Klug v. Marshall University Board of Governors

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.

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.

2Plaintiff 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.

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

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-unlawfully-

harmed-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 context-

specific 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.

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

3In 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 § 55-

2-12(b).

4Subsection (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.

5West 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

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).

6As 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.

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

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,

7Subsection (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).

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.”)).

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

8Overruled on other grounds, Jackson v. Brown, 801 S.E.2d 194 (W. Va. 2017).

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

9Rule 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.

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

10As 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

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).

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

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

11Likewise, 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).

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 ¶¶130-

35. 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.

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 Constitution12 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

12The 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.

13Article 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.

14There 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

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).

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

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 Plaintiffs 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. Plaintiffs 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

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ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

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