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Cabi v. Boston Children's Hospital

United States District Court, D. Massachusetts

February 12, 2016

SERKAN CABI, Ph.D., ISIN CAKIR, Ph.D. and SAFAK MERT, Ph.D., Plaintiffs,
v.
BOSTON CHILDREN’S HOSPITAL, THE CHILDREN’S HOSPITAL CORPORATION AND ITS AFFILIATED ENTITIES, UMUT OZCAN, M.D., JOSEPH MAJZOUB, M.D., SANDRA L. FENWICK, MICHELE GARVIN and ERX PHARMACEUTICALS, INC., Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, UNITED STATES DISTRICT JUDGE.

I. Introduction

Plaintiffs Serkan Cabi, Isin Cakir and Safak Mert (individually, “Cabi, ” “Cakir” and “Mert”; collectively “Plaintiffs”) have filed this lawsuit against Defendants Boston Children’s Hospital, the Children’s Hospital Corporation and its Affiliated Entities, Umut Ozcan, Joseph Majzoub, Sandra Fenwick, Michele Garvin and ERX Pharmaceuticals, Inc. (individually “BCH, ” “Ozcan, ” “Majzoub, ” “Fenwick, ” “Garvin” and “ERX”; collectively, “Defendants”) alleging violations of 42 U.S.C. § 1983 for constitutional claims, Mass. Gen. L. c. 12 §§ 11H and 11I, Title VII, Mass. Gen. L. c. 151B and 42 U.S.C. § 1985. D. 33. Plaintiffs also allege retaliation in violation of multiple statutes, breach of contract and misrepresentation. Id. In separate motions, Defendants have moved to dismiss. D. 38; D. 40; D. 44. For the reasons stated below, the Court DENIES in part and GRANTS in part the motions.

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (internal citation omitted). The Court conducts a two-step, context-specific inquiry. See García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the complaint “as a whole” to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. The Court must accept the factual allegations as true. Id. Conclusory legal assertions may be disregarded. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal quotation marks and citation omitted).

To survive a motion to dismiss, the complaint must provide sufficient factual allegations to render the claims “plausible on [the] face [of the complaint].” García-Catalán, 734 F.3d at 103. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 557) (alteration in original). “In determining whether a [pleading] crosses the plausibility threshold, ‘the reviewing court [must] draw on its judicial experience and common sense.’” Garcia-Catalan, 734 F.3d at 103 (quoting Iqbal, 556 U.S. at 679). The Court notes that “[t]his context-specific inquiry does not demand ‘a high degree of factual specificity.’” García-Catalán, 734 F.3d at 103 (internal citations omitted).

III. Factual Background

The following summary is based upon the factual allegations in the complaint, which exceeds 300 single-spaced paragraphs and contains nearly 400 pages of exhibits and which the Court must accept as true for the purpose of considering Defendants’ motions to dismiss.

A. The Parties

Plaintiffs are post-doctoral fellows who worked in Ozcan’s laboratory at BCH. D. 33 ¶ 1. Ozcan is a principal investigator and supervisor at BCH. Id. ¶¶ 5-6. Majzoub is Ozcan’s Division Chief at BCH. Id. ¶ 11. Fenwick is the President and Chief Executive Officer at BCH. Id. ¶ 12. Garvin is Senior Vice President and General Counsel at BCH. Id. ¶ 13. Ozcan is also a director at ERX, a corporate entity separate from BCH. Id. ¶ 9. Through ERX, Ozcan hopes to market the results of research performed at his laboratory. Id. ¶ 10. While working in Ozcan’s laboratory, Plaintiffs conducted research on the biology of obesity and diabetes with the goal of developing drugs to prevent those conditions. Id. ¶ 22. Plaintiffs allege that Cakir and Cabi worked on two patent applications related to the anti-obesity and diabetes research: (1) Application PCT/US2013/061911 (“SR01”) and (2) Application 61/908, 998 (“SR02”). Id. ¶¶ 57, 59. Cabi and Cakir were at one point considered inventors on the SR01 and SR02 patents. Id. ¶¶ 59-61, 67, 72, 78. Cabi, Cakir and Mert contributed to manuscripts concerning SR01 (“SR01 manuscript”) and SR02 (“SR02 manuscript”). Id. ¶¶ 61, 82-90, 99-111.

B. Ozcan’s Research Related Misconduct

Plaintiffs allege that Ozcan fabricated research results and forced Plaintiffs to fabricate research results under the threat of retaliation. Id. ¶¶ 29, 33-35, 132, 142-43. Plaintiffs allege that Ozcan conducted research misconduct in scientific manuscripts, federal grant applications and scientific meeting presentations. Id. Plaintiffs allege that Ozcan’s fabricated data was used in the SR01 manuscript and the SR02 manuscript. Id. ¶ 83. Ozcan demanded pre-determined results from certain experiments, regardless of the actual outcome. Id. ¶ 132. If Plaintiffs failed to provide the results Ozcan expected, he cursed, called them “idiot[s]” in front of other people and threatened, inter alia, termination of employment, cancelation of publications and withholding of letters of recommendation. Id. ¶¶ 132, 143. Plaintiffs further allege that Ozcan forced them to conduct research for ERX using BCH and federal funding under the threat of retaliation. Id. ¶¶ 33-35, 160-62.

C. Hostile Work Environment in Ozcan’s Laboratory

Plaintiffs allege that Ozcan created a hostile work environment through a litany of racist, sexist and sexual comments made over several years beginning in 2011. Id. ¶¶ 124-157, 230. Despite knowing that Plaintiffs’ mothers were Turkish, Ozcan made offensive statements regarding Turkish people. Id. ¶ 141. According to Plaintiffs, in 2012, for example, Ozcan told Plaintiffs that all Turkish women are good for is “being fucked.” Id. Ozcan made similar comments at other times. Id. Ozcan also repeatedly mocked Cakir’s ethnic background in front of other people. Id. ¶ 139. Ozcan told Cakir that he looked as stupid and empty as a “Laz, ” a term that Plaintiffs allege is a reference to Cakir’s ethnic background. Id.; D. 73 at 22 Ozcan also told Cakir that Cakir was as stupid as a person from the Black Sea region, another reference to Cakir’s ethnic background. Id. Ozcan frequently accused Mert of being a terrorist, including in front of other people. Id. ¶ 146, and made sexually inappropriate threats in Turkish on one occasion after asking Cabi and Cakir a scientific question. Id. ¶ 138. Plaintiffs describe such comments as routine. Id.

Plaintiffs also allege that Ozcan made sexually explicit comments and derogatory comments towards African Americans and Mexicans. Id. ¶¶ 124-157. Plaintiffs allege that Ozcan routinely told explicit sexual stories about his own life and Cabi’s sexual life. Id. ¶¶ 129-130. According to Plaintiffs, Ozcan instructed Cakir to lie when interviewed by BCH regarding a sexual harassment complaint that a female researcher made against Ozcan. Id. ¶ 133.

D. Plaintiffs’ Reports of Ozcan’s Misconduct

Plaintiffs allege that beginning in 2014, Cabi and Cakir sought the advice of management regarding the proper procedures for reporting Ozcan’s misconduct. Id. ¶¶ 30-32. Plaintiffs allege that they were encouraged to report the misconduct and assured that they would be protected by BCH’s non-retaliation policy. Id. ¶¶ 30-32, 39-41. On March 3 and 4, 2014, Plaintiffs made official reports of Ozcan’s research misconduct and the hostile work environment in Ozcan’s laboratory. Id. ¶¶ 33-35. In response, BCH promised that it would open an investigation, assign Plaintiffs an independent senior professor for supervision and assign Plaintiffs to a new laboratory. Id. ¶¶ 43, 55.

E. Retaliation

Plaintiffs allege that in the year prior to reporting Ozcan’s misconduct, Cabi and Cakir received raises, Mert received a promotion and Ozcan publicly praised Cabi and Cakir. Id. ¶¶ 23-28, 278. Additionally, Ozcan recommended that Cabi and Cakir apply for fellowships and Majzoub offered to support their applications. Id. ¶ 173. Majzoub told Cabi and Cakir that he thought it was time for them to receive a promotion. Id. ¶ 52.

Plaintiffs allege that this treatment changed after they reported Ozcan’s misconduct. Plaintiffs allege that BCH, Ozcan and Majzoub, individually and collectively, cut Plaintiffs off from the laboratory and financial resources that Plaintiffs needed to continue conducting research. Id. ¶¶ 167-168, 174-176, 178-185. Plaintiffs also allege that BCH stripped Cabi and Cakir of inventorship rights on the SR01 and SR02 patents and stripped Plaintiffs of authorship rights on the SR01 and SR02 manuscripts because Plaintiffs were unwilling to agree to the inclusion of data they knew to be fabricated. Id. ¶¶ 115, 122, 170-171. According to Plaintiffs, after they reported Ozcan’s misconduct, Majzoub refused to support Cabi and Cakir’s fellowship applications. Id. ¶ 173. Similarly, Ozcan prevented Mert’s publication of research related to Mert’s doctoral dissertation. Id. ¶ 123. Ozcan inappropriately contacted Cakir’s principal investigator at Vanderbilt University where Cakir had already obtained a post-doctoral fellowship position. Id. ¶¶ 189-190. Plaintiffs further allege that a few months after they reported Ozcan’s misconduct, Ozcan filed a false charge of research misconduct against Cabi and Cakir. Id. ¶ 45. BCH ultimately terminated Plaintiffs, jeopardizing Cabi and Mert’s ability to remain in the United States given that they are on work visas. Id. ¶¶ 17, 188, 193, 278.

F. Spoliation of Evidence by BCH and Ozcan

According to Plaintiffs, laboratory notebooks and documents related to the SR01 and SR02 patents have been destroyed, discarded or otherwise lost by Ozcan and/or BCH. Id. ¶ 71. BCH failed to secure research materials including laboratory notebooks and computers that were in Ozcan’s possession and were central to resolving the inventorship disputes related to the SR01 and SR02 patents’ inventorship. Id. ¶¶ 195-196. Plaintiffs also allege that BCH has denied Cabi and Cakir access to information and reports that Plaintiffs are entitled to pursuant to 42 C.F.R. § 93.307(f). Id. ¶¶ 49-51, 197-198.

IV. Procedural History

On or about December 29, 2014, Plaintiffs filed charges with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission. Id. ¶ 20. On June 11, 2015, Plaintiffs instituted this action, D. 1, and subsequently filed an amended complaint. D. 33 Ozcan, ERX, BCH, Fenwick, Garvin and Majzoub have now moved to dismiss the amended complaint. D. 38; D. 40; D. 44. The Court heard the parties on the pending motions and took these matters under advisement.

V. Analysis

A. Defendants Are Entitled to Dismissal of Plaintiffs’ 42 U.S.C. § 1983 Claims (Count I and II)

Plaintiffs asserts claims against BCH, Ozcan, Majzoub, Fenwick and Garvin for violations of Plaintiffs’ First Amendment, Fifth Amendment and Fourteenth Amendment rights under 42 U.S.C. § 1983. D. 33 ¶¶ 239-250. The parties do not dispute that each of the Defendants named in these counts is a private actor. Id. ¶¶ 239-242; D. 46 at 4-5.

1. Requirements for Section 1983 Claims against Private Parties

Section 1983 “provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place ‘under color of any statute, ordinance, regulation, custom, or usage, of any State.’” Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir. 2015) (citing Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005)). As section 1983 does not apply to purely private action, Barrios-Velazquez v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 491 (1st Cir. 1996), the pivotal question “is whether the conduct at issue in this case may be fairly attributable to the State” such that section 1983’s color of law requirement is satisfied. Id. (internal quotation marks and citation omitted).

It is only the “rare circumstance[]” in which a private party can be deemed a state actor for section 1983 purposes. Klunder, 778 F.3d at 30 (internal quotation marks and citations omitted). One of three tests must be satisfied: (1) the state compulsion test, (2) the nexus/joint actor test, or (3) the public function test. See Sanchez v. Pereira-Castillo, 590 F.3d 31, 51-52 (1st Cir. 2009). Under the state compulsion test, private parties can be deemed state actors if the state has “exercised coercive power or has provided such significant encouragement . . . that the [challenged conduct] must in law be deemed to be that of the State.” Klunder, 778 F.3d at 30 (quoting Estades-Negroni, 412 F.3d at 5) (alternation in original) (internal quotation marks omitted). Under the nexus/joint action test, private parties can be treated as state actors “where an examination of the totality of the circumstances reveals that the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in [the challenged activity].” Id. at 31 (alteration in original) (internal quotation marks and citation omitted). Finally, private parties who “performed a public function that has been traditionally the exclusive prerogative of the State” can be treated as state actors. Id. (internal quotation marks and citation omitted).

2. Plaintiffs’ Allegations Do Not Plausibly Satisfy Any of the Tests for Attributing Private Conduct to the State

a) BCH’s Conduct Cannot Be Attributed to the State

The Court considers whether Plaintiffs’ relevant allegations satisfy any of the three tests. To address the state action requirement, Plaintiffs first point to their allegation that BCH received National Institute of Health funds. D. 33 ¶ 8; D. 46 at 6. Second, Plaintiffs point to their allegation that BCH is committed to promoting community health. D. 46 at 5. Third, Plaintiffs note that BCH acted in a “quasi-judicial investigatory and disciplinary capacity for the federal government” pursuant to 42 C.F.R. § 93.100 et seq.. D. 33 ¶ 241; D. 46 at 6. Finally, Plaintiffs allege that “BCH collaborates with the Massachusetts Life Sciences Center, a quasi-public state agency, and other state and local government entities in pursuit of these endeavors.” D. 33 ¶ 3.

Plaintiffs’ allegations do not provide sufficient cause to attribute the conduct of BCH to the state under any of the applicable tests. BCH’s receipt of federal funding is not sufficient cause to attribute BCH’s conduct to the state because “it is well-settled . . . that receipt of federal funding does not render an entity a state actor for purposes of [section] 1983.” Hoover v. Suffolk Univ. Law Sch., 27 F.3d 554, 1994 WL 251266, at *1 (1st Cir. 1994) (dismissing section 1983 claim because “[t]he only basis for state action . . . asserted was that [the defendant] receives federal funding”); see Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982) (determining that “the school's receipt of public funds does not make the discharge decisions acts of the State”); Rockwell v. Cape Cod Hosp., 26 F.3d 254, 258 (1st Cir. 1994) (stating that “the receipt of federal funds . . . are insufficient to establish that a hospital or other entity acted under color of state law”).[1]

BCH’s commitment to “promot[ing] the general health of the community[, ]” D. 46 at 5, is not the kind of traditional state power that renders BCH’s conduct attributable to the state. Although the state may engage in the promotion of community health, community health is not an “‘exclusively’ governmental” function. Rinsky v. Trustees of Boston Univ., No. 10-cv-10779-NG, 2010 WL 5437289, at *4 (D. Mass. Dec. 27, 2010) (explaining that “[a]lthough social workers perform a public service, their enterprise is hardly the exclusive domain of the state”). “[T]he provision of health services is not and has never been the exclusive province of the state.” Estades-Negroni, 412 F.3d at 8 (rejecting the argument that defendants “are state actors under the public function test because they provided health services to indigents”). Similarly, Defendants’ commitment to or involvement with scientific research does not satisfy the state action test because “[w]hile it is true that the federal government has engaged in substantial funding of scientific research, such research is by no means within the exclusive domain of government.” Cohen v. President & Fellows of Harvard Coll., 568 F.Supp. 658, 661 (D. Mass. 1983) aff'd, 729 F.2d 59 (1st Cir. 1984) (dismissing section 1983 claim against university).

Plaintiffs also point to BCH’s internal investigations and characterize the investigations as “a quasi-judicial investigatory and disciplinary capacity.” D. 33 ¶ 37; D. 46 at 6. It is not uncommon for institutions to have internal disciplinary and other decision-making processes; those investigations rise neither to the level of a traditional state power nor to joint action so long as the state did not influence or coerce the private party’s decision or encourage a particular outcome in any particular case. See Berrios v. Inter Am. Univ., 535 F.2d 1330, 1332 (1st Cir. 1976) (dismissing section 1983 claim after finding, among other things, that the university’s disciplinary proceedings were not fairly attributable to the state under any of the applicable tests); see also Estades-Negroni, 412 F.3d at 5 (rejecting argument that private hospital’s procedure for determining an individual’s civil commitment rendered the hospital a state actor). There is no allegation that BCH’s investigation was influenced by the federal government. There is no allegation of specific government action during BCH’s investigatory process. Thus, the investigations do not render BCH’s conduct attributable to the state. See Cohen, 568 F.Supp. at 660-661 (granting dismissal where plaintiff was “unable to point to any specific ‘actions of the government which in fact motivated the private action’”); see also Barrios-Velazquez, 84 F.3d at 492 (noting that “[a] private entity's conduct is not actionable under section 1983 if the challenged action results from the exercise of private choice and not from state influence or coercion”).

For all of these reasons, Plaintiffs have failed to establish that BCH’s actions can be attributed to the state. Dismissal of this claim is warranted.

b) The Individual Defendants’ Conduct Cannot Be Attributed to the State

Plaintiffs argue that Ozcan, Majzoub, Fenwick and Garvin’s alleged conduct can be attributed to the state because Ozcan, Majzoub, Fenwick and Garvin are employees of BCH and had direct decision-making responsibility over the alleged conduct of BCH upon which Plaintiffs rest this claim. D. 46 at 8; D. 47 at 3. Thus, in lodging this section 1983 claim against Ozcan, Majzoub, Fenwick and Garvin, Plaintiffs point to the very same alleged actions that Plaintiffs relied upon in asserting this claim against BCH. For all of the same reasons the Court concluded that BCH’s alleged actions were insufficient to establish that BCH acted under color of state law, the Court concludes that Ozcan, Majzoub, Fenwick and Garvin’s alleged participation in BCH’s actions is insufficient to establish that those individuals acted under color of state law. As such, dismissal of this section 1983 claim against the individuals is warranted. See e.g., Snyder v. Talbot, 836 F.Supp. 19, 21-22 (D. Me. 1993) (granting motion to dismiss section 1983 claim against individual defendant because “the [c]omplaint fail[ed] to allege facts sufficient to support a finding that [the] [d]efendant acted ‘under color’ of state law”).

Contrary to Plaintiffs’ suggestion, Bivens does not save Plaintiffs’ claims. Bivens v. SixUnknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). Bivens is unavailable against private actors. See Stoutt v. Banco Popular de Puerto Rico, 320 F.3d 26, 33 (1st Cir. 2003) (noting that “[t]he Supreme Court has already limited Bivens actions by refusing to extend them to private entities acting under color of federal law”) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001)). In sum, because there is ...


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