The opinion of the court was delivered by: Slomsky, J.
Plaintiff Lei Ke ("Plaintiff" or "Ke"), proceeding pro se, filed this lawsuit against Drexel University ("Drexel") and the individual defendants*fn1 (collectively "Individual Defendants") seeking reinstatement as a medical student at Drexel University College of Medicine ("DCM"). Individual Defendants include the President of Drexel University and doctors at DCM who hold different positions at the medical school. Ke claims that he was discriminated against based on his race and national origin and that discrimination led to his dismissal from DCM.
On June 12, 2012, Defendants filed a Motion to Partially Dismiss Plaintiff's Second Amended Complaint. (Doc. No. 31.) They seek a dismissal of the following counts: Count VI, which charges a violation of the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g); Count VII, which charges a violation of the Pennsylvania Fair Educational Opportunity Act (24 Pa. Cons. Stat. § 5004(a)); and Count IX, which charges intentional infliction of emotional distress. In addition, the President of Drexel University, John Fry, is named as a Defendant in four counts of the Second Amended Complaint (Counts I, II, VI, VII, and IX). (Doc. No. 29.) Defendant Fry has moved to be dismissed from this case. He contends that the evidence is insufficient to establish his involvement in any violation. Plaintiff filed a Memorandum in Opposition to the Motion to Dismiss (Doc. No. 33). Plaintiff concedes, however, that Count VI should be dismissed. The Motion to Dismiss is now ripe for disposition and will be granted as to Counts VI, VII, and IX. In addition, Defendant Fry will be dismissed as a Defendant in this case.*fn2
The following facts are set forth in the Second Amended Complaint and
are being viewed in the light most favorable to Plaintiff.*fn3
The facts he alleges are quite extensive, and therefore the
Court will review them at length.*fn4
In the fall of 2008, Ke started medical school at DCM. Sometime after his second year it seems that he was dismissed from the school and then readmitted on a conditional status to retake his second year. (Doc. No. 29-4 at 45.) When Ke was readmitted to DCM in July of 2009, one of the conditions stipulated to by Dean Homan was the following:
The receipt of any grade lower than Satisfactory during your clinical training will be considered as grounds for dismissal from the College of Medicine. (Doc. No. 29-4 at 45.)
Apparently, Plaintiff successfully completed his second year. The problems that led to the filing of this lawsuit by Ke occurred during his third year.
As part of Ke's third year in medical school, he was required to complete a Family Medicine rotation. A medical school rotation is an internship in which the student "obtains hands-on experience in a hospital environment while self-studying for an NBME (National Board of Medical Examiners) exam*fn5 that covers the content of the internship." (Doc. No. 29 at n.1.) From September 28, 2010, to November 3, 2010, Ke attempted to fulfill his required Family Medicine rotation (also known as a "clerkship") at AM Sahar, a private family medical practice owned by Defendant Dr. Anthony Sahar. (Id. ¶¶ 13, 14.) AM Sahar was affiliated with Monmouth Medical Center and also served as a learning center for DCM students. (Id. ¶ 14, n.3.) In his office, Sahar posted a notice explaining his hospital affiliation and teaching position. (Id. at n.3.)
When Ke and Dr. Sahar first met, Sahar asked where Ke came from. (Doc. No. 29 ¶ 15.) Plaintiff responded that he was from Canada. (Id.) Sahar "said that [response] was not good enough because [Plaintiff] was not a white Canadian and kept asking exactly where [Plaintiff] came from." (Id.) Plaintiff explained that he was born in China and immigrated to Canada as a child. (Id.) According to Ke, after he explained where he was born, Sahar "started to talk to Lei [Ke] with an arrogant, condescending demeanor. . . ." (Id.) A week later, Sahar left for a four week trip to Portugal. (Id. ¶ 16.) From October 6, 2010, to October 28, 2010, during Plaintiff's rotation, Sahar was not in the office. (Id. ¶ 16, 17.) During this interim period, Dr. John Dalton, another AM Sahar employee, supervised Plaintiff and his classmate, Jacqueline Calvo. (Id. at ¶ 17.)
On October 25, 2010, at the end of the fifth week of the rotation, Dr. Dalton wrote Ke's "mid-block evaluation." (Doc. No. 29-4 at 2-3.) In relevant part, Dalton evaluated Ke as a four out of five points on "Medical Knowledge," four out of five points on "Interpersonal/ Communication Skills," and five out of five points on "Professionalism." (Id.) Plaintiff claims that he got along well with the AM Sahar staff and treated patients with courtesy and professionalism. (Doc. No. 29 ¶¶ 34, 35.)
On November 2, 2010, Plaintiff again worked with Dr. Sahar. (Id. ¶¶ 20, 21.) Typically, Plaintiff would see a patient first without the doctor. (Id. ¶ 20.) During one of these sessions, a patient complained to Plaintiff about the frequency and expense of injections he was receiving. (Id. ¶ 19.) Ke asked if the patient understood how the medications worked. (Id.) When the patient responded that he did not, Ke volunteered to ask Sahar this question when Sahar came into the room. (Id.) Ke formulated the question as "he had been taught at the orientation, which was not just to ask the question but to include a pertinent fact to demonstrate knowledge in the area[.]" (Id.) He asked: "'I remember that [the medication] increases GnRH and enhances testosterone secretion. Why would a prostate cancer survivor need it? Shouldn't he be on something that suppresses testosterone?'" (Id.) Sahar loudly responded: "'What? You asked me this question!'" (Id. ¶ 21) (emphasis original). After administering the patient's shot, Sahar "stormed out." (Id.)
Plaintiff realized that he had offended Sahar by asking the question in the presence of the patient, but he believed his question was consistent with the Drexel University Code of Conduct, which covers how to ask a professor a question. (Id. ¶ 22, n.2.) In the presence of the next patient, Sahar asked Ke what test would be used to test for renal insufficiency. (Id. ¶ 23.) Still "traumatized" and "panicky" from the prior encounter, Plaintiff responded incorrectly. (Id.)
Later that day, Plaintiff approached Sahar and apologized for unintentionally offending him and incorrectly answering his question. (Id. ¶ 24.) Sahar responded, "'Okay, okay okay. I give you the benefit of the doubt. Today is your off-day! It's a bad day for you!'" (Id.)
The next day was the last day of the rotation. (Id. ¶ 25.) Sahar was not in the office that day. (Id.) Dalton covered for him and gave Ke and Ms. Calvo their oral evaluations. (Id.) Dalton told Ke that he had "improved during the rotation and had done a good job." (Id. ¶ 26.) He advised Plaintiff, however, that he should "not ask many questions in the presence of a patient." (Id.) Finally, Dalton informed Plaintiff that Sahar would write the final evaluation. (Id.)
Sometime later, Plaintiff discussed his clerkship with classmate Cyrus Hadadi ("Hadadi"). (Id. ¶ 27.) Hadidi told Plaintiff that Sahar usually wrote the final evaluation and showed it to the student before submitting it. (Id.) He told Plaintiff that it was odd that Sahar had not shown Plaintiff his final evaluation. (Id. ¶ 28.) Hadidi also claimed that Dalton gave him a positive final evaluation but, after "chumm[ing] up" to Sahar, Sahar "further embellished the evaluation to make it look shinier." (Id. ¶ 27.) Finally, Hadidi told Plaintiff that the final evaluations were typically better than the mid-block evaluations. (Id.) In contrast, Plaintiff alleges that Sahar maliciously provided negative feedback regarding his clinical performance.
(Id. ¶¶ 31-39.) Plaintiff suggests that Sahar showed preferential treatment to Hadadi who, like Sahar, is of Middle Eastern descent. (Id. ¶ 27.) Plaintiff did not receive a positive report.
On January 3, 2011, Dr. Jennifer Hamilton, the director of the Family Medicine clerkship at DCM, informed Plaintiff that he had failed both the Family Medicine rotation and the Family Medicine shelf exam. (Id. ¶ 29.) At that time, "Lei [Ke] was resigned to failure in the shelf exam because he had not been able to spend enough time on the preparation" for his upcoming Step 1 exam that he planned to take in addition to the shelf exam.*fn6 (Id. ¶ 30.) Plaintiff failed the Step 1 exam. Dr. Amy Fuchs, Associate Dean of Student Affairs, told Plaintiff that he had to retake the Step 1 exam in six weeks. (Id.) In contrast, Plaintiff alleges that "other similarly situated students were given five or six months to prepare for Step 1 full-time." (Id.)
Plaintiff disputes that he had failed his Family Medicine rotation, citing Dalton's positive mid-block evaluation and final oral evaluation. (Id. ¶ 31.) Plaintiff alleges that Sahar failed Ke because Ke "had asked him a question in front of a patient." (Id. ¶ 39.) Additionally, Plaintiff believed that this question was "protected under 42 U.S.C. § 1981." (Id.)
The next day, January 4, 2011, Hamilton emailed Plaintiff that he should repeat the Family Medicine rotation in accordance with the student manual. (Id. ¶ 40.) Plaintiff objected to this solution, again criticizing Sahar's behavior and evaluation. (Id.) Two days later, on January 6, 2011, Hamilton responded that if Plaintiff was concerned about his grade he should appeal the grade with her. (Id.) Plaintiff did so. (Id. ¶ 41.)
Thereafter, Hamilton called Sahar and reported back to Plaintiff that Sahar found Plaintiff did not perform well throughout the clerkship. (Id.) Accordingly, Sahar rated Plaintiff's work as less than satisfactory in "Medical Knowledge," "Professionalism," and "Interpersonal/ Communication Skills." (Id. ¶ 41.) Sahar rated Plaintiff in the final a two out of five points for both "Medical Knowledge" and "Interpersonal/Communication Skills" and a one out of five points for "Professionalism." Additionally, Sahar noted in his feedback that:
[Ke] had issues with professionalism and interpersonal skills. In one patient encounter, he took exception to a treatment strategy in front of a patient, rather than discussing his concerns outside of the patient room. This incident of questioning treatment in the presence of patient was unacceptable. He also had poor interactions with office staff, often aloof and non-interactive. (Doc. No. 29-4 at 14.)
According to Plaintiff, he "argued" to Hamilton that Dalton's mid-block and oral evaluation at the end of the clerkship contradicted Sahar's evaluation. (Id. ¶ 42.) Hamilton again called Sahar and reported the content of the call to Plaintiff. (Id.) Sahar told Hamilton that Ke "was good at the beginning" and therefore received a positive mid-block evaluation. (Id.) Plaintiff notes in his Second Amended Complaint that Dalton completed the mid-block evaluation later than it was supposed to be done. (Id.) By the time Dalton completed the mid-block evaluation, Ke only had a few days left in the clerkship. (Id.)
Hamilton told Ke that she would raise his clinical grades where he received below three out of five points. (Id. ¶ 43.) Despite this promise, Hamilton only amended the "Professionalism" score, raising it from one to two points out of five. (Id.) She advised Plaintiff that he could appeal her finding to Dr. Eugene Hong, Chairman of the Family Medicine Department. (Id.)
On January 22, 2011, Plaintiff appealed his grade to Hong. (Id. ¶ 44.) In the appeal, Plaintiff requested that Hong review the two written evaluations from AM Sahar, the final oral evaluation by Dalton, and the grade for a bio-psychosocial report.*fn7 (Id. ¶ 44.) On February 2, 2011, Hong upheld Ke's overall grade of "Unsatisfactory" for the Family Medicine clerkship. (Id.) Hong advised that if Ke wanted to appeal his decision, Ke could appeal to Dr. Barbara Schindler, Vice Dean for Academic Affairs. (Id.)
On February 8, 2011, Plaintiff emailed his appeal to Schindler. (Id. ¶ 45.) In the appeal, Plaintiff stated his opinion that Sahar negatively reviewed him because of the question he asked in front of the patient. (Doc. No. 29-4 at 41.) Plaintiff again criticized what he considered the "two harshest comments"*fn8 on Sahar's final evaluation as being "related to that incident." (Id. ¶ 40.) Furthermore, Plaintiff related that he "performed poorly on the last day he was with [Sahar] before the end of the rotation[,] leaving [Sahar] with a bad impression." (Id. ¶ 41.) Ke did not seek a "Satisfactory" grade in his appeal; rather, he sought a "Marginal Unsatisfactory"*fn9 grade so that he could retake the shelf exam in Family Medicine. (Id.)
Plaintiff acknowledges that writing the appeal to Schindler "tapped his energy and time although he ought to have devoted them to preparing for the second attempt at Step 1. . .". (Doc. No. 29 ¶ 45.) On February 10, 2011, he took the Step 1 exam for a second time. (Id.) On February 11, 2011, Ke met with Schindler for a half hour. (Id. ¶ 46.) Because Schindler could not find the email Plaintiff sent to her in preparation for the meeting, Ke explained orally why he did poorly. (Id.) Schindler, however, agreed with Hamilton's recommendation that Ke repeat the Family Medicine clerkship. (Id.) Although Hamilton allowed Plaintiff to repeat the Family Medicine clerkship, Ke contends that she treated him differently from other students who had failing grades. (Id. ¶ 47.) In his Second Amended Complaint, Plaintiff notes that ...