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Klug v. Marshall University Joan C. Edwards School of Medicine

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

March 27, 2019

REBECCA KLUG, Plaintiff,



         Pending before the Court are Motions to Dismiss by Farid B. Mozaffari (ECF No. 9), Marshall University Joan C. Edwards School of Medicine (ECF No. 11), and Marshall University Board of Governors. ECF No. 13. For the following reasons, the Court GRANTS, in part, and DENIES, in part, the motions of Defendants.


         In her Complaint, Plaintiff Rebecca Klug states that on July 1, 2013, she started as a resident in the general surgery residency program at the Marshall University Joan C. Edwards School of Medicine. Compl. at ¶46. During her first and second year of the residency program, Plaintiff asserts she was subjected to sexist comments. Additionally, she alleges that, during her second year, she was subjected to an abusive and hostile work environment. Id. at ¶64. Around January 2015, Plaintiff states, she lodged a verbal complaint with the Program Director and the Program Coordinator about her working conditions. Id. at ¶72. Plaintiff admits that, around this same time, she had poor “In-Service Training” test scores. Id. at ¶74. When confronted with her scores by Defendant Farid B. Mozaffari, who was the Program Director of the General Surgery Training Program, Plaintiff asserts she again complained about her working environment. Id. at ¶¶52, 75, 78-79. Although Defendant Mozaffari spoke to the other residents about their conduct, Plaintiff states the conduct continued. Id. at ¶¶80-82.

         Thereafter, at her April 2015 review, Plaintiff states that Defendant Mozaffari told her “she was ‘causing a lot of problems'” and she would not advance to her third year. Id. at ¶83. Plaintiff appealed this decision, and she received a favorable decision. Id. at ¶¶84-85. Plaintiff was given the opportunity to advance if she met several requirements by June 2015. Id. at ¶¶87-88.

         Unfortunately, on May 12, 2015, Plaintiff's husband committed suicide, and Plaintiff took off work until June 2. Id. at ¶¶90-92. After she returned to work, Plaintiff states that Defendant Mozaffari told her that, given what had happened, she would be moved to her third year. Id. at ¶103. However, the very next day, Defendant Mozaffari evaluated her and said he had received reports she was not showing up for work or was arriving late. Id. at ¶104. Although Plaintiff denied the allegations, Defendant Mozaffari told her she would have to repeat her second year. Id. at ¶¶105, 107. He also placed Plaintiff on medical leave, pending a release by a psychologist. Id. at ¶108.[1] Plaintiff returned to work approximately one month later. Id. at ¶112. She did not appeal from this denial of her promotion. Id. at ¶113.

         While repeating her second year, Plaintiff alleges that she was given less favorable treatment than the male residents, and she was subjected to increased abusive behavior from the Academic Chief Resident. Id. at ¶¶117-21.[2] In February 2016, Plaintiff claims she made a formal written complaint against him for abusive and discriminatory conduct. Id. at ¶125. On March 18, 2016, Plaintiff states that Defendant Mozaffari informed her that the Academic Chief Resident had been reprimanded and their schedules had been changed so they would not be working together. Id. at ¶128. Shortly thereafter, on March 28, 2016, Plaintiff received a letter providing that she was being discharged from the residency program because of her test scores. Id. at ¶¶129, 31. Defendant Mozaffari also told her it was thought she would not be a good surgeon. Id. at ¶130. Plaintiff alleges she believes male residents with similar test scores were not discharged from the program. Id. at ¶132.

         Plaintiff appealed the decision, but the decision was upheld at the first two appeal levels. Id. at ¶137. Plaintiff's third level of appeal was to Dean Joseph Shapiro. Id. at ¶138. Plaintiff states that Dean Shapiro verbally told her she could work in the lab for a year and then she would be reinstated into the program. Id. at ¶¶140-41. Plaintiff claims she accepted the offer and worked as a post-doctoral research scientist in the lab. Id. at ¶¶141-43, 147. A few weeks after accepting the offer, Plaintiff states she received a letter upholding the Level I and Level II decisions. Id. at ¶144.

         In July 2017, it was suggested by the vice-chairman of the Department of Surgery that Plaintiff stay in the lab for an additional year. Id. at ¶149. She agreed and believed she would return to the surgery residency program in June 2018. Id. at ¶¶149-52. However, in the Spring of 2018, Plaintiff said she was informed that she was not welcome back in the program. Id. at ¶153. As a result, Plaintiff filed this action for sexual harassment and hostile educational environment in violation of Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681 et seq. (Title IX), retaliation in violation of Title IX, breach of contract, sex discrimination under the West Virginia Human Rights Act (WVHRA), disability discrimination under the WVHRA, and aiding and abetting unlawful discriminatory practices. Defendants move to dismiss these claims.


         Under the landmark decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), courts must look for “plausibility” in the complaint. This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotation marks and citations omitted). Accepting the factual allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotation marks and citations omitted).

         In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained the requirements of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme Court reiterated that Rule 8 does not demand “detailed factual allegations[.]” 556 U.S. at 678 (internal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfully-harmed-me accusation” is insufficient. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The Supreme Court continued by explaining that, although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court's own judicial experience and common sense. Id. at 679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting, in part, Fed.R.Civ.P. 8(a)(2)). The Supreme Court further articulated that “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.


         A. Statute of Limitations

          The first argument raised by all three Defendants is that Plaintiff's claims must be dismissed because her action was filed outside the two-year statute of limitations. See W.Va. Code § 55-2-12.[3] As Plaintiff claims she received her termination letter on March 28, 2016, Defendants assert that the statute of limitations ordinarily would expire on March 28, 2018. However, as Plaintiff is suing a governmental agency, West Virginia Code § 55-17-3 requires the agency to receive thirty days' notice before a complaint can be filed.[4] To prevent plaintiffs from being penalized by the notice requirement, the statute further tolls the statute of limitations for a period of thirty days after receipt of the notice of the claim. W.Va. Code § 55-17-3(a)(2).[5]

         In this case, Plaintiff submitted her notice of claim on March 21, 2018, and it was received on March 26. Allowing for the tolling period, Defendants calculate that Plaintiff had until April 25, 2018 to file her Complaint. However, Plaintiff did not file her Complaint until April 27, 2018. Therefore, Defendants assert her claims are barred.

         On the other hand, Plaintiff insists her Complaint was timely because she appealed the March 28 decision, and she believed it would be reversed as it was the previous year. Additionally, Plaintiff understood that, if she agreed to work in the lab for a year, she would be returned to the surgery program. Thus, the March 28, 2016 letter was not a final, unequivocal decision. In fact, Plaintiff states she did not get an unequivocal decision until Spring of 2018, when she was told she would not be permitted back in the program. Taking these allegations as true, as this Court must at this point in the proceedings, the Court finds there clearly are disputed questions of fact as to when the statute of limitations began to run. Therefore, the Court DENIES Defendants' Motions to Dismiss on this ground. See Heydarian v. JPMorgan Chase Bank, N.A., No. 3:14-20013, 2015 WL 2183131, at *2 (S.D. W.Va. May 8, 2015) (denying motion to dismiss when “[r]esolution of . . . factual issues is necessary to determine whether Plaintiff filed his complaint within the applicable statute of limitations”).[6]

         B. Defendant Marshall University Joan C. Edwards School of Medicine

         Although the Court declines to dismiss this action on statute of limitations grounds, the Court finds that Defendant Marshall University Joan C. Edwards School of Medicine (“Defendant School of Medicine”), nevertheless, is entitled to dismissal on another ground. In its motion, Defendant School of Medicine also argues it must be dismissed because it is not a separate entity from Marshall University. Instead, Defendant School of Medicine asserts it is one in the same as Marshall University, and it is controlled by Marshall University's Board of Governors. Although Plaintiff opposes the motion and seeks discovery on the relationship between the two Defendants, the Court finds such discovery unnecessary.

         Through a variety of statutory enactments, the West Virginia Legislature makes it clear that Defendant School of Medicine falls under the umbrella and jurisdiction of the Marshall University Board of Governors. For instance, in establishing the powers and duties of governing boards generally, West Virginia's Legislature has vested the boards with a wide range of duties, including the responsibility to “[d]etermine, control, supervise and manage the financial, business and education policies and affairs of the state institution of higher education under its jurisdiction[.]” W.Va. Code § 18B-2A-4(a). In specifically referencing the State's medical schools, the Legislature in West Virginia Code § 18B-3-1 gives the governing boards both flexibility and autonomy, and provides it is the governing boards that are ultimately “accountable to the Legislature, the Governor and the citizens of West Virginia for meeting the established state goals, objectives and priorities set forth” in specific legislation. W.Va. Code § 18B-3-1(f). Similarly, in establishing medical malpractice insurance requirements for West Virginia's medical schools, the Legislature provided in West Virginia Code § 18B-5-10(d)(1) that the medical schools, “under the jurisdiction of the governing boards” and West Virginia State Board of Risk and Insurance Management may make certain separate agreements, and the governing boards have the authority over all medical malpractice claims. W.Va. Code § 18B-5-10(d)(1), (2), in part.[7] It is further the responsibility of the “governing boards” to submit a proposed self-insurance retention program to the state Insurance Commissioner for review[.]” Id. at § 18B-5-10(f), in part. Given the statutory framework between the Marshall University Board of Governors and the School of Medicine, the Court agrees with Defendant School of Medicine that it is not a separate entity from the University. Compare with Al-Asbahi v. W.Va. Univ. Bd. of Governors, No. 1:15CV144, 2017 WL ...

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