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Salagh v. Virginia International University

United States District Court, E.D. Virginia, Alexandria Division

October 3, 2016

LOUBNA SALAGH, Plaintiff,
v.
VIRGINIA INTERNATIONAL UNIVERSITY; ISA SARAC; SULEYMAN BAHCECI; PRASHISH SHRESTHA; and REBECCA YU, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gerald Bruce Lee United States District Judge

         This matter is before the Court on Defendant Virginia International University ("VIU") and Defendants Isa Sarac, Suleyman Bahceci, Prashish Shrestha, and Rebecca Yu ("the Individual Defendants, " and collectively, "Defendants")'s Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). (Doc. 6.) This case concerns pro se Plaintiff Loubna Salagh's claim that Defendants discriminated against her on the basis of sex and national origin, and retaliated against her in violation of both an unspecified whistleblower statute and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").

         There are three issues before the Court. The first issue is whether the Court should grant Defendants' Motion to Dismiss Plaintiffs Title VII claims for discrimination and retaliation against the Individual Defendants where Plaintiff alleges that these Defendants, in their individual capacities, discriminated against her on the basis of her sex and national origin, and retaliated against her for filing an EEOC Charge. The Court GRANTS Defendants' Motion to Dismiss with respect to the discrimination and retaliation claims against the Individual Defendants because Title VII does not recognize individual liability unless the individual is an employer or agent of the employer. Here, the Individual Defendants do not classify as either Plaintiffs employers or agents of her employer, VIU.

         The second issue is whether the Court should grant Defendants' Motion to Dismiss Plaintiffs Title VII claims for discrimination and retaliation against Defendant VIU pursuant to Title VII where Plaintiff alleges she was demoted because of her sex and national origin, and retaliated against after she filed an EEOC Charge. The Court GRANTS Defendants' Motion to Dismiss Plaintiff's discrimination and retaliation claims because she fails to provide sufficient facts to plausibly allege that her demotion was based on her sex or national origin, or that her protected activity led to her demotion.

         The third issue is whether the Court should grant Defendants' Motion to Dismiss Plaintiffs whistleblower claim where Plaintiff alleges she witnessed immigration, tax, and accreditation violations, and was demoted shortly thereafter. The Court GRANTS Defendants' Motion to Dismiss Plaintiffs whistleblower claim because Plaintiff fails to allege conduct or matters that could reasonably lead to a viable False Claims Act (FCA) action as she does not identify any whistleblower cause of action or statute, and does not allege sufficient facts to state a FCA claim.

         I. BACKGROUND

         Plaintiff, Loubna Salagh, is a naturalized United States citizen of Arab descent who was hired at Virginia International University (VIU) as an English as a Second Language (ESL) instructor in March 2014. (Doc. 1 at 2.) In March 2015, Plaintiff was hired as the Director of the School of Test Preparation. (Id. at 3.) Plaintiff alleged that she witnessed immigration, tax, and accreditation violations during her time at VIU. (Id. at 8.)

         In Plaintiffs role as Director, she reported to the Executive Vice President of University Affairs, Suleyman Bahceci. (Doc. 1 at 4.) Plaintiff alleged during her time working under the supervision of Bahceci, he "consistently acted in a manner demonstrating disrespect for Arabs" and demonstrated an "intolerance for women over the age of 30 and strong American women in leadership positions." (Id. at 5.) In September 2015, Plaintiff accompanied the President of VIU, Isa Sarac, on a trip to London and alleges that she was "treated differently" after observing "unethical and inappropriate behavior between the president and the undergraduate student who he also took with him to London." (Id. at 3.) On June 3, 2016, Bahceci completed an appraisal report evaluating Plaintiffs performance in her role and gave her a rating of "developmental" for all questions on the form, indicating that she needs to improve in "several fundamental skills." (Doc. 14-1.) Plaintiff subsequently contacted Rebecca Yu, the Director of Human Resources (HR) at VIU, regarding her dissatisfaction with Bahceci's evaluation, but specifically stated that she did not want HR to take any action. (Doc. 14-1 at 7.)

         Plaintiff filed an EEOC Charge on October 3, 2016 alleging discrimination on the basis of national origin and sex, naming VIU as a respondent and listing Sarac as a party in the Particulars section of the Charge. (Doc. 1-1 at 3.) Plaintiff also alleges that she discovered immigration and visa frauds and she has been targeted by Sarac, Bahceci, and HR ever since. (Doc. 1 at 5.) Plaintiff states that on October 6, 2016, she was demoted from her position as Director to a full-time instructor position and was replaced by a white male, Michael Syefert. (Id. at 6; Doc 14-2 at 7.) Plaintiff acknowledges that there was no diminution in her salary but her position was changed, and she believes this is a demotion. (Doc. 1-3 at 8.) The EEOC dismissed her Charge and issued a Notice of Right to Sue on October 7, 2016. (Doc. 1-1 at 1.)

         Plaintiff filed her suit on October 19, 2016 asserting three claims: (1) discrimination on the basis of sex and national origin in violation of Title VII (Count I); (2) retaliation in violation of Title VII (Count II); and (3) whistleblower protection in violation of an unspecified statute (Count III). (Doc. 1 at 7-8.)

         Defendants filed a Motion to Dismiss on December 21, 2016 on the grounds that "(1) Plaintiffs Complaint fails to state any claim against the Defendants upon which relief may be granted; (2) Plaintiff failed to exhaust her administrative remedies with respect to the individual defendants; and (3) individual liability is not recognized under Title VII." (Doc. 6 at 1.) In opposition to Defendants' Motion to Dismiss, Plaintiff argues that she adequately pled all claims. (Doc. 13 at 2.) In further support of her fraud and whistleblower claims, Plaintiff asserts that she informed federal agencies of Defendants' activities (see Doc. 14 at 6) by filing a Whistleblower Reprisal Form with the U.S. Department of Education-Office of the Inspector General on November 1, 2016 (Doc. 14-2 at 9), and contacting an individual at Homeland Security Investigations (HSI) on November 22, 2016. (Doc 14-2 at 13-22.) In their Reply, Defendants maintain that Plaintiffs claims fail because this Court lacks subject matter jurisdiction over the claims against the Individual Defendants, and her remaining allegations do not, as a matter of law, establish claims upon which relief can be granted. (Doc. 15 at 1.)

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(6) enables a defendant to move for dismissal by challenging the sufficiency of the plaintiffs complaint. Fed.R.Civ.P. 12(b)(6). A 12(b)(6) motion should be granted where the plaintiff has failed to "state a plausible claim for relief under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (internal quotation marks omitted) (quoting Ashcroft v. IqbaU 556 U.S. 662, 679 (2009)). To survive a Rule 12(b)(6) motion, a claim must be facially plausible, meaning the complaint contains sufficient factual allegations, which if taken as true, "raise a right to relief above the speculative level" and "nudg[e] [the] claims across the line from conceivable to plausible, " allowing 'the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting BellAtl Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)); Clatterbuck v. City of Charlottesville, 708 F.3d 549, 554 (4th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

         The requirement for plausibility does not mandate a showing of probability but merely that there is more than a possibility of the defendant's unlawful acts. Francis v. Giacomelli,588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). As a result, a complaint must contain more than "naked assertions" and "unadorned conclusory allegations" and requires some "factual enhancement" in order to be sufficient. Id. (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557). Thus, in reviewing a 12(b)(6) Motion to Dismiss, a court must separate factual allegations from legal conclusions. Burnette v. Fahey,698 F.3d 171, 180 (4th Cir. 2012). Further, a court may consider the facts alleged on the face of the complaint, "documents incorporated into the complaint by reference, " and those matters properly subject to judicial notice. Clatterbuck,708 F.3d 549, 557 (4th ...


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