A court has granted the University of Richmond’s motion to dismiss former associate dean Della Dumbaugh’s Title VII gender discrimination and hostile work environment lawsuit but has given Dumbaugh the chance to amend her complaint.
In the opinion filed Sept. 11, District Judge John A. Gibney Jr. wrote that Dumbaugh’s allegations demonstrated that Patrice Rankine, dean of the School of Arts and Sciences, had treated men and women differently and had subjected women to frequent, public criticism.
“Rankine's unequal treatment also caused other women to resign," Gibney wrote in the opinion, which was filed in the Richmond Division of the United States District Court for the Eastern District of Virginia.
Dumbaugh, a tenured mathematics professor and former associate dean of the School of Arts and Sciences, filed a federal complaint against UR in January, claiming that she was discriminated against and in a hostile work environment based on her female sex, which led to her being constructively discharged – forced to quit due to unbearable working conditions created by the employer – from her position in the dean’s office by Rankine during fall 2017. UR filed a motion to dismiss the complaint in February.
Gibney ordered that the court dismiss the count of gender discrimination – Count One – with prejudice, meaning that Dumbaugh cannot file a future case on the same grounds. Although Gibney also dismissed the count of a hostile work environment – Count Two – he did so without prejudice, allowing the plaintiff to amend her complaint.
“Because Dumbaugh fails to plead facts showing an adverse employment action or that Rankine's conduct qualifies as severe or pervasive, the Court will grant the motion to dismiss,” Gibney wrote. “The Court will dismiss Count One with prejudice. The Court, however, will dismiss Count Two without prejudice and will grant Dumbaugh leave to amend her complaint as to Count Two.”
Dumbaugh was initially granted 21 days to file her amended complaint regarding Count Two, but has since been given a one-week extension, moving the deadline to Oct. 8, her attorney Scott Crowley said.
Regarding the hostile work environment claim, Dumbaugh did not show that Rankine’s alleged conduct “qualified as severe or pervasive enough to meet the standard” required to withstand a motion to dismiss, Gibney wrote.
Gibney wrote that Rankine made “offensive and insulting comments” to Dumbaugh, subjected her to “unfair and public criticism” and reassigned her tasks without notifying her. But this conduct – “although rude and disrespectful” – did not involve “frequent and pervasive slurs and insults based on [her] sex, culminating in threats of violence for continuing to work [as an Associate Dean].”
As a result, Dumbaugh’s allegations were not sufficient for an “actionable hostile work environment claim,” Gibney wrote.
And yet, her response to UR’s motion to dismiss “[gave] the Court pause,” Gibney wrote. In her response, Dumbaugh presented details about Rankine’s alleged conduct that were not in her original complaint.
Whether this information will prove sufficient for Count Two has not been considered, Gibney wrote. But he granted Dumbaugh the chance to amend her complaint.
Dumbaugh’s claim of gender discrimination fell short of reaching the standard of “objective intolerability of the working conditions” required to support her allegation of being constructively discharged, which is needed to prove the occurence of an “adverse employment action,” Gibney wrote.
Had Dumbaugh pleaded her allegations in more detail, constructive discharge would still not be shown, Gibney wrote. Despite conduct such as Rankine’s unfair, public criticisms and “rude and demeaning remarks,” “dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign,” Gibney wrote.
He added that Rankine had even reappointed Dumbaugh to another term as associate dean less than a month before Dumbaugh’s resignation.
The possibility of an appeal is there, Crowley said.
“But that's down the road,” Crowley said. “You can't appeal while the case is still going on. We can't stop the litigation to go to the appeals court. We have to just live with that ruling for the time being. Now, if at the end of the case we want to appeal, we could appeal the dismissal of both counts."
There is no guarantee that the amended complaint would prove sufficient for the claim of a hostile work environment.
“They could say it's not sufficient,” Crowley said. “But if they say it's not sufficient, they're not going to give us another crack at it. It would be done.”
Stephanie P. Karn, attorney for UR, could not be reached for comment.
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