                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


CYRENA CHANG PAULIN,                                  :
                                                      :
                               Plaintiff,             :
                                                      :
               v.                                     :       Civil Action No. 12-0086 (GK)
                                                      :
THE GEORGE WASHINGTON                                 :
UNIVERSITY SCHOOL OF MEDICINE                         :
AND HEALTH SCIENCES,                                  :
                                                      :
                               Defendant.             :

                                   MEMORANDUM ORDER

       Plaintiff, Cyrena Chang Paulin (“Paulin”), brings this action against the George Washington

University School of Medicine and Health Sciences (“the University”) for breach of contract and

breach of the implied covenant of good faith and fair dealing. Plaintiff seeks injunctive relief and

compensatory damages. This matter is presently before the Court on the School’s Motion to Dismiss

the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [Dkt. No. 3].                Upon

consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set

forth below, the School’s Motion to dismiss is denied.

I.     BACKGROUND

       A.      Factual Background1

       Ms. Paulin is a former student in the Physician Assistant degree program (“PA program”)

at the George Washington University School of Medicine and Health Sciences. By August of 2010,



       1
               For purposes of ruling on a motion to dismiss, the factual allegations of the complaint
must be presumed to be true and liberally construed in favor of the plaintiffs. Aktieselskabet AF 21.
November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 15 (D.C. Cir. 2008). Therefore, the facts set forth
herein are taken from the Complaint.
Paulin had completed every requirement for graduation from the PA program except for the final

clinical preceptorship2 and the program’s final cumulative exam. Up until that point, Paulin had

maintained a 3.27 cumulative GPA (approximately a B+).

        Paulin, unlike most of her classmates, was not permitted to select her final preceptorship, but

was assigned to an Internal Medicine group. She was later removed from this group because of

insufficient medical knowledge and interpersonal problems with her supervisors. Paulin was

subsequently dismissed from the PA program and failed to graduate.

        From her first day, Paulin experienced difficulties communicating and interacting with the

Internal Medicine group. For instance, Daren Harper, the PA who led the teaching team for the first

week, did not provide Paulin with any preliminary instructions and did not make any preparations

for her arrival. Paulin was repeatedly criticized by preceptors in the Internal Medicine group despite

the fact that they had never witnessed her examine or treat a patient. As a result, Paulin was isolated

from the rest of the group and her attempts to lodge formal complaints with the School were

rebuked.

        On September 1, 2010, Liz Blomenberg, a PA in the Internal Medicine group, removed

Paulin from her rotation. Blomenberg reported to her supervisor, PA Stacey Jonas-Keeling, that she

lacked the ability to teach Paulin because of ongoing interpersonal difficulties. This decision was

made notwithstanding the fact that the Internal Medicine group did not highlight any areas for

improvement in Paulin’s August 20, 2010, evaluation. In another evaluation, one week later, on



       2
                A Preceptorship is “a period of practical experience and training for a student,
especially of medicine or nursing, that is supervised by an expert or specialist in a particular field.”
Preceptorship Definition, THE AMERICAN HERITAGE ® STEADMAN ’S MEDICAL DICTIONARY ,
http://dictionary.reference.com/medical/preceptorship (last visited July 9, 2012)

                                                  -2-
August 27, 2010, she was rated as average or below average. As a result of her removal from the

Internal Medicine group, Paulin failed her clinical rotation. She was not permitted to retake this

rotation and was recommended for dismissal in accordance with University policy.

       On September 6, 2010, Blomenberg sent an e-mail to Jonas-Keeling detailing Paulin’s lack

of foundational medical knowledge and her inability to appreciate constructive criticism. On

September 13, 2010, Harper issued a new evaluation of Paulin that was markedly more negative than

her previous evaluations.

       On September 8, 2010, Dr. Venetia Orcutt, director of the PA program, informed Paulin that

unidentified individuals had recommended to the Interim Associate Dean of the Health Sciences

Program, Dr. Margaret Plack, that Paulin be removed from the PA program. Paulin, pursuant to

University policy, submitted to Dr. Plack a petition appealing the failing grade and the

recommendation for dismissal.

       An Information Gathering Subcommittee (“IGS”) was organized to hear Paulin’s appeal. The

Subcommittee was comprised of “several physical therapists and one research professor” but no

physicians or physician assistants. The IGS did not speak to any of the persons Paulin asked to be

interviewed, nor did the Subcommittee review any of Paulin’s patient progress notes. The IGS also

did not provide Paulin with representation throughout the process. In addition, the report issued by

the IGS contained multiple factual errors about Paulin’s academic record. During the nine-month

appeals process, Paulin solicited letters of recommendation from her fellow students and instructors

until the University instructed the professors to refuse those requests.

       After the IGS issued its summary report affirming Paulin’s failed preceptorship, Dr. Plack

recommended to Dr. Jeffery Akman, the Interim Dean of the Medical School, that Paulin be


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dismissed from the PA program.            Dr. Akman reviewed the case and upheld Dr. Plack’s

recommendation. Paulin was dismissed from the PA program on April 28, 2011.

        In her Complaint, Paulin claims that the University breached the terms and conditions of her

enrollment by placing her in a preceptorship with an untrained, untested, and disorganized team

which had never before precepted any rotation; by giving her a failing grade without following

“normal” grading policies; by failing to request and review patient progress notes in accordance with

the University’s grading policy; by determining her grade in an arbitrary and capricious manner; and

by holding her to different academic standards than other similarly situated students.

        Paulin further alleges that the University breached its implied covenant of good faith and fair

dealing by making it impossible for her to realize the benefit of her contract and by permitting its

agents to act in bad faith.

        B.      Procedural Background

        Paulin filed her Complaint on January 19, 2012. On February 23, 2012, the University filed

its Motion for Dismissal of the Verified Complaint [Dkt. No. 3]. On March 12, 2012, Paulin filed

her Opposition to the University’s Rule 12(b)(6) Motion to Dismiss the Complaint [Dkt. No. 11].

On March 30, 2012, the University filed its Reply in Support of its Motion for Dismissal of the

Complaint [Dkt. No. 12].

III.    STANDARD OF REVIEW

        To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead enough facts

to state a claim to relief that is plausible on its face and to “nudge[] [his or her] claims across the line

from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint

will not suffice, however, if it “tenders ‘naked assertions’ devoid of ‘further factual enhancement.’”


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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). Instead, the

complaint must plead facts that are more than merely consistent with a defendant’s liability; “the

pleaded factual content [must] allow [ ] the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Id. at 1940 (citing Twombly, 550 U.S. at 556).

        “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Twombly, 550 U.S.. at 563. Under the standard

set forth in Twombly, “a court deciding a motion to dismiss must . . . assume all the allegations in

the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all

reasonable inferences derived from the facts alleged.” Aktieselskabet AF. 21 November 2001 v.

Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal quotations omitted). See

also Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C. Cir. 2009) (declining to reject or address the

government’s argument that Iqbal invalidated Aktieselskabet).

        When deciding a 12(b)(6) Motion to Dismiss, a court may consider “only the facts alleged

in the complaint, any documents either attached to or incorporated in the complaint and matters of

which we may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621,

624 (D.C. Cir. 1997); see Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006).

        It is essential to remember that, for the purposes of ruling on a motion to dismiss, the factual

allegations of the complaint must be presumed to be true and liberally construed in favor of the

Plaintiff. Aktieselskabet AF 21. November 2001, 525 F.3d at15. Therefore, all facts set forth in

the Factual Background are taken from the Complaint (see Section A, supra).




                                                  -5-
III.   ANALYSIS

       A.      Breach of Contract

       In Count One, Plaintiff claims that the University breached its contractual obligations with

her in five ways: (1) by placing her in a preceptorship with an “untrained, untested, and disorganized

team” which had not previously maintained a preceptorship with any other students; (2) by giving

Plaintiff a failing grade in this preceptorship without following the University’s “normal” evaluation

process and grading policies; (3) by failing to “request and review patient progress notes” from the

relevant attending personnel in accordance with the University grading policy; (4) by giving Plaintiff

a failing grade in her final preceptorship without a sufficient factual basis, and in an arbitrary and

capricious manner; and (5) by treating Plaintiff differently than other students -- specifically,

allowing her grades to be determined by ill will, personal spite and retaliation, rather than academic

merit. Compl. ¶ 85.

       The University maintains that it did not owe Paulin any contractual duties other than those

contained in the written policies of the George Washington University School of Medicine and

Health Sciences Bulletin (“Bulletin”). The parties agree that a valid contractual relationship does

exist between them and is governed by the contents of the Bulletin.

       In order to successfully state a claim for breach of contract, a Plaintiff must allege: “‘(1) a

valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach

of that duty; (4) damages caused by the breach.’” Mesumbe v. Howard Univ., 706 F. Supp. 2d 86,

94 (D.D.C. 2010) (quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009)).

       The Court is well aware of the extensive case law regarding the contractual relationship

between a student and an educational institution. See Hajjar-Nejad v. George Washington Univ.,


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802 F. Supp. 2d 166 (D.D.C. 2010); Mesumbe v. Howard Univ., 706 F. Supp. 2d 86 (D.D.C. 2010);

Allworth v. Howard Univ., 890 A.2d 194 (D.C. 2006); Alden v. Georgetown University, 734 A.2d

1103 (D.C. 1999).

        Alden is the leading case in this area, and its principles have been re-affirmed more recently

in Allworth. Thus, it is well established in this jurisdiction “that a judgment by school officials that

a student has not performed adequately to meet the school’s academic standards is a determination

that usually calls for judicial deference.” Alden, 734 A.2d at 1108. But “[t]his is not to say that a

court may never examine university promotion and tenure decisions. . . . ‘The principle of academic

freedom does not preclude [the court] from vindicating the contractual rights of a plaintiff who has

been denied tenure in breach of a . . . contract.’” Allworth, 890 A.2d at 202, quoting Craine v.

Trinity Coll., 791 A.2d 518, 540 (Conn. 2002). Like tenure decisions, decisions involving academic

dismissal merit summary judgment (the procedural posture of both Alden and Allworth), “unless the

plaintiff can provide some evidence from which a fact finder ‘could conclude that there was no

rational basis for the decision or that it was motivated by bad faith or ill will unrelated to academic

performance.’” Alden, 734 A.2d at 1109, quoting Clements v. Nassau Cnty., 835 F.2d 1000, 1004

(2d Cir. 1987).

        The facts presented in this case, which at this early stage of the litigation must be taken as

true, raise serious questions as to whether the decision to dismiss Plaintiff from the Physician

Assistant program was “arbitrary and capricious.” Allworth, 890 A.2d at 202. Plaintiff cites to

direct contradictions in facts and to serious factual errors in the report of the University’s Information

Gathering Subcommittee.




                                                   -7-
        For example, the Subcommittee’s report concluded that Plaintiff’s “performance appears to

represent a declining trend inconsistent with advancing expectations of an individual who is nearing

completion of the program” and referred to her “C” in clinical medicine. In fact, she received a “B”

not a “C” in clinical medicine and had received three sequential “A”s before going into her final

preceptorship. Another example: in a September 7, 2010, memorandum to Dr. Plack, the Interim

Associate Dean of the Medical School, recommending Plaintiff’s dismissal from the program, Dr.

Venetia Orcutt, the PA program director, referred to a “clinical evaluation” which was considered

to be “sub-standard” when, in fact, Plaintiff had received a grade of “A.” A final example: the

damaging rating of “zero” for fund of medical knowledge in an August 20, 2010, evaluation of

Plaintiff during her preceptorship is directly contradicted by a contemporaneous evaluation Dr.

Suzanne Chang gave to Plaintiff and her advisor, Professor Howard Straker, that “Cyrena actually

has a very strong, solid fund of medical knowledge.”

        These are but a few examples of facts alleged by Plaintiff -- which must be taken as true --

which prevent this Court, at this early stage, from “concluding that there was a discernible, rational

academic basis for both the failing grades and the subsequent dismissal . . . [which would entitle]

the University’s decision to judicial deference.” Alden, 734 A.2d at 1104.

        B.      Breach of Implied Covenant of Good Faith and Fair Dealing

        Count II of the Complaint alleges that the University breached the covenant of good faith and

fair dealing that was implicit in Plaintiff’s contractual relationship with the University by “making

it impossible for Plaintiff to realize the benefit of her contract.”

        All contracts “contain an implied duty of good faith and fair dealing, which means that

neither party shall do anything which will have the effect of destroying or injuring the right of the


                                                  -8-
other party to receive the fruits of the contract.” Allworth, 890 A.2d at 201 (internal quotation

omitted). A party breaches this duty by “evad[ing] the spirit of the contract, willfully render[ing]

imperfect performance, or interfer[ing] with performance by the other party.” Id. (internal quotation

omitted). The test for determining whether a Defendant’s actions breached the covenant of good

faith and fair dealing is a reasonableness inquiry. Id. at 202.

        It is noteworthy that in Alden, upon which the Defendant relies so heavily, the District of

Columbia Court of Appeals held that the plaintiff must “provide some evidence from which the fact

finder could conclude that there was no rational basis for the decision or that it was motivated by bad

faith or ill will unrelated to academic performance.” Alden, 734 A.2d at 1103. The facts alleged by

Plaintiff in her Complaint, taken as true, do indeed meet that standard.

        For the reasons already stated, the Court, at this time, is not prepared to conclude that the

University’s dismissal of Plaintiff from the PA program was not arbitrary and capricious, and

therefore her dismissal is not entitled to the judicial deference usually given to academic decisions

of this nature.

        WHEREFORE, it is this 23rd day of July, 2012, hereby

        ORDERED, that Defendant’s Motion to Dismiss is denied; and it is further

        ORDERED, that an Initial Scheduling Conference is set for August 22, 2012, at 10:15 a.m.;

and it is further




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       ORDERED, that the parties’ LCvR 16.3 Report is to be filed no later than August 20, 2012,

at 4:00 p.m.




                                            /s/
                                            Gladys Kessler
                                            United States District Judge

Copies via ECF to all counsel of record




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