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, 917 F.2d 1347

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, AlZubaidi 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. AlZubaidi refused to sign, because that declaration conflicted with his Shi’ite beliefs, and he also refused to try to obtain signatures from his wife, other students and faculty members.

After Al-Zubaidi gave Ijaz his final decision that he would not sign the petition, Al-Zubaidi claims that Ijaz responded by saying “I don’t know you.” Al-Zubaidi says this meant that AlZubaidi was now a non-person so far as Ijaz was concerned. Circumstantial evidence presented at trial inferred that Ijaz attempted to undercut Al-Zubaidi’s standing in the physics department because of Al-Zubaidi’s refusal to cooperate in the petition drive. Al-Zubaidi was to conduct his research under Ijaz at the Oak Ridge National Laboratory, yet it appears that Ijaz stonewalled Al-Zubaidi’s efforts to conduct that research.

Ijaz attempted to block Al-Zubaidi’s access to Oak Ridge, sometimes saying that he would take Al-Zubaidi back to that facility, and sometimes saying that he would obtain the research data from Oak Ridge himself. However, Ijaz never provided this assistance. Even when Al-Zubaidi requested that Ijaz retrieve the computer data tape and computer program that Al-Zubaidi was using at Oak Ridge, Ijaz failed to produce. Ultimately, Ijaz produced several useless tapes, which, according to Al-Zubaidi, had no data on them. Despite this lack of data, Al-Zubaidi began writing his dissertation pursuant to Ijaz’s direction.

Apparently, Al-Zubaidi was able to write the first two chapters without difficulty. The third

chapter was supposed to contain the data that he did not have, and

chapter four was supposed to explain the data from

chapter three. Despite this lack of data, Al-Zubaidi attempted to draft a

chapter four based upon his predictions, although he was unable to draft a

chapter three. Upon reviewing AlZubaidi’s writing, Ijaz found that

chapter four was unsatisfactory and indicated that he wanted to see Al-Zubaidi again on the following Monday, which was three days away. Al-Zubaidi was not told of the purpose of the Monday meeting; however, when he came in on that day, Ijaz informed him that he would be giving a presentation about his dissertation to his Ph.D. committee in two days, on a Wednesday. Al-Zubaidi was upset over this planned meeting, since he had not received any data or finished his dissertation. Yet, Al-Zubaidi did give a presentation and answered questions that Wednesday.

The record does not reflect whether these questions were answered correctly. Eventually, Ijaz ended the presentation, and Al-Zubaidi was excused. Although Al-Zubaidi was not privy to the committee’s discussions, he did learn that Ijaz did not give the committee copies of his draft of the first two chapters of his dissertation. Following the Al-Zubaidi presentation, the Ph.D. committee met and decided to resign. The four members of the committee then issued a short statement to the Chairman of the Graduate Committee indicating their reasons for resigning.

They indicated that Al-Zubaidi did “not have the basic understanding and skill to pursue a Ph.D. in nuclear physics,” “that he ha[d] not shown much progress independently,” and that he had failed to exhibit “creative scholarship.” After receiving this recommendation, the head of the physics department, Dr. Gilmer (who was not on Al-Zubaidi’s committee), wrote to Al-Zubaidi informing him of the resignation of his Ph.D. committee, and asking Al-Zubaidi to resign. In his letter, Gilmer indicated that he was not asking Al-Zubaidi to leave because of the resignation of his Ph.D. committee.

Instead, Gilmer indicated that all of the faculty members that were closely connected with Al-Zubaidi’s research at Tech had no confidence in him. Importantly, the graduate committee had indicated to Gilmer that there was little prospect of Al-Zubaidi meeting expected research standards. Al-Zubaidi refused to resign and was terminated. As an aside, as Al-Zubaidi’s termination was nearing, Oak Ridge indicated that AlZubaidi should not return until his skills had improved substantially.

In response to an inquiry by Ijaz, an Oak Ridge official indicated that Al-Zubaidi had no competency in computer programs, that he could not understand various physics concepts, that he made little progress learning things taught him at Oak Ridge, and that he had become a nuisance to the Oak Ridge computer staff. Based upon this factual pattern, we find that the district judge was correct in granting JNOY. Admittedly, the evidence indicates that Ijaz was not helpful to Al-Zubaidi once Al-Zubaidi refused to sign Ijaz’s petition.

The denying of data results and the withholding of two chapters of Al-Zubaidi’s draft dissertation from the Ph.D. committee could possibly be construed as

an act of sabotage against Al-Zubaidi’s standing. Al-Zubaidi argues that these acts prevented the committee from getting a true picture of Al-Zubaidi’s abilities and research abilities. We reject that argument. The record indicates clearly that Al-Zubaidi was always a poor researcher, which is an indispensable skill in working on a Ph.D. in physics. Dr. Trower had recommended AlZubaidi’s termination as early as 1978 because of a perceived lack of ability. Dr. Parkinson came to this same conclusion after four years of chairing Al-Zubaidi’s Ph.D. committee.

Officials at the Tech reactor and at Oak Ridge had no confidence in Al-Zubaidi’s abilities. These poor reviews were not the result of any antagonism by Ijaz. We agree that if Ijaz sought to sink Al-Zubaidi, then Ijaz was attempting to sink a ship that already was sinking. Indeed, the record indicates that the graduate committee’s decision to recommend the termination of Al-Zubaidi was based on Al-Zubaidi’s entire file, not just on the presentation made to the Ph.D. committee. It also indicates that Dr.

Gilmer attempted to gather a sample of opinion on Al-Zubaidi outside of his final Ph.D. committee before proceeding with the termination. Thus, the decision to terminate Al-Zubaidi was not based only on the Ph.D. committee presentation. Despite his success in the classroom, Al-Zubaidi had simply failed as a researcher. Accordingly, we affirm the dismissal of this case. The record regrettably indicates that Al-Zubaidi’s downfall was attributable to his lack of research ability. AFFIRMED