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

Filing 25

MEMORANDUM OPINION AND ORDER GRANTING the 11 Motion to Dismiss by Defendant Marshall University Joan C. Edwards School of Medicine and DISMISSING this Defendant from the action; GRANTING Defendant Farid B. Mozaffari's 9 Motion to Dismiss Pla intiff's Title IX claims, breach of contract claim, and WVHRA claims against him in his official capacity, but DENYING his motion as to Plaintiff's claims under the WVHRA in his individual capacity and her aiding and abetting claim; GRANTIN G Defendant Marshall University Board of Governors' 13 Motion to Dismiss the WVHRA claims against it and the contract claim, but DENYING the motion as to Plaintiff's Title IX claim and the aiding and abetting claim; Plaintiff's claim s under the WVHRA against Defendant Mozaffari in his official capacity and against the Board of Governors and Plaintiffs breach of contract claim against the Board of Governors are DISMISSED WITHOUT PREJUDICE. Signed by Judge Robert C. Chambers on 3/27/2019. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
REBECCA KLUG,
Plaintiff,
v.

CIVIL ACTION NO. 3:18-0711

MARSHALL UNIVERSITY
JOAN C. EDWARDS SCHOOL OF MEDICINE,
MARSHALL UNIVERSITY BOARD OF GOVERNORS,
and FARID B. MOZAFFARI, an individual,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Motions to Dismiss by Farid B. Mozaffari (ECF No.
9), Marshall University Joan C. Edwards School of Medicine (ECF No. 11), and Marshall
University Board of Governors. ECF No. 13. For the following reasons, the Court GRANTS, in
part, and DENIES, in part, the motions of Defendants.
I.
FACTUAL ALLEGATIONS
In her Complaint, Plaintiff Rebecca Klug states that on July 1, 2013, she started as
a resident in the general surgery residency program at the Marshall University Joan C. Edwards
School of Medicine. Compl. at ¶46. During her first and second year of the residency program,
Plaintiff asserts she was subjected to sexist comments. Additionally, she alleges that, during her
second year, she was subjected to an abusive and hostile work environment. Id. at ¶64. Around
January 2015, Plaintiff states, she lodged a verbal complaint with the Program Director and the
Program Coordinator about her working conditions. Id. at ¶72. Plaintiff admits that, around this

same time, she had poor “In-Service Training” test scores. Id. at ¶74. When confronted with her
scores by Defendant Farid B. Mozaffari, who was the Program Director of the General Surgery
Training Program, Plaintiff asserts she again complained about her working environment. Id. at
¶¶52, 75, 78-79. Although Defendant Mozaffari spoke to the other residents about their conduct,
Plaintiff states the conduct continued. Id. at ¶¶80-82.

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

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

1

“Plaintiff was treated for major depressive disorder, moderate and recurrent, generalized
anxiety disorder, and a normal grief reaction.” Id. at ¶111.
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While repeating her second year, Plaintiff alleges that she was given less favorable
treatment than the male residents, and she was subjected to increased abusive behavior from the
Academic Chief Resident. Id. at ¶¶117-21. 2 In February 2016, Plaintiff claims she made a formal
written complaint against him for abusive and discriminatory conduct. Id. at ¶125. On March 18,
2016, Plaintiff states that Defendant Mozaffari informed her that the Academic Chief Resident had
been reprimanded and their schedules had been changed so they would not be working together.
Id. at ¶128. Shortly thereafter, on March 28, 2016, Plaintiff received a letter providing that she was
being discharged from the residency program because of her test scores. Id. at ¶¶129, 31.
Defendant Mozaffari also told her it was thought she would not be a good surgeon. Id. at ¶130.
Plaintiff alleges she believes male residents with similar test scores were not discharged from the
program. Id. at ¶132.

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

2

Plaintiff also states that, after Plaintiff began repeating her second year, her father died,
but she only took one day off for his funeral. Id. at ¶116.
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In July 2017, it was suggested by the vice-chairman of the Department of Surgery
that Plaintiff stay in the lab for an additional year. Id. at ¶149. She agreed and believed she would
return to the surgery residency program in June 2018. Id. at ¶¶149-52. However, in the Spring of
2018, Plaintiff said she was informed that she was not welcome back in the program. Id. at ¶153.
As a result, Plaintiff filed this action for sexual harassment and hostile educational environment in
violation of Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681 et seq. (Title
IX), retaliation in violation of Title IX, breach of contract, sex discrimination under the West
Virginia Human Rights Act (WVHRA), disability discrimination under the WVHRA, and aiding
and abetting unlawful discriminatory practices. Defendants move to dismiss these claims.
II.
STANDARD OF REVIEW
Under the landmark decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), courts must look for “plausibility” in the complaint. This standard requires a plaintiff to
set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555
(internal quotation marks and citations omitted). Accepting the factual allegations in the complaint
as true (even when doubtful), the allegations “must be enough to raise a right to relief above the
speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their
truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at
the point of minimum expenditure of time and money by the parties and the court.” Id. at 558
(internal quotation marks and citations omitted).

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

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

3

In relevant part, West Virginia § 55-2-12 provides: “Every personal action for which no
limitation is otherwise prescribed shall be brought: . . . (b) within two years next after the right to
bring the same shall have accrued if it be for damages for personal injuries[.]” W. Va. Code § 552-12(b).
4

Subsection (a) of West Virginia Code § 55-17-3 provides, in part: “at least thirty days
prior to the institution of an action against a government agency, the complaining party . . . must
provide the chief officer of the government agency and the Attorney General written notice, by
certified mail, return receipt requested, of the alleged claim and the relief desired.” W. Va. Code
§ 55-17-3(a)(1), in part.
5

West Virginia Code § 55-17-3(a)(2) states:
(2) The written notice to the chief officer of the government agency
and the Attorney General required by subdivision (1) of this
subsection is considered to be provided on the date of mailing of the
notice by certified mail, return receipt requested. If the written
notice is provided to the chief officer of the government agency as
required by subdivision (1) of this subsection, any applicable statute
of limitations is tolled for thirty days from the date the notice is
provided and, if received by the government agency as evidenced
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In this case, Plaintiff submitted her notice of claim on March 21, 2018, and it was
received on March 26. Allowing for the tolling period, Defendants calculate that Plaintiff had until
April 25, 2018 to file her Complaint. However, Plaintiff did not file her Complaint until April 27,
2018. Therefore, Defendants assert her claims are barred.

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

by the return receipt of the certified mail, for thirty days from the
date of the returned receipt.
W. Va. Code § 55-17-3(a)(2).
6

As the Court finds there is a factual dispute as to when the statute of limitations began, the
Court does not address at this time Plaintiff’s argument that the Court should apply equitable
tolling to the limitation period or, in the alternative, she had two days remaining on the statute of
limitations.
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B.
Defendant Marshall University
Joan C. Edwards School of Medicine
Although the Court declines to dismiss this action on statute of limitations grounds,
the Court finds that Defendant Marshall University Joan C. Edwards School of Medicine
(“Defendant School of Medicine”), nevertheless, is entitled to dismissal on another ground. In its
motion, Defendant School of Medicine also argues it must be dismissed because it is not a separate
entity from Marshall University. Instead, Defendant School of Medicine asserts it is one in the
same as Marshall University, and it is controlled by Marshall University’s Board of Governors.
Although Plaintiff opposes the motion and seeks discovery on the relationship between the two
Defendants, the Court finds such discovery unnecessary.

Through a variety of statutory enactments, the West Virginia Legislature makes it
clear that Defendant School of Medicine falls under the umbrella and jurisdiction of the Marshall
University Board of Governors. For instance, in establishing the powers and duties of governing
boards generally, West Virginia’s Legislature has vested the boards with a wide range of duties,
including the responsibility to “[d]etermine, control, supervise and manage the financial, business
and education policies and affairs of the state institution of higher education under its
jurisdiction[.]” W. Va. Code § 18B-2A-4(a). In specifically referencing the State’s medical
schools, the Legislature in West Virginia Code § 18B-3-1 gives the governing boards both
flexibility and autonomy, and provides it is the governing boards that are ultimately “accountable
to the Legislature, the Governor and the citizens of West Virginia for meeting the established state
goals, objectives and priorities set forth” in specific legislation. W. Va. Code § 18B-3-1(f).
Similarly, in establishing medical malpractice insurance requirements for West Virginia’s medical

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schools, the Legislature provided in West Virginia Code § 18B-5-10(d)(1) that the medical
schools, “under the jurisdiction of the governing boards” and West Virginia State Board of Risk
and Insurance Management may make certain separate agreements, and the governing boards have
the authority over all medical malpractice claims. W. Va. Code § 18B-5-10(d)(1), (2), in part. 7 It
is further the responsibility of the “governing boards” to submit a proposed self-insurance retention
program to the state Insurance Commissioner for review[.]” Id. at § 18B-5-10(f), in part. Given
the statutory framework between the Marshall University Board of Governors and the School of
Medicine, the Court agrees with Defendant School of Medicine that it is not a separate entity from
the University. Compare with Al-Asbahi v. W. Va. Univ. Bd. of Governors, No. 1:15CV144, 2017
WL 402983, at *9 (N.D. W. Va. Jan. 30, 2017), aff'd, 724 F. App'x 266 (4th Cir. 2018) (finding
that WVU’s School of Pharmacy (SOP) “is simply a component of West Virginia University,

7

Subsection (d) provides, in full:
(d) Therefore, to aid the medical and other health
professional schools in meeting these goals and objectives, the
following program is authorized:
(1) Upon the agreement of the West Virginia State Board of
Risk and Insurance Management, the health professionals schools
under the jurisdiction of the governing boards of Marshall
University, West Virginia University and the West Virginia School
of Osteopathic Medicine, respectively, may participate, separately,
in a self-insurance retention program in conjunction with the state
insurance program administered by the West Virginia State Board
of Risk and Insurance Management to provide medical professional
liability coverage to its health care professionals and students.
(2) In administering the self-insurance retention program,
each governing board has the authority to administer, manage
and/or settle its own medical professional liability insurance claims.

W. Va. Code § 18B-5-10(d)(1), (2) (italics added).
-9-

organized and ultimately managed by the WVU Board. As such, a suit against the SOP is a suit
against the WVU Board, and the SOP cannot be subject to suit as a separate entity.” (Citation
omitted)). Therefore, the Court GRANTS its Motion to Dismiss as it cannot be sued separately
from the Marshall University Board of Governors.
C.
Defendant Mozaffari
Turning next to the motion by Defendant Mozaffari, he argues the claims against
him must be dismissed for a variety of reasons. Initially, Defendant Mozaffari moves to dismiss
Plaintiff’s claims against him under Title IX for sexual harassment, hostile educational
environment, and retaliation because they cannot be brought against an individual. Title IX
generally provides that no person “shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). In her Response, Plaintiff agrees
that Defendant Mozaffari may not be held liable under Title IX in his individual capacity, but she
argues without support that her claims should be maintained against him in his official capacity.
However, contrary to Plaintiff’s position, Title IX “has consistently been interpreted as not
authorizing suit against school officials, teachers, and other individuals” because individuals are
not the recipients of federal funds as contemplated by the statute. Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 257 (2009); see also Doe v. Bd. of Educ. of Prince George's Cty., 605
F. App'x 159, 165 n.8 (4th Cir. 2015) (recognizing in a footnote that a Title IX claim is “properly
pursued against the Board only” not an individual (citing Hartley v. Parnell, 193 F.3d 1263, 1270
(11th Cir. 1999) (“Individual school officials . . . may not be held liable under Title IX.”)).

-10-

Therefore, as Defendant Mozaffari cannot be sued under the statute, the Court GRANTS
Defendant Mozaffari’s motion to dismiss the Title IX claims against him.
Next, Defendant Mozaffari asserts Plaintiff only brought claims against him in his
official capacity which are subject to sovereign immunity under the Eleventh Amendment. He also
argues, however, that he is entitled to qualified immunity regarding Plaintiff’s claims of sex and
disability discrimination under the WVHRA. Qualified immunity is a defense to claims seeking to
hold an individual defendant personally liable while that individual is acting in his or her official
capacity. See Lane v. Franks, 573 U.S. 228, 243 (2014) (stating under the doctrine of qualified
immunity “courts may not award damages against a government official in his personal capacity”
except in certain circumstances). In her Response, Plaintiff contends she has sued Defendant
Mozaffari in both his official and individual capacity.

Although in this case Plaintiff has identified Defendant Mozaffari as “an
individual” in the style of the case, this description is not fully dispositive of the capacity in which
Defendant Mozaffari is being sued. See generally Syl. Pt. 1, Marion v. Chandler, 81 S.E.2d 89
(W. Va. 1954) 8 (“Whether words used in connection with the name of a plaintiff or a defendant
in a case are to be considered as descriptive of the person, or of the character in which he sues or
is sued, is to be determined from all the allegations of the pleading filed by the plaintiff.”); see also
Hoover v. Moran, 662 S.E.2d 711, 716 (2008) (quoting Syllabus Point 1 of Marion, and also noting

8

Overruled on other grounds, Jackson v. Brown, 801 S.E.2d 194 (W. Va. 2017).
-11-

that the Court previously has stated “that ‘[u]nder Rule 9(a) [of the] West Virginia Rules of Civil
Procedure, it is not necessary to aver the capacity of a party to sue or be sued’” (citation omitted)). 9
Therefore, the Court looks to the allegations in the Complaint, and the Court applies the standard
set forth by the Fourth Circuit in Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995). In Biggs, the
Fourth Circuit stated that, “when 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.” 66 F.3d at 61. Applying
this test, the Court has no difficulty finding Plaintiff sued Defendant Mozaffari in both capacities.

Specifically, Plaintiff alleges in her Complaint that Defendant Mozaffari treated her
differently than he did male residents who received similar test scores. Compl. at ¶¶75, 132. She
also alleges “Defendants” subjected her to a hostile work environment, harassment, and unlawful
disability and sex discrimination in violation of the WVHRA. Id. at ¶¶206-07, 210-211. The nature
of the conduct asserted in these allegations suggests Plaintiff intended to sue Defendant Mozaffari
in his personal capacity, as these actions are not alleged to have occurred pursuant to a
governmental policy or custom. See Biggs, 66 F.3d at 61 (providing that one factor a court many
consider is a failure by the plaintiff “to allege that the defendant acted in accordance with a
governmental policy or custom, or the lack of indicia of such a policy or custom on the face of the
complaint” (citations omitted)). Additionally, Plaintiff seeks both compensatory and punitive

9

Rule 9(a) of the West Virginia Rules of Civil Procedure provides, in part: “It is not
necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity or the legal existence of an organized association of persons that
is made a party.” W. Va. R. Civ. P. 9(a), in part.

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damages. These damages indicate Plaintiff intended to sue Defendant Mozaffari in his personal
capacity as those remedies are not available in official capacity suits. See id. (“Another indication
that suit has been brought against a state actor personally may be a plaintiff's request for
compensatory or punitive damages, since such relief is unavailable in official capacity suits.”
(Citations omitted)). Further, the fact Defendant Mozaffari argues he is entitled to qualified
immunity, suggests he considers himself to be sued in his individual capacity. See id. (stating,
“[b]ecause qualified immunity is available only in a personal capacity suit, the assertion of that
defense indicates that the defendant interpreted the plaintiff's action as being against him
personally” (citations omitted)). Accordingly, given these allegations and the defense raised, the
Court finds Plaintiff has included claims against Defendant Mozaffari in his personal capacity in
the Complaint.

Turning next to the question of whether Defendant Mozaffari is entitled to qualified
immunity for these claims, the Court recognizes that where, as here, state law claims are at issue,
“the State is free to define the defenses to that claim, including the defense of immunity, unless,
of course, the state rule is in conflict with federal law.” Ferri v. Ackerman, 444 U.S. 193, 198
(1979) (citing U.S. Const., art. VI, cl. 2). Under West Virginia’s qualified immunity doctrine, “the
discretionary actions of government agencies, officials and employees performed in an official
capacity are shielded from civil liability so long as the actions do not violate a clearly established
law or constitutional duty” of which a reasonable person would have known. W. Va. State Police
v. Hughes, 796 S.E.2d 193, 198 (W. Va. 2017) (footnote with citations omitted). 10 Given qualified

10

As applied to this case, the parties do not make any argument that the state rules conflict
with the federal rules. Indeed, in Bennett v. Coffman, 361 S.E.2d 465 (W. Va. 1987), the West
Virginia Supreme Court relied upon the standard set forth in Harlow v. Fitzgerald, 457 U.S. 800
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immunity’s broad scope, it “protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Id. (footnote with citations omitted). Where discretionary acts are at issue, the
West Virginia Supreme Court explained in Syllabus Points 4 and 6 of Clark v. Dunn, 465 S.E.2d
374 (1995):
4. If a public officer is either authorized or required, in the
exercise of his judgment and discretion, to make a decision and to
perform acts in the making of that decision, and the decision and
acts are within the scope of his duty, authority, and jurisdiction, he
is not liable for negligence or other error in the making of that
decision, at the suit of a private individual claiming to have been
damaged thereby.
*

*

*

6. In the absence of an insurance contract waiving the
defense, the doctrine of qualified or official immunity bars a claim
of mere negligence against a State agency not within the purview of
the West Virginia Governmental Tort Claims and Insurance Reform
Act, W. Va. Code § 29–12A–1, et seq., and against an officer of that
department acting within the scope of his or her employment, with
respect to the discretionary judgments, decisions, and actions of the
officer.
Syl. Pts. 4 & 6, Dunn.

Here, Defendant Mozaffari argues he is protected by qualified immunity because
he was acting within his discretionary authority in recommending Plaintiff’s contract not be

(1982). See Syl. Pt., Bennett (providing, in part, “[g]overnment officials performing discretionary
functions are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known”); see also Syl., State v. Chase Sec., Inc., 424 S.E.2d 591 (W. Va. 1992) (stating, in part,
“[a] public executive official who is acting within the scope of his authority . . . is entitled to
qualified immunity from personal liability for official acts if the involved conduct did not violate
clearly established laws of which a reasonable official would have known.”). In Chase Securities,
the West Virginia Supreme Court “found the Bennett holding to be overbroad, and stated that the
holding of Bennett applied only to qualified immunity and not absolute immunity.” Maston v.
Wagner, 781 S.E.2d 936, 948 (W. Va. 2015) (citation omitted).
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renewed. Plaintiff counters, however, that she alleged Defendant Mozaffari willfully and
intentionally discriminated against her and he engaged in a pattern and practice of unlawful
discrimination against women. Therefore, Plaintiff argues qualified immunity does not protect
Defendant Mozaffari because his actions violated clearly established statutory and constitutional
rights. Upon review, the Court agrees with Plaintiff. As Plaintiff’s allegations include violations
of clearly established rights regarding sex and disability discrimination that a reasonable person
would have known, the Court denies Defendant Mozaffari’s motion to dismiss these claims based
upon qualified immunity.

Defendant Mozaffari also argues he cannot be held liable under a theory of
supervisor liability for Plaintiff’s state law claims as it is clear under West Virginia law that there
is no supervisory liability for the civil rights violations of a subordinate. See Robinson v. Pack,
679 S.E.2d 660, 669 (W. Va. 2009) (holding “the issue of supervisory liability in connection with
an alleged civil rights violation is clear: there is none”). However, Plaintiff insists Defendant
Mozaffari can be held liable for his own actions as a supervisor for his alleged mishandling of
Plaintiff’s complaints regarding sex discrimination and harassment. See e.g. Deakins v. Pack, 957
F. Supp. 2d 703, 761 (S.D. W. Va. 2013) (“A supervisor's mere knowledge of a subordinate's
unconstitutional conduct is not enough . . . . Section 1983 liability may be imposed upon a
supervisor only on the basis of purposeful ‘violations of his or her supervisory responsibilities.’”
(quoting Iqbal, 556 U.S. at 676)). Here, in both her sex and disability claims under the WVHRA,
Plaintiff alleges that “Defendants’ supervisory and management personnel engaged in, perpetrated,
and otherwise condoned” the discrimination, harassment, and other wrongful acts described in the
Complaint. Compl. at ¶¶ 207, 211. Taking the Complaint as a whole in the light most favorable to

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Plaintiff, the Court finds she has sufficiently alleged a claim against Defendant Mozaffari for his
own actions as a supervisor. 11 Therefore, the Court denies his motion in this regard.

Defendant Mozaffari further argues that Plaintiff’s breach of contract claim against
him must be dismissed because he was not a party to the contract. In her Response, Plaintiff agrees.
Therefore, the Court GRANTS Defendant Mozaffari’s motion to dismiss the contract claim
against him.

Finally, Defendant Mozaffari asserts Plaintiff’s claim of aiding and abetting must
be dismissed. The parties agree with the decision in Larry v. Marion County Coal Co., 302 F. Supp.
3d 763 (N.D. W. Va. 2018), which predicted that the West Virginia Supreme Court would define
“aid” and “abet” under the WVHRA as being consistent with the Restatement (Second) of Torts
§ 876(b). 302 F. Supp. 3d at 777. Section 876(b) provides that, “[f]or harm resulting to a third
person from the tortious conduct of another, one is subject to liability if he knows that the other’s
conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other

11

Likewise, the Court finds Plaintiff’s allegations sufficient pursuant to the standard set
forth in the context of § 1983 actions by the Fourth Circuit in Shaw v. Stroud, 13 F.3d 791 (4th
Cir. 1994). In Shaw, the Fourth Circuit held, that supervisory liability can be established when a
plaintiff demonstrates:
(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed “a pervasive and
unreasonable risk” of constitutional injury to citizens like the
plaintiff; (2) that the supervisor's response to that knowledge was so
inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices,”; and (3) that there
was an “affirmative causal link” between the supervisor's inaction
and the particular constitutional injuries suffered by the plaintiff.
13 F.3d at 799 (citations omitted).
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so to conduct himself.” Restatement (Second) of Torts § 876(b). Therefore, in the context of the
WVHRA, the district court held that an individual may be found to be liable for aiding and abetting
a discriminatory practice if that individual knows the act breaches a duty and the individual “gives
substantial assistance or encouragement to” the discriminatory conduct of another. 302 F. Supp.
3d at 778. However, mere knowledge and a failure to sufficiently question certain conduct is not
enough to demonstrate “substantial encouragement or assistance.” Id. at 777-78 (citing Failla v.
City of Passaic, 146 F.3d 149, 159 (3d Cir. 1998) (“Employees are not liable as aider and abettor
merely because they had some role, or knowledge or involvement.”) (internal quotation marks and
other citation omitted).

In this case, Plaintiff alleges Defendant Mozaffari was the individual who informed
her that her surgery residency was being terminated because it was decided she would not be a
good surgeon. Although the decision purportedly hinged on her low test scores, Plaintiff claims,
“that she was subjected to different rules and/or sanctions, based upon her sex and disability status”
because male residents with similar scores, and one male resident who needed to take time off
from the program for medical reasons, were not discharged from the program. Compl. at ¶¶13035. Plaintiff also claims Defendant Mozaffari was aware of the discrimination and hostility she
faced but, nevertheless, assisted in terminating her residency. Based upon these allegations, the
Court finds Plaintiff has stated a sufficient claim for aiding and abetting to survive Defendant
Mozaffari’s motion.

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D.
Defendant Marshall University Board of Governors
and Defendant Mozaffari’s Sovereign Immunity Arguments
Defendant Marshall University Board of Governors argues Plaintiff’s claims under
the WVHRA and Title IX are barred by sovereign immunity pursuant to the Eleventh Amendment
of the United States Constitution 12 and Article VI, § 35 of the West Virginia Constitution. 13
Defendant Mozaffari also argues he is entitled to sovereign immunity in his official capacity.
Under the doctrine, a state agency and a state official in his or her official capacity generally are
protected from suits. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) ((“[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.”). The
parties do not dispute that Marshall University is a State agency. See Zimmeck v. Marshall Univ.
Bd. of Governors, No. CIV.A. 3:13-14743, 2013 WL 5700591, at *6 (S.D. W. Va. Oct. 18, 2013)
(stating “[t]he West Virginia Code confirms that Marshall University is a public institution and an
agency or ‘arm’ of the state” (citations omitted)). However, Plaintiff argues her claims under the
WVHRA falls within an exception to this immunity because she is seeking injunctive relief. 14

12

The Eleventh Amendment provides in relevant part that “[t]he judicial power of the
United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State[.]” U.S. Const. amend.
XI.
13

Article VI, § 35 states, in part, that “West Virginia shall never be made defendant in any
court of law or equity[.]” W. Va. Const. art. VI, § 35.
14

There are three limited exceptions to sovereign immunity. They are “(1) a state may
unequivocally announce its intention to subject itself to suit in federal court; (2) Congress may
abrogate the State's immunity by statute; and (3) suits for prospective injunctive relief against state
officials acting in violation of federal law avoid dismissal.” Kerr v. Marshall Univ. Bd. of
Governors, No. 2:14-CV-12333, 2015 WL 1405540, at *8 (S.D. W. Va. Feb. 4, 2015) (citations
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In her Complaint, Plaintiff asks “this Court to enter a permanent injunction against
Defendants ordering them to establish an ongoing discrimination training program for their
employees, in order to prevent future discrimination;” and, “Plaintiff be reinstated in the surgery
medical residency program[.]” Compl. at ¶¶ 2, 4 of Prayer for Relief. However, the Supreme Court
stated in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984), that “a claim that state
officials violated state law in carrying out their official responsibilities is a claim against the State
that is protected by the Eleventh Amendment.” 465 U.S. at 121 (citation omitted). Although
Plaintiff argues Defendants’ actions violated her federally protected civil rights, this argument
does not prevent sovereign immunity from barring her claim under the WVHRA. Therefore, the
Court DISMISSES WITHOUT PREJUDICE the WVHRA claim against the Board of
Governors and Defendant Mozaffari in his official capacity.

On the other hand, Plaintiff’s claim under Title IX against the Board of Governors
does survive. As stated by the Honorable John Preston Bailey in Constitution Party of W. Va. v.
Jezioro, No. 2:08-CV-61, 2009 WL 10710235 (N.D. W. Va. Jan. 16, 2009), “[a] state official may
be sued under the Ex parte Young doctrine where a plaintiff seeks prospective equitable relief for
ongoing violations of federal law.” 2009 WL 10710235, at *3 (citation omitted). The Court need
only ask “‘whether [the] complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.’” Id. (quoting Verizon Md. Inc. v. Public Service Comm. of
Md., 535 U.S. 635, 645 (2002)). Here, Plaintiff alleges, inter alia, that she was and continues to
be discriminated based upon sex and she seeks an injunction directing Defendants to institute an

omitted), report and recommendation adopted, 2015 WL 1405537 (S.D. W. Va. Mar. 26, 2015),
aff'd, 824 F.3d 62 (4th Cir. 2016).
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ongoing discrimination training program to prevent future discrimination. Additionally, Plaintiff
asserts Marshall University’s residency program receives federal funding and is covered by Title
IX. See Litman v. George Mason Univ., 186 F.3d 544, 554 (4th Cir. 1999) (stating “by accepting
Title IX funding, a state agrees to waive its Eleventh Amendment immunity”); Kerr v. Marshall
Univ. Bd. of Governors, No. 2:14-CV-12333, 2015 WL 1405537, at *10 (S.D. W. Va. Mar. 26,
2015) (recognizing the Fourth Circuit’s holding in Litman that receiving Title IX funding is an
unambiguous waiver of Eleventh Amendment immunity). Therefore, sovereign immunity does not
apply to this claim.

The Board of Governors next argues that Plaintiff’s contract claim is barred by
sovereign immunity. The Court agrees. As this Court stated in Zimmeck, “[r]egardless of the type
of relief sought . . . Plaintiff's claim against Marshall University for breach of contract is barred by
the Eleventh Amendment.” 2013 WL 5700591, at *8 (citing Sarkissian v. W. Va. Univ. Bd. of
Governors, No. CIV.A. 1:05CV144, 2007 WL 1308978, at *10 (N.D. W. Va. May 3, 2007)
(finding Eleventh Amendment immunity applied to a breach of contract claim against West
Virginia University)). Therefore, Plaintiff’s breach of contract claim against the Board of
Governors is DISMISSED WITHOUT PREJUDICE.

Lastly, like Defendant Mozaffari, the Board of Governors also argues that
Plaintiff’s claim for “aiding and abetting” must be dismissed against it. In the Complaint, Plaintiff
asserts supervisory and management personnel engaged in activities that perpetrated, condoned,
and ratified a discriminatory and hostile work environment. Taking these allegations in the light
most favorable to Plaintiff, and given that the Board of Governors oversees the business and

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educational affairs of Marshall University, the Court finds she has stated a plausible claim of aiding
and abetting against the Board of Governors and DENIES its motion to dismiss this claim.
IV.
CONCLUSION
Accordingly, for the foregoing reasons, the Court GRANTS the Motion to Dismiss
by Defendant Marshall University Joan C. Edwards School of Medicine and DISMISSES this
Defendant from the action. ECF No. 11. The Court also GRANTS Defendant Farid B. Mozaffari
Motion to Dismiss Plaintiff’s Title IX claims, breach of contract claim, and WVHRA claims
against him in his official capacity, but DENIES his motion as to Plaintiff’s claims under the
WVHRA in his individual capacity and her aiding and abetting claim. ECF No. 9. Finally, the
Court GRANTS Defendant Marshall University Board of Governors’ Motion to Dismiss to the
WVHRA claims against it and the contract claim, but DENIES the motion as to Plaintiff’s Title
IX claim and the aiding and abetting claim. ECF No. 13. Plaintiff’s claims under the WVHRA
against Defendant Mozaffari in his official capacity and against the Board of Governors and
Plaintiff’s breach of contract claim against the Board of Governors are DISMISSED WITHOUT
PREJUDICE.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:

March 27, 2019

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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