Al-Zubaidi v. Ijaz, AL-ZUBAID

• Decision Date: 06 November 1990
• Docket Number: AL-ZUBAID,P,No. 89-1476,89-1476
• Parties: 63 Ed. Law Rep. 777 Amerlaintiff-Appellant, v. M.A. IJAZ, Defendant-Appellee, and Virginia Polytechnic Institute and State University; Kazuo Gotow; Richard A. Arndt; S.P. Almeida; John R. Ficenec; C.D. Williams; L. David Roper; T.K. Lee; William Lavery; Thomas E. Gilmer, Jr., Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1347

917 F.2d 1347

63 Ed. Law Rep. 777

Amer AL-ZUBAIDI, Plaintiff-Appellant, v. M.A. IJAZ, Defendant-Appellee, and Virginia Polytechnic Institute and State University; Kazuo

Gotow; Richard A. Arndt; S.P. Almeida; John R. Ficenec;

C.D. Williams; L. David Roper; T.K. Lee; William Lavery;

Thomas E. Gilmer, Jr., Defendants.

No. 89-1476.

United States Court of Appeals, Fourth Circuit.

Argued April 6, 1990.

Decided Nov. 6, 1990.

Gerald Thomas Zerkin (Karen Ely-Pierce, Gerald T. Zerkin & Associates, Richmond, Va., on brief), for plaintiff-appellant.

Jerry Dean Cain, III, General Counsel and Sp. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, Va.; Kay Heidbreder, Associate General Counsel and Sp. Asst. Atty. Gen. Virginia Polytechnic Institute and State University, on brief) Blacksburg, Va., for defendant-appellee.

Before RUSSELL and MURNAGHAN, Circuit Judges, and GARBIS, United States District Judge for the District of Maryland, sitting by designation.

PER CURIAM:

Amer Al-Zubaidi is a former physics student who was pursuing his doctorate at Virginia Tech until his studies were terminated by a committee of the physics department. In this suit, he claimed that he was terminated because of discrimination against him based upon his religion. Below, the jury found for Al-Zubaidi and awarded him $450,000 in damages. The district judge reversed this verdict and granted JNOV for the defendant. Al-Zubaidi appealed this ruling, and argues that JNOV was not proper. We find that the district judge correctly granted JNOV, and affirm.

During the latter years of his graduate studies, Al-Zubaidi was supervised by Professor M.A. Ijaz. Al-Zubaidi and Ijaz are both Muslim; however, Al-Zubaidi is a Shi'ite Muslim, whereas Ijaz is a Sunni Muslim. In this suit, Al-Zubaidi claimed that Ijaz discriminated against him because the two are of different Muslim sects, and that this discrimination caused Al-Zubaidi's dismissal from Virginia Tech. At trial, it was established that Ijaz attempted to get Al-Zubaidi to sign a petition asserting the correctness of the Sunni beliefs, and that Ijaz further requested that Al-Zubaidi gather the signatures of other Muslims. Al-Zubaidi refused, and in this suit he claimed that Ijaz sabotaged his graduate studies because of that refusal.

The issue at trial, during the post-trial motions, and now on appeal, is whether discrimination by Ijaz caused Al-Zubaidi's termination. In granting the defendant's motion for JNOV, the district judge found that the evidence overwhelmingly proved that Al-Zubaidi would have been terminated regardless of how Ijaz acted toward Al-Zubaidi. The judge noted that the plaintiff's doctoral committee was composed of four persons including Ijaz, and found that Ijaz's lone vote would have been insufficient to terminate Al-Zubaidi from the physics program. In this appeal, Al-Zubaidi argues that Ijaz deliberately poisoned the entire doctoral committee against him, so that all of the votes were the product of discrimination. Ijaz counters that it was well known in the physics department that Al-Zubaidi was a poor graduate student, that the committee primarily terminated Al-Zubaidi for that reason, and that any prejudicial actions taken by him had little effect. We agree that the record establishes that Al-Zubaidi's termination was not caused by discriminatory action by Ijaz, and affirm the granting of JNOV by the district judge.

Before we discuss our decision, one procedural note is in order. Al-Zubaidi originally filed his suit against Ijaz, the members of the doctoral committee, and Virginia Tech. On defendants' motion for summary judgment, the district judge dismissed all of the defendants except Ijaz. The court ruled that there is no vicarious liability in a Section 1983 action, and thus the other defendants could not be liable since there was no evidence of discrimination on their part. On appeal, Al-Zubaidi does not dispute that legal premise. However, he asserts that these are necessary parties for the fashioning of an equitable remedy of reinstatement as a student. The appellee responds that an order of reinstatement would not be appropriate, because it would effectively order Virginia Tech to process and graduate Al-Zubaidi regardless of his ability. Because we are upholding the decision that Al-Zubaidi's termination was not caused by discrimination, we do not reach that issue.

I.

In considering a JNOV motion, the trial judge may not weigh the credibility of witnesses or weigh evidence. Whalen v. Roanoke County Bd. of Supervisors, 769 F.2d 221, 226 (4th Cir.1985), rev'd on other grounds, 797 F.2d 170 (4th Cir.1986) (en banc). Also, the district judge may not base a grant of JNOV on materially contradicted evidence. Lust v. Clark Equipment Co., 792 F.2d 436, 440 (4th Cir.1986). Finally, the court may not substitute its judgment for the jury's. However, the jury may only draw inferences from the evidence that are "reasonably probable," and "mere speculation is insufficient" to support a verdict. Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir.1987).

In this case, the district judge found that the jury's verdict was contrary to the evidence. The district judge granted JNOV because the evidence clearly did not satisfy the "but for" test set forth in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977).

Although the district judge did not recount the evidence of Al-Zubaidi's shaky academic record in his memorandum opinion granting JNOV, the evidence in the record supporting that position is strong. Al-Zubaidi had begun his Ph.D. program at Virginia Tech in December 1976. By September of 1981, Al-Zubaidi had performed well in the classroom but had performed poorly in academic research, which was an indispensable part of his studies. Al-Zubaidi's grades were good; he had earned a 3.51 grade point average at Penn State while obtaining his master's degree in physics, and he earned a 3.6 at Tech in his classroom studies. Al-Zubaidi's downfall came in the laboratory, however--not the classroom. For the first three years of his studies, he put in far less time in the lab than is expected of a satisfactory graduate student. He later picked up the pace, but proved to be weak outside the classroom and, also, dangerous. Because of his poor skills in using Tech's nuclear reactor, in September of 1981 the University Reactor Safety Committee forced Al-Zubaidi to complete successfully a reactor safety program before he could again handle radioactive material or alter or move shielding without approval.

After Al-Zubaidi had been at Tech for two years, Physics Professor W. Peter Trower requested that the graduate committee terminate his studies. Al-Zubaidi had been assigned to aid Trower in grading tests in his "Physics As A Liberal Arts" class, a low level course. Trower wrote the committee to state that Al-Zubaidi was incapable of performing the task. He stated that Al-Zubaidi "had neither the talent nor the temperament to benefit either me or the student in this course." He added that Al-Zubaidi "showed precious little understanding of the most basic physics ideas nor was he able to demonstrate any ability to learn even when encouraged to do so." He also commented that "[e]ven making generous allowances for the cultural differences, I predict that Al-Zubaidi will never be able to perform, even marginally, as a practicing physicist." Despite this recommendation, Al-Zubaidi remained as a student. Yet, after being at Tech for five years, it appears that his skills had not improved. In a letter to an associate dean of the graduate school dated September 21, 1981, Associate Physics Professor Samuel P. Bowen assessed Al-Zubaidi's progress in his lab work in his research. The report was critical of Al-Zubaidi's progress and summed up its assessment by stating that "many of my colleagues and I do not judge that Mr. Al-Zubaidi's talents are well adapted to physics research."

Bowen wrote this letter as part of an evaluation of whether Al-Zubaidi should continue on his current research project or start a new project. Al-Zubaidi elected to select a new topic and committee. Approximately one month later, on October 15, 1981, the chairman of Al-Zubaidi's Ph.D. Advisory Committee, Professor Parkinson, resigned. Parkinson had departed Tech to work on his own physics research in Argentina. In Parkinson's letter to Al-Zubaidi discussing the future of Al-Zubaidi's studies, Parkinson complained that Al-Zubaidi had taken so much of his time that he had not been able to attend to his other responsibilities adequately. We do not know how much of an influence Al-Zubaidi's time-consuming presence was on Parkinson's decision to resign and leave for Argentina; however, it clearly had an impact. In December of 1982, Parkinson provided a short evaluation of Al-Zubaidi's abilities based upon the almost four years that Parkinson served as chairman of Al-Zubaidi's Ph.D. committee. Parkinson stated that Al-Zubaidi's progress had been slow, that Al-Zubaidi required a great deal of assistance with the reactor, that Al-Zubaidi occupied more of Parkinson's time than any other doctoral student that Parkinson had ever counseled, and that Al-Zubaidi had good theoretical skills but was "poorly qualified for experimental research."

After Parkinson's resignation, Al-Zubaidi was in need of a new Ph.D. committee chairman and a new committee. He approached Professor Ijaz, who agreed to form a committee and to chair it. In addition to working with Al-Zubaidi, Ijaz attempted to persuade Al-Zubaidi to sign a declaration that would indicate that Al-Zubaidi was a firm Sunni Muslim. Ijaz was attempting to gather signatures demonstrating a strong Sunni Muslim presence at Tech so that the government of Saudi Arabia might provide financial support for the building of a mosque and school for Muslim students in the surrounding area. Al-Zubaidi refused...