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Zeng v. Marshall University

United States District Court, S.D. West Virginia, Huntington Division

April 6, 2018

WEI-PING ZENG, Plaintiff
v.
MARSHALL UNIVERSITY; DR. JEROME A. GILBERT; DR. JOSEPH SHAPIRO; DR. W. ELAINE HARDMAN; DR. DONALD A. PRIMERANO; and DR. RICHARD EGLETON, Defendants.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT UNITED STATES MAGISTRATE JUDGE.

         On May 23, 2017, Plaintiff Wei-ping Zeng (“Zeng”), proceeding pro se, filed a complaint alleging unlawful employment practices that culminated in his discharge from Marshall University's School of Medicine (“MUSOM”). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by standing order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations (“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Currently at issue are Zeng's Motion to Amend Complaint, (ECF No. 28), and his Motion to Change Venue. (ECF No. 30). The issues have been fully briefed by the parties, and oral argument would not assist in resolving the motions. For the reasons that follow, the undersigned United States Magistrate Judge respectfully RECOMMENDS that the presiding District Judge GRANT, in part, and DENY, in part, the Motion to Amend and DENY the Motion to Change Venue.

         Zeng, a naturalized United States citizen originally from China, alleges that he is a victim of employment discrimination based on his race and national origin. In his original complaint, Zeng asserted claims against Marshall University (“MU”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq.; 42 U.S.C. § 1981; and West Virginia Code §§ 6C-1-1 and 6C-2-2. He now seeks to amend his complaint to join new defendants and add allegations and causes of action. Zeng also asks the Court to transfer this civil action to the Charleston Division on the basis that Marshall University's influence and power “may affect judicial neutrality.” (ECF No. 30 at 1).

         I. Motion to Amend

         A. New Claims and Defendants

         Zeng seeks to join as defendants MUSOM, the Department of Biochemistry and Microbiology (“DBM”), and the following individuals: Dr. Jerome Gilbert, President of MU; Dr. Joseph Shapiro, Dean of MUSOM; Dr. W. Elaine Hardman, Chair of the DBM's Promotion and Tenure Committee; Dr. Donald Primerano, Interim Chair of the DBM; Dr. Richard Egleton, Member of the Personnel Advisory Committee; and Jendonnae L. Houdyschell, MU's Associate General Counsel. (ECF No. 28-1 at 2).

         In Counts 1 and 3 of the proposed amended complaint, Zeng alleges violations of Title VII and 42 U.S.C. § 1981 against Defendants MU, MUSOM, DBM, Shapiro, Gilbert, Hardman, Primerano, and Egleton for denying Zeng's application for tenure on the basis of his race and national origin. (Id. at 17-19). In Count 2, Zeng again alleges violations of Title VII and § 1981 in the tenure process on the part of Defendants MU, MUSOM, DBM, Shapiro, Hardman, Primerano, and Egleton. (Id. at 18). Count 4 of the proposed amended complaint asserts that Defendants Primerano and Shapiro interfered with Zeng's tenure application in violation of Title VII and § 1981. (Id. at 19). In Counts 5 and 6, Zeng alleges that Defendants MU, MUSOM, Gilbert, Shapiro, Primerano, and Houdyschell conspired to retaliate, and that Defendants MU, MUSOM, Primerano and Shapiro retaliated, against Zeng for complaining to the Equal Employment Opportunity Commission (“EEOC”) and the Public Employees Grievance Board about racial and national origin discrimination. (Id.). In particular, Zeng claims that the defendants threatened him with an early termination of his employment contract unless he abandoned his discrimination charges. They then carried out the threat by causing his employment to terminate prior to the contract's official expiration date.

         Count 7 of the Amended Complaint alleges violations of Title VII and § 1981 in the breaching of Zeng's employment contract by MU, MUSOM, Primerano, and Shapiro. (ECF No. 28-1 at 20). In Counts 8 and 9, Zeng asserts discrimination in the terms and conditions of his employment by Defendants MUSOM, Primerano, and Shapiro. (Id.). Specifically, Zeng claims that he was excluded from a teaching assignment, which he was entitled to receive, and was paid less than Caucasian faculty members. In Counts 10 through 16 of the Amended Complaint, Zeng asserts a variety of claims based on the defendants' alleged violations of West Virginia Code §§ 62-2-2, 61-1-1, 18B-18-2, and 18B-18-5. (Id. at 20-23).

         For relief, Zeng seeks an order awarding him: (1) tenure; (2) back pay and pay for back benefits beginning on July 1, 2016 until reinstatement of his employment; (3) compensatory damages for loss of reputation, emotional distress, mental anguish, and other injuries; (4) punitive damages; (5) equal pay and damages related to him being previously underpaid as a faculty member (6) interest, and (7) costs and attorneys' fees. (Id. at 23-24).

         B. Response in Opposition to Motion to Amend

         Defendant filed a response and objection to the Motion to Amend. (ECF No. 40). MU argues that the Motion to Amend should be denied, because the proposed amendments are futile. First, Defendant argues that MUSOM and DBM should not be joined as separate parties, as they are non-legal entities that are a part of and encompassed by MU. As MU is already a defendant in the action, Defendant argues that Zeng has sued the only entity subject to a judgment.

         Second, Defendant contends that the individual defendants are immune from suit, because they are named in their official capacities. As such, they represent the State of West Virginia, which has sovereign immunity from Zeng's complaint. Defendant recognizes the exception to sovereign immunity for Title VII claims, but adds that Title VII does not authorize a cause of action against individuals. Consequently, Zeng fails to state a valid Title VII claim against the individuals.

         With respect to the conspiracy counts, Defendant argues that all of the alleged co-conspirators were officials or agents of MU, acting within the scope of their professional relationship with that entity. Given that an entity cannot conspire with itself, Defendant asserts that Zeng cannot state a prima facie case of conspiracy. Moreover, Defendant contends that two employees or agents of the same corporation cannot form conspiracy, because the law is well settled that a conspiracy cannot exist between members of the same entity.

         Finally, Defendant posits that Zeng's state-based claims are precluded by Eleventh Amendment immunity. Defendant contends that while Zeng might be able to sue MU and the other defendants in state court, no waiver of immunity exists for claims initiated in federal court. Defendant adds that all causes of action based upon West Virginia Code § 62-2-2 must be denied, because the statute does not allow a private cause of action.

         C. Standard of Review

         Rule 15(a)(2) of the Fed.R.Civ.P. provides that the Court should “freely give leave” to file an amended complaint “when justice so requires.” See Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (“This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities.”). Generally, leave to amend should be denied “only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). An amendment is futile “if the proposed amended complaint fails to satisfy the requirements of the federal rules.” U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (quoting United States ex rel. Fowler v. Caremark RX, LLC, 496 F.3d 730, 740 (7th Cir.2007)). “In determining whether a proposed amendment is futile, a court may consider whether the proposed amendment could withstand a motion to dismiss.” Middlebrooks v. St. Coletta of Greater Wash., Inc., No. 1:10CV653, 2010 WL 3522084, at *2 (E.D. Va. Sept. 1, 2010) (citing Perkins v. United States, 55. F .3d 910, 917 (4th Cir. 1995) (affirming denial of plaintiff's motion for leave to amend her complaint as futile because “the proposed amendments could not withstand a motion to dismiss.”)).

         D. Discussion

         1. MU-Counts 1, 2, 3, 6, 7, 8, and 9

         As a preliminary matter, the undersigned notes that the presiding District Judge recently entered a Memorandum Opinion and Order finding that Zeng could pursue his claims against MU under Title VII, but not under 42 U.S.C. § 1981, because MU has sovereign immunity against the latter claims. (ECF No. 49). Accordingly, the undersigned FINDS that Zeng's Motion to Amend the complaint against MU should be GRANTED as to Counts 1, 2, 3, 6, 7, 8, and 9 to the extent they allege violations under Title VII. The Motion to Amend should be DENIED, as futile, to the extent that the above-stated counts asserts claims against MU under 42 U.S.C. § 1981.

         2. Motion to Join MUSOM and DBM as Separate Defendants

         Defendant argues that Zeng's attempt to add MUSOM and DBM as defendants should be rejected, because they are not separate legal entities capable of being sued; rather, they are encompassed within MU. The undersigned agrees. Chapter 18B of the West Virginia Code makes clear that MU includes all of its schools, disciplines, and departments under one university umbrella with a single institutional Board of Governors. The MU Board of Governors is authorized by the West Virginia legislature to “[d]etermine, control, supervise and manage the financial, business and education policies and affairs” of MU. See W.Va. Code § 18B-2A-4. The powers and duties of MU's governing board are far-reaching and include the employment of all faculty and staff at the university. Id. Accordingly, the undersigned FINDS that MU subsumes MUSOM and DBM. As they are not proper defendants in this action, the Motion to Amend to join them as parties should be DENIED as futile.

         3. Title VII Claims Against the Individual Defendants-Counts 1, ...


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