Hariri v. Portland State University et al

Filing 63

OPINION & ORDER: Defendant's Motion for Summary Judgment 54 is Granted in its entirety and summary judgment is awarded in PSU's favor as to each of Hariri's claims. A final judgment will be prepared. Signed on 3/2/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MOHAMAD HARIRI,
Plaintiff,
3:15-CV-1076-PK

v.

OPINION AND
ORDER

PORTLAND STATE UNIVERSITY,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Mohamad Hariri filed this action against defendant Pmiland State University
("PSU") and against PSU professor Gwen Shuste1man 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

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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 seq.) 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, postjudgment 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 summa1y 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 summmy judgment is entered in PSU's favor as to each of
Hariri's claims.

LEGAL STANDARD
Summmy judgment is appropriate "if the movant shows that there is no genuine dispute

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as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed"
must suppo1i that position either by citation to specific evidence of record "including depositions,
documents, electronically stored infonnation, 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 paiiy 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

lvforelandv. Las Vegas }vfetro. Police Dep't, 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 nomnoving party, and may
neither make credibility detenninations nor perform any weighing of the evidence. See, e.g.,

Lytle v. Household }v/fg., 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

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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 emolled 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) ofNicolle DuPont dated March 1, 2016 ("DuPont Deel."), 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
coursework, 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
oppo1iunity to retake four courses in which he had previously received poor grades. See id.,

1

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentimy record in light of the legal standard governing motions for summmy judgment
under Federal Civil Procedure Rule 56.
2

This was Hariri's second effort to pursue studies at PSU, his first effort having ended in
dismissal for failure to meet academic criteria for continued enrollment. See Declaration (#21) of
Darian Stanford dated March 1, 2016 ("Stanford Deel."), Exh. 1 (the Deposition of Mohamad
Hariri (collectively with the Declaration (#56) of P. K. Runkles-Pearson dated October 21, 2016
("Runkles-Pem·son Deel."), Exh. 1, "Hariri Depo."), 65:18-66:11.
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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. 1. 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 Chemist1y 221 in that qumier, the students were divided into groups (or
"neighborhoods") of approximately 20, each of which was assigned a "learning assistant" or
"LA." Runkles-Pearson Deel., Exh. 5 (the Deposition of Dillon Willis (collectively with
Stanford Deel., Exh. 4, "Willis Depo."), 6:9-7:21; see also Declaration (#22) of Gwen
Shusterman dated March 1, 2016 ("Shustennan Deel.), iii! 3-4. The learning assistant assigned to
Hariri's "neighborhood" was Dillon Willis. See Willis Depo., 6:9- 7:21; see also Shusterman
Deel., i! 5.
The final examination for Chemistry 221 was scheduled for December 8, 2014. See
Shusterman Deel., 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

3

Hariri subsequently dropped one of the four courses in which he enrolled in Fall 2014
(Statistics) prior to the end of the qumier. See Hariri Depo., 130:18-24.
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tolerated in [Chemistiy 221]. Cheating during any exam w[ould] be repo1ied 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 f01ming a line to speak with Shuste1man,
whereupon he left without exchanging fmiher 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 thathe 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,

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and advised her that the man who had handed the examination in was not Hariri. See id, 14: 16 15:2. Shuste1man 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 Deel., Exh. 2 (the Deposition of Gwen Shuste1man (collectively with
Runkles-PearsonDecl., Exh. 2, "Shuste1manDepo."), 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 forensically significant
similarities to Hariri's. See Declaration (#23) of Jacqueline Joseph dated Februmy 29, 2016
("Joseph Deel."),

~

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 contra1y that the examination from

December 8, 2014, bearing his name was written in his handwriting. See Hariri Depo., 181 :2125. 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 confitmed samples ofHariri'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 Deel., Exh. E.

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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." Shuste1man Deel., 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
Shuste1man'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 Shuste1man's presence the following
day. See id.. Hariri additionally stated that he would "literally take [Willis] to comi if he
ruin[ed] [Hariri's] reputation over this," and attached his lawyer's card to his email message. Id.
Shuste1man contacted Willis via email later that same day to advise him that Hariri denied Willis'

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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 man who turned in the exam was Asian and
this is Mohammad [sic] Hariri," attaching a photograph ofHariri's face, apparently downloaded
from Hariri's Faceb6ok 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 rep01ied 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
Chemistty 221 final examination in Shusterman's office and in her presence. See Hariri Depo.,
213:4-14; Shusterman Depo., 31:7-32:7; Shusterman Deel., iJ 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 Chemist1y 221
final examination by sending another person to take the examination in his stead. See
Declaration (#25) ofNicole Morris dated March 1, 2016 ("Morris Deel."), 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 Deel., Exh. 3 (the Deposition ofDomanic Thomas (collectively with Stanford

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Deel., Exh. 3, and with the Declaration (#59) of Justin Steffen dated November 14, 2016
("Steffen Deel."), 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 suppmi of his position. See id., 21:8-12.
On or around December 17, 2014, Shusterman dete1mined to her own satisfaction that
Hariri had sent another person to write the Chemistiy 221 final examination on his behalf, and
awarded him a grade of zero on the examination. See Shuste1man 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 Chemistiy 221 final examination. See
Shusterman Deel., 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 asse1ied that such "[i]dentification was not available to Mr. Hariri because his license was

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suspended and confiscated. "4 Id Hariri's attorney stated that if Hariri's grade were not revised to
an "A" by close of business on the following Monday, Hariri would "immediately" file an action
seeking money damages against Shustennan. Id.
On December 23, 2014, PSU assistant general counsel Krista Stearns 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. Stearns dated October 20, 2016
("Stearns Deel."), Exh. 1. later that same day, Hariri's attorney responded in the affirmative that
Hariri would not attend a hearing or provide futiher 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. Manis Deel., 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.

4

Hariri offers no explanation of his attorney's claim that identification was not available
to him on December 8, 2014, because his license had been suspended and confiscated in light of
Hariri's statement to Shusterman of December 8, 2014, that his identification was in his car and
readily available during the examination period or in light of the fact that Hariri brought
photographic identification with him when he sat for a different version of the final examination
in Shuste1man's presence on December 9, 2014. I note, further, in this connection that Hariri
provided Thomas with documentation establishing that the suspension of his license had been
resolved in court on December 1, 2014. See Runkles-Pearson Deel., Exh. 4.
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Hariri timely requested appeal of the decision on Januaiy 4, 2015. See id, Exh. 3. On January
20, 2015, PSU Interim Vice President of Emollment 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 Chemistiy 221 final examination was left undisturbed, and Hariri
received an overall grade of "D" in the class. See DuPont Deel., Exh. 1.
Beginning in or around autumn of2014, Hariri applied to several dental schools. See
Stanford Deel., 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 Chemistiy
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
Deel., Exh. 3 (Hariri's "Tort Claim Notice"). The Tort Claim Notice advised PSU ofHariri'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, ifthe 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

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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 intemal
investigation of the discrimination charge, and found no evidence of discriminatory animus. See

id.
Hariri filed this action June 17, 2015.

III.

PSU's Student Conduct Code
In 2014, PSU's Code of Student Conduct and Responsibility (the "Student Conduct

Code") was codified at O.A.R. 577-031-0125 (2014) et seq. Pursuant to the Student Conduct
Code, PSU faculty had available to them during the time material to Hariri's claims two sanctions
that may be imposed in connection with academic dishonesty: "(a) Issuing a zero or a failing
grade for the assignment for which the dishonesty was found; or (b) suspension or expulsion
from the department, program, college or school. ... " 0.A.R. 577-031-0142(2) (2014). Faculty
members at PSU "may submit a written Complaint to the Dean of Student Life alleging that a
Student(s) has engaged in academic misconduct. Any charge should be submitted as soon as
possible after the activity takes place, preferably within fomieen (14) Days of such activity."
O.A.R. 577-031-0142(3) (2014).
When the Senior Conduct Officer has detennined that [such] a complaint requires
an investigation, the process will proceed as follows:

***
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(3)

The Senior Conduct Officer or other investigator will contact the
Complainant and Respondent to gather statements, documents,
digital records, and other infonnation related to the complaint. The
investigator will interview relevant witnesses. The Complainant
and Respondent will be kept informed of the status of the
investigation.

(4)

Complaints will be investigated and resolved, and patties will be
notified of the outcome promptly, but not later than sixty (60) Days
from the date of the complaint, absent extenuating circumstances.

(5)

Hearing result notifications will be provided to Complainants and
Respondents consistent with the Family Educational Rights and
Privacy Act and other applicable laws.

O.A.R. 577-031-0141(3)-(5) (2014). Senior Conduct Officers are without authority to effect
modifications to PSU student grades. See Steams Deel., 'if 9; see also O.A.R. 577-031-0140
(2014 ). Senior Conduct Officers make their determinations in connection with complaints of
academic dishonesty "based upon a preponderance of the evidence (which means whether
something is 'more likely than not')." O.A.R. 577-031-0140(5)(±) (2014).
PSU students may appeal sanctions imposed by a Senior Conduct officer to the Vice
President for Emollment Management and Student Affairs. See O.A.R. 577-031-0143 (2014).
PSU students may also may appeal decisions regarding course grades to the Academic Appeals
Board. See Steams Deel.,

'if 10.
ANALYSIS

As a preliminaty matter, before turning to the pmiies' arguments regarding Hariri's claims,
I address the parties' dispute over the question whether it was Hariri or another person who wrote
the exam dated December 8, 2014, that bears Hariri's name. The evidence that the examination
of December 8, 2014, was written by a person other than Hariri is extremely strong, and the

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contrary evidence that the examination was written by Hariri is both thin and highly implausible.
I nevertheless assume arguendo (for purposes of PSU's motion for summary judgment only) that
a finder of fact could reasonably credit Hariri's testimony that he wrote the examination of
December 8, 2014, could reasonably disbelieve Willis' contrary testimony, and could reasonably
disbelieve the opinion testimony of PSU's forensic expert that the dissimilarities between Hariri's
handwriting and the handwriting of the person who wrote the examination of December 8, 2014,
were such that there is no possibility that the same person wrote both. On that arguendo
assumption, I find for purposes of PSU's motion for summmy judgment only that Hariri wrote the
examination of December 8, 2014, that bears his name. In making this finding, I do not suggest
that, in the event Hariri's claims were submitted to a jury and the jury were to find on the basis of
the evidence of record that Hariri wrote the examination of December 8, 2014, I would decline to
overturn the jmy's finding pursuant to Federal Civil Procedure Rule 50(b).

I.

Hariri's Title VI Discrimination Claim
"Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, provides in pertinent part that

'no person in the United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial aid."' Fobbs v. Holy Cross Health Sys. Corp., 29
F.3d 1439, 1446 (9th Cir. 1994), quoting 42 U.S.C. § 2000d. As noted above, the pmiies do not
dispute that PSU receives some federal funding.
To state a claim for damages under 42 U.S.C. § 2000d, et seq., a plaintiff must
allege that (1) the entity involved is engaging in racial discrimination; and (2) the
entity involved is receiving federal financial assistance. Wrenn v. Kansas, 561 F.
Supp. 1216, 1221 (D.C. Kan. 1983) (citing Jackson v. Conway, 476 F. Supp. 896,
903 (E.D. Mo. 1979)). Although the plaintiff must prove intent at trial, it need not

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be pied in the complaint. Wrenn, 561 F. Supp. at 1221. Compare Jackson, 476 F.
Supp. at 903 (no proof of intent is required if plaintiff seeks only injunctive
relief).
There is no requirement that plaintiff plead that he was an intended beneficimy of
the federally funded program in which defendants are alleged to have participated.
Wrenn, 561 F. Supp. at 1221. Cf Simpson v. Reynolds lvfetals Co., Inc., 629 F.2d
1226, 1234-35 (7th Cir. 1980) (In reviewing complaint under § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, which is modeled after and enforced
in the same manner as 42 U.S.C. § 2000(d), court should not define program, and
therefore identify its intended beneficiaries, in a "very nanow fashion."); Byers v.
Rockford Aiass Transit Dist., 635 F. Supp. 1387, 1390 (N.D. Ill. 1986) ("As long
as some federal funding is alleged in § 504 actions ... , the program specificity
issue is more properly the subject ofa summary judgment motion.").

Id. at 1447 (internal modifications omitted). As noted above, Hariri seeks both money damages
and injunctive relief in connection with his Title VI claim.
The courts of the Ninth Circuit apply the }vfcDonnell Douglas burden-shifting framework
when considering pretrial challenges to Title VI claims. See Rashdan v. Geissberger, 764 F.3d
1179, 1181 (9th Cir. 2014). Under that framework:
First, the plaintiff has the burden of proving by the preponderance of the evidence
a prima facie case of discrimination. Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant to articulate some
legitimate, nondiscriminatory reason for the employee's rejection. Third, should
the defendant carry this burden, the plaintiff must then have m1 opportunity to
prove by a preponderance of the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for discrimination.

Id. at 1183, quoting Tex. Dep't o/Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). The
"requisite degree of proof necessmy to establish a prima facie case for a Title VI[] claim on
summary judgment is minimal and does not even need to rise to the level of a preponderance of
the evidence." Id 17 1183-1184, quoting Wallis v. JR. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994) (internal modifications omitted).

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It is Hmiri's position that he has stated aprimafacie case of discrimination based on his
status as a person of Arab descent, the fact that he was accused of cheating on the Chemistry 221
final examination based in part on the word of his learning assistant Willis, a Caucasian person,
and the fact that Shuste1man and other PSU employees believed the version of events proffered
by Willis and disbelieved the version of events proffered by Hariri. Hariri expressly categorizes
Willis as a "similarly situated non-minority student" for purposes of stating his primafacie case
of race or national origin discrimination. Hariri's position is untenable, and the evidence upon
which he expressly and implicitly relies is insufficient to meet even the minimal threshold
required for stating a primafacie case under the }vfcDonnell Douglas framework.
As an initial matter, there is no material sense in which Willis was "similarly situated" to
Hariri. Hariri is a student accused of sending another student to write a final examination on his
behalf and under his name; Willis is not. Willis is therefore not a comparator ofHariri's for
purposes of showing that a non-minority student accused of cheating under similar circumstances
would have been believed where Hariri was not believed, or would have received different or
lesser discipline than the discipline meted out to Hariri.
Moreover, the fact that Shusterman and other PSU employees credited Willis' version of
events and discredited Hariri's lend no support to the conclusion that Shusterman, PSU, or any
PSU employee harbored improper discriminato1y animus against Hariri in particular or against
persons of Arab descent in general. Hariri was a student in a large class with a strong incentive
to do well in a course he had taken previously, and in which he had previously performed poorly.
Willis, by contrast, was engaged for the purpose of proctoring examinations and preventing
cheating from taking place. Willis lacked any conceivable motive to lie about what he observed

Page 17 - OPINION AND ORDER

on December 8, 2014 (other than racial animus, for which there is no independent evidence
whatsoever), whereas Hariri had such a motive. In addition, .Willis' version of events received
apparent conoboration from the apparent dissimilarities between his handwriting on December 8,
2014, and his confomed handwriting from other occasions, whereas Hariri's version of events
was rendered highly implausible by those same dissimilarities. Under the circumstances, the fact
that Willis' version of events was credited relative to Hariri's contraiy version does not suppmt a
finding that prohibited discrimination occuned.
Other than the foregoing, Hariri offers no direct evidence that defendant or any person
working on its behalf harbored discriminato1y animus against Hariri, and no evidence that he
ever received different treatment than similarly situated students of different racial or national
heritage. As such, he cannot state a prima facie case of discrimination under Title VI.
Even if Hariri were deemed to have stated a prima ft1cie case, PSU has offered a
legitimate, nondiscriminatmy reason for awarding Hariri a grade of zero on the Chemistty 221
final examination - the reasonable belief of Shusterman and Thomas, reached after consideration
of all available material evidence (including, at different stages in the process of investigating the
charges against Hariri, Willis' account of the events of December 8, 2014, the apparent
dissimilarities between Hariri's handwriting on December 8, 2014, and his handwriting on other
occasions, and the unexplained inconsistencies and modifications in Hariri's account of the
events of December 8, 2014, including his reliance on the false claim that his drivers license had
been suspended and confiscated on that day), that Hariri cheated on the final examination - and
Hariri has failed to meet his burden to create a material question of fact as to whether that reason
was pretextual. First, Hariri argues that it is so implausible that Willis could have remembered

Page 18 - OPINION AND ORDER

his features and distinguished another person from him based on appearance alone that to credit
Willis' claim to know what he looked like is evidence of pretext. This purported implausibility is
belied by Hariri's own testimony as to his confidence that Willis could recognize him by sight,

see Hariri Depo., 189:21-25, and that he himself recognized Willis by sight, see id., 154:8-9. In
addition, Hariri's argument for implausibility becomes significantly less persuasive when account
is taken of the fact that Willis was the learning assistant for a "neighborhood" of only
approximately 20 of the students in Chemistry 221, and not for all students in the class. Hariri's
argument that it is implausible that Willis could have recognized him by sight provides no
suppott for the conclusion that PSU's proffered reason was pretextual.
Second, Hariri argues that the fact that Shusterman had already awarded Hariri a grade of
zero as of December 17, 2014, two days before the scheduled hearing of December 19, 2014,
establishes that PSU's investigation was a sham and its proffered reason pretextual. However,
PSU has proffered evidence that Shuste1man was prepared to modify Hariri's grade in the event
the investigation suggested that Hariri might have written his own examination on December 8,
2014, see Shusterman Depo., 38:6- 40:9, and Hariri has offered no contrary evidence. In
addition, at the time Shusterman dete1mined that Hariri had not written his own examination on
December 8, 2014, she had available to her compelling evidence that her determination was
accurate, including Willis' account of events and the apparent dissimilarities between Hariri's
handwriting on December 8, 2014, and his handwriting on other occasions. Under the
circumstances, Hariri's argument based on the timing of Shuste1man's decision to award him a
grade of zero provides no support for the conclusion that PSU's proffered reason was pretextual.
Third, Hariri argues that the fact that Thomas credited Willis without requiring him to

Page 19 - OPINION AND ORDER

offer proof of the accuracy of his account while urging Hariri to offer evidence to colToborate his
contrary account amounts to evidence that PSU's proffered reason was pretextual. However, as
discussed above, Thomas could reasonably believe that Willis lacked any incentive to
mischaracterize the events of December 8, 2014, and to believe that Hariri had such an incentive,
and could reasonably infer from the apparent dissimilarities between Hariri's handwriting on
December 8, 2014, and his handwriting on other occasions that Hariri did not write the
examination of December 8, 2014, bearing his name. Thomas also had available to him the fact
that Hariri had indicated that he would provide evidence that would colToborate his claims but
ultimately failed to identify any such evidence, and could reasonably infer from the
contradictions and inconsistencies in Hariri's account that Hariri was not accurately describing
the events of December 8, 2014. Under those circumstances, the fact that Thomas disbelieved
Hariri's stmy does not provide grounds for concluding that PSU's proffered reason was
pretextual.
Because Harir has neither adduced sufficient evidence to establish even a minimal prima

facie case of discrimination under Title VI, and because even if he were deemed to have done so,
he has not met his burden to create a material question of fact as to whether PSU's proffered nondiscriminatory reason for its conduct was pretextual, PSU is entitled to summmy judgment in its
favor in connection with Hal'iri's Title VI claim. 5

II.

Hariri's Section 1983 Procedural Due Process Claim
It is Hariri's position that he was denied due process in connection with PSU's decision to

5

In consequence, I need not address the parties' arguments as to whether, in the
altemative, Hariri could be entitled to award of money damages in connection with his Title VI
claim.
Page 20 - OPINION AND ORDER

allow Shuste1man to award him a grade of zero on his Chemistry 221 final examination because
Thomas both conducted PSU's investigation of the charges against Hariri and made the final
decision regarding those charges, and because Hariri had effectively no right of appeal from
Thomas' decision. 6 To prevail on a procedural due process claim under Section 1983, a plaintiff
must establish: "(1) a libe1ty or prope1ty interest protected by the Constitution; (2) a deprivation
of the interest by the government; and (3) lack of process." Wright v. Rive/and, 219 F.3d 905,
913 (9th Cir. 2000) (internal modifications omitted), quoting Portman v. County ofSanta Clara,
995 F.2d 898, 904 (9th Cir. 1993). The "lack of process" element can also be formulated as
"denial of adequate procedural protection." Krainski v. State ex rel. Bd of Regents, 616 F.3d
963, 970 (9th Cir. 2010), citing Brewster v. Bd. of Educ. of the Lymvood Unified Sch. Dist., 149
F.3d 971, 982 (9th Cir. 1998).
The question of "what process is due" is more easily asked than answered. As the
Supreme Couit has frankly acknowledged, "for all its consequence, 'due process'
has never been, and perhaps never can be, precisely defined." Lassiter v.
Department ofSocial Servs., 452 U.S. 18, 24, 68 L. Ed. 2d 640, 101 S. Ct. 2153
(1981 ). Rather, the phrase "expresses the requirement of 'fundamental fairness,' a
requirement whose meaning can be as opaque as its importance is lofty." Id As a
result, deciphering and applying the Due Process Clause is, at best, "an uncertain
enterprise." Id.
Precisely what procedures the Due Process Clause requires in any given case is a
function of context. After all, "unlike some legal rules,'' due process "is not a
technical conception with a fixed content umelated to time, place and
circumstances." Cafeteria & Restaurant Workers Union v. }vfcE/roy, 367 U.S.
886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961) (quoting Joint Anti-Fascist
Comm'n v. }vfcGrath, 341 U.S. 123, 162, 95 L. Ed. 817, 71 S. Ct. 624 (1951)
(Frankfurter, J., concurring)) (quotation marks omitted). Rather, it "is flexible
and calls for such procedural protections as the particular situation
6

Hariri concedes that PSU procedures provide a mechanism for appeal from disciplinary
decisions, and that he availed himself of that mechanism, but argues that the right to appeal was
limited such that it was a foregone conclusion that his appeal would fail.
Page 21 - OPINION AND ORDER

demands." }Jorrissey [v. Brewer], 408 U.S. [471,] 481 [(1972)]. As this court
has observed, "the determination of what procedures satisfy due process [in a
given situation] depends upon an analysis of the particular case in accordance
with the three-part balancing test outlined in 1\Iathews v. Eldridge, 424 U.S. 319,
47 L. Ed. 2d 18, 96 S. Ct. 893 (1976)." Orlojfv. Cleland, 708 F.2d 372, 378-79
(9th Cir. 1983) (parallel citations omitted). In1'.Iathews, the Supreme Comi
stated:
Identification of the specific dictates of due process generally requires
consideration of three distinct factors. First, the private interest that
will be affected by the official action; second, the risk of erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail.
1Vfathews, 424 U.S. at 335.
Brewster, 149 F.3d at 983 (emphasis supplied; modifications original). It is nevertheless well
established that "[d]ue process requires notice reasonably calculated, under all the circumstances,
to apprise interested parties of the [governmental] action and afford them an opportunity to
present their objections." Al Haramain Islamic Found., Inc. v. United States Dep't of the
Treaswy, 686 F.3d 965, 985 (9th Cir. 2012), quoting United Student Aid Funds, Inc. v. Espinosa,
559 U.S. 260, 272 (U.S. 2010), quoting 2vfu/lane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950). In the academic context, the United States Supreme Court has found that the
due process inquiry by its "ve1y nature ... negates any concept of inflexible procedures
universally applicable to every imaginable situation." Goss v. Lopez, 419 U.S. 565, 578 (1975),
quoting Cafeteria Workers v. 1v!cElroy, 367 U.S. 886, 895 (1961), but that "[a]t the very
minimum, ... students facing suspension and the consequent interference with a protected
property interest must be given some kind of notice and afforded some kind of hearing. 'Parties

Page 22 - OPINION AND ORDER

whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right
they must first be notified."' Id at 579 (emphasis original), quoting Baldwin v. Hale, 1 Wall.
223, 233 (1864).
PSU appears to concede that Hariri has a liberty and/or property interest at stake. This is
appropriate, because it is well established that students have a property interest in the benefits of
fo1mal education and a liberty interest in avoiding a reputation for academic dishonesty. See,

e.g., Goss v. Lopez, 419 U.S. 565, 575-576 ( 1975). PSU does challenge whether Hariri suffered
any deprivation of his constitutional right to due process in connection with the deprivation of
those property and Ii be1iy interests.
It is undisputed that Hariri received notice of the specific charges against him and of their

purp01ied factual basis, that he had the opp01iunity to speak with Thomas regarding those
charges and his response to them, that he was notified that there would be a hearing in
connection with the charges, and that he was invited to be present at that hearing and to offer
evidence and argument in opposition to the charges. It is fmiher undisputed that, although Hariri
declined to be present at the hearing, he did so knowingly, after it was explained to him that in
the event he did not appear and did not offer argument or evidence that might tend to exonerate
him, a decision would be reached on the basis of the available evidence only. Neither Hariri's
election not to appear at the hearing nor his failure to offer evidence or argument that he would
have had an oppo1iunity to present had he attended the hearing render the process available to
him inadequate. Constitutional due process does not require that ultimate disciplinaiy decisions
be made by persons who did not investigate the charges against a student, and they do not require
any right to appeal from disciplinary decisions on any particular grounds. See id, passim. The

Page 23 - OPINION AND ORDER

evidence of record establishes that Hariri received all process to which he was due under the
Fourteenth Amendment in connection with the discipline PSU imposed against him. See id.
Moreover, even if Hariri had adduced evidence tending to establish that he suffered an
actionable deprivation of his procedural due process rights, because PSU is an arm of the state of
Oregon, it is entitled to Eleventh Amendment immunity from suit under Section 1983. See, e.g.,

Rounds v. Or. State Bd ofHigher Educ., 166 F.3d 1032, 1035 (9th Cir. 1999) (reaching that
conclusion in connection with the Oregon State Board of Higher Education), see also Broyles v.

Or. State Bd ofHigher Educ., Case No. 03: l l-CV-144-HZ, 2012 U.S. Dist. LEXIS 38383 (D.
Or. Mar. 20, 2012) (reaching that conclusion regarding PSU in particular), quoting Hagel v.

Portland State Univ., 237 Fed. Appx. 146, 148 (9th Cir. 2007) (unpublished disposition) (same).
For the foregoing reasons, PSU is entitled to summary judgment in its favor in connection
with Hariri's procedural due process claim.

III.

Hariri's Negligence Claim
Because Hariri's Title VI discrimination claim and Section 1983 procedural due process

claim are without merit, it is within this court's discretion to deny PSU's motion for summary
judgment as moot to the extent it addresses Hariri's negligence claim, which arises under Oregon
law, and to dismiss that claim without prejudice for lack of federal subject-matter jurisdiction.

See 28 U.S.C. § 1367(c)(3) ("[t]he district courts may decline to exercise supplemental
jurisdiction over a [state-law] claim ... if ... the district cou1i has dismissed all claims over
which it has original jurisdiction"); Carnegie- lvfellon Univ. v Cohill, 484 U.S. 343, 350 n.7
(1988) ("in the usual case in which all federal-law claims are eliminated before trial, the balance
of the factors to be considered under the pendent jurisdiction doctrine--judicial economy,

Page 24 - OPINION AND ORDER

convenience, fairness, and comity--will point toward declining to exercise jurisdiction over the
remaining state-law claims"). Here, however, in light of the facts that this case has been
proceeding in this court since June 17, 2015, that the paiiies have fully briefed the merits of
PSU's motion to the extent it addresses Hariri's negligence claim, that Hariri specifically elected
to bring his claims in federal cou1i, and that PSU seeks adjudication of the merits of the
negligence claim in this comi and does not seek its dismissal on jurisdictional grounds, the
factors of judicial economy and convenience suggest that the paiiies' dispute over the negligence
claim could appropriately be decided here, and the factors of fairness and comity do not militate
to the contra1y. I therefore exercise discretion under Section 1367(c )(3) to retain supplemental
jurisdiction over Hariri's negligence claim notwithstanding my finding that Hariri's federal claims
me subject to dismissal with prejudice.
The Oregon To1i Claims Act ("OTCA") provides that "no action may be maintained on a
t01i claim against a public body unless the public body receives timely notice of claim." HengNguyen v. Tigard-Tualatin Sch. Dist. 23J, 275 Or. App. 724, 726 (2015), citing Or. Rev. Stat.

§ 30.275(1). "The notice requirement may be satisfied in any of four ways: (1) the plaintiff
gives the public body formal notice of claim; (2) the public body receives actual notice of claim;
(3) the plaintiff commences an action on the claim; or (4) the public body pays all or part of the
claim." Id., citing Or. Rev. Stat.§ 30.275(3). Under the circumstances applicable here, such
notice must be provided to the public body within 180 days after the loss or inju1y out of which
the claim arises, see Or. Rev. Stat. § 30.275(2), subject to a discovery rule providing that such
180-day period does not begin to run until the plaintiff knows or, in the exercise of reasonable
care should know, of the alleged loss or inju1y, see Dunn v. City of1\1ilwaukie, 270 Or. App. 478,

Page 25 - OPINION AND ORDER

484 (2015) (citations omitted). Here, Hariri appears to take the position that his counsel's Tort
Claim Notice letter ofFebruaiy 2, 2015, constituted either formal or actual timely notice of his
intention to bring a negligence claim against PSU or, in the alternative, that his amended
complaint of July 12, 2016 (by and through which he first attempted to state a claim for
negligence in this action), constituted timely commencement of an action on a claim for
negligence against PSU for OTCA notice purposes.
Actual notice is defined under the OTCA as:
[A]ny communication by which any individual to whom notice may be given as
provided in subsection (5) of this section or any person responsible for
administering to1t claims on behalf of the public body acquires actual knowledge
of the time, place and circumstances giving rise to the claim, where the
communication is such that a reasonable person would conclude that a paiticular
person intends to assert a claim against the public body or an officer, employee or
agent of the public body.
Or. Rev. Stat.§ 30.275(6) (emphasis supplied). The Oregon Supreme Comi has detetmined that
the OTCA notice requirement may be satisfied by "actual notice" where such notice specifically
provides "a defendant with the facts (i.e., time, place, and circumstances) that relate to the

specific claim or claims that a plaintiff ultimately asserts" and puts the defendant on notice of the
plaintiffs intention to bring a claim against it. Flug v. Univ. of Or., 335 Or. 540, 553 (2003)
(emphasis supplied); see also Heng-Nguyen, 275 Or. App. at 729. "Formal notice" similarly
satisfies the OTCA notice requirements only where it describes the time, place and circumstances
giving rise to the claim actually at issue. See Or. Rev. Stat.§ 30.275(4); see also Hughes v. City

ofPortland, 255 Or. App. 271, 282 (2013). Because Hariri's Tort Claim Notice to PSU made no
direct reference to negligence and did not describe circumstances either constituting negligence
or suggesting any possibility that a negligence claim might lie, it was insufficient to put PSU on

Page 26 - OPINION AND ORDER

"actual notice" or "formal notice" of his negligence claim.
Moreover, analysis of Hariri's allegations in support of his negligence claim establishes
that it arises out of facts known to him by not later than Janua1y 20, 2015, when he learned that
his appeal from Thomas' decision of December 30, 2014, had been denied (i.e., Thomas' alleged
failure to take any steps to verify the truthfulness of Willis' statements, Thomas' alleged failure to
interview other students who might have observed Hariri writing the examination of December 8,
2014, Thomas' alleged failure to dete1mine Shuste1man's reasons for not grading Hariri's
examination of December 9, 2014, in its entirety, Thomas' alleged failure to investigate any
possible ulterior motives Shusterman might have harbored for failing to award Hariri a grade
based on the examination of December 9, 2014, Shusterman's election to credit Willis' version of
events over Hariri's, and PSU's failure to award Hariri a grade based on the examination of
December 9, 2014, see Amended Complaint, iii! 21-22). In consequence, the 180-day period
began running as of Janumy 20, 2015, and OTCA notice of a negligence claim arising out of
those facts could be timely provided at any time from that date until July 19, 2015. Because
Hariri did not file his negligence claim until July 12, 2016, it cannot constitute timely notice of
his negligence claim for OTCA purposes. See Or. Rev. Stat. § 30.275(2); Dunn, 270 Or. App. at
478.
Because Hariri failed to comply with the notice requirements of the OTCA in connection
with his negligence claim, he is barred from maintaining a cause of action for negligence against
PSU. In consequence, PSU's motion should be granted as to Hariri's negligence claim.
Even if Hariri had satisfied the OTCA notice requirements in connection with his
negligence claim, he has failed to state a cause of action for negligence under Oregon law arising

Page 27 - OPINION AND ORDER

out of the complained-of conduct. To state a claim for negligence under Oregon common law, a
plaintiff must show that the defendant owed the plaintiff a duty, that the duty was breached, and
that the breach caused the plaintiff harm. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1,
14-17 (1987). In the absence of a specific duty created, defined, or limited by a specified status,
relationship or standard of conduct, "the issue of liability for harm actually resulting from
defendant's conduct properly depends on whether that conduct unreasonably created a
foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Id. at 17.
Specifically, in the absence of a special relationship giving rise to a specific duty of care, to state
a claim for negligence under Oregon law a plaintiff must allege:

(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is
to an interest of a kind that the law protects against negligent invasion, (3) that
defendant's conduct was unreasonable in light of the risk, (4) that the conduct was
a cause of plaintiffs hmm, and (5) that plaintiff was within the class of persons
and plaintiffs injury was within the general type of potential incidents and injuries
that made defendant's conduct negligent.
Solberg v. Johnson, 306 Or. 484, 490-491 (1988), citing Fazzolari, 303 Or. 1. Although

reasonableness is generally a question of fact to be determined by a jury, where there is no doubt
that a defendant's conduct was reasonable, the court may resolve the question without submitting
it to a trier of fact. See, e.g., Thurman v. Thomas, 70 Or. App. 159, 162 (1984), citing Hamilton
v. State, 42 Or. App. 821, 828-829 (1979). Here, Hariri concedes that he was not in a "special

relationship" with PSU, such that a claim for negligence can lie only if the defendant's conduct
created a foreseeable risk that he would suffer the harm he did, and if PSU's conduct was
unreasonable in light of that risk.
On the arguendo assumption that it was Hariri who wrote the examination of December

Page 28 - OPINION AND ORDER

8, 2014, the harm Hariri suffered was being treated as though he had cheated on his Chemist1y
221 final examination when he had not in fact done so. The questions for the court, therefore,
are whether any of the complained-of conduct created a foreseeable risk that a student like Hariri
would be found to have sent another student to take his final examination when he in fact had not
done so, and whether PSU's conduct was umeasonable in light of any such risk. As noted above,
the material complained-of conduct is Thomas' alleged failure to take any steps to verify the
truthfulness of Willis' statements, Thomas' alleged failure to interview other students who might
have observed Hariri writing the examination of December 8, 2014, Thomas' alleged failure to
dete1mine Shusterman's reasons for not grading Hariri's examination of December 9, 2014, in its
entirety, Thomas' alleged failure to investigate any possible ulterior motives Shusterman might
have harbored for failing to award Hariri a grade based on the examination of December 9, 2014,
Shusterman's election to credit Willis' version of events over Hariri's, and PSU's failure to award
Hariri a grade based on the examination of December 9, 2014, see Amended

Complaint,~~

21-22. Hariri cannot state a claim for negligence arising out of any of that conduct.
As to Thomas' alleged failure to take any steps to verify the truthfulness of Willis'
statements and Shuste1man's election to credit Willis' version of events over Hariri's, I agree with
Hariri's implicit position that failure to verify an accusation of cheating would create a
foreseeable risk that the accused student will be found guilty of the charge without sufficient
basis. However, a finder of fact could not reasonably conclude on the basis of the evidentimy
record here that PSU behaved unreasonably with respect to that risk. First, Hariri's handwriting
on the examination of December 8, 2014, differs in multiple respects from his handwriting on all
other occasions from which samples are available, and as discussed above, those differences are

Page 29 - OPINION AND ORDER

apparent both to the untrained and to the expert eye. It was reasonable for Thomas, Shusterman,
and/or PSU to treat the apparent difference between Hariri's handwriting when he wrote the
examination of December 8, 2014, and his handwriting on other occasions as tending to
corroborate Willis' version of events. Second, Willis was a learning assistant tasked with
preventing cheating on the Chemistry 221 final examination, and as such he had no incentive to
invent an accusation against Hariri and eve1y incentive to fulfill his obligations without such
confabulation, whereas Hariri had an apparent incentive to lie in order to avoid the accusation of
cheating, such that it was reasonable for Thomas, Shusterman, and/or PSU to find Willis more
credible than Hariri in this context. Third, Thomas, Shusterman, and/or PSU could reasonably
have inferred both from Hariri's assurances that he would collect exculpatmy evidence and
subsequent failure to proffer even a modicum of such evidence and from Hariri's threats of
litigation in the course of the investigation of his conduct that Hariri was not a credible reporter
of events. In light of the foregoing, a finder of fact could not reasonably conclude that Thomas,
Shusterman, and/or PSU were umeasonable in crediting Willis over Hariri, and Hariri's
negligence claim cannot survive summmy judgement to the extent so premised.
As to Thomas' alleged failure to interview other students who might have observed Hariri
writing the examination of December 8, 2014, again, I agree with Hariri's implicit position that
failure to interview witnesses with knowledge of the facts underlying charges of academic
dishonesty would create a foreseeable risk that the accused student will be found guilty of the
charge without sufficient basis. However, in light of the fact that Thomas urged Hariri to
produce the names of such witnesses and that Hariri failed to produce any such names, a finder of
fact could not reasonably conclude that Thomas and/or PSU were umeasonable in failing to

Page 30 - OPINION AND ORDER

interview witnesses that Hariri failed to identify. In consequence, Hariri's negligence claim
cannot survive summaiy judgement to the extent premised on such failure.
As to Thomas' alleged failure to determine Shusterman's reasons for not grading Hariri's
examination of December 9, 2014, in its entirety, Thomas' alleged failure to investigate any
possible ulterior motives Shuste1man might have harbored for failing to awai·d Hariri a grade
based on the examination of December 9, 2014, and PSU's failure to award Hariri a grade based
on the examination of December 9, 2014, on the arguendo assumption that failure to investigate
possible ulterior motives a professor might harbor for crediting an accusation of academic
dishonesty might foreseeably create a risk that the accused student will be found guilty of the
charge without sufficient basis, for the same reasons discussed above in connection with Thomas'
decision to find Willis more credible than Hariri, a finder of fact could not reasonably conclude
that it was umeasonable for Thomas and/or PSU to conclude that Hariri had in fact cheated on
his Chemistiy 221 final examination, or to subject him to the consequences of such misconduct.
Hariri's negligence claim therefore cannot survive dismissal to the extent premised on such
failures.
For the foregoing reasons, PSU is entitled to summary judgment in its favor in connection
with Hariri's negligence claim. 7

CONCLUSION
For the reasons set forth above, PSU's motion (#54) for summary judgment is granted in

/II

7

In consequence, I need not address the paiiies' argmnents as to whether PSU is immune
from a cause of action sounding in negligence under Or. Rev. Stat. § 30.265(6).

Page 31 - OPINION AND ORDER

its entirety and summary judgment is awarded in PSU's favor as to each of Hariri's claims. A
final judgment will be prepared.

Dated this 2nd day of March, 2017.

~~

+--------bf-AQ

Honoraole Paul Papak
United States Magistrate Judge

Page 32 - OPINION AND ORDER