UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

YAN YAN, : CIVIL NO: 4:14-CV-01373

 :

Plaintiff, : 

 : (Judge Brann)

v. : 

 :

PENNSYLVANIA STATE :

UNIVERSITY, : 

 : (Magistrate Judge Schwab)

Defendants. :

 

REPORT AND RECOMMENDATION

In this civil action, proceeding via an amended complaint, the pro se

plaintiff, Yan Yan, raises claims against the defendant, Pennsylvania State 

University (“PSU” or the “University”), pursuant to Title IX of the Education 

Amendments Act (“Title IX”), 20 U.S.C. § 1681, et seq.; the Americans with 

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; the Age Discrimination Act, 

42 U.S.C. § 6101, et seq.; and the Pennsylvania Fair Educational Opportunities Act

(“PFEOA”), 24 P.S. § 5001, et seq. Yan Yan also seeks remedies under 42 U.S.C. 

§ 1983 for alleged violations of her rights secured by the First and Fourteenth

Amendments to the United States Constitution. Finally, Yan Yan raises a claim 

pursuant to 18 U.S.C. § 2255 for an alleged personal injury. Pending before the 

Court is PSU‟s motion to dismiss. Our recommendations follow.

 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 1 of 36
2

I. Background and Relevant Procedural History.

On July 17, 2014, Yan Yan, a female of Chinese descent, who resides in 

Philadelphia, Pennsylvania, initiated this lawsuit by filing a complaint against 

PSU, a land-grant university within the Commonwealth that also receives federal 

funding. Doc. 1. Along with her complaint, Yan Yan filed a motion to proceed in 

forma pauperis that we granted. Docs. 2 & 4. On November 2, 2014, after PSU 

had waived service, Doc. 8, Yan Yan filed an amended complaint, see Docs. 42-1

& 44, and alleges the following.

1

 

In 2002, Yan Yan was accepted to PSU‟s Graduate Program in Genetics. 

Her enrollment, however, was deferred for one year “due to pregnancy.” Doc. 42-

1 at ¶ 3. After the one-year deferral, Yan Yan started the Genetics Program at age

40; thus, she was generally older than most of the other graduate students. Despite 

her age, Yan Yan “achieved” her courses with top ranks in Biochemistry and 

Genetics. Id. at ¶ 5. Yan Yan also received a grade of “A” in her Cell Biology, 

Molecular Biology, Statistics, Symposiums, and teaching-focused courses. 

Furthermore, Yan Yan received an “assistantship” because of her academic record, 

completed approximately 20 projects, attracted two R01 grants from the National 

 

1 We provide the allegations in Yan Yan‟s amended complaint consistent with 

the Rule 12(b)(6) legal standard, infra.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 2 of 36
3

Institute of Health (“NIH”)2, published five peer-reviewed publications, two 

unpublished papers, two “academic books,” contributed to 15 other publications, 

and completed all of the requirements to be awarded with a PhD in Genetics. See 

id. at ¶¶ 5-8. 

Despite her alleged track record while a student in the Genetics Program, 

Yan Yan claims that she was subjected to discrimination because of her age, 

alleged disability, national origin, race, and sex. Yan Yan also claims that she was 

subjected to adverse actions in retaliation for having filed complaints in 2003, 

2005, and 2007 about purported instances of gender discrimination she 

encountered, and for having complained, generally, about the difficulties 

associated with being a student-parent. According to Yan Yan, each of the 

aforementioned complaints was filed internally at PSU. See id. at ¶ 13. 

In relation to her claims of discrimination and retaliation, Yan Yan alleges

that she was deferred enrollment; 20 faculty members refused to be her student 

advisor; she was never awarded with a PhD degree from the Genetics Program; she 

was denied “authorships;” denied faculty positions; ultimately terminated from the 

graduate program in 2007; removed entirely from PSU in 2008; and denied 

 

2

“The Research Project Grant (R01) is the original and historically oldest 

grant mechanism used by NIH. The R01 provides support for health-related 

research and development based on the mission of the NIH.” 

http://grants.nih.gov/grants/funding/r01.htm (last visited April 24, 2015).

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 3 of 36
4

admission to other graduate programs within the University. Moreover, as far as 

her alleged disability is concerned, Yan Yan claims that it stems from a personal 

injury she suffered on January 26, 2008, in a “work-related accident” at PSU, 

which she filed a Workers‟ Compensation claim. Id. at ¶¶ 9, 15. According to 

Yan Yan, the injury was to her right hand that endured multiple fractures and 

greatly impeded her ability to conduct research experiments. Id. at ¶¶ 84, 85.

Yan Yan further alleges in the amended complaint that her academic record 

was better than two male students, Takeshi Shimizu and Ho Li-Lun, who received 

a PhD Degree in 2006 and 2009, respectively. Yan Yan, though, does not allege 

which program the students were enrolled or in what Program they received a PhD 

Degree. Yan Yan also claims that, despite being terminated as a student at PSU in 

2008, she has since re-submitted her doctoral thesis to PSU in 2011 and 2014, but 

the University has not awarded her with a PhD Degree in Genetics. 

Along with these allegations, Yan Yan complains that (1) she was “regularly 

harassed” by “senior employees” in different laboratories; (2) she was injured in 

2005 because of something that a “male colleague” had caused; (3) she was 

“harassed” by maintenance at her home resulting in lost belongings and “legal 

evidences;” (4) her child was pushed by a “senior kid” at a daycare located on 

PSU‟s campus; and (5) her child was “regularly abused” at another daycare by 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 4 of 36
5

staff and “senior peer kids” and ultimately suffered an eye injury resulting in 

medical bills. See id. at ¶¶ 9-12.

Despite the ample allegations, we liberally construe Yan Yan‟s amended 

complaint as solely bringing a lawsuit against PSU for the alleged denial of a PhD 

Degree in Genetics and for the personal injury she allegedly endured on January 

26, 2008. To that end, Yan Yan raises the following claims in 10 separate Counts:

Count I - hostile educational environment, in violation of Title IX and PFEOA; 

Count II - retaliation in violation of Title IX and PFEOA; Count III -

discrimination on the basis of her alleged disability, in violation of the ADA and 

PFEOA; Count IV - age-based discrimination, in violation of the Age 

Discrimination Act; Count V - retaliation in violation of the First Amendment, 

pursuant to 42 U.S.C. § 1983; Count VI - gender-based discrimination, in violation 

of the Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 

U.S.C. § 1983; Count VII - national-origin- and race-based discrimination, in 

violation of the Equal Protection Clause, pursuant to 42 U.S.C. § 1983, and 

PEFOA; Count VIII - age-based discrimination, in violation of the Equal 

Protection Clause, pursuant to 42 U.S.C. § 1983; Count IX - discrimination on the 

basis of her alleged disability, in violation of the Equal Protection Clause, pursuant 

to 42 U.S.C. § 1983; Count X – personal injury pursuant to 18 U.S.C. § 2255. For 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 5 of 36
6

remedies, Yan Yan seeks compensatory damages, punitive damages, and

injunctive relief.

On November 14, 2014, PSU filed a motion to dismiss pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure. Doc. 45. The motion, which has 

been fully briefed, is ripe for disposition. See Docs. 46, 52-1, & 54. Before 

turning to a discussion of the pending motion, however, we are compelled to

review and discuss Yan Yan‟s previous lawsuit filed against PSU, in this Court, in 

light of PSU‟s affirmative defense of res judicata.

In Yan Yan v. Penn State University, 4:10-CV-00212 (M.D. Pa.) (“Yan I”), 

Yan Yan was represented by counsel. With the assistance of counsel, she named

PSU, Zhi-Chun Lai, and Li-Lun Ho as defendants. In pertinent part here, Yan Yan 

raised a claim in her amended complaint pursuant to the Rehabilitation Act (the 

“RA”), 29 U.S.C. § 794, for two broken fingers she allegedly sustained during a 

work-related incident on January 26, 2008; an injury to which she also filed a 

Workers‟ Compensation claim. The Court, however, dismissed the RA claim

under the Rule 12(b)(6) legal standard, ruling that Yan Yan had failed to plausibly 

show that she was a person with “disability” within the statute‟s meaning because 

the pleaded injury was non-chronic and short-term. Doc. 21 at 9-10, 17 (4:10-CV00212). 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 6 of 36
7

After the Court entered its Order on the partial motion to dismiss in Yan I, 

dismissing, among other claims, Yan Yan‟s RA claim, she was granted leave to 

file a second amended complaint. Doc. 33 (4:10-CV-00212). In the second 

amended complaint, Yan Yan alleged that she had been awarded a Master‟s 

Degree from the University‟s Genetics Program in 2007 and was subsequently 

admitted as a PhD candidate to the Cell and Developmental Biology (“CDB”) 

Graduate Program. During her enrollment in the CDB Program, Yan Yan worked 

in a research lab controlled by defendant Lai and primarily operated by defendant 

Ho. While working in that lab, Yan Yan complained that she was subjected to 

varying acts of gender-based discrimination and harassment. 

Nearly one month after the alleged incident in which she was allegedly 

injured on January 26, 2008, Yan Yan filed a report with PSU‟s campus police

complaining about the harassment and discrimination she had purportedly endured

by defendant Ho. Yan Yan also talked with an individual from PSU‟s Judicial 

Affairs Office about the same complaints. In the end, an administrative no-contact 

order was issued, requiring Yan Yan and defendant Ho to have no contact with 

each other. 

Upon reporting defendant Ho‟s alleged actions to the police, Yan Yan went 

to defendant Lai to inform him that she had filed a complaint with the University 

Police. As a result, Yan Yan alleged, the work relationship between her and 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 7 of 36
8

defendant Lai deteriorated. Yan Yan further claimed that defendant Lai retaliated 

and discriminated against her by advancing the date of her comprehensive exam:

an exam which she ultimately failed. After failing the comprehensive exam, 

defendant Lai directed Yan Yan to stay away from his lab. Yan Yan, though, filed 

an internal appeal with the University, seeking permission to retake the 

comprehensive exam for her PhD Degree in CDB. Yan Yan succeeded in her 

efforts to the extent that PSU‟s Dean of the Graduate School permitted her to 

retake the comprehensive exam on August 15, 2008, which she did not do because 

of the alleged lack of sufficient notice. As a result of not retaking the exam, Yan 

Yan was removed from PSU as a graduate student. 

Based on those allegations:

Yan [Yan] brought suit alleging that Ho's harassment and 

discrimination were gender-based and resulted in a hostile 

educational environment in violation of Title IX. She further 

alleged that the rescheduling of the comp exam for August 15th 

was a “sham” and that PSU's failure to offer “reasonable 

accommodations and [a] reasonable opportunity” to retake the 

exam further violated her rights under Title IX. In her complaint, 

Yan asserted that she was retaliated against for filing the police 

report and protesting the alleged Title IX violations, and that she 

was subjected to gender discrimination.

Yan Yan v. Penn State University, 529 F. App‟x 167 (3d Cir. 2013), cert denied, 

134 S.Ct. 2311, rehearing denied, 135 S.Ct. 26 (2014). For remedies, Yan Yan 

sought compensatory and punitive damages in addition to injunctive relief. See 

Doc. 33 (4:10-CV-00212). On August 3, 2012, this Court entered summary 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 8 of 36
9

judgment in the defendants‟ favor on all claims raised in the second amended 

complaint, which the Third Circuit affirmed. Moreover, the Supreme Court denied 

Yan Yan‟s petition for a writ of certiorari and subsequent petition for rehearing. 

II. Legal Standard.

Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim 

upon which relief can be granted.” Under Rule 12(b)(6), we must “accept all 

factual allegations as true, construe the complaint in the light most favorable to the 

plaintiff, and determine whether, under any reasonable reading of the complaint, 

the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 

210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d 

Cir. 2008)). While a complaint need only contain “a short and plain statement of 

the claim,” Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead 

“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 

“The plausibility standard is not akin to a „probability requirement,‟ but it asks for 

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and 

conclusions” are not enough, and a court is “„not bound to accept as true a legal 

conclusion couched as a factual allegation.‟” Twombly, 550 U.S. at 555 (quoted 

case omitted).

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 9 of 36
10

In resolving a motion to dismiss, we thus “conduct a two-part analysis.”

Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the 

legal elements and disregard the legal conclusions. Id. at 210–11. Second, we 

“determine whether the facts alleged in the complaint are sufficient to show that 

the plaintiff has a „plausible claim for relief.‟” Id. at 211 (quoted case omitted). 

While traditionally focused upon the allegations contained in a complaint, a 

court may also consider exhibits attached to a complaint, matters of public record, 

and “an undisputedly authentic document” relied upon by the plaintiff and attached 

as an exhibit to a defendant‟s motion to dismiss. Pension Benefit Guar. Corp. v. 

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, in a case 

such as this, a complaint filed by a pro se litigant is to be liberally construed and 

held to a less stringent standard than formal complaints drafted by a lawyer. 

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 

97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in 

their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 

239, 245 (3d Cir. 2013).

III. Discussion.

In moving to dismiss Yan Yan‟s amended complaint, PSU raises several 

affirmative defenses in addition to other arguments. Since the affirmative defenses 

may dispose of certain claims in Yan Yan‟s amended complaint, if not the pleading 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 10 of 36
11

in its entirety, we begin there. 

A. Res Judicata.

The first affirmative defense raised by PSU involves the federal common 

law doctrine of res judicata.

3

 See Doc. 46 at 8. Generally, res judicata

encompasses two preclusion concepts: (1) issue preclusion, a more narrow 

application of traditional res judicata that forecloses litigation of a litigated and 

decided matter (often referred to as collateral estoppel); and (2) claim preclusion, 

which disallows litigation of claims that have either been litigated or were never 

litigated, but which should have been presented in an earlier suit. See Migra v. 

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 (1984); see also Marmon 

Coal Co. v. Director, Office of Workers’ Compensation Programs, 726 F.3d 387, 

394 (3d Cir. 2013)(quoting Duhaney v. Att'y Gen., 621 F.3d 340, 347 (3d Cir.

2010)(“The doctrine of res judicata bars not only claims that were brought in a 

previous action, but also claims that could have been brought.”). Indeed, here, 

PSU contends that both concepts, issue and claim preclusion, operate as a bar to 

Counts I-IX in the present action. See Doc. 46 at 12-13.

 

3

“The preclusive effect of a federal-court judgment is determined by federal 

common law. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-

08 (2001). For judgments in federal-question cases . . . federal courts participate in 

developing „uniform federal rule[s]‟ of res judicata, which [the Supreme Court] 

has ultimate authority to determine and declare. Id. at 508.” Taylor v. Stugell, 553 

U.S. 880, 892 (2008).

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 11 of 36
12

With respect to the affirmative defense raised by PSU, the Third Circuit has

explained:

Res judicata is designed to draw a line between the meritorious 

claim on the one hand and the vexatious, repetitious and needless 

claim on the other hand. See 1B J. Moore, J. Lucas & T. Currier, 

Moore's Federal Practice ¶ 0.405[1] at 186 (2d ed. 1984). This 

rule reflects the need for courts to put an end to litigation. When 

one has been given the opportunity to fully present his case in a 

court and the contested issue is decided against him, “he may not 

later renew the litigation in another court.” Heiser v. Woodruff, 

327 U.S. 726, 733 (1946). Although res judicata is a rule of 

finality strictly enforced and liberally applied, Hart Steel Co. v. 

Railroad Supply Co., 244 U.S. 294, 299 (1917), cited in 

Federated Department Stores v. Moitie, 452 U.S. 394, 401 

(1981), it is moreover a rule of “fundamental and substantial 

justice, of public policy and private peace, ...” rather than a 

technical rule. Id. 244 U.S. at 299. Because of the dangers of a 

wooden application of res judicata, Jeter v. Hewitt, 63 U.S. (22 

How.) 352, 364(1859) (in some cases, harsh results may be 

visited by a rule of public policy which “renders white that 

which is black, and straight that which is crooked....”), the 

Supreme Court has emphasized the importance of careful judicial 

inquiry prior to its enforcement. Brown v. Felsen, 442 U.S. 127, 

132 (1979). The ease and efficiency of res judicata as a means of 

quickly avoiding an evaluation of the merits of a plaintiff's claim 

does not imply that the decision to apply the doctrine should be 

either facile or hasty.

Purter v. Heckler, 771 F.2d 682, 689-90 (3d Cir. 1985). 

While this affirmative defense may be raised in a motion to dismiss pursuant 

to Rule 12(b)(6), see Williams v. Murdoch, 330 F.2d 745, 749 (3d Cir. 1964), the

predicates establishing the defense must be apparent on the face of the complaint, 

see Bethel v. Jendoco Construction Corporation, 570 F.2d 1168, 1174, n. 10 (3d 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 12 of 36
13

Cir. 1978)(noting the same); Brody v. Hankin, 145 F. App‟x 768, 769-70 (3d Cir. 

2005)(reversing the district court “[b]ecause res judicata is an affirmative defense, 

and the basis for dismissing this case on res judicata grounds was not apparent on 

the face of the complaint. . . .”). Moreover, “[i]n the context of deciding a Rule 

12(b)(6) motion that raises . . . preclusion concerns, and where a plaintiff has not 

included the existence or substance of the prior adjudications in the body of, or 

attachments to, its complaint, it is axiomatic that a court must still consider the 

prior adjudication in order to determine whether . . . preclusion [concepts] bar[] 

that plaintiff‟s claims.” M&M Stone Co. v. Pennsylvania, 388 F. App‟x 156, 162 

(3d Cir. 2010). On a motion to dismiss, however, a court may solely take judicial 

notice of a prior opinion “to establish [its] existence . . . and not for the truth of the 

facts asserted . . . .” Id. (citing Lum v. Bank of America, 361 F.3d 217, 221 n. 3 (3d 

Cir. 2004)).

1. Issue Preclusion.

A party may successfully assert the narrower res judicata concept of issue 

preclusion “when: (1) the identical issue was decided in a prior adjudication; (2) 

there was a final judgment on the merits; (3) the party against whom the bar is 

asserted was a party or in privity with a party to the prior adjudication; and (4) the 

party against whom the bar is asserted has had a full and fair opportunity to litigate 

the issue in question.” Bd. of Trs. of Trucking Emps. of North Jersey Welfare 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 13 of 36
14

Fund, Inc.-Pension Fund v. Centra, 983 F.2d 495, 505 (3d Cir. 1992). “Identity of 

legal causes of action is not required [here].” Kundratic v. Thomas, 573 F. App‟x 

167, 171 n. 6 (3d Cir. 2014).

According to PSU, “[it] has already litigated with [Yan Yan] on [the] exact 

issue” about her being terminated from its PhD Program. Doc. 46 at 10. Also, 

“the issue of whether [Yan Yan] had a disability was already resolved. . . .” Id. at 

12. 

Yan Yan counters, arguing primarily that the issue of her exclusion from the 

Genetics Program, via not being awarded with a PhD Degree, is an issue that has 

not been litigated. See Doc. 52-1 at 11. Yan Yan also contends that no valid final 

judgment resulted in Yan I because, at the summary judgment stage, “[d]iscovery 

was not complete” and the Court did not have evidence on her behalf to fully 

explore the issues raised. See id. at 11-12. Yan Yan further argues that the 

Supreme Court‟s dismissal of her petition for certiorari for her failure to file a 

proper brief does not make the judgment final. See id. at 12. Last, Yan Yan argues

that the parties are not the same and that her ADA claim in Count III should not be 

deemed precluded because the issue of whether she has a disability within the 

meaning of the Act has not been decided. See id. at 12-13. 

 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 14 of 36
15

a. Yan Yan’s alleged disability.

In Yan I, this Court found on a Rule 12(b)(6) motion that Yan Yan had failed 

to plausibly show that she was a person with a “disability” within the meaning of

the RA because the pleaded injury, stemming from an alleged incident in a 

laboratory on January 26, 2008, was non-chronic and short-term. Doc. 21 at 9-10, 

17 (4:10-CV-00212). Accordingly, the Court dismissed her RA claim. Id. After 

the Court entered its order dismissing her RA claim, Yan Yan did not file a motion 

for reconsideration on the issue or seek to appeal the Court‟s ruling on that basis. 

But see, Doc. 22 (4:10-CV-00212)(moving for reconsideration of the Court‟s order 

on a different claim). Moreover, Yan Yan did not subsequently attempt to re-plead 

her claim under the RA in her second amended complaint. See Doc. 31 (4:10-CV00212). Finally, here, Yan Yan raises a claim under the ADA on the basis of the 

same alleged injury, which she again attempts to pass off as a disability. See Doc.

42-1 at ¶¶ 9, 15, 40. 

We agree with PSU and find that the issue regarding her alleged disability 

was previously decided. “Whether suit is filed under the [RA] or under the 

[ADA], the substantive standards for determining liability are the same,” see 

McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir. 1995)(citation omitted), and

one of the only differences between claims under the ADA and the RA is their 

standards for causation, C.G. v. Pennsylvania Department of Education, 734 F.3d 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 15 of 36
16

229, 235 (3d Cir. 2013)(explaining the same). Moreover, as the Third Circuit more 

recently noted, identity of a “cause of action” is not required under the narrower 

doctrine of issue preclusion; therefore, it is of no concern to us that the claim in 

this lawsuit may have arisen in the context of a different cause of action in Yan I. 

Furthermore, a dismissal for failure to state a claim under Rule 12(b)(6) is a final 

judgment on the merits for res judicata purposes, Lewis v. Smith, 361 F. App‟x 

421, 423-24 (2010)(citing, inter alia, Federated Dep’t Stores, Inc. v. Moitie, 452 

U.S. 394, 399 n. 3 (1981)), and Yan Yan, who was a party with counsel to the 

lawsuit in Yan I, had a full and fair opportunity to litigate the issue, but did not do 

so beyond the filing of a brief-in-opposition to the partial motion to dismiss. See 

Doc. 19 at 10-13 (4:10-CV-00212); see also, 12 Williston on Contracts § 35:62 

(4th ed.)(“When the relationship of attorney and client exists, the client is bound by 

the acts of its attorney within the scope of the latter's authority. . . .”). 

Since we find that the issue of whether Yan Yan is an individual with a 

disability, within the meaning of the ADA, has already been decided, she is 

precluded from bringing her ADA claim in Count III; thus, Yan Yan‟s ADA claim

should be dismissed with prejudice.4

 

4

To the extent Yan Yan attempts to raise additional allegations about her 

alleged injury to prove that she is a person with a disability, by now claiming that 

she lost function of her right hand, see Doc. 42-1 at 11, she had the opportunity to 

assert that allegation in Yan I, but she did not do so. Indeed, by the time the 

defendants in Yan I sought to challenge her alleged disability, nearly two and a half 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 16 of 36
17

b. Yan Yan’s termination from PSU’s graduate program.

In Yan I, this Court entered an order granting summary judgment to PSU and 

the individual defendants, and the Third Circuit affirmed. The Supreme Court also 

denied certiorari to Yan Yan and denied her petition for rehearing. 

A ruling on summary judgment equates to a ruling on the merits, see Kulick 

v. Pocono Downs Racing Ass’n, Inc., 816 F.3d 895, 898 n. 6 (1987)(quoting 

Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348 (5th Cir. 

1985)(“Summary judgment is a judgment on the merits; it has the same effect as if 

the case had been tried by the party against whom judgment is rendered and 

decided against him.”)), and “it is well established that an erroneous prior 

judgment nonetheless has preclusive effect,” Hickox v. County of Blair, 591 F. 

App‟x 107, 110 (3d Cir. 2014)(citing Delaware River Port Authority v. Fraternal 

Order of Police, 290 F.3d 567, 576-77 (3d Cir. 2002)). Yan Yan nonetheless 

apparently contends that the summary-judgment ruling in Yan I should have no 

preclusive effect because she did not have due process, in that discovery was not 

complete and the Court did not have evidence from her to consider.

 

 

years had passed from the time the alleged injury occurred. Thus, she certainly 

would have known by then whether she “lost function” of her hand by that time. In 

sum, Yan Yan had a full and fair opportunity to litigate the issue and we do not 

find that this “new” allegation is sufficient to overcome the preclusive effect of the 

earlier ruling by this Court, on the partial motion to dismiss.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 17 of 36
18

Contrary to Yan Yan‟s argument, this Court‟s ruling on summary judgment 

was made after the close of discovery. See Yan Yan, 529 F. App‟x at 170. Also, 

Yan Yan not only had an opportunity to engage in discovery, but she never

presented any evidence sufficient to demonstrate a genuine issue for trial; sought

an extension of the discovery deadlines; filed motions to compel answers or 

interrogatories; or alerted the Court of the need for additional discovery. Id. Thus, 

Yan Yan‟s argument on due process grounds, that the judgment was not valid and 

final, because discovery was incomplete, is meritless. Similarly, that Yan Yan

might not have filed a proper brief in the Supreme Court is not a sufficient reason 

for us to consider the previous judgment as lacking preclusive value. Furthermore, 

the record from Yan I demonstrates that the Supreme Court did not dismiss her 

petition for certiorari or petition for a rehearing because of improper briefs that 

were filed. See 134 S.Ct. 2311 & 135 S.Ct. 26. Thus, we also reject her due 

process argument on that basis as well, and, overall, find that a valid final 

judgment was entered on summary judgment in Yan I. 

Despite our finding that a valid final judgment was entered on the claims in 

Yan I, no court had occasion to decide the legal issues in Counts I-II and IV-IX in 

this lawsuit relating to the denial of a PhD Degree from an entirely separate 

program, for discriminatory and retaliatory reasons. Moreover, as we understand 

Yan Yan‟s amended complaint in this lawsuit, she is not complaining about her 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 18 of 36
19

exclusion from PSU overall or the alleged acts of defendants Ho and Lai or the

denial to her of a PhD Degree from the CDB Program; instead, in Counts I-II and 

IV-IX Yan Yan complains solely about the denial of a PhD Degree in Genetics

based on discriminatory and retaliatory acts that occurred before the acts in the 

previous lawsuit, in addition to alleged acts that occurred upon the resubmission of 

her thesis in 2011 and 2014. Thus, we disagree with PSU that the narrower 

concept of issue preclusion bars Yan Yan‟s claims in Counts I-II and IV-IX on its 

motion to dismiss.

2. Claim Preclusion.

For a party to succeed on the affirmative defense of res judicata, through the 

encompassed concept of claim preclusion, three elements must be satisfied: “(1) a 

final judgment on the merits in a prior suit involving (2) the same parties or their 

privies and (3) a subsequent suit based on the same cause of action.” Marmon 

Coal Co., 726 F.3d at 394 (quoting Duhaney, 621 F.3d at 347)(internal quotations 

omitted). This preclusion concept operates to bar claims that were actually brought 

in a previous cause of action in addition to claims that could have been brought

there. See id, supra.

According to PSU, Yan Yan‟s claims in Counts I-II and IV-IX are otherwise 

barred because they are claims that were, or could have been, raised in Yan I: a 

cause of action which PSU considers to be the same as the cause of action in the 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 19 of 36
20

present lawsuit. See Doc. 46 at 10, 12. In opposition, we understand Yan Yan to 

rely upon the same argument, supra, in large measure. She adds, however, that the 

two causes of actions are not the same. See Doc. 52-1 at 11, 13 

For starters, we find that the parties are the same. See id. at 10-11. In both 

cases, PSU is clearly named as a defendant and Yan Yan, who was represented by 

counsel in Yan I, is also the same party. Doc. 42-1 at ¶ 2; Doc. 33 at ¶ 3 (4:10-CV00212). That Yan Yan also named other individual defendants in Yan I does not 

act to foreclose the concept of claim preclusion from applying to her claims against 

PSU in this lawsuit. This is especially true given that Yan Yan named PSU as a 

defendant in each Count, in the earlier case. Furthermore, other than briefly 

mentioning her child in the body of the present amended complaint, we do not 

liberally construe the amended complaint to include the child as a plaintiff in any 

of the Counts, much less Counts I-II and IV-IX, contrary to Yan Yan‟s argument.

5

Next, since we have already discussed the finality of the Court‟s order on 

the motions to dismiss and for summary judgment in Yan I, supra, we turn to the 

third element of claim preclusion. On this element, the Third Circuit has more 

 

5 As PSU points out, it is even questionable whether the child would have 

standing to raise claims for Yan Yan‟s alleged injuries. See Lexmark Intern., Inc. 

v. Static Control Components, Inc., 134 S.Ct. 1377, 1386 (2014)(explaining that 

the doctrine of prudential standing encompasses the general prohibition on a 

litigant‟s raising another person‟s legal rights)(quoted cases omitted). Similarly, 

we doubt that Yan Yan‟s child would have the capacity to sue. See Fed.R.Civ.P. 

17(c). 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 20 of 36
21

recently explained:

“We have disavowed attempts to create a simple test for 

determining what constitutes a cause of action for res judicata

purposes.” [Duhaney v. Att’y Gen., 621 F.3d 340, 348 (3d Cir. 

2010)] (internal quotation marks and citation omitted). The focus 

of the inquiry is the “essential similarity of the underlying events 

giving rise to the various legal claims.” Id. (internal quotation 

marks and citation omitted). Factors relevant to this 

determination include (1) whether the acts complained of were 

the same; (2) whether the material facts alleged in each suit were 

the same; and (3) whether the witnesses and documentation

required to prove such allegations were the same. Id. The mere 

existence of common elements of fact between two claims does 

not establish the same cause of action if the critical acts and the 

necessary documentation were different for the two claims. See 

id. at 349. In addition, an identical sought-after remedy for each 

of the claims is not dispositive for purposes of determining 

whether the second claim involves a new cause of action. See id.

Marmon Coal Co., 726 F.3d at 394. 

In Yan Yan‟s amended complaint, it is obvious that her factual allegations 

bear some similarity to those in Yan I. Moreover, we are cognizant that in Yan I

this Court received undisputed evidence of the following:

Plaintiff was accepted into Penn State's Graduate Degree 

Program in Genetics in 2002; she deferred admission for one 

year because she was pregnant. (Doc. 68, ¶¶ 14–15). Plaintiff sat 

for and failed her first comprehensive exam in the Genetics 

program in August of 2005. (Id. ¶ 18). [footnote omitted] 

Plaintiff passed the Genetics comprehensive exam on her second 

attempt in November of 2005. (Id. ¶ 19). In February of 2007, 

Plaintiff was terminated from the Genetics program; her 

termination letter advised that she demonstrated a lack of 

understanding of her experiments, an inability to interpret data, 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 21 of 36
22

and an inability to make meaningful connections between data 

and her specific scientific purpose. (Id. ¶ 21).

Plaintiff then approached Dr. Hong Ma, then Chair of the CDB 

program, regarding applying to the program. (Id. ¶ 24). Plaintiff 

contacted several faculty members seeking permission to work in 

their labs; Defendant Lai agreed in May of 2007. (Id. ¶¶ 25–27). 

On June 18, 2007, Defendant Lai, Plaintiff, and Dr. Ma signed a 

written memorandum of understanding formally admitting 

Plaintiff to the CDB program. (Id. ¶¶ 28–29). Plaintiff was also 

granted a Teaching Assistantship (“TA”) for the fall of 2007, a 

position which was renewed in the spring of 2008. (Id. ¶ 30).

Yan Yan, 2012 WL 3201888, at *2-*3.

Nowhere in the Third Circuit‟s opinion affirming this Court‟s judgment in 

Yan I, however, did the court make reference to the above-referenced facts. See 

Yan Yan, 529 F. App‟x at 169-71. Thus, we do not find that such facts were 

material to the earlier lawsuit; though, they could be material here. We also cannot 

take judicial notice of these facts from the Court‟s earlier opinion without 

converting PSU‟s motion to dismiss into one for summary judgment. See, supra,

M&M Stone Co., 388 F. App‟x at 162.

Furthermore, here, unlike in Yan I, Yan Yan raises claims of discrimination 

and retaliation for the denial of a PhD Degree in Genetics: not for the overall 

exclusion from PSU, the denial of a PhD Degree in the CDB Program, or for 

alleged acts of discrimination and retaliation by defendants Ho and Lai. We also 

do not believe that the same witnesses and evidence would be needed for either 

party in this lawsuit to prove, or defend against, the claims in Counts I-II and IVCase 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 22 of 36
23

IX. In other words, the two causes of action are not the same, and we deny PSU‟s 

attempt to dismiss Counts I-II and IV-IX via the concept of claim preclusion.6

B. Statute of Limitations.

PSU next raises the statute-of-limitations defense arguing that Yan Yan‟s 

Title IX and 42 U.S.C. § 1983 claims in Counts I-II and V-IX are time-barred 

under the respective statute of limitations. Similar to the affirmative defense of res 

judicata, on a Rule 12(b)(6) motion, a defendant can only prevail on the statute-oflimitations defense if a plaintiff‟s tardiness in bringing the action is apparent on the 

face of the complaint. See Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 

(3d Cir. 1978); West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 

106 n. 13 (3d Cir. 2010).

According to PSU, Yan Yan‟s Title IX and § 1983 claims are time-barred 

given that she was not even enrolled as a student at the University, in any Program, 

as of 2008, making her claims of discrimination and retaliation late by five years, 

at minimum. See Doc. 46 at 13; Doc. 54 at 5 n. 2. Yan Yan does not appear to 

dispute that more than two years has lapsed since the first alleged discriminatory 

 

6 Despite the fact that Yan Yan‟s alleged disability did not occur until after 

she was no longer a part of the Genetics Program, we do not construe the current 

allegations, as a whole, as an attempt by her to re-litigate claims associated with 

her time enrolled in the CDB Program. Rather, we liberally construe her pro se

claims of disability discrimination to be aimed at the denials of a PhD degree in 

Genetics, upon the resubmission of her thesis in 2011 and 2014. 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 23 of 36
24

and retaliatory acts occurred in 2007. Yan Yan, instead, argues that the 

continuing-violations doctrine should save her claims from the statute-oflimitations bar since the University had also denied her a PhD Degree in Genetics 

upon the resubmission of her thesis in 2011 and 2014, respectively. In essence, 

Yan Yan contends that a pattern of discrimination and retaliation was still 

occurring as late as 2014. See Doc. 52-1 at 12, 13.

In Pennsylvania, any action to recover damages for injury to a person based 

on negligent, intentional, or otherwise tortious conduct must be commenced within 

two years of the occurrence of the injury. 42 Pa. C.S. § 5524(7). This two year 

statute of limitations also applies to any action to recover damages under 42 U.S.C. 

§ 1983 and Title IX. See Kasteleba v. Judge, 325 F. App'x 153, 156 (3d Cir. 2009) 

(stating that federal courts apply a state's personal injury statute of limitations 

claims to § 1983 claims); Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77–78 (3d 

Cir. 1989) (concluding that “the most analogous statute of limitations [for a Title 

IX claim] is Pennsylvania's two-year statute of limitations period applicable to 

personal injury actions . . . .”). While the length of the statute of limitations is 

governed by state law, federal law governs when a cause of action accrues. Under

federal law, a cause of action accrues, and the statute of limitations begins to run, 

“when the plaintiff knew or should have known of the injury upon which its action 

is based.” Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998) 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 24 of 36
25

(citation omitted); see also Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir.

1998). 

Under the continuing-violations doctrine, a plaintiff can sue for actions that 

occurred outside the applicable limitations period if “a defendant's conduct is part 

of a continuing practice [and] . . . the last act evidencing the continuing practice 

falls within the limitations period.” Cowell v. Palmer Tp., 263 F.3d 286, 292 (3d 

Cir. 2001)(internal quotation marks and citation omitted). “The doctrine‟s focus 

„is on affirmative acts of the defendants.‟” Tearpock-Martini v. Borough of 

Shickshinny, 756 F.3d 232, 236 (3d Cir. 2014)(citing Cowell, 263 F.3d at 293). 

The reach of the continuing-violations doctrine is “understandably” narrow, often 

only applying in employment discrimination cases, “where only in retrospect will a 

plaintiff recognize that seemingly unconnected incidents were, in fact, part and 

parcel of a larger discriminatory pattern.” Id. (citation omitted). As such, 

equitable relief under the doctrine, from the statutory limitations period, is 

appropriate only where the alleged violation is “occasioned by continual unlawful 

acts, not continual ill effects from an original violation.” Id. (internal quotations 

and quoted case omitted).

Here, no one disputes that absent the application of the continuing-violations 

doctrine, Yan Yan‟s claims in Counts I-II and V-IX, related to the denial of her 

PhD Degree in Genetics during her enrollment period and in 2011, upon 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 25 of 36
26

resubmission of her thesis, would be time-barred. In presuming for argument‟s 

sake that the continuing-violations doctrine would apply to Yan Yan‟s Title IX7

and § 1983 claims in those Counts, we find that the most recent act by PSU in 

2014, the alleged denial of a PhD Degree in Genetics, is the only act that falls 

within the two-year statute of limitations, and it is a discrete and isolated act. See

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)(“Discrete acts 

include, for example, „termination, failure to promote, denial of transfer, or refusal 

to hire.‟”); accord id. at 110 (“A discrete retaliatory or discriminatory act 

„occurred‟ on the day that it „happened.‟”). Thus, the continuing-violations 

doctrine does not operate to save Yan Yan‟s claims relating to the denial of a PhD 

Degree in Genetics as late as 2011. Consequently, the claims in Counts I-II and VIX, related to the denial of a PhD Degree in Genetics up to the year 2011, should 

be dismissed with prejudice. Moving forward in this Report, our focus on Counts

I-II and V-IX will solely be on the alleged discriminatory and retaliatory act of 

denying her with a PhD Degree in Genetics in 2014, as set forth in those Counts.

8

 

7

But see, Gjeka v. Delaware County Community College, No. 12-4548, 2013 

WL 2257727, at *4-*5 (E.D. Pa. May 23, 2013)(declining to extend the 

continuing-violations doctrine to Title IX claims).

8

PSU did not raise the statute-of-limitations defense with respect to Count IV; 

thus, Count IV survives as to all aspects of Yan Yan‟s claim (i.e. that she was 

denied a PhD Degree in Genetics during her enrollment at the University and, 

subsequently, in 2011 and 2014). 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 26 of 36
27

C. The Alleged Denial of a PhD Degree in Genetics When She was No 

Longer Enrolled in the University.

With respect to the remaining aspect of Yan Yan‟s claims in Counts I-II and 

V-IX, she was not enrolled as a student in the University in 2014. See Doc. 42-1 at 

¶ 13. The same holds true with respect to Yan Yan‟s claim in Count IV that she 

was denied a PhD Degree in 2011 and 2014 because of her age. 

Title IX provides, with exceptions not relevant here, that “[n]o person in the 

United States shall, on the basis of sex, be excluded from participation in, be 

denied the benefits of, or be subjected to discrimination under any education 

program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681. 

Though cast in broad terms, § 1681 . . . addresses itself only to 

sex discrimination against the participants in and the 

beneficiaries of federally assisted education programs. Section 

1681 must therefore be read to protect from sex discrimination 

only those persons for whom the federally assisted education 

programs are established, and this can only mean the school 

children in those programs.

Romeo Community Schools v. United States Department of Health, Education, and 

Welfare, 438 F.Supp. 1021 (E.D. Mi. 1977)(emphasis added), judgment affirmed, 

600 F.2d 581 (6th Cir.), cert. denied, 100 S.Ct. 467 (1979). While raised in a 

different context, we agree with that interpretation of Title IX and interpret it the 

same way. Accordingly, since Yan Yan was not a student in a PSU program in 

2014, her Title IX claims in Counts I and II should be dismissed with prejudice.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 27 of 36
28

Next, the Age Discrimination Act of 1975 provides that “no person in the 

United States shall, on the basis of age, be excluded from participation in, be 

denied the benefits of, or be subjected to discrimination under, any program or 

activity receiving Federal financial assistance.” 42 U.S.C. § 6102. Given the 

similar statutory construction of this Act in comparison to Title IX, we likewise 

interpret the statute as solely protecting individuals that are participants in a 

program or activity receiving federal assistance. See also, 42 U.S.C. § 6101 (“It is 

the purpose of this chapter to prohibit discrimination on the basis of age in

programs or activities receiving Federal financial assistance.”)(Emphasis added). 

Thus, since Yan Yan was no longer a student at PSU in 2014, she was not a 

participant in any program or activity of the same, and Count IV should be 

dismissed with prejudice for the denial of a PhD Degree in Genetics in 2011 and 

2014. 

Finally, in Counts V through VIII, Yan Yan raises constitutional claims 

against PSU, pursuant to 42 U.S.C. § 1983. In pertinent part, § 1983 provides: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any 

citizen of the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or other proper 

proceeding for redress....

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 28 of 36
29

Id. “Section 1983 is not a source of substantive rights, but merely a method to 

vindicate violations of federal law committed by state actors.” Pappas v. City of 

Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. 

Doe, 536 U.S. 273, 284–85 (2002)). To establish a claim under § 1983, a plaintiff 

must show that (1) the conduct complained of was committed by persons acting 

under color of state law; and (2) the conduct violated a right, privilege, or 

immunity secured by the Constitution or laws of the United States. Harvey v. 

Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. 

Atkins, 487 U.S. 42, 48 (1988)).

In this instance, Yan Yan‟s claims pursuant to § 1983 are brought for 

perceived violations of the First (retaliation) and Fourteenth (violation of equal 

protection) Amendments. Noticeably missing from Yan Yan‟s amended 

complaint, however, are plausible allegations suggesting that PSU had an 

obligation or duty to review the resubmission of her thesis under the same or

similar standards as a student currently enrolled in the Genetics Program, or that a 

former student such as herself could even resubmit a thesis for reconsideration

without being enrolled in any program at the University. In this unique scenario, 

with the absence of such allegations, it appears entirely implausible for an 

individual such as Yan Yan to successfully raise constitutional claims of 

discrimination or retaliation against an entity such as PSU for denying her a PhD 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 29 of 36
30

Degree.

9

 Accordingly, we recommend that the constitutional claims in Counts V 

through VIII be dismissed without prejudice.

D. Yan Yan’s Claim under the Age Discrimination Act for the Denial of 

a PhD Degree in Genetics in 2007.

According to PSU, this claim should be dismissed for Yan Yan‟s failure to 

exhaust administrative remedies under the Age Discrimination Act. Doc. 46 at 15; 

Doc. 54 at 7 n. 6. Again, the purpose of the Age Discrimination Act is “to 

prohibit discrimination on the basis of age in programs or activities receiving 

Federal financial assistance.” 42 U.S.C. § 6101. “[N]o person in the United States 

shall, on the basis of age, be excluded from participation in, be denied the benefits 

of, or be subjected to discrimination under, any program or activity receiving 

Federal financial assistance.” 42 U.S.C. § 6102.

“Federal district courts have subject matter jurisdiction over [Age 

Discrimination Act] claims only if the plaintiff has exhausted her administrative 

remedies and has complied with the statutory notice requirements.” Jackson v. 

Argosy University, No. 12-2091, 2014 WL 309306, at * 3 (D. Nev. Jan. 27, 

2014)(citing Long v. Fulton Cnty. Sch. Dist., 807 F.Supp.2d 1274, 1283 (N.D. Ga.

 

9

In her brief in opposition, Yan Yan plainly contends, “[t]here is no 

requirement for enrollment [in order for a PhD Degree to] issu[e],” Doc. 52-1 at 

13; however, “it is axiomatic that the complaint may not be amended by the briefs 

in opposition to a motion to dismiss.” Pennsylvania ex rel. Zimmerman v. PepsiCo, 

Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal quotations and citation omitted). 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 30 of 36
31

2011); Rannels v. Hargrove, 731 F.Supp. 1214, 1221 (E.D. Pa. 1990); Popkim v. 

Zagel, 611 F.Supp. 809, 812 (C.D. Ill. 1985); 15 Am.Jur.2d Civil Rights § 387 

(2013)). Under the Age Discrimination Act, “administrative remedies shall be 

deemed exhausted upon the expiration of 180 days from the filing of an 

administrative complaint during which time the Federal department or agency 

makes no finding with regard to the complaint, or upon the day that the Federal 

department or agency issues a finding in favor of the recipient of federal 

assistance, whichever occurs first.” 42 U.S.C. § 6104(f); 45 C.F.R. § 90.50(a). 

Here Yan Yan fails to allege that she exhausted her claim under the Age 

Discrimination Act; instead, as far as we can tell, she solely alleges that she 

complained to PSU about gender-based discrimination and then filed unspecified 

complaints with the Pennsylvania Human Rights Commission. See Doc. 42-1 at ¶¶ 

13-14, 44-49; see also, id. at ¶¶ 69-75. Indeed, in the amended complaint, she does 

not even indicate compliance with the Act‟s exhaustion requirements prior to 

bringing this lawsuit or whether she also adhered to the Act‟s notice requirements, 

see 42 U.S.C. § 6104(e)(1); 45 C.F.R. § 90.50(3)(iii), (iv). Accordingly, Yan 

Yan‟s Age Discrimination Act claim in Count IV should be dismissed without 

prejudice for her failure to plead exhaustion and adherence to the notice 

requirements. See Morales v. New York, 22 F.Supp.3d 256, (S.D.N.Y. May 22, 

2014)(dismissing plaintiff‟s Age Discrimination Act claim for failing to indicate 

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 31 of 36
32

compliance with the Act‟s requirement that he exhaust remedies prior to bringing 

suit); Jackson, 2014 WL 309306, at *4 (dismissing plaintiff‟s claims under the Age 

Discrimination Act for failing to plead adherence to the Act‟s notice requirements);

Jackson v. Board of Education, No. 10-5710, 2012 WL 3079259, at *2-*3 (N.D. 

Ill. July 27, 2012)(dismissing plaintiff‟s Age Discrimination Act claims for failing 

to allege in the complaint that she exhausted her administrative remedies under the 

act); Rannels, 731 F.Supp. at 1221 (dismissing plaintiff‟s Age Discrimination Act

claims for failing to plead exhaustion and adherence to the notice requirements). 

E. Personal Injury.

Next, in the amended complaint, Yan Yan refers to the injury she allegedly 

suffered in January 26, 2008 -- the same injury she attempts (and attempted) to 

assert as a disability within the meaning of the ADA (and RA) – to set forth a 

claim under 18 U.S.C. § 2255. See Doc. 42-1 at ¶ 84. Section 2255 of Title 18 

provides the following:

(a) In general. -- Any person who, while a minor, was a victim 

of a violation of section 1589, 1590, 1591, 2241(c), 2242, 2243, 

2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this 

title and who suffers personal injury as a result of such violation, 

regardless of whether the injury occurred while such person was 

a minor, may sue in any appropriate United States District Court 

and shall recover the actual damages such person sustains and 

the cost of the suit, including a reasonable attorney's fee. Any 

person as described in the preceding sentence shall be deemed to 

have sustained damages of no less than $150,000 in value.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 32 of 36
33

(b) Statute of limitations. -- Any action commenced under this 

section shall be barred unless the complaint is filed within 10 

years after the right of action first accrues or in the case of a 

person under a legal disability, not later than three years after the 

disability.

18 U.S.C. § 2255 (a), (b). Clearly, Yan Yan does not qualify to recover under this 

statute since she elsewhere alleges in the amended complaint that she was not a 

minor at the time of the alleged incident when the injury is said to have resulted.10 

Moreover, as PSU points out, she has not alleged that was a victim of any of the 

violations referred to in § 2255. Count X, therefore, should be dismissed with 

prejudice.11

 

10 We interpret Yan Yan‟s amended complaint as alleging that she was 40 

years old while enrolled in the Genetics Program, see Doc. 42-1 at ¶¶ 1, 46. Even 

assuming she meant that she was 40 years old at the time the amended complaint 

was filed, she would have been approximately 27 years old in 2002, when she was 

first accepted into PSU‟s Genetics Program: obviously not a minor.

11 Yan Yan‟s argument in opposition here, Doc. 52-1 at 15, is unclear. On the 

one hand, we understand her argument as suggesting that she qualifies to recover 

for her alleged injury because her child was also injured while at daycare at PSU. 

Such an argument, though, clearly lacks merit under the language of the statute. 

On the other hand, we understand Yan Yan as arguing that she is raising a personal 

injury claim on behalf of her child. Yan Yan, however, has not named her child as 

a plaintiff and we do not liberally construe the amended complaint as including a 

claim under the statute, in Count X, for her child‟s alleged injuries at day care. See 

Doc. 42-1 at ¶¶ 83-89. Moreover, as previously stated, it is axiomatic that a briefin-opposition cannot be used to amend a pleading.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 33 of 36
34

F. Supplemental Jurisdiction.

In accordance with the jurisdictional statute, 28 U.S.C. § 1367, federal 

courts may decline to exercise supplemental jurisdiction over a state law claim if 

the court has dismissed all claims over which it has original jurisdiction. See 

Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)(“Where the 

claim over which the district court has original jurisdiction is dismissed before 

trial, the district court must decline to decide the pendent state claims unless 

considerations of judicial economy, convenience, and fairness to the parties 

provide an affirmative justification for doing so.”).

Here, we have recommended that Yan Yan‟s federal claims be dismissed, 

leaving only her state law claims under the PFEOA in Counts I-III and VI.

12 In 

reviewing her remaining claims under the PFEOA, we further find that there are no 

compelling considerations that would weigh in favor of the Court exercising its 

supplemental jurisdiction. Consequently, we recommend that the Court decline to 

exercise supplemental jurisdiction over the PFEOA claims and dismiss them. 

 

 

12 To the extent the amended complaint could be construed to include state-law 

claims for her child‟s alleged injuries, our recommendation in this Section of this 

Report should extend to such claims.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 34 of 36
35

IV. Recommendations.

Based on the foregoing, WE RECOMMEND that PSU‟s motion to dismiss 

(Doc. 45) be GRANTED and all of Yan Yan‟s claims in her amended complaint 

(Doc. 42-1) be DISMISSED. The Parties are further placed on notice that 

pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter 

described in 28 U.S.C. § 636 (b)(1)(B) or making a 

recommendation for the disposition of a prisoner case or a 

habeas corpus petition within fourteen (14) days after being 

served with a copy thereof. Such party shall file with the clerk of 

court, and serve on the magistrate judge and all parties, written 

objections which shall specifically identify the portions of the 

proposed findings, recommendations or report to which objection 

is made and the basis for such objections. The briefing 

requirements set forth in Local Rule 72.2 shall apply. A judge 

shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to 

which objection is made and may accept, reject, or modify, in 

whole or in part, the findings or recommendations made by the 

magistrate judge. The judge, however, need conduct a new 

hearing only in his or her discretion or where required by law, 

and may consider the record developed before the magistrate 

judge, making his or her own determination on the basis of that 

record. The judge may also receive further evidence, recall 

witnesses or recommit the matter to the magistrate judge with 

instructions.

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 35 of 36
36

Failure to file timely objections to the foregoing Report and 

Recommendation may constitute a waiver of any appellate rights. 

 Submitted this 7th day of May 2015.

S/ Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

Case 4:14-cv-01373-MWB-SES Document 79 Filed 05/07/15 Page 36 of 36