The opinion of the court was delivered by: Paul W. Grimm United States District Judge
This Memorandum Opinion addresses Defendant Bowie State University's Motion to Dismiss, ECF No. 7, and accompanying Memorandum, ECF No. 7-1; Plaintiff Symon Manyara's Opposition, ECF No. 8; and Defendant's Reply, ECF No. 9. I find that a hearing is unnecessary in this case. See Loc. R. 105.6. For the reasons stated herein, Defendant's Motion to Dismiss is GRANTED.
For purposes of considering Defendant's Motion, the Court accepts the well pleaded facts that Plaintiff alleged in his Complaint as true.*fn1 See Aziz v. Alcoac, 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff is a United States citizen and native of Kenya, who has been employed by Defendant since 1986. Compl. 2, ECF No. 1. When he originally was hired by Defendant in 1986, Defendant held the position of Adjunct Professor. Id. at 4. After serving as an Adjunct Professor for ten years, Plaintiff was "hired, full-time, as an Instructor in the" Department of Accounting, Finance, Economics ("AFE Department") on August 20, 1996. Plaintiff alleges that he "held the position of Instructor for more than six consecutive years," was therefore entitled to formal review for tenure pursuant to Defendant's ART policy, yet was denied tenure review "in direct contravention" of that policy. Id. Specifically, Plaintiff alleges that the ART policy "provides that an Instructor without tenure whose employment has been extended to a sixth year of continuous, full time service commencing on or after July 1, 1990 shall receive during that sixth year a formal review for tenure as an Instructor." Id. After not receiving tenure review pursuant to the ART policy, Plaintiff was demoted from Instructor to Lecturer in 2002, which is a position that Plaintiff and Defendant agree is a "position that is not intended to be considered for professional appointment." Id.; see Def.'s Mot. 1 (stating that Plaintiff was "demoted in 2002 to a yearly contractual position which according to University policy did not involve a tenure or permanent status commitment"). Plaintiff asserts that Defendant never provided any explanation for his demotion, and instead "instructed him to sign one-year Letters of Appointment with the Lecturer designation if he wanted to remain employed." Compl. 5.
Plaintiff next alleges that in 2004, he "applied for an appointment as a tenure-track Assistant Professor," was interviewed and recommended as the leading candidate for the position by the AFE Department's faculty search committee, yet again was denied the promotion and the opportunity to participate in the tenure review process. Id. at 6. Plaintiff also alleges that his salary is "significantly less than the compensation paid to similarly-situated, American-born professors, many of whom lack [Plaintiff's] experience, seniority, and classroom abilities." Id.
In 2009, upon a recommendation from Anthony Nelson, Dean of the College of Business at Bowie State University, Plaintiff elected to apply for permanent status, a "classification that permits an employee's services to be terminated" only for cause. Id. However, Plaintiff alleges that after beginning the application process for permanent status, Defendant informed Plaintiff that "permanent status is granted only to employees designated as librarians." Id. at 7. Plaintiff disputed this contention by "provid[ing] to Dean Nelson the names and departments of four professors who worked for the University on a permanent status basis as Assistant Professors." Id. Plaintiff claims that Defendant's response to this information was "simply [to] refuse to respond to [Plaintiff] or consider him for promotion, while at the same time granting tenure, permanent status, and promotion to similarly situated American-born faculty." Id. at 8. Plaintiff alleges that he appealed Defendant's denials of tenure and promotion and on March 30, 2010, met with Provost Karen Johnson Shaheed to discuss his current employment status. Id.
After Plaintiff's meeting with Provost Shaheed, he began preparing another application for both tenure and promotion, called a dossier. Id. at 9. On August 6, 2010, Defendant, through counsel, notified Plaintiff "that he was not eligible for its tenure review process." Id. Plaintiff then alleges that in response to his repeated questions concerning Defendant's denial of his application for tenure and promotion, the AFE Department's search committee requested additional information regarding Plaintiff's application for tenure. Id. Shortly thereafter, Defendant again denied Plaintiff's application for tenure and promotion, stating that he was not eligible for either. Id. Defendant and its various employees reiterated this position on January 5, 2011; January 19, 2011; January 21, 2011; February 2, 2011; and February 16, 2011, in response to Plaintiff's repeated correspondence "pointing out the factual errors in [Defendant's] position." Id. at 10. On March 2, 2011, Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") and the Maryland Commission on Civil Rights ("MCCR"). Def.'s Mem. 4.
On June 21, 2012, Plaintiff filed the present action against Defendant, alleging employment discrimination in violation of Title VII, retaliation in violation of Title VII, employment discrimination in violation of 42 U.S.C. § 1981, and retaliation in violation of 42 U.S.C. § 1981. Id. at 12--16. Plaintiff concludes that Defendant "has consistently created an environment of social and professional exclusion for [Plaintiff] and other foreign-born professors based on their national origin." Id. at 11. Additionally, Plaintiff alleges that Defendant "has taken affirmative steps to make" Plaintiff's "teaching experience . . . difficult, unfair, and uncomfortable" on the basis of his national origin. Indeed, Plaintiff alleges that Defendant's assertion that he is ineligible for tenure and promotion is "mere pretext for discrimination" because Defendant "has consistently promoted American-born faculty in the AFE Department with far less time of service and experience than [Plaintiff]." Id. Plaintiff also alleges that as a result of filing charges with the EEOC, Defendant engaged in "retaliatory conduct." Compl. 11-- 12. Specifically, Plaintiff asserts that a University professor "expressed disappointment" that Plaintiff filed charges with the EEOC and threatened Plaintiff by telling him that he is a Lecturer and therefore, the Dean can let him go at any time. Id. at 12.
On September 23, 2012, Defendant filed a Motion to Dismiss Plaintiff's Complaint, arguing first that Plaintiff's suit is time-barred because he failed to file a charge of discrimination with the EEOC within 300 days of his 2002 demotion to Lecturer and second, that Defendant maintains its sovereign immunity from Plaintiff's 42 U.S.C. § 1981 claims "because those claims are viable only against private actors and the State's immunity has neither been abrogated, nor waived with respect to those claims." Def.'s Mot. 1--2.*fn2 Plaintiff counters that his Complaint is not time-barred because it "properly alleges a series of discriminatory acts that form the basis of a continuing violation" of Plaintiff's "right to employment free of discrimination." Pl.'s Opp'n 2--3. Plaintiff also argues, in the alternative, that even if the Court does not find that Defendant's failure to promote Plaintiff is a continuing violation of his rights, Plaintiff's claim is not time-barred because he filed a timely charge of discrimination with the EEOC and MCCR after Defendant failed to promote him in 2010. Pl.'s Opp'n 3. With regard to Count II, Plaintiff argues that his claim of retaliation is proper because arises out of the Charge filed with the EEOC. Id.
Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, Civil No.: RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "'is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 556 U.S. at 678--79; see Velencia,2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.
Preliminarily, Defendant argues that Plaintiff fails to present an actionable claim pursuant to 42 U.S.C. § 1981, as Defendant, Bowie State University, is "an arm of the State of Maryland" and therefore, immune from 42 U.S.C. § 1981 claims. Def.'s Mem. 9--10. Not surprisingly, Plaintiff does not object to Defendant's Motion on this ground. See Pl.'s Opp'n 2, n.1. Count III and Count IV of Plaintiff's Complaint are claims for employment discrimination and retaliation pursuant to 42 U.S.C. § 1981. However, these claims against Defendant, a state actor, are clearly barred by the Eleventh Amendment and are hereby dismissed. See Middlebrooks v. Univ. of Md. at ...