UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

YAN YAN : CIVIL NO: 4:14-CV-01590

 :

Plaintiff : (Judge Brann)

 :

v. : (Magistrate Judge Schwab)

 :

PENNSYLVANIA STATE :

UNIVERSITY, et al., :

 :

Defendants :

 :

REPORT AND RECOMMENDATION

I. Introduction.

The plaintiff, Yan Yan, attempted to obtain a PhD from Penn State 

University. She brought two prior cases relating, at least in part, to her failure to 

obtain her PhD. Now, in this case, her third in this Court, she primarily complains 

about the refusal of Penn State to hire her for jobs that require a PhD. Because 

Yan has failed to allege facts from which it can reasonably be inferred that she was 

qualified for those positions, we recommend that her failure-to-hire claims be 

dismissed, and for the reasons set forth below, we recommend that her other claims 

be dismissed as well. 

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II. Background and Procedural History.

Yan began this action by filing a complaint and an application for leave to 

proceed in forma pauperis, which we granted. She later filed an amended 

complaint naming the following entities and individuals as defendants: 

(1) Pennsylvania State University (PSU); (2) Regina Vasilatos-Younken; 

(3) Harold Paz; (4) Leonard Jefferson; (5) Madlyn L. Hanes; and (6) Pennsylvania 

State University Brandywine Campus. Doc. 41-1. Yan alleges the following facts 

in her amended complaint.

Yan is a female of Chinese origin, who is over 40 years old and allegedly

disabled. Her allegations concern events going as far back as 2002.

According to Yan, in 2002, she informed PSU of her pregnancy and she 

“was delayed one year for her research assistant position” at PSU while males were 

not “delayed” for the same position. Doc. 41-1 at 2, ¶7. More specifically, she 

alleges that, in 2002, she was denied lab work at PSU even though she qualified for 

lab-rotation jobs at Hershey Medical School. She alleges that no male in the same 

situation was denied a lab-rotation job. She further alleges that even after the birth 

of her child she was denied more than 20 labs assignments “for a year and two.” 

Id. at 11, ¶75. And she alleges that she “was keeping denying employment at 

Upenn afterward till now.” Id. at 11, ¶78. According to Yan, she had to send her 

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baby away and could not get her baby back “since Upenn assuming her baby 

would affect her employment.” Id.

Despite Yan’s allegation that she was denied lab positions and employment 

“till now,” she goes on to allege other positions and employment that she held at 

PSU. In fact, she alleges that she had two employment contracts with PSU: one for 

2003 to 2009, and one for 2007 to 2012. 

Yan alleges that, in 2005, she was harassed at Chiang Hui-Ling’s lab, and 

she was retaliated against and terminated from the lab. 

Yan alleges that, in 2007, Shi Yuguang and Leonard Jefferson wrongfully 

terminated her from a job. She alleges that this termination was in retaliation and 

breached a six-year employment contract. She also alleges that, in 2007, she was 

paid less than male colleagues. More specifically, she alleges that she “was paid 

less than male colleagues (Post doc) at PSU in 2007 while [she] performed more 

than common core duties as male colleagues (Post doc) such as scientific research 

and published peer-review papers in 2007 to 2008.” Doc. 41-1 at 13, ¶14. She 

further alleges that although she “composited research proposals for NIH grants 

fund application,” she “was paid as pre-comprehensive exam graduate student 

salary, which is less than male colleagues who did the similar duties.” Id. at 13, 

¶15. 

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Yan alleges that beginning in 2007, Ho Li-Lun harassed her in the Cell 

Development Biology program, and he caused her a work-related injury in 2008. 

She more specifically describes her injury as consisting of multiple fractures of her 

right hand, which is her dominant hand. She alleges that, in May of 2008, she “lost 

functions of injured hand on this job.” Doc. 41-1 at 9, ¶62. According to Yan, she 

has been disabled ever since. She also alleges that PSU has not hired her as a 

research assistant since then. She further alleges that in 2008, Lai Zhi-Chun 

wrongfully terminated her employment and breached a five-year employment 

contract. 

In January of 2013, Yan applied for a position as an Assistant Biology 

Professor at PSU’s Brandywine Campus. She alleges that she was qualified for the 

position because she had more than five years teaching experience, more than five 

years in Genetics and developmental biology research, she had contributed to 

National Institute of Health grants, and she authored or assisted in authoring

numerous publications. The position required a PhD in Cell Development Biology 

(CDB) or Genetics. At one point, Yan alleges that “she had accomplished PhD in 

Genetics and in CDB since 2007.” Doc. 41-1 at 2, ¶9. At another point, however, 

she alleges that she was denied positions because she lacked a PhD certificate and 

that the defendants damaged her by failing to grant her a PhD degree. Id. at 14,

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¶19. She further alleges that she “was denied her qualified PhD degree . . . .” Id. at 

10, ¶68. 

Yan alleges that in May of 2014, defendant Madlyn L. Hanes, Vice 

President for Commonwealth Campuses and Dean of the University College, 

informed her that she was not the successful candidate for the Assistant Biology 

Professor position. According to Yan, however, her qualifications were better than 

or equal to two males, both of whom are not of Chinese origin, are not disabled, 

and are younger than 40 years old, who were hired as tenure-track faculty at PSU. 

She alleges that she was denied that job and others “due to her lack of PhD 

certificate, which destroyed her academic careers.” Doc. 41-1 at 14, ¶19. Yan

alleges that the reason PSU gave for denying her the position is a pretext for 

discrimination. According to Yan, in June of 2014, she applied for other faculty 

positions at PSU, and although she was qualified for the positions, she was not 

offered any of the positions. 

Yan alleges that she filed complaints with the Pennsylvania Human 

Relations Commission (PHRC) in 2009 and 2013. She also alleges that she has 

complained to PSU since 2004, and that she filed charges of discrimination against 

PSU in 2007, 2008, 2009, 2010, and 2014. Further, she alleges that, in 2014, she 

filed a complaint against PSU for employment discrimination based on gender, 

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age, race/national origin, and disability with the PHRC and EEOC, and she was 

issued a right-to-sue letter. 

The amended complaint contains 14 counts. Count 1 is a Title VII claim 

against PSU on the basis of sex. Count 2 is a Title VII claim and a Pennsylvania 

Human Relations Act (PHRA) claim against PSU for national origin 

discrimination. Count 3 is a Title VII claim and a PHRA claim against PSU for 

retaliation. Count 4 is an Age Discrimination in Employment Act (ADEA) and a 

PHRA claim against PSU. Count 5 is an Americans with Disability Act (ADA) 

claim against PSU. Count 6 is a 42 U.S.C. § 1983 claim against PSU and the 

individual defendants for retaliation in violation of the First Amendment. Count 7 

is a § 1983 claim against PSU and the individual defendants for gender 

discrimination in violation of the Equal Protection Clause of the Fourteenth 

Amendment. Count 8 is a § 1983 claim against PSU and the individual defendants 

for national origin discrimination in violation of the Equal Protection Clause of the 

Fourteenth Amendment. Count 9 is a § 1983 claim against PSU and the individual 

defendants for disability discrimination in violation of the Equal Protection Clause 

of the Fourteenth Amendment. Count 10 is a § 1983 claim against PSU and the 

individual defendants for age discrimination in violation of the Equal Protection 

Clause of the Fourteenth Amendment. Count 11 is claim against PSU under the 

Pregnancy Discrimination Act. Count 12 is claim for personal injury under 18 

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U.S.C. § 2255. Count 13 a claim against PSU for wrongful termination and breach 

of contract under 41 U.S.C. § 6503. And Count 14 is a claim against PSU for 

violation of the Equal Pay Act. As relief, Yan seeks on order from the Court 

requiring the defendants to offer her the positions she applied for and to refrain 

from further discrimination and retaliation against her as well as compensatory and 

punitive damages.

Defendants PSU and Penn State University Brandywine Campus filed a 

motion to dismiss the amended complaint and a brief in support of that motion.1 

Yan later filed a document, which we construed as her brief in opposition to the 

motion to dismiss. See Docs.54 & 55. The moving defendants then filed a reply 

brief.

III. Discussion.

A. Motion to Dismiss and Pleading Standards.

In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint 

for “failure to state a claim upon which relief can be granted.” When reviewing a 

motion to dismiss, “[w]e must accept all factual allegations in the complaint as 

 

1 Although the individual defendants have not been served and have not moved to 

dismiss the amended complaint, in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii), 

in Section III.G of this Report and Recommendation, we consider whether the 

amended complaint states any claims upon which relief may be granted against the 

individual defendants, and we conclude that it does not. 

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true, construe the complaint in the light favorable to the plaintiff, and ultimately 

determine whether plaintiff may be entitled to relief under any reasonable reading 

of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In 

making that determination, we “consider only the complaint, exhibits attached to 

the complaint, matters of public record, as well as undisputedly authentic 

documents if the [plaintiff’s] claims are based upon these documents.” Id. at 230.

“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the 

pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. 

Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil 

Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the 

claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 

662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the 

defendant fair notice of what the plaintiff’s claim is and of the grounds upon which 

it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations 

are not required, but more is required than labels, conclusions, and a formulaic 

recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the 

plaintiff’s entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211

(3d Cir. 2009). “A complaint has to “show” such an entitlement with its facts.” Id.

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In considering whether a complaint fails to state a claim upon which relief 

can be granted, the court must accept as true all well-pleaded factual allegations in 

the complaint, and all reasonable inferences that can be drawn from the complaint 

are to be construed in the light most favorable to the plaintiff. Jordan v. Fox 

Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). A court, 

however, “need not credit a complaint’s bald assertions or legal conclusions when 

deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 

906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can 

prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of 

Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). 

Following Twombly and Iqbal, a well-pleaded complaint must contain more 

than mere legal labels and conclusions. Rather, it must recite factual allegations 

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere 

speculation. In practice, consideration of the legal sufficiency of a complaint 

entails a three-step analysis:

First, the court must ‘tak[e] note of the elements a plaintiff must 

plead to state a claim.’ Second, the court should identify 

allegations that, ‘because they are no more than conclusions, 

are not entitled to the assumption of truth.’ Finally, ‘where 

there are well-pleaded factual allegations, a court should 

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assume their veracity and then determine whether they 

plausibly give rise to an entitlement for relief.’

Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010)(quoting Iqbal, 556 

U.S. at 675 & 679).

A complaint filed by a pro se litigant is to be liberally construed and 

“‘however inartfully pleaded, must be held to less stringent standards than formal 

pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (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). Thus, a well-pleaded complaint must 

contain more than mere legal labels and conclusions. Rather, a pro se complaint 

must recite factual allegations that are sufficient to raise the plaintiff’s claimed 

right to relief beyond the level of mere speculation, set forth in a “short and plain” 

statement of a cause of action.

B. Failure-to-Hire Claims.

The moving defendants contend that Yan does not state any failure-to-hire 

claims upon which relief can be granted based on the their refusal to hire her as an 

Assistant Biology Professor or for the other positions because she has not alleged 

facts from which it can reasonably be inferred that she was qualified for those

positions. 

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To establish a prima facie case of discrimination under Title VII, the ADEA, 

the ADA, or the PHRA, a plaintiff must show, among other things, that she was 

qualified for the position at issue. See Paradoa v. Philadelphia Hous. Auth., No. 

14-3191, 2015 WL 1923654, at *2 (3d Cir. Apr. 29, 2015)(Title VII and PHRA 

race-discrimination claims); Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 

2013)(ADEA claim and Title VII gender discrimination claim); Shaner v. Synthes, 

204 F.3d 494, 500 (3d Cir. 2000)(ADA claim). 

Here, Yan alleges that a PhD in Cell Development Biology or Genetics was 

a requirement for the Assistant Biology Professor position. While she alleges that 

she was qualified for the position because she had more than five years teaching 

experience, more than five years in Genetics and developmental biology research, 

she had contributed to National Institute of Health grants, and she authored or 

assisted in authoring numerous publications, she does not allege that she actually 

has a PhD in either Cell Development Biology or Genetics. Her allegations in that 

regard are muddled. At one point, she alleges that “she had accomplished PhD in 

Genetics and in CDB since 2007.” Doc. 41-1 at 2, ¶9. At another point, however, 

she alleges that she was denied positions because she lacked a PhD certificate and 

that the defendants damaged her by failing to grant her a PhD degree. Id. at 14, 

¶19. She further alleges that she “was denied her qualified PhD degree . . . .” Id. at 

10, ¶68. And she alleges that she was denied the Assistant Biology Professor job 

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and others “due to her lack of PhD certificate, which destroyed her academic 

careers.” Doc. 41-1 at 14, ¶19. 

Construing the allegations in the light most favorable to Yan, as we must 

when considering a motion to dismiss, we nevertheless conclude that she has not 

alleged facts from which it can reasonably be inferred that she has a PhD in Cell 

Development Biology or Genetics. While Yan alleges that she met the 

requirements for a PhD, she has not alleged that she actually has a PhD.2 And 

given that the Assistant Biology Professor job required a PhD, YanYan’s

allegations are not sufficient to allege that she was qualified for that position. 

Similarly, given her allegations that she was denied the others positions due to her 

lack of a PhD, she has also not alleged facts from which it could reasonably be 

inferred that she was qualified for those positions. Thus, the amended complaint 

fails to state Title VII, ADEA, ADA, or PHRA failure-to-hire discrimination 

claims upon which relief can be granted.

 

2

This is consistent with Yan’s other cases. See Yan Yan v. Penn State Univ., 529 

F. App’x 167, 169 (3d Cir. 2013)( “Yan’s claims arise from her participation in, 

and ultimate termination from, a Ph.D. program in the Intercollege Graduate 

Program in Cell and Developmental Biology (CDB) at PSU.”); Yan Yan v. Penn 

State Univ., No. 4:14-CV-01373, 2015 WL 3953205, at *3 (M.D. Pa. June 29, 

2015)(construing Yan’s claims as based on the denial of a PhD degree in 

Genetics). 

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Yan also presents a Title VII and a PHRA claim that she was not hired in 

retaliation for her earlier charges of discrimination.3 To establish a prima facie 

case of retaliation, a plaintiff must show that (1) she engaged in protected activity 

under Title VII; (2) the employer took an adverse action against her; and (3) there 

was a causal connection between her protected activity and the adverse 

employment action. Wilkerson v. New Media Technology Charter School Inc., 522 

F.3d 315, 320 (3d Cir. 2008). “Title VII retaliation claims require proof that the 

desire to retaliate was the but-for cause of the challenged employment action.” 

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). “This 

requires proof that the unlawful retaliation would not have occurred in the absence 

of the alleged wrongful action or actions of the employer.” Id. at 2533.

Given that Yan alleges that the positions at issue required a PhD, that she did 

not have a PhD, and that she was denied the positions for that reason, Yan has not 

alleged facts from which it could reasonably be inferred that there was a causal 

connection between her earlier discrimination charges and the later failure to hire 

her. Thus, the amended complaint fails to state a Title VII or a PHRA failure-tohire retaliation claim upon which relief can be granted. 

 

3

The Title VII and PHRA retaliation claims are evaluated under the same 

standards. See Thompson v. Kellogg’s USA, No. 14-4325, 2015 WL 4394749, at *3 

(3d Cir. July 20, 2015).

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In sum, the amended complaint fails to state any Title VII, ADEA, ADA, or 

the PHRA failure-to-hire claims (Counts 1 through 5 of the amended complaint)

upon which relief can be granted. In this regard, we note that although Yan titles 

Count 1 of her amended complaint as a hostile-environment claim, she does not 

allege anything regarding a hostile environment. Rather, she alleges that she was 

denied employment while males were hired. Thus, despite the title, Count 1 is 

really a failure-to-hire claim. Similarly, although Yan titles Counts 4 and 5 as both 

wrongful termination and failure-to-hire claims,4her allegations with respect to 

those counts is that she was not hired while younger (Count 4) and nondisabled 

(Count 5) applicants were hired. Here again despite the title, the claims are really 

only failure-to-hire claims. And because, as discussed above, Yan has not alleged 

facts from which it could reasonably be inferred that she was qualified for the 

positions at issue, the amended complaint fails to state a claim upon which relief 

can be granted.5

 

4

 Yan uses the title “Wrongly Termination and Fail to Employ,” which we 

construe to mean wrongful termination and failure to hire.

5

 Given that we have concluded that the amended complaint fails to state any Title 

VII, ADA, or ADEA failure-to-hire claims upon which relief can be granted on the 

basis that Yan has not alleges facts from which it could reasonably be inferred that 

she was qualified for the positions, we need not address the moving defendants 

argument that Yan failed to allege that she exhausted administrative remedies as to 

those claims. We note, however, that Yan alleges that she filed complaints with 

the PHRC in 2009, 2010, 2013, that in 2014 she dual filed with the EEOC, and that 

she received a right-to-sue letter. Doc. 41-1 at 2-3, ¶¶4 & 12. 

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In addition to Title VII, ADEA, ADA, and PHRA failure-to-hire claims, Yan

presents failure-to-hire claims under 42 U.S.C. § 1983 (Counts 6 through 10). The 

amended complaint fails to state § 1983 claims upon which relief can be granted 

for the same reason; i.e., Yan has not alleged facts from which it could reasonably 

be inferred that she was qualified for the positions at issue. Here again, we note 

that although Yan titled some of her counts (Counts 6 and 7) as both wrongful 

termination claims as well as failure-to-hire claims, her allegations with respect to 

those counts is that she was not hired while applicants who were not in her 

protected class were hired. Thus, despite the title, the claims are really only 

failure-to-hire claims. 

Further, as to Count 10, although Yan alleges that she was over 40 years of 

age and she “was denied her qualified PhD degree while the similar situated 

counterparts who were not in Yan’s protected claims were granted PHD degree at 

PSU,” doc. 41-1 at 10, ¶¶67-68, she titled this count as a 42 U.S.C. §1983 failureto-hire claim based on her age. Given the focus of her amended complaint and the 

title of this claim, we do not construe the amended complaint as attempting to 

relitigate claims regarding the denial of her PhD, which was the subject of her prior 

cases. Further, to the extent that she is complaining about employment 

discrimination because of her age, her exclusive remedy is a claim under the 

ADEA. Hildebrand v. Allegheny Cty., 757 F.3d 99, 109-110 (3d Cir. 

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2014)(holding that the ADEA, which provides a comprehensive remedial scheme, 

precludes § 1983 claims of age discrimination in employment). 

In sum, we conclude that Counts 1 through 10 of the amended complaint 

should be dismissed. “[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a 

district court must permit a curative amendment unless such an amendment would 

be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d 

Cir. 2008). Here, Yan has attached a proposed second amended complaint to her 

brief in opposition to the motion to dismiss. She does not materially amend her 

allegations regarding the requirement of a PhD for the positions at issue and her 

lack of an actual PhD. Accordingly, allowing Yan’s proposed second amended 

complaint would be futile as to her failure-to-hire claims. 

C. Pregnancy Discrimination Act.

In Count 11 of her amended complaint, Yan attempts to plead a claim under 

the Pregnancy Discrimination Act, which “makes clear that Title VII’s prohibition 

against sex discrimination applies to discrimination based on pregnancy.” Young 

v. United Parcel Service, Inc., 135 S.Ct. 1338, 1343 (2015). The Act “also says 

that employers must treat ‘women affected by pregnancy . . . the same for all 

employment-related purposes . . . as other persons not so affected but similar in 

their ability or inability to work.’” Id. (quoting 42 U.S.C. § 2000e(k)). 

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According to Yan, in 2002, she informed PSU of her pregnancy and she 

“was delayed one year for her research assistant position” at PSU while males were 

not “delayed” for the same job. Doc. 41-1 at 2, ¶7. More specifically, she alleges 

that, in 2002, she was denied her lab work at PSU even though she qualified for 

lab-rotation jobs at Hershey Medical School while no male in the same situation 

was denied a lab-rotation job. She further alleges that even after the birth of her 

child she was denied more than 20 labs assignments “for a year and two.” Id. at 11, 

¶75. And she alleges that she “was keeping denying employment at Upenn 

afterward till now.” Id. at 11, ¶78. According to Yan, she had to send her baby 

away and could not get her baby back “since Upenn assuming her baby would 

affect her employment.” Id.

To the extent that Yan is claiming that she was not hired in 2013 and 2014 

because of her pregnancy in 2002, she fails to state a claim upon which relief can 

be granted. She has failed to allege any facts to support an inference that she was 

not hired “because of or on the basis of pregnancy, childbirth, or other related 

medical conditions.” Saleski-Shingara v. VNA Health Systems, No. 4:14-CV00085, 2014 WL 5702928 at *8 (M.D.Pa. Nov. 5, 2014). Further, one of the 

elements of a prima facie case of a pregnancy-discrimination claim is that the 

plaintiff was qualified for the position in question, see Doe v. C.A.R.S. Protection 

Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008), and, as discussed above, Yan has not 

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alleged facts from which it could reasonably be inferred that she was qualified for 

the positions she applied for in 2013 and 2014.6

To the extent that Yan is a basing her pregnancy discrimination claim on 

events that happened in 2002 and shortly thereafter, the moving defendants 

contend such a claim is barred by the statute of limitations. 

“Before beginning a Title VII suit, a plaintiff must first file a timely EEOC 

charge.” Lewis v. City of Chicago, 560 U.S. 205, 210 (2010). A claimant in a 

deferral state, such as Pennsylvania, must file an administrative charge within 300 

days after the alleged unlawful employment practice occurred. Mandel v. M & Q 

Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013); 42 U.S.C. § 2000e–5(e)(1) 

(providing “that in a case of an unlawful employment practice with respect to 

which the person aggrieved has initially instituted proceedings with a State or local 

agency with authority to grant or seek relief from such practice . . . such charge 

shall be filed . . . within three hundred days after the alleged unlawful employment 

practice occurred . . .”). This time period is treated as a statute of limitations. 

Burgh v. Borough Council of Montrose, 251 F.3d 465, 470 & 475 (3d Cir. 2001). 

 

6

Similarly, to the extent that Yan is attempting to plead a “sex-plus” claim based 

on having a young child, such a claim is “merely a form of gender discrimination,” 

one element of a prima facie case is that the plaintiff was qualified for the position, 

see Saleski-Shingara, 2014 WL 5702928 at *8-9, and Yan has not alleged facts 

from which it could reasonably be inferred that she was qualified for the positions 

at issue. 

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The statute of limitations is an affirmative defense and the burden of 

establishing its applicability rests with the defendants. Bradford-White Corp. v. 

Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989). A motion to dismiss may 

be granted on the basis of the statute of limitations only if “the time alleged in the 

statement of a claim shows that the cause of action has not been brought within the

statute of limitations.” Bethel v. Jendoco Construction Corp., 570 F.2d 1168, 1174 

(3d Cir. 1978)(motion to dismiss); 5A Wright & Miller, Federal Practice and 

Procedure §1368 (2d ed. 1990)(“If the affirmative defense clearly is established in 

the pleadings, as, for example, when a statute of limitations defense is apparent on 

the face of the complaint and no question of fact exists, then a judgment on the 

pleadings may be appropriate.”).

In this case, Yan does not appear to dispute that she did not file an 

administrative complaint within 300 days of the events in 2002 or shortly 

thereafter regarding purported discrimination based on her pregnancy. Rather, she 

asserts in her brief that she filed a claim of gender discrimination in 2013 and, 

according to her, under the continuing-violation doctrine, her claim relating to 

2002 is timely. 

“Under the continuing violation doctrine, discriminatory acts that are not 

individually actionable may be aggregated to make out a hostile work environment 

claim; such acts ‘can occur at any time so long as they are linked in a pattern of 

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actions which continues into the applicable limitations period.’” Mandel, 706 F.3d 

at 165 (quoting O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)). 

“It does not matter, for purposes of the statute, that some of the component acts of 

the hostile work environment fall outside the statutory time period.” Nat’l R.R. 

Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). “Provided that an act 

contributing to the claim occurs within the filing period, the entire time period of 

the hostile environment may be considered by a court for the purposes of 

determining liability.” Id. Thus, “[t]o allege a continuing violation, the plaintiff 

must show that all acts which constitute the claim are part of the same unlawful 

employment practice and that at least one act falls within the applicable limitations 

period.” Mandel, 706 F.3d at 165-66. The “focus ‘is on affirmative acts of the 

defendants.’” Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 236 (3d 

Cir. 2014) (quoting Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir. 2001)). 

Further, appropriate considerations in distinguishing continuing violations from 

isolated occurrences include the frequency of the alleged acts and the subject 

matter of the acts, i.e., “whether the violations constitute the same type of 

discrimination.” Mandel, 706 F.3d at 166 n.2. Discrete acts, however, “such as 

termination, failure to promote, denial of transfer, or refusal to hire” constitute 

separate unlawful employment practices and cannot be aggregated into a hostileenvironment claim. Morgan, 536 U.S. at 113-14. 

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Here, the problem with Yan’s invocation of the continuing-violation 

doctrine is that, according to the allegations in the amended complaint, Yan has not 

been a student or employee at PSU since 2008, and there is simply no way that 

events that happened early in her career as student are sufficiently related under the 

continuing-violation doctrine to her claims that in 2013 and 2014 she was not hired 

for certain positions. Moreover, a failure to hire is a discrete action that does not 

relate back to earlier actions. Accordingly, we recommend that the Pregnancy 

Discrimination Act claim be dismissed as barred by the statute of limitations.

7

D. 18 U.S.C. § 2255.

In Count 12 of her amended complaint, Yan attempts to plead a claim for 

personal injury under 18 U.S.C. § 2255. She alleges that Ho Li-Lun harassed her

in the CDB program and that she suffered an injury to her hand. Those allegations, 

however, are insufficient to state a claim under 18 U.S.C. § 2255, which 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 

 

7 Given that recommendation, we need not address the moving defendants’

contention that Yan failed to allege that she exhausted administrative remedies as 

to this claim. 

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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.

(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.

The statutory sections referred to in 18 U.S.C. § 2255(a) relate to peonage, 

slavery, and trafficking in persons, the sexual exploitation of children, child 

pornography, and the transportation of persons for illegal sexual activities. Yan’s 

allegations have nothing to do with any of those subjects. Moreover, since Yan 

alleges elsewhere in her amended complaint that she is over 40 years of age, she 

obviously does not meet the statute’s requirement of being a minor during the 

violation of any of the statutes listed in Section 2255. Accordingly, the amended 

complaint fails to state a claim under 18 U.S.C. § 2255 upon which relief can be 

granted. Granting Yan leave to amend would be futile.8

 

8

In her proposed second amended complaint, Yan alleges that her child was 

abused by staff of a daycare on PSU’s campus and that the Hershey Medical 

School failed to provide sufficient medical care. Yan’s child, however, is not a 

plaintiff in this action. Moreover, Yan, appearing pro se, is not permitted to 

represent other parties, including her minor child. Osei–Afriyie v. Med. Coll. of 

Pa., 937 F.2d 876, 882–83 (3d Cir.1991) (pro se litigant not permitted to represent 

his minor children). In her proposed second amended complaint, Yan also alleges 

that PSU violated 42 Pa.C.S.A. § 5524. That statute, however, merely sets forth a 

two-year statute of limitations for certain actions. 

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E. 41 U.S.C. § 6503.

In Count 13 of her amended complaint, Yan attempts to plead a claim under 

41 U.S.C. § 6503, which deals with breach of terms required to be in a contract 

under 41 U.S.C. § 6502, which in turn deals with contracts “made by an agency of 

the United States for the manufacture or furnishing of materials, supplies, articles, 

or equipment, in an amount exceeding $10,000.” Although Yan alleges that she 

had two employment contracts with PSU, which PSU allegedly breached, PSU is 

not an agency of the United States. Moreover, because Yan’s employment 

contracts are not the type of contracts addressed in §§ 6502 and 6503, the amended 

complaint fails to state a claim under § 6503 upon which relief can be granted. 

Leave to amend would be futile.

9

F. Equal Pay Act. 

Finally, we address Yan’s claim under the Equal Pay Act, which bars an 

employer from discriminating “on the basis of sex by paying wages to employees .

. . at a rate less than the rate at which he pays wages to employees of the opposite 

sex . . . for equal work on jobs the performance of which requires equal skill, 

effort, and responsibility, and which are performed under similar working 

 

9

In her proposed second amended complaint, Yan alleges that she entered into two 

employment contracts with PSU and the Department of Homeland Security. Still 

such employment contracts are not the type of contracts covered by §§ 6502 and 

6503. 

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conditions,” unless one of four affirmative defenses applies. 29 U.S.C. § 206(d).

The four affirmative defenses are that the pay difference is based on: “(i) a 

seniority system; (ii) a merit system; (iii) a system which measures earnings by 

quantity or quality of production; or (iv) a differential based on any other factor 

other than sex.” Id. Equal Pay Act Claims are analyzed using a two-step burdenshifting paradigm. Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). First, 

the plaintiff must establish a prima facie case “by demonstrating that employees of 

the opposite sex were paid differently for performing ‘equal work’—work of 

substantially equal skill, effort and responsibility, under similar working 

conditions.” Id. If the plaintiff succeeds in establishing a prima facie case, the 

“burden of persuasion then shifts to the employer to demonstrate the applicability 

of one of the four affirmative defenses specified in the Act.” Id.

Equal Pay Act claims are subject to a two-year statute of limitations except 

in the case of willful violations, which are subject to a three-year statute of 

limitations. 29 U.S.C. § 255(a). “A claim under the Equal Pay Act accrues each 

time an employee receives a paycheck paying him or her less than an employee of 

the opposite sex who performs equal work.” Prise v. Alderwoods Grp., Inc., 657 

F.Supp.2d 564, 625 (W.D.Pa. 2009).

Yan alleges that, in 2007, Shi Yuguang and Leonard Jefferson wrongfully 

terminated her from a job. She alleges that this termination was in retaliation and 

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breached a six-year employment contract. She also alleges that in 2007, she was 

paid less than male colleagues. More specifically, she alleges that she “was paid 

less than male colleagues (Post doc) at PSU in 2007while [she] performed more 

than common core duties as male colleagues (Post doc) such as scientific research 

and published peer-review papers in 2007 to 2008.” Doc. 41-1 at 13, ¶14. She 

further alleges that although she “composited research proposals for NIH grants 

fund application,” she “was paid as pre-comprehensive exam graduate student 

salary, which is less than male colleagues who did the similar duties.” Id. at 13, 

¶15. 

Given that Yan alleges that she was last subject to unequal pay in 2007-

2008, and she did not begin this action until 2014, her Equal Pay Act claims are 

barred by the statute of limitations. Again Yan invokes the continuing-violation 

doctrine. But even where discriminatory conduct constitutes a continuing 

violation, the statute of limitations still “begins to run on the date of the last 

occurrence of discrimination.” Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 842 

(3d Cir. 1992). Here, based on Yan’s allegations, she received her last allegedly 

discriminatory paycheck more than three years before she filed this case. Thus, the 

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continuing violation doctrine does not save Yan’s claim from the statute of 

limitations.10

G. Individual Defendants.

The individual defendants have not been served and have not entered an 

appearance in this case. Thus, they have not moved to dismiss the amended 

complaint. Nevertheless, in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii), the 

Court shall dismiss a case brought in forma pauperis if it fails to state a claim upon 

which relief may be granted. The claims against the individual defendants, which 

are claims under 42 U.S.C. § 1983, fail for the same reasons set forth above as to 

the § 1983 claims against the moving defendants. Moreover, personal involvement 

is a requirement as to any §1983 claim, see Ashcroft v. Iqbal, 556 U.S. 662, 676 

(2009), and as to two of the individual defendants—Vasilatos-Younken and Paz—

Yan has not made any factual allegations as to how they were personally involved 

in the alleged violation of her rights. For this reason also the amended complaint 

fails to state claims against those defendants upon which relief may be granted.

 

10

 Given the conclusion that the Equal Pay Act claims are barred by the statute of 

limitations, we need not address the moving defendants’ argument that Yan failed 

to allege facts from which it could reasonably be inferred that she was paid less 

than males preforming the same job.

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IV. Recommendations.

Based on the foregoing, it is recommended that the defendants’ motion (doc. 

44) to dismiss the amended complaint be granted, that all the claims in the 

amended complaint be dismissed, and that Yan not be given further leave to 

amend.

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.

Submitted this 11th day of August, 2015.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

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