Farah v. West Virginia University Board of Governors
Filing
82
MEMORANDUM OPINION AND ORDER ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS granting in part and denying in part 25 Motion. (Copy mailed to Pro Se Plaintiff by CM/RRR). Signed by Chief District Judge Thomas S Kleeh on 3/26/2024. (mas) (Additional attachment(s) added on 3/26/2024: # 1 Certified Mail Return Receipt) (mas).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PAOLO FARAH,
Plaintiff,
v.
CIVIL NO. 1:22-CV-153
(KLEEH)
WEST VIRGINIA UNIVERSITY
BOARD OF GOVERNORS,
SAMUEL TAYLOR,
CODY STEWART,
JESSE RICHARDSON,
L. CHRISTOPHER PLEIN,
KAREN KUNZ, and
MAJA HOLMES,
Defendants.
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
Pending before the Court is a motion to strike and partial
motion to dismiss.
For the reasons discussed herein, the motion
to strike is GRANTED IN PART and DENIED IN PART, and the partial
motion to dismiss is GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
On March 3, 2023, the Plaintiff, Paolo Farah (“Plaintiff”),
filed his First Amended Civil Complaint for Equitable and Monetary
Relief and Demand for Jury Trial (the “Amended Complaint”) against
the Defendants, the West Virginia University Board of Governors
(“WVU”), Samuel Taylor (“Taylor”), Cody Stewart (“Stewart”), Jesse
Richardson (“Richardson”), Maja Holmes (“Holmes”), Karen Kunz
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
(“Kunz”), L. Christopher Plein (“Plein”), Corey Colyer (“Colyer”),
and Lisa DeFrank-Cole (“DeFrank-Cole”) (together, “Defendants”).
Plaintiff
brings
Defendants,
all
University.
employment
of
whom
discrimination
are
affiliated
with
claims
against
West
Virginia
Currently pending is Defendants’ Motion to Strike
Allegations and Partial Motion to Dismiss Amended Complaint [ECF
No. 25].
The motions are fully briefed and ripe for review.
Colyer and DeFrank-Cole were dismissed from the case on May 24,
2023 [ECF No. 36].
II.
FACTS
For purposes of analyzing the motion to dismiss, the Court
assumes
the
following
Complaint, to be true.
set
of
facts,
taken
from
the
Amended
Plaintiff is originally from Italy, is of
Italian national origin, and speaks with an Italian accent.
Compl., ECF No. 10, at ¶¶ 4, 9.
He is also Jewish.
Am.
Id. ¶ 4.
Taylor, Stewart, Richardson, Holmes, Plein, and Kunz are employees
of WVU.
Id. ¶ 6.
Plaintiff filed a charge of discrimination
against WVU on the basis of religion and national origin with the
Equal Employment Opportunity Commission (“EEOC”) on September 16,
2021.
Id. ¶ 7.
The charge was amended on February 14, 2022.
Id.
He received a Notice of the Right to Sue from the EEOC on September
12, 2022.
Id. ¶ 8.
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In or about January and February 2014, WVU offered Plaintiff
a position as an assistant professor within the Department of
Public
Administration,
starting
in
August
2014.
Id.
¶
10.
Plaintiff accepted the offer and, in doing so, signed two contracts
simultaneously: a position as a visiting assistant professor for
the 2014–2015 academic year, and a position as a tenure-track
assistant professor beginning in the 2015-2016 academic year.
¶¶ 10–11.
his
Id.
Plaintiff was told that he could request credit towards
tenure-track
position
assistant professor.
for
his
Id. ¶ 12.
first
year
as
a
visiting
When he accepted the offer at
WVU, Plaintiff declined a “higher academic position” at a different
university because WVU promised him more research time and a tenure
promotion on or about 2017.
Id. ¶ 13.
He was told that his
international experience would count toward his tenure track.
Id.
Plaintiff is the only non-American in the Department of Public
Administration.
Id. ¶ 14.
WVU hired Matthew Barnes (“Barnes”),
a male born in the United States, at the same time as Plaintiff,
even though Barnes had not completed his Ph.D., which was required.
Id.
Margaret Stout (“Stout”), another professor at WVU, told
Plaintiff that the Department of Public Administration preferred
Barnes to Plaintiff.
Id.
Beginning in 2014, the Department of
Public Administration invited Barnes to social events, meetings,
and gatherings, but did not invite Plaintiff.
3
Id. ¶ 15.
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MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
In or about February 2017, Holmes, the new department chair,
denied Plaintiff’s application for tenure.
Id. ¶ 16.
Holmes and
the Department Faculty Evaluation Committee (“FEC”) told Plaintiff
that his international experience did not count toward his tenure.
Id.
At the time, Plaintiff’s publications outnumbered those of
his four departmental colleagues combined.
Id. ¶ 17.
Plaintiff
filed a grievance about the denial of his tenure application and
ultimately resolved it via settlement.
Pursuant
to
the
Settlement
Id. ¶ 18.1
Agreement,
WVU
extended
Plaintiff’s critical year to apply for tenure to the 2019-2020
academic year.
See Settlement Agreement, ECF No. 30, at ¶ 3
(sealed). In exchange, Plaintiff withdrew his grievance and agreed
to waive and forever release WVU from any claims arising out of
his employment.
Id. ¶ 5.
around May 15, 2020.
WVU awarded Plaintiff tenure on or
Am. Compl., ECF No. 10, at ¶ 19.
In or around April 2021, Plaintiff complained to Holmes and
a dean at WVU about an instance when Holmes mocked his accent and
Defendants attached the Settlement Agreement and Release as a
sealed exhibit to their motion. As it is an authenticated document
integral to the allegations in the Amended Complaint, the Court
agrees with Defendants that it can be considered without converting
the motion into one for summary judgment. See Occupy Columbia v.
Haley, 738 F.3d 107, 116 (4th Cir. 2013); see also Price v. Equifax
Info. Servs., No. 5:19-CV-00886, 2020 WL 2514885, at *5 (S.D.W.
Va. May 15, 2020) (considering settlement agreement at motion to
dismiss stage).
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commented that Plaintiff had “miscommunicated” something.
¶ 20.
Id.
Plaintiff’s colleagues had also asked him the origins of
his last name, commenting that it did not sound Italian, and he
had informed them that he is Jewish.
Id. ¶ 21.
WVU employees
further criticized Plaintiff for taking time to visit his family
in Italy, while Stout, an American, would visit her family in
Arizona without criticism.
Id. ¶ 22.
The FEC rated Plaintiff’s performance as worse than his
American
and
non-Jewish
colleagues,
performance and accomplishments.
despite
Id. ¶ 23.
his
consistent
Kunz, Stout, Plein,
and Holmes sharply criticized his work and routinely removed his
contributions from department projects and tasks.
Id. ¶ 24.
In
or around February and March 2021, Plaintiff was a member of the
FEC with access to faculty files, annual reports, and records.
Id. ¶ 25.
He noticed a difference in his colleagues’ evaluations
and assessments for promotions as compared to his own.
Id.
On November 2, 2020, Stout told Plaintiff that the FEC “wanted
to make [him] hate being at WVU so much that [he] would want to
leave by [him]self.”
Id. ¶ 26.
WVU gave smaller salary increases
to Plaintiff than it did to similarly situated American-born
colleagues.
Id.
¶
27.
WVU
removed
him
from
departmental
communications and newsletters, giving the impression to readers
that he no longer worked at WVU.
Id. ¶ 28.
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WVU also limited Plaintiff’s ability to use paternity leave
or modify his duties to allow more time with his newborn children.
Id. ¶ 29.
His American colleagues, however, were permitted to
take parental leave.
Id.
Plaintiff was not informed of his
ability to, or was not allowed to, modify his work schedule to
grieve two miscarriages, despite the existence of a policy allowing
leave
for
“significant
personal
circumstances.”
Id.
¶
30.
American colleagues, however, were permitted to take advantage of
the policy.
Id.
In or about 2019, WVU’s Energy Institute sent Plaintiff an
email identifying a grant opportunity opened by the United States
Energy Association (“USEA”).
Id. ¶ 31.
The grant would initially
provide $450,000 in funding from the United States Department of
Energy.
Id.
Holmes advised Plaintiff to put together a proposal
for it because it was a “perfect” opportunity that fit Plaintiff’s
“expertise and research.”
Id. ¶ 32.
Plaintiff became the WVU
principal investigator on the grant.
Id. ¶ 33.
Holmes told
Plaintiff to speak with Taylor, the Assistant Director of the
Energy Institute and overseer of WVU’s grant approval process.
Id.
Taylor did not have his Ph.D. and was in an administrative,
as opposed to academic, position.
Id. ¶ 34.
Taylor advised
Plaintiff that the University of Wyoming (“UW”) was a partner in
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the grant and, strategically, it would be best if UW, not WVU,
took the lead on the project.
Id.
Taylor told Plaintiff to speak
to Tara Righetti (“Righetti”), a UW professor, to assist with the
grant proposal.
Id. ¶ 35.
Righetti invited Kris Koski (“Koski”),
another UW employee, to join the project. Id.
Taylor invited
Richardson, a professor at the WVU College of Law, to assist with
the grant proposal.
Plaintiff,
Id. ¶ 36.
along
with
Taylor,
Richardson,
Koski, submitted the grant application.
Righetti,
Id. ¶ 37.
and
In or around
January 2020, UW received confirmation that USEA approved the
application but requested several changes to the proposal.
Id.
When UW told Taylor that USEA had approved the application, Taylor
did not convey the message to Plaintiff until one or two weeks
after others at WVU learned of the approval.
Id. ¶ 38.
WVU’s
team began to work on the project without Plaintiff, and the team
excluded him from key communications and meetings even though he
was the principal investigator.
Id. ¶ 39.
Plaintiff alleges that
WVU disclosed confidential employee information to undercut his
role in the project while his tenure and promotion process was
ongoing.
Id. ¶ 62.
During
the
period
when
Plaintiff
was
excluded,
Taylor,
Richardson, and Righetti exchanged emails declaring that Plaintiff
was “missing in action” and unresponsive.
7
Id. ¶ 40.
Richardson
FARAH V. WVU
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called Plaintiff a “total jackass” in an email.
Id.
They
suggested that Plaintiff was lazy, that his work product was a
“mess” and “crap,” and that he was only participating in the
project for the money.
Id.
They also suggested that members of
the project give Plaintiff “some rope so he will hang himself.”
Id.
When the grant was approved, Taylor told Plaintiff that the
funding should go to Richardson instead of Plaintiff.
Id. ¶ 41.
Taylor pressured Plaintiff to accept this change by yelling at him
over the telephone. Id. Plaintiff told Taylor that neither Taylor
nor Richardson had the authority to shift the federally sourced
funding.
In
Id.
or
around
January
2020,
Taylor’s
assistant
advised
Plaintiff that Stewart and Taylor had shifted the funding to
Richardson.
Id. ¶ 42.
At that time, Taylor and Stewart had not
received permission from USEA to shift the funding.
Plaintiff
then
complained
to
Taylor,
and
Taylor
Id. ¶ 73.
submitted
a
“correction” that restored the funding to Plaintiff but removed
Plaintiff as WVU’s principal investigator.
Id. ¶ 42.
Taylor,
through Stewart, “demoted” Plaintiff to the role of investigator
and
“promoted”
investigator.
himself
to
Id. ¶¶ 42, 53.
the
role
of
de
facto
principal
WVU staff members held out to USEA
that they made these changes after securing permission.
8
Id. ¶ 72.
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Stewart claimed to Plaintiff that the WVU team believed it
had been a mistake to designate Plaintiff as the WVU principal
investigator.
Id. ¶ 43.
Stewart explained to Plaintiff that it
was necessary for Taylor to be principal investigator because the
USEA project involved multiple departments at WVU.
Id.
The “true
practice,” however, is for academics with substantive knowledge to
be named as principal investigator, and Taylor had no relevant
experience in any of the fields.
Id. ¶ 44.
acquire his Ph.D. until April 7, 2022.
or Italian.
Id.
Taylor would not
Taylor is not Jewish
Id. ¶ 45.
Plaintiff later learned that the USEA grant was the only
project at WVU with Taylor listed as the principal investigator or
WVU project director.
Id. ¶ 46.
Another professor confirmed to
Plaintiff that WVU usually only provided Taylor with limited
clerical work and management on research projects, and never the
role of principal investigator.
Id.
For the next four months,
the WVU team withheld from Plaintiff information relevant to the
completion of the project, excluded him from meetings with USEA,
and excluded him from communications concerning the handling of
the project.
Id. ¶ 47.
On or about April 23, 2020, Richardson called Holmes to inform
Holmes of Plaintiff’s removal from the project.
Id. ¶ 49.
Holmes
told Richardson that she had expected Plaintiff to fail and called
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him a “problem child in the department.”
Id.
Righetti told the
WVU team that they would need to do “damage control” regarding
Plaintiff’s release.
Id. ¶ 48.
level” calls to WVU officials.
Taylor promised to make “highId.
On or about April 24, 2020, Righetti sent Plaintiff a letter,
signed by her but substantially written by Richardson, advising
that the WVU team was removing Plaintiff from the USEA project
entirely.
Id.
¶
50.
In
the
correspondence,
the
WVU
team
criticized Plaintiff’s drafts but did not reference his American
coworkers’ drafts.
Id. ¶ 51.
The UW and WVU teams did not
criticize Richardson’s drafts even though Richardson admitted that
he plagiarized large portions of his drafts from another source
because he “could not summarize it better” than the original
author.
Id.
Righetti had previously communicated to Plaintiff
that his initial work was only meant to “set expectations,” and
that drafts were “only drafts.”
WVU
officially
named
Taylor
Id. ¶ 52.
the
WVU
In April 2020, UW and
principal
investigator,
formalizing what had been de facto true since January.
Id. ¶ 53.
Throughout January and April 2020, there is no indication
that WVU sought permission or authorization from USEA or the
Department of Energy to change the project’s budget allocations
and personnel, which is expected and required for research projects
with federally sourced funds.
Id. ¶ 54.
10
Plaintiff lost all the
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
federal funding he was set to receive for his department; it went
to Richardson and the WVU College of Law.
Id. ¶ 55.
additional renumeration, which went to Taylor.
He also lost
Id.
On February 1, 2023, the FEC denied Plaintiff’s promotion to
full professor, stating that he needed to meet the standards of
“extraordinary contributions” in three areas: teaching, research,
and service. Id. ¶ 56. The “normal” university standard, however,
is to show “significant contributions” in two areas and “reasonable
contribution” in one area.
Id.
Plein was promoted to full
professor with 7-10 publications in 13 years, but Plaintiff was
denied a promotion to full professor with 15-18 publications in 3
years.
Id.
The FEC also received 7 external reviewer letters
from R-1 universities, all unequivocally recommending Plaintiff’s
promotion to full professor, in comparison to Plein’s 4 letters or
Stout’s 5 letters, some of which are very negative.
Id.
Based on these facts, Plaintiff asserts that he has suffered
damages, and he brings the following causes of action:
(1)
Discrimination
Based
on
National
Origin/Race - Title VII of the Civil Rights
Act of 1964 (42 U.S.C. § 2000e-2 et seq.)
(against WVU);
(2)
Discrimination Based on Religion – Title VII
of the Civil Rights Act of 1964 (42 U.S.C.
§ 2000e-2 et seq.) (against WVU);
(3)
False Claims Act Retaliation (31 U.S.C.
§ 3730(h))
(against
Taylor,
Stewart,
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MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
Richardson,
Holmes,
Kunz,
Plein);
(4)
Race/National Origin Discrimination – Section
1981 of the Civil Rights Act of 1866 (42 U.S.C.
§ 1981 et seq. (against Taylor, Stewart,
Richardson, Holmes, Plein, Kunz); and
(5)
Religious Discrimination – Section 1981 of the
Civil Rights Act of 1866 (42 U.S.C. § 1981 et
seq.) (against Taylor, Stewart, Richardson,
Holmes, Plein, Kunz).
III. STANDARDS OF REVIEW
Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does not “state a claim upon which relief can be granted.”
In
ruling on a 12(b)(6) motion to dismiss, a court “must accept as
true all of the factual allegations contained in the complaint.”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007)
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
A court is
“not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
A court should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is plausible on its
face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plausibility exists “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
12
Ashcroft v.
FARAH V. WVU
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MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
Iqbal, 556 U.S. 662, 678 (2009).
A motion to dismiss “does not
resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.”
Martin,
980
appropriate
F.2d
only
942,
if
“it
952
(4th
appears
Republican Party of N.C. v.
Cir.
to
be
1992).
a
Dismissal
certainty
that
is
the
plaintiff would be entitled to no relief under any state of facts
which could be proven in support of its claim.”
Johnson v.
Mueller, 415 F.2d 354, 355 (4th Cir. 1969).
Rule 12(f)
Rule 12(f) of the Federal Rules of Civil Procedure provides
a district court with the authority to strike “an insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter.”
A motion to strike, however, is “generally viewed with
disfavor because striking a portion of a pleading is a drastic
remedy and because it is often sought by the movant simply as a
dilatory tactic.”
Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001) (citation and quotation marks omitted).
Material should be stricken when it “has no bearing on the subject
matter of the litigation” and “its inclusion will prejudice the
defendants.”
Jackson v. United States, No. 3:14-CV-15086, 2015 WL
5174238, at *1 (S.D.W. Va. Sept. 2, 2015).
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IV.
DISCUSSION
Pursuant to Rules 12(f) and 12(b)(6) of the Federal Rules of
Civil Procedure, Defendants move to strike certain allegations and
partially dismiss the Amended Complaint.
For the reasons below,
the motion to strike is granted in part and denied in part, and
the partial motion to dismiss is granted in part and denied in
part.
A.
Count Three - False Claims Act
The False Claims Act (“FSA”) “is designed to discourage
contractor fraud against the federal government.”
Corp., 710 F.3d 209, 213 (4th Cir. 2013).
Glynn v. EDO
It imposes civil
liability on any person who “‘knowingly presents, or causes to be
presented, [to the United States government] a false or fraudulent
claim for payment or approval’ or ‘knowingly makes, uses, or causes
to be made or used, a false record or statement to get a false or
fraudulent claim paid or approved by the Government.’”
United
States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370,
376 (4th Cir. 2008) (citing 31 U.S.C. § 3729(a)).
The FCA also
includes a whistleblower provision, which creates a cause of action
for
[a]ny
employee,
contractor,
or
agent . . . discharged, demoted, suspended,
threatened, harassed, or in any other manner
discriminated against in the terms and
conditions of employment because of lawful
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acts done by the employee, contractor, or
agent . . . in furtherance of an action under
this section or other efforts to stop 1 or
more violations of this subchapter.
31 U.S.C. § 3730(h)(1).
It is under this whistleblower provision
that Plaintiff asserts a claim against the individual defendants.
Defendants move to dismiss Count Three for a number of reasons,
initially arguing that any request for compensatory damages sought
by Plaintiff against them in their official capacities must be
dismissed because they are immune under the Eleventh Amendment to
the United States Constitution.
Upon review of the record, the Court finds that Count Three
is asserted against the individual defendants in their official
capacities.
In Paragraph 72, Plaintiff asserts that “WVU staff
and officials acting in their official capacity mishandled federal
funds . . . .”
is
suing
the
Further, in his Response, he writes,
Individuals
for
violation
provision in their official capacities.”
of
FCA’s
“Plaintiff
retaliation
ECF No. 32 at 18.
He
adds, “Indeed, all the Individuals are employees of WVU, and the
alleged
retaliation
employment.”
occurred
within
the
scope
of
their
Id.
The Eleventh Amendment provides, in pertinent part, “The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
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against one of the United States by Citizens of another State[.]”
“[A]bsent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in federal
Court.”
Kentucky v. Graham, 473 U.S. 159, 169 (1985).
“This
immunity applies to . . . state employees acting in their official
capacity.”
Harter v. Vernon, 101 F.3d 334, 337 (4th Cir. 1996).
“[A] suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against
the official’s office. . . .
As such, it is no different from a
suit against the State itself.”
Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989) (citations omitted).
“[A] general authorization for suit in federal court is not
the kind of unequivocal statutory language sufficient to abrogate
the Eleventh Amendment.”
Seminole Tribe of Fla. v. Fla., 517 U.S.
44, 56 (1996) (citation omitted).
Rather, “Congress may abrogate
the States’ constitutionally secured immunity from suit in federal
court only by making its intention unmistakably clear in the
language of the statute.” Id. (citation omitted). As acknowledged
by the Southern District of New York, “nothing in the amended text
of section 3730(h) or any other statutory text evidences an
unequivocal intent to waive sovereign immunity under the FCA.”
Aryai v. Forfeiture Support Assocs., 25 F. Supp. 3d 376, 384
(S.D.N.Y. 2012); see also United States v. Tex. Tech Univ., 171
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F.3d
279,
294–95
(5th
Cir.
1999)
(barring
Section
3730(h)
retaliation claim against Texas Tech University based on state
sovereign immunity).
The individual defendants are state employees, and Plaintiff
is suing them in their official capacities.
Because there is no
clear abrogation of the Eleventh Amendment, they are entitled to
immunity.
The Court, therefore, GRANTS the motion to dismiss in
this respect and DISMISSES Count Three in its entirety.
B.
Counts Four and Five - 42 U.S.C. § 1981
Under
42
U.S.C.
§
1981,
Plaintiff
asserts
a
claim
of
race/national origin discrimination in Count Four and religious
discrimination in Count Five.
Defendants move to dismiss both
counts because Plaintiff has not alleged the existence of a
contract.
They also move to dismiss Count Four because Section
1981 does not provide protection for discrimination based on
national origin and because Plaintiff fails to state a claim of
race discrimination.
because
Section
Finally, they move to dismiss Count Five
1981
does
not
provide
protection
for
discrimination based on religion.
Under 42 U.S.C. § 1981, all persons are protected “from racial
discrimination in making and enforcing contracts.”
Woods v. City
of Greensboro, 855 F.3d 639, 645 (4th Cir. 2017) (citing 42 U.S.C.
§ 1981).
The statute ensures that “[a]ll persons . . . shall have
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the same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens.”
42 U.S.C. § 1981.
“To state a Section
1981 claim, a plaintiff must allege ‘both that the defendant
intended to discriminate on the basis of race, and that the
discrimination interfered with a contractual interest.’”
Roy v.
Int’l Ass’n of Sheet Metal, Air, Rail, & Transp. Workers Loc. Union
No. 33, No. 2:19-CV-00698, 2020 WL 5665794, at *3 (S.D.W. Va. Sept.
23, 2020) (quoting Denny v. Elizabeth Arden Salons, Inc., 456 F.3d
427, 434 (4th Cir. 2006)).
“Where a fellow employee intentionally interferes with the
right of a coworker to make or enforce a contract with the employer
and that interference is based on illegal discrimination, the
employee’s conduct is actionable under § 1981.”
Collin v. Rector
& Bd. of Visitors of Univ. of Va., 873 F. Supp. 1008, 1015 (W.D.
Va. 1995) (citing Kolb v. Ohio Dep’t of Mental Retardation &
Development Disabilities, 721 F. Supp. 885, 891–92 (N.D. Ohio
1989), and Tillman v. Wheaton–Haven, 517 F.2d 1141, 1146 (4th Cir.
1975)).
Here, first, the Court notes that Plaintiff does not specify
whether Counts Four and Five are brought against the individual
defendants in their individual or official capacities.
The Court
finds that the individual defendants are entitled to immunity to
the extent that they are sued in their official capacities.
18
See
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
Thompson v. Admin. Off. of the Supreme Ct. of Appeals of W. Va.,
No. 2:02-0353, 2004 WL 3266044, at *7 (S.D.W. Va. Dec. 6, 2004),
aff’d, Thompson v. W. Va. Supreme Ct. of Appeals, 122 F. App’x
643, at *1 (4th Cir. Mar. 4, 2005) (unpublished) (affirming
decision granting Eleventh Amendment immunity with respect to
Section 1981 claim).2
Finding no abrogation of the Eleventh Amendment with respect
to Section 1981, the motion to dismiss is GRANTED in this respect,
and Counts Four and Five are DISMISSED against the individual
defendants (Taylor, Stewart, Richardson, Plein, Kunz, and Holmes)
to the extent they are sued in their official capacities.
Counts
Four and Five are additionally dismissed for the reasons discussed
herein.
1.
Count Five fails because 42 U.S.C. § 1981 does not afford
protection for discrimination based on religion.
Dismissal of Count Five is appropriate because Section 1981
does
not
religion.
provide
protection
against
discrimination
based
on
See Lubavitch-Chabad of Ill., Inc. v. Nw. Univ., 772
F.3d 443, 447 (7th Cir. 2014) (affirming dismissal of Section 1981
“Many courts have held that there is no abrogation of the Eleventh
Amendment with respect to Section 1981.” Carmen v. San Francisco
Unified Sch. Dist., 982 F. Supp. 1396, 1403 (N.D. Cal. 1997)
(citing Freeman v. Mich. Dep’t of State, 808 F.2d 1174 (6th Cir.
1987); Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179 (7th Cir.
1982); Sessions v. Rusk State Hosp., 648 F.2d 1066 (5th Cir.
1981)).
2
19
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
claim based on Jewish religion as opposed to discrimination against
ethnic Jews).
Plaintiff has specifically pled Count Five as one
of “religious discrimination” based on his being Jewish.
Compl., ECF No. 10, at ¶¶ 84–87.
Am.
Accordingly, Count Five is
DISMISSED.
2.
To the extent that Plaintiff asserts discrimination
based on his national origin, Count Four fails because
42 U.S.C. § 1981 does not afford protection for
discrimination based on national origin.
Dismissal of Count Four is appropriate to the extent that
Plaintiff alleges discrimination based on his Italian national
origin.
While
Section
1981
provides
protection
from
discrimination based on race, it does not provide protection from
discrimination based on national origin.
See Nnadozie v. Genesis
Healthcare Corp., 730 F. App’x 151, 157 (4th Cir. 2018) (affirming
dismissal of 1981 claim based purely on national origin).
The
concept of “race” as it relates to Section 1981 is “much broader
than our modern understanding of the term” and extends to “ancestry
or ethnic characteristics,” but it does not afford protection from
discrimination based on national origin.
Id. at 156–57.
In Count Four, Plaintiff’s claim of discrimination is, at
least in part, based on his Italian national origin.
See Am.
Compl., ECF No. 10, at ¶¶ 79–82 (stating that Plaintiff “is of
Italian
national
origin”
and
alleging
20
that
the
individual
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
defendants “took . . . actions against [Plaintiff] based, in whole
or in part, on [his] national origin”).
Plaintiff’s status as an
Italian is different from his race or ethnicity.
that
he
alleges
discrimination
under
Section
To the extent
1981
for
being
Italian, his claim is DISMISSED.
3.
To the extent that Count Four is a claim of racial
discrimination as an ethnic Jew, he has failed to state
a claim under Section 1981.
The
only
conceivable
remaining
basis
Plaintiff’s status, if any, as an ethnic Jew.
for
Count
Four
is
To the extent that
Count Four is based his status as an ethnic Jew, it also fails.
The Fourth Circuit recently described the elements of a prima
facie case of race discrimination under Section 1981:
When addressing race-discrimination claims
under Section 1981, courts apply the burdenshifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973).
First, the
plaintiff must establish a prima facie case
for race discrimination by showing “(1)
membership
in
a
protected
class;
(2)
satisfactory job performance; (3) adverse
employment action; and (4) different treatment
from similarly situated employees outside the
protected class.” Coleman v. Md. Ct. of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010)
(citation omitted), aff’d, 566 U.S. 30, 132
S.Ct. 1327, 182 L.Ed.2d 296 (2012).
Giles v. Nat’l R.R. Passenger Corp., 59 F.4th 696, 703–04 (4th
Cir. 2023).
In a Section 1981 action, “a plaintiff must initially
plead and ultimately prove that, but for race, it would not have
21
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
suffered the loss of a legally protected right.”
Comcast Corp. v.
Nat’l Assoc. of African American-Owned Media, 140 S. Ct. 1009,
1019 (2020).
Here, after a thorough review of the Amended Complaint, the
Court finds that it does not sufficiently allege that but for his
status as an ethnic Jew, Plaintiff would not have suffered the
loss of a legally protected right.
He has not asserted any
discrimination based on a “specific ethnic characteristic that
might
reasonably
fall
under
a
broad
understanding
of
race.”
Nnadozie, 730 F. App’x at 156 (internal quotation marks omitted).
For these reasons, Count Four is DISMISSED in its entirety.
C.
Counts One and Two – Title VII of the Civil Rights Act
Counts One and Two of the Amended Complaint assert claims
against WVU under Title VII of the Civil Rights Act of 1964 (“Title
VII”).
Defendants argue that portions of the Title VII claims
must be dismissed and stricken from the Amended Complaint as
waived, time barred, or imperfected.3
In Defendants’ Reply, they ask the Court to strike additional
factual allegations (e.g., Barnes being invited to social events
when Plaintiff was not), but the Court will address only those
included in the motion.
3
22
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
1.
WVU’s denial of Plaintiff’s application for tenure in
2017 is stricken because it has no bearing on the
subject matter and will prejudice Defendants.
The Amended Complaint alleges that WVU denied Plaintiff’s
application for tenure in 2017.
Am. Compl., ECF No. 10, at ¶ 16.
Plaintiff further alleges that he filed a grievance in response to
his denial of tenure and later resolved the grievance with WVU via
settlement.
Id. ¶ 18.
WVU argues that, to the extent Plaintiff
relies on these allegations to support his Title VII claims, they
are expressly waived by the terms of the Settlement Agreement.
See Motion, Exh. A, ECF No. 30, at ¶ 5 (sealed); see also Campbell
v.
Geren,
353
F.
App’x
879,
882
(4th
Cir.
2009)
(affirming
dismissal of claims contemplated by prior settlement agreement).
Plaintiff states in his response that this information was merely
included as background and is not an adverse action for which he
seeks relief.
The Court agrees with Defendants that this allegation is
expressly waived by the Settlement Agreement.
Recognizing that
Plaintiff does not intend to offer the 2017 tenure denial as
evidence, it should additionally be stricken from the Amended
Complaint because it has no bearing on the subject matter and will
prejudice Defendants.
The Court hereby STRIKES these allegations
from the Amended Complaint.
Plaintiff may not rely on the denial
23
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
of his promotion to tenure in 2017 to support his claims in Counts
One and Two.
2.
Plaintiff’s allegations predating November 20, 2020,
are time-barred.
Title
VII
“precludes
recovery
for
discrete
acts
of
discrimination or retaliation that occur outside the [300-day]
statutory time period” for filing charges of discrimination with
the EEOC.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
105 (2002).
Plaintiff filed his initial charge with the EEOC on
September 16, 2021.
Am. Compl., ECF No. 10, at ¶ 7.
Defendants
argue that any events that allegedly occurred prior to November
20, 2020, are time-barred.
Plaintiff has argued that he is
entitled to equitable tolling or equitable estoppel with respect
to some of the allegations.
“The circumstances under which equitable tolling has been
permitted are . . . quite narrow.”
Chao v. Va. Dep’t of Transp.,
291 F.3d 276, 283 (4th Cir. 2002).
“Equitable tolling applies
where the defendant has wrongfully deceived or misled the plaintiff
in order to conceal the existence of a cause of action.”
v.
Pabst
“Equitable
Brewing
Co.,
estoppel
828
applies
F.2d
1047,
where,
1049
despite
(4th
the
Cir.
English
1987).
plaintiff’s
knowledge of the facts, the defendant engages in intentional
24
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
misconduct to cause the plaintiff to miss the filing deadline.”
Id.
The allegations that Defendants argue are time-barred include
Plaintiff’s “demotion” from principal investigator for WVU and
removal from the USEA grant project between January and April 2020;
the alleged statement that the FEC “wanted to make [Plaintiff]
hate being at WVU so much that [he] would want to leave” made on
November 2, 2020; WVU’s disclosure of confidential employment
information to undercut Plaintiff’s role in the grant project; and
WVU’s alleged failure to provide parental leave to Plaintiff in
2018.
Plaintiff states that he is not relying on the FEC comment
or the parental leave issue to support his claims in Counts One
and Two.
Plaintiff has not made a sufficient showing to warrant the
application of equitable tolling or equitable estoppel.
Nothing
in the record indicates that WVU wrongfully deceived or misled him
in order to conceal the existence of a cause of action.
Nothing
indicates that WVU engaged in intentional misconduct to cause him
to miss a filing deadline. Because equitable tolling and equitable
estoppel do not apply, the Court agrees with Defendants that the
listed
allegations
are
time-barred.
Accordingly,
they
are
STRICKEN from the Amended Complaint because they have no bearing
on the subject matter and will prejudice Defendants.
25
Plaintiffs
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
may not rely upon these allegations to support his claims in Counts
One and Two.
3.
The Court denies the motion to strike Plaintiff’s
allegation that the FEC denied his promotion to full
professor in 2023.
Plaintiff alleges that the FEC denied his promotion to full
professor in February 2023.
Am. Compl., ECF No. 10, at ¶ 56.
Defendants originally argued that this allegation was premature
because
no
decision
had
been
application for promotion.
made
regarding
Plaintiff’s
Now, Defendants argue that the issue
is moot because Plaintiff has, in fact, been promoted to full
professor.
Even if Plaintiff had been denied this promotion, they
argue, he cannot proceed on this claim because he has not exhausted
his administrative remedies.
At this stage of the litigation, the Court disagrees with
Defendants that the issue is moot.
Plaintiff could have been
harmed by WVU’s failure to promote him in February 2023 (assuming,
at this stage, that the facts in the Amended Complaint are true)
even if he was ultimately awarded the promotion later.
the
Court
disagrees
with
Defendants’
position
that
Further,
Plaintiff
cannot proceed with this allegation due to his failure to exhaust.
Prior to filing a Title VII action, a plaintiff must first
exhaust any available administrative remedies.
Lewis v. City of
Chicago, 560 U.S. 205, 210 (2010); 42 U.S.C. § 2000e-5(e)(1). “The
26
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
exhaustion requirement ensures that the employer is put on notice
of the alleged violations so that the matter can be resolved out
of court if possible.”
(4th
Cir.
2005).
complementary
Miles v. Dell, Inc., 429 F.3d 480, 491
Administrative
goals
of
“protecting
exhaustion
agency
advances
authority
in
the
the
administrative process and promoting efficiency in the resolution
of claims.”
Stewart v. Iancu, 912 F.3d 693, 699 (4th Cir. 2019)
(citations, internal quotation marks, and alterations omitted).
“[W]hen the claims in [the] court complaint are broader than ‘the
allegation of a discrete act or acts in [the] administrative
charge,’ they are procedurally barred.” Parker v. Reema Consulting
Servs., Inc., 915 F.3d 297, 306 (4th Cir. 2019) (citing Chacko v.
Patuxent Inst., 429 F.3d 505, 508–10 (4th Cir. 2005)).
That said, an EEOC charge “does not strictly limit a Title
VII suit which may follow; rather, the scope of the civil action
is confined only by the scope of the administrative investigation
that
can
reasonably
discrimination.”
be
expected
to
follow
the
charge
of
Miles, 429 F.3d at 491 (citation omitted).
Federal courts may hear claims that were not presented to the EEOC
so long as they are “reasonably related to [the] EEOC charge and
can
be
expected
investigation[.]”
to
follow
from
a
reasonable
administrative
Sydnor v. Fairfax Cnty., 681 F.3d 591, 594 (4th
Cir. 2012) (citation omitted).
27
FARAH V. WVU
1:22-CV-153
MEMORANDUM OPINION AND ORDER
ADDRESSING MOTION TO STRIKE AND PARTIAL MOTION TO DISMISS
Here, the Court finds that an allegation of a promotion denial
in 2023 is reasonably related to Plaintiff’s EEOC charge. It would
have been expected to follow from a reasonable administrative
investigation into Plaintiff’s allegations.
Accordingly, the
Court does not believe it appropriate to strike the allegation at
this time, and Defendants’ motion to strike is DENIED in this
respect.
V.
CONCLUSION
For the reasons discussed, Defendants’ motion to strike is
GRANTED IN PART and DENIED IN PART [ECF No. 25].
Defendants’
partial motion to dismiss is GRANTED IN PART and DENIED IN PART
[ECF No. 25].
It is so ORDERED.
The Clerk is DIRECTED to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: March 26, 2024
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
28
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