privileged status and the privileges that attach to that status without the constitutionally mandated due process he was entitled to this was also decided on a motion to dismiss we believe that the court erred in not applying that review standard of taking the complaint in the light most favorable dr kaplan and taking all web played well play allegations is true and we believe that that is fair and that we ha communications or the report all of that is there anything what else would come out on discovery for example i'm just curious but i think the jacking quite a bit actually and i agree that there is a lot of documentary evidence as part of the complaint however what the court doesn't have what the court really didn't have is the explanation for why for example dr kaplan who up until november th two thousand and eighty had an exemplary record at the university of google why all of a sudden he was being accused of abusing his power and position based upon anonymous allegations that were supposedly reported to the deed and school and that accuser has never been identified i think one of the due process requirements that that both sides sides is that and you should be able to  and why it is that i mean i guess i'm curious why that matters i mean he eventually had a hearing right i mean there was i mean we can debate about and we should talk about kind of whether even if you're right whether the post deprivation process would have been was an outfit here but i mean he had a hearing he had a meeting beforehand in october they told him they were doing the investigation and they what why does it matter who the accuser was i'm confused why didn't that didn't come out of the hearing i think it did not you did not and if you were to look at the record of the hearing that's before the court there's no indication of who the accuser was and there's no indication who the accuser was on the audit report  was as we mentioned our brief persona non grata which if you look up in black's dictionary is the unwanted person and stripped of every tenured privilege that he had a point in time it's not just a fight over the chair position set foot on campus in research practice medicine what's your best case for someone who is not terminated and they're getting their paycheck  they're stripped of significant things you know ability to practice or see patients whatever it is what's your best case for why that person gets pre pre deprivation jackson it directs and tries to apply louder and does it wrong we don't get to say i think the jackson panel got louder mel wrong and i would fight that case differently were bound by jackson so you have to explain specifically that the crosby case dr kaplan was just not let go from his chairmanship again he was he was let go without any chief right like maybe get a parking spot and you get to wear a badge and you know walk around in street that uniform and that's arrest people like there's all kinds of stuff you need to do if your police officer and he give you any of those numbers whatever the his office where he didn't presumably get to keep climbing the ladder towards i don't know what the next step up in rank is how is your professor different than the police officer in  given allegation that he wast money from not being able to see patients or not being able to get grants or whatever it is that he personally had a property interest that that was and you and you you are correct in saying that there was the response he really he lost everything there's no question about that and everything going forward my concern years the  i'm pronouncing it correctly that person was not given any pre or post deprivation due process and i'm struggling up because i don't see a case that would say that the post deprivation process that dr caplan got was not adequate under our law can you can't make a case in which coast deprivation provisions the st is again that dr kaplan is a tenured professor because the lower court distinguished the issue it based upon the name clearing garrett and it said that he did not request to have a name clear hearing so tenure the grievance process that according to the red brick which we incorporate in which we have as part of an exhibit allows the university to only you're only allowed to bring what you're charged with so to the extent that dr was never allowed to present at the grievance hearing how he was harmed by the lack of a pre depravation process for his tenure because the issues that  about what he was allowed to didn't was challenge the granule and he challenged all six crayons and and two of them were found to be insufficient i mean this was a two day hearing  i'm just struggling you know it i'm struggling for you to point me to the case law that says event where we take away everything but again if you didn't process in a close terminations hearing and there's just no question that he got and i guess i would i would disagree factually your honor again i guess i want to go back i go back i think it's important to consider again we're we're here on a motion to dismiss and part of the part of our allegations were that the charges were false that he wasn't allowed to address the real issues that were the deprivation on november th again if this was just the  chairmanship loss which the allegations of agreement here he discussed regarding whether he was attempting to sell the department practice or whether he was the on the list of things all had to do with him being a chair but that is not the special situation we process that was allowed for him to discuss the problems of the deprivations of his tenure ship and how that impacted him for this the year and a half that he was before he even had a hearing the courts to create some procedures right we balance the factors and then we create some kind of procedure that that will be adequate under the constitution but what i don't know is what procedure did you want that you did not get so what did you want to happen before november because i don't see you telling us anywhere like matthews and under the lauter mill standard there wasn't there didn't need to be a formal hearing but to be the extent that you're going to strip away his tenure which means he can practice law he can't  be scholarship there's an assumption there that he's doing something wrong he will lose those privileges and benefits what should have happened is there should have been some informal hearing informal meeting which i think a lot of m patients here or we we're not going to let you mentor students anymore because you have components he would have known that and those are issues that he should be able to prepare a defense for either in response there or that's not what the universit anymore and they certainly could have put him on administrative leave as chair but that's not what they did they essentially took everything he could have done is a professor regardless of whether he's wearing administrative tattoo it can your hat and said your you changes in job duties or claim must be dismissed for one does not have a property interest in one's job and as as as we've been talking what what happened was  november there were there were allegations that were made against dr doubtless there presented to him in october of twenty eight and he was told this is going to be investigated by a special chair review committee on november th of twenty eight  with vs city of chicago the whole notion behind leave is that paying someone not to perform their job duties that's not a deprivation there is a there's a do you think so that under jackson i mean do you think there's basically no scenario where you would lose it a protectable interest as long as you were getting your is that your position you know it's property interest and continued employment is not in coming into the office and but why isn't it different and maybe i don't know whether it would depend on the facts but why if i have i mean like a nine to five job i have certain jobs i come in and you know and i get suspended with pay it doesn't seem like i've lost all that much although you know my big different little bit on that but if i have a job  doctor i'm running a practice i'm seeing patients i have to apply for grants there's all kinds of other stuff that i'm doing that doesn't i mean it probably affects my paycheck a little bit because it affects my reputation in the in the community and the science community and i'm not allowed to do any of that but i get a paycheck i get my paycheck that's that seems to me just different i don't know how to articulate it with that distance like a different situation than just suspending somebody would shirk and you know change the facts of this case a little bit at odds on its services completed its investigation and said nothing to see here and brought dr caplan back  you know he he he would have been back in his role of and performing those duties he would have basically picked up where it left off and it got a during that period of time so i don't think there would be any any deprivation of any property interest because what about asphalt on the november th thing i took everything away from me so let's say that investigation takes a year they've already removed him from their understanding judge and have mandaeans question to indicate that isn't there a distinction here where he you're not just a paid hourly worker but in fact of the deprivation is the ability to use your own independent credentials and rights to continue in a profession you're denied their opportunity is that not different well he certainly had the opportunity in ability to do that elsewhere and  he university contacts its not all of whom has been paid by you if he was being paid by you he could not be employed by another university after he fired him completely yes he could but not during the course so it is not uncommon at the university level for faculty members of professors to take sabbaticals and inter you know this is that there's there's no allegation this is something that was that was broadcast out loud in the world in fact i think the m  plan points out that even after dr kaplan was removed entirely from the university the university still listed him as a faculty member on its website but so the situation where he's being paid not to work not performing those job duties that that functionally works the same as taking a sabbatical and then you know after after coming back from from a year either working elsewhere or doing something else you pick up where that would it be different here is i don't think he has a lead students complain but if he had alleged in his complaint right but it took too long so there is a a deprivation of my status as a physician and that the a university physician and the university professor are all of that stuff that he couldn't do in that eighteen months if he had alleged the process was the net that post operation process was inadequate because it took to law would that be a different case than the case we've got now because i'm not sure he's alleged that ms complaint you know i have i have thought about that and i have looked think i think yes that there there there may be an argument that there was a deprivation of assess their own again from a from a standpoint of a public employer using public funds to pay someone salaries   was removed from from the graduate faculty but that removal it wasn't just an elimination of job duties that removal carried with a loss of salary and also a loss of benefits because he was no longer on graduates found guilty he wasn't getting paid as much money and he had to teach more courses so functional a good as a carer had to do more work for less pay that's that's something i think we can sort of easily conceptualize as as as a deprivation especially matches where there was no process pre or post deprivation and that's not that's not the case here we were really talking about about two language in the redbook that's an orchestrated by reference set as chairs serve at the pleasure of the board of trustees and can be removed at any time by presidents day this port said and crosby versus university of kentucky that's enough to say there's no property interest in the chairmanship so putting the chairmanship aside we're really talking about the property interests that dr caplan at and is does it and his tenured position which latter mill jepson are clear that paying someone prior to terminate in their employment while there's an investigation proceeding while the deprivation process plays out that's not a deprivation and it as as jackson talks about letter mill that solves the problem deprivation altogether me if i'm wrong but so he was making money from treating patients you kept him on salary but his job expectation is salary class that revenue stream from the patients that be different i think i think it may be different because i think what what would be issued there is turning on what expectation as dr caplan or any other faculty member out of the situation as far as payment from treating patients now with with ellerey that's that's a guaranteed amount regardless of how much or how little one works if you're talking about i get a percentage and this is not in the amended complaint you're correct about that but if the if the allegation is i get a percentage of every patient i see i'm incentivized to see as many patients as possible you know perhaps that is an issue with respect to  whether there is a property interests and if so what are what are the contours of that property difference because the property interest is is the expectation of it's received a salary and i seeing more patients fewer patients a take there's a distinction there is to it least that's what the top terms of that property interest might look like let me ask you this question i don't know if it's related to the process at all but a recent recall reading something that suggested that he was treated differently than the paediatrics people were with regard to getting fired outside financing and alone or whatever it was i don't know the specific what they did in what he did but but there's always some suggestion that he was being singled out whereas other departments were not you have a response to that well the amended complaint doesn't contain a whole lot of allegations about this i can tell you the the investigation turned out i think this is clear in the amended complaint this was something that dr caplan did it without the knowledge of the school of medicine or anyone else of the university at large so specially those are those are different situations carson thank you before being dispossessed of privileges short of being fired frost to frost the same judge who decided our case has similar and that's important here both those cases recognize that there has to be some process before being deprived of a e the reputation the scholarship research those aren't just run of the mill job duties that any nine to five employee have there is a reason those are elevated constitutionally to protection those are because they're not just run t jockey so i think that at a console and untenured professor can do research and teach and all of that stuff but the point is just that they don't hold their job at the pleasure of the and i think defendants want to argue that all of this is jumbled together the issues within as chair bleed over into the she's with him as a professor or a medical practitioner  and doing the same in his other capacities which are constitutionally protected i don't think in and i think those have to be separate out especially again at the point to make a perhaps it's a motion to dismiss case if all the allegations are taken in our client's favor which they should have been and then we have met the burden to go forward to explore to go back to where we started today with the discovery to allow us what is it that you what is it that he should have got before november is it you are you saying that he should have basically gotten he they hearing before they before they suspended him i don't think they do that we had a full on hearing and in the grieving process  i think discussion you had in the band in a council about the the overbroad suspension and the charity answered the court was between the october letter and the november depravation there was supposed to be a special chair review which only would have related to him as the d c with the chair but that review never happened and he never complained said that review never happened if you look at the complaint that review which would have been an informal opportunity for judge kaplan to be interviewed to discuss the allegations was cancelled and then he was put up persona non grata so even though the build up between the october th letter that we're going to investigate you for terror concerns and put you through the informal cherry view process didn't cave place that is in the complaint and that's actually not disputed in the record so even on even if they were investigating him as chair leading in november th they didn't even provide him that process it was position as chair that he has the ability to do things like sign a lease then you know enter into financing agreements and all things university is worried about that all comes with his status as a chair so the response should have been put him on leave it to spec to the chair but these other things treating patients teaching classes doing research don't pose any threat to the university so they couldn't take those away without process so it's a sort of a nexus argument if that's your argument that's correct your honor and we and we know that there were no issues with that because there were there haven't been danger which again goes back to loudermilk because in the discussion of louder mill we're talking about putting employees to the employees to be deprived term before the predetermination process the discussion there what if there's a danger alleviated danger reporting and all of pay but letterman actually recognized that there is an interest of keeping the employees involved unless there's a danger there's no danger in the record there that the university and all the documents provide this court if there were