certainly and i there are a number of issues in this case i don't think i'm going to be able to address all of them and i just want to make sure that the court understands that we're we're not waiving issues that are raised in the brief but are argued here this matter began in one thousand nine hundred eighty eight when professor at a wall contracted with the university of cincinnati to become a distinguished professor of computer science and computer engineering was a discretionary authority over about a million dollars in grant money this money was passed by the legislature it came through the of regents the facts are myriad in the case and rather than me going into large amounts of facts i'm simply going to refer you to document nine if you have questions on those all certainly addresses out of the place to start oh by the way professor agha wall came to the university of cincinnati from north carolina state and he a deuce to come here because of the number of things that were included in his contract which in addition to what i've just mentioned was one hundred thousand dollars in matching funds by the university and some promises about faculty to support his research efforts the now that this is a very fact intensive case could you focus us what you think are the legal issues that the district judge  do that right now what i think that where that judge went wrong is in the area of adverse employment actions she said that even though professor agha wall lost the opportunity to get about two million dollars in grant money during a period of time when john bryant had revoked his ability to apply for grants and she found that that plus being brought up on charges twice which led to about seventy some thousand dollars in attorney fees plus health problems that are related to heart conditions and anxiety and so forth from being shall we say brought up on disciplinary that this well the court's biggest problem here was that they continued that the court continued to to violate andersen against liberty lobby lobby incorporated  reads against sanderson plumbing sushi to electric against zenith all these cases say is that in a summary judgment you must not take inferences in favor of the was the reason why the district judge said that the only adverse employment action was the denial of merit pay because of the timing of these other actions that they heard outside  relevant statute of limitations that's not that's not correct they all occurred inside except for the diversion of the three hundred forty five thousand dollars in the business over reduced lab space and the business about living professor wall away from his laboratory into a different building and then the dean took his office those are outside the two year statute still  our position is that this was a hostile environment and i'll talk about the morgan case a little bit later on because the morgan case is really favorable to this case  the first time i read it i didn't think so but after i read it further i mean morgan says look you may not be able to raise claims that are from stuff that's outside the statute of limitations period but you can certainly use it for evidence and there's more authority to that effect get to it as time goes on it that  you know just because you can't make it a claim doesn't mean you can't use it as evidence so once we decide that professor ira wall indeed had some tangible losses as a result of what the university did and this i don't know the court doesn't ever talk about forklift or burlington northern cases that say that if your job is harder you have tangible employer actions against you she basically says well all the stuff was temporary well burlington northern certainly says the temporary losses i mean was thirty seven days in a case are actionable so i thought the whole decision kind of on that issue just flew in the face of first of all it was pre burlington northern but the facts in mitchell against vanderbilt work extremely different  mitchell was not a big money grant obtain or for the medical school at vanderbilt he was simply putting it is time to retirement in their last case he was bringing in three and four hundred thousand dollars in grant money every year so while it may not have been much to have certain to lose his ability to make get grants for professor mitchell it certainly was a different situation for professor ira wall you need to show that you're comparable to some similarly situated person outside the protect dean the defendant monti manya that he didn't like the way indians well it didn't come across quite that crisply he didn't like the way eastern professors meaning india and china treated their graduate students and he specifically minute mention india and professor ira was now there's we argued that was direct evidence of discrimination the judge says no but even if she's right we certainly can use that as part of the prime facie case and we add that to two disciplinary proceedings and one letter of august twenty eighth two thousand and nine taking away professor uyghur walls graduate program by refusing to allow grants to graduate students and we have a completely different situation so you know into that pattern or practice evidence against professor bad acharya and you have a basically a prime fish case right there but then we brought more there's a  chart page seventy five on a document nine which talks about the professors all of whom were in engineering or who were in electrical or computer engineering who had done various things that brought disciplinary action from the dean not one of them did the dean suggest that he be suspended for a term or pay twenty four thousand dollars and have is teaching changed and his title erased these other folks they got away with written warnings  letters of reprimand all bingo she gave by the way there are a couple letters of apology in there so the chart on page seventy five shows that as far as what monty manu was doing not necessarily the agreements committee because the grievance committee was is not a party to the action but what my name on it was doing was the white guys they have a meeting they decide what they were going to do about the discipline and they do it and there'd be no hearing proposed as the second set of goods the same guys feel we'll see and fred they had who apparently misappropriated some money from a grant and comparable seriousness we don't have any exact matches but we don't have to have exact matches we don't have twenty thousand employees to database to use we had just the professors in the engineering school in electrical and computer engineering and by the way our wall cap was switched back and forth between those two programs at times and for reasons which get complicated because i think that the dean was worried about like to go engine earing being accredited so he moved some people  out of computer engineering which basically kind of deep sixed the program and of course he was attacking the program anyway and the pattern in practice evidence against professor bennett sharia is amazing you know anything that occurred that would have justified the dean kicking you out of the headship and for basically no reason he said he pretext is another issue now in the reply brief i listed a bunch of things on pretext and  to the university where he took every opportunity a position against professor ira wall first he took his money then he took his office then he messed up his lab space then he brought him up on charges that were he had the charges were false and then because of some things that were said during the hearing in the first grievance we had to file a second grave because the university was threatening to bring him up on charges of a second time in fact they ever did because john bryant decided by decree but a bunch of things that  things were connected by the university well it's actually john bryant and the university is no longer a part of but we thought we brought ample evidence on pretext in we'll have to bring new evidence we can certainly refer back to the old it when it's from the prime aphasia case say that the university is no longer a purty well the contract action against university was dismissed by district judge for reasons that don't really hold up so well anymore there's this case called lipid he's against the  board of regents the state of georgia and in a case the supreme court says if your students state court and you remove it defendable court you're wav why lebanese doesn't apply to this case is because the state of ohio has not waived their immunity in state court they only wave it in relation to the court of claims well this was this is kind of a true statement but it it's it's it's not apropos because the action we brought against university was equitable in nature we just asked them to do what they were supposed to do on our walls contract and that's all we can ask for money damages or anything like that although i did want some attorney's fees thrown in there but that's really not against the university so there never was any immunity at the state level on an equitable claim and the difference the judge cited is just a foremost the bulk of the adverse actions alleged by professor wall are time barred pursuant to the to your statue of limitations in one thousand three actions here in ohio secondly she properly determined that he has no direct evidence of discrimination and moreover using and the indirect evidence method of proof he's only established one adverse action but nonetheless judge back with analyzed whether or not even the time when actions rise to the level of materially adverse she probably found they did not and ere was he could not establish that any of the reasons given for the various actions were pretax for race or national origin discrimination trying first to the time board issue claims there are soo methods of proving a continuing violation theory the first method is to bring a claim of a hostile work environment which was not done here until this in this level of appeal however  back with also found that this was a discreet act case there's a collection of discreet access is not a hostile work environment claim the second method of proof is to demonstrate a longstanding and de monsoreau policy of discrimination here to your point judge moore professor at wal relies on provider about a chara and alleged discrimination against him however when he was deposed t he denied that carla mont manu discriminated against in the us it's a little unusual theory to claim discrimination when the victim denies being discriminated but there could have pathetically be some overt discrimination against someone on the basis of a protected characteristic and the person for whatever reason doesn't properly could you address that absolutely that was never said and that's judge back with clearly stated that and i have referenced that throughout the briefing of the district court level on this level the phrase easterners was never used in that context there was no reference to indians there was no reference to national origin and there was no reference to race the comment was i believe dean monta monnier stated i believe there is a cultural divide between the way i view graduate students and other professors graduate student and he explained himself both at the grievance hearing or that that comment was made in a very public arena at a grievance hearing and he also had an opportunity to explain that in his deposition and he clearly stated that that was his view of how graduate students are to be treated and respected and he believes that they should be viewed as colleagues whereas other professors within the department essentially view them as sort of worker bees to do bidding and not to be seen and heard from him and he didn't make a distinction on the basis of nationality absolutely not i frankly don't know where this reference to easterners as it's come it's coming from it's not in the record anywhere not once again  that ties into the direct evidence just back with conducted a thorough analysis of whether or not that common rose to level direct evidence of course it doesn't and professor agha wall himself conceded at his deposition that any number of inferences would have to be drawn in order for that comment to rise to the level of direct evidence and then if we take a look at the materially adverse employment actions let's talk first about these o b our funds the purpose of the funds that are issued by the ohio border regions were issued to the university of cincinnati not to dharm at all they were issued on a bi annual basis every two years they're up for review mager wall knew when he was hired that there were not an indefinite funding source here that they would expire at some point in time as early as the he was hired in ninety eight as early as the year two thousand there is clear testimony in the records are documented back and forth what are we going to do in these funds run out they're going to run out someday how do we fund professor at all in two thousand two there's a memo from memory here there's a memo from tom mantei his department head at the time that in no uncertain terms says stop using these o b our phones to line your own pocket the purpose of the funds is to establish a physical interdepartmental center to further in the academic interest and produce more ph student ph d students in ohio from one thousand nine hundred eighty eight until two thousand and six when carl amount of money a d on campus there was no center and there was no progress made on the center that is not in dispute for us or our goal or concedes that that's the case he used the o b our funds as a personal slush fund and he was cautioned not to do that in the year two thousand and two by a prior department head and then before professor munson manya ever set foot on campus in two thousand and six his new department had to have a carter restaurant was a new department had said we're taking the discretionary control and we're going to start taking that control away from you because you're not using the funds for their intended purpose from one thousand nine hundred eight till two thousand and six he didn't develop the center he had nothing to demonstrate that he had done any work on the center other than lining his own pockets and hiring his own grad students to further his own research this was seed money to further the academic interest of the university he didn't use it for that purpose i don't mean that's not in dispute if you take a look at the loss of office space will get the o b our phones being redirected as is time barred as is clearly found by judge brack with those walls of the loss of the office space but a loss of office space as extremists two thousand square feet evaluation period premier about a chara who was presser who was department head at the time dean monson manya requested that he send submit recommendations not definitive numbers to him recommending half percent pay increase if you take a look at the list of the assistance of two deans and i'm sorry to assistant deans to help them with the review process he frankly thought that for for probably about a chart it was overly generous in giving out in green and giving out merit pay and also believe that the financial compensation of the particular employee which necessarily impacts the expectations placed upon that employ e need to be taken into account as well and professor agha waller earns seventy thousand dollars approximately seventy thousand dollars more than any other professor in his own department but what we were really really good to though is  that the two caucasian professors who did receive pay increases at the time merit pay increases were professors an exchange and perfect professor they both only received a half percent increase no one in the department received a one percent pay increase it should be noted and those two individuals didn't remotely engage in a course of conduct during the political review period professor adderall uses a five year look back period in his analysis just back with of course pointed that out and said that's not the relevant timeframe to be analyzed and it also should be noted that he created a chart based on a subjective review of the websites of the professors i don't know how he came up with a lot of his results but again that's that's the evidence that he's put forth in his brief five year lookback chart if you take a look at what transpired from september of two thousand and eight to december of two thousand and nine it wasn't a very good time for university as found not by dean hans manya and vice provost brian but if you take a look at the first grievance panel finding although they did recommend that he received a written reprimand which was never which does not exist in anyone's knowledge nor is it an adverse action because it's night not tied to a concrete loss which is what is required in the circuit for a written reprimand to be to constitute an adverse employment action but if you take a look at the at the first  the first grievance panel finding they say dresser i was consistently knowingly in an admittedly failed to obtain sponsored research service approval in advance for a grant proposals in violation of u c policy he had no right to promise binchy a position without securing prior approval or a firm funding commitment his historic lee failed to file his outside activity reports he has a pattern of for supervision for student supervision he skirts use the rules for his own convenience he improperly replicated some of his own previously greater that's how poorly he was a minister in his grants and frankly he was lying on his grants i think i frankly think the response was it was not as severe is as it should have been i th overwhelming evidence if you take a look at the beginning of the binchy situation and his complaint letter for the reasons i just stated he hired them without a firm funding commitment from the university you can't do that that's that's absolutely against the rules  proposed discipline and his theory is that that this is obviously ethnic based discrimination that's going well i would i would  discipline upon professor agha wall he can't do that well he can propose it but it can't it has to be upheld by agreements panel so there was no discipline placed upon professor agawam if you take a look at the other individuals he compar himself to there's there are several of them who received written warnings and frankly from behavior that doesn't remotely approach defrauding the federal government keep in mind that the university of cincinnati had to repay or had to didn't she twenty four thousand dollars out of its own pocket because professor agger wall had and frankly screwed up the situation so severely and there was no documentation there's he lied at the second gr from sort of the first grievance hearing which resulted in the second group in syria he claimed that vinci was out of the country not doing work not doing any work on a specific grants that turned out not to be true i have no idea why he would lie about that and admit you can tell from the transcript of the hearing and you can tell from the briefing the board the hearing grievance panel members were flabbergasted and shocked at his testimony went to church it turned out not to be true but still to your point he's not he's engaging in behavior that is far more egregious than anyone you know if they were to show up to teach a class or two or a failure to advise a graduate student on a particular issue that doesn't that's not even in the same ballpark as defrauding the federal government lying  to secure funding and not to mention the fact that is own co principal investigator on a grant mingling lou which professor agha wall completely and totally ignores throughout this proceeding she refused to sign off on labor verification statements to the federal government for work performed by professor echo all students clearly something is going on here that's as you might suspect it's a highly unusual situation where one professor will sign off on the of the work of a of another professor's grad students if this isn't this isn't remotely comparable behavior it's not even in the same ballpark as i can see my time is is coming to an end if the professor is still at the university yes yes yes or quickly he has no procedural due process claim to the extent that he's identified any fundamental he has any fundamental rights which he doesn't in his office space or is lab space of the collective bargaining agreement process and had a grievance hearing which of course satisfies procedural due process he has to identify an independent constitutional violation or behavior that shocks the conscious to maintain substantive process claim he doesn't have that and also i'd like to know quickly that you see as a party in this appeal however the district court properly determined at the early stage of this litigation that to bring a breach of contract claim against the university you have to do that  simple distinction between here in the lapidus versus georgia case in that case georgia had consented to be sued in the court of company's thank you thank your hopes for your argument the case will be fitted