Newman v. Com. of Mass., 88-1923

• Decision Date: 06 February 1989
• Docket Number: No. 88-1923,88-1923
• Parties: 55 Ed. Law Rep. 910 Anny NEWMAN, Plaintiff, Appellee, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees, Appeal of Diana BURGIN, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 19

884 F.2d 19

55 Ed. Law Rep. 910

Anny NEWMAN, Plaintiff, Appellee, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, Appellees, Appeal of Diana BURGIN, et al., Defendants, Appellants.

No. 88-1923.

United States Court of Appeals, First Circuit.

Heard Feb. 6, 1989.

Decided Aug. 28, 1989.

Lawrence T. Bench, First Associate Counsel, University of Massachusetts, for defendants, appellants.

Daniel F. Featherston, Jr., with whom Susan S. Riedel was on brief, for plaintiff, appellee.

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Plaintiff Anny Newman, a tenured professor at the University of Massachusetts, was accused of publishing a plagiarized article. She claims the university wrongly censured her, and she therefore brought this suit against four university employees alleging the violation of federal and state civil rights laws, and, as to one, state tort law. The district court denied the defendants' motions for summary judgment, which included a request that they be granted qualified immunity, and this interlocutory appeal followed. We find that the defendants are entitled to qualified immunity on plaintiff's due process claims, but that qualified immunity is premature at this time on her other claims. We do not reach any other issues in this limited appeal.

I.

We begin by describing only briefly the factual background of this case, providing more detail as necessary in other sections of the opinion.

Plaintiff Newman, an assistant professor in the Russian Department, filed a report for the 1982-83 academic year that listed an article she had published about a 17th-century Serbo-Croatian poem. ¹ After reviewing the report, defendant Diana Burgin, chairperson of the Russian Department, informed members of the department's personnel committee that she believed there were resemblances between the article listed in the report and a book published in German in 1952 by Vsevolod Setschkareff.

The personnel committee notified plaintiff that questions had been raised about her article. A short time later, the committee communicated its concerns about the piece to defendant Richard Freeland, dean of the College of Arts and Sciences. Plaintiff submitted a detailed "Refutation" to Freeland, explaining that the challenged article was a revision of her master's thesis submitted at Harvard University in 1962. She further explained that her thesis advisor had assigned two basic texts to be used as sources and models for the thesis, one of which was the Setschkareff book. In addition, plaintiff said she had worked with Professor Setschkareff, her Russian literature professor, in preparing the thesis.

Freeland solicited the advice of two outside experts on whether plagiarism, in the sense of similarities, had occurred and appointed a special committee to advise him on the question of plagiarism and what sanctions, if any, should be imposed on plaintiff. One of the outside experts concluded that plaintiff had plagiarized. The other expert described her method of documentation as substandard. He concluded that her work represented "able but less than meticulous scholarship," and that proving deliberate plagiarism would be difficult. ² The committee's report concluded that plaintiff's article and thesis "is an objective instance of plagiarism" but because of mitigating circumstances recommended that plaintiff only be censured for "seriously negligent scholarship."

In a written proposal to the provost of the Boston campus, Freeland adopted the findings and recommendation of the committee and listed six actions for implementing the censure. These included a public reading of a letter of censure before the University's Faculty Council and College Senate, and a bar against plaintiff's serving as chair of her department or voting on degrees.

The provost and chancellor, both defendants in this case, concurred in Freeland's recommendation, and the chancellor directed that the sanctions be carried out. After the letter of censure was read to the Faculty Council and College Senate, plaintiff read a statement in response before each faculty body.

Plaintiff filed this action in November 1986. She claims that the University officials violated her right to procedural due process in the manner in which they handled the plagiarism charge and to substantive due process by ultimately resolving the charge against her on the merits. These claims were brought under both state and federal civil rights laws. See 42 U.S.C. Sec. 1983; Mass.Gen.Laws Ann. ch. 12, Sec. 11I. She also brought three state common law claims against defendant Burgin alone, alleging intentional interference with an economic relationship, intentional infliction of emotional distress, and defamation.

Defendants filed a motion for summary judgment claiming that plaintiff suffered no constitutional injury and that defendant Burgin did not violate state tort law. They also claimed qualified immunity from damages on all claims. The district court denied the motion, stating that factual matters remained for the jury to determine. The court made no explicit reference to qualified immunity, but presumably intended its denial of summary judgment to cover the immunity claim.

II.

We must establish at the outset of our discussion the proper scope of this appeal. The district court denied defendants' motion for summary judgment on all issues. Defendants have urged us to review at this time not only the district court's denial of qualified immunity but also its decision to deny summary judgment on the merits of the federal and state claims. We decline, however, to depart from our now well-established practice of limiting our interlocutory review to the issue of qualified immunity. See, e.g., Goyco de Maldonado v. Rivera, 849 F.2d 683, 684 (1st Cir.1988); Quintana v. Anselmi, 817 F.2d 891, 892 n. 3 (1st Cir.1987); Bonitz v. Fair, 804 F.2d 164, 173-76 (1st Cir.1986), overruled on other grounds, Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir.1988). We have adhered to this limitation even when the merits of a particular case are "inexorably intertwined" with the qualified immunity issue. See Unwin v. Campbell, 863 F.2d 124, 133 n. 9 (1st Cir.1988); Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 44 (1st Cir.1988). We therefore discuss only the immunity issue.

III.

Plaintiff's civil rights claims allege violations of both her procedural and substantive due process rights. ³ She claims that the defendants violated her right to substantive due process because their investigation and decision-making on the plagiarism charge was arbitrary and capricious. Her allegation of a procedural due process violation is based on many of the same deficiences in process that underlie her substantive claim. Moreover, she claims that defendants' handling of the plagiarism charge was so inadequate that any reasonable person would have known that their conduct was a violation of her "clearly established" substantive and procedural due process rights, and that defendants therefore are not entitled to qualified immunity from damages. See Harlow v. Fitzgerald, 457 U.S. 800, 818-819, 102 S.Ct. 2727, 2738-2739, 73 L.Ed.2d 396 (1982); Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir.1988); Duarte v. Healy, 405 Mass. 43, 47, 537 N.E.2d 1230, 1232 (1989). ⁴

We shall begin with a discussion of the procedural claim.

A. Procedural Due Process.

It is without question that plaintiff, a tenured professor who faced the possibility of dismissal as a result of the plagiarism charge, was entitled to the protections of procedural due process, and that this due process right was clearly established at the time defendants acted. See Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

Recognizing plaintiff's clearly established right does not end our inquiry, however. We must decide whether defendants reasonably should have understood that their specific actions violated that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Unwin, 863 F.2d at 131.

We recently have observed that the concept of due process is equivalent to "fundamental fairness," and that "[n]otice and an opportunity to be heard have traditionally and consistently been held to be the essential requisites of procedural due process." Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1st Cir.1988). See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). We further elaborated in Gorman:

The hearing, to be fair in the due process sense, implies that the person adversely affected was afforded the opportunity to respond, explain, and defend. Whether the hearing was fair depends upon the nature of the interest affected and all of the circumstances of the particular case.

837 F.2d at 13.

The undisputed facts in this case show that plaintiff was notified of the plagiarism charge against her at the outset of the investigation and was given multiple opportunities "to respond, explain, and defend." Her detailed "Refutation," submitted to Dean Freeland, became a part of the record that was passed on to higher levels of the university hierarchy. She was given the opportunity to respond to the reports filed by the outside experts and the dean's committee. She was entitled to call and cross-examine witnesses at a hearing before the dean's committee, and was permitted to submit any other evidence in her behalf. She also drafted additional responses to the provost and chancellor before they made decisions about whether to adopt Dean Freeland's recommended course of action.

Thus, plaintiff had more than ample opportunity to explain and defend the similarities between her work and Professor...