United States District Court, M.D. Pennsylvania
MATTHEW W. BRANN UNITED STATES DISTRICT JUDGE
Currently pending before this Court is the Defendant Pennsylvania State University’s (“PSU”) Motion for Summary Judgment (ECF No. 100) and accompanying statements of facts and legal briefs, (ECF Nos. 101, 110, 111), as well as plaintiff Mohamad Nouri’s brief in opposition. (ECF No. 109). The matter has been fully briefed and is now ripe for disposition. For the following reasons, the Motion for Summary Judgment is granted in full.
The Plaintiff in this matter, Dr. Nouri, was born in Iran and is Muslim. (ECF No. 37, ¶¶ 6, 7). He earned a doctoral degree in mathematics from University of London, King’s College and thereafter held teaching positions at several international universities. Id. at ¶ 8. In 1988, Dr. Nouri was hired by PSU as an associate professor in mathematics; in 1991 he was granted tenure and promoted to full professor at PSU. (ECF No. 100, ¶¶ 1, 3). Between 1975 and 1991, Dr. Nouri published sixteen papers in professional, peer-reviewed journals of mathematics; since 1991, Dr. Nouri has published one paper in a professional, peer-reviewed journal. Id. at ¶¶ 2, 4.
In 1995, Dr. Nouri filed complaints with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Commission on Human Relations (“PCHR”), alleging that PSU was engaging in discrimination on the basis of race, religion, and national origin. (ECF No. 37, ¶ 32). In 1997, Dr. Nouri filed a civil rights suit against PSU, docketed with this Court as case number 4:97-cv-01317. Id. at ¶ 33. After a trial on that matter, the jury rendered a split verdict, finding against Dr. Nouri for claims of discrimination, but for Dr. Nouri on claims of retaliation. (ECF No. 101, Ex. A, 138:3-138:11).
In 2001, Dr. Nouri filed a second lawsuit against PSU, docketed with this Court as case number 4:01-cv-00840, alleging that he was denied appropriate salary increases on the basis of his age, national origin, and religion (the “2001 lawsuit”). (ECF No. 100, Ex. 4). In 2003, a jury found in favor of PSU on all counts. Id. at Ex. 6.
A. 2001 Lawsuit Discovery
In the 2001 lawsuit, PSU denied any discrimination or retaliation, and argued that Dr. Nouri received diminished salary increases based in part upon his Faculty Activity Report (“FAR”) scores. (ECF No. 100, Ex. 7). FARs are “a form of self-evaluation prepared by each faculty member at PSU on an annual basis . . . which are used in connection with the annual faculty review process.” (ECF No. 101, p. 4). These reports are intended to accurately reflect the faculty member’s activities over the course of the year in areas such as scholarly research, teaching, and university service. Id. Dr. Nouri did not fill out the FARs himself, did not receive copies of the FARs, and did not sign the FARs. (ECF No. 100, Ex. 17, p. 16-17). Dr. Nouri considered the FARs to be informal documents, and did not believe full citations for legal research or publications were required. (ECF No. 109, Ex. 1, pp. 104, 112). Nonetheless, Dr. Nouri understood that PSU believed that the FARs would be accurate. (ECF No. 110, Ex. 2, p. 122).
PSU’s annual performance evaluations were partially based upon the FARs provided by faculty members. Id. at Ex. 8. Dr. Nouri’s performance evaluations noted consistently positive teacher evaluations but, beginning in 1998, documented a downward trend in research evaluations. Id. By the year 2000, no annual evaluation rated Dr. Nouri’s research performance above “Poor.” Id.
During the discovery process, James Horne, Esquire, outside counsel representing PSU in the 2001 lawsuit, submitted discovery requests for all documents supporting claims made in the FARs relating to, inter alia, publications and participation in professional meetings. Id. at Ex. 10. On October 25, 2011, Dr. Nouri, through his counsel Kim Borland, Esquire, provided a supplemental response to the discovery request which included attached seminar materials, publications, and notes on a textbook that Dr. Nouri was writing. Id. at Ex. 13.
The attached seminar materials included a presentation on neuro-networks, approximations, adaptive systems, and signal processing at the International Symposium of Telecommunications in Tehran on August 30, 2001 (the “Tehran Conference”). Id. The publications provided included: (a) “Application of Dynamic Neural Networks to Approximation and Control of Nonlinear Systems”; (b) “Optimal Control of Flexible Systems by a Mathematical Programming Approach”; (c) “Neural Nets for an Adaptive Control”; (d) “Controller Design for Large Flexible Space”; (e) “Approximation and Control for Systems Using a Neural Net”; (f) “Dynamic Back Propagation Experiments”; and (g) “Introduction to Artificial Neural Networks.” Id.
During an October 31, 2001 deposition, Dr. Nouri examined the documents that had been provided to PSU during discovery, and acknowledged that the documents were his work and that he had supplied them. Id. at Ex. 14. Dr. Nouri later stated that he did not look through the documents that were produced in the deposition. Id. at Ex. 17, p. 40-41. Without thoroughly examining the documents, Dr. Nouri noticed that the documents discussed neuro networks and controls; therefore, he admitted they were his documents because “there is nobody else in that work of either neuro network or control in Northeast Pennsylvania.” Id. at 41. During a June 18, 2002 deposition, Dr. Nouri was confronted with a copy of “Application of Dynamic Neural Networks to Approximation and Control of Nonlinear Systems” bearing only his name. Id. at Ex. 15, p. 4. Dr. Nouri did not deny the authenticity of that document, and acknowledged that it was his work. Id.
During the course of discovery, Mr. Horne became concerned that many of the documents that Dr. Nouri produced and represented as his own work were substantially similar to work published by other individuals. Id. at Ex. 16, pp. 48-65. Mr. Horne first noticed that Dr. Massoud Amin had published an article entitled “Application of Dynamic Neural Networks to Approximation and Control of Nonlinear Systems” and did not list any collaboration with Dr. Nouri. Id.
In his efforts to defend PSU, Mr. Horne continued to gather information regarding Dr. Nouri’s reported publications, and sought to discover if any further inconsistencies existed. Id. at 63-65. Mr. Horne’s investigation was wholly relevant to the ongoing litigation. Id. at Ex. 13, pp. 41-42. Mr. Horne, as was his normal practice, conveyed his concerns to PSU regarding Dr. Nouri’s claimed publications. Id. at 69-70. In that regard, on November 11, 2001, Mr. Horne sent an e-mail to two PSU employees, Gary Schultz and Mary Hines, notifying them that he had “very good evidence of what [he] perceive[d] as clear misconduct by [Dr.] Nouri[.]” (ECF No. 109, Ex. 4).
Mr. Horne continued to investigate Dr. Nouri’s publications, and by October 2002, decided that he had accumulated sufficient information to file a complaint of academic misconduct with PSU. (ECF No. 100, Ex. 13, pp. 96-97). Mr. Horne compiled the documents and created a report that broadly outlined his findings; the report and documents were then submitted to Candice Yekel at the Office of Research Protections. Id. at pp. 103-04.
B. University Investigation
Around October 2002, Mr. Horne presented his findings and report to “folks at the university[.]” (ECF No. 100, Ex. 13, pp. 103-04). After Mr. Horne reported the alleged misconduct to PSU, an investigation was launched under Policy RA10 (“RA 10”) of the PSU Policy Manual which prohibits plagiarism among PSU’s professors; this calls for the creation of a committee to examine the allegations. Id. at Ex. 16, p. 73-74; Ex. 21. The RA 10 Committee, which consisted of Ms. Yekel, Vice President of Research Eva Pell, and then Dean Eric Barron (now President of PSU),  met to complete an inquiry into possible misconduct. (ECF No. 100, Ex.16, p. 74). The purpose of an RA 10 Committee is to determine whether there is enough information to warrant a formal investigation. Id. at Ex. 22, p. 25. On November 6, 2002, Dr. Pell sent a letter to Dr. Nouri notifying him of the investigation, which specifically related to Dr. Nouri’s Tehran Conference presentation, and an allegation that his presentation used, without citations or reference, information created by Dr. Jose Principe. Id. at Ex. 24.
During this meeting, Dr. Nouri admitted that he used materials and information created by Dr. Principe, but maintained that he used only a small part of Dr. Principe’s work, and properly attributed the information to Dr. Principe. Id. at Ex. 27, p. 4. Dr. Nouri showed Dr. Principe’s book and CD to the audience, and provided the audience with Dr. Principe’s website. Id.
The RA 10 Committee concluded that there was sufficient evidence to launch a formal investigation. Id. at Ex. 28. The RA 10 Committee noted that the presentation slides Dr. Nouri provided during litigation were substantially identical to Dr. Principe’s slides from a prior presentation, except that any slides referencing Dr. Principe were excised from the presentation. Id. at Ex. 28. Ms. Yekel stated that the RA 10 Committee was not made aware of the details of Dr. Nouri’s ongoing litigation with PSU, and that the litigation had no effect on the RA 10 Committee’s decision. Id. at Ex. 16, pp. 81-82.
On February 14, 2003, Dr. Nouri was notified that an Investigatory Committee had been formed to research academic misconduct. Id. The Investigatory Committee was comprised of five tenured professors: John Wyngaard, Lee Giles, David Russell, John Dawson, and Kultegin Aydin. Id. at Ex. 41, p. 1. Ms. Yekel served as staff for the Investigatory Committee. Id. at Ex. 28. None of the professors taught at Dr. Nouri’s campus, none of the professors had any conflicts of interest, and none of the professors knew of Dr. Nouri or the ongoing litigation. Id. at Ex. 17, p. 120; Ex. 28. The Investigatory Committee was charged with: (1) determining whether Dr. Nouri had plagiarized Dr. Principe’s work for the Tehran Conference and (2) determining whether there was a pattern of plagiarism in other works by Dr. Nouri. Id. at Ex. 28.
Accused individuals are kept apprised of the Investigatory Committee’s progress throughout the investigation and are given “the opportunity at multiple times throughout the process to meet and discuss” issues with the Investigatory Committee. Id. at Ex. 22, p. 76. The individual is allowed to review reports and transcripts of interviews and offer comments on those documents. Id. at 76-77. He or she is also encouraged to submit any documents that may support a defense. Id. at 77. The burden rests on PSU to prove by a preponderance of the evidence that an individual committed plagiarism. Id. at 48; Ex. 41, p. 4.
The Investigatory Committee was provided with the documents that Mr. Horne had obtained, including his report, and was informed that the documents had been obtained during the course of litigation between Dr. Nouri and PSU. Id. at Ex. 16, p. 100. However, no members of the Investigatory Committee were provided any information regarding the details of the lawsuit. Id. None of the committee members were familiar with Dr. Nouri. Id. at 92. No person outside of the Committee attempted to influence the outcome of the proceedings. Id. at 100.
Prior to the Investigatory Committee conducting any interview with Dr. Nouri, Ms. Yekel requested that Dr. Nouri provide a complete and current curriculum vitae as well as a complete list of references for all publications and copies of any manuscripts that he was working on. Id. at Ex. 40. Dr. Nouri informed Ms. Yekel that the “information ha[d] already been provided . . . [and he had] no further submissions to add to” the documents already provided. Id.
On June 10, 2003, the Investigatory Committee met with Dr. Nouri and his counsel. Id. at Ex. 29, p. 2. During the interview, Dr. Nouri was first asked about the Tehran Conference presentation and why the presentation was nearly identical to Dr. Principe’s presentation. Id. at 9, 12-13. Dr. Nouri stated that the presentation slides were in fact Dr. Principe’s, but Dr. Nouri had not presented those slides at the Tehran conference. Id. at 10-11. He later stated that he had used some of Dr. Principe’s slides at the conference and had discussed Dr. Principe’s work with the audience. Id. at 12.
When asked why the title page of the slides bore his name rather than Dr. Principe’s, Dr. Nouri stated “I don’t know where you got this from, and I don’t know anything about this[.]” Id. at 12-13. The Investigatory Committee iterated that the documents had been provided by Dr. Nouri’s attorney during discovery in his federal lawsuit. Id. at 14. Dr. Nouri insisted that he did not know how his attorney had obtained the files or why they were produced. Id. at 15.
The Investigatory Committee then asked Dr. Nouri about a paper submitted during discovery, with only his name listed as an author, entitled “Introduction to Artificial Neural Networks” and why some portions of that paper were identical to a thesis written by Dr. Nouri’s former student, Thomas Rusnock. Id. at 22. Dr. Nouri asserted that he knew nothing about the paper and had never submitted a paper with that title; he believed that the alleged paper may have simply been a presentation he made to his class. Id. Beyond that, Dr. Nouri had no explanation for similarities between Mr. Rusnock’s thesis paper and the paper submitted by Dr. Nouri’s attorney during litigation. Id. at 25.
Thereafter, Dr. Nouri was questioned regarding similarities between an article submitted by his attorney in litigation entitled “Approximation and Control of Systems Using a Neural Net” which listed Dr. Nouri as the sole author, and a student thesis produced by Mark Ermish. Id. at 26. The Investigatory Committee noted that Dr. Nouri’s article used “text that is identical” to that used by Mr. Ermish. Id. Dr. Nouri informed that Investigatory Committee that he had assisted Mr. Ermish with his undergraduate thesis paper, and that they had co-published that thesis. Id. at 26-27. Dr. Nouri had “no way of knowing” where the plagiarized paper had come from, and he had “no idea how” his name alone came to be on that paper. Id. at 27, 31.
When the Investigatory Committee questioned Dr. Nouri regarding the materials submitted by his attorney during litigation purporting to be portions of Dr. Nouri’s book in-progress, Dr. Nouri denied any knowledge of the documents submitted. Id. at 48. Dr. Nouri hypothesized that perhaps his attorney had accidentally included materials that Dr. Nouri used in lectures as materials that were part of his book. Id. At the conclusion of the interview, Dr. Nouri reiterated to the Investigatory Committee that he had used Dr. Principe’s work in his Tehran conference presentation. Id. at 53-55. However, Dr. Nouri remained adamant that he had properly cited and credited Dr. Principe for his work. Id.
On March 31, 2003, the Investigatory Committee interviewed Mr. Horne. Id. at Ex. 34, p. 1. Mr. Horne explained how he obtained the relevant materials that he eventually forwarded to PSU, and how he came to be suspicious of possible plagiarism on Dr. Nouri’s part. Id. at 2-17. The Investigatory Committee also interviewed Jeffrey Senese regarding his inability to verify any publications listed on Dr. Nouri’s FARs and suspicions regarding the accuracy of the FARs. Id. at Ex. 35. The Investigatory Committee additionally interviewed Ervin Rodin, Dr. Principe, Dr. Amin, and Patrick Simpson. Id. at Ex. 36, 37, 38, 39.
C. Investigatory Committee Conclusions
Upon completing its interviews, the Investigatory Committee identified several examples of possible plagiarism, and divided these examples among the Committee. Id. at Ex. 16, p. 95. Each member of the Investigatory Committee wrote one section of the final report, with each section addressing one possible act of plagiarism. Id. at 98. After deliberating, on July 22, 2003 the Investigatory Committee unanimously concluded that a pattern of unattributed use and plagiarism existed. Id. at Ex. 41. The Investigatory Committee reached five conclusions.
First, that Dr. Nouri had presented Dr. Principe’s slides at the Tehran Conference without permission, but did cite to Dr. Principe’s work during that presentation. Id. at 6-7. The Investigatory Committee concluded that this was improper, and constituted plagiarism. Id. at 15. Second, that Dr. Nouri’s article “Introduction to Artificial Neural Networks” was in fact plagiarized nearly word for word from the work of Mr. Rusnock. Id. at 7-8. Although Dr. Nouri never published or circulated the paper, this fact was deemed irrelevant because Dr. Nouri had presented the paper “as his own work in a court of law.” Id. at 8.
Third, that Dr. Nouri had plagiarized the work of his former student Mr. Ermish. Id. at 15. The Committee considered that fact that Dr. Nouri had submitted a paper during litigation that was “derived in large part” from a joint publication he had previously published with Mr. Ermish. Id. at 8. However, the paper produced during litigation did not bear Mr. Ermish’s name. Id. The Investigatory Committee considered Dr. Nouri’s claim that his previous attorney had removed Mr. Ermish’s name from the paper, but ultimately reasoned that this explanation was “highly unlikely[.]” Id. at 9.
Fourth, that Dr. Nouri had plagiarized materials from Dr. Amin. Id. at 12. Specifically, the Committee noted that Dr. Nouri’s paper “Application of Dynamic Neural Networks to Approximation and Control of Nonlinear Systems” was copied nearly verbatim from Dr. Amin’s paper bearing the same title. Id. at 10. Furthermore, Dr. Nouri’s paper copied large portions of a different paper written by Dr. Amin, “Neurocontrol of Nonlinear Systems via Local Memory Neurons.” Id. Dr. Nouri argued that Dr. Amin had perhaps plagiarized Dr. Nouri’s work, a claim that the Committee found to be “egregious.” Id. at 12.
Finally, the Investigatory Committee concluded that Dr. Nouri had Plagiarized materials from Mr. Simpson’s book “Artificial Neural Systems” for use in seminars and in Dr. Nouri’s “book in progress.” Id. at 15. The Committee noted that Dr. Nouri denied providing the plagiarized materials to his attorney, and asserted that he did not know how the materials came to be submitted during federal litigation. Id. However, the Committee concluded, based on Dr. Nouri’s representations during an October 31, 2001 deposition, that he had in fact provided the materials and acknowledged that they were his. Id.
As a result, the Investigatory Committee concluded that Dr. Nouri was “guilty of willful scientific misconduct (as defined in PSU Policy RA10) in carrying out and reporting research.” Id. One of the Committee members explained that even a lay person could see that the materials were plagiarized since “the equations . . . were, in fact, lifted wholesale from other sources, texts and equations.” Id. at Ex. 16, p. 93. The recommended sanction was Dr. Nouri’s dismissal from PSU. Id. at Ex. 41, p. 15.
Dean Barron and Dean Pell agreed with the findings and recommendations of the Investigatory Committee. Id. at Ex. 42. Dean Daniel Larson was notified of this decision, and Dean Larson thereafter forwarded the Investigatory Committee Report to the Chair of the Standing Joint Committee on Tenure for consideration. Id. at Ex. 45.
D. Tenure Committee
Policy HR 23 governs the dismissal of a tenured professor at PSU. Id. at Ex. 46. HR 23 provides that a Standing Joint Committee on Tenure (“Tenure Committee”) must be comprised of five members – two administrative representatives and three tenured faculty members. Id. at 12. The tenured professor who is being sanctioned must have the opportunity to appear and defend him or herself at a hearing before the Tenure Committee. Id. At that hearing, evidence may be presented, and the burden of proving cause for ...