i want to run i would request four minutes for rebuttal by may please the court in granting summary judgment in this matter the district court considered virtually every disputed material fact in the light most favorable to miami while at the same time simply ignored altogether those material facts which necessarily favored that to thrash in either or both of them so the district court failed to apply the most fundamental principles of law governing the application of rule fifty six although not explicitly stated in its opinion it's apparent that the district court considered that the that mr thresh had established a prime facie case in miami did not contest that the district court's decision rested solely on whether miami's reasons for the negative tenure decision which they proffered as dr thresh is inadequate record of research was a pretext for discrimination the court concluded as a matter of law that it was and therefore that it was not pretax and therefore granted summary judgment in favor of the university it seems that the decision rested on three essential points first the doctor thrash was not qualified for promotion and tenure as a matter of law apparently the doctor thrashed did not have the same credentials as his caucasian counterparts again as a matter of law explain why each of those points are actually contradicted by the record first the district court stated quote there is no dispute that in january two thousand and ten the tenure committee threshers department found the plaintiffs application was subcode a very marginal case and quotes well that is disputed the facts are quite the opposite the contemporary record of the department's recommendation and opinion regarding the application for promotion tenure of dr thresh was unqualified lean unconditionally positive it was unanimous decision whereby and where in that department said quotes that the threshers scholarly work was sufficient to warrant promotion and tenure and both in quality and quantity and that his work provided for future growth and development there was no condition there was no qualification the district court simply parroted the opinion of miami and and its argument in its brief second according to the district court as relates to the external reviewers whose opinions were solicited by the department as part of the review process the judge said quotes several were positive several were lukewarm and several were negative and quotes that description characterization of the external reviews was again lifted verbatim from miami's brief but it's also contradicted by the record and if you look at pages thirty three believe thirty three and thirty four of our appellate brief we excerpt various portions of those external reviews four of the six reviewers were on qualify of lee positive and without any hesitation or condition said that his scholarly work entitle them to promotion and tenure in their view two were less enthusiastic than those four however even those two were positive with respect to recommendation for promotion and tender one said well i question somewhat the originality of dr threshers work but i nevertheless find that he is at the appropriate level and recommend promotion intender same with the six the individual according to the district court miami produced evidence quotes that both of his caucasian counterparts had far more significant research published in obtaining grants that draw worked plaintiffs contribution to the university and quotes that statement is contradicted by the four hundred thousand and we'll talk about dr threshers in a moment dr i'm qwest had approximately ninety six thousand dollars in grants dr thresh had a one hundred forty seven thousand dollar collaborative grant with central state which was just totally ignored a stance of lee i believe because dr lavani did not place any weight on anything from historically black colleges university and doesn't even mention the nature and purpose of the grant or the fact that it was associated with the n s national science foundation but pointed out a number of things where the district judge is making judgments as to where the facts are and this is a summary judgment case and he's taking the facts in a light most favorable to the defendant which is the movement for summary judgment but if assuming that we agree that that is inappropriate on the part of the district judge are there other aspects that would allow the district judge's decision to be sustained in other words maybe you'd be useful for you to move on to the other the district court there's no dispute that the dean conducted a review independent of dr lavani as did the thirteen members of the promotion and tenure committee and therefore again the from the district court's view that that process purged somehow whatever anim s was harbored by document vonnie there are two problems with that analysis number one it's math is wrong as a matter of law second it's wrong as a matter of fact it's wrong as a matter of law because the stab decision does  not provide a safety net for even independent decisions or independently judgments administered or offered by decision makers the question is whether those independent people and whether those independent judgments were in any way affectation by the animists of the non decision makers that question was never posed it was never addressed if the district court had posed that question and if the district court had addressed that question the district court would have had to come to an entirely different decision because dr love on these i think are prints if you will are all over the record  and again the six circuit is clear on this point we cite this in our brief neither independent investigation nor independent judgment on the part of the employer provides a per se defense the question is again this is the question i posed by the judge was there a causal connection between someone in the organization love vonnie who has a bias alleged bias and the adverse action in other words was the negative decision reasonably arguably i am informed by what what i read and make an independent investigation but i am quotes definitely informed but what i am hearing from the chair that's a doctor dolores deposition at page thirty told that to dr de luxe the district court also ignored the testimony of dr troy who is the chair of the school of engineering in applied science who in combination with the dean participate in the process in the promotion and tenure process at the level where the dean steps in dr try testified quotes the chair knows the most about a candidate and therefore they give him considerable deference and that the committee defers to the chair with the expertise in the area of academic specialization represented by the applicant in this case that was dr lavalle he is the only one on that committee which is made up of all the chairs of all the eliberative process received an explanation from dr lavani as to the reason for his negative letter so dr labonte was there personally i was there to answer questions about his disease is opinions and he was the chair in who all these people typically and understandably rely and defer the district court further ignored the testimony of dr schilling he's the the chair of the promotion tenure committee the university promotion as someone that position relies heavily on the chair and they had the chairs was an exercise of academic freedom an exercise of professional and academic judgment not discriminatory intent the faculty members who reviewed the application to term and that dr thrashes request for tenure should be denied because in their judgment he his research was not of the highest quality nor did it show prospective continuation dr lavani was not biased and i'll talk about cat's paw first because i think that that's probably the most important part of this case in star which is the supreme court cat's paw decision and in the chapman case which is a post stop six circuit decision both of those courts explained how you can show cat's paw liability you need an act of a biased supervisor and then that at that act has to be the proximate cause of the decision now in both of those cases and stop you had a biased supervisor who made biased comments about her subordinate i don't like that he's off on military duty all they do is smoke and joke when they're on miller terry duty we got to get rid of him because it's too hard finding people to cover his work she made up a rule that he violated even if she there was a rule he didn't violated she told the higher ups that he violated another rule and had to get terminated and again there was no rule he had absolutely done what he was supposed to do he had left a message for a supervisor not walked off the job in the net and the other case chapman you had a biased h r manager who made racist derogatory comments about the employee including the n word a couple times again made up a rule lied to the higher management and said i talked to his supervisors they want to fire all the supervisors testified no we never said that so the court said that the biased decision makers in both of those cases passed along misinformation or selective information or flat out lies i hear there were allegations that were made that there was bias on the me that he refused to allow the list of references to include professors who were at historically black universities and colleges there is that and i just want to point out first of all that there is no allegation of any derogatory racist any kind of comments by dr lowe vonnie and what dr threshed testified was that dr lavani told him he couldn't use the professor's honest list from historically black colleges and universities because he dr love money did not think that they were qualified to review dr thrashes research either because of the program they were in at the school they were in or because of their own categorical exclusion of all professors who taught at a historical black college as being excluded but he just excluded these particular faculty members he excluded central state university dr thresh had three professors from there which is a historically black college excluded those three of the say i would not accept anybody from a historically black college or did he say i'm not going to us except these people well the records mixed on that but every time dr thrash was asked what he said he said he said i'm not going to accept anybody from a black college and i'm not going to accept them because i don't think they're qualified to review your research so that's what thrash says that he's correct and to thresh that in a deposition or some other sworn yes that is a tip that is evidence that must be considered on the summary judgment motion correct and we have the district judge to the district judge say anything about that in his opinion and we also have the contemporaneous records and we also have dr thrashes testimony of the reason why they're not qualified to review your research he also said the same thing about a professor from kentucky two professors from iowa and one from right state which are not historically black colleges he said i don't think they're qualified either for central state the reason was they don't have a chemical engineering department which is the department dr thrash was in the three professors he listed were in manufacturing engineering for north carolina state was another one not came up with a list i think it had at least four out of the six or seven were african american i believe so they came up with a list of eventually dr thresher also claims that that professor lavani was biased against african american scholars because he dismissed dr thrashes research with them and you heard about the hundred fifty thousand dollar grant but only forty eight hundred dollars of that grant came to miami the rest was for central state so it wasn't where it was from it was that this is not an amount that amounts to much of anything especially when you compare it with somebody like professor on quest who had six figures worth of grants so what we don't have here is and what you what you see it's a huge dossier the entire dossier it starts at the department level the department was the first one to raise the issues that dr thrashes upset that dr lo vonnie mentioned so the department voted in in favor of it yes but they have to long paragraphs about how they didn't like the tone of the external review or letters because  that he had somehow been disadvantaged at miami and then they noted that they didn't like that they spent two big long paragraphs talking about that that's one of the things that dr love ali picked up on as he goes along so what the upper levels of review got they didn't get misinformation they didn't get selective information they didn't get lies they got dr levy opinion in a six page single spaced typed document analyzing and if you read through it he says a lot of very positive things about dr thresh he examined his research but the upper levels of reviews the one after professor loney the dean comes next he testified i spent hours on this i looked at everything i looked at all the reviewers from the external reviewers i looked at all of your records all of your evaluations i went back and i talked to the department promotion and tenure committee but i'm a little bit confused was the bonny involved in upper level reviews either by being there in person during the deliberations or by communicating to the upper level reviewers he did not communicate to the upper level reviewers at all what he how he was involved is the dean has an advisory committee called the school of engineering committee you'll see the acronym sees it's the deans of all the schools and they all meet and in that meeting each department chair talks about their candidate now that is not a one on one meeting and the dean is not present but somebody comes and tells him what cs recommendation was so dr love and he was involved at that advisory committee point he wasn't involved at the deans level and he wasn't involved at the college promotion in tenure committee level so the dean did a completely review looked at everything went back and talked to other people and then when dr levy on e requested a review or reconsideration he did more work he did a graph he did a chart he studied the impact there was all kinds of ways they measure the importance of journals that articles are published in and how they're cited he went back and he did that then it goes to the promotion and tenure committee of the university so now we're four levels up and there's sixteen or eighteen on that committee and they wrote a very extensive letter explaining what they did which is in the record and they said again we looked at all your reviews we found the x turn all reviews to be mixed at best and i think if you look at them you would agree that they are mixed at best they are not overwhelmingly positive in fact one person said i can't comment on his research because i don't know anything about it so that was not very helpful  positive either you can't counted against somebody that there's an expert who's honest enough to say he doesn't know anything about the field correct and maybe he never should have been a reviewer to begin with but that's that's not neither here nor there if all the upper levels got was dr little dani's couple paragraphs that the doctor thresh objects to then maybe this would be a cat spark case because he would have selective information or maybe you could spin it as misinformation but they had everything and they reviewed everything and so the romans case the six circuit counts parquet says that if you and i agree with mr ms about just because you have the upper levels a review doesn't mean that you get a you know a free pass in that means that there was no discrimination but if there's no does the information there's no lies there's no well but the prop the basic problem is if we hypothesize for the moment that law bonnie was biased ok we're so you're going to assume that even though that's not your position if you assume that lavani was biased and he participates in an upper level review he obviously has the potential for infecting that arbor level review and then from then on that infection can go forward unless there's a totally separate review at a higher level so that i understand you're not you don't want to accept that hypothesis that lavani was biased but if he were and if he is at the at the deans review later on the dean of the school of engineering the seeds then and it sounded like both sides agree that vonnie was there he was not at the dean's review he was at this advisory committee meeting ok and then the dean does his own review so he listens to the advisory committee he went back and he talked to the three people in dr thrashes department the department committee he looked at all the evaluations he looked at the journals he looked at the big i mean he he did as he said i spent hours on this i did not take it lightly i looked at everything then he did a real review so now we've got two reviews then the college committee eighteen more people did a review and then they did a review after a request for consideration so by doing that they they break the chain if there was anything that dr lavani had done passed them wrong information lied to them they've got the whole dossier it is hundreds of pages they've got everything they can read everything everybody wrote and so to take one one or two paragraphs out of a letter that dr love ani wrote that that's not i mean it's his opinion it's not a lie he didn't do selective information so that the causal chain according to the ronin skate romans case because there was independent levels of investigation above they didn't just say oh dr levy says no i'm not going to look at anything else i'll just rubber stamp that there wouldn't be any point in having them go through this all if that was the case and we do adamantly disagree that that dr leavening was biased i mean there is there is no evidence that the reason he didn't want the people from that those particular schools was he didn't think they were good enough or qualified enough well suppose suppose again hypothesizing that somebody says i don't want to have any reviewer's from any historically female institutions because i think that historically female colleges are not up to snuff would that be a troubling statement about someone's use about women that was all they said it would be troubling if they said i don't think these particular professors are qualified and if they said the same thing about professors in male schools if they said historically male school of there is such a thing i guess there was  then you know then it wouldn't if if he said but i don't think the guy from harvard or princeton or whatever the historic they're not qualified either again he's not category excluding them because they're from black schools it's very clear and i question dr thresher over and over again what did he say that you can you can think about any historically segregated type of education and say well there are other reasons but basically it may well be that there is a deep seated prejudice against that particular group there could be but then why would they wind up with a list that was almost all african american and that dr thrash was satisfied with i mean they went back and forth he didn't say i think you're biased against dark asians because that is sixteen people you didn't list one he never saw anything like that he said i don't think this was good for this reason i don't think this was qualified they went back and forth dr thrash came up with another african american professor from ohio state dr love only said fine we'll put him on the list dr love and he proposed another number four out of six were african americans in the final list and it might be seven i'm not sure there was there was a back up so four out of the six that he got reviews from were minorities correct my time is up ok thank you writers first let me correct the record so there's no dispute as to this the exclusion of the reviewers from the historically black colleges was categorical it was not an ad hominum appreciation or consideration of any one of the professors it was i will not accept any reviews or reviewers from historically black colleges they're not qualified period the end and no that show that it was an a miss against african americans if for four out of six were african americans it simply could show whether rightly or wrongly he did think those people were up to up to snuff well it could be never considered any of the individuals he can he just considered carte blanche point blank if they're from those schools they're not going to be on the committees because i don't believe the scholarship from those schools owes all six ultimately we're african americans and he said what he said he said about historically black university well i think someone could still well you know whether or not he has an animus against scholarship that is affiliated with with african if you look at the record you'll recall that dr thrasher writing only twelve name is and only african americans what does that say about the person who submitting only african american names i think  probably shows that he is more familiar with because of his history his educational experiences his networking and just the way that academia works that he  found more familiarity with war acquaintanceship with those persons who are african american and for those reasons those are the names he selected but that doesn't mean those persons are any less qualified than caucasians but individuals who participate who who applied for this position he came in second of those fifty something that was totally ignored by law bonnie who considered him only an opportunity hire and who testified that he was hired only biased i'm not saying he is biased i don't know whether he's biased but it certainly suggests that he viewed dr thrash differently and then he treated him differently he treated hadn't differently than he did doctor i'm quest with respect to the fact the doctor i'm qwest had external reviewers who said on a politically she doesn't deserve promotion and tenure another individual said he had serious doubts about the quality of her scholarship none of that is mentioned in doctor love on his opinions about her the same with regard to the to the grants doctor i didn't finish before but dr thresh had applied for and was given an one hundred thousand dollars grant i had applied for before his application for promotion tenure was decided it was approved and he he made no bonnie know that that was in the pipeline and it was shortly thereafter accepted dr schelling testified there is no reason why that could not have been credited testified that he gave considerable deference to the opinions of the chair because he is the one who knows the candidate best and he's the one who is in that area of specialization deference  that the supreme court in the six circuit both said is the fact that he made an independent review and he sat in a room by himself and read the same materials that's an independent review but that does not mean by definition or otherwise that his reasonable evidence that it was a proximate cause a problem a proximate cause not the proximate cause a proximate cause his involvement was manifest in every level the review from the dean who would who testified that he was affected by it dr troy testified i love on he was on the committee was there they spoke to him he spoke to them they had his opinion they deferred to his opinion as they always do because he's the one with which spoke with specialization skilling said the same thing we always defer to the chair because he's the p t he's the person with the expertise there's not a single area in which he was not involved this is completely distinguishable from the romans case your red light