Petition for Writ of Certiorari — Zhu v. Massachusetts Institute of Technology (No. 07-1407)

Supreme Court, U.S.

FILED

071407 APR29 2008

OFFICE OF THE CLERK

No. CD

In the

Supreme Court of the United States

Yong Zhu,

Petitioner

v.

Massachusetts Institute of Technology,

Respondent

On Petition for a Writ of Certiorari to the

Massachusetts Supreme Judicial Court

PETITION FOR WRIT OF CERTIORARI

Yong Zhu

Pro Se

175 Linden Avenue

Maiden, MA 02148

781-322-5021

April 28, 2008

QUESTION REPRESENTED

Is the rule applied by Middlesex Superior Court

in Massachusetts supported by federal laws or

regulations?

Should Federal Regulation 14CFR1260 be

ignored by a party of Federal Demonstration

Partnership in administration of NASA !

research grants?

‘ NASA represents the National Aeronautics and Space

Administration.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

I. THE “RULE” USED IN THE

DICISION BELOW IS NOT

SUPPOPTED BY FEDERAL LAW

. FEDERAL REGULATION

14CFR1260 CANNOT BE IGNORED

BY A PARTY OF FEDERAL

DEMONSTRATION PARTNERSHIP

(11. THIS QUESTION IS AN IMPORTANT

ISSUE OF FEDERAL LAW

CONCLUSION

TABLE OF APPENDIXES

APPENDIX I: MEMORANDUM OF DECISION

AND ORDER ON THE DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

APPENDIX IT: SUMMARY JUDGMENT M.R.C.P.56 ...35

APPENDIX III: MEMORANDUM AND

ORDER PURSUANT TO RULE 1:28

APPENDIX IV: NOTICE OF DENIAL OF

F.A.R. PPLICATION

APPENDIX V: NOTICE OF DOCKET ENTRY

APPENDIX VI: FEDERAL DEMONSTRATION

PROJECT GENERAL TERMS AND

CONDITIONS, PHASE III (1996), ARTICLE 1 39

APPENDIX VII: COVER PAGE OF NASA

RESEARCH GRANT NAG>-1-21738 ............ceseeceeee 42

TABLE OF AUTHORITIES

STATUTES AND REGULATION

THE CONSTITUTION OF THE UNITED STATES,

ARTICLE I, SECTION 1

28U.S.C.§1257

14CFR1260.13(a)(2)(ii)

OE ED asibandisabass siveeseevancvanncccunecborss 2, 8, 12

14CFR1260.52

14CFR1260.125 (c)

OTHER AUTHORITIES

CONSTITUTION OF THE COMMONWEALTH

OF MASSACHUSETTS, ARTICLE XXX

FEDERAL DEMONSTRATION PROJECT (FDP)

GENERAL TERMS AND CONDITIONS,

PHASE III (1996), ARTICLE 1 3, 8, 9, 14-17, 39

NASA SPECIFIC REQUIREMENT FOR NASA

GRANTS OR COOPERATIVE AGREEMENTS ...4, 15

OPINIONS BELOW

The Middlesex Superior Court in Massachusetts

entered two orders and a summery judgment for the

case Yong Zhu vs. Massachusetts Institute of

Technology (MIT). One order titled “Memorandum of

Decision and Order on the Defendant’s Motion for

Summery Judgment” and the summery judgment are

reproduced in Appendix I (pp19) and Appendix II

(pp35) respectively. The opinion of Massachusetts

Appeals Court on the appeal of Yong Zhu is displayed

in Appendix III (pp36). Appendix IV (pp37) shows the

denial cf Zhu’s Application for Further Appellate

Review entered by Massachusetts Supreme Judicial

Court. Zhu’s petition for reconsideration was again

denied by Massachusetts Supreme Judicial Court.

(App.V, pp38).

JURISDICTION

The decision of Middlesex Superior Court in

Massachusetts was issued on March 31, 2006 (App.I

& App.II, pp19-35). The decision of Massachusetts

Appeals Court on Zhu’s timely appeal was entered on

September 25 2007 (App.III, pp36). Zhu’s timely

application for Further Appellate Review was denied

on November 29 2007 (App.IV, pp37). Zhu’s petition

for reconsideration was denied on January 31 2008

(App.V, pp38). This Court has the jurisdiction to

review the case pursuant to 28U.S.C.§1257.

STATUTORY PROVISIONS INVOLVED

14CFR1260 or “THE GRANT AND COOPERATIVE

AGREEMENT HANDBOOK”:

14CFR1260.125 (c):

“(c) For nonconstruction awards, recipients shall

requests pricr approvals from NASA for the following

program or budget related reasons, except the item in

paragraph (c)(5) of this section, which is waived by

NASA.

(1) | Changes in the scope or the objective of the

project cr program (even if there is no associated

budget revision requiring prior written approval).

(2) Change in a key person specified in the

apvlication or award document.

14CFR1260.26(b):

“Unless otherwise directed by the Grant Officer,

an unexpended balance of funds which remains at the

end of any funding period, except the final funding

period of the grant, shall be carried over to the next

funding period, and may be used to defray costs of

any tunding period of the grant. This includes

allowing the carry over of funds to the second and

subsequent years of a multiple year grant.”

14CFR1260.13(a)(2)Gi):

“Periods approved under the Multiple Year Grant

or Cooperative Agreement special condition at

§1260.52, and funded at the level specified in the

special condition, are not considered to be new

,

awards. Therefore. new proposals, new

proposal-related certifications (such as Disclosure of

Lobbying Activities, and Debarment and Suspension),

new technical evaluations, and new budget proposals

are not required, as long as this information for the

multiple year period was reviewed and approved as

part of the original proposal.”

FEDERAL DEMONSTRATION PROJECT (FDP)

GENERAL TERMS AND CONDITIONS, PHASE III

(1996), ARTICLE 1 (App.VI, pp39):

“1. Recipient Responsibilities and Federal

Requirements

a. The recipient institution (recipient) has full

responsibility for the conduct of the project or activity

supported by this award, in accordance with the

requirements of this award, and for the results. The

requirements of this award are contained in:

(1) The Federal statute that authorized this

award;

(2) These general terms and conditions;

(3) The supplemental agency specific

requirements of the awarding agency that are

incorporated in the Demonstration Agreement

(hereafter referred to as agency-specific

requirements); and

(4) Any special conditions attached to this award.

b. If the requirements of this award conflict, the

following order of precedence shall apply:

(1) The Federal statute that authorized this

award;

(2) Any special conditions attached to this

award;

(3) The agency-specific requirements; and

(4) These general terms and conditions.”

NASA SPECIFIC REQUIREMENT FOR NASA

GRANTS OR COOPERATIVE AGREEMENTS (e.g.

App.VII, pp42):

“This Grant (or Cooperative Agreement) is awarded

under the authority of 42 U.S.C. 2473(c)(5), and is

subject to all applicable laws and regulations of the

United States in effect on the date of this Grant (or

Cooperative Agreement) is awarded, including but

not limited to 14 CFR part 1260 (Grants and

Cooperative Agreemerits).”

THE CONSTITUTION OF THE UNITED STATES:

Article. I. - The Legislative Branch

Section 1 - The Legislature

“All legislative Powers kerein granted shall be

vested in a Congress of the United States, which shall

consist of a Senate and House of Representatives.”

CONSTITUTION OF THE COMMONWEALTH OF

MASSACHUSETTS:

“Article XXX. In the government of this

commonwealth, the legislative department shall

never exercise the executive and judicial powers, or

either of them: the executive shall never exercise the

legislative and judicial powers, or either of them: the

judicial shall never exercise the legislative and

executive powers, or either of them: to the end it may

be a government of laws and not of men.”

STATEMENT OF THE CASE

Petitioner, Yong Zhu came from the Mainland of

China, worked for federal research projects at

Massachusetts Institute of Technology (MIT) from

March 1992. He was laid off in October 2001 from the

position of research scientist. On December 22, 2003,

Zhu filed a Complaint against MIT (respondent) for

discrimination based on national origin and wrongful

termination at the Middlesex Superior Court in

Massachusetts.

In the process of discovery, Zhu received the

documents from MIT, which include the financial

budgets and accounts of several research projects

awarded by National Aeronautics and Space

Administration (NASA) and National Science

Foundation (NSF) to MIT. Zhu found from the

documents that he was named as a key person in

these project budgets, while more than 40 months of

the salaries allotted to him in the projects were not

paid to him. Based on the facts discovered, Zhu

detailed, in the Opposition to the Motion of Summary

Judgment of MIT submitted in October 2005, several

genuine issues of the discrimination made by MIT.

Here, only the issue related to the current questions

is discussed.

According to his witnesses on the project budgets

and accounts obtained from MIT, Yong Zhu alleged in

a great detail with the budgets and account as his

exhibits that, from the middle of 1997 MIT used the

salaries allotted to him in several research projects to

hire three additional researchers who, including two

less qualified new postdoctoral staff from European

countries, were not included in the project budgets

that time. As the result, the salaries more than 40

months allotted to Zhu in these projects were paid by

MIT for the additional people. Zhu alleged also that

the exchange of key person in these projects violated

Federal Regulation 14CFR1260.1259(c) (pp2), since

MIT never provided the prior approvals from NASA

for the exchange of key persons.

Zhu alleged again: When the research funds

were overrun by hiring extra people, MIT did not

terminate the unlawful hiring but sent at least four

letters to NASA asking for advance of fund from

multiple year NASA Grant NAG-1-2173 in 1999. The

fund advanced from NASA was paid to the additional

persons continuously until the grant was spent out in

July 2000, 19 months before the closing date of this

project. As the salary allotted to Zhu was paid to

others, MIT laid off him in October 2001 in the excuse

of “decline in research funding”. This excuse was

cuanged to “lack of funding” in the court decision.

Three NASA grant were not expired at Zhu’s

layoff. More than 20 months of the salaries allotted to

Zhu in the three unexpired grants were not paid to

him. The documents submitted by MIT show that

MIT hired Valerie Thouret from May 1998 to July

2000 and hired Matthew Evans from May 1999 to

April 2000. The documents show also that the two

persons were not named in the budgets of the project,

from which they got paid.

The respondent never denied or dispute these

facts alleged. It only moved to strike the allegations

together with all the project budgets and accounts

attached, for the reason that Zhu was not involved in

the grants administration at MIT. While, it could not

deny that the allegations could also be made by a

witness of the financial data, even if he or her was not

involved in the grants administration work.

In the decision below, Zhu's allegations on

replacement of him with thvse less qualified and not

named in the NASA projects was reworded to be:

“Zhu further alleges that Newell mis‘spent NASA

funds intentionally on non-Chinese scientist to

refrain from using the funds to pay Zhu or other

Chinese scientists.” (App.l, pp27, §1) Since the

Supreme Court does not consider the factual errors,

let us focus on the two questions presented.

The legal basis of the decision below on the

allegations discussed is:

“The rule regarding NASA funding was such that

funds were not given directly to any individual,

and also could not be stockpiled.” (App.I, pp23, §2)

This rule is then used to draw the following decision:

“It is absolutely uncontroverted that Newell could

not ‘stockpile’ research funds and carry them over

from one year to the next. Therefore, the fact that

Newell paid non-Chinese scientist with research

funds in 1999 and 2000 is unrelated to the lack of

funding with which to pay Zhu 2001.” (App.I, pp33,

§3)

This decision raised the first question presented

in the Petition: Is the rule applied by the state court

supported by federal laws or regulations? Yong Zhu

appealed timely on October 12 2006 to Massachusetts

Appeals Court for the tens of false statements on the

facts, allegations and testimonies, as well as the

abuse of laws in striking his affidavits and exhibits

found in the decisions below. As to the current

questions, Zhu reasoned in his Brief that the

carryover of a multiple year grant was allowed by

14CFR1260.26(b) (pp2), and all the NASA grants paid

to Evans and Thouret were multiple year grants, two

of which did not expire at the time of his layoff.

The respondent did not provide any federal law

or regulation to support the rule used in the decision.

It only argued in its Brief:

“MIT established that the CFR provision and the

OMB Circular did not apply to Professor Newell’s

grants because MIT was a party to the Federal

Demonstration Project (the “FDP”), whose rules

supplant the authorities on which Mr. Zhu relies

and do not require NASA’s approval to remove or

replace a ‘key person’ on any grant” (MIT’ Brief,

pp38)

In Footnote 13 (MIT Brief, pp39), the respondent

explained:

“(tlhe FDP’s General Terms and Conditions,

states that ‘codified Federal Regulations, OMB

Circulars, such as A‘21 and A°‘110, and other

uncodified Federal policy or procedural

requirements apply to this award onlvy as specified

in these general terms and conditions, the agency

specific requirement, or a special condition of the

award.”

When leaving the first question unanswered,

the respondent raised the second question present in

the Petition: Should Federal Regulation 14CFR1260

be ignored by a party of Federal Demonstration

Partnership in administration of NASA research

grants? Zhu argued in his Reply Brief (Zhu’s Reply

Brief, pp 13):

“It is wrong for the defendant to say that

14CFR1260 did not apply to Newell’s grants

because MIT was a party to the Federal

Demonstration Partnership (FDP) (Br. MIT/38).

The application of 14CFR1260 for NASA grants is

specified by the General Terms and Conditions of

FDP (referred to the FDP Terms) in 41(a)- 41(c)

(pp24 or A(I)/129). It is said clearly in 4 1(c): “The

requirenents of this award identified in

subparagraph a of this Article are the entire body

of requirements of this award”. The FDP Terms is

only one of the four requirements specified in

{1(a). Furthermore, the FDP Terms states in 41(b)

that if the requirements of this award conflict, all

the other three requirements including Federal

Statute are over the FDP Terms. The Federal

statute requires the application of 14CFR1260 for

the NASA grants as stated in my Brief (5). Since

the Federal statute, and so 14CFR1260, are over

the FDP Terms if in conflicts, the prior written

approval for changing key person required by

14CFR1260.125 was not waived.”

The appeal of Zhu was dismissed for the reason

(App. III, pp36):

“Although Zhu challenges these rulings on appeal,

we conclude that there is nothing in his brief or his

oral argument before us that warrants any

discussion beyond stating that for the reasons set

out in the judge’s memoranda, we see no error in

either of the judge’s rulings.”

In the “Memorandum in Support of Application

for Further Appellate Review” submitted timely to

the Supreme Judicial Court of Massachusetts, Yong

Zhu illustrated again:

“The defendant did not provide any regulations or

laws to confirm that the carryover of NASA

multiple year grant to the next year was not

allowed. In the Oral Argument held in the Appeals

Court on June 7 2007, the defendant admitted

that there were no such federal laws or

regulations.”

Zhu also asked the question: “Where are the Federal

laws or regulations that do not allow the carryover of

multiple year NASA grant to the next year?” Again,

the respondent could not answer this question in its

“Defendant-Appellee’s Opposition to Application for

Further Appellate Review”, and did not deny the fact

that it had admitted no such federal laws or

regulations. It only argued:

“It was uncontroverted that Newell was required

to report to NASA if he had not spent all the funds

NADA had allocated for a particular year, with the

usual consequence that the funding for the next

vear would be reduced by the amount.”

The respondent did not provide any source of the laws

or regulations “that the funding for the next year

would be reduced by the amount.” It was already

stated by Zhu (Zhu’s Reply Brief, pp12):

“Moreover, the defendant could not provide any

law or regulation to support its false statement:

‘The next incremental funding will be reduced by

any funds remaining in the account balance’ (Br.

MIT/33) in a multiple year grant. Federal

Regulation 14CFR1260.13(a)(2)(ii) (pp23) states

clearly that NASA does not ask for a new budget

each period in a multiple year grant since the

periods approved are not considered as new

awards.”

Zhu's Application for Further Appellate Review

was denied by Massachusetts Supreme Judicial

Court on November 29 2007 (App.IV, pp37). Zhu’s

petition for reconsideration was also denied on

January 31 2008 (App.V, pp38).

REASONS FOR GRANTING THE PETITION

I. THE “RULE” USED IN THE DICISION BELOW

IS NOT SUPPORTED BY FEDERAL LAW

The rule used and the decision produced by the

state court are:

“The rule regarding NASA funding was such that

funds were not given directly to any individual,

and also could not be stockpiled.” (App.I, pp23)

“It is absolutely uncontroverted that Newell

could not ‘stockpile’ research funds and carry them

over from one year to the next. Therefore, the fact

that Newell paid non-Chinese scientist with

research funds in 1999 and 2000 is unrelated to

the lack of funding with which to pay Zhu 2001.”

(App.I, pp33)

The NASA grants, which were used by MIT to pay for

the additional persons, are multiple year grants. For

example, the documents submitted by the respondent

to the Superior Court include the cover page of NASA

Grant NAG-1-2173, which shows that the grant is a

multiple year grant covering the period from March 1

1999 to February 28 2002 (Items 3 and 4 in the cover

page, App.VII, pp42). The box of “multiple year’

below Item 14 is also checked. Federal Regulation

14CFR1260.26(b) (pp2) states:

“Unless otherwise directed by the Grant Officer,

an unexpended balance of funds which remains at

the end of any funding period, except the final

funding period of the grant, shall be carried over

to the next funding period, and may be used to

defray costs of any funding period of the grant.

This includes allowing the carry over of funds to

the second and subsequent years of a multiple

vear grant.”

So, the rule used in the decision below conflicts with

this regulation. Moreover, the four MIT letters asking

for advance of grant in the amount of $186,132.20,

dated on August 23, September 3, October 4 and

November 3 respectively in 1999, showed that the

group had run out the fund ahead of schedule, and so

had no funds subject to stockpile that time. The

respondent could not deny this fact at the courts

below.

The respondent’s argument “the funding for the

next year would be reduced by the amount” 1s also

false according to 14CFR1260.13(a)(2)(ii) (pp2), which

reads:

“Periods approved under the Multiple Year Grant

or Cooperative Agreement special condition at

§1260.52, and funded at the level specified in the

special condition, are not considered to be new

awards. Therefore, new proposals, new

proposal-related certifications (such as Disclosure

of Lobbying Activities, and Debarment and

Suspension), new technical evaluations, and new

budget proposals are not required, as long as this

information for the multiple year period was

reviewed and approved as part of the original

propcsal.”

The respondent claimed that 14CFR1260 could

not be applied to the NASA grants, since MIT was a

party to the Federal Demonstration Partnership

(FDP). While, the respondent could not prove that the

rule used in the decision below was supported by the

General Terms and Conditions of FDP or any other

federal laws. Whether the NASA grants were subject

to 14CFR1260 or not, use of the rule created by judge

himself in court is unconstitutional for the violation

of Section 1, Article I in the Constitution of the

United States (pp4), and violation of Article XXX in

the Constitution of the Commonwealth of

Massachusetts (pp4).

Il. FEDERAL REGULATION 14CFR1260 CANNOT

BE IGNORED BY A PARTY OF FEDERAL

DEMONSTRATION PARTNERSHIP

MIT argued that the prior written approval for

changing key person in the NASA project was waived

for the member of Federal Demonstration

Partnership (FDP). But, Article 1 of the General

Terms and Conditions of FDP (App.VI, pp39) state:

“a. The recipient institution (recipient) has full

responsibility for the condition of the project or

activity supported by this award, in accordance

with the requirements of this award, and for the

results. The requirements of this award are

contained in:

(1) The Federal Statute that authorized this

award;

(2) The general terms and conditions;

(3) The supplemental agency-specific

requirements of the awarding agency that

are incorporated in the Demonstration

Agreement (hereafter referred to as

agency-specific requirements); and

(4) Any special conditions attached to this

award.

b. If the requirements of this award conflict, the

following order of precedence shall apply:

(1) The Federal Statute that authorized this

award;

(2) Any special conditions attached to this

award.

(3) The agency-specific requirements; and

(4) These general terms and conditions.”

A FDP award requires not only the General Terms

and Conditions of FDP, but also the Federal Statute,

agency-specific requirements and the _ special

conditions attached to the award. The Federal

Statute, agency-specific requirements and the special

conditions are all above the General Terms and

Conditions of FDP if in conflict. All the NASA

Research Grants or Cooperative Agreements in which

Zhu was named as a key person claimed particularly

in Item 14 (e.g. App.VII, some in Item 13) the specific

requirement:

“This Grant is awarded under the authority of 42

U.S.C. 2473(c)(5) and is subject to all applicable

laws and regulations of the United States in

effect on the date this Grant is awarded,

including but not limited to 14 CFR part 1260

(Grant and Cooperative Agreements).”

Since the specific requirements is above the General

Terms and Conditions of FDP, the NASA grants were

nevertheless subject to 14CFR1260, and so the prior

written approval for changing key person required by

14CFR1260.125(c) was not waived for these NASA

grants. In the quotation cited by the respondeni: itself

(MIT Brief, pp39):

the FDP’s General Terms and Conditions,

states that ‘codified Federal Regulations, OMB

Circulars, such as A°21 and A-110, and other

uncodified Federal policy or procedural

requirements apply to this award only as specified

in these general terms and conditions, the agency

specific requirement, or a special condition of the

award.”

the application of codified Federal Regulation

14CFR1260 for NASA grants as required by agency

specific requirement is also made clear. To ignore

Federal Regulation 14CFR1260 in the court decision

below conflicts with the agency specific requirement

and FDP General Terms and Conditions.

The respondent claimed in its Brief (pp38) that

Zhu did not submit anything to the Superior Court to

suggest the application of 14CFR1260 for the NASA

grants received by FDP member. Zhu explained:

“MIT provided the fact that it joined FDP in 1996

in ‘REPLY IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT’ (A(D/103) after I filed

the Opposition to MIT’s Motion for Summary

Judgment. Mr. Fitzgerald made his affidavit

earlier too (A(III)/322). But, he saved this fact

until the last minute to make me no chance for

response in the lower court when the summery

judgment was allowed.”

As a matter of fact, the full version of General Terms

and Conditions of FDP and the grant cover page with

the specific requirement of conforming to 14CFR1260

(e.g. App.VII, pp42) are all submitted by the

respondent to the Superior Court at the last minute.

Zhu did not add any new fact but only corrected the

respondent according to the rules and facts submitted

and accepted already.

Ill. THESE QUESTIONS RAISE AN IMPORTANT

ISSU EDE W.

The questions presented in this Petition present

an important issue related to federal laws and FDP

General Terms and Conditions, which should be

settled by the Supreme Court. Today, millions

scientists are working for the research projects of

federal agencies, and almost all the academic

institutes and federal agencies that may issue a

research grant are involved in FDP. To ensure the

quality of research work, the backgrounds and

qualifications of key persons named in the project

budget must be inspected carefully by more than one

technical officers in federal agencies (e.g. NASA,

14CFR1260). Thus, the biographic information of Zhu,

such as the Curriculum Vitae and publication list,

were attached to the grant application, when he was

named in the budget. [f a key person was replaced

without notifying the sponsor, the sponsor would

have no chance to inspect the academic background of

the new person.

In the current case, the two persons, who

replaced Zhu in several NASA projects, were the

first-year new Ph.Ds and did not have the work

experiences on NASA projects before. They both had

no the backgrounds required by the projects for

providing meteorological services. No any document

offered by the respondent showed that NASA checked

their academic backgrounds when they replaced Zhu.

Since they were unsuitable for the projects, all the

proposals for research grants based on their work

were rejected afterwards. Therefore, it was required

specially by NASA for the institute to comply with

14CFR1260, although it had joined FDP that time.

CONCLUSION

To find whether or not the rule used for the

decision below is supported by any federal law, and

whether or not the NASA grants discussed are

subject to 14CFR1260, the petition for a writ of

certiorari should be granted in order to settle down

the important issue by the Supreme Court.

APPENDIX I

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

CIVIL ACTION

NO. 2004-0027-B

YONG ZHU

vs.

MASSACHUSETTS INSTITUTE OF

TECHNOLOGY

MEMORANDUM OF DECISION AND ORDER ON

THE DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT

INTRODUCTION

This action arises out of a claim of employment

discrimination made by the plaintiff, Yong Zhu (“Zhu”)

against the defendant, the Massachusetts Institute of

Technology (‘MIT’). Zhu claims that MIT

discriminated against him because of his national

origin specifically because Zhu is Chinese, in the

course of his employment and wrongfully terminated

him. The matter is currently before the Court on the

defendant MIT’s Motion for Summary Judgment. For

the following reasons, MIT’s Motion for Summary

Judgment is ALLOWED.

BACKGROUND

The following facts are those which are relevant

and either undisputed or taken in the light most

favorable to the plaintiff. Zhu is a Chinese-born

individual who studied meteorological and

atmospheric sciences for many years at universities

in China and Great Britain. He worked on a Ph.D. in

meteorology at the University of Edinburgh for five

years, but did not complete the program and was not

awarded the degree. Zhu began working as a

Technical Assistant at MIT in March 1992. He

worked as a visiting scientist in October 1992, then

was hired as a research scientist by Professor

Reginald Newell (“Newell”), in December 1995.

Newell was a Ph.D. faculty member of MIT'S

Department of Earth, Atmospheric and Planetary

Sciences (“EAPS”) who had been working at MIT

since 1962. Zhu worked for Newell on projects that

were funded largely by grants from the National

Science Foundation (“NSF”) and the National

Aeronautics and Space Administration (“NASA”).

Newell additionally helped Zhu obtain visas to

remain in the United States, and loaned Zhu money

from Newell's personal funds when Zhu was working

unpaid by MIT awaiting his visa.

At the time Zhu was hired as a research

assistant, his employment was contingent upon

funding from. these sources. Zhu was in some

instances named in applications for NSF and NASA

grants as one of the individuals who would be

working on the project for which the funds were being

requested; however, the grants were always given to

the institution generally and never to individuals,

including Zhu. Zhu produced a large number of data

memoranda for Newell’s projects, wrote numerous

articles, and published two books in his field during

his tenure at MIT.

Between 1992 and his death in 2002, Newell had

several other students and assistants working with

him on his projects, including Zhong-Xiang Wu, «

Chinese-born graduate student; Wenjie Hu,

Chinese-born graduate student:.John Cho (“Cho”), :

Japanese*born graduate student; Zhenzhong Jing, :

Chinese-born graduate student; Yuanlong Hu,

Chinese-born graduate student; Ka-Se Lam, a

Chinese visiting scientist; Patrick Stoller, an

American-born graduate student; French scientist

Valerie Thouret; American-born undergraduate

student Christopher Chay Casso; and English

scientist Matthew Evans. Under Newell's tutelage,

Zhong’Xiang Wu and Yuanlong Hu both received

their Ph.D. degrees.

During the 1990s, Zhu had two notable incidents

involving his colleagues. In June 1999, Zhu loudly

and publicly chastised Newell's student, Christopher

Chay Casso. Newell informed Zhu that this display

had upset the student and that such behavior was

inappropriate. Newell threatened to fire Zhu at this

time, and Zhu subsequently complained to a

Personnel Officer in the EAPS Department about

Newell's threat, although it appears no action was

taken with regard to Zhu’s complaint At a conference

which Zhu attended on behalf of MIT, Zhu gave a

presentation at Newell’s request. Following the

presentation, a scientist in the audience asked Zhu a

question about the presentation; Zhu made a verbal

response, slammed his microphone down on the table,

and left the speaking area. After this incident, Newell

no longer invited Zhu to attend conferences on behalf

of MIT.

Newell traditionally held weekly lunch meetings

with his research team, and also routinely hosted

sending-off parties for anyone who worked for Newell

who was leaving the team. Zhu admits that he

initially attended the weekly meetings and that

Newell’s other Chinese-born researchers attended

these meetings as well. Zhu contends that beginning

in late 1999, Newell failed to invite Zhu and the other

Chinese researchers to these weekly lunch meetings.

Newell does not dispute that he no longer invited Zhu,

but that he did so because of-increasing tension

between Zhu and other members of the research team.

MIT offers the affidavits of numerous members of the

research team who attest to the increased friction.

Other Chinese researchers from Newell's team also

attest that Zhu is mistaken and that Newell did

continue to invite them to the weekly lunch meetings.

Newell does not dispute that he failed to hold a

going’away party for Zhu, but again attests that he

did so because of the tension in the group and the

acrimonious circumstances under which Zhu was

leaving.

Zhu argues that between 1995 and 2001, Chinese

researchers were not allowed to park in the garage

nearest their work area, but that Cho and other

non’Chinese employees were allowed to park there.

Again, the other Chinese researchers dispute Zhu’'s

claims. Zhu complained of the parking policies, and

was called a troubleemaker by an unidentified

professor.

Newell was the sole administrator of the NASA

grants for his projects. Zhu was at no time involved

with drafting proposals or disbursing grant funds for

the NASA projects. The rules regarding NASA

funding was such that funds were not given directly

to any individual, and also could not be stockpiled. In

November2000, NASA unexpectedly announced that

it would not fund the third and final year for one of

Newell’s research grant on which Zhu had been

working. Newell and MIT had been expecting to

receive over $200,000 from NASA for the project for

that year.

Subsequent to that, in March 2001, Newell

suffered a stroke while working overseas on a NASA

project. Newell was unable to return to work for some

time while he was recovering: when Newell did

return to MIT, it was in a limited capacity.

Consequently, Newell’s ability to apply for NASA

funding was also limited. In May 2001, two of

Newell’s additional grant proposals were rejected by

NASA, and in_ September 2001, Newell's

administrative assistant informed him that he would

not have enough funding to continue to support his

research projects at the current levels. At that time,

Newell was working on two remaining research

projects and had only two employees doing research

for him: Zhu and Cho. Newell was unable, due to

funding shortfalls, to retain both Zhu and Cho.

Cho had been awarded his B.S. and M.S. degrees

in electrical engineering from Stanford University,

and his Ph.D. in electrical engineering from Cornell

University. Cho then worked as a staff scientist for

four years at Arecibo Observatory, National

Atronomy and Ionosphere Center in Puerto Rico. Zhu

had been awarded only his B.S. degree from Nanjing

Meteorological Institute in China and no further

degrees, although Zhu did teach meteorology at the

Civil Flying Professional Institute of China’ was a

visiting scholar at Reading University in England:

worked on his Ph.D. for five years at the University of

Edinburgh; and produced several publications. Cho

and Zhu had both worked on Newell’s projects for

several years, although Zhu had been involved with

Newell's projects longer. Cho wrote several papers

which were published, including some in the area of

Newell’s research. In total, Cho published thirty-one

papers in highly regarded journals and was lead

author on fifteen of those papers. Zhu had published

sixteen papers in highly regarded journals, and was

first author on four. Zhu had published seventeen

additional papers in Chinese journals under another

name. Cho taught graduate and undergraduate

courses for Newell’s students and took over one of

Newell’s classes while Newell was recovering from

his-stroke. Zhu was not involved with teaching at

MIT.

Newell decided that Cho was more qualified to

continue working on Newell's proiects and that Zhu

would be laid off. Newell broached the idea to his

supervisor, who then asked the EAPS Personnel

Administrator, Michael Richard (“Richard”) to

effectuate the layoff. Richard provided Zhu with

fourteen weeks’ layoff notice, and Zhu's layoff was

subsequently extended by one week. Richard also

confirmed with the EAPS Financial Administrator

that the lack of adequate grant funds for Newell’s

research projects was a legitimate financial basis for

Zhu’s layoff. Richard consulted with a Human

Resources Officer at MIT, who approved Zhu’s iayoff.

Richard then discussed Zhu's layoff with the

Assistant to the Dean for Personnel for MIT’s School

of Science, who approved the layoff. Richard sent Zhu

a letter dated July 9, 2001, informing Zhu that

decline in research funding was forcing MIT to lay

Zhu off effective October 16, 2001. The letter also

contained the name of a Human Resources Officer

and a Department Administrator with whom Zhu

could speak if he had further questions; Zhu did not

approach either of these individuals, nor did he

complain to anyone else at MIT about his dismissal.

Newell’s supervisor met with Zhu following the

notice to Zhu of his layoff, and offered that MIT would

provide financial and other assistance to Zhu,

including letters of reference, to assist Zhu in looking

for a new job. Zhu did not ask for this assistance until

October 12, 2001. Newell wrote a letter of reference

for Zhu dated October 17, 2001. Zhu contends that

the letter was too short and uninformative to be of

any use in finding a new position.

Zhu’s final day of employment at MIT was

October 23, 2001. Zhu was found cleaning out his

office on the following day, and Newell asked Zhu to

leave. Yuanlong Hu and Cho heard shouting and

believed that there was a disturbance. Yuanlong Hu

in fact believed that Newell was in danger an

altercation ensued and Newell fled the area. MIT

campus police were summoned and after interviewing

witnesses, informed Zhu that he needed to leave.

After Zhu packed the remainder of his things, the

MIT campus police escorted him from the building.

Newell feared that his health had been jeopardized by

the incident, and other members of his team were

concerned. In response to these concerns, Newell’s

supervisor barred Zhu from having access to the MIT

campus. Zhu then complained that he was unable to

access his email account through MIT’; Zhu’s email

account was reinstated within days of his complaint.

Following Zhu’s departure from MIT, Newell was

still employing Cho and had Yuanlong Hu working as

an unpaid student, Cho began. to seek other

empioyment in June 2001, due to the precarious

funding situation, and transferred to a different

department at MIT less than six months after Zhu’s

departure. YuanlongHu, after completing his Ph.D.

and after Newell’s death, continued working on

Newell’s research. Yuanlong Hu left MIT in

December 2003 to accept a position as a Postdoctoral

Fellow at the Georgia Institute of Technology.

On December 18, 2001, Zhu filed a complaint

against MIT with the Massachusetts Commission

Against Discrimination (“MCAD”), alleging

employment discrimination and wrongful

termination. In November 2002, MCAD issued a

determination of Lack of Probable Cause and

dismissed the complaint, which finding was affizmed

on MCAD appeal. Newell gave sworn statements for

the MCAD investigation prior to his death. Zhu

subsequently filed the instant. lawsuit on January 5,

2004, alleging a single count of employment

discrimination in violation of G.L.c.151B. Zhu claims

that Newell treated him differently and unfairly

because Zhu is Chinese, and that Newell fired Zhu

because Zhu is Chinese. Zhu further alleges that

Newell mis-spent NASA funds intentionally on

non-Chinese scientists to refrain from using the

funds to pay Zhu or other Chinese scientists.

Zhong-Xiang Wu, Wenjie Hu, and Yuanlong Hu, all of

whom were Chinese researchers working with Newell,

attest that they were never treated differently or

unfairly by Newell.

Zhu claims that Newell said to Zhu that Newell

could not understand Chinese students and did not

want to have more Chinese working for him; that

Newell did not know what to say for a reference letter

that Wenjie Hu requested Newell write: and that

Newell had asked Zhu not to refer in Zhu’s papers to

papers previously published in Chinese journals.

Despite these allegations, Zhu did not complain to

anyone at MIT’ about Newell or Zhu’s working

conditions, with two exceptions: Zhu did complain

about the parking policy, and Zhu complained when

Newell threatened to fire him after the incident with

an undergraduate student.

MIT filed its Motion for Summary Judgment on

December 1,2005. Included in this filing was Zhu’s

Opposition to MIT’s Motion, with a-lengthy affidavit

made by Zhu in October 2005. MIT included in its

summary judgment filing a Motioa to Strike Zhu’s

affidavit, and Zhu’s Opposition to that Motion. This

Court (Houston, J.) allowed MIT’s Motion to Strike

and consequently is disregarding portions of that

affidavit for purposes of this Motion.! This Court

conducted a nonevidentiary hearing on MIT’s Motion

to Dismiss on February 9, 2006.

DISCUSSION

A Standard of Review.

Summary judgment shall be granted where there

are no genuine issues as to any material fact and

where the moving party is entitled to judgment as a

matter of law. Mass. R. Civ. P. 56(c); Cassesso v.

Comm’r of Corr., 390 Mass. 419,422. (1983); Cmtv.

Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976) The

moving party bears the burden of affirmatively

demonstrating the absence of a triable issue, and that

the summary judgment record entitles the moving

party to judgment as a matter of law. Pederson v.

Time, Inc., 404 Mass. 14, 16-17(1989). The moving

party may satisfy this burden either by submitting

affirmative evidence that negates an_ essential

element of the opposing party's case or by

demonstrating that the opposing party has no

reasonable expectation of proving an _ essential

element of his case at trial Flesner v Technical

Communications Corp, 410 Mass 805,809 (1991),

Kourouvacilis v Gen. Motors Corp., 410 Mass

| For a thorough discussion of what portions of Zhu’s affidavit

have been stricken and the reasons therefore, please refer to this

Court's Memorandum of Decision and Order on Defendant’s

Motion to Strike Affidavit of-Plaintiff Yong Zhu, Entered March

30, 2006.

706,716(1991) The Court is required to view the

evidence in a light most favorable to the non-moving

party. Foley v. Matulewitz, 17 Mass. App. Ct. 1004,

1005 (1984).

In employment discrimination claims involving

disparate treatment, summary judgment is

disfavored “because the question of the employer's

state of mind (discriminatory motive) is ‘elusive and

rarely is established by other than circumstantial

evidence” Suilivan v. Liberty Mut.Ins.Co., 444 Mass.

34,38 (2005) (quoting Blare_v. Husky Injection

Molding Svs., 419 Mass. 437,439 (1995)). Although

summary judgment is generally not an appropriate

mean:s of resolving employment discrimination cases,

summary judgment will be granted in favor of the

defendant employer where “the plaintiff is unable to

offer admissible evidence of the defendant’s

discriminatory intent, motive, or state of mind

sufficient to carry the plaintiffs burdens and support

a judgment in the plaintiffs favor.” Id. at 39.

IT. Analysis.

In order to prevail in an employment

discrimination action, a _ plaintiff must prove

membership in a _ protected class, harm,

discriminatory animus and causation. Id.; Lipchitz v

Ravtheon Co., 434 Mass. 493, 502(2001). Oftentimes,

there is no direct evidence of discriminatory animus

or causation, and the plaintiff may then rely upon

indirect or circumstantial evidence to prove these

elements. Sullivan, 444 Mass. at 39. In these cases,

Massachusetts courts follow a three-stage burden

shifting test first set forth by the United States

Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-805 (1973). See also Wheelock Coil.

v. Mass. Comm’n Against Discrimination, 371 Mass.

130, 134-136 (1976).

In the first stage, the plaintiff has the burden of

coming forward with evidence to make out a prima

facie case of employment discrimination. Abramian v.

President & Fellows of Harvard Coll., 432 Mass. 107,

116 (2000). The burden then shifts to the employer to

rebut the presumption of discrimination by

“articulating a lawful reason or reasons for its

employment decision and producing credible evidence

to show that the reason or reasons advanced were the

real reasons.” Sullivan, 444 Mass. at 50 (quoting

Abramian, 432 Mass. at 116). If the employer is able

to meet its burden, the presumption disappears and

the plaintiff must then demonstrate that the reasons

advanced by the employer are pretext for

discrimination. Id. at 54-55.

(a) Prima Facie Case of Discrimination.

In the instant case, Zhu bears the burden of

“establishing by the preponderance of the evidence a

prima facie case of discrimination.” Id. at 40. His

burden is not an onerous one, and is intended to be a

“small showing” that is “easily madel[.]” Id. at 45

(quoting Che v. Mass. Bay Transp. Auth., 342 F.3d 31,

38 (Ist Cir 2003)). In Sullivan, the Supreme Judicial

Court held that in cases that involve a reduction in

workforce, such as this one, the plaintiff may

establish a prima facie case by producing evidence

that he is a member of a protected class, that he

performed his job in an acceptable manner, that he

was terminated, and that his termination occurred in

circumstances that raise an inference of unlawful

discrimination. Id.

First, Zhu is clearly a member of a protected

class, as he is a Chinese national who was terminated

while a naturalized United States citizen, Cho, was

retained. Second, Zhu generally performed his job at

an acceptable level — during his tenure at MIT, he

co-authored numerous articles, participated in NASA

missions, and attended academic conferences as a

representative of MIT. However, despite his generally

acceptable performance levels, Zhu was involved in

several confrontational incidents with students and

colleagues during his time at MIT.

Third, Zhu must show that his termination took

place in circumstances that raise a reasonable

inference of impermissible discrimination, This factor

is more: difficult for Zhu to prove, since Cho, who is a

United States citizen of Japanese origin, holds a Ph.D.

from an esteemed university, while Zhu never earned

his doctoral degree. Cho had also published more

articles as the lead author in respected journals than

Zhu had, and had concentrated his research on areas

relevant to Newell’s own research projects. It is

difficult to infer discrimination from — these

circumstances, as Cho is, in many material respects,

more qualified than Zhu. However, given the

persistent pattern of discrimination against Chinese

nationals that Zhu alleges, and in light of the “small

showing” required to establish a prima facie case of

employment discrimination, the Court will assume

for the moment that Zhu has met his initial burden.

(b) Defendants’ Reasons for Termination.

Once the plaintiff has made out a prima facie

case of employment discrimination, the burden shifts

to the defendant to articulate a_ legitimate,

non‘discriminatory mason for the employment

decision. MIT “need not prove that the reasons were

non-discriminatory,” as its burden in the second stage

of the McDonnell-Douglas framework is one of

production and not persuasion. Id. (quoting

Abramian, 432 Mass. at 116). Although MIT’s burden

is one of production rather than persuasion, MIT

“nevertheless retains an incentive to persuade the

trier of fact that the employment decision was

lawful.” Id. (quoting Texas Dep’t Of Cmty. Affairs v.

Burdine, 450 U.S. 248, 258 (1981)).

Here, MIT clearly meets its burden. The

legitimate reason it offers for Zhu’s discharge is a

lack of funding from research grants following

Newell’s stroke. It is undisputed that Newell lacked

funds to pay both Zhu and Cho, that Newell was

unable to apply for additional research grants due to

his failing health, and that he chose to terminate Zhu

and retain Cho. The justification for this choice is

obvious and well supported— as noted above, Cho's

academic credentials were superior to Zhu’s. In

addition, Zhu had been involved in a confrontation

with a student and had behaved inappropriately at

an academic conference. Zhus, MIT’s proffered

justification for its employment decision is persuasive

and credible.

(c) Defendant’s Reasons as Pretexts for

Discrimination.

Because MIT has articulated legitimate,

non‘discriminatory reasons for its decision to

terminate Zhu’s employment, the burden shifts back

to Zhu to show that those reasons are mere pretexts

to disguise discrimination. Id. at 55 (citing Lewis v

Boston 321 F 3d 207, 214 (1st Cir 2003)). One way

that Zhu may meet this burden is to show that the

reasons articulated by MIT for the employment

decision are not true. Id. (quoting Abramian, 432

Mass. at 117).

Zhu is clearly unable to carry his burden at this

stage, as he fails to offer any credible evidence that

MIT’s proffered reasons for his termination are

pretextual and that he was actually fired because he

is a Chinese national. Zhu does not dispute that

Newell lacked funding to retain both Zhu and Cho,

and makes only a weak attempt to claim that he and

Cho were equally qualified to continue Newell's

research. Instead, his pretext argument centers on

Newell’s use of research funds in 1999 and 2000 to

pay two European scientists to work on the same

research projects as Zhu. According to his theory,

Newell purposefully depleted research funds in 1999

and 2000 in order to justify Zhu’s termination in 2001.

However, this argument fails on its face. It is

absolutely uncontroverted that Newell could not

“stockpile” research funds and carry them over from

one year to the next. Therefore, the fact that Newell

paid non-Chinese scientists with research funds in

1999 and 2000 is unrelated to the lack of funding

with which to pay Zhu in 2001.

Zhu offers no other admissible evidence that MIT

actually terminated him because he is Chinese;

rather, he offers an extensive list of various

complaints about working conditions, none of which

establish that MIT’s proffered reasons for his

termination are pretextual. In addition, despite Zhu’s

assertions to the contrary, the other Chinese

scientists who worked with Newell have stated that

in their experience, he harbored no animus towards

Chinese nationals and that, in fact, he helped them to

advance their careers.

Zhu is unable, as a matter of law, to show that

MIT acted with discriminatory intent, motive, or

animus in terminating him and retaining Cho or that

any such animus was “a material and important

ingredient in the discharge.” Id. at 57. For this reason,

and because there are no outstanding issues of

material fact, summary judgment must isste in favor

of MIT.

ORDER

For the foregoing reasons, the defendant MIT's

Motion for Summary judgment is ALLOWED.

Julian T. Houston

Justice of the Superior Court

DATED: March 31, 2006

APPENDIX II

Commonwealth of Massachusetts

County of Middlesex

Superior Court

CIVIL DOCKET# MICV2004-00027

Young Zhu

Plaintiff(s)

vs.

Massachusetts Institute Of Technology

Defendant(s)

SUMMARY JUDGMENT M.R.C.P.56

This action came on to be heard before the Court,

Julian 1. Houston, Justice, presiding, upon motion of

the defendant(s), Massachusetts Institute Of

Technology, for Summary Judgment pursuant to

Mass R Civ P. 56 -the parties having been heard: and

the Court having considered the pleadings:

depositions-answers to interrogatories’ admissions:

and affidavits, finds there is no genuine issue as to

material fact and that the defendant is entitled to a

judgment as a matter of law,

It is ORDERED and ADJUDGED:

That the Complaint of the Plaintiff (s), Young

Zhu be and hereby is DISMISSED against the

Defendant (s), Massachusetts institute Of Technology,

with costs. Dated at Cambridge, Massachusetts this

5th day of April, 2006

Assistant Clerk

Entered: 04/05/2006

copies mailed 04/05/2006

35

APPENDIX Ill

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

06-P-1214

YONG ZHU

VS.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY.

MEMORANDUM AND ORDER PURSUANT TO

RULE 1:28

After the plaintiff (Zhu) was laid off by the

defendant (MIT) from his position as a research

scientist for cited and explained budgetary reasons,

he brought a complaint in Superior Court against

MIT in which he alleged discrimination based on his

national origin. See G. L. c. 151B, § 4. A judge allowed

MIT’s motions to strike Zhu’s affidavit and for

summary judgment, explaining in_ written

memoranda his reasons for his rulings. (A [:205-213

& 214-226) Although Zhu challenges these rulings on

appeal, we conclude that there is nothing in his brief

or his oral argument before us that warrants any

discussion beyond stating that for the reasons set out

in the judge’s memoranda, we see no error in either of

the judge’s rulings

Judgment affirmed.

By the Court (Perretta, Dreben & Graham JJ),

Pas At

Fi 2 Asse cl

Entered: September 25, 2007.

APPENDIX IV

Supreme Judicial Court for the Commonwealth of

Massachusetts

John Adams Courthouse

One Pemberton Square, Suite 1400, Boston,

Massachusetts 02108-1724

Telephone 617-557-1020, Fax 617-557-1145

Young Zhu

175 Linden Ave, #1

Maiden, MA 02148

RE:Docket No. FAR- 16538

YONG ZHU

VS

MASSACHUSETTS INSTITUTE OF

TECHNOLOGY

Middlesex Superior Court No. MICV2004-00027

A.C. No. 2006-P-1214

NOTICE OF DENIAL OF F.A.R.

APPLICATION

Please take note that on _ 11/29/07, the

above-captioned Application for Further Appellate

Review was denied.

Susan Mellen, Clerk

Dated: November 29, 2007

To: Young Zhu

Sandra Sue McQuay, Esquire

APPENDIX V

Supreme Judicial Court for the Commonwealth of

Massachusetts

John Adams Courthouse

One Pemberton Square Suite 1400 Boston

Massachusetts 02108 1724

Telephone 61 7-557-1020, Fax 617-557-1145

TO: Young Zhu

175 Linden Aye, #1

Maiden, MA 02148

RE: No. FAR-16538

YONG ZHU

vs

MASSACHUSETTS INSTITUTE OF

TECHNOLOGY

NOTICE OF DOCKET ENTRY

Please take note that on January 31, 2008, the

following entry was made on the docket of the

above-referenced case:

DENIAL of petition to reconsider denial of FAR

application.

Susan Mellen, Clerk

Dated January 31, 2008

To: Young Zhu

Sandra Sue McQuay Esquire

APPENDIX VI

Federal Demonstration Partnership (FDP) General

Terms and Conditions

Phase II]

1 July 1996

Article Subject

1. Recipient Responsibilities and Federal

Requirements

Allowable Costs and Prior Approvals

Programs of Related Projects

Payment.

Significant Project Changes

Non-Competitive or Continuation Award

Requirements

Financial Reports

Final Report Requirements

Dissemination of Project Results

Acknowledgment of Support and Disclaimer

Data Collection

Site Visits

Pre-award Costs

Extensions Without Additional Funds

Equipment and Real Property

Alteration and Renovation

Use Of U.S.-Flag Air Carriers

Financial Management System

Procurement System

Program Income

Unobligated Balances and Limit of Federal

Liability

wn

Do

22. Patents and Inventions

Audits and Records

24. Termination and Enforcement

25. Nationai Security

26. Nondiscrimination

28. Research Involving Recombinant DNA

Molecules

29. Clean Air and Water

30. Human Subjects

31. Activities Abroad

32. Debarred or Suspended Parties

33. Cleseout

34. Rights In Data

1. Recipient Responsibilities and Federal

Requirements

a. The recipient institution (recipient) has full

responsibility for the conduct of the project or

activity supported by this award, in accordance

with the requirements of this award, and for the

results. The requirements of this award are

contained in:

(1) The Federal statute that authorized this

award,

(2) These general terms and conditions;

(3) The supplemental agency-specific

requirements of the awarding agency that

are incorporated in the Demonstration

Agreement (hereafter referred to as

agency-specific requirements); and

(4) Any special conditions attached to this

award.

b. If the requirements of this award conflict, the

following order of precedence shall apply:

(1) The Federal statute that authorized this

award;

(2) Any special conditions attached to this

award;

(3) The agency-specific requirements; and

(4) These general terms and conditions.

c. The requirements of this award identified in

subparagraph a of this Article are the entire body

of requirements of this award. Codified Federal

Regulations, OMB Circulars, such as A-21 and

A-110, and other uncodified Federal policy or

procedural requirements apply to this award only

as specified in these general terms and conditions,

the agency specific requirements, or a special

condition of this award.

d. Any request by the recipient for waiver or

deviation from any provision of either these

general terms and conditions or the agency

specific requirements shall be submitted to the

awarding agency's designated representative

identified on the signature page of the

Demonstration Agreement. Any request by the

recipient for a waiver or deviation from any

special condition attached to this award shall be

submitted to the cognizant awarding agency

official for this particular award (usually the

Grants Officer or Contracting Officer who signed

the award on behalf of the awarding agency).

Best Available Copy

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