United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT UNITED STATES MAGISTRATE JUDGE.
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.
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).
Motion to Amend
New Claims and Defendants
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).
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.
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).
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).
Response in Opposition to Motion to Amend
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.
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.
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
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.
Standard of Review
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.”)).
MU-Counts 1, 2, 3, 6, 7, 8, and 9
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.
Motion to Join MUSOM and DBM as Separate
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.
Title VII Claims Against the Individual Defendants-Counts 1,