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Hariri v. Portland State University

United States District Court, D. Oregon

March 2, 2017

MOHAMAD HARIRI, Plaintiff,
v.
PORTLAND STATE UNIVERSITY, Defendant.

          OPINION AND ORDER

          Honorable Paul Papak United States Magistrate Judge.

         Plaintiff Mohamad Hariri filed this action against defendant Portland State University ("PSU") and against PSU professor Gwen Shusterman on June 17, 2015. Effective July 12, 2016, Hariri amended his complaint, abandoning his claims against Shusterman. By and through his amended complaint, Hariri alleges that he was baselessly accused of academic misconduct, in consequence of which he was suspended for one year from attendance at PSU and received a lower than deserved grade in one of his classes. Arising out of the foregoing, Hariri alleges PSU's liability (i) under Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seg.) for unlawful discrimination based on race, color, and/or national origin, (ii) under 42 U.S.C. § 1983 for the violation of his Fourteenth Amendment procedural due process rights, and (iii) under Oregon common law for negligence. Hariri seeks award of economic damages in the amount of $160, 000 plus an additional amount for unspecified medical expenses, award of non-economic damages in the amount of $200, 000, award of punitive damages in the amount of $200, 000, post-judgment interest on all money damages, award of his attorney fees and costs, injunctive relief requiring defendants to reverse his suspension, raise his grade in one of his classes, expunge the accusation of misconduct and the suspension from his academic record, train all "managers and HR staff at PSU to undergo counseling and training regarding illegal discrimination, and update PSU policies regarding "treatment of minorities." This court has federal-question jurisdiction over Hariri's federal claims pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental jurisdiction over Hariri's state-law claim pursuant to 28 U.S.C. § 1367 for so long as Hariri's federal claims remain properly before it.

         Now before the court is PSU's motion (#54) for summary judgment, I have considered the motion and all of the pleadings and papers on file. For the reasons set forth below, PSU's motion is granted in its entirety, and summary judgment is entered in PSU's favor as to each of Hariri's claims.

         LEGAL STANDARD

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed. R, Civ. P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. See Morelandv. Las Vegas Metro. Police Dep'1, 159 F.3d 365, 369 (9th Cir. 1998).

         Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert, denied, 116 S.Ct. 1261 (1996). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

         FACTUAL BACKGROUND

         I. The Parties

         Plaintiff Hariri is an American of Arab descent, specifically of Lebanese and Syrian ancestiy. Defendant PSU is a public, nonprofit educational institution. It is undisputed that PSU receives portions of its funding from the State of Oregon and from the federal government, among other sources.

         II. Material Factual History[1]

         Plaintiff Hariri enrolled as a full-time undergraduate student at PSU in Fall 2009, prior to which he spent two academic years as an undergraduate studying at a community college in Oregon.[2] See Declaration (#26) of Nicolle DuPont dated March 1, 2016 ("DuPont Decl."), Exhs. 5, 6. Although Hariri received failing grades, only marginally passing grades, and marks indicating the absence of any basis for evaluating academic performance in some of his course work, he nevertheless ultimately graduated from the undergraduate program offered by defendant PSU with a bachelor's degree in general science in 2013. See id., Exh. 1. After graduation from PSU, Hariri applied unsuccessfully to dental schools, during the course of which process he learned that the presence of failing grades on his college transcript could negatively impact his applications. See id., Exh. 7. In consequence, beginning in 2014 Hariri began petitioning PSU both to expunge from his transcript courses in which he completed none of the work and to permit him to retake classes in which he received failing or nearly failing grades. See id., Exhs. 3, 7. PSU denied several such petitions, but in September 2014 granted Hariri the opportunity to retake four courses in which he had previously received poor grades. See id., Exhs, 4, 7. In Fall 2014, Hariri enrolled at PSU as a post-baccalaureate student for the purpose of retaking those four courses. See id., Exh. I.[3]

         Among the courses Hariri retook in Fall 2014 was General Chemistiy I, also known as Chemistiy 221, which was taught by former defendant Shusterman. See Id. Because over 350 students were enrolled in Chemistiy 221 in that quarter, the students were divided into groups (or "neighborhoods") of approximately 20, each of which was assigned a "learning assistant" or "LA." Runkles-Pearson Decl., Exh. 5 (the Deposition of Dillon Willis (collectively with Stanford Deck, Exh, 4, "Willis Depo."), 6:9-7:21; see also Declaration (#22) of Gwen Shusterman dated March 1, 2016 ("Shusterman Decl.), ¶¶ 3-4, The learning assistant assigned to Hariri's "neighborhood" was Dillon Willis. See Willis Depo., 6:9 - 7:21; see also Shusterman Decl., ¶ 5.

         The final examination for Chemistry 221 was scheduled for December 8, 2014, See Shusterman Decl., Exh, 4. Pursuant to Shusterman's written policy, students were required to bring photographic identification documents to the final examination. See id., Exh. 5. Also pursuant to Shusterman's written policy, Chemistry 221 students were advised that the final examination could be rescheduled for students who had a conflict with the regular schedule, and that "[i]llness. .. and family emergencies" (inter alia) were considered valid grounds for rescheduling the final examination. See id., Exh. 4. In addition, Chemistiy 221 students were advised in writing at the beginning of the term that "[Shusterman] trust[ed] that the work [students] d[id] in [Chemistiy 221] [would be their] own. Academic dishonesty w[ould] not be tolerated in [Chemistry 221], Cheating during any exam w[ould] be reported and the student w[ould] receive an 'F' for the exam." Id.

         Hariri and PSU offer conflicting evidence as to whether Hariri sat for the Chemistry 221 final examination on December 8, 2014, with his fellow students. Hariri testified that he did so, and that he handed his completed examination to learning assistant Willis after he finished writing it See Hariri Depo., 179:5-23. Hariri testified that Willis asked him for photographic identification, and that he replied that he did not have it on his person. See Id. Hariri testified that Willis told him that the two of them should discuss the matter with Shusterman, but that Hariri observed that there were already students forming a line to speak with Shusterman, whereupon he left without exchanging further words with Willis, leaving his examination in Willis' possession. See id.

         By contrast, Willis testified that in the latter half of the final examination period, a man of evident Asian descent whom Willis "did not recognize" walked up to him and handed him an examination bearing Hariri's name. Willis Depo., 11:3 - 12:9. Willis testified that he knew Hariri by sight, and knew that the man attempting to turn in the examination was not Hariri. See id., 6:6-13, 11:14-22, 14:4-11. Willis testified that he asked the man to show his photographic identification, and that the man told him he had not been aware that he needed to bring it to the final examination, See id., 11:18-24. Willis testified that he told the man he would need to speak with Shusterman and then began walking toward Shusterman, expecting the man to follow. See id., 11:25 - 12:5. Willis testified that he looked over his shoulder to confirm that the man was following him only to discover that the man had left the examination room. See Id. Willis testified that he then approached Shusterman, gave her the examination bearing Hariri's name, and advised her that the man who had handed the examination in was not Hariri. See id., 14:16-15:2. Shusterman testified consistently that Willis handed her an examination bearing Hariri's name and told her that the person who handed it in had no photographic identification and was not Hariri. See Stanford Decl., Exh. 2 (the Deposition of Gwen Shusterman (collectively with Runkles-Pearson Decl., Exh, 2, "Shusterman Depo."), 16:3 - 17:18. Shusterman testified that after receiving the examination bearing Hariri's name from Willis, she set the examination aside for further consideration. See id., 17:23 - 18:3.

         At some time after Hariri filed this lawsuit, a board-certified forensic document examiner opined that the handwriting of the person who wrote the examination from December 8, 2014, bearing Hariri's name differed significantly from Hariri's and had no forensic ally significant similarities to Hariri's. See Declaration (#23) of Jacqueline Joseph dated February 29, 2016 ("Joseph Decl."), ¶ 11. The forensic document examiner offered her opinion to the highest possible degree of confidence, opining that the possibility that the handwriting was Hariri's was entirely eliminated. See id., ¶ 24. Hariri testified to the contrary that the examination from December 8, 2014, bearing his name was written in his handwriting. See Hariri Depo., 181:21-25. Hariri offers no expert opinion that there is any possibility that the handwriting on the examination of December 8, 2014, could be his own. I note in this regard that numerous of the dissimilarities between the handwriting of the person who wrote the examination of December 8, 2014, and the confirmed samples of Hariri's handwriting are readily apparent to the untrained eye, including perhaps in particular the fact that Hariri always crosses his sevens in the confirmed samples of his handwriting whereas the person who wrote the examination of December 8, 2014, did not ever do so. See Joseph Decl., Exh. E.

         Shusterman emailed Hariri later on December 8, 2014, to advise him that he had "committed a serious breach of the Student Conduct Code by having another individual come take [his] final exam." Shusterman Decl., Exh. 6. Shusterman advised Hariri that she would "record a zero" grade for the Chemistry 221 final examination and report the incident to the student conduct board. Id. Hariri responded via email that same day, suggesting that he had been the person who wrote the examination bearing his name, stating that he had been forced to leave the examination room immediately after completing his examination because he needed to visit his father in hospital following a surgical procedure. See Id. Hariri wrote that his wallet had been in his car "and [he] would have went to the car and grabbed it if [he] had time but [he] really had to leave." Id. Shusterman responded that same day via email that the "LA saw the student that turned in the exam; it was not [Hariri]." Id. She reiterated that students were required, pursuant to a policy that had been announced on multiple occasions, to bring photographic identification to final examinations. See id.. Hariri responded that same day via email that he understood the photographic identification policy but had forgotten about it. See id.. He expressed willingness to take the examination, purportedly a second time, in Shusterman's presence. See Id. Shusterman responded via email that same day that she was no longer on campus such that Hariri could not take the final examination that day, and that she would contact him again after speaking further with Willis. See Id. Hariri responded via email that same day that he was willing to take the examination in Shusterman's presence the following day. See id, . Hariri additionally stated that he would "literally take [Willis] to court if he ruin[ed] [Hariri's] reputation over this, " and attached his lawyer's card to his email message. Id. Shusterman contacted Willis via email later that same day to advise him that Hariri denied Willis1 account of events, and to inquire whether Willis was certain that the man who handed in the examination bearing Hariri's name was not Hariri. See id., Exh. 7. Willis responded via email later that same day that he was "100% certain. The nfan who turned in the exam was Asian and this is Mohammad [sic] Hariri, " attaching a photograph of Hariri's face, apparently downloaded from Harm's Facebook page. Id.. Shusterman advised Hariri via email that same day that she would permit Hariri to take the examination in her presence the following morning. See id., Exh. 6. Later that same day, Shusterman reported the incident to the Dean of Students Office. See id., Exh. 10.

         The following morning, December 9, 2014, Hariri took a different version of the Chemistiy 221 final examination in Shusterman's office and in her presence. See Hariri Depo, 213:4-14; Shusterman Depo., 31:7 - 32:7; Shusterman Decl., ¶ 6, Exh. 3. Hariri showed Shusterman his photographic identification at the time he took the examination on December 9, 2014. See id.

         Domanic Thomas, at that time PSU's Senior Student Conduct Officer, conducted a preliminary investigation of Shusterman's report and determined that there were grounds for conducting a hearing in connection with the allegation that Hariri cheated on his Chemistry 221 final examination by sending another person to take the examination in his stead. See Declaration (#25) of Nicole Morris dated March 1, 2016 ("Morris Decl"), Exh. 1 (the "Charge Letter"). Thomas advised Hariri by letter that a hearing would take place on December 19, 2014, and that he would serve as the Hearing Officer. See Id. In addition, Thomas met with Hariri on December 16, 2014, to discuss the allegations against him, See Hariri Depo., 201:12-21; see also Runkles-Pearson Decl., Exh. 3 (the Deposition of Domanic Thomas (collectively with Stanford Decl., Exh. 3, and with the Declaration (#59) of Justin Steffen dated November 14, 2016 ("Steffen Decl."), Exh. 6, "Thomas Depo."), 16:21 - 18:14. Thomas discussed with Hariri the types of evidence that Hariri might offer in order to support his position that he was the man who wrote the examination of December 8, 2014, bearing his name, including mobile phone records, parking receipts, video surveillance tapes, and the names of students who might have seen him in the examination room, and urged him to provide such evidence in connection with the scheduled hearing. See id., 16:1 -21:10. At no time did Hariri ever produce any such evidence, or any other evidence, in support of his position. See id., 21:8-12.

         On or around December 17, 2014, Shusterman determined to her own satisfaction that Hariri had sent another person to write the Chemistry 221 final examination on his behalf, and awarded him a grade of zero on the examination. See Shusterman Depo., 38:6 - 40:9. However, Shusterman was prepared to revise the grade in the event Thomas ultimately concluded that it was more likely than not that Hariri had written the final examination himself on December 8, 2014. See id.

         Hariri did not attend the hearing set for Friday, December 19, 2014, but rather sent Thomas, Shusterman, PSU general counsel, and other PSU officials an email message through his then-attorney Kevin Brague, advising that Hariri would not attend the hearing and demanding that he immediately be awarded an "A" grade on his Chemistry 221 final examination. See Shusterman Decl., Exh. 9 ("Brague Message"). Hariri's attorney characterized the accusation of academic misconduct as a failure to bring photographic identification to the final examination, and asserted that such "[identification was not available to Mr. Hariri because his license was suspended and confiscated."[4] Id. Hariri's attorney stated that if Hariri's grade were not revised to an "A" by ciose of business on the following Monday, Hariri would "immediately" file an action seeking money damages against Shusterman. Id.

         On December 23, 2014, PSU assistant general counsel Krista Steams responded via email to Hariri's counsel's message of December 19, 2014, requesting confirmation that Hariri did not intend to attend a hearing in connection with the charges against him, and that he preferred that PSU reach a final decision on the charges without consideration of any additional evidence Hariri might choose to offer them. See Declaration (#55) of Krista S. Steams dated October 20, 2016 ("Steams Decl."), Exh. 1. later that same day, Hariri's attorney responded in the affirmative that Hariri would not attend a hearing or provide further evidence in support of his position, and was "agreeable" with the prospect of Thomas reaching a final decision on the charges against him on the basis of the evidence already available to him. See id., Exh. 2.

         On December 30, 2014, Thomas notified Hariri in writing that he had concluded based on a "preponderance of evidence" that Hariri had sent another person to write his Chemistry 221 final examination on December 8, 2014. Morris Decl., Exh. 2. Thomas further notified Hariri that he would be assessed a fee of $75, and suspended from PSU for a period of one year. See Id. Thomas' letter further advised Hariri of his right to appeal the decision within ten days. See id. Hariri timely requested appeal of the decision on January 4, 2015. See id., Exh, 3. On January 20, 2015, PSU Interim Vice President of Enrollment Management and Student Affairs Dan Fortmiller upheld Thomas' decision of December 30, 2014. See id., Exh. 4, In consequence, Hariri's zero grade on the Chemistry 221 final examination was left undisturbed, and Hariri received an overall grade of "D" in the class. See DuPont Decl., Exh. 1.

         Beginning in or around autumn of 2014, Hariri applied to several dental schools. See Stanford Decl., Exh. 5; see also Hariri Depo., 223:1 - 237:17. All of the dental schools to which Hariri applied rejected his application. See id, . Some of the rejections came prior to the date Hariri's grades from the courses he took in Fall 2014 appeared on any transcript, and all other rejections came after Hariri had informed the dental schools by letter that his grade for Chemistry 221 was not yet available due to a "minor misundestanding" that would soon "be resolved" with Hariri receiving an "A" grade. See id., see also id., Exhs. 6-15.

         On February 2, 2015, by and through his present attorney, Hariri sent PSU a tort claim notice, for the first time raising the possibility that Hariri's zero grade on the Chemistry 221 final examination might have been motivated by race or national origin discrimination. See Stearns Decl., Exh. 3 (Hariri's "Tort Claim Notice"). The Tort Claim Notice advised PSU of Hariri's position that the events complained of herein raised concerns that Hariri suffered race and/or national origin discrimination and possible deprivation of his constitutional due process rights, and expressly put PSU on notice that, if the parties' dispute were not resolved informally, Hariri would bring an action against PSU "under 42 USC 1983 for violation of Mr. Hariri's constitutional and civil rights (as well as any analogous state law claims)." Id. at 4, see also Id. at 2, 3. The Tort Claim Notice did not directly or indirectly reference the possibility that Hariri might bring a claim alleging PSU's liability for negligence. See id, passim.

         On February 7, 2015, PSU's assistant general counsel inquired whether Hariri would like to file a complaint with PSU's Office of Equity and Compliance, which is charged with addressing discrimination complaints at PSU. See id, Exh. 4. By and through his counsel, Hariri declined to file such a complaint. See id.. PSU nevertheless conducted an internal ...


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