KE v. DREXEL UNIVERSITY et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 3/14/13. 3/15/13 ENTERED AND COPIES E-MAILED.(mbh, ) (Main Document 68 replaced on 3/15/2013) (mbh, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DREXEL UNIVERSITY, et al.,
March 14, 2013
Plaintiff Lei Ke (“Plaintiff” or “Ke”), proceeding pro se, filed this lawsuit against Drexel
University (“Drexel”) and the individual defendants1 (collectively “Individual Defendants”)
seeking reinstatement as a medical student at Drexel University College of Medicine (“DCM”).
Individual Defendants include the President of Drexel University and doctors at DCM who hold
different positions at the medical school. Ke claims that he was discriminated against based on
his race and national origin and that discrimination led to his dismissal from DCM.
On June 12, 2012, Defendants filed a Motion to Partially Dismiss Plaintiff’s Second
Amended Complaint. (Doc. No. 31.) They seek a dismissal of the following counts: Count VI,
which charges a violation of the Family Educational Rights and Privacy Act (20 U.S.C.
§ 1232g); Count VII, which charges a violation of the Pennsylvania Fair Educational
Opportunity Act (24 Pa. Cons. Stat. § 5004(a)); and Count IX, which charges intentional
The Individual Defendants are: John Fry (“Fry”), President of Drexel; Richard Homan
(“Homan”), Dean of DCM; Dr. Samuel Parrish (“Parrish”), Dean of Student Affairs at DCM; Dr.
Amy Fuchs (“Fuchs”), Associate Dean of Student Affairs at DCM; Dr. Jennifer Hamilton
(“Hamilton”), Director of Family Medicine Clerkship at DCM; Dr. Anthony Sahar (“Sahar”), a
third-party contractor affiliated with Monmouth Medical Center, where DCM had placed Ke for
his Family Medicine rotation. (Doc. No. 29 at 2-3.)
infliction of emotional distress. In addition, the President of Drexel University, John Fry, is
named as a Defendant in four counts of the Second Amended Complaint (Counts I, II, VI, VII,
and IX). (Doc. No. 29.) Defendant Fry has moved to be dismissed from this case. He contends
that the evidence is insufficient to establish his involvement in any violation. Plaintiff filed a
Memorandum in Opposition to the Motion to Dismiss (Doc. No. 33). Plaintiff concedes,
however, that Count VI should be dismissed. The Motion to Dismiss is now ripe for disposition
and will be granted as to Counts VI, VII, and IX. In addition, Defendant Fry will be dismissed
as a Defendant in this case.2
The following facts are set forth in the Second Amended Complaint and are being viewed
in the light most favorable to Plaintiff.3 The facts he alleges are quite extensive, and therefore
the Court will review them at length.4
In the fall of 2008, Ke started medical school at DCM. Sometime after his second year it
seems that he was dismissed from the school and then readmitted on a conditional status to
Plaintiff has filed a Motion for a Preliminary Injunction. On September 24, 2012, the Court
held a hearing on the Motion for a Preliminary Injunction and, during the hearing, also heard
argument from the parties on the Motion to Dismiss.
However diligent Plaintiff Ke was in his studies and however sincere he is in his attempt to
become a doctor is within the decision-making authority of the officials at DCM. It is not this
Court’s prerogative to judge his qualifications to become a doctor, but only to ensure that his
legal rights are not being violated. “Courts are particularly ill-equipped to evaluate academic
performance” and should avoid “any such judicial intrusion into academic decisionmaking.” Bd.
of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 (1978).
Simultaneous with the issuance of this Opinion, the Court is issuing an Opinion on Plaintiff’s
Second Motion for a Preliminary Injunction (Doc. No. 34) and denying the Motion. Because the
standard for evaluating the merits of a motion to dismiss are different from the standard for
evaluating whether a preliminary injunction should be issued, the factual statements in the
Court’s Opinions differ slightly, although they essentially cover the same subject matter.
retake his second year. (Doc. No. 29-4 at 45.) When Ke was readmitted to DCM in July of
2009, one of the conditions stipulated to by Dean Homan was the following:
The receipt of any grade lower than Satisfactory during your clinical training will
be considered as grounds for dismissal from the College of Medicine.
(Doc. No. 29-4 at 45.)
Apparently, Plaintiff successfully completed his second year. The problems that led to
the filing of this lawsuit by Ke occurred during his third year.
As part of Ke’s third year in medical school, he was required to complete a Family
Medicine rotation. A medical school rotation is an internship in which the student “obtains
hands-on experience in a hospital environment while self-studying for an NBME (National
Board of Medical Examiners) exam5 that covers the content of the internship.” (Doc. No. 29 at
n.1.) From September 28, 2010, to November 3, 2010, Ke attempted to fulfill his required
Family Medicine rotation (also known as a “clerkship”) at AM Sahar, a private family medical
practice owned by Defendant Dr. Anthony Sahar. (Id. ¶¶ 13, 14.) AM Sahar was affiliated with
Monmouth Medical Center and also served as a learning center for DCM students. (Id. ¶ 14,
n.3.) In his office, Sahar posted a notice explaining his hospital affiliation and teaching position.
(Id. at n.3.)
When Ke and Dr. Sahar first met, Sahar asked where Ke came from. (Doc. No. 29 ¶ 15.)
Plaintiff responded that he was from Canada. (Id.) Sahar “said that [response] was not good
enough because [Plaintiff] was not a white Canadian and kept asking exactly where [Plaintiff]
came from.” (Id.) Plaintiff explained that he was born in China and immigrated to Canada as a
child. (Id.) According to Ke, after he explained where he was born, Sahar “started to talk to Lei
The NBME exam is also known as a “shelf exam.” This exam tests a student’s knowledge of
the area of medicine studied during the rotation.
[Ke] with an arrogant, condescending demeanor. . . .” (Id.) A week later, Sahar left for a four
week trip to Portugal. (Id. ¶ 16.) From October 6, 2010, to October 28, 2010, during Plaintiff’s
rotation, Sahar was not in the office. (Id. ¶ 16, 17.) During this interim period, Dr. John Dalton,
another AM Sahar employee, supervised Plaintiff and his classmate, Jacqueline Calvo. (Id. at
On October 25, 2010, at the end of the fifth week of the rotation, Dr. Dalton wrote Ke’s
“mid-block evaluation.” (Doc. No. 29-4 at 2-3.) In relevant part, Dalton evaluated Ke as a four
out of five points on “Medical Knowledge,” four out of five points on “Interpersonal/
Communication Skills,” and five out of five points on “Professionalism.” (Id.) Plaintiff claims
that he got along well with the AM Sahar staff and treated patients with courtesy and
professionalism. (Doc. No. 29 ¶¶ 34, 35.)
On November 2, 2010, Plaintiff again worked with Dr. Sahar. (Id. ¶¶ 20, 21.) Typically,
Plaintiff would see a patient first without the doctor. (Id. ¶ 20.) During one of these sessions, a
patient complained to Plaintiff about the frequency and expense of injections he was receiving.
(Id. ¶ 19.) Ke asked if the patient understood how the medications worked. (Id.) When the
patient responded that he did not, Ke volunteered to ask Sahar this question when Sahar came
into the room. (Id.) Ke formulated the question as “he had been taught at the orientation, which
was not just to ask the question but to include a pertinent fact to demonstrate knowledge in the
area[.]” (Id.) He asked: “‘I remember that [the medication] increases GnRH and enhances
testosterone secretion. Why would a prostate cancer survivor need it? Shouldn’t he be on
something that suppresses testosterone?’” (Id.) Sahar loudly responded: “‘What? You asked
me this question!’” (Id. ¶ 21) (emphasis original). After administering the patient’s shot, Sahar
“stormed out.” (Id.)
Plaintiff realized that he had offended Sahar by asking the question in the presence of the
patient, but he believed his question was consistent with the Drexel University Code of Conduct,
which covers how to ask a professor a question. (Id. ¶ 22, n.2.) In the presence of the next
patient, Sahar asked Ke what test would be used to test for renal insufficiency. (Id. ¶ 23.) Still
“traumatized” and “panicky” from the prior encounter, Plaintiff responded incorrectly. (Id.)
Later that day, Plaintiff approached Sahar and apologized for unintentionally offending
him and incorrectly answering his question. (Id. ¶ 24.) Sahar responded, “‘Okay, okay okay. I
give you the benefit of the doubt. Today is your off-day! It’s a bad day for you!’” (Id.)
The next day was the last day of the rotation. (Id. ¶ 25.) Sahar was not in the office that
day. (Id.) Dalton covered for him and gave Ke and Ms. Calvo their oral evaluations. (Id.)
Dalton told Ke that he had “improved during the rotation and had done a good job.” (Id. ¶ 26.)
He advised Plaintiff, however, that he should “not ask many questions in the presence of a
patient.” (Id.) Finally, Dalton informed Plaintiff that Sahar would write the final evaluation.
Sometime later, Plaintiff discussed his clerkship with classmate Cyrus Hadadi
(“Hadadi”). (Id. ¶ 27.) Hadidi told Plaintiff that Sahar usually wrote the final evaluation and
showed it to the student before submitting it. (Id.) He told Plaintiff that it was odd that Sahar
had not shown Plaintiff his final evaluation. (Id. ¶ 28.) Hadidi also claimed that Dalton gave
him a positive final evaluation but, after “chumm[ing] up” to Sahar, Sahar “further embellished
the evaluation to make it look shinier.” (Id. ¶ 27.) Finally, Hadidi told Plaintiff that the final
evaluations were typically better than the mid-block evaluations. (Id.) In contrast, Plaintiff
alleges that Sahar maliciously provided negative feedback regarding his clinical performance.
(Id. ¶¶ 31-39.) Plaintiff suggests that Sahar showed preferential treatment to Hadadi who, like
Sahar, is of Middle Eastern descent. (Id. ¶ 27.) Plaintiff did not receive a positive report.
On January 3, 2011, Dr. Jennifer Hamilton, the director of the Family Medicine clerkship
at DCM, informed Plaintiff that he had failed both the Family Medicine rotation and the Family
Medicine shelf exam. (Id. ¶ 29.) At that time, “Lei [Ke] was resigned to failure in the shelf
exam because he had not been able to spend enough time on the preparation” for his upcoming
Step 1 exam that he planned to take in addition to the shelf exam.6 (Id. ¶ 30.) Plaintiff failed the
Step 1 exam. Dr. Amy Fuchs, Associate Dean of Student Affairs, told Plaintiff that he had to
retake the Step 1 exam in six weeks. (Id.) In contrast, Plaintiff alleges that “other similarly
situated students were given five or six months to prepare for Step 1 full-time.” (Id.)
Plaintiff disputes that he had failed his Family Medicine rotation, citing Dalton’s positive
mid-block evaluation and final oral evaluation. (Id. ¶ 31.) Plaintiff alleges that Sahar failed Ke
because Ke “had asked him a question in front of a patient.” (Id. ¶ 39.) Additionally, Plaintiff
believed that this question was “protected under 42 U.S.C. § 1981.” (Id.)
The next day, January 4, 2011, Hamilton emailed Plaintiff that he should repeat the
Family Medicine rotation in accordance with the student manual. (Id. ¶ 40.) Plaintiff objected to
this solution, again criticizing Sahar’s behavior and evaluation. (Id.) Two days later, on January
6, 2011, Hamilton responded that if Plaintiff was concerned about his grade he should appeal the
grade with her. (Id.) Plaintiff did so. (Id. ¶ 41.)
Thereafter, Hamilton called Sahar and reported back to Plaintiff that Sahar found Plaintiff
did not perform well throughout the clerkship. (Id.) Accordingly, Sahar rated Plaintiff’s work as
The Step 1 exam is the first of the three-part United States Medical Licensing Examination.
This three-part exam is required for initial medical licensure.
less than satisfactory in “Medical Knowledge,” “Professionalism,” and “Interpersonal/
Communication Skills.” (Id. ¶ 41.) Sahar rated Plaintiff in the final a two out of five points for
both “Medical Knowledge” and “Interpersonal/Communication Skills” and a one out of five
points for “Professionalism.” Additionally, Sahar noted in his feedback that:
[Ke] had issues with professionalism and interpersonal skills. In one patient
encounter, he took exception to a treatment strategy in front of a patient, rather
than discussing his concerns outside of the patient room. This incident of
questioning treatment in the presence of patient was unacceptable. He also had
poor interactions with office staff, often aloof and non-interactive.
(Doc. No. 29-4 at 14.)
According to Plaintiff, he “argued” to Hamilton that Dalton’s mid-block and oral
evaluation at the end of the clerkship contradicted Sahar’s evaluation. (Id. ¶ 42.) Hamilton
again called Sahar and reported the content of the call to Plaintiff. (Id.) Sahar told Hamilton that
Ke “was good at the beginning” and therefore received a positive mid-block evaluation. (Id.)
Plaintiff notes in his Second Amended Complaint that Dalton completed the mid-block
evaluation later than it was supposed to be done. (Id.) By the time Dalton completed the midblock evaluation, Ke only had a few days left in the clerkship. (Id.)
Hamilton told Ke that she would raise his clinical grades where he received below three
out of five points. (Id. ¶ 43.) Despite this promise, Hamilton only amended the
“Professionalism” score, raising it from one to two points out of five. (Id.) She advised Plaintiff
that he could appeal her finding to Dr. Eugene Hong, Chairman of the Family Medicine
On January 22, 2011, Plaintiff appealed his grade to Hong. (Id. ¶ 44.) In the appeal,
Plaintiff requested that Hong review the two written evaluations from AM Sahar, the final oral
evaluation by Dalton, and the grade for a bio-psychosocial report.7 (Id. ¶ 44.) On February 2,
2011, Hong upheld Ke’s overall grade of “Unsatisfactory” for the Family Medicine clerkship.
(Id.) Hong advised that if Ke wanted to appeal his decision, Ke could appeal to Dr. Barbara
Schindler, Vice Dean for Academic Affairs. (Id.)
On February 8, 2011, Plaintiff emailed his appeal to Schindler. (Id. ¶ 45.) In the appeal,
Plaintiff stated his opinion that Sahar negatively reviewed him because of the question he asked
in front of the patient. (Doc. No. 29-4 at 41.) Plaintiff again criticized what he considered the
“two harshest comments”8 on Sahar’s final evaluation as being “related to that incident.” (Id. ¶
40.) Furthermore, Plaintiff related that he “performed poorly on the last day he was with [Sahar]
before the end of the rotation[,] leaving [Sahar] with a bad impression.” (Id. ¶ 41.) Ke did not
seek a “Satisfactory” grade in his appeal; rather, he sought a “Marginal Unsatisfactory”9 grade so
that he could retake the shelf exam in Family Medicine. (Id.)
Plaintiff acknowledges that writing the appeal to Schindler “tapped his energy and time
although he ought to have devoted them to preparing for the second attempt at Step 1. . .”. (Doc.
No. 29 ¶ 45.) On February 10, 2011, he took the Step 1 exam for a second time. (Id.) On
February 11, 2011, Ke met with Schindler for a half hour. (Id. ¶ 46.) Because Schindler could
not find the email Plaintiff sent to her in preparation for the meeting, Ke explained orally why he
The bio-psychosocial report was part of the Family Medicine grade. He claims he received an
“excellent” grade on the report, but does not further elaborate. (Doc. No. 29 ¶¶ 44, 83, 115,
In the letter, Plaintiff does not specifically state which of Sahar’s comments were the two
harshest. (Doc. No. 29-4 at 40.)
At DCM, a “Marginal Unsatisfactory” is a temporary grade. It falls between “Satisfactory” and
“Unsatisfactory.” Generally at DCM, a student who receives a grade of “Marginal
Unsatisfactory” in a course may retake the rotation or related shelf exam.
did poorly. (Id.) Schindler, however, agreed with Hamilton’s recommendation that Ke repeat
the Family Medicine clerkship. (Id.) Although Hamilton allowed Plaintiff to repeat the Family
Medicine clerkship, Ke contends that she treated him differently from other students who had
failing grades. (Id. ¶ 47.) In his Second Amended Complaint, Plaintiff notes that one student,
Shannon Toccio, and other unnamed students also failed the clinical portion of their clerkships.
(Id.) Plaintiff alleges that DCM remedied their situation by increasing their grades to passing.
Later on the same day, Dr. Fuchs informed Plaintiff that he would no longer do his
scheduled year-long rotation courses at Monmouth Medical Center or an affiliated site. (Id.
¶ 57.) Instead, he would do his second required rotation at Hahnemann Hospital in Philadelphia.
(Id.) This rotation was in Obstetrics and Gynecology (“OB/GYN”). (Id.)
Plaintiff alleges that his reassignment to Hahnemann Hospital was part of a plan by
administrators of Defendant DCM to ensure his failure. (See generally Doc. No. 29.) The
location of Hahnemann Hospital in Philadelphia required Plaintiff to commute a total of two
hours daily. (Id. ¶ 59, 60.) The commute reduced his study time. (Id. ¶ 60.) As acknowledged
in the Second Amended Complaint, students deemed by DCM to need more supervision in their
clerkships are assigned to rotations in Philadelphia. (Id. ¶ 53.)
On February 14, 2011, Plaintiff received a letter signed by Fuchs. (Doc. No. 29-4 at 45.)
The letter acknowledges that Plaintiff was previously readmitted to DCM in July 2009 so he
could repeat his second year. (Id.) DCM conditioned Ke’s prior readmission on receiving
grades rated at least a “Satisfactory;” grades lower than “Satisfactory” would be “grounds for
dismissal” from DCM. (Id.) Despite the “Unsatisfactory” grade Ke received in his Family
Medicine rotation, the Clinical Promotions Committee determined that Ke’s situation “warranted
leniency.” (Id.) As such, the Committee permitted Plaintiff to remain enrolled at DCM after
receiving an “Unsatisfactory” grade in the Family Medicine clerkship. (Id.) However, the
Committee placed conditions on his continued enrollment:
You are allowed to remain enrolled in the College of Medicine.
You will do the remainder of your Clerkships in the Philadelphia area.
You are required to repeat the 6-week Family Medicine Clerkship.
The receipt of any additional grade of less than Satisfactory (including
Unsatisfactory or Marginal Unsatisfactory) will be considered grounds for
dismissal from the College of Medicine.
Despite being advised by Drs. Fuchs and Samuel Parrish, the Dean of Student Affairs at
DCM, not to take the shelf exam in OB/GYN at the same time he was retaking the Step 1 exam
and completing a rotation, Ke took both exams and failed them. (Doc. No. 29 ¶ 58-61; Doc. No.
29-4 at 77.)
Plaintiff received a rating of “Marginal Unsatisfactory” on his OB/GYN shelf exam. He
was then dismissed from DCM in accordance with the warning in the February 14th letter. (Doc.
No. 29 ¶ 61.) Fuchs informed Ke that he could appeal the decision, which he did. (Id.) Both
Fuchs and Parrish assisted Plaintiff with the appeals process and his presentation. (Id. ¶ 62-66.)
Plaintiff alleges this assistance constituted a conflict of interest, since Fuchs had been part of the
committee that dismissed him from the medical school. (Id. ¶ 66.)
Plaintiff alleges that DCM showed preferential treatment to similarly situated white
students. (Doc. No. 29 ¶ 86.) He claims that unnamed white students failed the Family
Medicine clerkship, but DCM did not require them to repeat the rotation. (Id.) Furthermore, Ke
alleges disparate treatment based on the fact that “many Caucasian students received multiple
[“Marginal Unsatisfactory” grades] and were still allowed to do remediation work without being
dismissed.” (Id. ¶ 119(A)(11).) In contrast, when Ke received a grade of “Marginal
Unsatisfactory” in OB/GYN, he was dismissed from DCM. (Id. ¶ 54.)
At an April 26, 2011, meeting with Parrish and Fuchs, Plaintiff took notes. (Doc. No. 294 at 77.) Before Fuchs arrived, Ke and Parrish discussed why Ke believed he should be
readmitted. (Id.) Plaintiff explained that his third-year rotations were supposed to take place at
Monmouth Medical Center in New Jersey and that he preferred that location because Monmouth
Medical Center offered room and board near the hospital. (Id.) This placement would shorten
his commute and give him time to devote to his studies. (Id.)
Parrish told Plaintiff that Dr. Sahar had called Parrish before the Clinical Promotions
Committee meeting. (Doc. No. 29 ¶ 49.) Dr. Sahar stated that he was upset with Ke, that he
should not be a doctor, does not belong in medicine, was inappropriate with patients, and
inappropriate in his presence. (Id.) Parrish agreed with Sahar and related a story to Plaintiff in
which Parrish believed Ke had asked him an inappropriate question at a meeting he had with
students. (Id. ¶ 50.) Ke asked Parrish about the size of DCM’s endowment in front of a group of
students, upsetting Parrish. (Id. ¶ 51.)
During the meeting, both Fuchs and Parrish noted that Plaintiff’s appeal letter blamed
them for his failures. (Id. ¶ 68.) Parrish submitted a performance evaluation of Ke to Dr.
Richard Homan, Dean of DCM, but did not share it with Plaintiff. (Id. ¶ 69.) Homan denied
Plaintiff’s appeal for reinstatement, citing his grades of “Unsatisfactory” in Family Medicine and
“Marginal Unsatisfactory” in OB/GYN as the reason for dismissing Ke. (Id.) Ke still planned to
take the Step 1 exam in July, regardless of his student status. (Id. ¶ 70.) However, the National
Board of Medical Examiners (“NBME”) requires student status in order to take the Step 1 exam.
(Doc. No. 29-5 at 23.) After DCM notified the NBME that Plaintiff was no longer a medical
student, the NMBE cancelled his test. (Doc. No. 29 ¶ 70; Doc. No. 29-5 at 23.)
On May 9, 2011, Ke appealed to the DCM Promotions Committee and wrote the
This committee is made of successful professionals who are extremely smart and
knowledgeable. You probably wonder why I keep failing. The truth is that I have
worked very hard from the day I entered this medical college four years ago, but
obviously I am not as smart as many other students. When I repeated my second
year, I lost confidence in my abilities and felt isolated and separated from my
original class that continued to move forward. I was devastated and humiliated
and became an outcast. I had never felt so bad in all my life.
(Doc. No. 29, Ex. 15.)
On May 12, 2011, Ke and Parrish had another meeting, and Parrish again brought up the
time Ke asked him about DCM’s endowment in front of a group of students. (Doc. No. 29 ¶ 52.)
At a subsequent meeting on May 26, 2011, Parrish stated, “I go back to your first year of medical
school when you were the weirdest guy I’ve ever met. You were weird, strange, truly odd, you
scared people. The only thing that’s changed is that you have gotten quieter.” (Doc. No. 29-2 at
43.) Parrish also told Ke that “the fact of the matter is you have a persistent pattern of academic
failure.” (Id. at 44.)
On June 22 and June 30, 2011, Plaintiff’s parents petitioned Defendant John Fry,
president of Drexel, for his assistance in having their son readmitted to DCM. (Doc. No. 29 ¶
73.) Fry did not respond. (Id.) On July 4, 2011, Plaintiff requested a formal hearing with Fry
and Homan. (Id.) Because Fry was abroad, the Vice President of Drexel, Dr. David Ruth,
responded to Plaintiff’s request. (Id. ¶ 73-74.) Dr. Ruth explained that Homan would consult
with the Registrar to determine whether to grant Plaintiff’s request to have his “Marginal
Unsatisfactory” grade amended under Drexel’s Family Educational Rights Privacy Act
(“FERPA”) Policy. (Id. ¶ 74.) On July 19, 2011, Homan emailed Plaintiff informing him that
the grade would not be amended and that Ke had a right to a formal hearing. (Id. ¶ 75.) The
Registrar arranged for and then cancelled the meeting, because challenging a grade and clinical
evaluation was not within the purview of the Drexel FERPA Policy:
I have considered all of the information you have provided to me and have
determined that this is not a matter for which a hearing is available under the
Drexel University FERPA Policy. This is because you are attempting to use the
FERPA amendment process to challenge a grade and a clinical evaluation.
(Doc. No. 29-3 at 31.)
On August 25, 2011, Plaintiff filed a complaint with the Pennsylvania Human Relations
Commission to be reinstated at DCM. (Doc. No. 29 ¶ 76.) On September 19, 2011, Plaintiff
filed another complaint, this time with the Department of Education, Office of Civil Rights,
again seeking reinstatement at DCM. (Id.) On November 18, 2011, Plaintiff filed his original
Complaint in this Court, because, according to Plaintiff, he “realized that the agencies could not
timely help him or could never help him.” (Id.)
STANDARD OF REVIEW
To survive a motion to dismiss, a plaintiff’s complaint must state a plausible claim.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). Ashcroft v. Iqbal, the leading case on the matter, explained that this plausibility
standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at
678. This means that a simple recitation of the elements of a claim, accompanied by conclusory
statements of law, will not suffice. Id. (citing Twombly, 550 U.S. at 555.)
Applying this principle, in Malleus v. George, the Third Circuit explained that the inquiry
requires that a district court: “(1) identify the elements of the claim, (2) review the complaint
to strike conclusory allegations, and then (3) look at the well-pleaded components of the
complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are
sufficiently alleged.” 641 F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when
the facts in the complaint “show” that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a “contextspecific task that requires the reviewing court to draw on its judicial experience and common
A. Count VI Will be Dismissed By Agreement of the Parties
Plaintiff concedes that Count VI, in which he alleges a violation of FERPA, is not a cause
of action he may pursue. (Doc. No. 33 at 19.) The Third Circuit has held that FERPA does not
create a private cause of action and that 42 U.S.C. § 1983 does not provide a conduit for the
filing of a private FERPA claim. Woodruff v. Hamilton Twp. Pub. Sch., 305 F. App’x. 833, 837
(3d Cir. 2009). Because both Defendants and Plaintiff agree that Count VI should be dismissed,
the Court will dismiss Count VI.
B. Count VII: The Pennsylvania Fair Educational Opportunities Act (“PFEOA”)
This Court will dismiss the PFEOA claim against Defendant Drexel and Individual
Defendants for two reasons. First, viewing the factual allegations in the Second Amended
Complaint in the light most favorable to Plaintiff, he fails to plausibly demonstrate that unlawful
discriminatory action took place. Second, he failed to comply with the one year time period in
which the Pennsylvania Human Relations Commission (“PHRC”) has exclusive jurisdiction over
this matter before filing suit in this Court, and therefore failed to exhaust his administrative
1. Plaintiff’s allegations do not plausibly demonstrate racial or national origin
In Count VII, Plaintiff alleges a violation of the PFEOA. Section 5004(a) of the PFEOA
provides that “. . . it shall be an unfair educational practice for an educational institution . . . [t]o
expel, suspend, punish, deny facilities or otherwise discriminate against any student because of
race. . . [or] national origin . . . .” 24 Pa. Cons. Stat. § 5004(a)(3). When a plaintiff alleges a
discrimination-based claim under the PFEOA, he must first establish a prima facie case of
discrimination in regard to the adverse action he experienced. Manning v. Temple Univ., 157 F.
App’x 509, 513 (3d Cir. 2005) (requiring inference of discrimination as to plaintiff’s dismissal
from Temple University School of Medicine before reaching specific elements of education
discrimination claim under PFEOA). Facts raising an inference of discrimination must be
alleged. Manning, 157 F. App’x at 513; see Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764
(3d Cir. 2004) (requiring plaintiffs to first produce evidence that raises inference of
discrimination). Here, Ke must establish, when viewing the allegations in his Second Amended
Complaint in the light most favorable to him, a prima facie case that raises a plausible inference
of discrimination. Manning, 157 F. App’x. at 513. To raise the required inference of
discrimination, he must provide a link between his race or national origin and his dismissal from
A plaintiff’s minority status and adverse action do not alone raise the required inference
of discrimination. In Manning, a case similar to this one, a female African-American medical
student was dismissed from medical school because of her poor grades and sought reinstatement.
In Defendants’ Response to the Motion for a Preliminary Injunction, they argue that he is
unlikely to succeed on the merits of the discrimination claims in the Second Amended
Complaint. The arguments are relevant in part to the PFEOA claim and, therefore, are being
given consideration here.
157 F. App’x at 510. Manning presented evidence that a professor had advised her to study from
her old notes and to participate in a Temple University School of Medicine academic assistance
program targeted to minority and underprivileged students. Id. at 511. Manning did not
participate in the program, but did study from her notes. Id. As a result of studying from her
notes, Manning improved her performance in that professor’s course. Id. The same professor,
however, gave a white female student different advice, but not enough to avoid dismissal from
the medical school. Id. Nonetheless, when weighing the legal merits of the claim, the Third
Circuit concluded that:
Manning has failed to present evidence that her dismissal was due to race or that
the RAR program [a study and support program targeted to — but not exclusively
for — minority students and underprivileged students to which Manning was
directed] was related her to dismissal in any way. The only evidence of
differential treatment Manning offers is her testimony that a Caucasian student
known only as “Tracy” told her that she was advised by Dr. Pearson to study from
old exams, while Dr. Pearson did not give Manning the same advice. . . . Even if
the testimony could be considered, Dr. Pearson's dispensation of different
studying advice to two different students is not sufficient to raise an inference of
Id. at 514. To demonstrate the link, however, a plaintiff may show that a similarly-situated
individual of a different race was treated more favorably than the plaintiff. Ade v. KidsPeace
Corp., 398 F. Supp. 2d. 501, 515 (E.D. Pa. 2010), aff’d, 401 F. App’x 697 (3d Cir. 2010).
In this case, Plaintiff Ke fails to provide a plausible link between his race and the adverse
actions taken against him. He does not plausibly allege that his dismissal from DCM was based
on discriminatory animus. At the September 24, 2012 hearing before this Court, Ke listed three
allegedly discriminatory acts that form the basis of his Complaint: (1) Sahar asked where
Plaintiff is from, (2) Parrish made disparaging comments about Ke, and (3) the disparate
treatment he faced in comparison to other DCM students. These allegations are either directly
set forth in the Second Amended Complaint or can be inferred from the facts alleged. The Court
will address each alleged act of discrimination in turn.
First, Ke alleges that Dr. Sahar engaged in discrimination when he asked Ke where he
came from. It is not unlawful to ask someone where he came from, even if the initial response
appears to be inadequate. Questions or comments about race or national origin unconnected to
an adverse action are not evidence of racial or ethnic discrimination when the comments “do not
tend to show a discriminatory reason was more likely than not a motivating cause of his
discharge.” Ade, 401 F. App’x at 704. This principle is especially true when the questions are
not asked at or near the time of the adverse action. Id.; Kim-Foraker v. Allstate Ins. Co., 834 F.
Supp. 2d 267, 274 (E.D. Pa. 2011); Toth v. Cal. Univ. of Pa., 844 F. Supp. 2d 611 (W.D. Pa.
A case involving far ruder comments than Dr. Sahar’s questions illustrates this principle.
In Kim-Foraker v. Allstate Insurance Co., an Asian woman claimed that three remarks made by
her supervisor centered on her Korean heritage and led to the adverse action taken against her.
Kim-Foraker, 834 F. Supp. 2d at 274. The plaintiff described these alleged remarks in a
After the February 15, 2006 CPU meeting: “[W]e had a meeting, this
was in front of everybody, all the lawyers as well as the staff, where
[the supervisor] looked at me straight in the face and said that she was
taking kung fu, and that was very derogatory, sir.”
At some date between February 15 and March 1, 2006: “[The
supervisor] told Mr. Steiger that I was on the take, that I dress too well
and that Koreans always use cash and for the place I'm working for I
was just looking too good.”
At some date between February 15 and March 1, 2006: “[S]he
basically told me that you Koreans, you work hard, you're a model
minority, so therefore I expect you to produce more than the other
lawyers in this office, but if you rat on the white guys and also the old
dudes, she didn't say dudes, the old lawyers, you know who I am
talking about, she said . . . then I'll help you out and you won't get as
Id. at 274 (internal citations omitted).
The supervisor did not make any of these comments near the time when that plaintiff was
terminated. Id. Instead, human resources records of the employer proved that the plaintiff had
been warned several times that her behavior was unprofessional and “continued unprofessional
behavior would lead to her termination.” Id. at 273. The court held in Kim-Foraker that the
alleged remarks by the supervisor did not demonstrate that the plaintiff’s race or national origin
was a motivating factor in the plaintiff’s termination, because none of the remarks were made
when the plaintiff was fired. Id. at 276.
Here, Dr. Sahar asked Plaintiff where he was from the first time they met. This meeting
occurred in or about September 2010. Asking someone where he is from, standing alone, is not
rude or improper comment. The way Plaintiff describes Sahar’s questions does not raise an
inference that Sahar was being rude or projecting any stereotype onto Plaintiff. Moreover,
Plaintiff has not plausibly shown that questions about where he is from was a factor in his
termination from medical school in or about April 2011, which was seven months after the
question was asked by Sahar. The intervening events between September 2010 and April 2011,
when Ke failed the required shelf exam and Step 1 test and received a grade of “Marginal
Unsatisfactory” in the OB/GYN clerkship, removed any connection between the allegedly racial
questions and his dismissal from the medical school. In addition, similar to Kim-Foraker, Sahar
made no comments about Ke’s race or national origin at the time he gave him a poor rating for
“Medical Knowledge,” “Professionalism,” and “Interpersonal/Communication Skills.” (Doc.
No. 29-4 at 13-14.) Consequently, Sahar’s remarks do not demonstrate that discrimination was
more likely than not the motivating factor for Ke’s dismissal from medical school.
Plaintiff attempts to contrast his failing grade with the alleged passing grade of Middle
Eastern classmate Cyrus Hadadi and alludes to the fact that both Hadadi and Sahar are Middle
Eastern. (Doc. No. 29 ¶ 27.) In his Second Amended Complaint, however, Ke fails to describe
how he and Cyrus Hadadi were similarly situated other than having been assigned to the same
Family Medicine practice, albeit during different semesters. (See Doc. No. 29 ¶ 27.) This fact
alone is insufficient to demonstrate a similar situation. The law requires that a comparator’s acts
be of “the same level of seriousness” as the plaintiff’s own infraction. Ade, 401 F. App’x at
705. Thus, Hadadi and his alleged experience with Sahar is not a valid comparison for
evaluating Ke’s claims. Accordingly, Ke fails to establish a prima facie case that he was treated
less favorably than another student in Sahar’s office.
Ke also fails to demonstrate that he received different treatment from other students
based on his race or national origin when he alleges that DCM administrators did not inflate his
Family Medicine grade to a passing grade. He alleges that one student, Shannon Toccio, whose
race was not disclosed,11 and other students failed a General Surgery clerkship and DCM inflated
their grades to pass those students. (Doc. No. 29 ¶ 47.) As was the case with Hadadi, Plaintiff
fails to demonstrate that Toccio and the other students were similarly situated. Ke does not
allege that these students failed their second-year courses and repeated them while conditionally
The Court has examined each allegation in the Second Amended Complaint about the
treatment of Ke in comparison to the treatment of other students. The facts alleged do not show
that these students were similarly situated to Ke, who was conditionally readmitted after his
second year and then failed courses and a rotation during his third year. No plausible inference
is raised that Ke was treated different from other students because of race or national origin.
readmitted to DCM and then failed third-year tests and received a “Marginal Unsatisfactory” in
an OB/GYN rotation. The students were not similarly situated for purposes of comparison.
Ke also alleges that Parrish’s comments that Ke is “weird, strange, and odd” were
discriminatory because they were racially based or based on his place of origin. These
comments do not mention Plaintiff’s race or national origin. They do not raise an inference that
Parrish was motivated by Plaintiff’s race or national origin when he uttered them. Moreover,
these comments were not made at the time Ke was dismissed from DCM for violating the
conditions of his probationary status set forth in the February 14th letter from Fuchs. In fact,
these comments were made on May 12, 2011, after Plaintiff had been dismissed from DCM in
Third, DCM’s decision to re-assign Ke to Hahnemann Hospital had nothing to do with
Ke’s race or national origin. At the time that Ke was reassigned to Hahnemann Hospital, no one
made any mention of his race or national origin. In the February 14th letter that required
Plaintiff do his OB/GYN rotation in Philadelphia, the letter did not mention his race or national
origin. (Doc. No 29-4 at 45.) Rather, Plaintiff notes that it is DCM’s policy that students who
perform poorly do a rotation in the Philadelphia area so that they can be better supervised. (Doc.
No. 29 ¶ 53.) Despite admitting that this policy is in place, Ke still claims he received disparate
treatment as to his rotation due to his race or national origin. (Doc. No. 29 ¶ 85.) Plaintiff’s
academic record, however, shows that he would have benefitted from rotating at Philadelphia’s
Hahnemann Hospital. (Doc. No. 29-4 at 83-85.) It was his failing grades that caused DCM to
assign him to a hospital where they could better supervise him, not his race or national origin.
The DCM Clinical Promotions Committee did not dismiss Ke because of his race or
place of origin. Instead, the clear inference from the Second Amended Complaint is that the
DCM Clinical Promotions Committee dismissed him because he violated the conditions of his
readmission to DCM. (Doc. No. 29-4 at 45.) In the February 14, 2011 letter, Fuchs, on behalf of
the Clinical Promotions Committee, reminded Plaintiff of these conditions after they opted not to
immediately dismiss Plaintiff for failing the Family Medicine Clerkship. (Doc. No. 29-4 at 45.)
His “Marginal Unsatisfactory” grade in the OB/GYN course was the final straw in the school’s
attempt to work with Plaintiff in his pursuit of a medical degree.
Because Plaintiff has failed to allege a plausible discrimination claim against all
Defendants in Count VII, this Count will be dismissed for this reason and the one that follows.
2. Plaintiff failed to exhaust administrative remedies before filing the instant
The Pennsylvania Fair Educational Opportunities Act (“PFOEA”) follows the procedure
outlined in the Pennsylvania Human Relations Act (“PHRA”): “The procedure for processing
any complaint and the remedies available shall be in accordance with sections 9, 9.2 and 11 of
the act of October 27, 1955 (P.L. 744, No. 222), known as the ‘Pennsylvania Human Relations
Act.’” 24 Pa. Cons. Stat. § 5007. In relevant part, the PHRA requires complainants to:
make, sign and file with the Commission a verified complaint, in writing, which
shall state the name and address of the person, employer, labor organization or
employment agency alleged to have committed the unlawful discriminatory
practice complained of, and which shall set forth the particulars thereof and
contain such other information as may be required by the Commission.
43 Pa. Cons. Stat. § 959.
When filing a discrimination claim with the Pennsylvania Human Relations Commission
(“PHRC”) alleging a violation of the PFEOA, the PHRC has exclusive jurisdiction over that
claim for one year. 24 P.S. 5007.1(a); Burgh v. Borough of Montrose, 251 F.3d 465, 471 (3d
Cir. 2001) (citations omitted). If the PHRC does not take action within one year after a
complainant files a claim, then the complainant may pursue his claim in court. Burgh, 251 F.3d
at 471. The one year time period “allows the PHRC to use its specialized expertise to attempt to
resolve discrimination claims without the parties resorting to court.” Mikulski v. Bucks Cnty.
Comm. Coll., No. 11-557, 2011 WL 1584081, at *6 (E.D. Pa. April 27, 2011). If a plaintiff files
a court case within that one year period before the PHRC takes action, he has not exhausted his
administrative remedies. If a plaintiff fails to first exhaust his administrative PFEOA remedies,
his court case is premature and subject to dismissal. See First Jersey Secs., Inc. v. Bergen, 605
F.2d 690, 700 (3d Cir. 1979) (applying exhaustion doctrine to bias claim and holding failure to
exhaust administrative remedies rendered district court without jurisdiction to hear case).
Ke filed a complaint with the PHRC on August 25, 2011. (Doc. No. 29 ¶ 76.) It was
served on September 13, 2011. Unhappy with the pace of the PHRC review of his complaint, he
filed his first Complaint in this Court on November 18, 2011. (Doc. No. 1.) Because he filed a
court case, the PHRC dismissed his complaint without making a decision. (Doc. No. 29 at n.10)
Since Plaintiff filed his initial Complaint in federal court within the one-year period of exclusive
jurisdiction of the PHRC, the Commission was not afforded the opportunity to fully “use its
specialized expertise” during the one-year statutory period when it had exclusive jurisdiction.
Mikulski, 2011 WL 1584081, at *6. Thus, Plaintiff failed to exhaust the administrative remedies
offered by the PHRC. Accordingly, Plaintiff is barred from bringing the claim he pursues in
Count VII. For this additional reason, Count VII will be dismissed.12
Defendants also seek dismissal of Count VII because they allege that Ke did not name all
Defendants in the complaint filed with the PHRA. “If a party is not a named respondent in the
charge, the plaintiff is prevented from later filing a lawsuit against that party alleging violations
of the PHRA.” Ilori v. Carnegie Mellon Univ., 742 F. Supp. 2d 734, 748 (W.D. Pa. 2010); Urey
v. E. Hempfield Twp., No. 08-5346, 2009 WL 561664, at *3 (E.D. Pa. Mar. 4, 2009). This
“named respondent rule” is meant to notify the accused parties and facilitate resolution instead of
C. Count IX: “Intentional Infliction of Pain and Suffering”
Plaintiff fails to plead a plausible claim of infliction of emotional distress in Count IX.
“The elements of an intentional infliction of emotional distress claim are (1) extreme and
outrageous conduct (2) that intentionally or recklessly (3) causes emotional distress (4) which
must be severe.” White v. Ottinger, 442 F. Supp. 2d 236, 251 (E.D. Pa. 2006). Here, Ke fails to
establish the first and fourth elements.
The first element is satisfied if a plaintiff is able to allege conduct by the defendant that is
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Lane v.
Cole, 88 F. Supp. 2d 402, 406 (E.D. Pa. 2000) (citing Hoy v. Angelone, 720 A.2d 745, 754 (Pa.
1998)). Everyday annoyances, insults, and indignities do not rise to the requisite outrageousness.
Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1274-75 (3d Cir. 1979). Alleged racial
discrimination alone does not demonstrate the requisite outrageous and extreme conduct
necessary to prove intentional infliction of emotional pain and suffering. Nichols v. Acme
Markets, 712 F. Supp. 488, 495 (E.D. Pa. 1988), aff’d, 902 F.2d 1561 (3d Cir. 1990); E.E.O.C. v.
Chestnut Hill Hosp., 874 F. Supp. 92, 96 (E.D. Pa. 1995). For example, to allege plausible
conduct that is sufficiently outrageous and extreme, a plaintiff would have to demonstrate
discrimination plus extreme additional behavior. Bowersox v. P. H. Glatfelter Co., 677 F. Supp.
306 (M.D. Pa. 1988) (holding conduct was sufficiently extreme when defendant sexually
a trial. Urey, 2009 WL 561664, at *3. Defendants allege that the caption of the case in the
PHRC is “Lei Ke v. Drexel University” and attach a Notice of Investigation from the PHRC
which shows the caption. The actual complaint filed by Ke is not part of the record. For this
reason, the Court is unable to determine if all Defendants in the instant case were placed on
notice of Ke’s allegations and request for relief. Since the Court is dismissing Count VII for
other reasons, there is no need to address further the argument of Defendants’ about a deficiency
in naming parties in the PHRC proceeding.
harassed plaintiff, withheld important job-related information from plaintiff, forbade plaintiff
from speaking to other employees and answering the telephone, and followed plaintiff around
Plaintiff alleges that the process he went through to appeal his failing Family Medicine
grade, the “Marginal Unsatisfactory” grade in his OB/GYN rotation, and the resulting violation
of the conditions set by the Clinical Promotions Committee caused his emotional distress. (Doc.
No. 29 ¶ 167.) Plaintiff describes the appeals process as draining. (Doc. No. 29-5 at 8.) The
process that Ke was afforded by DCM throughout his tenure as a student was not extreme,
atrocious, outrageous, or intolerable. He does not cite any court decision that, on facts
comparable to his case, show that a claim of intentional infliction of emotional distress was
plausibly alleged. For this reason, Count IX will be dismissed.
D. President Fry Will Be Dismissed As A Defendant
Drexel University President John Fry will be dismissed as a Defendant in the Second
Amended Complaint. The claims, not previously discussed, that remain against Fry are as
follows: Intentional Discrimination in Violation of 42 U.S.C. § 1981 (Count I) and Willful
Retaliation in Violation of 42 U.S.C. § 1981 (Count II). (Doc. No. 29 at ¶¶ 77, 99.) In order to
state a viable claim against Fry on these counts, at the Motion to Dismiss stage, Plaintiff is
required to demonstrate that Fry personally engaged in the offending conduct.
As noted, Counts I and II of the Second Amended Complaint assert discrimination and
retaliation claims under 42 U.S.C. § 1981 against Fry. Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C. § 1981(a). The statute defines “make and enforce contracts” to “include[e] the
making, performance, modification, and termination of contracts, and the enjoyment of all the
benefits, privileges, terms and conditions of the contractual relationship.” Id. § 1981(b). To
establish a basis for relief under § 1981, a plaintiff must show: (1) that he belongs to a racial
minority; (2) an intent to discriminate on the basis of race on the part of the defendant; (3)
discrimination concerning one or more of the activities enumerated in § 1981. See e.g., Estate of
Oliva v. New Jersey, 604 F.3d 788, 797 (3d Cir. 2010). To establish a prima facie retaliation
claim under § 1981, a plaintiff must show that: (1) he engaged in protected activity; (2) the
defendant took an adverse action; and (3) there was a causal connection between his participation
in the protected activity and the adverse action. Johnson v. Labor Force, Inc., No. 10-199, 2011
WL 6303192, *2 (E.D. Pa. Dec. 15, 2011).
Liability under § 1981 “is premised on intentional discrimination.” Boykin v.
Bloomsburg Univ., 893 F. Supp. 400, 405 (M.D. Pa. 1995). Accordingly, liability under § 1981
cannot be imposed vicariously, because liability under § 1981 is personal in nature. Id. To
establish a case against an individual under § 1981, evidence of “personal involvement is
essential.” Id. A plaintiff must demonstrate that an individual defendant played a part in the
adverse action against the plaintiff. Elmore v. Clarion Univ., 933 F. Supp. 1237, 1245 (M.D. Pa.
In his Second Amended Complaint, Plaintiff avers only the following facts with regard to
After his gruesome appeal process inside DCM in July 2011, [Ke] still tried to
resolve the matter peacefully. For that matter, his parent sent President Fry a
petition for his intervention on June 30, 2011 but received no reply. . . . On July 4,
2011, [Ke] emailed President Fry and Homan to request a formal hearing under
the FERPA law. President Fry promised to “review” the matter when he returned
from travelling abroad and tasked Dr. David Ruth, a Vice President, to respond.
(Doc. No. 29 ¶ 73.) Petitioner further alleges that Fry never looked into the
matter as promised (Id. ¶ 144) and contends that Fry’s “deliberate indifference
aided and abetted” other administrators in their retaliation against Petitioner. (Id.
at ¶¶ 115(3), 119(A)(10).)
Nowhere in these factual averments does Plaintiff Ke allege that Fry personally intended to
discriminate against Ke on the basis of his race or national origin. Nor does Ke put forth any
facts alleging that Fry played a role in dismissing him from DCM. Plaintiff did not contact Fry
until after the Clinical Promotions Committee dismissed him from DCM. (Id. ¶ 73.) Since
personal involvement of a defendant in the acts of discrimination is required to establish a
violation of § 1981, and no such involvement has been alleged as to Fry, Count I against Fry
must be dismissed. To the extent Plaintiff asserted retaliation claims against Fry under this same
section, Count II also fails for the same reason.
For the above stated reasons, Defendants’ Motion to Partially Dismiss Plaintiff’s Second
Amended Complaint will be granted. An appropriate Order follows.
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