Lee v. West Virginia University

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

MARK R. LEE,

Plaintiff,

v. CIVIL ACTION NO. 1:22-CV-156

(KLEEH)

WEST VIRGINIA UNIVERSITY, WEST VIRGINIA

UNIVERSITY SCHOOL OF MEDICINE, and

WEST VIRGINIA UNIVERSITY MEDICAL CORPORATION,

doing business as University Health Associates,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [ECF NO. 117]

Pending before the Court is Defendant’s Motion for Summary

Judgment [ECF No. 117]. For the reasons discussed herein, the

Motion is GRANTED.

I. RELEVANT PROCEDURAL HISTORY

The EEOC and the WVHRC issued right to sue letters on

September 20, 2022, and December 14, 2022, respectively [ECF Nos.

1-1, 1-4]. Thereafter, Dr. Lee commenced this action asserting

five causes of action [ECF No. 1] against West Virginia University

(“WVU”), West Virginia University School of Medicine (“WVUSOM”),1

and West Virginia University Medical Corporation doing business as

University Health Associates (“UHA”). By prior Order [ECF No. 31],

1 West Virginia University and West Virginia University School of

Medicine are referred to collectively herein as “the WVU defendants.”

the Court dismissed the WVU defendants as parties and dismissed

without prejudice Counts II and IV of the Complaint as they relate

to the WVU defendants. ECF No. 31.

On August 28, 2024, UHA filed Defendant’s Motion for Summary

Judgment [ECF No. 117] moving for judgment as a matter of law on

Dr. Lee’s claims for age discrimination under the Age

Discrimination in Employment Act (“ADEA”) and the West Virginia

Human Rights Act (“WVHRA”), retaliation under the ADEA and the

WVHRA, and breach of contract. Dr. Lee then filed his response in

opposition to the motion for summary judgment on September 18,

2024 [ECF No. 119] and UHA replied in support of its Motion on

October 2, 2024. ECF No. 122. Thereafter, the Court held a hearing

and took up arguments on the subject motion on December 16, 2024.

Thus, UHA’s motion for summary judgment is fully briefed and ripe

for review.

II. FACTUAL BACKGROUND

In the spring of 2018, Dr. Ali Rezai (“Rezai”), the Executive

Director of the Rockefeller Neuroscience Institute (“RNI”), and

Dr. Clay Marsh (“Marsh”), Chancellor and Executive Dean for Health

Sciences at WVU, began recruiting Plaintiff Dr. Mark Lee (“Lee” or

“Plaintiff”) to serve as Chair for the Department of Neurosurgery

for WVU and as a pediatric neurosurgeon. ECF No. 118, Def. Mem.

Mot. Summ. J. at pp. 2-3; ECF No. 120, Pl. Mem. in Opp. Summ. J.

at pp. 1-2. Lee was to be employed by two separate but affiliated

entities. First, in May 2018, WVU appointed Lee as Chair of the

Department of Neurosurgery within the School of Medicine at the

Robert C. Byrd Health Sciences Center of WVU (“WVUSOM”). WVU

Contract, ECF Nos. 117-9, 121-12. Lee’s employment with WVU was

governed by a letter dated May 29, 2018, which Lee signed on May

31, 2018. Id. Additionally, Lee entered into a professional

services agreement (“UHA Contract”) with West Virginia University

Medical Corporation doing business as University Health Associates

(“UHA”) to work as a physician practicing pediatric neurosurgery.

UHA Contract, ECF Nos. 117-10, 121-11.

Each contract required Lee to be employed with the other

entity as a condition of employment, but each employment

relationship was governed by its separate agreement [ECF Nos. 117-

9, 117-10]. For example, the WVU Contract provides in pertinent

part:

You will also be required to sign a separate

Professional Services Agreement ("PSA") with

the West Virginia University Medical

Corporation, which is the faculty practice

plan for all clinical service activities of

the physician faculty. Your employment with

WVU is contingent upon the execution of the

PSA and continued employment with UHA.

ECF No. 117-9 at p. 2. Similarly, the UHA Contract provides as a

condition precedent, Lee must:

Enter into a written agreement with the WVUSOM

to be a full-time member of the Faculty and a

full-time employee of the WVUSOM effective

August 31, 2018.

Regarding Lee’s employment with WVU as faculty member and chair of

the Neurosurgery Department, the WVU Contract laid out Lee’s

position responsibilities, expected benchmarks for the role,

compensation information, among other terms and conditions of

employment. ECF No. 117-9. As a WVU employee, Lee reported to Marsh

and Rezai. Id. at p. 4. The faculty and chair appointments were

subject to renewable one-year terms. Id. As a UHA employee, Lee

was hired for automatically renewing successive one-year terms and

the UHA Contract provided conditions for early termination

including a 90-day notice of intention not to renew and other

occurrences which would automatically terminate the UHA Contract.

ECF No. 117-10 at p. 4. For instance, the UHA Contract provides

that the agreement would terminate automatically if Lee was no

longer a full-time employee and faculty member of WVUSOM. Id. Both

agreements contemplated a total combined annual salary of

$1,250,000 for Lee’s full-time work for WVU and UHA. ECF Nos. 117-

9, 117-10. Further, Lee was eligible to earn $50,000 annual bonuses

as part of the Chair’s incentive program. ECF No. 117-9.

According to Defendant, Dr. Lee’s supervisors and colleagues

became concerned regarding his performance after his first year

with WVU and UHA. ECF No. 118. For example, Rezai observed that

Lee reduced his participation and attendance in meetings and that

his personal productivity declined in 2019 and 2020. ECF No. 117-

4, Rezai Dep. at 195:19-24. Additionally, Dr. Judie Charlton

(“Charlton”) who served as the Chief Medical Officer for UHA until

November 2020, also expressed concerns regarding Lee’s work.

During his annual review in 2020, Charlton discussed with Lee

concerns regarding his absenteeism and lack of involvement on

satellite campuses. ECF No. 117-6, Charlton Dep. at 117:1-19. They

also discussed concerns with Lee’s productivity on the surgical

side, his management of the neurosurgery department, and the misuse

of WVU Foundation funds. Id. at 117:20-119:23; 124:15-18.

Though the concerns were raised in person during Lee’s

evaluation, they were not explicitly documented in his official

evaluation or elsewhere. ECF No. 120-5, Charlton Dep. 126:2-8

(“They are alluded to in a graceful manner to allow a professional

an opportunity to adjust.”); ECF No. 117-6 at 121:2-10 (“this was

a collegial intervention on my part to bring negative issues

forward to him that both Doctor Marsh and Albert Wright and I had

shared, so I'm extrapolating on what went on in the verbal dialogue

and why we chose not to put it in [the written evaluation]”.

Rather, Lee’s evaluations from 2020 and 2021 provide key

performance metrics for the neurosurgery department, identify

notable events and challenges from the prior year, and list goals

or focuses for the upcoming year. ECF No. 121-15. And, in 2020 and

2021, all department chairs, including Lee, received 100% of the

incentive bonus payment - $50,000. Id.

After Lee met with Charlton in March 2020, Rezai met with him

because Lee appeared upset and surprised from the feedback he

received during his evaluation. ECF No. 117-4, Rezai Dep. at 197:1-

3; 199:3-5. During this meeting, Rezai reiterated that he wanted

Lee to succeed and that he needed to change his ways and

participate more. Id. at 197:4-13. Though Charlton and Rezai

expressed concerns regarding department productivity, Lee did not

“lean on” the other providers to produce more work and felt Rezai

was micromanaging the department. ECF No. 117-8, Lee Dep. at 217:1-

24.

Believing that Lee was no longer passionate in his role and

continued to disengage during his second and third years with WVU

and UHA, Rezai and other leadership sought to develop a role for

Lee to create a new pediatric neuroscience program in the Spring

of 2021. ECF No. 117-4 at p. 130:10-24. Rezai wanted to offer Lee

a new position because he was a good surgeon, WVU needed pediatric

neurosurgery, and leadership wanted to give Lee a chance to help

move things forward. Id. at 222:4-6. Lee seemed interested and

engaged in the new opportunity. Id. at 222:17-18. Accordingly,

Rezai, Marsh, and other leadership worked to develop the new

position for Lee. By letter dated May 3, 2021, Lee was offered the

position of Executive Director of the WVU Medicine Children’s

Neuroscience Center within RNI. ECF No. 117-18. The offer letter

provided that Lee would receive the same compensation, but his

effort allocation would change to 30% administrative, 60%

clinical, and 10% academic. Id. Further, he would report to the

new Chair of Neurosurgery for his clinical and academic efforts;

Marsh and Rezai would still supervise Lee’s administrative

efforts. Id. The offer letter additionally provided that Lee would

assist in transitioning the Chair responsibilities to the next

Neurosurgery Chair – anticipating a 3-month transition period in

which Lee would assist the new Chair through September 2021. Id.

The offer letter was signed by Marsh, Rezai, and Dr. Michael

Edmond, who took over Charlton’s role as the head of UHA in

November 2020. Id. Lee thought this was a good plan. ECF No. 117-

8 at 232:1.

On or about May 3, 2021, while meeting over Zoom, Marsh

informed Lee that he would no longer be able to serve as the

Neurosurgery Chair if he accepted the new role with the pediatric

neuroscience center. ECF No. 120-13, Lee Dep. at 332:21-334:6.

While discussing a potential replacement for chair position, Marsh

stated that he was interested in recruiting someone younger with

a longer runway who would be able to stay in the position for ten

to fifteen years. Id. at 333:7-9.

Rezai, along with Amy Bush and Karyn Wallace, met with Lee

regarding the new position and offer on May 10, 2021. ECF No. 117-

17. Rezai reported to the leadership group that they had a positive

discussion about the role, but that Lee wanted the option of a

non-qualified deferred compensation plan. Id. Lee had previously

inquired to Amy Bush and Marsh whether such a compensation plan

would be possible. ECF No. 117-20. Lee informed Marsh on May 5,

2021, that being able to participate in a non-qualified deferred

compensation plan was “critical” if he were to transition to the

new role. Id. Upon consultation with Director of Human Resources

Leeann Kaminsky, it was determined that a deferred compensation

plan could not be offered with the new role. ECF No. 117-4 at

131:20-23 (“We can’t do it based on state’s legal rules. . . We

tried. If we could have given it to him, we would have given it to

him.”). Accordingly, Lee did not accept the executive director

position because the non-qualified deferred compensation plan was

an important term for him. ECF No. 117-8 at 258:13-259:70; 117-4

at 131:15-19, 139:17-20 (“when he said no, because you’re not

paying me my deferred comp, that was a very big disappointment

from everybody universally, here”); Marsh Dep., ECF No. 120-1 at

247: 23-25, ECF No. 117-5 at 248:1 (“[A]s I understood it was

really based on the inability for us to defer his compensation.”).

Because Lee did not accept the new position and WVU/UHA

leadership were unhappy with his productivity and performance,

Rezai and Marsh determined a transition and new plan forward was

necessary. ECF No. 117-4:271:18-21, 289:19-22.

According to Lee, Marsh presented him with three options in

June of 2021. ECF No. 120-13, Lee Dep. 238:5-24. First, Lee could

continue on as Chair of Neurosurgery for an additional two years

with required goal metrics. Id. Second, Lee could continue as Chair

for one year to assist in the transition for the new chair, and

then would receive $630,000. Id. Third, Lee could continue as Chair

for one year to assist in the transition and then return to a

regular faculty position in the Neurosurgery department. Id. Marsh

and Lee continued to discuss the possible transition approaches.

ECF No. 117-4, 271:10-17. See also, ECF No. 120-1, Marsh Dep. at

251. During these discussions, Marsh expressed his desire to hire

a new chair that was younger and earlier in their career with more

interest and energy for the role. ECF No. 120-18. According to

Rezai, throughout these discussions, Lee maintained his preferred

plan was to be paid two year’s salary and to cease his employment

with WVU and UHA. Id. at 253:19-24.

On July 19, 2021, Edmond met with Lee to discuss a proposed

transition plan, which provided that WVU/UHA would pay Lee a

settlement of $630,000 on August 21, 2022, if the following metrics

were attained:

•

A new Chair of Neurosurgery has been

recruited

•

A new pediatric neurosurgeon has been

recruited

•

Pediatric neurosurgery volume metrics

are met

•

Stabilization of system needs for

neurosurgery

ECF No. 117-22. The proposed plan also stated that the settlement

value would be decreased by 10% for each metric Lee failed to

attain in the year, but that if all the metrics were achieved,

leadership would “consider earlier release.” ECF No. 117-22. Lee

did not agree with this plan. Id.

Ultimately, Marsh and leadership were not making progress

with Lee in confirming a transition plan, and thus Marsh believed

a formal meeting was necessary to settle on a clear path forward.

Id. at 271: 18-22; 285:1-5 (“And the whole time, they were trying

to figure out what they're going to do in terms of a transition

plan. But since they were not able to get an agreement, that's why

Clay called that meeting so we can get an agreement by a transition

plan.”).

Accordingly, a meeting was scheduled for July 22, 2021 for

Lee, Marsh, and Rezai in Marsh’s office at 4:00 PM. ECF No. 117-

23. The meeting lasted approximately forty-five minutes and did

not result in an agreed transition plan. ECF No. 117-4, 285:7-9,

304:11-12. Rather, Lee “walked out” of the meeting and told Rezai

to contact his attorney. Id. at 285:10-15. According to Rezai, the

decision to remove Lee as chair occurred at this meeting. Id. at

302:2-5. Before leaving the meeting, Lee was not expressly informed

that he was being removed as chair, but Rezai believed it was

understood that he would no longer be the chair because of the

context of the conversation. Id. at 304-305 (“I think it was

understood if he doesn't agree. Clay can do it [remove Lee as

Chair] anytime as the dean.”).

After the meeting, Marsh tried to recommunicate with Lee, but

he directed leadership to his counsel and leadership determined

they needed to remove Lee from the chair position before his

contract renewed. ECF No. 120-1, 289:22-290:2. On August 9, 2021,

Marsh and Rezai brainstormed language to notify faculty of Lee’s

removal as Neurosurgery Chair. ECF No. 117-4, 306:7-17.

On July 29, 2021, Lee’s counsel, Marie Millie Jones, sent a

letter to Marsh, Rezai, Edmond, and WVU/UHA’s counsel outlining

Lee’s expectations if he agreed to continue in his positions to

assist in the transition period for a new chair. ECF No. 120-22.

The letter stated that WVU/UHA were obligated to comply with its

5-year employment commitment and terms of Lee’s employment

contracts. Id. The letter also alleged that Marsh’s age-related

comments constituted age discrimination and that Lee was not

provided any explanation for being asked to step down from his

chair position. Id. WVU/UHA counsel, Carol Marunich and Katherine

Dean, discussed the terms and entered into negotiations with Lee’s

counsel. ECF No. 120-24. Following, on August 12, 2021, Jones sent

Marunich and Dean a second letter with updated terms in which Lee

would resign from his roles and pursue legal action. Id. On August

18, 2021, WVU/UHA’s counsel informed Lee via his counsel that WVU

would be removing him as the Neurosurgery Chair, effective

September 1, 2021. ECF No. 120-23. The letter recognized that Lee

would remain employed by UHA under the Professional Services

Agreement (.4 FTE) and gave Lee the option to increase his clinical

time to maintain benefits. Id. Further, Lee retained a faculty

appointment with the WVUSOM. Id. Accordingly, WVU/UHA rejected

Lee’s proposal and intended to proceed with his transition from

the chair position on September 1, 2021. Id. Marsh and Rezai

informed the Neurosurgery Department that Lee would no longer be

chair at a department meeting on August 25, 2022. ECF No. 120-27.

Dr. Pete Konrad was appointed as the interim Chair of Neurosurgery,

and later was appointed to the permanent position. Id.; ECF No.

120-1, Marsh Dep. at 318:5-7. Konrad is in his sixties and is

approximately the same age as Lee. ECF No. 117-4, Rezai Dep. at

386:9.

On August 20, 2021, Lee field a Charge of Discrimination with

the Equal Employment Opportunity Commission. ECF No. 120-27; ECF

No. 120-29. Additionally, Lee filed a grievance with WVU’s Office

of Diversity, Equity, and Inclusion on September 14, 2021. ECF No.

120-27. Lee alleged that Marsh and Rezai’s decision to accelerate

his removal as Chair by one year was the result of retaliation

related to his reporting age discrimination on July 29, 2021.

Subsequently, WVU retained Julie Moore and Bowles Rice LLP to

investigate Lee’s DEI Complaint. ECF No. 120-27.

While in the process of determining Lee’s future at WVU/UHA

or transition from the Chair position, Lee was also pursuing

alternative employment. Beginning in July 2021, Lee communicated

with staff from the Children’s Hospital of San Antonio (“CHofSA”).

ECF No. 117-25. Lee sent his CV to doctors at CHofSA on July 6,

2021. ECF No. 117-24. On July 22, 2021 – following his meeting

with Marsh and Rezai – Lee met over Zoom with Dr. Katherine

Barsness, the Chair of the Department of Neurosurgery at CHofSA.

ECF No. 117-25; ECF No. 120-13, Lee Dep. at 345: 20-21. On October

11, 2021, Lee formally applied for a position as Professor of

Neurosurgery to work at Children’s Hospital of San Antonio. ECF

No. 117-27. On October 21, 2021, Lee signed an employment agreement

with Baylor College of Medicine to work as the Section Chief of

Pediatric Neurosurgery. ECF No. 117-28. The Baylor employment

contract provided an employment commencement date of March 28,

2022. Id. On November 9, 2021, Lee informed his administrative

assistant that he intended for his last month with WVU/UHA to be

December 2021, but advised her that he had not yet announced his

resignation. ECF No. 117-30. Further, Lee’s wife informed their

landlord that their final month in West Virginia would be December

on October 10, 2021 [ECF No. 117-29] – after having already moved

to a month-to-month lease in August. ECF No. 117-26.

Lee intended to take three-month sabbatical in early 2022

before starting work with CHofSA. ECF No. 117-30. Lee went to

Madrid Spain on or about December 22, 2021, and returned to San

Antonio, Texas on January 14, 2022. Lee was scheduled to work in

Morgantown, West Virginia for UHA in February 2022. ECF No. 117-

8, Lee Dep. at 281: 13-16. On January 14, 2022, Konrad, as acting

Chair, emailed Lee regarding his availability to work in the clinic

the following week and asked for an in-person meeting with Lee.

ECF No. 117-32. In a new email thread with the subject line “Re:

Notice of Departure”, Lee informed Konrad, Rezai, Marsh, Gordon

Gee, and Karyn Wallace that he felt he was “being pushed out” and

could not “remain at WVU any longer.” ECF No. 117-33. While Lee

stated he was willing to work with Konrad on timing and scheduling,

he informed Konrad that he was prepared to leave immediately. Id.

Lee sent his notice of resignation because he was unable to return

to Morgantown the week of January 19, 2022, due to travel plans

and because he thought he was being set up to be fired. ECF No.

117-8, Lee Dep. 279: 1-20 (“I quit before I got fired.”).

Ultimately, Lee began working for CHofSA and filed suit

against WVU and UHA on December 15, 2022.

III. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18.

Summary judgment is proper “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-

moving party, there [being] no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The Court views the evidence in the light most

favorable to the non-moving party and draws any reasonable

inferences in the non-moving party’s favor. See Fed. R. Civ. P.

56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc).

IV. DISCUSSION

For the reasons that follow, Defendant UHA is entitled to

summary judgment on all the claims asserted in Dr. Lee’s Complaint.

As an initial matter, the Court assumes without deciding, for the

purposes of this opinion only, that West Virginia Medical

Corporation d/b/a University Health Associates is culpable for the

statements of Dr. Clay Marsh, Chancellor and Executive Dean for

health science at WVU and that Lee’s removal as Chair is an adverse

action to his employment with UHA as a clinical physician.

Notwithstanding, the Court finds that summary judgment is

proper as to all counts for the following reasons.

A. COUNT 1: AGE DISCRIMINATION IN VIOLATION OF THE AGE

DISCRIMINATION IN EMPLOYMENT ACT AGAINST DEFENDANT UHA

The ADEA provides that it is unlawful for “an

employer . . . to discharge any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s age[.]” 29 U.S.C. § 623(a). “To

prevail on an ADEA claim, a plaintiff must prove by a preponderance

of the evidence that age constituted the but-for cause of the

adverse employment action.” Bandy v. City of Salem, Virginia, 59

F.4th 705, 710 (4th Cir. 2023). A plaintiff may do so through

direct or circumstantial evidence of age discrimination. Id.

“Direct evidence is ‘evidence of conduct or statements that

both reflect directly the alleged discriminatory attitude and that

bear directly on the contested employment decision.’” Bandy, 59

F.4th at 711 (quoting Taylor v. Va. Union Univ., 193 F.3d 219, 232

(4th Cir. 1999) (en banc), abrogated on other grounds by Desert

Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003)). The Fourth Circuit

adopted the Fifth Circuit’s Jackson test, Jackson v. Cal-Western

Packaging Corp., 602 F.3d 374 (5th Cir. 2010), for determining

whether derogatory comments constitute direct evidence of age

discrimination. Bandy, 59 F.4th at 711.

[D]erogatory comments constitute direct

evidence of discrimination if they are ‘(1)

related to the protected class of persons of

which the plaintiff is a member; (2) proximate

in time to the complained-of adverse

employment decision; (3) made by an individual

with authority over the employment decision at

issue; and (4) related to the employment

decision at issue.’

Id. “Derogatory comments about an employee's age may be direct

evidence of age discrimination, provided they concern the

employee's age and sufficiently demonstrate that the employer's

age-related animus affected the employment decision at issue.”

Arthur v. Pet Dairy, 593 F. App'x 211, 218 (4th Cir. 2015).

Additionally, a plaintiff may rely upon circumstantial

evidence to support a prima facie claim of age discrimination.

Without direct evidence of intentional discrimination, courts

analyze ADEA claims under the McDonnell Douglas burden-shifting

framework established for Title VII claims. See Darnell v. Tyson

Foods, Inc., 536 F. App’x 366, 369 (4th Cir. 2013). To establish

a prima facie case of age discrimination:

[A plaintiff] must demonstrate that: (1) he is

a member of a protected class; (2) he suffered

an adverse employment action; (3) he was

performing his job duties at a level that met

his employer’s legitimate expectations at the

time of the adverse employment action; and (4)

the position remained open or was filled by a

similarly qualified applicant outside the

protected class. Hill, 354 F.3d at 285.

Id. (citations omitted). If an employee establishes a prima facie

case of age discrimination, the burden then shifts to the employer

to rebut the presumption of discrimination by producing evidence

that it acted for “a legitimate, nondiscriminatory reason.”

Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019).

At the final stage of the McDonnell Douglas framework, “[t]he

employee must ‘prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant[-employer] were not

its true reasons, but were a pretext for discrimination.’” Id. at

726.

Importantly, “an employee cannot prevail on an age

discrimination claim by showing that age was one of multiple

motives for an employer's decision; the employee must prove that

the employer would not have [taken the adverse employment action]

in the absence of age discrimination.” Bandy, 59 F.4th at 710

(quoting Westmoreland, 924 F.3d at 725). “[T]o prove

discriminatory animus, the derogatory remark cannot be stray or

isolated and [u]nless the remarks upon which plaintiff relies were

related to the employment decision in question, they cannot be

evidence of [discrimination].” McNeal v. Montgomery Cnty., Md.,

307 F. App'x 766, 774 (4th Cir. 2009) (insertions in original)

(internal citations omitted). Furthermore, “[i]n order for

derogatory remarks to be indicative of discrimination, the

statements must not be isolated or ambiguous, and there must be a

nexus between the statements and the challenged employment

decision.” Diamond v. Bea Maurer, Inc., 128 F. App'x 968, 972 (4th

Cir. 2005) (finding plaintiff failed to proffer direct or indirect

evidence of racial employment discrimination because the three

claimed remarks were both ambiguous and isolated and did not

provide a nexus to the employment action).

Additionally, “[c]omments about age often do not ‘carry the

same animus as those about race or gender’ because ‘barring

unfortunate events, everyone will enter the protected age group at

some point in their lives.’” Witzke v. Pepsi Bottling Ventures,

LLC, 2018 WL 4491219, at *5–6 (D. Md. Sept. 19, 2018), aff'd, 773

F. App'x 130 (4th Cir. 2019)(quoting Birkbeck v. Marvel Lighting

Corp., 30 F.3d. 507, 512 (4th Cir. 1994) (holding that statement

by decision maker that “there comes a time when we have to make

way for younger people” was not evidence of age discrimination)).

Rather, “[a]ge-based comments that merely reflect ‘a fact of life’

are ‘truisms’ that cannot establish a discrimination claim.” Id.

“Though not dispositive, the fact that the decisionmaker for

the adverse employment action belongs to the same protected class

as the plaintiff is probative of a lack of discriminatory intent.”

Rorie v. Bd. of Educ. of Charles Cnty., 653 F. Supp. 3d 217, 237

(D. Md. 2023)(citing Love v. Alamance County Bd. of Educ., 757

F.2d 1504, 1509 (4th Cir. 1985)). See Thompson v. CSX

Transportation, Inc., 582 F. Supp. 3d 355, 368 (S.D.W. Va. 2022),

aff'd, 2023 WL 2344230 (4th Cir. Mar. 3, 2023)(finding the fact

that the decision maker was in the same protected age class as the

employee created an inference against age discrimination); Beach

v. DXC Tech. Co., 2020 WL 3065308, at *5 (S.D.W. Va. June 9, 2020).

Furthermore, the “same actor” inference can support that an

employer’s proffered reason for discharging an employee is not

pretextual if the employee is “hired and fired by the same person

within a relatively short time span.” Proud v. Stone, 945 F.2d

796, 798 (4th Cir. 1991).

UHA argues that the ADEA age discrimination claim fails for

multiple reasons. First, UHA contends the two subject age-related

comments are not direct evidence of discrimination because they

related to the tenure of Lee’s potential replacement, rather than

Lee’s age. ECF No. 118 at p. 18. Second, UHA argues Lee cannot

establish a case of age discrimination under the McDonnell Douglas

burden-shifting framework because his age was not the but-for cause

of his termination. Id. at p. 19. Further, UHA asserts the two

comments were isolated, stray remarks which did not relate to Lee’s

age. Rather, Marsh’s comments were general remarks regarding the

need for generational change. Id. UHA further argues that any

inference of discrimination is undercut by the facts that Dr. Marsh

recruited and terminated Lee and Lee’s replacement, Dr. Konrad, is

the same age as Lee. Id. at p. 20.

In contrast, Lee asserts that Marsh’s two age-related

comments are direct evidence of age discrimination. ECF No. 120 at

p. 15. Lee claims that the comments were related to his employment

because they occurred during discussions to remove Lee as Chair of

the Neurosurgery department, and subsequently his role as a

physician with UHA. Id. at p. 120.

Here, the Court finds that Plaintiff has failed to prove a

prima facie case of age discrimination under the ADEA. As an

initial matter, the Court notes that the employment at issue is

Lee’s employment as a physician with UHA, not Lee’s chair

appointment with WVU. Marsh’s comments that the new Neurosurgery

Chair should be someone younger with a longer runway for the

position are not direct evidence of age discrimination. First, the

comments occurred in May and June 2021 during discussions when it

was believed Lee was interested in beginning a new position with

WVU and would be stepping down as Chair and assisting in the

recruitment of his successor. To the extent Plaintiff argues Lee’s

removal as Chair is an adverse action to his employment with UHA

as a clinical physician, the comments occurred two to three months

before he was removed as chair and at least six months before he

resigned from his employment with UHA. Thus, the comments did not

occur proximate in time to any adverse employment action.

Furthermore, the subject comments did not relate Lee’s age to his

skill or ability as a neurosurgeon. Marsh nor anyone else with UHA

or WVU ever told Lee he was too old to practice medicine. ECF No.

117-8, Lee Dep. at 285: 22-286:6. Thus, Plaintiff’s direct evidence

argument fails.

The undisputed evidence further shows that Plaintiff cannot

make out a prima facie case of age discrimination based upon

circumstantial evidence. Plaintiff resigned from his clinical

position with UHA in January 2021, while away from work and after

securing new employment in San Antonio. The record reflects that

Lee was not meeting WVU’s legitimate expectations as to the chair

position or UHA’s legitimate expectations for surgical

productivity. The fact that Lee received the annual chair bonus is

not dispositive of his performance, because all department chairs

received the bonus during the subject years. Further, it is evident

that efforts were made to collaborate with Lee in finding him an

appropriate position at WVU and he ultimately ended those

negotiations when he walked out of the July 2021 meeting.

Additionally, Plaintiff’s claims of age discrimination are

further discredited because Lee’s replacement, Dr. Konrad, is in

his sixties and in the same protected age group as Plaintiff. This

supports that age was not the but-for cause of his removal.

Further, while the same-actor inference does not apply because of

the time lapse between Lee’s hiring and departure, the Court still

finds it relevant that Marsh took place in Lee’s selection and

removal from the chairmanship. The fact that Marsh is in the same

protected age group also further discounts any discriminatory

intent.

In conclusion, the two isolated comments made regarding

potential applicants for Lee’s replacement are insufficient to

support a claim for age discrimination. UHA set forth legitimate

reasons to support why WVU removed Lee from his chair position and

Lee has failed to proffer evidence that such reasons are

pretextual. Thus, viewing the evidence in the light most favorable

to Lee, there is no genuine dispute of material fact with regard

to Lee’s age discrimination claim and summary judgment is GRANTED

as to Count One.

B. COUNT II: AGE DISCRIMINATION IN VIOLATION OF THE WEST

VIRGINIA HUMAN RIGHTS ACT AGAINST DEFENDANT UHA

The WVHRA makes it unlawful for an employer to discriminate

against an employee “with respect to compensation, hire, tenure,

terms, conditions or privileges of employment” based on the

employee’s age, which is defined as age 40 or above. Wilson v.

Arcelormittal Weirton, LLC, No. 5:19-CV-254, 2021 WL 612405, at *2

(N.D.W. Va. Jan. 14, 2021) (citing W. Va. Code §§ 5-11-9, 5-11-

3). Like their federal counterparts, claims under the WVHRA follow

the McDonnell Douglas burden-shifting framework. Id.

Under the burden-shifting framework, an employee must first

prove a prima facie case of discrimination. Id. To do so, he

must show (1) that he is a member of a protected class; (2) that

he suffered an adverse employment action; and (3) that but for his

protected class status, the adverse action would not have been

taken. Id. (citing Syl. Pt. 2, Conaway v. E. Assoc. Coal Corp.,

358 S.E.2d 423 (W. Va. 1986)). “[A] plaintiff can create a triable

issue of discrimination animus through direct or circumstantial

evidence.” Knotts v. Grafton City Hosp., 786 S.E.2d 188, 194–95

(2016) (internal citation omitted). If the employee meets this

initial burden, the burden shifts to the employer to articulate a

legitimate, non-discriminatory reason for the adverse action. Id.

If the employer does so, the burden shifts back to the employee to

prove that the employer’s rationale is mere pretext for unlawful

discrimination. Id.

An adverse employment action means a “significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Id. at *3

(citation omitted).

For the same reasons elaborated supra regarding Lee’s ADEA

age discrimination claim, Lee’s WVHRA age discrimination claim

also fails. Thus, UHA’s motion for summary judgment is GRANTED as

to Count Two.

C. COUNT III: RETALIATION IN VIOLATION OF THE AGE

DISCRIMINATION IN EMPLOYMENT ACT AGAINST DEFENDANT UHA

“An employer violates the ADEA by retaliating against an

employee for engaging in a protected activity.” Johnson v.

Mechanics & Farmers Bank, 309 F. App’x 675, 684 (4th Cir. 2009)

(unpublished) (citing 29 U.S.C. § 623(d) (2000)). A plaintiff must

satisfy the following elements to establish a prima facie case of

retaliation under the ADEA: “(1) the plaintiff engaged in a

protected activity; (2) the employer took an adverse employment

action against the plaintiff, and (3) a causal connection existed

between the protected activity and the adverse employment action.”

Id. (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th

Cir. 1989)).

An employee who voluntarily resigned from his job has not

experienced an adverse employment action. Cooper v. Smithfield

Packing Co., Inc., 724 F. App’x 197, 202 (4th Cir. 2018). However,

an employee can be “constructively discharged” if his “employer

has created a hostile working climate which was so intolerable

that the employee was forced to leave his . . . employment.” Spano

v. Metro. Life Ins. Co., No. 2:09-cv-01243, 2011 WL 2180657, at *5

(S.D.W. Va. June 2, 2011) (citation omitted). Thus, the employee

must show that the “working conditions created by or known to the

employer were so intolerable that a reasonable person would be

compelled to quit.” Id.

The standard for constructive discharge is higher than the

standard for hostile work environment. See Tinsley v. Astrue, No.

3:10-cv-01184, 2012 WL 5377881, at *8 (S.D.W. Va. Aug. 15, 2012),

report and recommendation adopted (“The law is well-settled that

a claim of constructive discharge requires proof of working

conditions that are even harsher than those required to state a

claim of hostile work environment.”). General unhappiness with

performance management is insufficient to meet the standard for

constructive discharge. See Williams v. Giant Food Inc., 370 F.3d

423, 434 (4th Cir. 2004)(“[D]issatisfaction with work assignments,

a feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable

person to resign.”).

UHA argues that Lee cannot succeed on a claim of retaliation

based upon his removal as chair or reduction to .4 FTE. ECF NO.

118 at p. 21. First, UHA argues that WVU’s removal of Lee as chair

does not support the second or third elements of a retaliation

charge because UHA did not have the authority to remove Lee as

chair, and nonetheless the transition to remove Lee as chair began

in March 2021 before Marsh’s comments, and WVU decided to remove

Lee as chair before receiving correspondence from Lee’s attorney

on July 29. 2021. Id. at pp. 21-22. As for the adjustment to a .4

FTE, UHA argues that was the total clinical effort allocation

pursuant to his contracts and the .6 FTE was the time allocated

under Lee’s employment with WVU. Id. at p. 22. Thus, there was a

legitimate, non-discriminatory reason to adjust Lee’s FTE. Id.

In contrast, Lee argues that the timing of Lee’s removal as

chair after his counsel sent the letter claiming age discrimination

is evidence of retaliatory intent and creates the necessary

causation. ECF No. 120 at p. 19. Furthermore, Lee argues that he

was constructively discharged in retaliation for reporting Marsh’s

comments and pushed out of his employment when he was removed from

the chair position, was reduced from a 1.0 FTE to a .40 FTE, had

his compensation reduced to $630,000, lost employer paid benefits,

and lost his office space and administrative support.

Here, the Court ultimately finds that Plaintiff’s retaliation

claim, including allegations of retaliatory constructive

discharge, fails as a matter of law. Assuming arguendo Plaintiff

set forth sufficient evidence to support a prima facie case of

retaliation under the ADEA, the undisputed facts show that UHA

acted with legitimate nondiscriminatory purposes. Lee was not

removed as chair because his attorney’s July 29th letter alleged

age discrimination.2

The record clearly shows that Marsh and Rezai began working

with Lee to transition him to a different position, months prior.

The record consistently shows that leadership was not happy with

his performance as chair and counseled Lee on ways he could

improve. Marsh and Rezai ultimately removed Lee from the chair

position because Lee turned down the pediatric neurosurgery

position and ceased negotiations for stepping down. While Lee

contends that the timeline for his removal was accelerated due to

2 Plaintiff appears to argue in his response brief that he reported the

alleged discriminatory comments to Rezai in May 2021. ECF No. 120 at p.

18. However, Plaintiff’s citation to the record refers to Lee speaking

with Rezai after his negative review with Dr. Charlton – not reporting

age-related comments from Marsh. See ECF No. 120-13 at 135.

his reports of discrimination, the record shows that Rezai and

Marsh had to appoint an interim chair and begin the search process

without Lee because he walked away and did not agree to assist in

the transition. Marsh was entitled to end Lee’s chair appointment

at any time, but instead tried to take Lee’s career and preferences

into consideration. Accordingly, the decision to remove Lee from

the Neurosurgery Chair appointment was based on legitimate

concerns regarding Lee’s performance and was not retaliatory.

Thus, UHA’s motion for summary judgment is GRANTED as to Count

Three.

D. COUNT IV: RETALIATION IN VIOLATION OF THE WEST VIRGINIA

HUMAN RIGHTS ACT AGAINST DEFENDANT UHA

“The WVHRA prohibits retaliatory discharge, such as ‘any form

of reprisal or otherwise discriminat[ing],’ against a person

“because he or she has opposed any practices or acts forbidden

under” the WVHRA or because that person ‘filed a complaint,

testified, or assisted in any proceeding under’ the WVHRA.” Biddle

v. Fairmont Supply Co., 2015 WL 5634611, at *5 (N.D.W. Va. Sept.

24, 2015), aff'd, 648 F. App'x 382 (4th Cir. 2016) (citing W. Va.

Code § 5-11-9(7)(C)). “A protected activity includes the filing of

a complaint against an employer for discrimination.” Id.

To prove a prima facie case of retaliatory discharge under

the WVHRA, a plaintiff must prove:

(1) that the complainant engaged in protected

activity, (2) that complainant's employer was

aware of the protected activities, (3) that

complainant was subsequently discharged and

(absent other evidence tending to establish a

retaliatory motivation), (4) that

complainant's discharge followed his or her

protected activities within such period of

time that the court can infer retaliatory

motivation.

Syl. Pt. 10, Hanlon v. Chambers, 464 S.E.2d 741 (W. Va. 1995);

Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 224, 700 S.E.2d 183,

193 (2010).

For the same reasons elaborated supra regarding Lee’s ADEA

retaliation claim, Lee’s WVHRA retaliation claim also fails. Thus,

UHA’s motion for summary judgment is GRANTED as to Count Four.

E. COUNT V: BREACH OF CONTRACT AGAINST DEFENDANT UHA

In West Virginia, the elements of breach of contract are (1)

a contract exists between the parties; (2) a defendant failed to

comply with a term in the contract, and (3) damage arose from the

breach. Patrick v. PHH Mortgage Corp., 937 F.Supp.2d 773, 792

(N.D.W. Va. 2013). “A valid written instrument which expresses the

intent of the parties in plain and unambiguous language is not

subject to judicial construction or interpretation but will be

applied and enforced according to such intent.” Wickland v. Am.

Mountaineer Energy, Inc., No. 1:17-CV-205, 2019 WL 1590590, at *6

(N.D.W. Va. Apr. 12, 2019) (quoting Syl. Pt. 2, Toppings v. Rainbow

Homes, Inc., 490 S.E.2d 817 (W. Va. 1997)). “The mere fact that

parties do not agree to the construction of a contract does not

render it ambiguous.” Id. (quoting syl. Pt. 2, CONSOL Energy, Inc.

v. Hummel, 792 S.E.2d 613 (W. Va. 2016)).

“An employee, demanding damages for alleged breach of his

contract of employment, may rest his case upon proof of a valid

contract and its breach, the measure of his damages being the

contract price of his services.” Wheeling Jesuit Univ., Inc. v.

Voorhees, 907 S.E.2d 572, 579 (W. Va. Ct. App. 2024).

In support of dismissing the breach of contract claim, UHA

asserts that once Lee stopped serving as Chair, it was under no

obligation to maintain Lee’s employment or full-time compensation

and benefits. ECF No. 118 at p. 24. Accordingly, Defendant contends

it had the right to adjust Defendant’s compensation on September

1, 2022, after Lee was formally removed as Chair. Id. at p. 25. In

contrast, Lee asserts that UHA breached its contract because he

was removed from the chair position for improper reasons – age

discrimination and retaliation. ECF No. 120 at p. 21. Plaintiff

further asserts that UHA did not provide the necessary 90-day

notice of his termination and downgraded his employment from a 1.0

FTE to .4 FTE. Id. Lee further claims that he was given a 5-year

commitment by UHA. Id. at p. 22. During the Court’s hearing on the

subject motion, the Court asked Plaintiff to identify the specific

provisions of the UHA contract he contends were breached. Plaintiff

stated that multiple provisions were violated based upon the

alleged discriminatory or retaliatory conduct.

Here, the Court finds that Plaintiff’s breach of contract

claim fails as a matter of law. First, the only contract at issue

is the UHA Professional Services Agreement. The Court assumed

without deciding that UHA can be culpable for Marsh’s comments.

The Court does not make any finding regarding whether WVU and UHA

are integrated employers or operate under a joint employer theory

– and thus the two separate employment agreements are not read as

one. Paragraph 12 of the UHA Contract unambiguously provides:

Integration. This Agreement constitutes the

sole and entire agreement between the parties

with respect to Physician's provision of

medical professional services and coverage and

performance of other clinical duties. Any

negotiations, discussions, or understandings

between the parties, which have not been

expressly included in this written agreement,

are not and shall not be considered or

construed to be part of this Agreement.

ECF No. 117-10 at ¶ 12. Thus, under the clear contract language,

the WVU Contract is not a part of UHA’s agreement with Lee

regarding his clinical practice and services. The same is true

regarding any claim of a five-year commitment by WVU or UHA for

employment. The UHA Contract was automatically renewable for one-

year terms. Id. at ¶ 6. Thus, any conversations or negotiations

that took place before the UHA Contract was signed are not part of

the final agreement. Further, either parties’ or individual’s

belief regarding Lee’s expected tenure with UHA is not dispositive;

the language of the UHA Contract controls. The WVU Contract – not

the UHA Contract – provided requirements, benchmarks, and expected

outcomes for Lee’s tenure as the Neurosurgery Chair appointment.

While the WVU Contract provides 5-year goals, that contract is

separate from the UHA Contract. ECF No. 121-12 at p. 4.

Accordingly, this argument fails.

Additionally, the UHA Contract states that it terminates

automatically upon the “termination of Physician’s status as a

full-time employee and member of the Faculty of WVUSOM.” ECF No.

117-10 at ¶ 7.a.ii. Plaintiff argues he was entitled to the 90-

day notice requirement if his contract with UHA would not be

renewed. However, UHA did not end his employment as a physician.

Rather, when WVU’s counsel notified Lee’s counsel that he would be

relieved of his chair appointment effective September 1, 2021, Lee

was informed that he would continue his employment with UHA and

was given the opportunity to increase his clinical work to maintain

his medical and retirement benefits. ECF No. 120-23. Lee did not

increase his clinical hours and thus was not entitled to receive

fulltime benefits.

While Plaintiff contends he was forced to resign his clinical

position due to age discrimination and retaliation, the Court has

already rejected these arguments. Defendant was not subject to a

retaliatory constructive discharge. Rather, Plaintiff voluntary

resigned his employment with UHA after finding new employment.

Plaintiff chose to maintain a .4 FTE and take time off before

resigning, rather than work the minimum FTE required to remain

benefit eligible. The undisputed evidence shows that Dr. Konrad

wanted to schedule Lee for clinic hours during January 2022, ECF

No. 117-32. However, rather than return to work, Lee tendered his

resignation via email. ECF No. 117-33. The fact that UHA did not

discharge Lee - for any purpose - is bolstered by the evidence

that Lee told his assistant in November 2021 that his last month

in West Virginia would be December and that he had already accepted

a new job. ECF No. 117-30. For these reasons, Lee’s claim for

breach of contract fails.

Vv. CONCLUSION

For the reasons stated herein, Defendant’s Motion for Summary

Judgment [ECF No. 117] is GRANTED. Plaintiff’s Complaint [ECF No.

1] is DISMISSED WITH PREJUDICE. This action is thus STRICKEN from

the Court’s active docket and the Clerk is DIRECTED to enter

judgment in favor of West Virginia University Medical Corporation,

d/b/a University Health Associates.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record by the CM/ECF system.

DATED: February 27, 2025

Tom 8 Klas

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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