure was motivated by his race or national origin, his discrimination
claims fail. Defendant is entitled to summary judgment.
CONCLUSION
Defendant respectfully requests that the Court grant its Motion and dismiss all of
Plaintiff’s claims with prejudice. Defendant further requests that the Court strike or
disregard paragraphs 26 and 31 of Gowan’s affidavit pursuant to Federal Rule of Civil
Procedure 56(c)(4) and Local Rule 7.6.
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 This the 2nd day of February, 2018.
WOMBLE BOND DICKINSON (US) LLP
/s/Rebecca C. Fleishman
Beth Tyner Jones, N.C. Bar No. 15923
Rebecca C. Fleishman, N.C. Bar No. 41233
555 Fayetteville St., Suite 1100
Raleigh, NC 27601
Phone: (919) 755-2176
Fax: (919) 755-6776
E-mail: Rebecca.Fleishman@wbd-us.com
Beth.Jones@wbd-us.com
Richard L. Rainey, N.C. Bar No. 14278
Suite 3500 One Wells Fargo Center
301 S. College St.
Charlotte, NC 28202
Phone: (704) 331-4967
Fax: (704) 338-7835
E-mail: Richard.Rainey@wbd-us.com
Attorneys for Defendant Elon University

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 CERTIFICATE OF WORD COUNT
I hereby certify, in reliance upon the word count feature in Microsoft Word, that
the foregoing document contains 3112 words and complies with Local Rule 7.3(d)(1).
Respectfully submitted this the 2nd day of February, 2018.
WOMBLE BOND DICKINSON (US) LLP
/s/Rebecca C. Fleishman
Rebecca C. Fleishman, N.C. Bar No. 41233
555 Fayetteville St., Suite 1100
Raleigh, NC 27601
Phone: (919) 755-2176
Fax: (919) 755-6776
E-mail: Rebecca.Fleishman@wbd-us.com
Attorney for Defendant Elon University

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 CERTIFICATE OF SERVICE
I hereby certify that on this day, the foregoing REPLY IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT was electronically filed with the Clerk of
the Court using the CM/ECF system which will send notification of such filing to the
following:
Eugene E. Lester III
Sharpless & Stavola, P.A.
Post Office Box 22106
Greensboro, NC 27420
eel@sharpless-stavola.com
Attorney for Plaintiff
This the 2nd day of February, 2018.
WOMBLE BOND DICKINSON (US) LLP
/s/Rebecca C. Fleishman
Rebecca C. Fleishman, N.C. Bar No. 41233
555 Fayetteville St., Suite 1100
Raleigh, NC 27601
Phone: (919) 755-2176
Fax: (919) 755-6776
E-mail: Rebecca.Fleishman@wbd-us.com
Attorney for Defendant Elon University

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