Salagh v. Bahceci et al

Filing 30

MEMORANDUM OPINION AND ORDER - Defendant's Motion to Dismiss 6 is GRANTED.IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her Complaint tospecifically allege facts relating only to her discrimination and retaliation claims. Plaintiff shall file her Amended Complaint within twenty (20) days of the date of this Order. Defendant VIU shall have fourteen (14) days to file a responsive pleading. Signed by District Judge Gerald Bruce Lee on 03/13/2017. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

LOUBNA SALAGH,

Plaintiff,

VIRGINIA INTERNATIONAL

Case No. l:16-cv-1321-GBL-TCB

UNIVERSITY;
ISA SARAC;
SULEYMAN BAHCECI;
PRASHISH SHRESTHA; and
REBECCA YU,
Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Virginia International University ("VIU")
and Defendants Isa Sarac, Suleyman Bahceci, Prashish Shrestha, and Rebecca Yu ("the

Individual Defendants," and collectively, "Defendants")'s Motion to Dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(6).

(Doc. 6.)

This case concerns pro se Plaintiff Loubna

Salagh's claim that Defendants discriminated against her on the basis of sex and national origin,
and retaliated against her in violation of both an unspecified whistleblower statute and Title VII

of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq. ("Title VII").
There are three issues before the Court. The first issue is whether the Court should grant
Defendants' Motion to Dismiss Plaintiffs Title VII claims for discrimination and retaliation

against the Individual Defendants where Plaintiff alleges that these Defendants, in their
individual capacities, discriminated against her on the basis of her sex and national origin, and

retaliated against her for filing an EEOC Charge. The Court GRANTS Defendants' Motion to
Dismiss with respect to the discrimination and retaliation claims against the Individual

Defendants because Title VII does not recognize individual liability unless the individual is an

employer or agent of the employer. Here, the Individual Defendants do not classify as either
Plaintiff's employers or agents of her employer, VIU.

The second issue is whether the Court should grant Defendants' Motion to Dismiss
Plaintiff's Title VII claims for discrimination and retaliation against Defendant VIU pursuant to

Title VII where Plaintiff alleges she was demoted because of her sex and national origin, and

retaliated against after she filed an EEOC Charge. The Court GRANTS Defendants' Motion to
Dismiss Plaintiff's discrimination and retaliation claims because she fails to provide sufficient

facts to plausibly allege that her demotion was based on her sex or national origin, or that her
protected activity led to her demotion.

The third issue is whether the Court should grant Defendants' Motion to Dismiss
Plaintiff's whistleblower claim where Plaintiff alleges she witnessed immigration, tax, and
accreditation violations, and was demoted shortly thereafter. The Court GRANTS Defendants'
Motion to Dismiss Plaintiff's whistleblower claim because Plaintiff fails to allege conduct or

matters that could reasonably lead to a viable False Claims Act (FCA) action as she does not

identify any whistleblower cause of action or statute, and does not allege sufficient facts to state
a FCA claim.
I.

BACKGROUND

Plaintiff, Loubna Salagh, is a naturalized United States citizen of Arab descent who was

hired at Virginia International University (VIU) as an English as a Second Language (ESL)
instructor in March 2014. (Doc. 1 at 2.) In March 2015, Plaintiff was hired as the Director of

the School of Test Preparation. (Id. at 3.) Plaintiff alleged that she witnessed immigration, tax,
and accreditation violations during her time at VIU. (Id at 8.)

In Plaintiffs role as Director, she reported to the Executive Vice President of University

Affairs, Suleyman Bahceci. (Doc. 1 at 4.) Plaintiff alleged during her time working under the

supervision of Bahceci, he "consistently acted in a manner demonstrating disrespect for Arabs"
and demonstrated an "intolerance for women over the age of 30 and strong American women in

leadership positions." (Id. at 5.) In September 2015, Plaintiff accompanied the President of
VIU, Isa Sarac, on a trip to London and alleges that she was "treated differently" after observing

"unethical and inappropriate behavior between the president and the undergraduate student who
he also took with him to London." (Id. at 3.) On June 3, 2016, Bahceci completed an appraisal

report evaluating Plaintiffsperformance in herrole and gave her a rating of "developmental" for

all questions on the form, indicating that she needs to improve in "several fundamental skills."
(Doc. 14-1.) Plaintiff subsequently contacted Rebecca Yu, the Director of Human Resources

(HR) at VIU, regarding herdissatisfaction with Bahceci's evaluation, but specifically stated that
she did not want HR to take any action. (Doc. 14-1 at 7.)

Plaintifffiled an EEOC Charge on October 3, 2016 alleging discrimination on the basis

of national origin and sex, naming VIU as a respondent and listing Sarac as a party in the
Particulars section of the Charge. (Doc. 1-1 at 3.) Plaintiff also alleges that she discovered

immigration and visa frauds and she has been targeted by Sarac, Bahceci, and HR ever since.

(Doc. 1 at 5.) Plaintiff states that on October 6, 2016, she was demoted from her position as
Director to a full-time instructor position and was replaced by a white male, Michael Syefert.

(Id. at 6; Doc 14-2 at 7.) Plaintiff acknowledges that there was no diminution in her salary but
her position was changed, and she believes this is a demotion. (Doc. 1-3 at 8.) The EEOC
dismissed her Charge and issued a Notice of Right to Sueon October 7,2016. (Doc. 1-1 at 1.)

Plaintiff filed her suit on October 19, 2016 asserting three claims: (1) discrimination on
the basis of sex and national origin in violation of Title VII (Count I); (2) retaliation in violation
of Title VII (Count II); and (3) whistleblower protection in violation of an unspecified statute
(Count III). (Doc. 1 at 7-8.)
Defendants filed a Motion to Dismiss on December 21, 2016 on the grounds that "(1)

Plaintiffs Complaint fails to state any claim against the Defendants upon which relief may be

granted; (2) Plaintifffailed to exhaust her administrative remedies with respect to the individual
defendants; and (3) individual liability is not recognized under Title VII." (Doc. 6 at 1.) In

opposition to Defendants' Motion to Dismiss, Plaintiff argues thatsheadequately pled all claims.
(Doc. 13 at 2.) In further support of her fraud andwhistleblower claims, Plaintiff asserts that she
informed federal agencies of Defendants' activities (see Doc. 14 at 6) by filing a Whistleblower

Reprisal Form with the U.S. Department of Education-Office of the Inspector General on
November 1, 2016 (Doc. 14-2 at 9), and contacting an individual at Homeland Security

Investigations (HSI) on November 22, 2016. (Doc 14-2 at 13-22.) In their Reply, Defendants
maintain that Plaintiffs claims fail because this Court lacks subject matter jurisdiction over the

claims against the Individual Defendants, and her remaining allegations do not, as a matter of
law, establish claims upon which relief can be granted. (Doc. 15 at 1.)
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) enables a defendant to move for dismissal by

challenging the sufficiency of the plaintiffs complaint. Fed. R. Civ. P. 12(b)(6). A 12(b)(6)
motion should be granted where the plaintiff has failed to "state a plausible claim for relief

under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (internal quotation
marks omitted) (quoting Ashcroft v. IqbaU 556 U.S. 662, 679 (2009)). To survive a Rule

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12(b)(6) motion, a claim must be facially plausible, meaning the complaint contains sufficient
factual allegations, which if taken as true, "raise a right to relief above the speculative level" and

"nudg[e] [the] claims across the line from conceivable to plausible," allowing "the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." Vitol, S.A. v.

Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting BellAtl Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)); Clatterbuck v. City of Charlottesville, 708 F.3d 549, 554 (4th
Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

The requirement for plausibility does not mandate a showing of probability but merely
thatthere is more than a possibility of the defendant's unlawful acts. Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). As a result, a complaint must
contain more than "naked assertions" and "unadorned conclusory allegations" and requires some

"factual enhancement" in order to be sufficient. Id. (citing Iqbal, 556 U.S. at 678; Twombly, 550

U.S. at 557). Thus, in reviewing a 12(b)(6) Motion to Dismiss, a court must separate factual
allegations from legal conclusions. Burnette v. Fahey, 698 F.3d 171, 180 (4th Cir. 2012).
Further, a court may consider the facts alleged on the face of the complaint, "documents

incorporated into the complaint by reference," and those matters properly subject to judicial
notice. Clatterbuck, 708 F.3d 549, 557 (4th Cir. 2013) (citations omitted); Matrix Capital Mgmt.

Fundv. BearingPoint, Inc., 576 F.3d 172, 176 (4th Cir. 2009) (quoting Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

III.

ANALYSIS

A. Title VII Claims Against Individual Defendants

The Court GRANTS Defendants' Motion to Dismiss with respect to all Individual
Defendants, namely Isa Sarac, Suleyman Bahceci, Prashish Shrestha, and Rebecca Yu, because

supervisors and other employees cannot be found liable for Title VII violations as they are not
"employers" as defined in Title VII.

The Fourth Circuit does not recognize individual liability of supervisors for Title VII
violations. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998). Title VII

provides that "[i]t shall be an unlawful employment practice for an employer. .. to discriminate

against any individual with respect to his. . . terms, conditions, or privileges of employment,
because of such individual's. . . sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). Thus, a

plaintiffalleging a Title VII violation "mustmake her claim against her employer andnot against
the supervisor" as the FourthCircuit has expressly held that Title VII does not provide a remedy

against individual defendants who do not qualify as "employers." Potter v. SunTrust Bank, No.
3:14_cv-436, 2014 WL 5410634, at *6 (E.D. Va. Oct. 23, 2014); Jones v. Tyson Foods, Inc., 378

F. Supp. 2d 705, 708 (E.D. Va. 2004) (citing Lissau, 159 F.3d at 181). An employer is defined
as "a personengaged in an industry affecting commerce who has fifteen or more employees" and

"any agent of suchperson." 42 U.S.C. § 2000e(b). In Lissau, the plaintiffnamed her supervisor
as a defendant in a Title VII claim, alleging that he engaged in discrimination. 159 F.3d at 179.

While "agent" is not defined within the statute, the court in Lissau found that supervisors are not
liable as employers or agents in their individual capacities for Title VII violations. Id. at 181.
The Individual Defendants cannot be held liable for Title VII violations because they do

not qualify as agents or employers. Since they cannot be held liable, the Court finds that

Plaintiff has failed to state a claim against these Defendants upon which relief may be granted.
Therefore, the Court GRANTS Defendants' Motion to Dismiss as to all claims against the
Individual Defendants.

B. Title VII Claims Against Defendant VIU

1. PlaintiffFails to Plausibly Allege Title VII Discrimination Claim Against Defendant
VIU

The Court GRANTS Defendants' Motion to Dismiss Plaintiffs claim for discrimination

against Defendant VIU because Plaintiff has notprovided sufficient facts to plausibly allege that
the basis for her demotion was national origin and sex discrimination.

Under Title VII, a plaintiff establishes a prima facie case of discrimination by

showing that: (1) she is a member of a protected class; (2) adverse employment action; (3)

she was performing job duties at a level that met her employer's legitimate expectations at
the time of the adverse employment action; and (4) the job remained open or was filled by a

similarly qualified applicant outside of the plaintiffs class. Holland v. Washington Homes,
Inc., 487 F.3d 208,214 (4th Cir. 2007). However, in order to withstand a 12(b)(6) Motionto

Dismiss, a plaintiff does notneed to establish a prima facie case of discrimination, butfactual
allegations in the complaint must be enough to raise the right of reliefabove the speculative
level, and give the respondent fair notice of the basis for the discrimination claim.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514-15 (2002). For Plaintiffs Complaint to

prevail under Title VII, she must plausibly allege sufficient facts to establish that her
demotion was based on her sex and national origin. Id.

While Plaintiff alleges that

Defendants demoted her on the basis of her sex and national origin, she does not assert facts

to establish the plausibility of her allegations.

Plaintiff states in her Complaint that

Defendant Bahceci "consistently acted in a manner demonstrating disrespect for Arabs" and

demonstrated an "intolerance for women over the age of [thirty] and strong American women
in leadership positions." (Doc 1 at 5.) Plaintiff also alleges that that a more junior, less
educated individual assumed her position. (Doc 1 at 6.) However, the bare allegation that she
was demoted and a white male employee took her place does not plausibly allege national
origin or gender discrimination. McCleary-Evans v. Md. Dep't of Transp., State Highway
Admin., 780 F.3d 582, 585-86 (4th Cir. 2015), cert, denied, 136 S. Ct. 1162 (2016). Rather,

Plaintiff must provide more information about the comparator to state a plausible claim that
her alleged demotion was based on her national origin or her gender. See id. Absent such

support, allegations of discrimination do not rise above the level of speculation.

See

Coleman v. Md. Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (holding that a

complaint without sufficient factual support for conclusory discrimination allegations failed
to state a Title VII discrimination claim).
The Court finds that Plaintiffs claim for discrimination does not rise to the level of facial

plausibility because her Complaint does not state sufficient facts to support her allegation that
discrimination was the basis for her demotion. Accordingly, the Court GRANTS Defendants'
Motion to Dismiss Plaintiffs claim for discrimination on the basis of sex and national origin
(Count I).

2. PlaintiffFails to Plausibly Allege Title VII Retaliation ClaimAgainst Defendant VIU
The Court GRANTS Defendants' Motion to Dismiss Plaintiffs claim for retaliation

against Defendant VIU because Plaintiff has failed to plausibly allege a causal connection
between her protected activity and her demotion.

Similar to pleading discrimination claims, a plaintiff is not required to plead facts that
constitute a prima facie case for retaliation in order to survive a motion to dismiss. Ingleson v.

Burlington Medical Supplies, Inc., 141 F. Supp. 3d 579, 583-84 (E.D. Va. 2015). A plaintiff
"need only to allege facts sufficient to state a claim entitling her to relief." Id. at 584. Inorder to

prevail in a retaliation claim under Title VII atthe motion to dismiss stage, a plaintiff isrequired
to plead facts that plausibly show that: (1) she engaged in protected activity; (2) an adverse

employment action was taken against her; and (3) there was a causal link between the protected
activity and the employment action. Holland, 487 F.3d at218. Absent a causal relation between

protected activity and an adverse employment action, a plaintiff cannot establish a claim of
retaliation. See Smith v. First Union Nat'l Bank, 202 F.3d 234,249 (4th Cir. 2000) (holding that

a causal connection based on "information and belief alone is insufficient to support a claim of
retaliation).

Plaintiff alleges that VIU retaliated against her for complaining about the alleged
discriminatory work environment and filing a Complaint with the EEOC. (Doc. 1 at 23.)

Plaintiff generally alleges that after she complained about discrimination, she was demoted and
"threatened" by Human Resources that they supported her supervisor's decision to move her to a

full-time teaching position. Id. Although demotion can constitute an adverse employment
action, Plaintiff has not plausibly alleged that, but for her protected activity, she would have

retained her position as Director of School ofTest Preparation. See Univ. ofTexas Sw. Med.
Or. v. Nassar, 133 S. Ct. 2517, 2531-33 (2013); Holland v. Washington Homes, Inc., 487
F.3d 208, 218 (4th Cir. 2007).

Additionally, Plaintiffs EEOC's Charge, which was signed on October 3, 2016 indicates
the 'discrimination took place" on September 28, 2016 and her EEOC Intake Questionnaire

dated September 28, 2016 references her alleged demotion. (Doc. 1-1 at 3; 1-2 at 2.) Thus, it
appears that Plaintiff was advised ofher alleged demotion before she filed her EEOC Charge,

which may foreclose any causal connection between her alleged protected activity and her
alleged demotion.

Accordingly, the Court holds that Plaintiffs retaliation claims because Plaintiff fails to

plausibly allege that, but for her protected activity, she would have retained her position as
Director of School of Test Preparation. Thus, the Court GRANTS Defendants' Motion to
Dismiss Plaintiffs claim for retaliation (Count II).
C. Whistleblower Protection Claim

The Court GRANTS Defendants' Motion to Dismiss Plaintiffs claim for whistleblower

protection because Plaintiff fails to allege conduct or matters that could reasonably lead to a
viable False Claims Act (FCA) action. As a preliminary matter, Plaintiffhas not referenced any
whistleblower or anti-retaliation statute in her Complaint. Plaintiff has also failed to allege
sufficient facts to state a FCA claim.

The FCA discourages fraud against the federal government by imposing liability "on any

person who. . . knowingly presents, or causes to be presented, a false or fraudulent claim for

payment orapproval." 31 U.S.C. § 3729(a)(1)(A); see also Mann v. Heckler &Koch Def, Inc.,
630 F.3d 338, 345-46 (4th Cir. 2010). The whistleblower provision of the FCA prohibits
retaliation "because of lawful acts done... in furtherance of an action under this section or other

efforts to stop [one] or more violations of [the False Claims Act]." 31 U.S.C. § 3730(h).
In order to survive a motion to dismiss, a plaintiffbringing an anti-retaliation suit under

the FCA must plausibly allege: (1) she engaged in "protected activity" by acting in furtherance

of a qui tam action or other efforts to stop one or more violations of the FCA; (2) her employer
knew of these acts; and (3) her employer tookadverse action against her as a resultof these acts.

Carlson v. DynCorp Int'l, 657 F. App'x 168, 171 (4th Cir. 2016); Zahodnick v. Int'l Bus. Mack

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Corp, 135 F.3d 911, 914 (4th Cir. 1997); Young v. CHS Middle East L.L.C., No. l:13-cv000585-GBL-JFA, 2013 WL 4498680, at *6 (E.D. Va. Aug. 20,2013).

The Court finds that Plaintiff did not plead sufficient facts to plausibly suggest that she

engaged in a "protected activity." First, Plaintiff provides no evidence that she filed a FCA
claim. While an employee need not file a qui tarn FCA claim to engage in protected activity,
Plaintiff fails to allege sufficient facts to plausibly establish that she engaged in any other
protected activity. See Mann, 630 F.3d at 343.

Protected activity is defined as taking actions that were designed to "stop one or more
violations of the FCA." See Carlson, 657 F. App'x at 173. In 2010, Congress amended

§ 3730(h) ofthe FCA to cover not only employee action infurtherance ofa qui tarn suit, but also
"other efforts to stop one more violations of this subchapter." 31 U.S.C. § 3130(h). Thus, in
order for Plaintiffs conduct to constitute protected activity, she must have specifically alleged
fraudulent claims for federal funds and not merely address general misconduct. Young, 2013
WL 4498680, at *7.

While Plaintiff does make allegations of fraud and refers to this fraud throughout her

submitted documents, she fails allege sufficient facts, if taken as true, which would allow the
Court to infer that Defendant VIU submitted a false or fraudulent claim to the government. (See

Docs. 1, 14-2, 14-3.) As the FCA only covers fraudulent claims, without fraud there can be no
FCA action. Mann, 630 F.3d at 345-46 (stating thatif there is no fraud, the conduct falls outside

the scope ofthe FCA). Plaintiff is unable to sufficiently allege that VIU was engaging in fraud,
and she is unable to provide sufficient facts to support that she followed the statutory procedure

required to bring a FCA claim because she does not plausibly allege that she engaged in
protected activity.

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Assuming arguendo that Plaintiffs communications with individuals at Homeland

Security Investigations did, in fact, constitute a protected activity, Plaintiff would still fail to
satisfy the third required element of but-for causation between her demotion and the protected

activity. Based on the documents provided by Plaintiff, all ofher communications with agencies
regarding the fraudulent activity began inNovember 2016 but her alleged demotion occurred on
October 7, 2016. (See Docs. 14-1, 14-2.) Since her protected activity occurred after her
demotion, there is no causal connection between her actions and VIU's actions. Therefore, the
Courtfinds that Plaintiffis not entitled to whistleblower protection underthe FCA. Accordingly,
the Court GRANTS Defendants' Motion to Dismiss Plaintiffs whistleblower claim.
IV.

CONCLUSION

The Court GRANTS Defendants' Motion to Dismiss for all Title VII claims against the

Individual Defendants because they cannot be held liable for Title VII violations as they are not
"employers."

The Court GRANTS Defendants' Motion to Dismiss Plaintiffs Title VII discrimination

and retaliation claims against Defendant VIU because Plaintiff fails to plausibly allege sufficient

facts to support her claim that her demotion was on the basis ofher sex and national origin, and
that but for her protected activity, she would have retained her position as Director ofSchool of
Test Preparation.

The Court GRANTS Defendants' Motion to Dismiss Plaintiffs whistleblower claims

because Plaintiff fails to allege that she engaged in activity that is defined as "protected" under
the False Claims Act. Plaintiffalso fails to establish a causal connection between any protected

activity andher alleged demotion from herposition as Director.

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Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (Doc. 6)
is GRANTED.

IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her Complaint to

specifically allege facts relating only to her discrimination and retaliation claims. Plaintiff shall
file her Amended Complaint within twenty (20) days of the date of this Order. Defendant VIU
shall have fourteen (14) days to file a responsive pleading.
IT IS SO ORDERED.

ENTERED this />'day ofMarch, 2017.
Alexandria, Virginia

3////2017

___________/§/
Gerald Bruce Lee

United States District Judge

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