Weijie Lu v. Univ. of Dayton

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WEIJIE LU, Plaintiff-Appellee, v. UNIVERSITY OF DAYTON, Defendant-Appellant.

No. 23-3105

United States Court of Appeals, Sixth Circuit

November 27, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

Before: SUTTON, Chief Judge; CLAY and LARSEN, Circuit Judges.

OPINION

CLAY Circuit Judge.

Plaintiff Weijie Lu appeals the district court's decision to grant in part Defendant University of Dayton's motion for summary judgment. Lu contends that he presented sufficient evidence to survive summary judgment. Specifically, Lu claims that Defendant: (1) discriminated against him on the basis of his race and/or national origin, and (2) retaliated against him for reporting alleged discrimination against a Dayton graduate student and/or filing charges with the Ohio Civil Rights Commission. For the reasons set forth below, we AFFIRM the district court's order granting in part Defendant's motion for summary judgment.

BACKGROUND

I. Factual Background

Plaintiff Weijie Lu is an experienced physics teacher of Chinese descent. From 2014 to 2020, Lu taught introductory physics classes as an adjunct professor at the University of Dayton. However, the facts underlying this case begin in 2012, prior to Lu's employment by Defendant when Lu served as a technical advisor through the Air Force Research Laboratory ("AFRL") at the Wright Patterson Air Force Base. Dayton offers graduate students the opportunity to apply for the Defense Associated Graduate Student Innovators program ("DAGSI"), which is funded through the Ohio Department of Education and the United States Air Force. A Dayton graduate student, Sorrie Ceesay, participated in this fellowship program and worked on DAGSI-funded research under Lu's mentorship. For the majority of Lu's time serving as Ceesay's advisor at the AFRL, he was not employed as an adjunct professor at Dayton. Towards the end of his mentorship of Ceesay, Lu started working as an adjunct professor at Dayton in August 2014.

The AFRL terminated Lu in 2018. After his termination, he sent an e-mail to the Dayton Equity Compliance Office, stating, "I am an adjunct faculty in physics, and I lost my job and career at the Air Force Res Lab due to government corruption and discrimination .... Would you please [] educate me on the EEO laws .... (I have an attorney)." Bakota Aff., R. 8-1, Page ID #44. Amy Zavadil, the then-current Title IX Coordinator in the Equity Compliance Office at Dayton, replied and directed Lu to the local EEOC office. Nonetheless, Lu continued to reply, "seeking advice on [his] case with Air Force Res Lab." Id. Kimberly Bakota, a civil rights investigator at Dayton, subsequently replied in September 2018, also advising Lu to contact the local field office and explaining that Dayton could not assist with a claim against the AFRL, as the two entities operated as separate institutions.

Then, during his time as an adjunct professor in 2019, Lu learned that his former mentee Ceesay was terminated from his research position with the AFRL because he was allegedly not a United States citizen when, in fact, Ceesay was a United States citizen. Believing such treatment was due to Ceesay's African-American race, Lu e-mailed Dayton on January 28, 2020, and expressed his concern regarding the AFRL's allegedly discriminatory acts. In relevant part, Lu claimed that "[t]he termination of Mr. Sorrie[] Ceesay was a typical Jim Crow civil rights violation and a constitutional violation, and it was at U.S. Air Force in 2014." Id. at Page ID #47. Bakota once again replied that Dayton could not advise Lu or Ceesay on issues pertaining to discrimination claims against AFRL and directed him to the local field office of the EEOC. In addition to Bakota's reply, Scott Segalewitz, Associate Dean for Experiential Learning and Student Success, accidentally replied all and copied Lu, stating that "Mr. Lu just called and gave me an earful.... Good Luck, Paul."^[1] Id. These e-mails from Lu to various Dayton administrators regarding the alleged discrimination towards Ceesay occurred between January 28, 2020 and February 7, 2020.

About a month later, March 2020 marked the beginning of the COVID-19 pandemic. The adjunct professors, including Lu, were notified in April that "[a]djuncts are currently under review by the Dean and the Provost" because of the uncertainty caused by the pandemic. Erdei Aff., R. 9-1, Page ID #60-61. The former chair of the Physics Department, John Erdei, e-mailed Lu about the undetermined future for adjuncts, stating: "I need you to know that the fall is now uncertain. Most certainly, if I learn anything I will certainly let you know." Id. at Page ID # 61. Erdei also followed up with Lu in June, advising him that fall adjunct contracts were still unsettled and explaining he may know more in July.

Concrete answers finally arrived in July 2020, and Lu was informed that a tenured professor would be teaching his previously assigned physics classes for the upcoming fall 2020 semester due to COVID-19 uncertainty and budgetary constraints. Dayton made the decision in summer 2020 to replace all Physics adjunct professors with tenured ones in order to minimize costs, as the tenured professors were already covered within the university's budget. Accordingly, a tenure-track professor, Ivan Sudakow, took over Lu's introductory physics class. Lu's loss of his adjunct teaching contract, while Dayton allegedly retained other similarly-situated temporary professors, forms the basis for his first adverse employment action allegation. Lu also believes that this first adverse employment action constituted retaliation for his report regarding the AFRL's discrimination towards Ceesay.

After Lu's adjunct professor contract was not renewed, Erdei encouraged him to apply for a full-time professor position. As suggested, in February 2021, Lu applied for a professor position in Dayton's Electro-Optics and Photonics department. After reviewing about 40 applications, Lu's application was rejected in the initial screening phase along with 29 other candidates due to his "[w]eak research record." Sarangan Aff., R. 10-1, Page ID #70-71, 79. According to his application, Lu's last publication was over five years ago, and the position required "[a] very good record of refereed journal and conference publications, " among other listed "Minimum Qualifications." Id. at Page ID #71, 74.

Lu disputes that he was unqualified and further claims that the candidate ultimately selected for the professor position did not meet the qualifications. Therefore, Lu also points to the search committee's failure to hire him as a second adverse employment action, highlighting that he is Chinese, while the successful candidate, Swapnajit Chakravarty, is Indian. Lu believes this ultimate employment decision was based on either national origin discrimination or was in retaliation for his discrimination complaint regarding Ceesay.

II. Procedural History

Based on the non-renewal of Lu's adjunct professor contract in the summer of 2020 and his non-selection for the full-time professor position in February 2021, Lu filed a complaint in the U.S. District Court for the Southern District of Ohio on April 8, 2022, alleging race and national origin discrimination in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (hereinafter "Title VII"); retaliation in contravention of Title VII; and promissory estoppel claims. The complaint explains that Lu filed two charges with the Ohio Civil Rights Commission ("OCRC") and the EEOC: (1) the first charge, filed on January 5, 2021, alleged that the termination of his adjunct professor contract stemmed from discrimination on the basis of race, age, and/or retaliation regarding Lu's complaint about Ceesay; (2) the second charge, filed on March 30, 2021, alleged that Dayton's failure to hire was due to discrimination on the basis of age and/or retaliation regarding Lu's complaint about Ceesay.^[2]

Defendant moved for summary judgment on all claims the same day it answered Plaintiff's complaint. Following additional limited discovery, Lu responded in opposition to the motion. The district court granted Defendant's motion for summary judgment in part as to the Title VII claims and denied the motion as to Plaintiff's promissory estoppel claim. With the Title VII claims dismissed, no federal question remained. Therefore, the district court declined to exercise supplemental jurisdiction over the promissory estoppel claim alone and dismissed the complaint without prejudice for refiling in state court. Plaintiff thereafter filed a timely appeal in this Court.

In dismissing Plaintiff's Title VII discrimination claims the district court viewed Plaintiff's failure to establish a prima facie case of Title VII discrimination as dispositive and declined to address whether Lu exhausted his administrative remedies.^[3] For the non-renewal of his adjunct professor contract, the district court held that Lu "cannot establish that he was qualified for the position nor can he show that [Dayton] treated him differently than a similarly-situated, non-protected employee." Order, R. 28, Page ID #317-18. Because Dayton did not retain any adjunct faculty in the Physics Department and because visiting professors were not similarly situated to adjunct professors, the court dismissed Lu's Title VII claims related to his loss of his adjunct professor position. For Lu's failure to hire claim, the district court held that Lu did not establish that he was qualified for the position. Because Lu did not have a "very good record of refer[eed] journal and conference publications, " he was fairly eliminated from the applicant pool during the initial...