Condon v. Associated Universities, Inc., 3:24-cv-00063

Plaintiff Dr. James J. Condon, a retired astronomer, was formerly employed by Associated Universities, Inc. (AUI) at the National Radio Astronomy Observatory (NRAO), holding tenured status until his 2021 retirement.
Upon retirement, Condon was granted "Astronomer Emeritus" status, which conferred access to facilities and research resources but no salary or service obligations.
In September 2022, Condon circulated an email criticizing NRAO's diversity, equity, and inclusion (DEI) policies, claiming they were discriminatory.
Following this, Condon’s emeritus status was revoked by the AUI Board of Trustees, without explanation.
Condon alleged retaliation and brought suit for violation of Title VII (Count I) and the Virginia Fraud and Abuse Whistleblower Protection Act (VFAWPA) (Count II); AUI moved for judgment on the pleadings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Condon was an "employee" under Title VII at time of alleged retaliation	Condon claims emeritus benefits and some required obligations could constitute an employment relationship	Condon provided no services or compensation to AUI post-retirement; no control existed	Condon did not sufficiently allege an employment relationship; Count I dismissed with leave to amend
Whether benefits received by Condon amount to “significant remuneration”	Access to facilities, office, email, and research support could be significant remuneration	Benefits were mere “inconsequential incidents” of a gratuitous relationship, not compensation	Court declined to resolve at the pleadings stage; focused on absence of exchanged services
Applicability of VFAWPA to AUI and/or Condon	VFAWPA protects whistleblowers, including plausible claims by Condon	AUI is not a "governmental agency," and Condon was not a paid, full-time employee	VFAWPA is inapplicable; Count II dismissed
Sufficiency of pleadings supporting Title VII and VFAWPA claims	Sufficient facts alleged to proceed to discovery; question of employee status is factual	No material dispute: lack of "employee" status defeats statutory coverage as a matter of law	Court dismisses but grants leave to amend only as to Title VII (Count I)

Haavistola v. Community Fire Co., 6 F.3d 211 (4th Cir. 1993) (sets out two-part test to determine Title VII 'employee' status: compensation for service and control factors)
Lemon v. Myers Bigel, P.A., 985 F.3d 392 (4th Cir. 2021) (protections under Title VII limited to employees; definition of employee is circular and based on case law)
Bender v. Suburban Hosp., Inc., 159 F.3d 186 (4th Cir. 1998) (principal inquiry for employment status is employer’s right to control the manner of performance)
Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404 (4th Cir. 2015) (no single factor is dispositive in the 'hybrid' employment test; control is key)