Cabi v. Bos. Children's Hosp.

• Decision Date: 12 February 2016
• Docket Number: Civil Action No. 15-cv-12306
• Citation: 161 F.Supp.3d 136
• Parties: 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.
• Court: U.S. District Court — District of Massachusetts

161 F.Supp.3d 136

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.

Civil Action No. 15-cv-12306

United States District Court, D. Massachusetts.

Signed February 12, 2016

Christian G. Samito, Samito Law LLC, Boston, MA, for Plaintiffs.

Harvey J. Wolkoff, Elizabeth E. Monnin-Browder, Ropes & Gray, Bruce A. Singal, Callan G. Stein, Donoghue, Barrett & Singal, PC, Tracy A. Miner, Demeo LLP, H. Joseph Hameline, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ) (alteration in original). “In determining whether a [pleading] crosses the plausibility threshold, ‘the reviewing court [must] draw on its judicial experience and common sense.’ ” García–Catalán , 734 F.3d at 103 (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). 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...