Mengyang Li v. Shepherd University President's Office ( 2021 )

FILED
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS June 23, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Mengyang Li,
Plaintiff Below, Petitioner
Vs.) No. 20-0393 (Jefferson County 19-C-102)
Shepherd University President’s Office,
Defendant Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Mengyang Li appeals the February 28, 2020, order of the
Circuit Court of Jefferson County granting Respondent Shepherd University President’s Office’s
(“University”) motion to dismiss petitioner’s amended complaint for a failure to state a claim under
the West Virginia Human Rights Act. The University, by counsel Tracey B. Eberling, filed a
response. Petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
Petitioner is a naturalized United States citizen, whose country of origin is China, and an
associate professor in the University’s department of chemistry. From 2014 to May of 2019,
petitioner alleges that he experienced discrimination and harassment from his departmental
colleagues and University officers. In 2016 and 2017, petitioner twice applied for a promotion to
professor. According to the University’s 2016-2017 faculty handbook, a faculty member may be
considered for a promotion to professor if he or she meets eight minimum qualifications, one of
which requires “[s]cholarly work accomplished during the term of [a]ssociate [p]rofessor rank as
evidenced by refereed publications, funded refereed external grants, juried performances, or juried
exhibitions.”
1
With regard to petitioner’s 2016 application, on May 3, 2017, the University found that
petitioner did not meet the minimum qualifications for a promotion to professor, because he did
not have any refereed publications as an associate professor, and denied the application. On
October 30, 2017, petitioner filed a grievance with the West Virginia Public Employee Grievance
Board (“WVPEGB”) alleging that the University misinterpreted the minimum qualifications for
promotion to professor (“first grievance”). Petitioner further alleged that the University
discriminated against and harassed him during the promotion application process. By order entered
on January 29, 2019, the WVPEGB dismissed petitioner’s first grievance as untimely filed. 1
Petitioner appealed the dismissal of his first grievance to the Kanawha County Circuit Court which
affirmed the dismissal by order entered on January 24, 2020. Petitioner did not appeal the January
24, 2020, order to this Court.
With regard to petitioner’s 2017 application for a promotion to professor, the University
denied that application on April 23, 2018, again finding that petitioner did not have any refereed
publications as an associate professor. The parties subsequently litigated the issue of whether
petitioner timely grieved the April 23, 2018, denial of his 2017 application before the WVPEGB.
By order entered on April 23, 2019, the WVPEGB found that petitioner timely grieved the denial
of his 2017 application for promotion to professor (“second grievance”) as a part of his first
grievance of the denial of his 2016 application. The second grievance was given its own case
number and remains pending before the WVPEGB.
On May 31, 2019, petitioner filed a civil action in the Jefferson County Circuit Court,
alleging that he experienced discrimination and harassment from his departmental colleagues and
University officers from 2014 to May of 2019. 2 In petitioner’s complaint, he included 105 factual
allegations setting forth the procedural history of his grievances and describing the testimony given
at the various proceedings in his first grievance. 3 Specifically, petitioner pointed to ten instances
where he alleged that the University’s witnesses testified falsely. Also, in petitioner’s complaint,
he stated his intention to “designate[ ]” the records from his grievances. As relief, petitioner
requested the Jefferson County Circuit Court to (1) “[s]top the age, race[,] and national origin
discrimination and retaliation and harassment [petitioner has] been experiencing for years”; (2)
stop “the hostile work environment [petitioner has] been experiencing for years”; (3) impose
discipline upon “the perpetrators of discrimination and harassment”; and (4) “[r]ight the wrong of
denying [petitioner’s] promotion.”
1
West Virginia Code § 6C-2-4(a)(1) requires a grievant to file a grievance “[w]ithin fifteen
days following the occurrence of the event upon which the grievance is based, or within fifteen
days of the date upon which the event became known to the employee, or within fifteen days of
the most recent occurrence of a continuing practice giving rise to a grievance[.]”
2
The University is located in Jefferson County.
3
A public employee grievance consists of three levels. See W. Va. Code § 6C-2-4.
Petitioner states that his second grievance has “not been heard in the Levels 1-3 hearings yet.”
2
On July 11, 2019, the University filed a motion to dismiss petitioner’s complaint based
upon his failure to exhaust his administrative remedies. By order entered on October 15, 2019, the
Jefferson County Circuit Court granted, in part, and denied, in part, the motion to dismiss. In doing
so, the Jefferson County Circuit Court relied upon this Court’s decision in Subramani v. West
Virginia University Board of Governors, No. 14-0924, 2015 WL 7628720 (W. Va. November 20,
2015) (memorandum decision); like petitioner, the grievant in Subramani filed grievances under
the grievance procedure related to his employer’s failure to promote him to the rank of full
professor. Id. at *2. Here, the Jefferson County Circuit Court found that this Court in Subramani
affirmed a dismissal based upon a lack of jurisdiction “even in circumstances wherein . . .
[p]etitioner did not pursue the circuit court appeal or withdrew the previously filed grievances.” 4
Here, at the time of the Jefferson County Circuit Court’s October 15, 2019, order, the dismissal of
petitioner’s first grievance was pending before the Kanawha County Circuit Court, and petitioner’s
second grievance was pending before the WVPEGB. Accordingly, the Jefferson County Circuit
Court dismissed the complaint due to a lack of subject matter jurisdiction. However, the Jefferson
County Circuit Court gave petitioner sixty days to file an amended complaint setting forth claims
pursuant to the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 through 5-11-20.
See Syl. Pt. 9, Weimer v. Sanders, 232 W. Va. 367, 752 S.E.2d 398 (2013) (holding that exhaustion
of administrative remedies is not required prior to filing discrimination claims pursuant to the
Human Rights Act); Syl. Pt. 3, Vest v. Bd. of Educ. of Cty. of Nicholas, 193 W. Va. 222, 455 S.E.2d
781 (1995) (same).
On December 16, 2019, petitioner filed an amended complaint in the Jefferson County
Circuit Court, setting forth the original 105 factual allegations and adding fourteen more for a total
of 119. However, as in his original complaint, petitioner (1) set forth the procedural history of his
grievances and described the testimony given at the various proceedings of his first grievance; (2)
pointed to the ten instances where he alleged that the University’s witnesses testified falsely; and
(3) stated his intention to “designate[ ]” the records from his grievances. Petitioner further repeated
the claims for relief from the original complaint, including his request that the circuit court “[r]ight
the wrong of denying of [his] promotion[.]” 5 On January 2, 2020, the University filed a motion to
dismiss the amended complaint for a failure to state a claim under the Human Rights Act. By order
entered on February 28, 2020, the Jefferson County Circuit Court dismissed the amended
4
This Court in Subramani v. West Virginia University Board of Governors, No. 14-0924,
2015 WL 7628720 (W. Va. November 20, 2015) (memorandum decision) found that West
Virginia Code § 18B-2A-4(l) provides that the “[grievance] procedure established in . . . [West
Virginia §§ 6C-2-1 through 6C-2-8], . . . is the exclusive mechanism for hearing by prospective
employee grievances and appeals.” Id. at *5.
5
Petitioner further asked that he be compensated for “the severe professional, financial[,]
and emotional damages that [he] suffered from the continuous [a]ge, [r]ace[,] and [n]ational
[o]rigin discriminations, harassments[,] and reprisal[.]”
3
complaint, finding that “[petitioner]’s disagreement with [the University]’s application of its
promotional policy does not, without more, give rise to a claim under the [Human Rights] Act.” 6
Petitioner now appeals the Jefferson County Circuit Court’s February 28, 2020, order
dismissing the amended complaint. “Appellate review of a circuit court’s order granting a motion
to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGrow v. Scott Runyan Pontiac-Buick,
194 W. Va. 770, 461 S.E.2d 516 (1995). A motion to dismiss may be granted when a complaint
“makes only conclusory allegations without any material factual allegations in support thereof.”
Par Mar v. City of Parkersburg, 183 W. Va. 706, 710, 398 S.E.2d 532, 536 (1990) (Emphasis in
original.). Furthermore,
“[i]f a plaintiff does not plead all of the essential elements of his or her legal claim,
a [trial] court is required to dismiss the complaint pursuant to Rule 12(b)(6) [of the
West Virginia Rules of Civil Procedure].” Louis J. Palmer, Jr. and Robin Jean
Davis, Litigation Handbook on West Virginia Rules of Civil Procedure, 406-07 (5th
ed. 2017) (quotations and citation omitted).
Newton v. Morgantown Machine & Hydraulics of West Virginia, Inc., 242 W. Va. 650, 653, 838
S.E.2d 734, 737 (2019).
On appeal, petitioner argues that the Jefferson County Circuit Court erred in dismissing his
amended complaint. The University counters that the dismissal was proper, arguing that, while
petitioner stated in his amended complaint that he was asserting claims under the Human Rights
Act, he failed to do so. We agree with the University.
Based upon our review of the amended complaint, we find that the amended complaint is
substantially similar to the original complaint which was dismissed for a lack of jurisdiction as
containing claims that fell within the jurisdiction of the WVPEGB. Pursuant to West Virginia Code
§ 6C-2-2(i)(1), a grievance is defined as
a claim by any employee alleging a violation, a misapplication or a
misinterpretation of the statutes, policies, rules or written agreements applicable to
the employee including: (i) Any violation, misapplication or misinterpretation
regarding compensation, hours, terms and conditions of employment, employment
status or discrimination; (ii) Any discriminatory or otherwise aggrieved
application of unwritten policies or practices of his or her employer; (iii) Any
specifically identified incident of harassment; (iv) Any specifically identified
6
The Jefferson County Circuit Court further found that, because petitioner stated that the
relevant time period was from 2014 to May of 2019, the applicable statute of limitations, set forth
in West Virginia Code § 55-2-12(b), barred petitioner’s civil action “[t]o the extent that [petitioner]
claims that discriminatory acts occurred more than two years before this suit was filed[.]” Due to
our finding that the Jefferson County Circuit Court properly found that the amended complaint
failed to state a claim under the Human Rights Act, we do not address the propriety of its ruling
based upon the statute of limitations.
4
incident of favoritism; or (v) any action, policy or practice constituting a substantial
detriment to or interference with the effective job performance of the employee or
the health and safety of the employee.
(Emphasis added.). We concur with the circuit court’s finding that, like the allegations in the
original complaint, the amended complaint’s allegations set forth the issue raised in petitioner’s
grievances—the University’s alleged misapplication of its promotional policy—and that such
allegations “do[ ] not, without more, give rise to a claim under the [Human Rights] Act.”
To the extent that petitioner argues he may now raise claims based on his first grievance in
a civil action now that the Kanawha County Circuit Court has affirmed that grievance’s dismissal, 7
which he failed to appeal to this Court, we disagree. The University in this case and West Virginia
University, which was the higher education institution involved in Subramani, both have boards
of governors established by West Virginia Code § 18B-2A-1(b). West Virginia Code § 18B-2A-
4(l) provides that the “[grievance] procedure established in . . . [West Virginia §§ 6C-2-1 through
6C-2-8], . . . is the exclusive mechanism for hearing by prospective employee grievances and
appeals.” Subramani, 2015 WL 7628720, at *5 (Emphasis added.). If petitioner desired to revive
claims based on the dismissal of his first grievance, he should have appealed the Kanawha County
Circuit Court’s January 24, 2020, order, but he failed to do so. Accordingly, we conclude that the
Jefferson County Circuit Court did not err in granting the University’s motion to dismiss.8
For the foregoing reasons, we affirm the circuit court’s February 28, 2020, order granting
the University’s motion to dismiss the amended complaint.
Affirmed.
ISSUED: June 23, 2021
7
Petitioner concedes that the claims based on his second grievance “remain pending before
the WVPEGB.”
8
The University argues that, on appeal, petitioner makes claims of fraud, obstruction of
justice, perjury, and violations of the United States and West Virginia Constitutions that were not
included in the amended complaint. Petitioner counters that “it is important to bring those [alleged]
facts to the attention of this Court.” However, we do not address claims not presented to the circuit
court. See Watts v. Ballard, 238 W. Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (stating that
“[t]his Court will not pass on a nonjurisdictional question which has not been decided by the trial
court in the first instance”) (quoting Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W. Va. 522, 102 S.E.2d
733 (1958)).
5
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
6