Singh v. Nerhood et al
Filing
19
MEMORANDUM OPINION AND ORDER granting in part and denying in part 13 MOTION to Dismiss; the motion is granted as to Counts II, III, IV and V; as to Counts I, VI and VII, the motion is denied. Signed by Judge Thomas E. Johnston on 9/26/2012. (cc: attys; any unrepresented party) (dcm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SHAILINI SINGH,
Plaintiff,
v.
CIVIL ACTION NO. 3:11-cv-00701
ROBERT C. NERHOOD, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim [Docket 13]. For the reasons that follow, Defendants’
motion to dismiss is GRANTED in part and DENIED in part.
I.
FACTUAL BACKGROUND
This action arises out of the termination of Plaintiff Shailini Singh’s employment with the
Marshall University School of Medicine (“School of Medicine”). Plaintiff alleges not only that
her termination was unlawful and motivated by discriminatory purposes, but also that
Defendants engaged in tortious conduct in an effort to drive her from the Huntington, West
Virginia medical community.
Plaintiff is a citizen of the State of New York. (Docket 1 ¶ 1.) Plaintiff alleges that
Defendants Robert C. Nerhood, David G. Chaffin, Jr., David C. Jude, and Charles H. McKown,
Jr. (collectively “Defendants”) are citizens of a state other than New York.1 (Id.) At the time of
1
Plaintiff relies on 28 U.S.C. § 1332 as the basis for this Court’s subject matter jurisdiction. This statutory
provision grants federal courts jurisdiction in civil actions between citizens of different states where the matter in
controversy exceeds the sum of $75,000, exclusive of interest and costs. Plaintiff’s failure to allege Defendants’
1
her employment, Defendants were Plaintiff’s professional colleagues at the School of Medicine.
At that time, Defendant McKown was the Dean of the School of Medicine. (Id. ¶ 7.) Defendant
Nerhood was the Chairman of the Department of Obstetrics and Gynecology and Plaintiff’s
immediate supervisor. (Id. ¶ 4.) Defendant Jude replaced Defendant Nerhood in this position in
approximately August 2010. (Id. ¶ 6.) Defendant Chaffin was employed at the School of
Medicine in a professorial capacity similar to Plaintiff’s. (Id. ¶ 5.) He was also the Director of
the Department of Maternal Fetal Medicine. (Id.)
The following recitation of facts and allegations are drawn from Plaintiff’s Complaint.
For the purpose of Defendants’ Rule 12(b)(6) motion to dismiss, they are regarded as true. At
the time of the allegations giving rise to the Complaint, Plaintiff was employed as a Professor of
Obstetrics and Gynecology and Maternal Fetal Medicine at the School of Medicine. (Id. ¶ 2.)
Plaintiff was the only Board Certified physician in her sub-specialty at the School of Medicine.
(Id.)
She was employed at the School of Medicine both as a professor of medicine and as a
clinician. (Id. at ¶ 2.) In this capacity, she provided ongoing care and treatment to her patients at
Cabell Huntington Hospital. (Id. ¶ 9.) Plaintiff established an accredited Perinatal Center at this
hospital during her tenure. She was also engaged in medical research. (Id. ¶ 10.)
Plaintiff’s Complaint alleges a history of animosity between Plaintiff and her colleagues.
In October 2009, Defendants Nerhood and Chaffin circulated a memorandum to Plaintiff
citizenship with specificity gives the Court reason for pause, as negative jurisdictional allegations often fail to
establish diversity of citizenship. See 13E Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed.
Practice and Proc. § 3611 (3d ed. 2012) (“[A] negative statement that a party is not a citizen of a particular state [is
generally not] sufficient, since this type of averment does not eliminate the possibility that the person might be a
citizen of no state of the United States or other political entity.”).
The Court finds these jurisdictional allegations, sparse as they are, sufficiently establish complete diversity
among the parties. By averring that Defendants are citizens of states other than New York, Plaintiff “negate[s] the
possibility that diversity does not exist.” Contreras v. Thor Norfolk Hotel, L.L.C., 292 F. Supp.2d 794, 797 (E.D.
Va. 2003) (quoting Baer v. United Services Auto Ass’n, 503 F.2d 393, 397 (2d Cir. 1974)); see Ellenburg v. Spartan
Motors Chassis, Inc., 519 F.3d 192, 199 (4th Cir. 2008) (finding a notice of removal sufficiently averred diversity of
citizenship where it alleged that the plaintiff was a citizen of South Carolina and the defendant companies were
incorporated and had their principal places of business in states other than South Carolina).
2
indicating that it was the “policy of the Department of Obstetrics and Gynecology . . . that patient
care was secondary to the education of medical students.” (Id. ¶ 15A.) Plaintiff took issue with
this policy, as she interpreted it to require her to sacrifice the health and wellbeing of her patients
for the educational benefit of her students. (Id. ¶ 15C.) She voiced her concerns to Defendant
Nerhood on numerous occasions. (Id.)
Another source of contention was the reorganization of the Maternal Fetal Medicine
Department. While Plaintiff’s Perinatal Center had become quite profitable, the areas of the
Department under the control of Defendant Chaffin were much less so. (Id. ¶ 13E.) Defendants
Nerhood and Chaffin sought to remedy this situation. (Id. ¶ 13G.) Defendant Chaffin, who
Plaintiff alleges did not share her qualifications, was given shared responsibility over all of
Plaintiff’s patients. (Id.) Previously, each physician had been individually responsible for the
care and treatment of his or her patients. (Id.) Because Plaintiff believed this reorganization
would be detrimental to her patients, she proposed a variety of alternatives which she felt would
provide higher quality of care.
(Id. ¶ 13H.)
Plaintiff claims her suggestions were not
considered. (Id. ¶ 13L.)
On June 26, 2010, Defendant Nerhood notified Plaintiff that her employment had been
terminated. (Id. ¶ 11.) She had no prior notice of this termination, and was instructed to leave
the premises of Cabell Huntington Hospital immediately—even though she had patients waiting
on hand for treatment. (Id.) Defendant McKown allegedly ratified the termination. (Id. ¶ 13O.)
Immediately after her termination, Plaintiff was denied access to her research data that
was stored at the School of Medicine. (Id. ¶ 28.) She soon entered into discussions with Cabell
Huntington Hospital about securing employment there.
(Id. ¶ 32.)
She received a draft
employment contract from the hospital, indicating that her employment would commence on
September 1, 2010. (Id. ¶ 34.) Defendants Jude and Chaffin, with the alleged approval of
3
Defendant McKown, objected to this prospective employment relationship and so informed the
hospital’s Chief Executive Officer. (Id. ¶ 35.) Plaintiff was informed by the hospital’s CEO that
Defendants threatened that the relationship between the hospital and the School of Medicine
would be negatively impacted if it hired Plaintiff. (Id.)
II.
PROCEDURAL BACKGROUND
The following procedural history is not drawn exclusively from the Complaint. In part, it
is evidence that has been provided to the Court in support of Defendants’ motion to dismiss. The
Court reviews this evidence to evaluate the existence of its subject-matter jurisdiction.
Immediately following her termination, Plaintiff filed a Level One Grievance with the
West Virginia Public Employees Grievance Board (“Grievance Board”).
(Docket 13-1.)
Plaintiff alleged her termination had been motivated by discriminatory purposes based on gender
and national origin. (Id.) On July 20, 2010, the Grievance Evaluator issued a Report noting that
the Level One conference between Plaintiff and the School of Medicine had been adjourned
without resolution. (Id.)
Plaintiff, through counsel, proceeded to file a Level Two grievance with the Grievance
Board on July 28, 2010. (Id.) The Level Two mediation was unsuccessful. By Order, the
Administrative Law Judge informed Plaintiff of her right to request a Level Three hearing on her
grievance within 10 days. (Id.) Plaintiff did not request a Level Three grievance hearing. (See
Docket 17 at 12-13.)
Plaintiff instituted this action on October 5, 2011, invoking the court’s diversity
jurisdiction. Plaintiff alleges seven specific counts, each incorporating by reference all preceding
allegations. Count I asserts a claim for violation of the West Virginia Human Rights Act. Count
II is a claim for retaliatory discharge in violation of a substantial public policy. Counts III and IV
assert claims for wrongful termination and outrage. Count V is a claim for conversion, asserting
4
Defendants unlawfully retained Plaintiff’s intellectual property after her termination. Count VI
alleges intentional interference with a preliminary contract of employment Plaintiff had entered
into with Cabell Huntington Hospital after her discharge from the School of Medicine. Finally,
Count VII alleges civil conspiracy.
Plaintiff seeks judgment against Defendants for no less than $1,000,000 in compensatory
and punitive damages.
On December 5, 2011, Defendants moved to dismiss pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. As to their motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), Defendants put forth three arguments. First,
Defendants contend Plaintiff failed to comply with a jurisdictional prerequisite to the filing of
her Complaint—the pre-suit notice requirements set forth in West Virginia Code § 55-17-3(a)(1).
Second, Defendants assert Plaintiff has failed to exhaust available administrative remedies prior
to filing this action and accordingly, the Court lacks subject-matter jurisdiction over Plaintiff’s
claims. Third, Defendants argue the Eleventh Amendment bars Plaintiff’s suit.
To the extent the Court is not persuaded by their Eleventh Amendment argument,
Defendants move to dismiss based on an assertion of qualified immunity and pursuant to Rule
12(b)(6). Defendants also move to dismiss Count VII of the Complaint, alleging Plaintiff fails to
state a claim for civil conspiracy.
III.
A.
STANDARDS OF REVIEW
Subject Matter Jurisdiction
A Rule 12(b)(1) motion to dismiss challenges the federal court’s subject matter
jurisdiction over the underlying action. The burden of proving subject matter jurisdiction is on
the party asserting federal jurisdiction. When a movant attacks “the existence of subject matter
jurisdiction in fact,” no presumptive truthfulness attaches to the plaintiff’s allegations. Mortensen
5
v. First Fed. Sav. And Loan Ass’n, 549 F.2d 884, 891 (3d. Cir. 1977); Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982). Instead, the court should “regard the pleadings as mere evidence on
the issue, and may consider evidence outside the pleadings without converting the proceeding to
one for summary judgment.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)
(citing Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991)). Further, “the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of the jurisdictional claims.” Bohrer v. City Hosp, Inc., 681
F. Supp.2d 657, 664 (N.D. W. Va. 2010) (quoting Mortensen, 549 F.2d at 891). The trial court
will “weigh the evidence to determine whether it has subject matter jurisdiction.” Dupont v.
United States, 980 F.Supp. 192, 194 (S.D. W. Va. 1997) (citing Adams, 697 F.2d at 1219).
B.
Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” A Rule 12(b)(6)
motion to dismiss
tests the sufficiency of the complaint and “does not resolve contests
surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While Rule 8 does not require “detailed
factual allegations,” a plaintiff must still provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citation
omitted). When reviewing a Rule 12(b)(6) motion to dismiss, the trial court must accept as true
the factual allegations in the complaint and “construe the facts and reasonable inferences derived
6
therefrom in the light most favorable to the plaintiff.” Ibara v. United States, 120 F.3d 472, 474
(4th Cir. 1997) (citation omitted).
IV.
DISCUSSION
Inasmuch as Defendants’ Rule 12(b)(1) motion to dismiss alleges that the Court lacks
subject matter jurisdiction over the pending action, the Court addresses this motion and the
arguments in support of it first.
A.
Rule 12(b)(1) Motion to Dismiss
i.
Pre-Suit Notification
Defendants assert that this action must be dismissed because Plaintiff failed to provide
requisite pre-suit notice as required by West Virginia Code § 55-17-3(a)(1). In certain actions
against a “governmental agency” of the State of West Virginia, this provision requires the
complaining party to provide the agency’s chief officer and the Attorney General written notice
of the alleged claim thirty days prior to filing. West Virginia Code § 55-17-3(a)(1). Defendants
contend that as agents of the State of West Virginia, they were entitled to notice under this Code
provision. Defendants further suggest that because Plaintiff failed to give the pre-suit notice as
called for by this statute, this Court lacks subject-matter jurisdiction over her claims. Plaintiff
does not dispute the fact that she did not give notice before filing her lawsuit, but claims the
statute is inapplicable because Defendants were not governmental officers as defined by the
statute. This Court agrees that the provision has no applicability here, but on different grounds.
West Virginia Code § 55-17-2(1) defines “action” as “a proceeding instituted against a
governmental agency in a circuit court or in the supreme court of appeals[.]” Because Plaintiff
initiated the pending action in federal court, the pre-suit notice requirement is simply
inapplicable. See also D.W. v. Walker, No. 2:09-cv-60, 2009 U.S. Dist. LEXIS 42115, *7-8 (S.D.
7
W. Va. May 15, 2009).
Also instructive is West Virginia Code § 55-17-2(2), which defines
“government agency” in pertinent part as “a constitutional officer or other public official named
as a defendant or respondent in his or her official capacity[.]” Because, as discussed below, the
Court construes this action to be against Defendants in their individual capacities, the pre-suit
notice statute is also inapplicable on these grounds. For these reasons, Defendants’ motion to
dismiss for failure to provide pre-suit notice is DENIED.
ii.
Exhaustion of Administrative Remedies
Defendants next contend that Plaintiff’s failure to exhaust her administrative remedies as
provided under the West Virginia Public Employees Grievance Procedure (“PEGP”) should
result in dismissal for lack of subject matter jurisdiction. Defendants argue that Plaintiff’s entire
Complaint, including her West Virginia Human Rights Act claims, was subject to this
administrative process, and Plaintiff’s failure to take full advantage of the relief available
through this process forecloses her pursuit of relief in this Court.
The West Virginia Code identifies the PEGP as the exclusive mechanism by which the
Marshall University School of Medicine shall hear prospective employee grievances and appeals.
W. Va. Code § 18B-2A-4(l) (citing W. Va. Code § 6C-2-1 et seq.). The PEGP is a statutorily
created administrative system put in place to aid the resolution of employment grievances raised
by public employees of the State of West Virginia. W. Va. Code § 6C-2-1(a). The procedure
within this administrative system consists of three levels.
W. Va. Code § 6C-2-4.
After
unsuccessful resolution at each preceding level, the employee may request to proceed to the next
level of review. At Level One, the aggrieved employee is eligible for a hearing or conference.
Id. at § 6C-2-4(a).
Level Two requires the employee and her employer to participate in
alternative dispute resolution. Id. at § 6C-2-4(b). Finally, Level Three provides for a hearing
8
before an administrative law judge (“ALJ”). Id. at § 6C-2-4(c). The decision of the ALJ at the
Level Three hearing is appealable to the Kanawha County Circuit Court. Id. at § 6C-2-5(b).
In addressing Defendants’ motion to dismiss, the Court recognizes that
[W]hen the legislature provides for an administrative agency to regulate some
particular field of endeavor, the courts are without jurisdiction to grant relief to
any litigant complaining of any act done . . . if such act . . . is within the rules and
regulations of the administrative agency involved until such time as the
complaining party has exhausted such remedies before the administrative body.
Bank of Wheeling v. Morris Plan Bank & Trust Co., 183 S.E.2d 692, 695 (W.Va. 1971) (citations
omitted).
Thus, the Court first addresses which of Plaintiff’s present claims, if any, are within the
scope of grievances properly addressed to the PEGP.
The West Virginia Code defines “grievance” for purposes of the PEGP as follows:
(i)(1) “Grievance” means a claim by an employee alleging a violation, a
misapplication or a misinterpretation of the statutes, policies, rules or written
agreements applicable to the employee including:
(i) Any violation, misapplication or misinterpretation regarding compensation,
hours, terms and conditions of employment, employment status or discrimination;
(ii) Any discriminatory or otherwise aggrieved application of unwritten policies or
practices of his or her employer;
(iii) Any specifically identified incident of harassment;
(iv) Any specifically identified incident of favoritism; or
(v) Any action, policy or practice constituting a substantial detriment to or
interference with the effective job performance of the employee or the health and
safety of the employee.
W. Va. Code § 6C-2-2(i).
This definition of “grievance” easily encompasses Counts II through V of Plaintiff’s
Complaint. Counts II, III, and IV identify specific instances of unlawful conduct that Plaintiff
alleges motivated the decision to terminate her employment. Though the acts giving rise to
Count V took place after the termination of Plaintiff’s employment, these alleged acts of
conversion are also within the purview of the Grievance Board. Certainly, the extent and scope
9
of Plaintiff’s rights to her intellectual property she developed through the course of her tenure
with the School of Medicine was a term or condition of her employment.
The Court does not interpret the definition of grievance to include Count VI for
interference with contract. As alleged, Plaintiff independently sought out employment with
Cabell Huntington Hospital after the termination of her position at the School of Medicine. After
she received a draft employment contract from the hospital, Defendants purposefully and
maliciously interfered with this employment opportunity. This alleged interference took place
after the termination of Plaintiff’s employment with the School of Medicine and is factually
distinct from Plaintiff’s relationship with her former employer. Defendants offer strikingly little
to refute the factual basis for this count. For this reason, the Court finds Counts VI and VII, for
civil conspiracy, do not fall within the scope of the PEGP’s jurisdiction.
Because the analysis requires closer scrutiny, the Court discusses the applicability of the
PEGP to Count I below.
Having found that the claims raised in Counts II, III, IV, and V of the Complaint are
within the subject matter jurisdiction of the PEGP, the Court now turns to whether Plaintiff was
required to exhaust available administrative remedies before initiating this lawsuit.
Under West Virginia law, “[t]he general rule is that where an administrative remedy is
provided by statute or by rules and regulations having the force and effect of law, relief must be
sought from the administrative body, and such remedy must be exhausted before the courts will
act.” Syl. pt. 1, Daurell v. Traders Fed. Savings & Loan Assoc., 104 S.E.2d 320, 326 (W. Va.
1958).
The exhaustion of administrative remedies generally serves as a jurisdictional
prerequisite to the filing of an independent civil action. See State ex. Rel. Arnold v. Egnor, 275
S.E.2d 15, 22 (W. Va. 1981). Based on this rule, Defendants contend that Plaintiff’s failure to
pursue a Level Three grievance hearing is fatal to her suit.
10
Plaintiff does not dispute the fact that she abandoned her grievance at Level Two of the
PEGP nor that she received notice of her right to request a Level Three hearing. Plaintiff also
apparently acknowledges the existence of this general exhaustion rule. She relies, however, on
the rule’s limited exception to justify the abandonment of her grievance.
The law does not require exhaustion of administrative remedies in instances where resort
to the available administrative procedures would be futile. See Syl. pt. 4, Sturm v. Bd. of Educ.,
672 S.E.2d 606 (W. Va. 2008) (“This Court will not require the exhaustion of administrative
remedies where such remedies are duplicative or the effort to obtain them futile.”) (citations
omitted).
Plaintiff puts forth two separate rationales to demonstrate that the pursuit of her
grievances within the PEGP would have been futile. The Court addresses each in turn.
1.
The Grievance Board’s Ability to Award Damages
First, Plaintiff claims that exhaustion of available administrative remedies would have
been futile because the PEGP could not award damages. Plaintiff contends that she initially filed
a grievance with the Grievance Board primarily because she sought reinstatement. Plaintiff
claims that it became apparent to her after review at Levels One and Two that the School of
Medicine was uninterested in reinstating her to her former position. After she perceived
reinstatement was no longer a viable remedy, her only remaining request was a request for
damages—damages which she claims the Grievance Board could not award. Plaintiff does not
dispute that her claims raised in Counts II, III, IV, and V were within the subject matter of the
PEGP. Nonetheless, she declined to pursue a Level Three hearing because to do so “would have
been costly, time consuming, and would not have resulted in any relief.” (Docket 17 at 13.)
Plaintiff’s arguments suggest that once she determined it was no longer worth her time to
pursue her grievance through the PEGP, she was thereafter excused from participation in the
11
process and free to bring related claims in a court of original jurisdiction. These arguments
misstate the law.
First, Plaintiff’s argument that the PEGP lacks wholesale authority to award damages is
inaccurate. The Grievance Board is authorized to award an aggrieved employee back pay of one
year after a favorable ruling. W. Va. Code § 6C-2-3. Even so, Plaintiff’s fundamental argument
that she was excused from participation in the PEGP because she was dissatisfied with the nature
of damages available is also mistaken.
The exhaustion of administrative remedies requirement applies even where a plaintiff is
dissatisfied with the nature of the damages available. West Virginia law makes this point clear:
The rule of exhausting administrative remedies before actions in courts are
instituted is applicable, even though the administrative agency cannot award
damages, if the matter is within the jurisdiction of the agency. In any event,
damages can always be obtained in the courts after the administrative procedures
have been followed, if warranted.
Bank of Wheeling v. Morris Plan Bank & Trust Co., 183 S.E.2d 692, 695 (W. Va. 1971).
While acknowledging Bank of Wheeling’s holding, Plaintiff nonetheless relies on CBC
Holdings, LLC. v. Dynatec Corp. in claiming that if complete relief cannot be obtained through
the available administrative procedure, failure to exhaust administrative remedies will not
preclude litigation. 680 S.E.2d 40 (W. Va. 2009). This reliance is inapposite. In CBC Holdings,
the plaintiff challenged the defendant’s ownership of coalbed methane in a particular seam. Id. at
42. The defendant claimed the lawsuit was barred because the plaintiff had failed to exhaust
administrative remedies available under the Coalbed Methane Act. Id. The West Virginia
Supreme Court held that the exhaustion doctrine was inapplicable because the Act was “clearly
. . . not aimed at resolving conflicting issues of ownership.” Id. at 45-46. CBC Holdings stands
for the proposition that where the administrative process is not equipped to address the substance
of the underlying dispute, failure to exhaust will not bar litigation.
12
The analysis set forth in CBC Holdings only further bolsters the Court’s finding that
Plaintiff cannot avoid the available administrative process based solely on the measure of
damages available. In contrast to CBC Holdings, Plaintiff’s claims raised in Counts II, III, IV,
and V are precisely the type of disputes the PEGP was meant to address. The PEGP was
expressly created for the purpose of resolving disputes between public employees and their
employers. W. Va. Code § 6C-2-1(a). For this reason, the general requirement of exhaustion
applies.2
Plaintiff could have pursued additional damages in the judicial system after the
administrative procedures had been followed.
See Bank of Wheeling, 183 S.E.2d at 695.
Because Plaintiff failed to exhaust her available administrative remedies, this Court lacks subject
matter jurisdiction over these claims. Defendants’ Rule 12(b)(1) motion to dismiss Counts II,
III, IV, and V of the Complaint is GRANTED.
2.
The Grievance Board’s Jurisdiction over West Virginia Human
Rights Act Claims
Defendants contend that Plaintiff was similarly obligated to bring her West Virginia
Human Rights Act claims before the Grievance Board. Plaintiff argues that the Grievance Board
does not have jurisdiction to resolve these claims and that exhaustion of administrative remedies
would therefore be futile.
Though the Grievance Board has subject matter jurisdiction over discrimination claims, it
has no authority to determine liability under the West Virginia Human Rights Act. Syl. pt. 1,
Vest v. Bd. of Educ. of Cty. of Nicholas, 455 S.E.2d 781, 782 (W. Va. 1995). In Vest, a substitute
teacher brought a grievance with the West Virginia Education and State Employees Grievance
Board, a predecessor to the PEGP, alleging discrimination by her employer on the basis of
2
The Court’s finding, infra Section IV(A)(iii), that Plaintiff brings her remaining claims against Defendants in their
individual capacities does not change this analysis. The purposes of the PEGP counsel in favor of exhaustion of
administrative remedies, whether Plaintiff’s lawsuit is now brought against Defendants in their individual or official
capacities. See W. Va. Code § 6C-2-1(b) (defining one of the PEGP’s purposes as the resolution of grievances in a
fair, efficient, cost-effective, and consistent manner).
13
pregnancy and sex. Id. She voluntarily relinquished her discrimination claim after the grievance
hearing upon the belief that the administrative process was not the proper forum to resolve this
claim. She then brought suit in West Virginia circuit court alleging violations of the Human
Rights Act. The circuit court certified two questions to the West Virginia Supreme Court asking
1) whether the Grievance Board had subject matter jurisdiction over claims alleging genderbased discrimination, and 2) whether a civil action filed pursuant to the West Virginia Human
Rights Act was precluded by the prior grievance proceeding.
First, the court found that the Grievance Board had subject matter jurisdiction over
discrimination claims. Id. at 783-84 (noting that the definition of “grievance” includes claims by
employees alleging discrimination, harassment, or favoritism). The court recognized, however,
the potential for considerable overlap between grievances that include claims of discrimination
and claims under the Human Rights Act. Id. While the court reasoned that the Grievance Board
could decide whether an employee had been the subject of discrimination, “there is no authority
in the statute for the Grievance Board to decide whether a person states a claim under the Human
Rights Act.” Id. at 784.
Instead, interpretation and enforcement of the Act was assigned
specifically to the Human Rights Commission and West Virginia state courts. Id. (citing W. Va.
Code § 5-11-13). In part due to the unavailability of “substantial protections promised under the
Human Rights Act” within the grievance procedure, Id. at 787, the court held as to the second
question that “a civil action filed under the Human Rights Act is not precluded by such a prior
grievance which involves the same facts and circumstances.” Id. at 788.
In the case at hand, Plaintiff’s original grievance contained a claim for discrimination on
the basis of sex, age, and nationality. Her original grievance did not allege Human Rights Act
violations. The Grievance Board had jurisdiction to determine whether Plaintiff had been the
target of discrimination—that much is clear. The Grievance Board did not and does not have the
14
authority, however, to determine liability for the Human Rights Act violations Plaintiff now
raises before this Court. The law does not require Plaintiff to exhaust administrative remedies
where, as here, doing so would have been an exercise in futility.
Defendants attempt to distinguish Vest by asserting that in that case, the plaintiff had
fully exhausted her available administrative remedies before filing her lawsuit. The Court does
not share this view of the facts.
In Vest, the plaintiff “voluntarily relinquished” her
discrimination claim before the administrative law judge ruled on it. 455 S.E.2d at 783-84.
Further, because the West Virginia Supreme Court held that the administrative system could not
properly address violations of the Human Rights Act, it found it “unnecessary to [address]
whether the plaintiff ‘actually litigated’ her discrimination claim before the Grievance Board.”
Id. at 787.
Similarly, whether and to what extent Plaintiff litigated her discrimination claim before
the Grievance Board is irrelevant to the fact that the Board was incapable of addressing the
Human Rights Act claims she now presents before the Court. For these reasons, the Court
DENIES Defendants’ motion to dismiss Count I for failure to exhaust administrative remedies.
iii.
Eleventh Amendment Immunity
Finally, Defendants argue that the Eleventh Amendment bars Plaintiff’s claims.3
Defendants reason that the School of Medicine is a de facto parties to this litigation and is, in
fact, an agent of the State of West Virginia. In response, Plaintiff insists that she has sued
Defendants as individual tortfeasors only. Plaintiff’s Complaint is wholly devoid of any explicit
pronouncement that she sues Defendants in only their individual capacities.
3
The Fourth Circuit has not definitively established whether a motion to dismiss based on Eleventh Amendment
immunity is a 12(b)(1) motion for lack of subject matter jurisdiction or a 12(b)(6) motion for failure to state a claim
upon which relief can be granted. See Andrews v. Daw, 201 F.3d 521, 525 n. 2 (4th Cir. 2000). The Court assumes,
without deciding, that Defendants’ Eleventh Amendment argument is properly raised under Rule 12(b)(1).
15
Eleventh Amendment immunity bars suits against state officials in their official, but not
individual, capacities. See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 229 (4th Cir. 1997)
(citing Hafer v. Melo, 502 U.S. 21, 30-31 (1991)). The primary consideration in determining
whether state actors are sued in their official or individual capacities is whether the state is “the
real party against which the judgment will . . . operate.” O’Neill v. Early, 208 F.2d 286, 289 (4th
Cir. 1953). The Supreme Court has stated “[T]he phrase ‘acting in their official capacities’ is
best understood as a reference to the capacity in which the state officer is sued, not the capacity
in which the officer inflicts the alleged injury.” Hafer, 502 U.S. at 26.
A minority of circuits have simply adopted a presumption that when a plaintiff’s
Complaint is unclear, she is presumed to have brought suit against state officials only in their
official capacity. See Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989); Nix v. Norman, 879
F.2d 429, 431 (8th Cir. 1989). The Fourth Circuit, on the other hand, has sided with the majority
view and adopted a more flexible approach. See Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir.
1993). “[W]hen a plaintiff does not allege capacity specifically, the court must examine the
nature of the plaintiff’s claims, the relief sought, and the course of proceedings to determine
whether a state official is being sued in a personal capacity.” Id. at 61.
In Biggs, the Fourth Circuit identified a number of factors used to distinguish between
individual and official capacity suits. These include whether the plaintiff alleges that the
defendant acted in accordance with a state policy or custom, whether she seeks punitive or
compensatory damages, and the nature of the defenses raised.
Id. at 61.
Punitive and
compensatory damages are unavailable in official capacity suits. Id.; see Shabazz v. Coughlin,
852 F.2d 697, 700 (2d. Cir. 1988) (finding a request for punitive damages indicates the personal
nature of the lawsuit). Further, since a qualified immunity defense is available only in a personal
16
capacity suit, the assertion of this defense indicates that the defendant has at least contemplated
the possibility that the plaintiff seeks to recover from him personally. Biggs, 66 F.3d at 61.
Though the Fourth Circuit in Biggs addressed the individual or official capacity
distinction in the context of a 42 U.S.C. § 1983 action, the analysis has been similarly applied to
causes of action sounding in state law. See Osborne v. Cty. Cmm’n of Kanawha Cty., 143 Fed.
Appx. 554, 555 (4th Cir. 2005) (per curiam) (reversing the trial court’s finding that local judges
had been sued only in their official capacities); Suarex Corp. Indus. V. McGraw, 125 F.3d 222,
229 (4th Cir. 1997) (applying the Biggs factors to determine whether the plaintiff’s intentional
tort claims were brought against defendants in their official or individual capacities).
Defendants’ claim of Eleventh Amendment immunity focuses mistakenly on the capacity
in which they inflicted the alleged injury, see Hafer, 502 U.S. at 26, rather than the capacity in
which they have been sued. Because Plaintiff has not alleged capacity specifically, the Court
now turns to the Biggs factors to determine the nature of her remaining claims.
Plaintiff’s claims, though inartfully pled, can be construed as claims against Defendants
in their individual capacities. The first two of the Biggs factors support this interpretation.
Plaintiff does not allege Defendants acted in accordance with state policy when they fired her for
discriminatory reasons. Neither does she allege they intentionally interfered with her prospective
employment with Cabell Huntington Hospital in abidance with state policy or custom. Indeed,
Plaintiff alleges Defendants’ conduct in this regard was malicious. This interpretation is further
strengthened by Plaintiff’s requested relief. Plaintiff seeks only compensatory and punitive
damages, rather than reinstatement or injunctive relief. As applied to this case, the third Biggs
factor is inconclusive. Though Defendants have raised qualified immunity as a defense, they
have done so only as an alternative basis of relief.
17
Because the Court views Counts I, VI, and VII of Plaintiff’s Complaint as stating a claim
against Defendants in their individual capacities, Defendants’ motion to dismiss on the basis of
Eleventh Amendment immunity is DENIED.
B.
Rule 12(b)(6) Motion to Dismiss
i.
Qualified Immunity
In the event the Court denies Defendants’ motion to dismiss on the basis of Eleventh
Amendment immunity, Defendants move to dismiss under a qualified immunity theory.
Defendants contend that with the exception of the claims arising under the Human Rights Act,
qualified immunity bars Plaintiff’s claims.
Qualified immunity is an affirmative defense that must be pleaded by a government agent
or official. See Parkulo v. West Virginia Bd. of Probation and Parole, 483 S.E.2d 507, 521 (W.
Va. 1996) (citing State v. Chase Securities, Inc., 424 S.E.2d 591, 597 (W. Va. 1992)). Qualified
immunity protects government officials when acting within the scope of their authority insofar as
their conduct does not violate clearly established constitutional or statutory rights. See Bennett v.
Coffman, 361 S.E.2d 465 (W. Va. 1987). On the other hand, “[t]here is no immunity for an
executive official whose acts are fraudulent, malicious, or otherwise oppressive.” State v. Chase
Sec., Inc., 424 S.E.2d 591, 594 (W. Va. 1992).
Because Defendants do not argue that qualified immunity shields them from Plaintiff’s
claims arising under the Human Rights Act, the Court addresses qualified immunity only as it
applies to the remaining claims—Counts VI and VII of the Complaint. Taken together, Counts
VI and VII allege that Defendants maliciously conspired against Plaintiff and intentionally
interfered with her prospective employment contract with Cabell Huntington Hospital. Noting
that Defendants have the burden to establish a qualified immunity defense, the Court lacks
sufficient evidence to determine at this stage of litigation whether Defendants’ actions giving rise
18
to these claims were undertaken within the scope of their employment. The Court will DENY
the motion in favor of further factual development on this issue.
ii.
Civil Conspiracy
Defendants contend Plaintiff fails to state a claim for civil conspiracy. Defendants assert
that their allegedly unlawful actions were all undertaken within the scope of and in the course of
their employment duties as agents for the School of Medicine and University Physicians and
Surgeons and cannot give rise to a claim for civil conspiracy.
West Virginia law “recognizes a cause of action sounding in civil conspiracy.” Kessel v.
Leavitt, 511 S.E.2d 720, 753 (W. Va. 1998).
A civil conspiracy is a combination of two or more persons by concerted action to
accomplish an unlawful purpose or to accomplish some purpose, not in itself
unlawful, by unlawful means. The cause of action is not created by the conspiracy
but by the wrongful acts done by the defendants to the injury of the plaintiff.
Syl pt. 8, Dunn v. Rockwell, 689 S.E.2d 255, 258 (W. Va. 2009).
The Court recognizes that a corporation generally cannot successfully conspire with its
employees or agents. Gray v. Marshall Cty. Bd. of Educ., 367 S.E.2d 751, 756 (W. Va. 1988)
(citing Cook v. Hecks, Inc., 342 S.E.2d 453, 460 (1986)). However, Plaintiff has neither alleged
that Defendants acted as agents of a corporation nor that Defendants’ allegedly unlawful actions
were undertaken within the scope of their employment as employees of the School of Medicine.
Plaintiff avers that Defendants acted in concert in terminating her employment with the School
of Medicine and interfering with her prospective employment contract with Cabell Huntington
Hospital. Plaintiff states a plausible claim of civil conspiracy. The Court lacks sufficient facts to
determine whether any legal defenses may exist to this claim; further, to the extent the Court
would have to garner these facts from outside the Complaint, such a determination is
inappropriate in response to a 12(b)(6) motion to dismiss.
19
Because Plaintiff alleges facts sufficient to state a claim for civil conspiracy, Defendants’
motion to dismiss Count VII for failure to state a claim upon which relief can be granted is
DENIED.
V.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Complaint [Docket 13] is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Counts II, III,
IV, and V. As to Counts I, VI, and VII, the motion is DENIED.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
20
September 26, 2012
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?