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Lei Ke v. Drexel University

March 14, 2013

LEI KE, PLAINTIFF,
v.
DREXEL UNIVERSITY, ET AL., DEFENDANT.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I.INTRODUCTION

Before the Court is the Second Motion of Plaintiff Lei Ke ("Plaintiff" or "Ke"), who is proceeding pro se, for a Preliminary Injunction pursuant to Federal Rule of Civil Procedure 65(a). (Doc. No. 34.) On September 24, 2012, a hearing was held on all outstanding motions in this case, including the one for the preliminary injunction. At that hearing, Plaintiff was afforded the opportunity to present evidence and arguments in support of his Second Motion for a Preliminary Injunction. All briefing on this Motion has been concluded, and it is now ripe for a decision by this Court. In rendering this Opinion, the Court has considered the arguments made at the motions hearing, the Second Motion for a Preliminary Injunction (Doc. No. 34), the Second Amended Complaint (Doc. No. 29), including all attached exhibits, and the response filed by Defendants (Doc. No. 35).

On November 18, 2011, Plaintiff filed his original Complaint (Doc. No. 4) against Drexel University and other individual Defendants (hereafter "Individual Defendants"),*fn1 alleging discrimination and retaliation based on race and national origin, after he was dismissed as a medical student from the Drexel University College of Medicine ("DCM"). In a Second Amended Complaint (Doc. No. 29), which is the last one filed of record, Plaintiff alleges the following nine counts against Defendants: (1) Intentional Discrimination in violation of 42 U.S.C. § 1981 against all Defendants (Count I); (2) Willful Retaliation in violation of 42 U.S.C. § 1981 against all Defendants (Count II); (3) Hostile Educational Environment in violation of 42 U.S.C. § 1981 against Defendants Sahar, Parrish, and Drexel University (Count III); (4) Intentional Discrimination in violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d-2000d-7, against Defendant Drexel University (Count IV); (5) Willful Retaliation in violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d-2000d-7, against Defendant Drexel University (Count V); (6) Violation of the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g and 34 C.F.R. § 99.21, against Defendant Drexel University (Count VI); (7) Discrimination and Retaliation in violation of the Pennsylvania Fair Educational Opportunities Act ("PFEOA"), 24 P.S. § 5004, against all Defendants (Count VII); (8) Conspiracy in violation of 42 U.S.C. § 1985 against Defendants Sahar, Parrish, and Hamilton (Count VIII); and (9) Intentional Infliction of Pain and Suffering against all Defendants (Count IX). (Doc. No. 29.)

In the Second Motion for a Preliminary Injunction, Plaintiff asks this Court to order Drexel University to reinstate him as a third-year medical student. (Doc. No. 34.) For reasons that follow, the Court will deny Plaintiff's Motion for a Preliminary Injunction.*fn2

II.FACTUAL BACKGROUND

Prior to the instant litigation, Plaintiff was enrolled as a medical student at DCM. (Doc. No. 29 ¶ 4.) In 2009, during his second year, Plaintiff failed courses and was dismissed from DCM. (See Doc. No. 34 at 1; Doc. No. 29, Ex. 10.) He was readmitted in July 2009 and required to repeat his second year, subject to the following condition: "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, Ex. 10.) He apparently repeated the second year in compliance with this condition.

As part of Plaintiff's third year in medical school, he was required to complete a family medicine clinical rotation, or clerkship. (Doc. No. 29 ¶ 13.) A medical school clinical 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[.]" (Id. n.1.) After completing the clinical program, Plaintiff would be graded on his clerkship performance and would also be required to take a family medicine shelf exam.*fn3 Both the clerkship performance and shelf exam grade would count towards his overall grade in the Family Medicine course.

In September 2010, Plaintiff began his third-year clinical rotation at the Monmouth Medical Center in Long Branch, New Jersey. (Id. ¶ 13.) Affiliated with Monmouth was a family medical practice known as AM Sahar, a private practice owned by Anthony Sahar, M.D. ("Sahar"). (Id. ¶ 14.) In his office, Sahar posted a notice explaining his hospital affiliation and teaching position. (Id. ¶ 22 n.3; Doc. No. 29 at 6 n.3.) From September 28, 2010 through November 3, 2010, Plaintiff participated in a Family Medicine clerkship at AM Sahar. (Id. ¶ 14.)

When Ke and Dr. Sahar first met, Sahar asked where Plaintiff came from. (Id. ¶ 15.) After Plaintiff responded that he was from Canada, Sahar said that "was not good enough because he was not a white Canadian" and continued to ask "exactly where" Plaintiff was from. (Id.) Plaintiff eventually explained that he had been 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 [Plaintiff] with an arrogant, condescending demeanor, setting up the tone for a master-and-slave relationship." (Id.)

One 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.) In this interim period, Dr. John Dalton ("Dalton"), another physician at AM Sahar, supervised Plaintiff and his classmate, Jacqueline Calvo. (Id. ¶ 17.) On October 25, 2010, at the end of the fifth week of the rotation, Dalton wrote Plaintiff's "mid-block evaluation." (Id. ¶ 18.) In relevant part, Dalton evaluated Plaintiff 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." (Doc. No. 29-4 at 2.) Plaintiff claims that he got along well with the AM Sahar staff and treated patients with courtesy and professionalism. (Doc. No. 29 ¶¶ 33-34.)

On November 2, 2010, Plaintiff again worked with Dr. Sahar. (Id. ¶¶ 19-20.) Typically, Plaintiff would see a patient first without the doctor present. (Id. ¶ 19.) During one of the sessions, a patient had complained to him about the frequency and expense of injections. (Id.) Plaintiff asked if the patient understood how the medications worked. (Id.) When the patient responded that he did not, Plaintiff volunteered to ask Sahar this question when Sahar came into the room. (Id. ¶ 20.) Plaintiff 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 then asked: "I remember that Leuprolide increases GnRH and enhances testosterone secretion. Why would a prostate cancer survivor need it? Shouldn't he be on something that suppresses testosterone?" (Id.) In response, Sahar loudly asked: "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 Dr. Sahar by asking him the question in the presence of the patient, but he believed that his question was consistent with the Drexel University Code of Conduct, which details how to ask a professor a question. (Id. ¶ 22.) In the presence of the next patient, Dr. Sahar asked him 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, and Dr. Sahar was not in the office that day. (Id. ¶ 25.) In Sahar's absence, Dr. Dalton covered for him and gave Plaintiff his oral evaluation. (Id.) Dalton told Plaintiff 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.) Hadadi 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 Dr. 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, Hadadi told Plaintiff that the final evaluations were typically better than the mid-block evaluations. (Id.) On the contrary, Plaintiff did not receive a positive report. (Id. ¶ 29).

After completing his family medicine clerkship, Plaintiff took the accompanying shelf exam. On January 3, 2011, Dr. Jennifer Hamilton ("Hamilton"), Director of the Family Medicine Clerkship at DCM, informed Plaintiff that he had failed both the Family Medicine clerkship and the Family Medicine shelf exam. (Id. ¶ 29.) Based on these events, Plaintiff's final Family Medicine grade was an "Unsatisfactory."*fn4 (Id., Ex. 4). Plaintiff appealed the "Unsatisfactory" grade multiple times, and on each occasion, the grade was upheld. (Doc. No. 29 ¶¶ 40-46.)

After receiving an "Unsatisfactory" grade in Family Medicine, Plaintiff was not dismissed, although the conditions of his re-admission to DCM permitted such dismissal. (See id., Ex. 10.) Instead, the DCM Clinical Promotions Committee required Plaintiff to repeat the Family Medicine clerkship and advised him that "[t]he receipt of any additional grade of less than Satisfactory (including Unsatisfactory ...


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