Zeng v. Marshall University

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

WEI-PING ZENG,

Plaintiff,

v. CIVIL ACTION NO. 3:17-3008

MARSHALL UNIVERSITY,

DR. JERMONE A. GILBERT,

DR. JOSEPH SHAPIRO,

DR. W. ELAINE HARDMAN,

DR. DONALD A. PRIMERANO,

DR. RICHARD EGLETON,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before this Court is Plaintiff’s Objection to the Proposed Findings and

Recommendation (“PF&R”) issued by the Honorable Cheryl A. Eifert on February 27, 2019.

PF&R, ECF No. 199. Magistrate Judge Eifert issued the PF&R in response to Plaintiff’s Motion

to Modify Amended Complaint and Join Defendants. Pl.’s Mot. to Mod. Compl., ECF No. 173. As

explained below, the Court ADOPTS the Magistrate Judge’s PF&R consistent with this

Memorandum Opinion and Order. Accordingly, the Court DENIES Plaintiff’s Motion to Modify

Amended Complaint and Join Defendants.

I. RELEVANT BACKGROUND

This action arises out of a dispute over the termination of Plaintiff Wei-Ping Zeng’s

employment with the Marshall University School of Medicine (“Marshall”) on June 30, 2016. Am.

Compl., ECF No. 55, at 31. A full exposition of the factual background of this case is unnecessary

to resolve the narrow issues presented in Plaintiff’s objection,1 but a limited review of the

procedural history leading up to his objection is warranted. By the time of Magistrate Judge Eifert’s

final discovery conference with the parties on January 8, 2019, over nineteen months had elapsed

since Plaintiff had commenced his suit. PF&R, at 3. In that time, Plaintiff had already modified

his complaint twice in order to join several individual defendants and allege new causes of action.

Id. at 2. Despite these prior amendments, on January 11, 2019 Plaintiff filed a motion for leave to

file a third amended complaint. See Pl.’s Mot. to Mod. Compl. Specifically, Plaintiff sought

permission to add claims for defamation and tortious interference, join another set of individual

defendants, and modify his existing causes of action by inserting new terms and allegations. Id. at

2–5.

Plaintiff bases his claims for defamation and tortious interference on identical factual

predicates, pointing to three events in particular. First, he argues that his very discharge by

Marshall on June 30, 2016 was defamatory and a tortious interference with subsequent

employment opportunities. Pl.’s Obj. to PF&R, ECF No. 208, at 4. Second, he points to a “Request

for Separation Information” form that Workforce West Virginia’s Unemployment Compensation

Division submitted to Ms. Katharine Hetzer in Marshall’s human resources department. Pl.’s Mot.

to Mod. Compl., at 2. The form—sent to Marshall after Plaintiff began the process of claiming

unemployment benefits—requires a prior employer to choose from three reasons for a claimant’s

departure: “Lack of Work,” “Quit,” and “Discharge.” See Ex. 29, ECF No. 173-2. On July 12,

2016, Ms. Hetzer completed the form for Plaintiff. Id. She checked “Discharge,” and noted that he

was “Denied [t]enure by Promotion + Tenure Committee” where the form requests elaboration.

1 This Court has extensively discussed the factual setting of this case in previous orders.

See, e.g., Mem. Op. & Order, ECF No. 49, at 2–8.

Id. Plaintiff alleges that selecting “Discharge” rather than “Lack of Work” constitutes defamation

and tortious interference with employment opportunities. Pl.’s Obj. to PF&R, at 7. Third, Plaintiff

points to a reference check he requested from the firm Allison & Taylor. Pl.’s Mot. to Mod. Compl.,

at 3. At Plaintiff’s request, Allison & Taylor—a professional reference company, not a potential

employer—contacted Ms. Tracey Burriss at Marshall University and requested a reference for

Plaintiff in July 2018. Id. Ms. Burriss was unable to locate Plaintiff’s employment record using his

name alone, and offered to search again using his social security number. See Ex. 2, ECF No. 187.

Allison & Taylor subsequently notified Plaintiff that the University would require a full social

security number to provide employment verification, and that “[t]his request is becoming more

common than not.” Id. Plaintiff declined to provide his social security number to Allison & Taylor.

See id. Nevertheless, he argues that Marshall’s failure to verify his employment based on his name

alone is sufficient to constitute defamation and tortious interference. Pl.’s Obj. to PF&R, at 5–6.

Drawing upon these events, Plaintiff moves for leave to join Ms. Hetzer and Ms. Burriss

as Defendants to Counts 11 (Plaintiff’s due process claim) and 12 (Plaintiff’s defamation and

tortious interference claims) of his Proposed Amended Complaint. Pl.’s Mot. to Mod. Compl., at

5. He also seeks to join Ms. Burriss’ supervisor, Bruce Felder, to both counts, asserting that Ms.

Burriss acted under his direction. Id. Finally, he proposes joining Marshall University General

Counsel F. Layton Cottrill, Jr. to Count 11 on the basis that he might have played a role in

appointing Plaintiff’s Level I grievance examiner. Id.

II. LEGAL STANDARD

In considering a party’s objection to a PF&R, this Court will conduct a de novo review of

those portions of the Magistrate Judge’s proposed findings and recommendations “to which

objection is made.” 28 U.S.C. § 636(b)(1). It follows that this Court is not required to conduct a

review of factual and legal conclusions to which no objection is made. Thomas v. Arn, 474 U.S.

140, 150 (1985). Courts will uphold such findings and recommendations unless they are clearly

erroneous. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). This

Court is free to accept, reject, or modify the Magistrate Judge’s findings or recommendations. See

28 U.S.C. § 636(b)(1).

As Plaintiff is proceeding pro se, this Court will liberally construe his filings. Erickson v.

Pardus, 551 U.S. 89, 94 (2007). The bounds of such a liberal construction are not unlimited, and

this Court “may not construct the plaintiff’s legal arguments for him.” Beaudett v. City of Hampton,

775 F.2d 1274, 1278 (4th Cir. 1985). In the context of an objection to a PF&R, “[g]eneral and

conclusory” objections are insufficient to warrant de novo review. McPherson v. Astrue, 605

F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (reasoning that “failure to file a specific objection

constitutes a waiver of the right to de novo review”). Instead, a party must identify specific errors

in the Magistrate Judge’s findings and recommendations. See id. Furthermore, objections that only

reiterate earlier factual or legal assertions are not entitled to de novo review. Reynolds v. Saad, No.

1:17-124, 2018 WL 3374155, at *2 (N.D.W. Va. July 11, 2018).

Courts should “freely give leave” to amend a complaint “when justice so requires.” F. R.

Civ. P. 15(a)(2). “The law is well settled that leave to amend a pleading should be denied only

when the amendment would be prejudicial to the opposing party, there has been bad faith on the

part of the moving party, or the amendment would be futile.” Edwards v. City of Goldsboro, 178

F.3d 231, 242 (4th Cir. 1999) (internal quotations omitted). Only the third exception—futility—is

applicable here. If proposed amendments cannot withstand a motion to dismiss, they are futile.

Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995) (affirming district court’s denial of

plaintiff’s motion to amend “because the proposed amendments could not withstand a motion to

dismiss”). Put more colloquially: where a “proposed amendment is clearly insufficient or frivolous

on its face,” leave to amend will be denied. Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th

Cir. 1986).

III. DISCUSSION

Plaintiff presents several particularized objections to the Magistrate Judge’s findings, each

of which is discussed extensively below. However, as a preliminary matter the Court will address

those points to which the Plaintiff does not present a cognizable objection. First, objections that

simply reiterate factual assertions are not entitled to de novo review. See Reynolds, 2018 WL

3374155, at *2. In objecting to the Magistrate Judge’s decision to deny joining new defendants,

Plaintiff presents just such a recitation of well-worn allegations. Pl.’s Obj. to PF&R, at 8. Because

such an objection is insufficient to warrant de novo review, the Court adopts the Magistrate Judge’s

findings and denies Plaintiff leave to join new defendants.

Moreover, Plaintiff does not address several of the Magistrate Judge’s other conclusions.

The Court will not undertake a de novo review of those findings to which a party does not object.

See Thomas, 474 U.S. at 150. Here, Plaintiff has not objected to the denial of his motion to add

new factual allegations related to the grievance process and certain allegedly false statements to

Count 11 of his complaint. He likewise does not take issue with the Magistrate Judge’s reasoning

concerning the futility of adding Defendants Primerano, Shapiro, Gilbert, and Cottrill to his new

tort claims. As Plaintiff does not object to these findings, this Court will adopt the Magistrate

Judge’s conclusions.

Plaintiff advances four concrete arguments in his objection: (a) that the Magistrate Judge

failed to consider the Allison & Taylor reference check and his termination with reference to

defamation; (b) that the Magistrate Judge failed to consider the Request for Separation Information

form and his termination with reference to tortious interference, and that she erroneously

concluded that the reference check did not constitute tortious interference; (c) that the definition

of “malice” justifies its inclusion in every count of his complaint without alleging any additional

facts; and (d) that Marshall University is not protected by sovereign immunity.

A. Defamation

In his objection, Plaintiff argues that the Magistrate Judge did not consider his discharge

or his reference check in relation to his new claim for defamation. He is correct that the PF&R

only addresses the Request for Separation Information form, and concedes that Ms. Hetzer’s

statement on the form is absolutely privileged under state law. See Thacker v. Peak, 800 F. Supp.

372, 386 (S.D.W. Va 1992). This Court will consider the remaining allegedly defamatory events

in turn.

First, Plaintiff argues that his discharge from Marshall University in June 2016 was

defamatory. Pl.’s Obj. to PF&R, at 4–5. Defamation is a state tort claim. Dashields v. Robertson,

No. 99-1124, 2000 WL 564024, at *3 (4th Cir. May 10, 2000). Under West Virginia law, a private

individual pursuing an actionable defamation claim must show “(1) defamatory statements; (2) a

nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least

negligence on the part of the publisher; and (6) resulting injury.” Crump v. Beckley Newspapers,

Inc., 320 S.E.2d 70, 77 (W. Va. 1983). As Plaintiff notes, “[d]irect defamatory statements are not

an absolute prerequisite to recovery . . . because defamation may also be accomplished through

inference, innuendo, or insinuation.” Id. at 77. Plaintiff’s claim plainly fails to meet the threshold

of direct defamation or defamatory innuendo, because both types of defamation still stem from a

defamatory statement. See id. at 80 (discussing innuendo stemming from the publication of a

photograph, which is a “well established” means of defamation). Here, Plaintiff argues that the

very act of terminating his employment was a defamatory statement in itself. No authority, in this

Circuit or otherwise, suggests that merely terminating employment is a “statement” that may

constitute defamation. Even assuming that Plaintiff had demonstrated the existence of a

defamatory statement, his claim would still fail. He admits that his employment with Marshall

University was terminated in June 2016; indeed, that termination forms the crux of his suit. See

Am. Compl., at 31. It follows that nothing about his termination was “false” because Plaintiff’s

employment was, in fact, terminated.

Second, Plaintiff alleges that Ms. Burriss’ conversation with Allison & Taylor was

defamatory. Pl.’s Obj. to PF&R, at 5–6. He objects to the PF&R and argues that Ms. Burriss had

“effectively refus[ed]” to confirm his employment with Marshall University, implying that he “lied

about his experience.” Id. at 5. As noted earlier, defamatory statements need not be direct; instead,

a statement can defame an individual through “inference, innuendo, or insinuation.” Crump, 320

S.E.2d at 77. In order to prove defamation by implication, however, such an implication “must be

present in the plain and natural meaning of the words.” Chapin v. Knight-Ridder Inc., 993 F.2d

1087, 1092 (4th Cir. 1993). This standard is especially high for statements that are literally true,

which must “affirmatively suggest that the author intends or endorses the [defamatory] inference.”

Id. at 1093. The record suggests that Ms. Burriss’ statements did nothing of the sort; indeed, it

appears she only requested to search for Plaintiff’s employment record by social security number

because she was unable to locate it by name. See Ex. 2, ECF No. 187. No matter the reason for

Ms. Burriss’ inability to locate the record—whether technological malfunction or simple human

error—requesting a different means of searching for one’s employment record is hardly a

statement that suggests a defamatory inference or that Ms. Burriss intended such an inference. As

each of the three events that Plaintiff singles out as defamatory would be subject to dismissal, their

addition to Plaintiff’s Complaint would be futile.

B. Tortious Interference

Turning next to Plaintiffs claims for tortious interference against Ms. Hetzer, Mr. Felder,

and Ms. Burriss, the Court considers the same three events outlined above. Plaintiff claims that

Defendants tortiously interfered with employment opportunities at other universities through his

discharge, the Request for Separation Information form, and the Allison & Taylor reference check.

Pl.’s Obj. to PF&R, at 6–7. Plaintiff points out that the PF&R only considers tortious interference

as it relates to the reference check, and even then argues that the Magistrate Judge misunderstands

the meaning of an expectancy. Id. This Court disagrees.

Like defamation, tortious interference with an employment opportunity is a state tort claim.

See Dashields, 2000 WL 564024, at *3. Under West Virginia law, a showing of tortious

interference requires “(1) the existence of a contractual or business relationship or expectancy; (2)

an intentional act of interference by a party outside that relationship or expectancy; (3) proof that

the interference caused the harm sustained; and (4) damages.” Torbett v. Wheeling Dollar Sav. &

Trust, 314 S.E.2d 166, 173 (W. Va. 1983). Plaintiff fails to make a showing on any one of these

elements, let alone all four. Rather than discuss each requirement in turn, this Court will focus on

the lack of any identifiable contractual or business relationship or expectancy.

As a preliminary matter, Plaintiff does not allege the existence of any extant contract or

business relationship with which Marshall interfered. Instead, he claims that “an expectancy of

[an] employment relationship is created when a job applicant submits a job application.” Pl.’s Obj.

to PF&R, at 6. This is an assertion without merit, insofar as a “mere hope or attempt to obtain

future employment, however well-founded . . . does not amount to the existence of a contractual

or business relationship or expectancy.” Shawkey v. Lowe’s Home Ctrs., Inc., No. 2:09-cv-01264,

2011 WL 1229784, at *13 (S.D.W. Va. Mar. 30, 2011) (quoting Hatfield v. Health Mgmt. Assocs.

of W. Va., 672 S.E.2d 395, 403 (W. Va. 2008)) (internal quotations omitted). Plaintiff goes on to

reference a cancelled interview in his objection, claiming that the prospective employer “might

have” cancelled the interview “due to a bad reference from the defendants.” Pl.’s Obj. to PF&R,

at 7. Yet even “prospects for imminent employment” have been found insufficient to establish the

existence of a business expectancy. See Kerr v. Marshall Univ. Bd. of Governors, No. 2:14-cv-

12333, 2015 WL 1405537, at *13 (S.D.W. Va. Mar. 26, 2015). Without identifying a particular

contractual or business expectancy with which Defendants could have interfered, no alleged

instance of tortious interference will survive a motion to dismiss. It follows that the addition of

tortious interference claims to Plaintiff’s Complaint would be futile.

C. Malice

Plaintiff also objects to the Magistrate Judge’s decision to deny his motion to add

“maliciously” to each count of his Complaint where it was not already present. Pl.’s Obj. to PF&R,

at 8. Magistrate Judge Eifert based her decision to deny Plaintiff’s motion on his failure “to provide

any specific factual grounds” for including the term “malicious” or “maliciously.” PF&R, at 13–

14. In his objection, Plaintiff responds by citing a definition of malice in the context of Title VII.

See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999) (“The terms ‘malice’ or ‘reckless

indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal

law.”). This definition is inapposite to the specific factual shortcomings referenced in the PF&R.

As noted, a futile amendment is one that cannot survive a motion to dismiss. Perkins v.

United States, 55 F.3d 910, 916–17 (4th Cir. 1995). Accordingly, an amendment is futile if it does

not “state a claim to relief that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). In determining whether a claim is plausible, courts will consider facts and

inferences alleged in the complaint in the light most favorable to the plaintiff. Ibarra v. United

States, 120 F.3d 472, 474 (4th Cir. 1997). Even so, a “pleading that offers labels and conclusions

or a formulaic recitation of the elements of a cause of action will not do.” Aschroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotations omitted). Put differently, a complaint will not suffice “if

it tenders naked assertions devoid of further factual enhancement.” Id. Here, Plaintiff seeks to add

the word “maliciously” to Counts 1, 4, 5, 6, 7, 8, 9, 10, and 11 of his Complaint. See Mod. Am.

Compl., ECF No. 173-1. He does not seek to add “maliciously” to Counts 2 and 3, where it already

is included in his initial complaint. Id. The apparent randomness of these additions, coupled with

a lack of new facts to support them, are precisely the type of “naked assertions devoid of further

factual enhancement” that will not survive a motion to dismiss. See Ashcroft, 556 U.S. at 678.

Accordingly, their incorporation into Plaintiff’s Complaint would be futile.

D. Sovereign Immunity

Plaintiff once again stresses that, because he only seeks prospective relief, “Marshall

University does not have sovereign immunity” with respect to his defamation and tortious

interference claims. Pl.’s Obj. to PF&R, at 2. Defamation and tortious interference are both state

law claims. Dashields, 2000 WL 564024, at *3. It is firmly established that only state officials fall

within the prospective relief exception to the Eleventh Amendment’s shield against state law

claims. Wei-Ping Zeng v. Marshall University, 370 F. Supp. 3d 682, 690 (S.D.W. Va. 2019).

Marshall University is not a state official, and is instead an arm of the state of West Virginia. See

Zimmeck v. Marshall Univ. Bd. of Governors, 3:13-14743, 2013 WL 5700591 (S.D.W. Va. Oct.

18, 2013). As Plaintiff’s new tort claims against Marshall University would be subject to

immediate dismissal, leave to amend would be futile.

IV. CONCLUSION

Based upon the preceding analysis, the Court ADOPTS Magistrate Judge Eifert’s PF&R

(ECF No. 199) consistent with this Memorandum Opinion and Order and DENIES Plaintiff's

Motion to Modify Amended Complaint and Join Defendants (ECF No. 173).

The Court DIRECTS the Clerk to forward copies of this written opinion and order to all

counsel of record and any unrepresented parties.

ENTER: August 22, 2019

: JZ,

Yh

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

-]1-