fifteen dash twenty seventy nine joseph roberts against columbia college  thank you ron it may please the court i'm jamie franklin i represent professor joseph roberts who brings this appeal of a grant of summary judgment by the district court with respect to two claims breach of contract and age discrimination i'd like to start with a discussion of the breach of contract claim in which professor roberts has pointed out two violations columbia college's failure to conduct an adequate investigation of what he'd been accused of which was plagiarism and columbia college's failure to consider a less severe sanction than terminations both of which it was required  terms of the tenure contract so beginning with the issue of the adequacy of the investigation the contract itself the language is very short and very clear it says the provost will undertake such investigation and comply with such procedures as he or she believes appropriate now granted that is a grant of discretion to the provost but what does appropriate mean we think that professor robert investigation as he or she deems appropriate that's was the procedure complied with that's something that can be done that's the type of economic decision that can be reviewed there's there's certainly case law that says that marriage decisions on tenure whether to grant tenure whether to deny someone ten year those are the kinds of decisions for that are reserved for the academy itself we are actually bringing a more precise approach siro argument here we are saying court please look and see whether columbia college complied with what it was obliged to do under the contract procedure with proper motives not arbitrarily not capricious lee in a manner that's not inconsistent with the reasonable expectations of the parties ok so does that mean that a court always has basically  second guess every just sucker discretionary decision under a contract absolutely not your honor that would be contrary to feldman contrary to play still and we respect academic freedom and we would never contin that what we're saying is we created  issue of material fact as to whether judged the provost louise love actually undertook an appropriate investigation the analogy that i drew when i started to think about this more for thoroughly was i looked at her testimony she said what i said what i asked her why didn't you do more of an investigation she said well plagiarism is plagiarism well to me that's like saying to someone who's accused of murder murder is murder so you don't get a trial go to direct directly to prison it's a due process question for that person accused of murder and it's a procedural issue for professor roberts here in this case we feel like the district court actually made a factual determination about what was appropriate under the contract even though there were disputed material facts in the record on both sides well let me let me drill down on that little bit what's the disputed material fact well i think so actually what happened i think is known she made the decision based on the report that think the dispute about what happened is really at the heart of what why we're here today because she didn't undertake an investigation she didn't know there was it's dispute about what happened and we say any reasonable provost under any reasonable ten contract should at least interview the person being accused of a career in the ng offense that's that would be the least of what somebody ought to do and we think that's a question affect what's appropriate under a contract if she wasn't required to even find out what the other side of the story was on every single professor at columbia college has no protection for being terminated under this contract it's not worth the paper it's printed on we say there's some standard to has to be applied here some reasonable standard no maybe she didn't have to do as much work as we've done in this case to develop the facts but certainly she should have interviewed professor roberts and her to side of the story i would have thought that the contractual protection was on the merits of the decision no i did not engage in this conflict as opposed to this purely procedural argument under a contract that gives university administration virtually unfetter in the context of losing tenure granting tenure you're absolutely right but i don't know what the point of a ten year contract use if you can't sue to challenge the claim that attacked whether columbia actually complied with the procedures under the contract that's how we felt the case should be brought based on what the case law is in this in this circuit so you know i think in the second issue is whether there should have been a less severe sanction that is also inextricably tied up with whether there was an investigation that listen to the facts in the record and you can't talk about what the sentient should have been unless you know what what actually happened  there is one factual issue that i want to flag to the extent that i have time and that issue is that the fact that professor roberts listed this book on his c v that's something the district court cared a lot about  and i think that columbia college also has mentioned several times on appeal and it is it's true he did list the book on his c v but the reason why that doesn't matter and shouldn't have been dispositive or shouldn't have been a factor the district court considered though it did was that provost love never knew that she didn't base her investigation on anything to do with the c v she only did two things she said testified to in her deposition she looked at the memo and she looked at the book she didn't interview anybody she didn't look at c v she didn't go to the department and ask to see a doc you know any additional documents so the c v was something that was never part of the decision making process and as such is not something the district court should have drawn any negative inferences with respect to at all but it so what you're describing counsel are sound like material prejudicial deviations from the procedures established by the contract that that would straight to court union bypass that mechanism well you're on the record the facts in the record show that the reason the real reason for that was that professor roberts had been a member of the e r c and didn't believe that there would be any benefit to him in doing so read that to mean if you want to challenge the review this way this is the only way you can do it not that you can't do it some other way like file by linking the e e o c charge or going to the n l r b both of which he did or filing a lawsuit for breach of contract we don't see it as a prayer as any sort of preclusion at all we don't think the language supports that and we think the scope of the r c review itself which is very narrow also supports the idea that this couldn't be the only way to challenge whether columbia college comply with its own procedures please the court let me begin with the questions that your honor left off on which has to do with the powers of the e r c and it is absolutely our position that professor roberts under the contract was required little voice sorry i will speak louder it is absolutely our position under the contract that professor roberts was required to seek e r c reviewed not only because of the language well let me backtrack and say that it's our position that professor roberts seems to be confusing the idea that one does not have to seek review in other words people who may wish to you you may wish to seek review if you wish to  but you don't have to seek review but if you do want review of a terminations decision you must do it solely through the r c and he doesn't do that he comes to court and let me also say that the  specifically reviews material whether a material prejudicial mistake of fact concerning the conduct of the faculty member of ledge to having gauged in that issue and material prejudicial deviations from the procedures established by the statement that is precisely what roberts is arguing here today let me let me try to put a real precise point on this because i i think it's clear it off that if professor roberts had wanted any internal review from the college he had to do it through the r c that was his sole internal review but the counter doesn't expressly say you can't go to court why is it if it is you know i do point to berkeley if i'm wrong but it doesn't it doesn't express would preclude judicial review just says internally this is the review that you get because contracts have to be read with all their pieces together and when we read the extensive nature of the review provision s and put that in the context of the case law which says academic decisions are to be kept out of the mosque to use the term from feldman it's got to be that the academy has the first opportunity to correct its conduct otherwise what we have this is straight what we have here actually is a straightforward breach of contract case where someone who has not frequent not complied with a prerequisite not performed his obligations under the contract is coming to say a breach occurred we have that right in the contract to review it to have those mistakes call to our attention to our alleged mistakes i should say to correct them they've made a recommendation of the president could you have any doubt he could sue in court for breach of contract he still could not sue on the merits but he could sue that his that his procedural work i know courts want to stay out of deciding who deserves to get tenure or who isn't or in turn you're who gets the grace of tenure but once you've given it if it's going to have any meaning at all that it has to be enforceable how from somebody outside of the university administration right the contractual protections of the procedures are in forcible the merits but the academic dishonesty finding is not correct that is absolutely  he based on feldman based on got ten based on murphy some of these are from out of the circuit but yes that is our contention which of those cases within this circuit involve termination what you're an apparently a couple of courts of bought rebel all of them to have considered it have thought it starting because of swayze which says academic decisions are not to be reviewed by the court in terms of qualifications for teaching and that's precisely what we have here we have a straightforward challenge to business judgement basically on the contract so your contract how clear and under those circumstances then how does your tenure contract differ from employment at will at universities and ministration can fire anybody tenured professor they want to for any reason they want to as long as we comply with the procedural protections and if we don't then someone can then complain we have not complied with the procedur protections that's the case law we cite to this court and it is precisely why i now strengthen and on behalf of her client has conceded that you cannot come to the court and ask the court to simply evaluate the merits of the decision it's as it's as feldman states all academic decisions are first and are can be categorized as speech decisions and that's just not what the courtis here to review  good let me ask a question not the discrimination claim but it's pretty simple i was not just as pretty much a straightforward example of a cat's paw in which the provost made her decision entirely on the basis of the waspy brings the allegations to roughen us ravenous investigates them and there's no indication that the only reason ravenous would investigate an allegation of plagiarism is because he's interested in age discrimination or to put it differently there's just no nexus between anything ragna says and to be sure there's only one comment requiring up involving age that they actually identify and pin down they say he's made comments but then they don't s what they are it's the young hip department one certainly is about age there's no data as to that and more importantly this is a very very serious allegation it's brought to him by an employee that employee in the cat's p analysis would be the monkey so there are cat's paw theories just said it was robbing us and i have to show then that she wouldn't have investigated this allegation if it had been about anybody else and he hasn't done  that and that's why the eighty age discrimination claim must fail i want to take a moment if i can if the court doesn't have any other questions just clarify something we said in our brief which is on page forty one burt were discussing the honey fee case and that said that the sanction for plagiarism is appropriate i'm sorry sanction for of terminations is appropriate for plagiarism and actually your honor that reminds me that when he has a case that doesn't involve tenure that we parent that ecl e card that a case upholding terminations it really should have said supporting terminations because in that charges the dean tells him resign or you will be fired he resigned but then he goes to the president of the university and says i want you to review my i want you to review my resignation basically like he wants to revoke it and the president of the university says no i'm not going to review your resignation i think you would have you would have been just charged anyway he said he refused to review the resignation or reverse the actions of the dean and so i think unfortunately we had that upholding terminations really supporting terminations because ultimately she resigns i do have one more song about the plagiarism is plagiarism seems like a very coarse formulation the dean's review was really based on a side by side comparison of the two documents the one prepared by professor roberts and the other the original source material but his defense wasn't that it was not copied from the sources defense was that he meant to attribute it but that the publisher screwed it up and didn't include the attribution that he intended so it seems to that degree given the defense the professor roberts wanted to mount the dean's investigation really was inadequate because it didn't get to the merits of his defense which is not that the documents weren't what they were it was there was more explanation required well certainly your honor and that begs the question then why did he go to e r c interview because that you are serious you he would have had a hearing and he could have prevented presented this defense he also could have told it to somebody else along the lines before he receive determination letter instead he just lets it sit there and comes to court and says i was terminated didn't hear what i had to say and well how about our answer to that is you should have told us and you had a contractual right to do so before  women i think that judge hamilton statement that have a question about how the does the tenure contract differ from an employee at will situation is exactly why what i was trying to express earlier that's the concern here that professor roberts didn't have the opportunity to present this information and have the heaviside of the story heard and i think you can get to the actual you can get to the place where the substance of the decision can be reviewed through this the mechanism of the case that we've brought here by looking at those procedural issues if they're found to be lacking then the ultimate result is found to be lacking so i don't think it's true that we can't get to an evaluation of the merits of the terminations i just think we have to get through to it through the proper method which and the rest of the cases of academic freedom and then finally with respect to whether why didn't professor roberts tell his side of the story the record is clear on this you sent a letter he didn't even know this was about