on february the twentieth two thousand and nine when he spoke at a faculty meeting to indicate his strong belief that the faculty at the end it's in school should hire its first latino latino faculty member in its history there began an unbroken chain of hostility against him which led to the filing of accusations against him by dean moses and cher smith those accusations were based in large part as it subsequently came out on an absolutely false statement an absolutely false rendition of the comments that dr koori made we know that to be the case because those comments were taped and ultimately even dean moses was required to retaliatory matter because the jury found so found so now we get to the issue of whether or not he was fired her tell it or matter we start out with the notion that what he did was a firing offense or not contesting that what he is alleged to have done well what they found that he did but the privilege of tenure committee chairs that included right after hearing in which in which your claim on appeal was not that there was insufficient evidence for them to find that your claim in federal court i'm sorry gauge in the kind of conduct the engaged in didn't get fired i would want to distinguish in response to your question between a discrimination claim and a retaliation discrimination claim which we do not have here that are not argued about it's often thought necessary to  show that a similarly situated person was not treated the same way but in the retaliation claim that is not part of the difficulty is your client i assume for purposes record committed firing offen you're not claiming that these offenses are nothing kind of offenses for which people are not normally fired i would parse the two ways in which the court has has constructed its question i were not arguing on appeal that someone appropriately could be fired for doing the stores these kinds of ok right suffice to my problem is is your own broken chain argument does he even get immunity at the end of the day for things for which anybody else would be fired simply because there's evidence at the at the outset that they they took off after him for it and and that's question one question too because i see what you dress and together is given jury finding against your client and retaliatory investigation how do we know what the judge found if there was a question of fact on discrimination and in the investigation one scene we once a jury finds the investigation wasn't retaliatory how do we how does that how did how do we then have an unbroken chain of facts that's why we're so i think though we cannot justify the court's decision on summary judgment by wasn't a retaliatory investigation exactly so how then do we then have an unbroken chain of i understand that maybe the judge couldn't have known that at the time that he granted summary judgment on your retaliatory firing claim but now that you're stuck with that fact in this case if you're stuck with that finding of fact how do you not have an unbroken chain by argument there which i strongly believe was the correct argument is that the jury should never been faced with the scenario with which it was faced and it's hard to second guess the rationale for that jury decision as rejecting the idea that they was retaliation against so i gather your your position is that if the terminations issue if you've been able to present the terminations issue to the jury you would have tried a very different case so at least from your perspective you do  not attach any particular significance to the jury finding based on a record that from your point of view was incomplete precisely your honor in fact as the case proceeded  it seemed to me that the jury could not rule other than it did because wouldn't it be natural for a university when faced with accusations of misconduct to investigate those accusations right and that's all the jury was asked to decide but was there anything wrong with the university proceeding with the investigation given the allegations but not the facts who w precedent decisions and in moses accusingly in poland bill brooke and lakeside scott the party that engaged in the retaliatory terminations was the university of california right the route you  i'm trying to deal with the lives of your modest person i mean this case if you will it goes to the p n t committee you're not making any claim that that committee acted in a retaliatory way or you know but the claim is that the committees activities the hearing that it held was entirely based upon the actions of the two biased complainants right that i'm some trying to move backwards in this chain and figure out what your claim is your claim is that we had to biased complaint instead that made a claim to turns out least for present purposes to be true which is that your client did some things that are a firing offense i neutral tri heard that claim and made a determination of the should be fired and so my question is if assuming those are the facts does that mean there is does the retaliatory motive of the people who complained mean that he can't be disciplined for those for his activities you know again you're either i feel like we're starting at the wrong end of this conversation for purposes of both what occurred in this case but also the presidential decisions of this court the issue is whether the rich hell you tory alice possessed by moses myth and steward should be deemed to be the cause of the ultimate stealing because they hate it ok the district attorney investigates it in terms the black professor has been stealing he brings the charge a neutral jury finds that the plaque fashion has been stealing and he's punished and so the question is in my mind exactly the question you're posing how far down the line do we impose the retaliatory motives of those who complain when it turns out even though they're bad people what they're complaining about is true but i appreciate the hypothetical you are because the hypothetical you pose as applied to this case would be as though the k k k made the complaint decided to be the prosecutor was the was unfair the trial was unfair because it was permeated by the bias of the people who controlled it how can you say that there were the moses smith and stewart they were three of twenty who had no relationship to smith and stewart and moses so a good part of that hearing involved witnesses not the three individuals you but then a fide dealing with charges that were unrelated in any way to those three individuals so how can you make the claim that whatever bias those three individuals had so infected that process that the only decision was made was tainted by them again your honor i want to reiterate that the issue for the court and the issue for me is whether dr curry should be allowed to try his claim those facts some of which of identified many more of which the district court had done a five had no reasonable jury could find that the terminations decision was infected by the retaliatory anonymous of those three individuals isn't that what the district court found the district court made that decision and it did so in violation of this court's precedents particularly in poland and particularly in lakeside scott and the supreme court's decision in staff which all of which cold that where there is a discriminatory process and the defendant is unable to prove it again sta says the burden is on the defendant to prove that the ultimate result was not infected by the discrimination of the people who brought the charges now you mention kidder and just to be particular in response  question your honor the second complaint was brought by moses and kidder the first complaint was brought by moses and stewart they were not just two of the twenty eight witnesses moses testified not only of her own observations as a percent be a witness but of her investigation of these matters going back not only to the first charges but also lacing her testimony in descriptions with matters completely outside the record to the effect that dr corrie was a bad guy and had been involved in all sorts of unstated but implied lee awful behavior over the years so you know again i mean i think the case before you is a somewhat narrow one and is it poland or is it lakeside scott why isn't the supreme court's decision in nascar which is which indicated in the title it's a but for stand of the clause why isn't that the standard that we should be applied here i don't reject the idea that under the supreme court so decisions and under the ninth circuit's decision that it is plug for standard that had doctors who are in bed allowed to go to trial he would have had to prove to the jury that he would not have been terminated but for the retaliate story a other professors other people who do what he did weren't fired in their words if it strikes me as unfair and i'm saying this is a former region so i've got some background in this it's the kind of stuff people are firing all the time it seems to me so does he have to demonstrate in somehow punishment he's the punishment for his crimes was retaliation as opposed to simply that the prosecution of this offense was retaliation but i can answer twice twice to that question once on the record and second based on my own experience my own experience tells me that the university of california fires an infinitesimal number of tenure professors every year maybe one or two in the whole system but secondly that more the point because it's in the record is the chancellor white who essentially made the decision here based on the record that was presented to him said explicitly and that's before the court that my decision is based on the cumulative effect of all of the charges against dr corey not simply those that were prosecuted your honor by mr kidder but the cumulative effect of all of the charges so i think it's reasonable to infer that from chancellor white's point of view had he not been convinced of the merits of all the charges he might chancellor health for purposes of this case there was there are two separate charges he dealt with each of them separately did he not there were two separate complaints and i think the way chancellor white discussed that was the context of a charges and he did recite charge by charge what the penalty suggested by the privilege and tenure committee was in each of the instances affirmed that penalty but at the end of the day he said it's because all all of them hubler to flee that led him to recommend terminations to present i want to be clear on the one question i asked you because i think i know the answer but i think i'm not sure you do address to directly you did not proffer any evidence in the district court that this is an unusual punishment for the offenses committed that that was not an issue and again we were not in the i understand that's what you've been through the question several times i just want to make sure he answered my questions no you didn't proffer any evidence and i see that i'm running out of time and would like to reserve the right thank you very much  it please the court sander mcdonough for defendant regents of the university of california as this court has already recognized this case follows on a jury trial where the jury unanimously found in favor of the university as to palance no no your honor the the issue there is just that that is don on appeal is what the jury found and the issue that the jury saw he said so he says look maybe i wasn't investigators in a retaliatory manner but i was terminated retaliatory matter so i'm not sure what the jury trial that's for us but the jury trial just looks specifically looked at whether there was an adverse employment act in the investigation and as we argued in the district court even at the summary judgment level an identified as we're looking at where does the cause a link break and in each of the cases that were cited by appellant today poland and in lakeside each of those cases they recognize that there is a point where the cause a link can be honor's point that an individual does not receive immunity simply because they believe that someone in the beginning of a process was retaliatory  involved and the ultimate decision of those who may not have harbored and he would tell a story out of this that is enough from the point of to meet the burden of showing that that ultimate decision break the chain for as a matter of law and they had four days of hearing and ninety three page single spaced report dr corey was allowed to present any evidence he was to present was allowed to cross examine the university's witnesses and so as a matter of law in looking at the undisputed facts it determined that the causation link was broken there and this is different than poland in that in poland the ultimate decision maker really relied just extensively on  retaliatory supervisor and looked at the witnesses that only that supervisor wanted to present so i believe there are twenty one witnesses that the individual who is the electorate tallied or presented that to the decision maker looked at and the what that moses and her friends were had animists against curry because curry was in favor of affirmative action hire and your i think your position is that but that wasn't at all in the causal link of him being fired he was fired for economic factors or economic actions that he took answer me this didn't miss moses sign the complaint along with mr kim she did your own are and so her role so she had something to do with the final formulation of that complaint isn't that sufficient evidence to say there is enough temporal proximity between ms moses alleged retaliatory bias and the charge that was filed in two thousand and ten even though there is a year difference i would submit that there wasn't enough of a connection that an because of his position on affirmative action that is the argument that appellant makes but i think that we can go back to the example given earlier in this court today of the district attorney are we to say that even though the original investigation was started by somebody that had an allegedly improper motive that ultimately the person cannot be held responsible for acts that would lead to terminations or discipline are not right now well i only ask the question how much i think it is so let's assume that to be the you look at the evidence presented the independent nature of the evidence presented the independent nature of the fact finder and so looking at what evidence was in front of the judge and here you have a an independent investigation that even the poland court has recognized is a very important step and if we here today say that it doesn't matter what the university does that if you start out and there's a bad seed from the beginning it continues all the way through then employers will be motivated to do independent investigations and they serve a very important purpose and it just can't be possible on the record before us that three faculty members completely unrelated to this department spent four days and hearing and who knows how many hours after that presenting this  report on their own independent finding independent faculty member independent academic judgment on the facts of this case and to move back to the causation link when we go forward and we look at the evidence on the conflict of commitment issue although moses may have filed the initial charge the evidence really was presented by many different people in the hearing itself about the outside business and the outside income that was unreported the question i asked mr siegel and i take  indicated evidence was not presented one way or the other as to whether this minute his argument is well maybe i did this stuff but you wouldn't have fired me but for the fact that i'm outspoken on affirmative action  individual who signed the charge and carried it forward did testify in the underlying proceeding about the significance given to the conflict of commitment rules and that they are enforced not just at u c riverside but across the system and that  they do move forward on these issues not just what troubles me about this case and how much or which way pushes me is essentially his argument is look i got the death penalty for something that i wouldn't have gotten death penalty for bu for the fact that i'm an outspoken advocate of affirmative action and there's some evidence that at least the process began for that reason so why isn't that enough to get into a jury well in this case any arguments that effect has been alleged that the punishment doesn't match the crime you know what he's alleged that he was only punished because of retaliatory animists correct that's that's his similarly situated people were treated differently or if the punishment should match the crime that is a portion of pretext that the plane of always has an opportunity and the burden shifting for retaliation to show as an element of pretext that no one else is treated this way that the punishment was excessive i didn't actually do what they allege i did dr corey did not submit any evidence or any argument on that point in a summary judgment and that would have been his opportunity to say the punishment does not match the crime and there are many other cases of i'm sure been before this court where such an argument is made i didn't deserve that because they didn't do it or i did it but that that punishment did not match that argument was not made here as a matter of showing pretext coun the what was the record show about the circumstances under which mr kidder became aware of these possible conflict conflicts of interest and specifically is there any indication that he became aware of of those possible conflicts through any interaction that he had with moses smith and stronger he did become aware of  the issues that led to the second charge the conflict of commitment charge as a result of investigating another issue it's a little bit like the lake scott lakeside scott case where as they were investigating another administrative issues these other sure your honor it was it was somehow related and i and i apologize i can't direct you to that specific facts but the it was related in some way to administration and there is an allegation at least in this case for purposes of summary judgment  we did not dispute it that there was some sort of connection between stewart smith moses and dr kidder will do that other ministry of issue which was of one involving moses i believe that the allegation that was presented at summary judgment was that they were involved in some way and that other issue and so alternately that sparked an issue about you know is there something else going on here because they as he was looking into dr corey's background he noticed that if for instance if you did a google search on dr corey some of these outside interest to come up and that's how that's how some of the outside interest came to light  well i've course had argue it happened much earlier but i think we can at least at the very least say that the breaking of the chain happened at the time of the p and t committee you know the time of the t n t committee the hearing are the maybe th something like that and we put the burden on the state to demonstrate that the nose or are those an appropriate way to look at these cases well even if you do apply that that same standard here the university has met its burden to show that regardless of any alleged retaliates very animists in the beginning of this process when we get to the hearing when we get to the p n t committee when we get to dr corey's opportunity to present all of the evidence that presumably he would have even presented at trial should he be allowed to go forward the three panel hearing committee determined that he should be terminators tenure revoked and as a result of the second charge based on the conflict of commitment and that's where the chain was broken  so how do you how do you deal with translates later than based upon his review supposedly of the entire process isn't it a fact that he refers to the distinct charges here that that have been combined a bit but the the charges related to let's say the lack of collegiality in the hiring process the two thousand and nine charges of course of how the sensor and suspension under those on the second set of charges that's where he said the totality of the circumstances he was looking at second set of totalities from the first correct because what part of the letter do you think that's that well this is the second charge if you look at it and we focus really on this conflict of commitment issue as we talk about the second charge but if you look at it there were other issues that were involved specifically potential harassment of coworkers or subordinates and so when he's looking at that totality of the circumstances not just the conflict of commitment issue but that circumstance and the evidence that was presented a pattern of that type of behavior no i know you understand you know i guess my question is he's dealing with two sets of charges in one document correct and hold both sets of discipline  reading of of the fact that each one was delineated and that in the lineage in the various charges that for instance were from the first charge that he did not indicate that those ones were subject to terminations but only th those in the second charge and i think you can look at it too that if you are just looking at let's say the harassment of the individuals the alleged harassment i don't think that the chancellor was saying that alone which egger taking away tenure but then when you look at the whole circumstances the harassment the history and the conflict of commitment insofar as it relates to the second charge because he didn't find that that was an appropriate remedy in the first charge that that should be upheld as you question mr siegel s for purposes of a retaliatory retaliation claim the say the mcdonnell douglas discrimination analysis which requires the player to come forward after there's a good reason for his term a nation with some evidence of pretext does not apply in retaliation cases do you agree with i don't your honor and why did you have a case that tells me that well i believe that any of these cases here that we looked at including the ones that the district court  cited in the summary judgment opinion would look at the fact that the mcdonnell douglas test does apply in retaliation context that it's a burden shifting and if the last page i believe of the court's opinion in this case the district court summary judgment opinion looks at the fact that by showing that the folks who instigated these charges against him were not were motivated by first amendment bias if you know the the evidence in the district court found this and and of course a agree  firmed is that it was not strong enough evidence to carry all the way through but there was a break and that's why maybe on the prime aphasia case the court found ok there was enough there but then once the university put forth it s legitimate business reason then the burden really shifted back to the plaintiff to show that there was some sort of all the i mean i'm not i'm wondering on what kind and whether in some cases because it's different than  can't challenge the legitimacy of the business reason whether it's retaliatory not by simply disagreeing with the business judge not to be sure but he submitted in this case evidence that the judge found at least sufficient on step one analysis to show that he was fired that that the adverse action here was taken for retaliate or reasons and university says no it wasn't so i'm not sure why the priest why we didn't move onto the pretext new circumstances instead of just simply trying that issue fact well because they i mean this goes back to the burden shifting the prime aphasia case if if he had even put together something showing some temporal proximity or some sort of anim status and i'm not sure why we would end then also require the person to show that the reasons given by his opponent were pretextual would start strikes me as as putting a double burden on the plaintiff well you know the discrimination cases are not so dissimilar in that in that way even though they typically focus on whether there is a protected status for instance there is a fourth element of the profession cases criminalization which says some other reason shows that that protected status was was up with evidence that they have a great first amendment animus if you will and so i'm not sure why he should have to come up with that again at the next stage on this you know the burden is more significant evidence at a later stage of the initial stage just have to set the stage that engage in a protected activity there's an adverse employment action and there's some tiny connection between the two or alleged connection and that's a temporal proximity but ultimately the burden does fall on the plane if factual nature of these cases which of course is what this court has said in poland and lakeside scott and i just want to emphasize for half a second here is that those cases were dissolved after trial they came to this court after trial and then the court had the benefit of a full record to determine whether the plaintiffs had successfully shown that the biased in festa gator had had a sufficient impact on the ultimate result of some of you i think judge herbert's asked you as the argument began about what he perceived and i'm sure the view is a somewhat curious logic of your position in the sense that your argument that if this process began with the with the retaliatory animists of the three individuals we've identified that gives you client a curious kind of immunity no matter what he does no matter what kind of charges are brought so long as those charges are part of a process that began with charges  immunized from any kind of disciplines and that's the logic of your position your honor i would never make that argument which i'd argue in effect making that argue my argument is simply this a jury after a full trial should decide whether my client has proven that he would not have been terminated but for the discriminatory animus of moses scott and stewart and if the result of that trial is that the jury concludes that regardless of that animus he did enough bad things to justify his firing then they would say the firing was legitimate and we would not be making some kind of immunization argument but the law and i think the judge very touched on this and his questions to opposing counsel is that in this case under the law of the ninth circuit once a plaintiff raises a prima facia case protected activity adverse action some connection between the two then on summary judgment that should be enough and especially here be that can't be right there is the least i believe there is the burden shifting phenomenon there is a third step to the analysis of the court is entitle to summary judgment to consider whether court to look especially at the cases cited on page thirty five of our brief opening prefer to kuli this court's decision in godwin where you have direct evidence of bias smith saying we need to teach these guys a lesson and so will reject their opinion and hire the white applicant that's enough