Nouri v. Pennsylvania State University et al

Filing 115

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 7/2/2015. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MOHAMAD NOURI
Plaintiff
v.
PENNSYLVANIA STATE
UNIVERSITY
Defendant

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CIVIL NO. 4:10-CV-00934
(Judge Brann)

MEMORANDUM
July 2, 2015
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.
I. BACKGROUND1
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
1

The following background is culled from undisputed facts. See (ECF Nos. 100, 109). Where
conflicts in material facts exist, those facts are presented in the light most favorable to Dr. Nouri.

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

2

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
3

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,
4

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. 4865. 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
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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),2 met to complete an inquiry into possible misconduct. (ECF No. 100, Ex.

2

Ordinarily, the budget executive of the accused individual’s tenure college would be appointed
to the RA 10 committee. (ECF No. 100, Ex. 23, pp. 18-19). However, Mr. Barron was instead
appointed to the committee because the Dean of Dr. Nouri’s tenure college may have been aware
of the ongoing litigation between Dr. Nouri and PSU. Id. at Ex. 24. Dean Barron was selected
in part because he had no involvement in the litigation. Id. at Ex. 26.

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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.

7

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 plagiarized3 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.
3

Plagiarism was defined by the Investigatory Committee as “the unattributed use of someone
else’s material.” (ECF No. 100, Ex. 16, p. 93).

8

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.4 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
4

Dr. Dawson “may” have had some connection with Dr. Nouri on administrative matters during
the 1990’s. Id. at 92.

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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
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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
11

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

12

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
13

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

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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 termination rests
on PSU. Id. at 14. The Tenure Committee is advisory only and simply renders a
report to the President of PSU. Id. at 12.
The Tenure Committee held a hearing with Dr. Nouri on February 28, 2004,
where Dr. Nouri was represented by counsel. Id. at Ex. 16, p. 1, 5. The Tenure
Committee was comprised of Professor Gordon Dejong, Professor Jill Findeis,
Professor Martin Tretheway, Dean Susan Welch, and Dean Judy Olian. Id. Both
Dr. Nouri and PSU submitted briefs to the Tenure Committee prior to the hearing.
Id. at Ex. 47, p. 27. Dean Welch had never heard of Dr. Nouri prior to the hearing,
nor had she had any conversations with Ms. Yekel, Robert Secor, or Drs. Erickson,
Barron, Slann, Senese, or Pell. Id. at 36.
The hearing lasted approximately eleven hours, during which time both Dr.
Nouri and PSU were provided the opportunity to give opening and closing
statements, as well as examine and cross-examine witnesses. Id. at Ex. 16, p. 1, 4.
15

To maintain the integrity of the hearing, each witness was sworn in and
sequestered. Id. at 4. The Tenure Committee was instead charged with reaching
an independent determination after reviewing the matter with “fresh eyes.” Id. at
Ex. 16, p. 10. During the hearing, the Tenure Committee heard testimony from Dr.
Nouri, Mr. Horne,5 Ms. Yekel, Dr. Wyngaard, Farokh Marvasti, Mr. Ermish, Mr.
Rusnock, Ali Hurson, Dean Barron, Wayne Felty, and Ken Boback. Id. at 2.
After interviewing Ms. Yekel and Dr. Wyngaard about the Investigatory
Committee process, the Tenure Committee took testimony from Dr. Nouri. Dr.
Nouri explained that he did not use complete citations on his FARs due to an
oversight on his part. Id. at 197-98. Dr. Nouri again asserted that he was shocked
by the existence of, and had “no knowledge” of, papers that were submitted during
litigation bearing only his name rather than the names of all co-authors. Id. at 199201; Ex. 17, p. 19.
Dr. Nouri later asserted that at least one of these documents was tampered
with, as evidenced by the fact that the line listing Dr. Nouri as the sole author was
crooked. Id. at Ex. 17, pp. 37-38. He also pointed out that, while he was listed as
the sole author, the paper’s abstract continually used the word “we” rather than “I.”

5

Mr. Horne’s testimony was substantially similar to his testimony before the RA 10 Committee
and the Investigatory Committee. However, he also informed the Tenure Committee that neither
he nor anyone in his office altered the documents provided by Dr. Nouri’s attorney, other than to
affix Bates numbers to the pages. Id. at 113-14.

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(ECF No. 109, Ex. 1, p. 219). Dr. Nouri also produced a version of the Dr. Amin
paper with the names of all authors listed. Id. at Ex. 5.
Farokh Marvasti testified that Dr. Nouri “did mention the work of Professor
Principe, as well as others” during the Tehran Conference. (ECF No. 109, Ex. 6).
In a separate affidavit, Dr. Marvasti asserted that “Dr. Nouri’s transparencies were
different from [Dr.] Principe’s paper.” Id. at Ex. 8. Dr. Nouri also presented the
testimony of a computer expert who stated that the slides used for the Tehran
conference were modified on August 27, 2001 at 5:15 a.m. Id. at Ex. 7, p. 90. Dr.
Nouri testified that, at that time, he was already on his way to Tehran and therefore
he could not have made any changes to the slides. Id. at Ex. 1, p. 138. He asserted
that the cover page for his Tehran Conference presentation had been fabricated.
(ECF No. 100, Ex. 18, p. 151).
Dean Welch later testified that she had never experienced any pressure to
reach a specific outcome. Id. at Ex. 47, p. 72. To her knowledge, no members of
the Tenure Committee knew of Dr. Nouri prior to the hearing. Id.
The Tenure Committee deliberated and unanimously concluded that PSU
had sustained its burden of proving that “Dr. Nouri engaged in repeated acts of
plagiarism through a course of conduct of using the work of others without
appropriate attribution.” Id. at Ex. 48, p. 12. The Tenure Committee rejected Dr.
Nouri’s claim that the documents provided during litigation were not his own. Id.
17

at 10. The Committee noted that Dr. Nouri was “accountable” for anything
provided by his attorney and, furthermore, rather than disavowing the document,
Dr. Nouri acknowledged that the documents were his during a deposition. Id.
Consequently, the Tenure Committee believed his later protestations were
“unsubstantiated and lack[ed] credibility.” Id. The Committee recommended that
Dr. Nouri be terminated from employment at PSU. Id. at 12.
E. Dr. Nouri’s Termination and Its Aftermath
On April 15, 2004, then PSU President Graham Spanier upheld the Tenure
Committee’s finding and terminated Dr. Nouri from his position with PSU. Id. at
Ex. 58. Prior thereto, on July 24, 2003, Dr. Nouri filed complaints with the PCHR
and the EEOC. Id. at Ex. 68. Dr. Nouri alleged retaliation based on his April 30,
1999 report to the PCHR, but did not allege any discrimination on the basis of
national origin or religion. Id.
On November 8, 2006, the PCHR completed its investigation and submitted
its findings, concluding that there was “no probable cause” for any of Dr. Nouri’s
claims. Id. at Ex. 59. The PCHR concluded that there was no evidence that the
reasons provided by PSU for Dr. Nouri’s termination were pretextual. Id. On
April 30, 2010, Dr. Nouri filed this suit. (ECF No. 1). Dr. Nouri continues to
maintain that any documents listing him as the sole author were tampered with,

18

although he has no knowledge as to who may have tampered with the documents.
(ECF No. 100, Ex. 2, pp. 215-17).
F. Application of RA 10 to Other PSU Employees
Between July 31, 2000 and July 31, 2003, eight individuals were
investigated by PSU for research misconduct under RA 10. Id. at Ex. 59, p. 29. Of
these eight individuals, only one was treated more favorably than Dr. Nouri, but
PSU offered a reasonable explanation for the disparate treatment of that one
individual. Id. at 30. At least two similarly situated individuals were treated in the
same manner as Dr. Nouri. Id. at 29-30.
II. STANDARD OF REVIEW
Summary judgment is appropriate where “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 fact is “material” where it “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is
such that a reasonable jury,” giving credence to the evidence favoring the
nonmovant and making all inferences in the nonmovant’s favor, “could return a
verdict for the nonmoving party.” Id.
The burden of establishing the nonexistence of a “genuine issue” rests on the
party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir.
19

2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J.,
dissenting)). The moving party may satisfy this burden by either (1) submitting
affirmative evidence that negates an essential element of the nonmoving party’s
claim; or (2) demonstrating that the nonmoving party’s evidence is insufficient to
establish an essential element of the nonmoving party’s case. Id. at 331.
Where the moving party’s motion is properly supported, the nonmoving
party, to avoid summary judgment in his opponent’s favor, must answer by setting
forth “genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250. For movants and nonmovants alike, the assertion “that a fact cannot
be or is genuinely disputed must” be supported by “materials in the record” that go
beyond mere allegations, or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also
Anderson, 477 U.S. at 248–50.
In deciding the merits of a party’s motion for summary judgment, the
Court’s role is not to evaluate the evidence and decide the truth of the matter, but
to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Although the Court may consider any materials in the record, it need only consider
those materials cited. Fed. R. Civ. P. 56(c)(3).
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III. DISCUSSION
One count remains from Dr. Nouri’s Amended Complaint: an allegation of a
violation of Title VII of the Civil Rights Act against PSU. (ECF No. 37). Dr.
Nouri alleges retaliation6 based upon his complaints and lawsuits filed against
PSU, national origin and religious discrimination, as well as a hostile work
environment. Id. These issues will be addressed in turn.
A.

National Origin and Religious Discrimination

Dr. Nouri alleges that PSU discriminated against him based on his national
origin and religion. (ECF No. 37). PSU argues that: (1) Dr. Nouri failed to
exhaust his administrative remedies for this issue, and (2) in any event, his claims
must fail on the merits. (ECF No. 101).
1.

Failure to Exhaust Administrative Remedies

“It is a basic tenet of administrative law that a plaintiff must exhaust all
required administrative remedies before bringing a claim for judicial relief.”
Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997) (citing McKart v. United
States, 395 U.S. 185, 193 (1969)). In the context of a Title VII employment
discrimination claim, a plaintiff generally must exhaust administrative remedies by
filing a complaint with the EEOC prior to filing suit in federal court. Atkinson v.

6

In the complaint, Dr. Nouri also alleged post-termination retaliation. (ECF No. 37). However,
Dr. Nouri concedes that this issue is barred by the doctrine of res judicata, (ECF No. 109), and
therefore the Court will not address any claims of post-termination retaliation.

21

Lafayette Coll., 460 F.3d 447, 453 (3d Cir. 2006) (citing Waiters v. Parsons, 729
F.2d 233, 237 (3d Cir. 1984)). When a complaint is filed with the EEOC, the
scope of the “civil action in the district court is ‘defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination [.]’” Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978)
(quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99 (3d Cir.
1976)).
As the United States Court of Appeals for the Third Circuit has noted,
“[a]lthough this standard does not necessarily preclude a plaintiff from asserting a
claim for the mere failure to check a box on an EEOC Charge Form, it does
prevent a plaintiff from ‘greatly expand[ing] an investigation simply by alleging
new and different facts when [s]he [is] contacted by the Commission following
[her] charge.’” Barzanty v. Verizon PA, Inc., 361 F.App'x 411, 414 (3d Cir. 2010)
(quoting Hicks, 572 F.2d at 967) (alterations in original).
Individuals may bring a civil suit “based on new acts that occur during the
pendency of the case which are fairly within the scope of an EEOC complaint or
the investigation growing out of that complaint, without . . . [filing an] additional
EEOC complaint[].” Waiters, 729 F.2d at 237 (citing Hicks, 572 F.2d at 966;
Ostapowicz, 541 F.2d at 399). “The relevant test in determining whether [a
plaintiff is] required to exhaust her administrative remedies, therefore, is whether
22

the acts alleged in the subsequent Title VII suit are fairly within the scope of the
prior EEOC complaint, or the investigation arising therefrom.” Id.
Here, the evidence supports a conclusion that Dr. Nouri did exhaust
administrative remedies in regard to any claims of discrimination based on religion
or national origin. The charge submitted to the PCHR and EEOC discussed in
great depth the instances of retaliation that Dr. Nouri allegedly faced as a result of
the 1999 charge and subsequent 2001 lawsuit. (ECF No. 100, Ex. 68). The
headings for each count read “Retaliation – Discrimination.” Id. Furthermore,
each act of retaliation was premised on Dr. Nouri’s challenge of PSU’s allegedly
discriminatory conduct. Even a cursory review of the charges and allegations
listed in Dr. Nouri’s complaint to the PCHR and EEOC would have led to an
examination of instances of alleged discrimination. Consequently, charges of
discrimination could reasonably be expected to grow out of any EEOC or PCHR
investigation, and Dr. Nouri did in fact exhaust his administrative remedies.
2.

Merits Analysis

Title VII provides that it is “an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). The United States Supreme Court has
23

“established an allocation of the burden of production and an order for the
presentation of proof in Title VII discriminatory-treatment cases.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)).
Under this framework, a plaintiff “must first establish, by a preponderance
of the evidence, a ‘prima facie’ case of racial discrimination.” Id. (citing Tex.
Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). If the plaintiff
establishes a prima facie case, the burden then shifts to the defendant to produce
evidence which, if believed by the trier of fact, demonstrates “that the adverse
employment actions were taken ‘for a legitimate, nondiscriminatory reason.’” Id.
at 506-07 (quoting Burdine, 450 U.S. at 254-55). If the defendant produces such
evidence, the plaintiff must then demonstrate that the proffered reason for
plaintiff’s termination was merely pretextual. Id. at 507-08 (quoting Burdine, 450
U.S. at 256).
Although the elements of a prima facie case “depend on the facts of the
particular case,” a plaintiff in a Title VII discrimination case must generally
demonstrate that: (1) he is a member of a protected class; (2) he was qualified for
the position; (3) he suffered from some form of adverse employment action; and
(4) these actions were taken under circumstances that give rise to an inference of
unlawful discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir.
24

1999). In this analysis, the focus “is always whether the employer is treating
‘some people less favorably than others because of their race, color, religion, sex,
or national origin.’” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir.
1999) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
A plaintiff must also “establish some causal nexus between his membership
in a protected class and the decision” to fire him. Sarullo v. U.S. Postal Serv., 352
F.3d 789, 798 (3d Cir. 2003). In other words, the plaintiff’s religion or national
origin must have been a “determinative factor” in the defendant’s decision to
terminate his employment. Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 215 (3d
Cir. 2000).
The first three elements are not in dispute here. Dr. Nouri is Persian and
Muslim, and therefore is a member of a protected class. (ECF No. 1, ¶¶ 5-7). He
also holds a doctoral degree in mathematics from King’s College at the University
of London and has held teaching positions at several universities; consequently, he
was qualified for his position. (ECF No. 100, Ex. 1). It is undisputed that PSU
took adverse action against Dr. Nouri by terminating his employment with PSU.
Id. at Ex. 58. The only dispute is whether the circumstances of Dr. Nouri’s
termination give rise to an inference of unlawful discrimination.
Viewing the facts in the light most favorable to Dr. Nouri, he has failed to
sustain his burden of demonstrating that the circumstances of his termination give
25

rise to an inference of discrimination based on either national origin or religion.
Dr. Nouri cites to several e-mails sent by PSU employees in support of his
contention that his termination was motivated by discrimination. Dr. Nouri first
references a February 1999 e-mail from Mr. Secor, wherein Mr. Secor noted that
PSU was engaged in litigation with Dr. Nouri, and asserted that Dr. Nouri “is a
problem case.” (ECF No. 109, Ex. 2). Dr. Nouri also cites to a March 2000 e-mail
sent by Dr. Hines that referenced “Nouri problems on campus.” Id.
Dr. Hines’ e-mail further suggested isolating Dr. Nouri by assigning him to a
different campus, or simply buying him out to remove him from PSU. Id. In a
separate e-mail, Dr. Hines suggested forcing Dr. Nouri to “leave” either by
transferring or firing him. Id. Finally, in an e-mail dated January 12, 2001, Kathie
Flanagan-Herstek discussed issues related to Dr. Nouri, and concluded her e-mail
by stating “May Allah grant us all patience[.]” Id.
As an initial matter, it bears emphasizing that each e-mail is dated between
the years 1999 and 2001. Id. In December 2003, a jury concluded that the
evidence presented by Dr. Nouri, including these e-mails, was insufficient to
support a finding that PSU discriminated against Dr. Nouri. (ECF No. 100, Ex. 6).
Therefore, as this Court previously held, any claim based on this evidence is barred
by res judicata. (ECF No. 35). Even ignoring this issue, the e-mails presented by
Dr. Nouri fall woefully short of creating a genuine issue relating to discrimination.
26

The three e-mails which contain the most inflammatory language used, and
which suggest that PSU was actively attempting to take adverse action against Dr.
Nouri, all implicate claims of retaliation rather than discrimination. As Dr. Nouri
notes, Mr. Secor referred to him as “a problem case” due to ongoing litigation.
(ECF No. 109, Ex. 2). Additionally, Dr. Hines suggested isolating or firing Dr.
Nouri due to the problems he was creating for PSU. Id. None of the e-mails in
any way either states or implies that anyone at PSU was concerned with Dr.
Nouri’s religion or national origin.
The sole e-mail that may have referenced Dr. Nouri’s religion merely states
“May Allah grant us all patience[.]” Id. This statement alone is insufficient to
create a genuine issue as to whether Dr. Nouri’s termination was related to
discrimination, particularly when viewed in context. Ms. Flanagan-Herstek made
this statement in the context of a complaint regarding difficulties with Dr. Nouri in
teaching his courses, and therefore again properly relates to retaliation, rather than
discrimination. Id. In short, her statement appears to have been made from
frustration rather than discrimination.
At best, the evidence that Dr. Nouri cites to may create a genuine issue of
material fact relating to retaliation. It does not, however, establish a prima facie
case of discrimination. Furthermore, Dr. Nouri has failed to present any evidence
that PSU treated him less favorably than other similarly situated people based on
27

Dr. Nouri’s religion or national origin, as required to establish a prima facie case.
Pivirotto, 191 F.3d at 352. In sum, Dr. Nouri has not presented evidence sufficient
to support an inference of discriminatory action.7 Therefore, summary judgment is
appropriate in favor of PSU on this issue.
B.

Retaliation

Dr. Nouri next argues that PSU fired him in retaliation for his protected
activity. (ECF No. 37). Specifically, Dr. Nouri alleges that PSU retaliated against
him for his 1997 and 2001 lawsuits, as well as the prior PCHR and EEOC charges
related to those suits. Id.
Title VII’s anti-retaliation provision broadly provides that it shall be
unlawful “for an employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful employment practice by
this subchapter[.]” 42 U.S.C. § 2000e-3(a). The Third Circuit has repeatedly held
that “[t]o establish a prima facie case of retaliation under Title VII, a plaintiff must
tender evidence that: ‘(1) she engaged in activity protected by Title VII; (2) the
employer took an adverse employment action against her; and (3) there was a
causal connection between her participation in the protected activity and the
adverse employment action.’” Moore v. City of Philadelphia, 461 F.3d 331, 340-

7

Even if Dr. Nouri had satisfied his burden of establishing an inference of discriminatory action,
as discussed infra, PSU has articulated a non-discriminatory reason for terminating Dr. Nouri’s
employment, and Dr. Nouri has failed to establish that these reasons were pretextual.

28

41 (3d Cir. 2006), as amended (Sept. 13, 2006) (quoting Nelson v. Upsala Coll., 51
F.3d 383, 386 (3d Cir. 1995)). Importantly, a plaintiff must prove but-for
causation; that is, he or she must demonstrate “that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533, 186 L.
Ed. 2d 503 (2013).
As with discrimination claims, if a plaintiff establishes a prima facie case of
retaliation, “‘the burden shifts to the employer to advance a legitimate, nonretaliatory reason’ for its conduct and, if it does so, ‘the plaintiff must be able to
convince the factfinder both that the employer's proffered explanation was false,
and that retaliation was the real reason for the adverse employment action.’”
Moore, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 50001 (3d Cir. 1997)). “To survive a motion for summary judgment in the employer's
favor, a plaintiff must produce some evidence from which a jury could reasonably
reach these conclusions.” Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994)).
1.

Prima Facie Case

It is undisputed that Dr. Nouri is able to prove the first two prongs of the
prima facie standard; he undoubtedly engaged in protected activity by filing
complaints of discrimination, and adverse action was taken when PSU terminated
29

his employment. See (ECF No. 101, p. 19). The only dispute is whether Dr. Nouri
has established a sufficient but-for causal connection between his participation in
the protected activity and his eventual termination.
“To establish the third element of the prima facie case . . . a plaintiff must
show a causal connection between the plaintiff's opposition to, or participation in
proceedings against, unlawful discrimination and an action that might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Moore, 461 F.3d at 341-42. “Many may suffer . . . harassment at
work, but if the reason for that harassment is one that is not proscribed by Title
VII, it follows that Title VII provides no relief.” Id. (quoting Jensen v. Potter, 435
F.3d 444, 449 (3d Cir. 2006)). Thus, “[t]he ultimate question in any retaliation
case is an intent to retaliate vel non.” Jensen, 435 F.3d at 449 n. 2.
a.

Evidence of a Causal Link

The Third Circuit has previously cautioned that “each case must be
considered with a careful eye to the specific facts and circumstances encountered.”
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n. 5 (3d Cir. 2000) (citing
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997)).
Therefore, while “temporal proximity between the protected activity and the
alleged retaliatory act can be sufficient in itself to create an inference of a causal

30

connection for the purposes of a prima facie case of retaliation” such temporal
proximity is not always necessary. Id. at 279. Thus,
Where the time between the protected activity and adverse action is
not so close as to be unusually suggestive of a causal connection
standing alone, courts may look to the intervening period for
demonstrative proof, such as actual antagonistic conduct or animus
against the employee, or other types of circumstantial evidence, such
as inconsistent reasons given by the employer for terminating the
employee or the employer's treatment of other employees, that give
rise to an inference of causation when considered as a whole.
Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (citations omitted).
PSU points out that Dr. Nouri was not terminated from employment until
2004 – approximately nine years after he first reported PSU to the PCHR, and
three years after he filed his May 2001 lawsuit. (ECF No. 101, p. 20). Dr. Nouri
responds that, although he was not terminated until 2004, there is evidence
suggesting that efforts to terminate him began as early as November 2001, six
months after suit was filed. (ECF No. 109, p. 7).
Although there is merit to Dr. Nouri’s arguments regarding timing, a period
of six months between a protected activity and the alleged retaliation is alone
insufficient to give rise to an inference of a causal connection between the two
events. See, Bailey v. Commerce Nat. Ins. Services, Inc., 267 F.App'x, 167 (3d
Cir. 2008) (holding that “four months between [plaintiff’s] protected activity and
termination is not unusually suggestive of retaliatory motive”); Fischer v. Transue,
Civ. No. 04-cv-2756, 2008 WL 3981521, at *10 (M.D. Pa. Aug. 22, 2008)
31

(concluding that a twenty-two day temporal proximity is insufficient to establish
causation); Smith v. ABF Freight Sys., Inc., Civ. No. 04–2231, 2007 WL 3231969,
at *11 (M.D. Pa. Oct. 29, 2007) (temporal proximity of one and one-half months
was insufficient to establish causation).
However, Dr. Nouri does not rely solely on temporal proximity to build his
case. Rather, as discussed above, Dr. Nouri cites to several e-mails exchanged by
PSU employees discussing the difficulties that Dr. Nouri created by way of, inter
alia, his protected activities. (ECF No. 109, Ex. 2). One e-mail advocated directly
for Dr. Nouri’s termination, stating that “[w]e all know what we are really dealing
with, and I do not expect things to improve here if we don’t take some significant
action.” Id. A second e-mail suggested “isolating” Dr. Nouri since PSU could not
build a case for terminating his employment. Id. This evidence would allow an
inference of retaliatory animus if any of those individuals played a role in, or
influenced in any way, Dr. Nouri’s eventual termination. However, PSU’s
impartial termination process severed any causal link.
b.

Impartial Hearing and the Cat’s Paw Theory

Generally, when a decision to take adverse action is reached by one or more
impartial decision makers, any causal connection between protected activity and
the subsequent adverse action is severed. Weston v. Pennsylvania, 251 F.3d 420,
433 (3d Cir. 2001), abrogated in part on other grounds by Burlington N. & Santa
32

Fe Ry. Co. v. White, 548 U.S. 53 (2006). However, the Supreme Court has
rejected “a hard-and-fast rule” that an independent investigation and determination
alone will shield an employer from liability. Staub v. Proctor Hosp., 562 U.S. 411,
420 (2011). The Supreme Court elaborated that, under the “cat’s paw” theory:
if the employer's investigation results in an adverse action for reasons
unrelated to the supervisor's original biased action . . . then the
employer will not be liable. But the supervisor's biased report may
remain a causal factor if the independent investigation takes it into
account without determining that the adverse action was, apart from
the supervisor's recommendation, entirely justified . . . The employer
is at fault because one of its agents committed an action based on
discriminatory animus that was intended to cause, and did in fact
cause, an adverse employment decision.
Id. Under this line of reasoning, an employer will be held liable only where a
“supervisor performs an act motivated by [a retaliatory] animus that is intended by
the supervisor to cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action.” Id. (emphasis in original,
footnotes omitted). See also, McKenna v. City of Philadelphia, 649 F.3d 171, 178
(3d Cir. 2011).
It is beyond peradventure that the members of the Investigatory Committee
and the member of the Tenure Committee were not accused of improper actions in
Dr. Nouri’s previous lawsuits. No named parties in the previous lawsuits had any
contact with members of either committee, and no committee members were aware
of the previous lawsuits except for being notified that many of the documents they
33

were provided were obtained during the course of discovery. (ECF No. 100, Ex.
16, pp. 46-48, 81-82, 92, 100; Ex. 17, p. 120; Ex. 47, pp. 36, 72). Given these
facts, Dr. Nouri does not and could not attempt to argue that either committee held
any animus that contributed to his termination.8 (ECF No. 109, p. 9). Rather, he
argues that Ms. Hines, Mr. Secor, and Mr. Horne,9 as agents of PSU, intended to
cause Dr. Nouri’s termination, and were a proximate cause of the termination.
Dr. Nouri has failed to present any evidence that would implicate Ms. Hines
or Mr. Secor in Dr. Nouri’s termination. Dr. Nouri presents nothing more than a
conclusory statement regarding Ms. Hines. Id. at 12. Furthermore, he presents a
single allegation that Mr. Secor was the individual who notified Dr. Spanier of the
ongoing case. Id. However, Dr. Spanier testified that he did not recall who
informed him of Dr. Nouri’s action, but if he were to “speculate[,]” it was “quite
possible” that Mr. Secor commented on the action. (ECF No. 109, Ex. 10, p. 11).
Such bald speculation is insufficient to create a genuine issue of fact in this matter.
See, Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.
8

Dr. Nouri also admitted that he had no evidence that any member of the RA 10 Committee
harbored any retaliatory animus against him. (ECF No. 100, Ex. 2, pp.185-86).
9
PSU argues that the cat’s paw theory does not apply here because the Supreme Court limited its
application to supervisors. (ECF No. 110, p. 4). However, this reads the Supreme Court’s
decision too narrowly. While the Court did in fact employ the language “supervisor”, it did so in
the overall context of agency law. Staub, 562 U.S. at 418-22. The Supreme Court was clear in
stating that an “employer is at fault because one of its agents committed an action based on
discriminatory animus that was intended to cause, and did in fact cause, an adverse employment
decision.” Id. at 421 (emphasis added). Consequently, the cat’s paw theory may extend to Mr.
Horne as an agent of PSU. E.g., Slater v. Liberty Mut. Ins. Co., No. Civ. A. 98-1711, 1999 WL
178367, at *1 (as a general proposition, an attorney is “an agent of his client”).

34

1999) (superseded by statute on other grounds) (citing Groman v. Township of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)).
As to Mr. Horne, there is no evidence in the record that he sought to have
Dr. Nouri fired for retaliatory reasons.10 The uncontested evidence establishes that
Mr. Horne reported the instances of plagiarism to PSU solely because it was
standard practice to report such concerns to a client.11 (ECF No. 100, Ex. 13, pp.
69-70). Although Dr. Nouri stresses that Mr. Horne understood his investigation
could have “implications . . . which go beyond . . . defending against Nouri’s
lawsuit[,]” that understanding alone does not mean Mr. Horne conducted his
investigation with an eye toward anything other than successfully defending PSU
in litigation, an end that Mr. Horne eventually accomplished. Nevertheless, Dr.
Nouri argues that a jury could fairly infer a retaliatory animus in light of the fact
that Mr. Horne “spent almost a year” investigating issues of plagiarism. (ECF No.
109, pp. 13-14).
The facts do not give rise to any presumption that Mr. Horne bore any
retaliatory animus against Dr. Nouri. At the time Mr. Horne first informed PSU of
his suspicions of plagiarism, litigation was stalled and “very little” was occurring
10

The Court has no difficulty concluding Mr. Horne’s report would be sufficient to demonstrate
bias under the summary judgment standard. As Dr. Nouri points out, the report suggests the
ultimate conclusion that the committees should arrive at, using language such as “[m]y
investigation shows what has been produced in litigation is in fact the work of Dr. Jose
Principe[.]” (ECF No. 100, Ex. 20). This is sufficient to satisfy the evidentiary standard.
11
Similarly, to the extent that Dr. Nouri raises allegations against Wendell Courtney, there is no
evidence that Mr. Courtney harbored any retaliatory animus.

35

because Dr. Nouri was seeking new counsel.12 (ECF No. 100, Ex. 1, pp. 86-87).
In an e-mail dated September 25, 2002, Mr. Horne stated that he had been “trying
to get back on track with” his investigation of Dr. Nouri’s plagiarism. (ECF No.
109, Ex. 4). Mr. Horne reported plagiarism issues to PSU on October 16, 2002.
(ECF No. 100, Ex. 24). This suggests that Mr. Horne ceased his investigation
sometime around December 2001, and did not resume it again until mid-September
2002. He reported his findings to PSU less than one month later. Mr. Horne’s
investigation therefore lasted for, at most, two months after he reported the
misconduct, rather than one year.
The Court cannot say that such an investigation is of an unusually lengthy
period given: (1) the complexity of the mathematical topics involved; (2) the fact
that Mr. Horne was a layperson in the field of mathematics; and (3) the indubitable
fact that any competent attorney would have conducted a thorough investigation in
order to fulfill his or her ethical obligation to represent a client. Given that the
investigation was not of an unreasonable duration, no inference may permissibly
be drawn by a finder of fact that the length of the investigation itself was indicative
of a retaliatory animus.

12

The docket report for Dr. Nouri’s 2001 litigation, case number 4:01-cv-00840, shows that Dr.
Nouri moved to replace counsel on December 10, 2001. A hearing was held on February 13,
2002. New counsel did not enter an appearance for Dr. Nouri until June 10, 2002, exactly seven
months after Dr. Nouri first sought to replace his attorney.

36

In the absence of any indication of retaliatory animus, and therefore any
indication that the cat’s paw theory applies, the impartial investigation conducted
by the two committees removed any possible taint of partiality or retaliatory
animus linked to Dr. Nouri’s termination. Consequently, Dr. Nouri’s termination
would have occurred in the absence of the alleged wrongful action or actions of the
employer. Nassar, 133 S. at 2533. Dr. Nouri has therefore failed to establish a
prima facie case, and summary judgment must be granted in favor of PSU.
2.

Pretext

Even if Dr. Nouri had established a prima facie case of retaliation, he has
failed to demonstrate that PSU’s legitimate, non-discriminatory reason13 for
terminating him was pretext. “To demonstrate pretext under the summary
judgment standard, a plaintiff must either (1) offer evidence that ‘casts sufficient
doubt upon each of the legitimate reasons proffered by the defendant so that a
factfinder could reasonably conclude that each reason was a fabrication,’ or (2)
present evidence sufficient to support an inference that ‘discrimination was more
likely than not a motivating or determinative cause of the adverse employment
action.’” Shahin v. Delaware, 563 F.App’x 196, 199 (3d Cir. 2014) (quoting
Fuentes, 32 F.3d at 762).

13

It is undisputed that PSU provided a legitimate, non-discriminatory reason for Dr. Nouri’s
firing – his acts of plagiarism and concomitant violation of PSU policy. (ECF No. 109, p. 15).

37

Although the Third Circuit does not require affirmative evidence of
retaliation, the standard of proving pretext “places a difficult burden on the
plaintiff.” Fuentes, 32 F.3d at 765. This standard requires that a plaintiff “put
forward ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence.’” Kautz v.
Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005) (quoting Fuentes, 32 F.3d at 765)
(emphasis in original). Thus, the plaintiff must “present evidence contradicting the
core facts put forward by the employer as the legitimate reason for its decision.”
Id. (citing Stanziale v. Jargowsky, 200 F.3d 101, 106 (3d Cir. 2000); Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1110 (3d Cir. 1997)).
The Third Circuit has emphasized that “pretext is not shown by evidence
that ‘the employer's decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.’” Id. (quoting Fuentes, 32 F.3d
at 765). Therefore, a plaintiff is required to demonstrate “that the employer's
articulated reason was not merely wrong, but that it was ‘so plainly wrong that it
cannot have been the employer's real reason.’” Jones, 198 F.3d at 413 (quoting
Keller, 130 F.3d at 1109).

38

Dr. Nouri has failed to establish any pretext in his termination. During
litigation, as part of its defense PSU sought copies of the materials and
publications that Dr. Nouri had claimed on his previous FARs. (ECF No. 100, Ex.
10). Dr. Nouri’s attorney submitted numerous documents in reply. Id. at Ex. 13.
After Mr. Horne noticed similarities between Dr. Nouri’s purported publications
and the work of others, he filed a report of plagiarism to PSU. Id. at 96-97.
PSU conducted two independent investigations and hearings into the
allegations of plagiarism. Id. at Ex. 16, p. 95-100; Ex. 27, 28, 46, 48. The Tenure
Committee investigation and hearing maintained formalities intended to protect Dr.
Nouri’s due process rights: he was allowed an attorney; he was allowed to present
evidence; he could examine and cross-examine witnesses; and he was allowed to
present opening and closing statements. Id. The Tenure Committee unanimously
determined that Dr. Nouri had committed five acts of plagiarism and recommended
his termination from employment at PSU. Id. at Ex. 48.
The Tenure Committee’s conclusion is backed by the force of commonsense. Comparing the documents produced by Dr. Nouri’s attorney in the 2001
lawsuit with the documents published by other individuals reveals startling
similarities. For example, a paper entitled “Application of Dynamic Neural
Networks to Approximation and Control of Nonlinear Systems” which lists Dr.
Nouri as the sole author is nearly identical to a publication by the same name
39

published under Dr. Amin’s name. Compare id. at Ex. 19 with id. at Ex. 51.
Similarly, two papers submitted by Dr. Nouri during litigation which listed him as
the sole author are substantially similar to thesis papers submitted by two of his
former students. Compare id. at Ex. 30 with id. at Ex. 31; compare id. at Ex. 32
with id. at Ex. 33. Dr. Nouri admitted that these documents should not have listed
him as the sole author. Id. at Ex. 16, pp. 199-201; Ex. 17, p. 37.
Despite the overwhelming evidence of plagiarism, Dr. Nouri denied
responsibility for these documents. He repeatedly denied any knowledge of the
plagiarized documents, or why they were submitted under only his name.14 (ECF
No. 100, Ex. 16, p. 199-201; Ex. 17, p. 19; Ex. 29, pp. 12-13, 15, 22, 27, 31, 48).
It is doubtful that Dr. Nouri’s strained explanation would be sufficient to
create even a genuine issue of fact on a motion for summary judgment. However,
the issue left to this Court’s determination is not whether Dr. Nouri’s explanations
are sufficient to create genuine doubt as to whether he committed plagiarism, but
whether, in light of those explanations, PSU’s decision to terminate his

14

The Court agrees with Dr. Nouri that, under the summary judgment standard, the evidence
establishes he did not plagiarize Dr. Principe’s work at the Tehran Conference. While Dr. Nouri
asserts that, had the RA 10 Committee not believed Dr. Nouri had plagiarized this materials, the
investigation would have ceased and “Dr. Nouri would not have been terminated[,]” this
understates the importance of timing in the RA 10 process. Dr. Nouri did not produce a witness
to the Tehran Conference or the expert testimony until after the RA 10 Committee concluded
there was sufficient evidence to proceed with an investigation. Without access to this evidence,
the RA 10 Committee’s determination was not unreasonable at the time it was made.

40

employment for plagiarism was “so plainly wrong that it” must have been
motivated by retaliation. Jones, 198 F.3d at 413.
The uncontested evidence reveals that Dr. Nouri’s attorney submitted the
papers during litigation, and there is no serious challenge to the fact that Dr. Nouri
had provided the documents to his attorney. PSU’s decision to reject Dr. Nouri’s
proffered explanations was reasonable, and was certainly not plainly erroneous. It
was reasonable to conclude that Dr. Nouri knew the contents of the documents he
provided to his attorney and later ratified and claimed ownership of during a
deposition. Dr. Nouri’s explanation for these documents was not dissimilar from a
young child, caught with cookie crumbs on his face, denying any knowledge of the
disappearance of a batch of cookies from the pantry.
In his interview with the Tenure Committee, Dr. Nouri also alleged that the
documents were tampered with. Id. at Ex. 17, p. 37-38; ECF No. 109, Ex. 1, p.
219. To be certain, there is some evidence that the paper entitled “Application of
Dynamic Neural Networks to Approximation and Control of Nonlinear Systems”
was tampered with, and poorly at that. However, there is no evidence whatsoever
that anyone other than Dr. Nouri himself tampered with the paper.
Dr. Nouri’s allegations, with little if any supporting substance or evidence,
provided the Tenure Committee with a choice. It could have discredited Dr.
Nouri’s assertions and concluded that he, while trying to win a federal lawsuit
41

against an employer with whom Dr. Nouri had grown increasingly antagonistic,
submitted falsified papers as his own. Alternatively, the Tenure Committee could
have concluded that the attorneys involved in the litigation, including possibly Dr.
Nouri’s own attorney, violated federal law and their professional obligations in
order to tamper with documents. The Tenure Committee could also have chosen to
believe that Karen Brace, an administrative assistant with nothing to gain from
doing so, altered the documents at some unknown time. Given the absence of
evidence demonstrating that a third party tampered with the documents, the
Committee’s decision to reject Dr. Nouri’s dubitable explanations was reasonable.
Considered in view of these facts, Dr. Nouri has failed to “put forward ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer's proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence.’” Kautz, 412 F.3d at
467. Therefore, summary judgment is appropriate for PSU on claims of retaliation.
C.

Hostile Work Environment

Finally, PSU moves for summary judgment on Dr. Nouri’s hostile work
environment claims on the grounds that: (1) Dr. Nouri has failed to exhaust his
administrative remedies; (2) the claim is barred by res judicata; and (3) the claim
fails on the merits. (ECF No. 101). This Court concludes that Dr. Nouri’s claim
fails on the merits.
42

In order to establish a hostile work environment claim under Title VII, a
plaintiff must prove that “(1) she suffered intentional discrimination because of her
protected activity; (2) the discrimination was severe or pervasive; (3) the
discrimination detrimentally affected her; (4) it would have detrimentally affected
a reasonable person in like circumstances; and (5) a basis for employer liability is
present.” Jensen v. Potter, 454 F.3d 444, 449 (3d Cir. 2006) (citations omitted).
To prevail, the plaintiff must show that his workplace was “permeated with
discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or
pervasive to alter the conditions of [his or her] employment and create an abusive
working environment.” Nat'l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116
(2002) (internal quotation marks omitted). A court must consider the totality of the
circumstances, including the “frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work performance.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “Simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to” a
hostile work environment. Faragher v. Boca Raton, 524 U.S. 775, 786-87 (1998)
(internal quotations and citations omitted).
Dr. Nouri alleges a hostile work environment based on several instances of
harassment, none of which were physical in nature. First, Dr. Nouri alleged that he
43

was subject to constant surveillance by PSU employees. (ECF No. 109, Ex. 1, p.
152). Dr. Nouri also alleged that individuals entered his office without permission,
removed items, and tampered with documents. Id. These issues began in the late
1990’s, and “became more obvious and more visible or more noticeable” after
September 11, 2001. Id. at 26.
Dr. Nouri alleges that in one incident Martin Slann, the Director of
Academic Affairs for PSU, summoned Dr. Nouri to his office. Id. at 153. As soon
as Mr. Slann was alone with Dr. Nouri “he started shouting, yelling, beating the
table” and threatening to fire Dr. Nouri. Id. at 153-54. That incident occurred
“way before” the RA 10 Committee completed its investigation. Id. at 154.
Dr. Nouri also references a security officer who brought Dr. Nouri’s “letter
of termination to [his] class in front of the student, an open letter.” Id. at 159. The
security officer then ordered Dr. Nouri to leave the campus. Id. Finally, he alleges
that the Dean of the Commonwealth Colleges, Diane Disney, told Dr. Nouri that
she could not speak with him.15 Id. at 159-60. Viewing these facts in the light
most favorable to Dr. Nouri, he has not established a genuine issue of material fact
regarding a hostile work environment.

15

Dr. Nouri also alleged a hostile work environment based on PSU’s accusation of plagiarism
and his subsequent termination based on those accusations. However, because the Court has
concluded that the accusation had merit, and therefore his termination was acceptable, it
necessarily follows that these instances were not motivated by intentional discrimination.
Therefore, the Court will not consider these acts as contributing to a hostile work environment.

44

As discussed previously, Dr. Nouri has failed to establish any instances of
discrimination based on his national origin or religion. Therefore, no hostile work
environment claims survive summary judgment based on Dr. Nouri’s membership
in those protected classes. The Court will therefore consider allegations of a
hostile work environment only through the prism of retaliation, rather than through
religious or national origin discrimination. See, Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53 (2006) (affirming the application of Title VII hostile work
environment claims to retaliation allegations).
Assuming that Dr. Nouri has established intentional discrimination based on
retaliation, he has nevertheless failed to demonstrate that the conduct alleged was
severe or pervasive enough to create a hostile work environment. As an initial
matter, the Court previously ruled that any claims Dr. Nouri raised or could have
raised in the 1997 or 2001 proceedings are barred by the doctrine of res judicata.
(ECF No. 35). This necessarily includes any claims relating to PSU’s alleged
surveillance of Dr. Nouri, as well as claims that individuals entered Dr. Nouri’s
office and removed or tampered with items. These issues occurred prior to, or
during discovery in, the 2001 litigation, and therefore may not be considered in this
summary judgment motion.
In that vein, Dr. Nouri alleged during a deposition that these activities began
in the late 1990’s, but worsened after September 11, 2001. (ECF No. 109, Ex. 1, p.
45

26). Dr. Nouri did not state when the surveillance stopped. Id. However, the
context of the deposition questioning makes clear that these alleged acts occurred
during the time frame at issue in the 2001 litigation. Specifically, during the
questioning regarding these activities, Dr. Nouri was reminded that “at this point
all of [the] questions are focused on the 2001 lawsuit; understood?” Id. at 24.
Because the alleged acts of surveillance occurred during the timeframe
covered in the 2001 litigation, they will not be considered by the Court. In any
event, even if the acts of surveillance continued beyond the timeframe relevant to
the 2001 litigation, the Court would not consider those acts in this motion for
summary judgment. Important to this Court’s holding on that issue is the Third
Circuit’s decision in Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169 (3d Cir.
2009). There, that court stated:
The fact that several new and discrete discriminatory events are
alleged does not [defeat the doctrine of res judicata]. A claim
extinguished by res judicata “includes all rights of the plaintiff to
remedies against the defendant with respect to all or any part of the
transaction or series of connected transactions, out of which the
action arose.” Restatement (Second) of Judgments § 24(1) (1982)
(emphasis added).
Id. at 174. “What factual grouping constitutes a ‘transaction’, and what groupings
constitute a ‘series’, are to be determined pragmatically, giving weight to such
considerations as whether the facts are related in time, space, origin, or motivation,
whether they form a convenient trial unit, and whether their treatment as a unit
46

conforms to the parties' expectations[.]” Huck on Behalf of Sea Air Shuttle Corp.
v. Dawson, 106 F.3d 45, 48-49 (3d Cir. 1997) (quoting Restatement (Second) of
Judgments § 24(2) (1982)).
In this instance, even if the surveillance continued beyond the date of the
2001 litigation, such actions constitute a continuing course of conduct. The
surveillance activities would all be substantially related in time, space, origin, and
motivation. Id. Undoubtedly, treating these actions as a single unit is proper.
Furthermore, similar to the events in Elkadrawy, here when “[c]onsidered
pragmatically, these allegations are indisputably connected: they arise out of a
single employment relationship and involve” the same form of allegedly retaliatory
behavior. Elkadrawy, 584 at 174. Consequently, hostile work environment claims
based on such actions are barred from consideration by the Court.16
This leaves a total of three incidents which contributed to the purportedly
hostile work environment. First, Dr. Nouri alleges that his boss, Mr. Slann,
shouted and yelled at him while “beating the table” and threatening to fire him.
(ECF No. 109, Ex. 1, p. 153-54). This behavior would certainly qualify as
unseemly and unprofessional, but few individuals with any significant amount of
work experience have not experience the displeasure of working for a difficult and
abrasive supervisor. Second, Dr. Nouri alleges that he was terminated by way of
16

The same analysis applies to Dr. Nouri’s reference to a background check conducted by PSU;
that incident likewise will not be considered in determining this summary judgment motion.

47

being presented a letter of termination while teaching, and was asked to leave
campus in front of his students. Id. at 159. While the circumstances surrounding
Dr. Nouri’s termination from PSU were less than ideal, it is difficult to imagine
any scenario in which an individual would not feel shame and embarrassment upon
being terminated from his or her employment. Third, Dean Disney refused to
speak with Dr. Nouri during a visit to the campus. Id. at 159-60.
These three instances are insufficient to alter the conditions of Dr. Nouri’s
employment, Morgan, 536 U.S. at 116, and were neither severe enough nor
pervasive enough to create a hostile work environment. See, Lulis v. Barnhart, 252
F.Supp.2d 172, 177-78 (E.D. Pa. 2003) (nine incidents of sexual conduct over a
period of seventeen months was not pervasive); Saidu–Kamara v. Parkway Corp.,
155 F.Supp.2d 436, 439–41 (E.D. Pa. 2001) (four incidents of harassment that
occurred over eighteen month period, including unwanted sexual touching of the
plaintiff's breasts and buttocks, was not severe or pervasive); Bonora v. UGI
Utilities, Inc., No. CIV.A. 99-5539, 2000 WL 1539077, at *4 (E.D. Pa. Oct. 18,
2000) (ten incidents of unwanted touching over two year period did not constitute
severe or pervasive behavior). Essentially, the acts described by Dr. Nouri amount
to isolated instances of non-severe, unpleasant conduct which, when viewed as a
whole, fail to create a genuine issue of fact. Consequently, judgment is warranted
in favor of PSU.
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IV. CONCLUSION
A review of the record demonstrates an absence of evidence supporting Dr.
Nouri’s claimed religious and national origin discrimination. Furthermore, PSU
has provided legitimate, non-discriminatory reasons for Dr. Nouri’s termination,
and Dr. Nouri has failed to demonstrate that the reasons offered were mere pretext
for retaliation. Finally, the conduct alleged by Dr. Nouri was neither severe nor
pervasive enough to create a hostile work environment. For those reasons, PSU’s
Motion for Summary Judgment is granted in full.
An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

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